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https://www.courtlistener.com/api/rest/v3/opinions/8485694/ | On Motion for New Trial and Reconsideration:
*96Defendants, Moe Talalotu and Kilepoa Tuitama, move for a new trial (and reconsideration) in the above-entitled matter.
This matter came up regularly for trial on July 25, 1988. Plaintiffs appeared prepared for trial. Neither defendant appeared and no attempt was made by or on behalf of defendants to otherwise notify the Court of defendants’ absences. After hearing from plaintiff’s counsel and after reviewing the matters on file, the Court found that neither defendant had demonstrated much interest in pursuing their claims. The file reflects numerous attempts by plaintiff to get this matter to trial along with corresponding continuances. Defendant Moe Talalotu’s present claim of no "actual" notice of trial date attracts little, if any, sympathy in the circumstances. We found that this defendant was duly noticed in accordance with applicable rules of procedure when notice of trial date was delivered at his home some two months prior to trial. The person who received the actual notice was his son Finesi Moe. This same son received a copy of the judgment delivered also to defendant’s home and notice of which certainly attracted immediate reaction.
We similarly found due service upon the co-defendant Kilepoa Tuitama.
While the court has in the past shown a decided preference for a hearing with all parties present (especially in land matters) there comes a time when the standard of "natural justice and convenience," as provided in A.S.C.A. § 3.0242, requires that a party be accorded his day in court. That time was upon us when this matter was heard.
Defendants’ second ground advanced for a new trial, viz., prior adjudication concerning the disputed land, has been withdrawn.
The third ground advanced was that judgment awarding plaintiff "communal" land was inconsistent with plaintiff’s advertised claim of "individually" owned lands. Defendants feel that the logical result of the case should have been "denial or rejection" of the registration application by plaintiff to individual ownership. This argument is a non sequitur. The evidence received by the Court was inconsistent with a claim to "individual" ownership but was found to be consistent with *97"communal" entitlement. Indeed the complaint prays for an adjudication of "communal" ownership. We can see no conceivable prejudice to defendants by the conforming of our findings in accordance with the evidence, notwithstanding the content of plaintiff’s advertised claim.
Accordingly the motion for new trial is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485695/ | On Motion for New Trial or Relief From Judgment:
This case was filed in 1986 and tried in December 1987. Judgment was rendered on December 18, 1987, in favor of defendant Fale Fai'ai and in favor of defendants Uiagalelei and Tuiasosopo with respect to some but not all of the land claimed by them. The Court’s findings of fact, conclusions of law, and order are set forth at 6 A.S.R.2d 143. Satele, Uiagalelei, and Tuiasosopo have appealed; briefs have been filed by all parties and the appeals are scheduled to be heard next month.
Uiagalelei now brings a motion in the trial court. It is styled a "motion for new trial or relief from judgment" and is grounded in counsel’s discovery of new evidence.
The motion comes about seven months too late to be considered as a motion for new trial. A.S.C.A. § 43.0802(a). The statute is jurisdictional and leaves the Court no discretion to extend or disregard the ten day time limit it *99provides. See Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987), and authorities cited therein. We therefore consider the motion as one for relief from judgment under Territorial Court Rule of Civil Procedure 60(b).
Rule 60(b) provides in pertinent part that a party may be relieved from judgment on the ground of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial . . . ." The new evidence proffered by counsel for Uiagalelei consists of certain statements made at the hearing of Fauolo v. Tauvaelua, 1 A.S.R. 260 (1912), and in the pleadings of Teo v. Siatafu, 1 A.S.R. 327 (1921).
Counsel states that the records of these cases establish facts "which neither affiant nor defendant could have discovered in the exercise of due diligence before trial for the reason that neither affiant nor defendant had any way of knowing of the existence of such facts until their discovery by affiant."
The Court should grant relief from judgment only if it is satisfied both that the evidence in question really could not have been discovered by due diligence before trial or within ten days after trial, and only then if the evidence would seem likely to produce a different outcome upon retrial.
I. Due Diligence
Counsel stated at oral argument on this motion that in preparation for trial he checked the American Samoa Reports for all cases involving land called "Fasamea," but that these cases were essentially undiscoverable because their captions did not refer to Fasamea. While preparing for the appeal he somehow came across these cases. Fauolo v. Tauvaelua does not concern Fasamea but may shed some light on the identity of the man called Fau'olo who first registered it. Teo v. Siatafu does appear to involve the land called Fasamea by some of the parties to this case, but it was filed by neighbors who alleged encroachment on their own land called Laumaala.
The Court is not satisfied that checking the index for cases whose captions advertise their connection to the land presently in dispute *100constitutes due diligence. The answer filed eighteen months before trial by defendant Fale Fai'ai indicates that her claim was based on a grant by Satele to the Fauolo family. A subsequent memorandum, filed on the eve of trial, gives a much fuller account of the Fauolo family history. Although there was much in this memorandum and in the evidence produced at trial that was new,1 all of it was discoverable before trial. For at least two years now the Court has been imploring attorneys to take discovery prior to the trial of important cases. No discovery appears to have been taken in this case. It was entirely within the power of opposing counsel to learn from Fale Fai'ai prior to trial everything she presented at trial, including whatever it was that later caused him to research the records in the Fauolo and Teo cases. Instead, as happens all too often, everyone was satisfied to proceed to trial knowing only the barest outlines of what the other parties would have to say.
In cases where a party seeks relief from a default judgment, courts tend to characterize all but the most egregious neglect as "excusable” in *101deference to the principle that cases should ordinarily be tried on their merits. In this case, however, there has already been a trial. Three judges and several other court officials, as well as the various parties and their attorneys, each spent twenty-five hours in court time alone. Many more hours have been devoted to writing the opinion and the appellate briefs. To grant the principle that a party who did not take discovery can wait until after the trial and the issuance of an opinion and then track down whatever promising leads have emerged would be to relegate the first trial and opinion in every case to the status of pre-trial discovery.
II. The Likelihood of a Different Result upon Retrial
Even if we were to conclude that this evidence could not have been discovered with due diligence before trial --- or, to be precise, before the statutory deadline for filing a motion for new trial --- it would be an insufficient basis on which to vacate the judgment. The evidence consists almost exclusively of various statements about the identity and background of the Fau'olo who held the title circa 1912 (when ten acres called Fasamea were registered in the name of Fau'olo) and 1914 (when Fau'olo apparently offered for registration an expanded survey of Fasamea, this one comprising about 35 acres.) The statements on which counsel relies, however, are not substantially inconsistent with the findings and conclusions the Court has made in the present case.2
*102Accepting for the moment the truth of all the statements in question, we would draw the following conclusions about the status of the Fau'olo title in 1912:
1) It was within the power of three people to confer the Fau'olo title. They were Siatafu, Sineavea, and Tauanu'u. They were the "true descendants of the Fau'olo title." They had conferred the title upon several persons and then removed it from them.
2) Shortly before 1912 the title had been conferred upon Fau'olo Sila. He was said by one of his opponents to have come originally from Upolu. If he did come from Upolu, we have no way of knowing when he arrived in Tutuila or where he lived prior to assuming the Fau'olo title, except that his opponent places him in Upolu at the time of a certain event that probably happened circa 1882. It also appears that he did not reside in Poloa for very long, if at all, prior to taking the Fau'olo title.
3) Since Sila is not mentioned as among the "true descendants" of the Fau'olo title who have the power to bestow the title, he probably was not a full blood brother of Siatafu.
4) Although Fau'olo is a title of the village of Poloa --- we glean this not only from the transcript in the Fau'olo case but also from *103judicial notice of the matai register for Poloa--the family was perceived, at least by its opponents, as residing primarily in Se'etaga. The opponents frequently refer to members of the Fau'olo family, and on one occasion to the whole family, as being from Se'etaga or of having been in Se'etaga at the time of various important events. Tauanu'u, a name whose incumbent titleholder in 1912 was one of the "true descendants" of the Fau'olo title, is a matai name of Se'etaga. A person named Paepae is also prominently mentioned in the Fau'olo transcript as an influential member of the Fau'olo family; Paepae is a matai name of Se'etaga. (We take judicial notice of the matai register of Se'etaga.)
5) As counsel observes, the person called Paepae in the Fau'olo transcript is not the same person as Fau'olo Sila.
5) Siatafu grew up at least partly in Taputimu, probably because her father, a former holder of the Fau'olo title, had gone there to live with his wife’s family.
6) Fau'olo Sila acted together with Siatafu to register Fasamea and to claim or reclaim Fau'olo family land in Poloa.
Counsel wishes us to infer from these data that the Fau'olo who registered ten acres called Fasamea in 1912 could not possibly be the same person as the Fau'olo who conveyed thirty-five acres called Fasamea to his daughter (the grandmother of defendant Fale Fai'ai) in 1939. The latter was identified by his great-granddaughter in 1987 as Fau'olo Paepae of Se'etaga, brother of Siatafu; the former is identified in the "newly discovered" transcript as Fau'olo Sila of Upolu and Poloa, probably not a blood brother of Siatafu. Counsel further infers that the 1939 grantor must have been the Paepae mentioned in the 1912 transcript, who pretty clearly was not the same person as Fau'olo Sila.
We decline, however, to draw these inferences. The evidence proffered by counsel is to the effect that a man named Sila came from Upolu at some time between 1882 and 1912 and lived somewhere other than Poloa until shortly before 1912 when the Fau'olo title was bestowed upon him. It also appears from the transcript that Fau'olo Sila may *104not have resided primarily in Poloa even after taking the title. In any case, another affidavit submitted by counsel for Uiagalelei tells us that by the mid-1930s Fau'olo had left Poloa for good. On this evidence it would seem quite possible, indeed likely, that one of the places he resided was in Se'etaga where most members of the Fau'olo family (including two of the three people with power to bestow the title) seem to have had their principal residence. Nothing in the newly discovered evidence, therefore, supports counsel’s suggested conclusion that this Fau'olo was not the same person who refers to himself as "Fau'olo of Se'etaga" in the 1939 deed. We note from the matairegister of Poloa that Fau'olo Sila registered the title in 1911 and that the next registration of the title was not until 1941.
As for counsel’s inference that the Fau'olo of 1939 must have been the Paepae mentioned in the 1912 transcript and must therefore not have been Fau'olo Sila, it rests on the assumption that there was only one Paepae. This assumption is obviously unwarranted.
If Paepae had been the 1939 grantor’s taule'ale'a name, the existence in 1912 of a Paepae who was important in the Fau'olo family but who was not "the" Fau'olo in 1912 might be important to our case. The only evidence that the Fau'olo who signed the 1939 deed ever was called by the name Paepae, however, is the testimony of his great-granddaughter Fale Fai'ai to the effect that he acquired the name Paepae at some time after his acquisition of the Fau'olo title. This clearly implies that Paepae is a matai name. A person remembered as Fau'olo Paepae in 1987 by his great-granddaughter need not, of course, have been the holder of the Paepae title in 1912.
The matai register reflects that Paepae is a matai title of Se'etaga. Any number of people registered the title during the probable lifetime of Fau'olo; during one four-year period two different people seem to have registered it; and others may .have shared the title without registering it, as is customary in some families. A person signing his name simply "Paepae" was one of the three witnesses to the 1939 conveyance by Fau'olo; this implies, although it does not prove, that as of 1939 Fau'olo himself had not come to be called Paepae. Perhaps he acquired the name after *105he conveyed Fasamea to his daughter. Whether or not Fau'olo was ever called Paepae was in no way important to any of the Court’s findings or conclusions.
Nor does it matter whether Fau'olo was a full blood brother of Siatafu. He could have been her first cousin or even her half-brother without sharing her direct descent from the Fau'olo title. As counsel knows, Samoans frequently refer to their relatives of the same generation as brothers and sisters although they are not born of the same mother and father. The records of the Fau'olo and Teo cases neither establish nor negate a blood relationship between Siatafu and Fau'olo.. They do make clear that Siatafu vigorously supported Fau'olo’s registration efforts, not only the earlier ten acre registration but also the later attempt to register the whole 35 acres.
The records are in no way inconsistent with Fale Fai'ai’s use of the words "brother" and "sister" to describe Siatafu and Fau'olo; if introduced at trial their primary effect would have been to provide documentary support for the more pertinent aspects of the case presented by Fale Fai'ai. Fau'olo came to Fasamea with the support of Siatafu, the wife of Satele and a member of the Fau'olo family; he promptly registered ten acres and later attempted to register 35 acres, not as Satele land but in his own name and that of Siatafu.
Finally, however, suppose the Court were to conclude --- against the weight of the evidence, even as supplemented by the "newly discovered" transcripts --- that the 1912 Fau'olo and the 1939 Fau'olo were two different people. Whose case would be strengthened? It would not help Uiagalelei, whose disagreement with Fale Fai'ai and her relatives is in the nature of a boundary dispute and whose activities on the land described in the 1939 deed were found to date only from the 1970s. Nor would it help Satele, whose claim rests on the presumption that one who occupies and cultivates land does so for the benefit of his extended family; these records strongly support the Court’s original conclusion that Fau'olo (whoever he was) and Siatafu intended this land to become their own property and not that of the Satele family. It is perhaps even more difficult to see how a conclusion that Fau'olo the 1939 grantor had *106nothing to grant would help Tuiasosopo, whose ancestor came to the land through his half-sister Fa'ailoilo (the daughter of this very Fau'olo) and whose own survey in 1974 listed the land as belonging to Fa'ailoilo.
The only possible beneficiaries of a conclusion that the Fau'olo who signed the deed in 1939 was a usurper would be the heirs (if any) of the Fau'olo who registered the land in 1911, and perhaps the heirs (if any) of Siatafu. No such people appeared in this case, nor does the voluminous evidence suggest any trace of them on Fasamea at any time between 1911 and the present. Even if the hypothetical heirs of the hypothetical first Fau'olo had appeared, they would have had to overcome what would then be a strong adverse possession claim by the descendants of the "other" Fau'olo.
Since the descendants of this Fau'olo presented not only the best evidence of possession but also the best evidence of title, the Court did not reach the question of adverse possession. Nor is it necessary to reach that issue at this time, since the evidence even as supplemented by the proffered exhibits strongly supports the title conveyed by Fau'olo to Fa'ailoilo in 1939 and claimed since then by Fa'ailoilo and her descendants. Fale Fai'ai testified that her great-grandfather Fau'olo ---indisputably the person who executed the 1939 deed --- was also the person who offered Fasamea for registration in 1912 and 1914. This testimony was unrebutted at trial although two of the three opposing parties are connected to the Fau'olo family by marriage and would presumably have had access to any contrary tradition. Nothing in the newly discovered evidence suggests that the testimony of Fale Fai'ai on this point was anything but the truth.
The motion is denied.
The memorandum and the evidence not only elaborated on the factual allegations in the original answer, but also reflected a change in the legal theory on which defendant Fale Fai'ai claimed the land. The original answer asserted that Fasamea was Satele family land committed according to Samoan custom to the perpetual possession and use of the Fau'olo family. The memorandum and the evidence produced at trial --- to the effect that Fau'olo had registered part of the land in 1911 as his own land, that by 1939 he had attempted to register and to convey the rest of it, and that his descendants had asserted ownership of it in various ways down to the present day --- established to the Court’s satisfaction that Fau'olo had been occupying the land on his own account and that any authority Satele may have had over the land was not in a proprietary capacity but in his political capacity as the highest chief in the county. This evidence was introduced without objection by any party; its variance with the pleadings therefore does not affect the result at trial. T.C.R.C.P. Rule 15(b).
The statements in question are almost exclusively from the transcript of the hearing in the Fau'olo case, held January 12, 1912.
The pleading in the Teo case consists of boilerplate to the effect that Fau'olo and Siatafu are trying to encroach on plaintiffs’ land, that Fau'olo and Siatafu have never used the land and plaintiffs have long occupied and cultivated the land, etc. The claims of encroachment were not made by ancestors in title of Uiagalelei, Satele, or Tuiasosopo, and they appear to concern a different part of Fasamea than the boundary issues raised by Uiagalelei in the present case. The dispute was found by the Court to have been amicably *102settled. The only light the pleading sheds on the present controversy is that it (1) bolsters the testimony of defendant Fai'ai that the 1939 conveyance from Fau'olo to Fa'ailoilo of 35.5 acres, which incorporated a map and survey dated 1914, actually did reflect the boundaries of Fasamea as her family had claimed them since 1914 rather than being a later contrivance; (2) affords a plausible explanation for the failure of the Territorial Registrar to register the 35.5 acre parcel surveyed by Fau'olo in 1914; and (3) reinforces the Fau'olo family history to the effect that Fau'olo acted together with Siatafu. If this evidence had been available at trial it would have helped defendant Fai'ai, who prevailed even without it. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485696/ | Per Curiam:
On August 12, 1988 the respondent, Immigration Board of American Samoa, entered a deportation order against the petitioner, Leveli Leti, a national of Western Samoa. The board found that the petitioner had unlawfully acquired employment *108in the territory in violation of A.S.C.A. § 41.0409 and concluded that this violation warranted deportation under A.S.C.A. § 41.0616 (16). A motion for reconsideration was denied by the board, as more fully appears in its decision filed September 2, 1988.
Petitioner seeks judicial review of the deportation order and moves to stay the deportation order pending final disposition hereof. A petition for review does not automatically stay a final order of deportation by the board. A.S.C.A. § 41.0646. We therefore granted an expedited hearing on the interlocutory matter.
After careful consideration of the submissions of counsel and of the matters on file we conclude that a stay should be granted.
As noted above, the board relied on A.S.C.A. § 41.0616 (16) as authority for its deportation order. We note that the enactment reads as follows:
Any aliens [sic] in American Samoa, including an alien crewman, shall, upon the order of the attorney general. be deported, who •'
(16) has [sic] violated any provision of this title or regulation of the board, in addition to any other penalty which may be imposed under any provision of the law.
(Emphasis ours.)
This section, unlike some other sections of the immigration law, clearly requires the involvement of the attorney general himself. While the board acted within its power in determining whether the petitioner had committed any of the acts under which the statute defines him as "deportable," the statute does not require that every "deportable" alien actually be deported. 1
*109The petitioner in this case appears to have been found deportable because he committed a minor technical violation of the immigration law. He had obtained the requisite written permission from the immigration board to be employed by his sponsor as a bus driver. It appears that his sponsor’s bus broke and petitioner began working as a driver for one of his sponsor’s relatives who also owned a bus, without having obtained a second written permission from the board. Counsel for petitioner argues that the case would never have been prosecuted by the immigration department had it not been for the fact that a brother of an immigration department employee had a score to settle with petitioner.
None of these arguments may avail the petitioner in his appeal to the High Court, which is limited almost exclusively to the correction of errors of law by the board. They are the very sorts of factors, however, that might inform the discretion of an executive official who must decide whether to deport someone who has been found to be deportable.
An interlocutory stay should be granted only if there is a substantial likelihood that the petitioner will prevail on the merits and the petitioner will be greatly or irreparably injured if the stay is not granted. In this case deportation will mean the loss of petitioner’s livelihood; in the absence of an order by the attorney general the petitioner’s chances of prevailing on the merits would appear to be one hundred per cent.
Accordingly, a stay is granted pending consideration by the attorney general of whether the petitioner should be deported.
We note that a 1988 amendment to A.S.C.A. § 41.0409, which prescribes a schedule of fines to be levied by the board *109for offenses involving unlawful employment, added a new paragraph (g) which may permit deportation by the board in addition to fines. The amendment is not available to the board in these proceedings as it would be retrospective in effect. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485697/ | The plaintiffs were lately members of the defendant Tongan Wesleyan Church of American Samoa, hereinafter the "Church," They have recently separated from the Church and have filed suit essentially seeking a liquidated share of the Church’s assets accumulated to date to aid in their setting up another religious institution to be administered more to their own liking. The evidence does not disclose a "schism," as the term is used in ecclesiastical circles;1 rather, the falling out is attributable to matters more in the nature of the mundane and temporal order --- fiscal policy. The disaffection is deeply seated, yet the roots of the quarrel --- investment of Church funds in additional reality versus investment of those funds in a bus --- belies its resultant prominence.
FACTUAL BACKGROUND
With emerging immigration to the territory, a number of Tongan nationals had, by the year 1976, become resident in the Western District. This in turn gave rise to the common desire to worship and gather as a community. The early beginnings of organized religious gathering arose in Le Puapua, Leone. A small grouping of Tongan households then began assembling in borrowed housing for worship in their native tongue employing the teachings, customs, and usages as established by the Methodist Church in Tonga, hereinafter the "Church in Tonga."
Among those early organizers were plaintiffs Funaki Ofa and Manase Katoa and defendant Rev. Netane Tuipulotu Vi, who also conducted the religious services. (At that time, Rev. Vi was a recognized "lay preacher" having completed certain theological schooling under the auspices of the *112Church in Tonga. He had, however, yet to be fully credentialed as a Pastor.)
At the outset there were no written articles of association nor rules governing the assembled membership, however, all were familiar with the organizational traditions of the Church in Tonga. The affairs of the early assemblies were conducted accordingly: they held regular meetings of an organizational nature; they conducted elections of officers; and established books of accounts. In the course thereof, plaintiff Funaki Ofa featured from the onset in the administration of the Church. He was repeatedly elected to the lay leadership position, a post second only to the Pastor following the hierarchical traditions established in Tonga.
The need for a more permanent location for worship was soon realized and the membership set about to raise funds. The event which proved popular was the Tongan fund raising social, kava dances. This involved invitations to the Tongan community at large to share kava with the fund raisers. It is customary and anticipated at these functions that individual families or other appropriate groupings would perform dance items which in turn attracted monetary donations from the audience. Donation totals for each item would be made known and accordingly the dance groups would compete spiritedly for donative favor as well as for some nominal prize at the conclusion.
In the year 1980, sufficient funds had been raised to buy a plot of land in Tafuna. A deed was executed and delivered by the grantor to a nominated "trustee for The Tongan Wesleyan Church in American Samoa." In time a chapel and attendant buildings were erected on the land.
Shortly after the land purchase, some questions arose regarding the Church’s status as a cognizable legal entity, and therefore its ability to own land in American Samoa. The evidence went on to show that Kev. Vi, with the aid of certain American Samoan nationals who were non-church members, incorporated an eleemosynary corporation pursuant to the laws of the territory. (A.S.C.A. §§ 30.0201 et seq.) The corporation was named the "Tongan Wesleyan Church in American Samoa" and the Articles of Incorporation designated "Tafuna" as the principal place of business. The general *113corporate purpose reads as follows: "... to preach the Gospel of the Blessed God, and to confirm and strengthen the faith of those called into the fellowship of His Son, Jesus Christ," and ancillary to this general purpose, the Articles further empowered the corporation to acquire property.
With corporate status, a general meeting was soon thereafter convened to explain incorporation to the membership. This included the assistance of a .Tongan legal practitioner who was invited to discuss in the Tongan language the desirability of incorporation and the requirements of corporate existence. The Court was not presented with any minutes of this meeting, however certain factors consistent with ratification were borne out by the testimony. Firstly, there was no definite objection registered at the meeting regarding a change in status. Secondly, all subsequent annual meetings have been held pursuant to the Articles. Thirdly, corporate status was invoked by the Church’s administration to independently sponsor Rev. Vi as permitted by applicable immigration laws.2
The evidence also disclosed that from the time of fund raising, Rev, Vi took extended visits abroad. These extended visits were in part explained on the evidence as church related business but also in part left as unexplained absences. Nonetheless, the Reverend would return each time and resume his office without question from anyone. This situation at least existed until his last return (after another lengthy absence) in April, 1986, where he encountered bitter dissension among his flock.
*114The background to this dissension is as follows: during Rev. Vi’s off island sojourns, plaintiff Funaki Ofa would, by reason of his elected office, properly assume leadership of the Church’s affairs including religious services. The latter’s experience with day to day power was, therefore, correspondingly extended, so much so that in our opinion, Mr. Ofa apparently lost sight of that source of power. Early in 1986 and prior to Rev. Vi’s last mentioned return to the island, Mr. Ofa had proposed to the membership the expenditure of church funds to acquire some nearby land. The bank account at the time reflected some $39,000 in savings. This proposal was first rejected at a meeting of the officers called by Funaki Ofa. After strongly chastising the executive body for their considered lack of foresight, Mr. Ofa advised that he would put the issue before the membership at the next gathering for services. In Mr. Ofa’s judgment, the investment opportunity was too important to be passed up. The issue was put to a vote and similarly the membership turned down the proposal, favoring the alternative idea of investing in a church bus. The continued refusal by the majority to endorse Mr. Ofa’s idea escalated to growing ill will and the development of a distinct faction in support of Mr. Ofa. The remainder of the membership was steadfast and was content to await the return of Rev. Vi, the avowed leader of the Church, to put an end to the dissension. The setting for a power struggle had thus emerged.
Rev. Vi upon his return also found that his leadership status was questioned by the Ofa faction in the light of the his extended absences. Indeed his sponsorship status with the immigration authorities was not kept current by plaintiff Ofa, who apparently attempted to have his own name registered instead under church sponsorship.
The discontent finally reached the Church in Tonga. In a recorded audio message to the membership in Tafuna, Tonga’s officialdom recommended that both Rev. Vi and Mr. Ofa step down from further leadership roles pending the upcoming annual elections in the month of December. It was also suggested that in the interim all further religious services and other affairs of the Church, including the conduct of elections, be placed in *115the hands of a Rev. Fangupo of the Tongan Methodist Church in Fagatogo.
The suggestions from Tonga were apparently acceptable to both sides and lifted the focus of attention from continuing discord to the return to undisrupted worship.
On the appointed day for the annual meeting, the elections under the supervision of Rev. Fangupo resoundingly endorsed Rev. Vi’s leadership. Yet the struggle did not end there. Subsequent Sunday services were continuously disrupted by Mr. Ofa and members of his family. He began complaining about the elections, accusing Rev. Vi and his followers of engineering the attendance of new faces on élection day. There followed attempts to reconcile but they were to no avail. Mr. Ofa’s defiance continued to disrupt services and eventually the Church’s secretary was instructed to write a letter to the Ofas to inform them that their attendance at church was no longer welcomed and to notify them of their removal as members of the Church.
At this time, Mr. Ofa and his family no longer attend services with the defendant church. Together with the other plaintiffs, the Ofa household now worships again under borrowed housing. Finally, the evidence did not disclose the Church in Tonga as having taken a further hand in the matter which now has found its way into the secular courts.
DISCUSSION
As noted at the outset, plaintiffs seek a liquidated share of the Church’s assets. They seek dissolution on a number of grounds. The first of these is premised on the claim that the Church as a body corporate is a sham and thus subject to an Order to wind up its affairs, to sell its assets, and the proceeds of the assets given over to "an equitable distribution." The principal contention here concerns the setting up of the corporation by Rev. Vi aided by non-church members. Plaintiffs’ position at trial was that the initiative taken by Rev. Vi to incorporate the Church was unauthorized by the membership as a whole and that the involvement of non-church members as incorporators demonstrated a sham. Plaintiffs further took the stance that the fact of incorporation was *116inconsistent with what they had believed was the true status of the Church. This belief is that the Church was originally formed on the understanding, that the same was subject to the control of the Church in Tonga, and that all Church assets were accordingly controlled by the Church in Tonga. It is argued that incorporation was in derogation of this control and attempted to separate the local church from the Church in Tonga. In this regard the allusion appears to be to the difference between the "hierarchical" or presbyterian type of church government on the one hand, and the strictly "congregational" or independent type of church government on the other. With the former type, ecclesiastical government rests in a superior general church organization of which the local church is an organic part. With the latter type, the local church is seen supreme in all of its affairs and its government vested in the membership. While the local church might still be affiliated with a general church, it is merely confederated therewith in polity. See generally Watson v. Jones, 80 U.S. (13 Wall.) 666 (1871).
These arguments by which plaintiffs now seek to justify dissolution are lacking in conviction. Obviously while the status quo was to plaintiffs’ liking, they thoroughly endorsed the very state of affairs which they now complain of as being a nullity. Plaintiffs cannot now be heard to complain or to question the validity of incorporation after having participated in the Church’s affairs and having dealt with the Church as a corporate entity for some years. In these circumstances, plaintiffs are estopped from denying the validity of corporate existence. See, e.g., Willis v. City of Valdez, 546 P.2d 570 (Alaska 1976); Congregation B’Nai Abraham v. Arky 20 S.W.2d 899 (Mo. 1929). The testimony reveals that the Church was given corporate status some five years prior to the division. The lack of objection noted at the membership’s initial gathering to consider the requirements of corporate existence infers general consensus and subscription by the membership to corporate existence. This meeting may be viewed as an organizational one, and subsequent dealings by the membership, including the holding of elections in accordance with the Articles of Incorporation, and indeed the assumption of elective offices thereby by plaintiffs Ofa and Katoa, all point to ratification of the incorporators’ actions by the membership. *117In his testimony, plaintiff Katoa took credit for petitioning the Church in Tonga to have Rev. Vi appointed to the status of Pastor while plaintiff Ofa, in seeking immigration sponsorship of Rev. Vi by the Church, did in fact hold out the Church as a duly organized body corporate to the Government of American Samoa. The attempt now by plaintiffs to discredit the Church’s corporate status as a sham rings rather hollow. If anything, the evidence before us sustains the conclusion that the Church was duly incorporated as a religious organization pursuant to the laws of American Samoa.
Among other things, it was clear on the evidence that the Church was incorporated to settle any doubts about its entitlement to hold land. The incorporation was effectively accomplished and we find no evidence to the contrary that the corporation was other than a de lure. if not at least a de facto, entity. As such, the validity of its corporate existence may not be collaterally attacked, as it is here, to determine title to property after a dispute between members. See McAuliffe v. Russian Greek Catholic Church, 36 A.2d 53 (Conn. 1944) cert. denied 323 U.S. 726; Congregation B’Nai Abraham v. Arky, supra. Notwithstanding, the argument, that the incorporation exercise was a sham because of nonmember incorporators, fails to impress. As noted above, these non-members were American Samoan nationals. Their involvement reflected no more than the statutory requirement that the majority of incorporators of an eleemosynary corporation must be United States nationals. A.S.C.A. § 30.0201. Any suggestion of wrongdoing on the part of Rev. Vi is clearly unwarranted, and we fail to see the involvement of non-church members in the incorporation process as giving rise to a sham. Again the argument lacks merit in view of ratification.
On plaintiffs’ point regarding incorporation as effecting the Church’s change in status from "hierarchical" to "congregational" and thereby justifying dissolution, the contention fails to advance plaintiffs’ cause one way or the other. Assuming that the evidence sustained plaintiffs’ claim that the Church was hierarchical or Presbyterian in organic make up, the fact remains that there was never any disagreement whatsoever between Tonga and the defendants. Indeed, if local church government was subject to the jurisdiction *118of the Church in Tonga, the ecclesiastical measures taken towards resolving the dispute were in exact accordance with the recommendations from the Church in Tonga, These measures were apparently acceptable to plaintiffs, as well as defendants, and the results thereof presumably in accord with the Church in Tonga as the latter has taken no further action. Plaintiffs nonetheless pray this Court to dissolve the Church because things did not go their way.3 The prayer is clearly inconsistent with early established law that a person who voluntarily joins a religious society or church, does so with implied consent to church government. Watson v. Jones, supra.
Similarly, if the Church is in fact congregational in nature, and therefore its government vested in the congregation, then the resolutions resulting from the overwhelming majority vote of the membership were determinative of the dispute.4 There is simply no room in the *119circumstances for this Court to be interfering with Church government let alone considering the dissolution of its charter at the instigation of a handful of discordant members.
Finally, plaintiffs also appear to intimate, with their claim that as members of the Church they each held a defined and vested proprietary interest in the Church’s property, that therefore with their separation from the Church they were entitled to have separated out that proprietary interest. For example, from Mr. Funaki Ofa’s point of view, he had been a founding member and in his many years with the Church he had personally contributed some $17,000. (In cross examination this total was explained as monies from personal income as well as from fund raising.) This money he wants back.
Quite apart from our difficulties in accepting the accuracy of Mr. Ofa’s accounting, or that he even kept an accounting, he parted property interest with that money long ago, at least in accordance with the familiar principles applying to perfected gifts with no strings attached. There is no revocation after delivery of the property gifted and we find nothing on the evidence to show a contrary donative intention on the part of Mr. Ofa, or indeed on the part of any of the other contributing membership, that giving to the Church was otherwise than unconditional. (Certainly Mr. Ofa never had property to start with in the donations received by him from third parties on behalf of the Church.) For these reasons the claims of the other plaintiffs to interest in the Church’s property are similarly seen as unfounded.
*120We conclude on the foregoing that plaintiffs and each of them have failed to demonstrate any cause for relief. Therefore the complaint is hereby dismissed and plaintiffs take nothing thereby. Judgment accordingly.
It is so Ordered.
A schism has been said to be a division "on account of some doctrinal difference of opinion with regard to matters of faith or discipline or the offense of causing or seeking to cause such a division." Protestant Reformed Church v. Tempelman, 81 N.W.2d 839, 844 (Minn. 1957).
At the instigation of the Church’s administration, Rev. Vi was secured the status of "Pastor" from the Church in Tonga. By letter dated 24 May 1982 under letterhead of the Methodist Church in Tonga, and intended for appropriate government agencies in Samoa, Rev. Vi was introduced as "promoted to be a Pastor and now he is to take care of the Tongan Church at Tafuna until further notice." As such, Rev. Vi was apparently accepted by immigration officials as eligible for immigration sponsorship by the local body corporate.
If plaintiffs are seeking judicial review of the electoral process undertaken by the Church, such is beyond the jurisdiction of the civil courts which is strictly confined to temporal issues, civil or property rights. The involvement of the Court with issues purely in the nature of ecclesiastical government would be without regard to the constitutional line demarcating church and state. The First Amendment’s interdiction against the involvement of the civil courts with underlying controversies over religious doctrine was noted by the Supreme Court in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976) as applying “with equal force to church disputes over church polity and church administration.“
Where there is a split in the nature of a "schism," the majority vote, in the congregational context, is not necessarily determinative with regard to disputes concerning title to property. The civil courts, applying neutral principles of law, have recurringly sustained the property claims made on behalf of the church by the membership adhering to the tenets of faith as hitherto practiced regardless of whether that *119membership happens to be in the minority. It is not in the majority’s power to take for themselves such property to support new and conflicting doctrines. The reasoning is that property dedicated by way of trust to a particular charitable purpose came within the civil court’s duty to ensure that property so dedicated was not diverted from the trust which is thus attached to its use. This equitable doctrine as to charities was seen as equally applicable to ecclesiastical matters. Watson v. Jones, supra. As we noted at the outset, the matter before is not a case involving a schism. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485698/ | On Motion for Reduction of Sentence:
Fue Junior Tile moves for the reduction of a thirty-year sentence imposed on July 3, 1985, after he pleaded guilty to second degree murder.1 The Court is urged to reduce the sentence because of Tile’s "exemplary" conduct as an inmate and because of the rehabilitative effects the first years of his sentence have wrought.
The government has moved that the motion be dismissed, arguing that the Court is without jurisdiction to entertain a motion to have a sentence reduced when the motion was filed after the expiration of the time limit provided in the rules of criminal procedure.
Rule 35(b) of the Territorial Court Rules of Criminal Procedure states that a motion for reduction of sentence must be made within 120 days of sentencing. Rule 45(b), generally governing the *122time limits set forth in the rules, states that the limit imposed in rule 35 cannot be extended.
Authorities construing Rule 35(b) of the Federal Rules of Criminal Procedure, which is worded identically to our Rule 35(b), support the government’s position. The federal judiciary’s power to reduce a sentence is entirely statutory. Prior to the approval of Rule 35 by Congress, a federal trial court had no authority to reduce a sentence once it had been imposed. See United States v. Murray, 275 U.S. 347, 358 (1928). The time limit in the federal rule was adopted to serve two purposes: to forestall the endless barrage of requests for clemency that the courts would otherwise face, and to ensure that the courts do not usurp the authority of parole officials by retaining jurisdiction indefinitely and deciding whether to reduce sentences in the light of the movant’s conduct during an extended period of imprisonment. See United States v. Smith, 650 F.2d 206, 208 (9th Cir. 1981).
On the latter point Professor Moore has remarked that "[s]ome limitation on the court’s power seems to be necessary, for after a lapse of time the peculiar ability of the court to determine sentence gives way to the presumably greater competence, and knowledge, of penal authorities." 8A J. Moore, Federal Practice par. 35.02[1] at 35-4 n. 5 (2d ed. 1974), quoted in United States v. United States District Court, 509 F.2d 1352, 1356 n.6 (9th Cir.), cert. den. 421 U.S. 962 (1975). Some courts hold that it is not ever appropriate for a court to reduce a sentence on the basis of the prisoner’s conduct in jail. Such holdings are based on the executive branch’s power under the Constitution to grant reprieves and pardons (U.S. Const. art. II § 2) and on the congressional design to allocate the release function between the judiciary and the executive. See, e.g., United States v. Quinones, 508 F. Supp. 473, 476, 479 (D.N.J. 1980).
A federal court operating under the federal rule would clearly have no jurisdiction to hear the present motion. It does not automatically follow, however, that an identically worded rule of the High Court of American Samoa also states a jurisdictional limitation (as opposed to a sort of guideline to which the Court might make exceptions in appropriate circumstances). This uncertainty *123derives from important differences in the constitutional and statutory provisions granting and limiting the powers of the federal and territorial courts respectively.
The federal constitution gives Congress the power to "ordain and establish" the lower federal courts, and this power has long been held to include the power of regulation. U.S. Const. art. III § 1; Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); Turner v. Bank of North America, 4 U.S. (4 Dall.) 7, 10 n.1 (remarks of Chase, J.) (1799). The Federal Rules of Criminal Procedure are promulgated under the authority of Congress and are binding on the federal courts to the same extent that statutes would be binding. 18 U.S.C. § 3771; Davis v. United States, 411 U.S. 233 (1973); Singer v. United States, 380 U.S. 24, 37 (1965); United States v. Mitchell, 397 F. Supp. 166 (D.D.C. 1977), aff’d 559 F.2d 31 (D.C. Cir. 1976), cert. den. 431 U.S. 933 (1977). In American Samoa, on the other hand, the Court makes its own rules. See A.S.C.A. § 3.1002(c); Rev’d Const. Am. Samoa art. III § 2 ("The judicial branch of the Government of American Samoa shall be independent of the executive and legislative branches."). Although we happen to have imposed a time limit identical to that of federal rule 35, ours is not as obviously jurisdictional.2
Even if the Court does have authority to disregard or make exceptions to its own rules, however, it would be inconsistent with the prudent *124exercise of judicial authority to do so on an ad hoc basis in order to reach the desired result in a particular case. Our rules were the product of long deliberation by lawyers' and judges who had the opportunity to weigh the desirability of alternative rules in light of their collective experience in hundreds or thousands of cases. Evidently these lawyers and judges determined that circumstances in American Samoa were not sufficiently dissimilar from those in the United States to justify a different rule for the reduction of sentences. A similar committee chaired by Associate Justice Kruse is currently in the process of examining the rules in order to recommend possible changes. In the meantime, those whose efforts resulted in the current rules have clearly stated their intention that "the court may not extend the time for taking any action under . . . [Rule] 35." T.C.R.Cr.P. 45. That intention should not be lightly disregarded.
The motion is denied.
The motion was heard by the Court on February 17, 1988. At the conclusion of counsel’s argument the Court noted that Rule 35 of the Territorial Court Rules of Criminal Procedure gives the Court authority to reduce a sentence only within 120 days after sentence is imposed. Since this motion was made about two and one half years after sentencing, the Court was under the impression that these remarks from the bench disposed of the matter. Counsel for the government recently pointed out to the Court, however, that the matter was formally taken under advisement. Hence the present opinion and order.
The Fono has provided by statute that criminal procedure in the High Court shall conform as nearly as is practicable to the Federal Rules of Criminal Procedure, "[e]xcept as otherwise provided in this Code, or by rules adopted by the Chief Justice." A.S.C.A. § 46.0501. Since this statute explicitly recognizes the power of the Chief Justice to make exceptions, it is not even arguably inconsistent with the requirement of the territorial constitution that the judiciary remain independent of the legislative and executive branches. Nor is it clear that reasonable legislative regulation of judicial procedure necessarily conflicts with judicial independence. See Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983 (1975). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485699/ | On Motions for Reconsideration, Amendment of Judgment, or New Trial:
This case arose from a dispute among close relatives over the ownership of a small parcel of land in Pago Pago. We held that the defendant Estate of Molitui Sepetaio owns the land, but that plaintiff Roberts is entitled to compensation for improvements for which she paid under the reasonable belief that she was the owner. Both sides take issue with our judgment.
I. Plaintiff’s Motion
Plaintiff Roberts argues that we erred in finding that Molitui Sepetaio did not sign a separation agreement giving Roberts’ father the right to build his house on the land. She observes that the purported signature was made during a time when Molitui was very ill, and that the memories of witnesses might have been hazy with regard to Molitui’s whereabouts at the time. We did take these circumstances into account before making our original decision, however, and upon reconsideration we reiterate our finding that the signature was not that of Molitui.
Plaintiff also contests our valuation of the house, apart from the value of the land on which it-sits, at $15,000. In particular, plaintiff alleges that "the Court erroneously attributed at least half of the value of the house to its location. There were no findings by the Court to justify the conclusion." *128attributable to improvements made by her while believing in good faith that she was the owner of the land; or (2) the actual cost to her of these improvements.
The proper measure of compensation for a good faith improver --- someone who builds a house or some other permanent improvement on real property in the honest but erroneous belief that he is the owner --- seems never to have been considered by a court of American Samoa. We therefore address the question at some length.
At common law all permanent improvements to land became the property of the landowner on the theory that by being "attached" to the land they "became a part of it." Betz v. Sioux City, 30 N.W.2d 778, 780 (Iowa 1948); see National Bank of Republic of Chicago v. Wells-Jackson Corp., 193 N.E. 215, 218 (Ill. 1934) ("[W]hen personal property became a fixture by annexation to the real estate by some permanent method, the personal property lost its identity as such and became real estate."). This rule, like many of its kind, began as a useful metaphor for what people usually understand themselves to be doing when they engage in a certain sort of transaction. Medieval Englishmen did not really believe that houses, barns, and fences merge with land and become undistinguishable from it. Rather, the difficulty and consequent economic waste involved in removing such things made it most unlikely that anyone would build them in the expectation of retaining a right to remove them.
Unfortunately, metaphors in the hands of judges tend to subsume and replace the facts and ideas they once symbolized. When a legal precept grounded in observation of human behavior is stated as though it were an inexorable law of nature--- and is then restated so often that the metaphysical axiom rather than the underlying concept comes to be regarded as binding precedent --- it often transcends the limits of its logic. A rule that one who builds a house on a tract of land intends it to become the property of the landowner, for instance, suggests an exception when the builder was confused about the landowner’s identity, whereas a rule that a house "becomes part of" the land does not. Human relations within the ambit of such a rule come to be governed not by contract but by status; people lose whatever power they once had *129to order their affairs in ways to which the judicial metaphor is inhospitable.
For a later court to look behind an oft-repeated axiom in order to limit it to cases consistent with its obvious justification, however, lends itself to the accusation that precedent is being disrespected. A more promising approach is to leave the axiom intact and unexamined but to trump it with a counter-axiom. Thus nobody in America today, at least no judge, would deny that houses continue to merge with land and to lose their identities; but the juridical havoc once wreaked by such natural disasters has been mitigated by the maxim that "one who seeks equity must do equity" and by a device called the equitable lien.
The right of a good faith possessor to reimbursement for his improvements, recognized in the civil law at least since the time of Justinian, was at first available in the United States only when the true landowner himself invoked some equitable remedy, or where the common law had been modified by statute. See, e. g., Searl v. School-District No. 2, 133 U.S. 553 (1890); Wakefield v. Van Tassell, 75 N.E. 1058 (Ill. 1905); Rzeppa v. Seymour, 203 N.W. 62 (Mich. 1925); Restatement of Restitution § 42. Since a landowner whose pleading requested only the common law remedy of ejectment did not "seek equity," courts did not generally regard themselves as having the power to "do equity" by imposing a condition of fair compensation for improvements.
Later, possibly as a consequence of the unification of equity and common law pleading and procedure, many courts recognized the existence of an "equitable lien" in favor of the good faith improver, enforceable even when the landowner sought no equitable relief and even when the action had been brought by the improver himself. See, e.g., Hardy v. Burroughs, 232 N.W. 200 (Mich. 1930); Jensen v. Probert, 148 P.2d 248 (Ore. 1944), and authorities cited therein. Many of the equitable lien cases relied on Justice Story’s opinion in Bright v. Boyd, 4 Fed. Cas. 127 (1829), to the effect that
the denial of all compensation to such a bona fide purchaser . . . , where he has manifestly added to the permanent value *130of an estate by his meliorations and improvements, without the slightest suspicion of an infirmity in his own title, is contrary to the first principles of equity.....To me it seems manifestly unjust and inequitable, thus to appropriate to one man the property and money of another, who is in no default[.] The argument, I am aware, is, that the moment the house is built, it belongs to the owner of the land by mere operation of law; and that he may certainly possess and enjoy his own. But this is merely stating the technical rule of law, by which the true owner seeks to hold, what, in a just sense., he never had the slightest title to, that is, the house. It is not answering the objection; but merely and dryly stating, that the law so holds. But, then, admitting this to be so, does it not furnish a strong ground why equity should interpose, and grant relief?
Id., quoted in Jensen v. Probert, 148 P.2d at 252.
Justice Story’s view, asserting as it did the landowner’s utter lack of moral or "common sense" entitlement to improvements built by a good faith possessor, would have justified compensation in the full amount by which the value of the land had been enhanced. In fact, the cases relying on the lien theory are virtually unanimous in using the enhanced value of the land, not the costs incurred by the improver, as the measure of compensation. See, e.g., Hardy v. Burroughs, supra; Greer v. Stanolind Oil & Gas Co., 200 F.2d 920, 923 (10th Cir. 1952) ("[B]enefit to the rightful owner--not cost to the trespasser is the test of improvement."); Sutton v. Anderson, 31 S.W.2d 1026 (Mo. 1930); Reimann v. Baum, 203 P.2d 387, 392 (Utah 1949) and authorities cited therein.1
*131The overwhelming majority of the cases in which enhanced value has been held to be the measure of recovery, however, concerned attempts by an improver to recover costs that were greater than the enhanced value of the land. The courts have observed that the unjust enrichment of the landowner, not the impoverishment of the improver, gives rise to the duty to compensate. It is one thing to require the repossessing landowner to forego an unearned benefit, and quite another to impose a penalty in excess of any such benefit. See, e.g., Greer v. Stanolind Oil, supra.
*132Relatively few cases have addressed the situation in which the costs of the improvement are substantially less than enhanced value. Several cases do support the proposition that the improver’s costs operate as a ceiling on his recovery. The idea is that a good faith possessor should be compensated for his improvements to the extent necessary to deprive the true landowner not of any enrichment whatever, but only of unjust enrichment. The landowner’s enrichment is measured by the full value of the improvements, but the enrichment ceases to be unjust when the improver has been reimbursed for what he actually spent. See, e.g., Madrid v. Spears, 250 F.2d 51 (10th Cir. 1957); Tashnek v. Hefner, 282 S.W.2d 298 (Tex. App. 1955). Other courts, however, have required reimbursement of the good faith possessor for the enhanced value of the land even where this amount exceeds the cost of the improvements. See, e.g., Sutton v. Anderson, 31 S.W.2d 1026 (Mo. 1930); 41 Am Jur. 2d, Improvements, §§ 28-30; Annot., 24 A.L.R.2d 11, §§ 15-16, and cases cited therein.
It is not necessary to decide which of these rules should apply in American Samoa, since a careful application of the rule advanced by defendants would produce the same result in the present case as the rule originally applied by the Court.
The $15,000 figure designated by the Court as "the [market] value of the house, apart from the land" was arrived at by estimating the market value of the land with the house on it and then subtracting the estimated value of land in this location with no house on it. This figure is therefore identical to "enhanced value," the first element in the formula advanced by defendants. The second element in the formula, the amount plaintiff actually spent on the improvements in 1974, was $8700. If we were to accept defendants’ contention that the cost of the improvements must always operate as a ceiling on a good faith possessor’s recovery for improvements, then plaintiff would be entitled to the smaller of two amounts: the $15,000 enhanced value, or the amount necessary to reimburse her for the $8700 she spent in 1974.
It would be unrealistic and inequitable, however, to assume that somebody who spent $8700 in 1974 can be made whole by the receipt of $8700 in 1988. According to figures supplied by the Office *133of Development Planning of the American Samoa Government, the cost of living (and hence the value of money) in the territory has risen at a rate that makes $8700 in 1974 dollars equivalent to $20,413 in 1988 dollars. (Appendix A.) Had plaintiff placed $8700 in a savings account in 1974 rather than investing it in the property she believed to be hers, the 5% interest rate would have turned it into $17,225. (Interest rates on savings accounts tend to reflect but lag behind real changes in the value of money.) Thus the amount necessary to reimburse plaintiff for the cost of her improvements would be greater, not less, than the $15,000 by which these improvements enhanced the value of defendants’ land.
The purpose of calculating reimbursement in terms of the present value of the expenditures is not to allow anyone to speculate by building on someone else’s property. Rather, it is necessary if the enhanced value/cost of improvements formula is not to be divorced from its purpose: to allow the landowner such enrichment, and only such enrichment, as cannot fairly be attributed to the impoverishment of the good faith possessor. The entire justification for using the cost of improvements as a ceiling on the good faith possessor’s recovery is that once the possessor has been made whole he can no longer complain that the enrichment of the landowner is unjust. See Madrid v. Spears, supra, 250 F.2d at 54. Accordingly, the rule must be applied in such a way that the possessor is actually made whole.
In a case where improvements have enhanced the value of land by so much that either the possessor or the landowner must inevitably derive a genuine profit without injury to the other, perhaps the windfall should go to the landowner. But to create such a windfall by means of a formula that only pretends to reimburse the possessor, by returning to him something far less valuable than what he gave, would cause rather than avoid unjust enrichment. We therefore hold that the proper measure of compensation to plaintiff for her improvements is the $15,000 by which they enhanced the value of defendants’ land.2
*134Defendants raise several other arguments, all boiling down to characterization of benefits derived by plaintiff from the house and land as profit, windfall, reward, double recovery, etc.; and to the defendants as having suffered corresponding losses, penalties, and so forth, that should be deducted from the compensation due plaintiff. The general answer to these arguments is that they would make sense if the Court had not held plaintiff to be a good faith possessor.with an equitable interest akin to part ownership of the property. We have reexamined the various transactions in which both parties engaged to be sure that each receipt and expenditure was counted once and only once. With one exception, we are convinced that the offsets and adjustments sought by defendants would effectively count some of these figures twice and others not at all, to the benefit of defendants and the injury of plaintiff.
In particular, defendants remind us that plaintiff borrowed her $8700 investment from the Development Bank and that she has fallen behind in her repayment schedule. This matter is between plaintiff and the Development Bank, which has charged plaintiff several thousands of dollars in *135additional interest on account of her late payments.
The order which both parties now urge us to modify did, however, refer to the loan balance and to plaintiff’s loan payments in two ways. It gave defendants the option to repay the current loan balance in lieu of acquiring and paying for the house, and it gave plaintiff a credit against rent receipts for the payments she made on the loan between 1979 and 1988. We agree with defendants that both of these references were inappropriate. The proper measure of plaintiff’s reliance is not the current balance on the loan but the present value of her investment. She should be reimbursed for this investment up to the full value by which it enhanced the value of the property, regardless of the desires of defendants. See note 2, supra. By the same token, this reimbursement effectively compensates her for the payments she made on the Development Bank loan while the house was rented, and we should not have allowed these payments as an additional offset against rent receipts. This part of the judgment will also be modified.3
Defendants also point out that about $1200 of plaintiff’s 1974 investment was to pay off a preexisting loan made by her father rather than to finance improvements on the house. This is immaterial, since the preexisting loan was for the construction of the house which her father had purported to transfer to her. With respect to $7500 of her investment plaintiff was a good faith improver; with respect to the other $1200 she was equivalent to a good faith purchaser for value. This $1200 purchased something that defendants themselves neither built nor bought, and with respect to which they can therefore assert no equitable claim prior to that of a good faith purchaser --- as they could, for instance, in the land itself if plaintiff or some other person had purchased it from one who was not the owner. *136Although the construction was performed by someone who did not believe himself in good faith to be the owner of the property, it was paid for (to the extent of $1200) by one who did have such a belief. Plaintiff’s equitable standing with regard to this $1200 is therefore identical to her standing with regard to the $7500 that paid for improvements after she took possession.
Defendants also contend that since plaintiff did not build the house but only improved it, and since we found that at least half the value of the property is attributable to the land itself, plaintiff should not be entitled to a full fifty per cent of ; the rents derived between 1979 and 1986. With regard to rents, however, the possessor is entitled to retain whatever she collected less whatever the rental value of the land would have been without her improvements. See Williams v. Beckmark, 33 N.W.2d 352, 357 (Neb. 1948). Since the defendants put on no evidence of what this rental value might have been, it would have been within our discretion to allow them no credit at all for rental value. See Madrid v. Spears, supra, 250 F.2d at 55. In any case it hardly seems unreasonable to estimate the rent on an unimproved 1966 hurricane house at $175 per month.
The rental issue is complicated by the actions of both parties during the period between 1979 and 1986. Each knew of the other’s claim but was ignorant of the most basic facts and arguments underlying the opposing claim. Plaintiff clearly believed herself to be the owner of the property at least until the time of our judgment in this case. Either side could have secured a judicial resolution of the controversy in 1980 or so; instead each side resorted at least once to self-help and otherwise let the controversy simmer. During the times when rentals were being received by plaintiff, she cared for the house, made repairs and improvements, and paid for insurance. When defendants were collecting the rent they did none of these things. Under ■ the circumstances we believe it was within our equitable discretion to treat plaintiff as a good faith possessor throughout the period in question and to allocate half of the net rental (receipts minus expenditures) to each party. See Leeds v. Penrose, 15 A. 261, 264 (N.J. Ch. 1888) ("If complainants were slow in bringing their suit, the defendant was too aggressive in making his alleged improvements, *137after notice. ... I conclude that negligence may safely be imputed to both. I also conclude that each is entitled to relief . . . . ").
Plaintiff’s receipts, including a $3000 insurance award, were $14,000. During this time plaintiff spent $6000 for repairs and renovations and $600 for the insurance premium, so that her net receipts were $7400. During the time defendants received the rents they received $10,500 and spent nothing. A payment of $1550 from defendants to plaintiff will cause each side to have received $8950, or one half of the net receipts.
Order
The judgment will be modified to read as follows:
Judgment will enter in behalf of plaintiff Milaneta Roberts and against the defendants in the amount of $1550.
Judgment will enter against defendant Estate of Molitui Sepetaio in the additional amount of $15,000. The Estate shall discharge $7098.97 of this judgment within sixty days by paying Mrs. Roberts’ loan at the Development Bank or by arranging for the assumption of the obligation and for the release of Mrs. Roberts from all further liability.
Judgment will enter in behalf of defendant Estate of Molitui Sepetaio, enjoining plaintiff Milaneta Roberts and those in concert with her from going on the land Lugavai.
In all other respects the motions are denied.
*138APPENDIX A
Cost of Living Increases in American Samoa, 1974-87. (Source: Development Planning Office, American Samoa Government.)
inflation rates inflated deflated
1974 ................. ...... 8700 8700
1975 19.1 0.191 1.191 10362 7038
1976 0.6 0.006 1.006 10424 6996
1977 4.8 7.048 1.048 10924 6660
1'"'* 5.7 0.057 1.057 11547 6281
1^79 17.6 0.176 1.176 13579 5175
1980 16.9 0.169 1.169 15874 4301
1981 8.3 0.083 1.083 17192 3944
1982 6.0 0.060 1.060 18223 3707
1983 1.7 0.017 1.017 18533 3644
1984 1.9 0.019 1.019 18885 3575
1985 1.2 0.012 1.012 19112 3532
1986 3.1 0.031 1.031 19704 3422
1987 3.6 0.036 1.036 20413 3299
Compensation was generally allowed only where removal of the improvements from the land would have been impractical.
In cases involving things that had been affixed to real estate but that could be removed without too much damage, the courts had developed a "law of fixtures" whereunder the improvements might not be regarded as part *131of the land at all if the improver had neither intended them to belong to the landowner nor misled the landowner with respect to this intention. In such cases the improver was sometimes entitled to remove the fixtures even though the method of their attachment would otherwise have been characterized as "permanent." See National Bank v. Wells-Jackson Corp., supra. 193 N.E. at 218. Although this doctrine evolved More or less independently of the equitable doctrines mentioned in the text, it was regarded as "in derogation of the original rule of common law, which subjected everything affixed to the freehold to the law governing the freehold . . . ." 2 Kent’s Com. 243, quoted in National Bank v. Wells-Jackson Corp., 193 N.E. at 218. The "law of fixtures" was supposed to apply only to movables affixed to immovable property, but some courts have allowed the removal of houses where it can be done without substantial damage to the house or the land. See, e.g., Jensen v. Probert, supra. This remedy is obviously to be preferred, since it neither forces the landowner to buy something he does not want nor requires the court to estimate a "fair market value" in a situation where there can be no market. It is, however, rarely practical.
Another remedy, applied in cases where the improvement is of equal or greater value than the land, is to give the landowner a choice between paying for the improvement or selling the land to the improver at a price determined by the court. See, e.g., Hardy v. Burroughs, supra.
In our original opinion we gave defendants a choice between paying $15,000 for the building in the event they wished to keep *134it, or merely paying the remaining balance on plaintiff’s loan at the Development Bank if they wished the building removed or destroyed. Our decision to give defendants this option was premised on the view that defendants should pay for the building if and only if they wish to possess and use it, but that plaintiff should in any case be reimbursed for expenditures made in reliance on her gpod faith belief that she owned the land. For the reasons explained in the text, we now believe these measures of recovery to be one and the same. Plaintiff’s reliance interest is properly measured not by the $7100 she now owes the Development Bank, but by the present value of the $8700 she spent in 1974. Her recovery of this amount is, however, limited by the enhanced value of the land attributable to her improvements. Accordingly, the measure of plaintiff’s compensation for her improvements should be $15,000 regardless of what defendants wish to do with the house.
The Court’s order as modified still protects defendants’ title to the property by requiring that the loan be paid in full. Since this payment will be made from funds to which plaintiff would be entitled whether or not she owed the Bank any money, the fact that she has made late payments to the Bank will in no way profit her or injure the defendants. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485701/ | REES, C.J.:
Appellant Cheon Su Kim, a Korean fisherman, was struck by a forklift being driven by an employee of appellee Star-Kist. The accident occurred on a dock adjacent to the Star-Kist cannery. The boat on which Kim was employed was at the dock to unload its catch. Kim was returning from the restroom facilities provided by Star-Kist for the use of the fishermen, and he stopped on the dock to talk with someone on board a vessel tied up alongside the dock. While thus engaged he was run over by the forklift. He suffered injuries including facial lacerations and contusions, a crushed rib cage, and fractures of the cheek bone, eye socket, femur, and pelvis.
The trial court found the accident to have been caused by the joint negligence of the forklift driver and of appellant Kim. The forklift was carrying a scow overloaded with garbage, obstructing the driver’s vision. The dock was cluttered with stacks of such scows, further obstructing vision and leaving only narrow *148corridors to be shared by forklift and pedestrian traffic. The court found that proper attention by the driver could have avoided the accident.
On the other hand, the trial court found itself "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 . . . ." The court concluded that the accident was 60% attributable to the negligence of the driver and 40% to the negligence of Kim.
I. Negligence of Appellant
Kim appeals from the finding that he was negligent. His counsel takes issue principally with an observation by the trial court that “a wharf servicing vessels ... is not the place for social discourse and casualness." Counsel points out that the record does not reflect whether the conversation was of a social or business nature. This was not, however, the sole basis on which the trial court found Kim to have been negligent. The court also observed that Kim was a seasoned fisherman and a ranking deck hand who was or should have been familiar with the dangers that attend unloading fish on a wharf, where "forklifts and like machinery on a dock are apt to move willy nilly." Moreover, whether the conversation was of a business or social nature does not appear to have been crucial to the trial court’s determination that Kim was paying too much attention to his conversation and not enough to the passing forklifts.
Even so, and even making allowances for the trial judge’s ability to judge the demeanor of the witnesses and the nuances of live testimony, we do not believe there was sufficient evidence in the record to justify a finding that Kim was negligent. He was in a place --- en route from the restroom to the boat --- where he had a right to be. The undisputed evidence is that he was facing away from the forklift until a moment before the collision, when he "attempted to start walking and at the same time looked and he got struck." Tr. 171. If there were anything in the record to support an inference that the forklift would not have run Kim over if he had been walking rather than talking, we would not *149overrule such an inference on the part of the trial court. On the contrary, however, the record supports the trial court’s conclusion that the forklift driver would have run over a person in the spot where Kim was standing regardless of what that person was doing.
Although counsel for Star-Kist theorizes that Kim may have stepped backward into the path of the forklift, the trial court did not so conclude and it is .doubtful whether the evidence would support such a conclusion. The trial court’s finding that the driver was negligent is supported by testimony that the scow was overloaded so as to block his vision, and by an exhibit consisting of an internal Star-Kist report recounting the testimony of the same witness to the same effect. Once Kim had proved the negligence of the driver, the burden was on Star-Kist to present evidence on the basis of which the court could conclude that Kim’s own negligence contributed to the accident. In the absence of such evidence, the attribution of negligence to Kim amounts not to a finding of fact or an inference from the facts but to a legal conclusion equivalent to the imposition of strict liability on experienced fishermen who venture onto wharves. Accordingly, we reverse this part of the trial court’s opinion.
II. Independent Negligence of Star-Kist
Appellant also argues that the trial court failed to rule on whether Star-Kist itself was negligent in failing to provide a traffic control system on the wharf. If the Court had found such negligence on the part of Star-Kist in addition to the negligence of the forklift driver, it might have affected the calculation of the extent to which Kim’s negligence caused the accident.
We note, however, that appellant did not raise this issue in his motion for a new trial. He did allude in a memorandum to the absence of traffic controls or safety precautions, but this was solely in support of a contention that the trial court erred in finding Kim negligent at all. We are therefore without jurisdiction to reverse the trial court on the ground that it did not find Star-Kist independently negligent.
*150A motion for new trial is a statutory-prerequisite to an appeal. A.S.C.A. § 43.0802. All motions must "state with particularity the grounds therefor." T.C.R.C.P. Rule 7. This is particularly important in the case of a motion for new trial, one of whose purposes is to avoid unnecessary appeals by alerting the trial court to possible errors or omissions in its opinion.
This case illustrates the wisdom of providing such a procedure. If the appellant in this case had pointed out to the trial court that its opinion did not address the question of Star-Kist’s independent negligence, the trial court would presumably have proceeded to address the question. The trial court might have found Star-Kist independently negligent and reduced the comparative negligence of Kim accordingly; it might have found independent negligence and yet, upon reassessment of all the facts, not reduced Kim’s comparative negligence; or it might have found no independent negligence. In any case the trial court would have had the opportunity to explain its position, and the reviewing court would not be left to speculate about why the question was not addressed.
Our finding that appellant was not negligent, however, effectively relieves him of the consequences of his failure to allege independent negligence as a ground for new trial. He will now be at least as well compensated for his injuries as he would have been if the trial court had found Star-Kist independently negligent.
III. Damages
Appellant also urges that the damages awarded for pain and suffering ($80,000) and for diminished earning capacity ($15,000) were too low.
The court found that Kim’s eye socket injury would prevent him from working as a fisherman, since the constant exposure to wind and water presented the risk of further injury to the eye. He is, however, able to engage in any occupation not presenting such risks. Kim is 48 years old. There was evidence that fishermen at his level generally make about $14,000 per year; the evidence concerning the terms of his own employment would have supported an even lower figure. It was also unclear whether Kim would have continued to be *151employed as a fisherman at the conclusion of his current contract if the accident had not occurred. The trial court’s estimate of $15,000 in diminution of future earnings was not clearly erroneous.
With regard to damages for pain and suffering, appellant contends that $80,000 is lower than courts in most American jurisdictions would award in the circumstances of the present case. This may be true; it is also probably true that $80,000 is higher than most other Pacific jurisdictions would award. None of these attempts to put a dollar value on human suffering is objectively right or wrong. The disparity from place to place is accounted for by many factors, including variations in the amount of goods and services that money can buy and in social attitudes toward pain. That trial judges in American Samoa tend to award lesser sums than those in Texas or California no more suggests that awards in Samoa should be higher than that those in Texas should be lower.
The award we are reviewing, as it happens, is one of the largest awards for pain and suffering in the history of American Samoa. It is beyond our authority to increase the award unless it was clearly erroneous. A.S.C.A. g 43.0801. It was not.
Conclusion
The decision of the trial court is reversed insofar as it found the damages to have been partly attributable to the negligence of the appellant. In all other respects the decision is affirmed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485702/ | Per Curiam:
This matter originated with the territorial Workmen’s Compensation Commission upon the filing of a claim for death benefits by the widow of a workman who had suffered a massive stroke.at home. The primary contention before the Commission was whether or not the death of the workman was work related. After an evidentiary hearing, the Commission resolved the case in favor of the widow and awarded appropriate statutory benefits.
Appellant, the employer’s insurer, sought judicial review before the Trial Division of the High Court to set aside the award for a number of reasons.
The Trial Division correctly pointed to A.S.C.A. § 32.0652(a) as circumscribing the
*154applicable standard of review which is that the Commission’s decision may only be set aside "[i]f not in accordance with law." As the Workmen’s Compensation Act limits compensation benefits as being payable only for "injury . . . or . . . death arising out of and in the course of employment," A.S.C.A. § 32.0520, the Trial Division also correctly defined the issue before it as "whether the Commission’s finding is supported by substantial evidence." Slip Opinion at 1 [Continental Insurance Co. v. Workmen’s Compensation Commissioner, 7 A.S.R.2d 105, 107 (1988)].
Upon its review of the record, the Trial Division found that there was ample evidence disclosed which justified the Commission’s conclusion that the cause of death was triggered by the demands of the workman’s employment. The Court below stated that "[a]s long as reasonable people could differ on the facts presented to the Commission, its decision will be upheld on appeal." Slip Opinion at 3 [7 A.S.R.2d at 107].
Appellant on the other hand excepts to these conclusions of the reviewing court. The thrust of appellant’s argument apparently suggests that the reviewing court should independently weigh the evidence presented on the record and thereby determine whether the Commission’s findings were justified by "substantial evidence." For instance, appellant cites the reviewing court with misapplying the “substantial evidence" standard by upholding the Commission merely because reasonable people may differ on the facts presented. In this regard, appellant attributes an alternative and incorrect "reasonable man" standard as having been fashioned and applied by the court below. Appellant states that had "the court correctly applied the substantial evidence test, it would have found that Tilo’s heart attack was caused bv the natural progression of a ore existing heart disease." Appellant’s Brief at 6 (emphasis added). The suggestion made here is that the reviewing court may substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact purely by resort to the record. If this is the case, what will have happened then to the primary function of the trier of fact to weigh the evidence, to determine credibility of witnesses with first hand observation, and indeed to resolve conflicting evidence? Obviously, *155appellant’s view of the scope of judicial review has taken the exercise a step beyond its proper limits.
The lower court’s reference to factual conflicts upon which reasonable people may differ does not attempt to establish a new standard of review but rather explains the proper application of the "substantial evidence" standard. As stated in Dickenson-Tidewater, Inc. v. Supervisor of Assessments, the substantial evidence test of an administrative decision "is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.’" 329 A.2d 18, 25 (Md. App. 1974) (quoting Insurance Commissioner v. National Bureau of Casualty Underwriters, 248 Md. 292, 309-310, 236 A.2d 282, 292 (1967)).
Appellant further confuses matters by its repeated and mistaken references to the trial court’s "findings of fact" regarding death of the workman as being work-related. The Court below did not make any findings of facts; it merely recited in summarized form the findings of the Commission as being sufficiently substantiated on the record. Therefore, appellant’s further claims of error, that the Trial Division failed to apply certain evidentiary presumptions advanced by appellant, are accordingly misplaced. In the manner of weighing the evidence, the proper place for applying evidentiary presumptions to facilitate fact finding, was at the agency hearing, and not, as suggested by appellant, at the review level as well.
The proper scope of review of compensation awards is nicely capsulized by a leading treatise as follows:
A finding of fact based on no evidence is an error of law. Accordingly, in compensation law, as in all administrative law, an award may be reversed if not supported by any evidence. Conversely, since the compensation board has expressly been entrusted with the power to find the facts, its fact findings must be affirmed if supported by any evidence, even if the *156reviewing court thinks the evidence points the other way. This statement is, without any close competition, the number one cliche of compensation law and occurs in some form in the first paragraph of compensation opinions almost as a matter of course.
3 A. Larson, The Law of Workmen’s Compensation § 80.10 at 15-426.305 (1983) (footnotes omitted). A supplementing footnote adds, "[c]itations for this truism are omitted here; a complete list would run to hundreds of cases." Id. at n.1.
The author of the treatise goes on to discuss the cases’ varying use of adjectives to describe the review standard quantitatively. The variations have included: any evidence; some evidence; any credible evidence; substantial evidence; supported by the evidence; and many others.
We gather from the cases that the courts no longer regard the presence of a “scintilla of evidence" as sufficient to affirm an administrative body’s decision. While one extreme on the continuum might be requiring "no evidence" before reversing the Commission’s decision, in our opinion the difference between the evidence sufficient to set aside or affirm a compensation order was given due regard below. Bearing in mind the Commission’s specialized competence,1 that difference is between "whimsy evidence" and "evidence upon which reasonable people may differ." Appeal Denied.
It is so Ordered.
The territorial Workmen’s Compensation Commission is purposely specialized in make up. The Commission comprises a Commissioner, a medical member, a law member, a fiscal member, and an employee member. A.S.C.A. § 32.0505(b). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485703/ | These cases come before the Appellate Division on the appeals of Ron Pritchard ("Ron") in No. 03-88 and Jette Pritchard ("Jette") in No. 02-88 who were found by the trial court in CA No. 118-87 to be liable to the Amerika Samoa Bank ("ASB") and the Development Bank of American Samoa ("DBAS") on a guaranty which they executed to secure loans made to business enterprises which they controlled.
On August 1, 1984, ASB loaned $275,000 to Samoa Air, Inc. ("Samoa Air"), a Hawaii corporation. The loan was secured by the individual continuing guarantees of Ron and Jette, respectively the President and Secretary of the corporation. The loan was also secured by a loan guaranty from DBAS dated June 20, 1984, which guaranty was backed up by a certificate of deposit *159("CD") with ASB in the amount of $300,000. It should be noted that Ron Pritchard was a director of ASB and had several businesses and several loans with ASB. The basic note was renewed more than once, the last renewal being on September 10, 1985, for 27 days, making the note due on October 7, 1985.
On February 25, 1985, Ron and Jette together signed a continuing guaranty in favor of ASB in the amount of $475,000. The form used by the bank had a blank space in which was to be inserted the name (or names) of the party (or parties) for whose indebtedness they agreed to be liable. This blank was never filled. On February 26, 1985, ASB loaned $200,000 to Ron Pritchard Ground Services, Inc. ("Ground Services") of which Ron and Jette were, respectively, the President and Secretary. This loan was secured by a continuing guaranty executed by Ron and Jette and a guaranty from DBAS, each in the amount of $200,000.
On July 15, 1985, Samoa Air filed for bankruptcy in Honolulu. Thereafter, and at a time when the Samoa Air loan and other obligations of Ron or his businesses were in default, ASB appropriated the CD for $300,000 and applied the proceeds to the $275,000 loan (with interest) and some other obligations of Ron or his many businesses. However, ASB has never formally assigned the underlying note of Samoa Air to DBAS.
ASB also sued Ron and Jette and Ground Services on the note and guarantees relating separately to the $200,000 loan. Default judgments were obtained against all parties, but the default against Jette was set aside. Collection of the judgments in that case is proceeding.
In this action ASB and DBAS are jointly suing Ron and Jette on the continuing guarantee of February 25, 1985 (in the amount of $475,000), but only in connection with the non-payment of the $275,000 loan. Why ASB did not seek to recover under the original guarantees for $275,000 does not appear in the record. Certain collateral which Ron had given to DBAS in connection with DBAS’s guarantees on his behalf was liquidated by DBAS and the proceeds applied in part to reduce the amount due on the $275,000 loan.
*160The trial court found that Eon and Jette were jointly and severally liable in the amount of $292,783.01 under the February 25, 1985 guaranty, without specifying the amounts due to each of the two banks.
Eon and Jette argue on appeal that the $475,000 guaranty contract was unenforceable because the space on the form contract for the name of the principal debtor whose debt was to be secured had not been filled in. The trial court found that:
[i]t is clear from all the evidence that the parties intended the February 25 guaranty in the amount of $475,000 to secure the preexisting $275,000 debt to Samoa Air and the $200,000 that was lent to Pritchard Ground Services the next day.
Findings of Fact, Conclusions of Law and Order at 2 [Development Bank of American Samoa v. Pritchard, 6 A.S.R.2d 125, 127 (1987)].
Eon contends that this conclusion is clearly erroneous and not supported by the evidence because none of the banks’ witnesses testified that the guaranty was prepared and exercised in conjunction with the Samoa Air note. The circumstances surrounding the transaction, however, themselves lend credence to the court’s conclusion. That the ASB would require certain collateral before making the loan to Ground Services is supported by the requirement of the DBAS guaranty and certificate of deposit to secure the initial loan to the other Pritchard-controlled company, Samoa Air. The second loan of $200,000 was made on the day following the execution of the guaranty in question. The sum of the two loans together equals the amount of the guaranty. Finally, no alternative explanation appears to have been given as to why Eon and Jette signed the guaranty to ASB.
Given that the trial court was in a position to judge the credibility of the witnesses and the circumstances under which the guaranty was executed, we conclude that the court’s determination of the parties’ intent was supported by substantial evidence and was not clearly erroneous.
*161Jette attacks the decision below on the basis that a guaranty contract which is missing an essential term is unenforceable as a matter of law. She does not cite any authority which specifically holds that the name of the principal debtor is an essential term which may not be implied or inferred from evidence beyond the four corners of the contract. For example, in Citizens Fidelity Bank & Trust Co. v. Lamar, 561 S.W.2d 326 (Ky. App. 1977), the court refused to enforce a contract, not because the one term was omitted from the written agreement, but because the "guarantors" had been persuaded by a tax-shelter peddler to sign completely blank guaranty agreement forms with no date, no principal name, and no amount. On that record the court found no meeting of the minds.
Jette also relied on Nevada State Bank v. Snowden, 449 P.2d 254 (Nev. 1969), in which the trial court found that a guaranty agreement which was missing the name of the principal debtor and a date was "substantially incomplete." However, because the court rested its resolution of the case on a different issue, it did not address whether parol evidence was available to fill in the gaps. And again in Azoulay v. Cassin, 512 N.Y.S.2d 900 (App. Div. 1987) the court looked at the circumstances and determined that there was insufficient evidence of the parties’ intent to fill in terms of an oral partnership agreement. Nu-Lite Electrical Wholesalers, Inc. v. Deckard & Treadaway Electric Air Conditioning & Refrigeration, 498 So. 2d 120 (La. App. 1986), relied on a Louisiana statute requiring contracts of guaranty to be in writing to find a guaranty contract which was missing the name of the principal obligor unenforceable. American Samoa does not have an equivalent statute.
Lastly, both Ron and Jette argue that at best the contract was ambiguous, and any ambiguity in such a form contract should be resolved against the drafter and in favor of the guarantors. See Inter-Sport, Inc. v. Wilson, 281 Ark. 56, 661 S.W.2d 367, 368 (1983). However, the court did not find that the contract was ambiguous: rather, it found that the intentions of the parties were clear but that there had apparently been a clerical error in reducing the terms to paper. Therefore, the rules which govern resolution of ambiguous terms do not apply here.
*162Ron next makes what appears to be a standing argument. This issue may be improperly raised on appeal, as there is no indication that it was ever raised below. However, since neither of the appellee banks raises this objection, we will assume for present purposes that the issue is rightfully before this court.
The trial court held that "defendants are liable to one of the plaintiffs for all amounts still due on the loan," apparently because it was not clear which of the banks was entitled to the money. ASB wrote off the loan on their books and seems to have done so without any formal transfer of the documents to DBAS, whose $300,000 certificate of deposit ASB cashed upon the default. The trial court held that, if ASB had rightfully appropriated the certificate of deposit then DBAS was subrogated to ASB’s rights against Ron and Jette. If not, then ASB owes DBAS the $300,000 and therefore had not been made whole with respect to the Samoa Air indebtedness.
Ron argues that because the $275,000 obligation had been satisfied, presumably by the certificate of 'deposit, ASB had no claim and therefore was an improper party. He also claims that DBAS could not sue because American Samoa precludes the assignment of a "chose in action." As at least one of the plaintiffs to this suit clearly had standing, the addition of another plaintiff of more questionable status should not necessitate reversal. The two appellees can contest between themselves who is entitled to how much of the judgment award.
Ron Pritchard appeals from the court’s award of 12.5% post-judgment interest. Although A.S.C.A. § 28.1503 authorizes a rate of 18% for commercial or business lending, Ron contends that 12.5% is usurious as charged against an individual such as himself. However, this was clearly a business transaction. Even if it were a non-business loan, the statutory maximum rate of interest for such loans is 15%. However, the last renewal of the $275,000 note calls for interest of 12.5% only "until maturity." The statutory rate where no interest is specified is 6% per A.S.C.A. § 28.1501. Thus, the rate of interest on the note after maturity cannot exceed 6%. Appellee acknowledges this proposition, citing Turner Coleman, Inc. v. Ohio Construction and Engineering, Inc., 251 S.E.2d *163738 (S.C. 1979), for the proposition that the statutory rate of interest on money judgment or decrees is applicable only in the absence of a written agreement between the parties fixing a different rate of interest. Here there was no written agreement between the parties fixing any rate of interest after maturity. Also, the last renewal of this note on September 10, 1985, is in the exact amount of $275,000. Presumably, all previous interest had been paid in full. Thus no interest is due under the renewal note for periods prior to September 10, 1985.
The matter is remanded to the trial court for recalculation of interest due consistent with this opinion.
In all other respects, the judgment of the trial court is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485704/ | Per Curiam:
This appeal originated as a small claims action filed by Ala'ilima against Tuika for attorney fees and costs associated with prior legal representation of Tuika in an election appeal. Judgment was entered by the small claims judge against Tuika in the amount of $731.95 plus $10.00 costs.
Tuika appealed to the High Court Trial Division for a trial de novo as there was no record in the Small Claims Court. Trial was held and judgment against Tuika was upheld. Appellant now appeals to this court for a review of the trial court’s decision. We affirm.
Tuika retained Ala'ilima to handle an appeal of his loss of an election for the local House of Representatives. Appellant made many allegations of improprieties in the election procedure and in the activities of his opponent in the campaign. Because the ten day limit imposed by the statute for filing election appeals was expiring, appellee quickly drafted an appeal alleging the complaints made by Tuika and had Tuika verify it. It was filed in a timely manner. Tuika Tuika, Jr. v. Chief Election Officer, AP No. 21-86.
The court directed Ala'ilima to file an amended complaint. According to Tuika, Ala'ilima *165was late in filing the amended complaint within the time limits prescribed in A.S.C.A. § 6.0903.
After the amended complaint was filed and a hearing scheduled, the government filed a motion to dismiss on the basis that the statutory period for holding new elections had expired. The court heard the motion on the date of the scheduled hearing and ruled in favor of the government on the merits of the election appeal. Review of the transcript shows that the court’s decision was not based on the timeliness argument.
Tuika’s argument appears to be that he is not obligated to pay his attorney for the work on the election appeal because, due to lack of diligence, Ala'ilima did not file a timely brief and thereby caused the government to prevail. However, a review of the transcript resulting from the hearing disproves his contention that the action was dismissed because his attorney failed to file a timely amended complaint and request for hearing; the decision of the court is based clearly on the merits and not on the timeliness of the appeal.
In addition, Ala'ilima seeks to recover his fees and costs for defending this appeal, which he justifiably characterizes as frivolous. Ala'ilima is hereby awarded his costs and a fee of $100 in connection with this appeal. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485706/ | REES, C.J.:
Tulisua appeals from a judgment evicting him from a house site or "tulaga fale" on which, during the pendency of this litigation, he has built a house.
His principal quarrel is with the facts found by the trial court. The tulaga fale is on a tract of land called Auali which each side claims as the communal property of its family. Although the action began as a dispute over ownership of all of Auali, just before trial the parties stipulated to limit the case to the tulaga fale. The trial court found that neither side had proved its ownership of the tulaga fale, but that the Olo family had proved a superior right to possession. This conclusion was based on the court’s finding that the Olo family had long been in possession and had only recently been ousted by Tulisua. The finding is supported by substantial evidence in the record: it is clear that this tulaga fale was the historic site of several Olo family residences.
Appellant Tulisua contends that since he managed to obtain possession by the time of trial, he has acquired the benefit of a "presumption of ownership" and cannot be evicted by the prior possessor. For reasons well stated in the trial court’s opinion denying motion for new trial, this is clearly not the law. Indeed, counsel for appellant seems to concede that one who has long been in possession can sometimes recover possession without proving a title good against the world. Counsel argues, however, that "the doctrine of recovery of prior possession is generally limited to actions against mere trespassers or intruders." This misses the point that a trespasser or intruder is just what the trial court found Tulisua to be.
Tulisua contends on appeal that he "was born on the land and had lived there and is still living there." If he means he has always lived on this particular tulaga fale, he is simply reiterating his unhappiness with the trial court’s finding of fact. If, as we suspect, he means he has always lived elsewhere on Auali, this is irrelevant to whether his recent occupation of the small portion now in dispute is an intrusion or trespass.
*172Finally, appellant complains of being faced with the harsh choice between moving his house from its present location or losing his investment in it. He claims he should have been given the benefit of some equitable remedy such as compensation for the value of the house. Such remedies, however, are available only to "good faith possessors." See, e.g., Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987); Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988). A good faith possessor is one who makes improvements on land in the honest belief that he is the owner.
Knowledge of an adverse claim ordinarily prevents a possessor from being in good faith for the purpose of receiving compensation for improvements upon eviction. A possessor may sometimes be considered a good faith possessor when the true owner has "slept on his rights" or otherwise contributed to a situation in which it would be inequitable to deny compensation. Roberts, supra, slip opinion at 14-15; Leeds v. Penrose, 15 A. 261, 264 (N.J. Ch. 1888). In this case, however, the appellant began construction after he had been fully apprised of the adverse claim; indeed, he had already been served with a complaint seeking his eviction.
The house was built over the repeated verbal objections of appellees, well after suit had been filed and only a few months before the case was tried. The construction of a substantial European-style house in two months would be regarded almost anywhere as exceptionally speedy; by local standards it was dizzying. The project has all the earmarks of a deliberate attempt to affect the outcome of the litigation, undertaken on the usually correct assumption that courts will do almost anything before they will force the removal of a house. Even if appellant Tulisua was merely ignoring the pending lawsuit when he built the house, he did so at his peril. The trial court was well within its discretion in denying him equitable relief.
The parties remain free, of course, to negotiate an agreement for the'sale of the house. In order to promote such an agreement, we will extend the deadline set by the trial court for removal of the house to sixty days from the date of this opinion.
*173In all other respects the judgment of the trial court is affirmed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485707/ | Per Curiam:
Olovalu is a tract of land in Malaeloa. For the past eighty years or more the title has been unresolved, although several families have lived together more or less peacefully. In 1907 the ancestors of most of the parties to the present action joined in an action to assert the claims of their families to Olovalu against defendant Uo Sopo'aga, who had registered Olovalu at the territorial registrar’s office. Those families were Tuileata, Amituana'i, Tuiolemotu, Galoia, Toilolo, and Tuia'ana. The case resulted in a judgment for plaintiffs, pursuant to which the plaintiff families were held to be rightful owners of the tract and were told "to distribute the land amongst themselves." If they did divide it, it was never registered. Since then, there have been a handful of court cases between the families concerning use of the land.
In the early 1980’s plaintiff Tuileata returned from a long period overseas, claimed the Tuileata title which had been vacant for about thirty years, surveyed a great deal of Olovalu along with parts of adjoining tracts, and registered all the surveyed land as Tuileata land. This resulted in numerous boundary claims by almost every family in the neighborhood, evolving into the instant appeal. Chief Amituana'i Iosefa ("Amituana'i") and Tuiolemotu Fa'aopega (“Tuiolemotu") made their own surveys, placing *175their own family lands within the 36 acres claimed by Tuileata’s survey. Fe'a made a survey after trial.
The High Court of American Samoa, Land and Titles Division, found that the Tuileata survey was vastly overinclusive, encroaching on land long held by other families, and found that competing surveys by the Amituana'i and Tuiolemotu families were largely accurate and with some slight changes should be registered. The only part of Olovalu established by a preponderance of the evidence to belong to the Tuileata family was, the Court found, about three acres occupied with the Tuileata’s permission by one Fe'a, whose father was married to a daughter of the Tuileata family. Because this plantation land had long been assigned to the use of Fe'a and his immediate family, the court added that Fe'a 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." Opinion and Order at 3-4 [Tuileata v. Amituana'i. 4 A.S.R.2d 168, 171 (1987)]. The Opinion and Order left a large part of Olovalu still unregistered.
The findings of the land and titles division of the High Court are reviewed for clear error. A.S.C.A. 8 6.0801(b).
Tuileata’s argument is based primarily on the existence of four earlier cases, including the 1907 case, which it is contended show that the Tuileata family has occupied and used the land in question and therefore that it is communal land of the Tuileata. According to Appellee Tuiolemotu’s reply brief, the case of Tuileata v. Taliva'a, 2-1956 ("the 1956 case"), cited by appellant and by the trial court for its statement that Fe'a and his father occupied Tuileata family land, Opinion at 4, concerned a piece of property situated approximately three miles from the area where the 36 acres in question lies. It therefore has no bearing on the instant appeal.
In Filo and Taliva'a v. Fe'a Tuileata Tauamo, LT No. 1518-75, the court addressed the same issue as in the 1956 case, which therefore and for the same reason has no bearing on the instant appeal.
Appellant also relies on Amituana'i v. Fe'a & Tuileata, 12-1946 ("the 1946 case") because the *176court there ordered Amituana'i to survey his claim through the U.S. Navy and that survey included only 10 acres. The current Amituana'i survey encompasses over 36 acres. Tuiolemotu points out that that hearing for injunctive relief did not address title to the land concerned therein, an area of approximately three acres in size. The discrepancy in acreage between the surveys was available to the trial court to consider in making its determination.
Finally, Tuiolemotu notes that the 1907 case, Amituana'i v. Uo, was prosecuted by Amituana'i on behalf of all of the families; Tuileata’s argument that Tuiolemotu’s absence from that case implies a lack of land interest is therefore not persuasive.
Tuileata also argues that occupation by Taliva'a and Fe'a, evidenced by earlier lawsuits and cases, should be imputed to the Tuileata family. That this use is continuous is shown by surveys made by Fe'a and Taliva'a. Again, this occupation concerns land that is distant from the land in question, and therefore is not relevant to the appeal.
Without much in the way of a factual basis, Tuileata contends that the Tuiolemotu family (whose survey the court below ordered registered) does not actually own the portion of Olovalu claimed in its survey, and that that land rather belongs to Tuileata.
Amituana'i cites evidence from the record below that the Tuileata family had no houses and plantations in the land covered in Amituana'i’s survey, including testimony of Fe'a Tauatno, one of the parties in the case and a member of the Tuileata family. The senior matais of both the Amituana'i and Tuiolemotu families testified that Tuileata does not own property in this part of Olovalu.
In contrast to the long residence in Malaeloa, of the other claimants the Tuileata matai who laid claim to the 36 acre parcel came first to Malaeloa village in 1942 at the age of 34, left for the United States in 1952, and returned in 1975. He became a matai in 1982 and conducted the survey two years later. Fe'a testified that Tuileata did not understand the lands of the family. One of Tuileata’s own witnesses, Chief Talia, testified *177that Tuileata gave wrong testimony regarding the number of previous holders of the Tuileata title.
There was clearly considerable evidence given from which the court below could have determined that the Tuileata family was not entitled to the 36 acre parcel of Olovalu in question (other than the roughly 3-acre plot now occupied by Fe'a), and that the Amituana'i and Tuiolemotu families were. The decision below leaves open the question of what land the Tuileata family is entitled to in Olovalu, but there is apparently quite a bit of unregistered land remaining. While there is some dispute over the total acreage of Olovalu, the figures given range from 97 to 300 acres. On the record presented, the trial court did not commit clear error.
Accordingly, the judgment of the trial court is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485708/ | On Request for "Consent Judgment":
Counsel for plaintiff submitted to the Court a proposed "consent judgment" to which the defendant, who was unrepresented by counsel, had stipulated. The judgment would have been for $5,341, said to be the amount still owing on a loan from plaintiff to defendant, plus attorney’s fees in the amount of $500.00, court costs of $55, and post-judgment interest at the rate of 14.55%.
At least since 1986 the Court has been most reluctant to sign "consent judgments." This reluctance stems partly from our experience with "clerk’s default judgments." Prior to its 1987 amendment Rule 55 of the Territorial Court Rules of Civil Procedure allowed the clerk to enter judgment although no judge had so much as looked at the complaint, provided that the amount sought in the complaint was fully liquidated. It was discovered, however, that some creditors were routinely filing affidavits that overstated the "principal amounts" *179due on contracts, often by including as part of the "principal amount" attorney’s fees for which there was no contractual or other legal basis. In other words, the summary process provided by clerk’s default judgments was being used not just to save time and expense where the facts were not subject to dispute, but to recover amounts that would not have been recovered if a judge had looked at the case.
Another problem with consent judgments, at least where one party is unrepresented by counsel, is that some people will sign anything. This is especially true in Samoa. As the Court observed in Development Bank v. Ilalio, 5 A.S.R.2d 110 (1987):
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. Avoidance 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 *180have 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.
Id. at 127-28 n.10.
Ilalio concerned a "settlement" that had been signed by a debtor who later testified that while he had borrowed some money from the plaintiff, he had not borrowed nearly as much as he agreed to pay in the settlement. The Court gave judgment for defendant, noting that courts will not ordinarily enforce such an agreement when
(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.
Id. at 124-25 n.8.
Although the Court knows very little about the circumstances of the present case, it appears from the documents with which we have been presented that if the "consent judgment" now presented to us had instead been sued upon as a settlement, it would have been at least partly unenforceable. The defendant agrees to pay a $500 attorney’s fee, although the documentation submitted by the Bank upon the Court’s request contains no contractual provision for attorney’s fees.
*181It also appears that the defendant made partial payment on the loan before suit was filed. We have no evidence of how much he paid, however, other than the bare assertion of the amount presently due.. This assertion is contained in an affidavit not by an officer or employee of the plaintiff bank but by its attorney. At least in cases where there is any possibility at all that the amount due has been miscalculated, the Court should .see the evidence itself (rather than the attorney’s conclusion from the evidence) before rendering judgment. The usual way in which this is done is by submission of a bank ledger as an exhibit. The Court examines such ledgers in default hearings on the average of once or twice a week; it takes five or ten minutes.
That a defendant unrepresented by counsel signed something called a "consent judgment" rather than a "settlement" hardly suggests that the document should escape judicial scrutiny. When a judge signs his name to a court order he certifies that he has in fact exercised his judgment. He affirms not only that the premises of the order are true and that the order itself is lawful, but also that it is appropriate under all the circumstances that whatever the order requires should be given the force of law. Such an event should be worth a few minutes of the judge’s and the attorney’s time in open court.
This is not to suggest any impropriety on the part of the plaintiff. The Bank of Hawaii is a reputable institution and its attorney is a reputable attorney. Indeed, the writer of this opinion regards it as overwhelmingly likely (although he lacks the personal knowledge that would be necessary to certify) that the facts of this case are exactly as represented by counsel in his affidavit. If anything is forbidden to judges, however, it is to apply one set of rules to people we know and respect and another set to other people. Except in extraordinary circumstances not presented here, the risk that the "consent judgment" device will be abused outweighs its usefulness as a means of saving time.
If defendant is honoring the agreement that was the basis for the requested consent judgment, then perhaps plaintiff does not need a court order. If an order is needed because defendant has not *182honored the agreement or for some other reason not reflected in the present record, plaintiff can move for a default judgment which can be had in ten days.
The request for a consent judgment is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485711/ | This matter came on regularly the 2nd day of November, 1988, for hearing defendant Tuika Tuika’s counterclaim filed herein against the election office.
Counterclaimant’s pleadings essentially reveal a complaint against the Election Office’s maintenance of the general register of voters. The *2quarrel concerns the manner of registering voters, alleging the Election Office’s efforts as falling short of sufficient screening as to eligibility; the admission to the register of alleged ineligible voters who have supposedly voted outside American Samoa, or who have switched voting districts without regard to the requirements of residency.
These complaints concern elector qualifications for which remedial administrative measures have been carefully and deliberately provided in A.S.C.A. §§ 6.0101 et seq. With these enactments, the legislative design is to secure the orderly registration of those qualified to vote and to facilitate the conduct of the territory’s election proceedings. As opposed to the relatively time consuming and oft cumbersome road to the courts, the Fono has here provided also for an effective and speedy method for administrative relief in case of disputes with registration.
Section 6.0223 details the manner in which a qualified elector may challenge before an election officer the correctness of the register or the district lists prior to election and during election day. Section 6.0224 provides for appeal to the Board of Registration from adverse decisions of the election officer. Paragraph (b) of this enactment requires the Board of Registration to also sit on election day and continue to sit until all appeals have been handled. It is only subsequent to exhausting administrative relief, §§ 6.0230 et seq., or after the elections themselves, § 6.0223 (d), that judicial review comes into the statutory scheme. It is significant to note in this context that pending the finality of a challenge proceeding, both the challenger’s and the challengee’s rights are secured. Sections 6.0233 and 6.0223 allow for the challengee to vote but that his vote shall be secured and dealt with in accordance with any final decision. This statutory flexibility preempts the need for any judicial inventiveness at first instance, while on the other hand guaranteeing judicial review of any challenge administratively denied.
We find that in the circumstances counterclaimant’s resort to court is premature and that he should first exhaust all his administrative remedies. We invoke our discretion accordingly *3pursuant to A.S.C.A. § 43.1102 and refuse to make a declaration.
One further aspect of the counterclaim that remains to be considered and that is the allegation that there is improper monitoring of absentee ballots and the lack of proper records kept by the Election Office. We are unable to frame relief without becoming involved in a continuing supervisory role with the electoral process. We similarly exercise discretion and refuse to make a declaration. Any defects with the results of the elections that may arise through managerial ineptness may be properly cured in an election contest.
For the foregoing reasons, the motion for dismissal by the Election Office is granted.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485712/ | Petitioners, Papú J. Siofele and Seigafolava R. Pene, seek to run in the upcoming general election for the offices of Governor and Lieutenant Governor respectively.
Respondent Chief Election Officer has found petitioner Siofele ineligible to run for the office of Governor on the determination that petitioner did not satisfy the statutory five year residency requirement. See A.S.C.A. § 4.0102(a)(2). Petitioner Pene has joined in the petition before the Court on the ground that his bid for the office of Lieutenant Governor is dependent on Siofele’s eligibility to run for office. A.S.C.A. § 4.0104 requires that the Governor and Lieutenant Governor "shall be elected jointly."
The petition asks for a "Writ of Mandate": 1) directing the Board of Registration to hear petitioner Siofele’s appeal from the decision of the Chief Election Officer (the petition seems also to allege that the Chief Election Officer interfered with petitioner’s access to the Board of Registration); 2) commanding respondents "to allow petitioners to run for the office of Governor and Lieutenant Governor of American Samoa"; and 3) ordering that the absentee ballot papers reflect petitioners’ candidacy. Petitioners further pray for a refund of the their court filing fees and such other relief as the Court deems just and proper.1
*6Appeal to the Board of Registration
We deny the petition to compel the Board of Registration to take up petitioners’ desired appeal. We see nothing in either the Omnibus Local Governor Act of 1977, A.S.C.A. §§ 4.0101 et seq., or in the American Samoa Election Reform Act of 1977, A.S.C.A. §§ 6.0101 et seq., which gives petitioners a right to appeal to the Board of Registration from the Election Officer’s determination of ineligibility. Petitioners in their pleadings claim A.S.C.A. § 6.0224 (a) gives them a right to appeal to the Board. Their reliance on this statute is misplaced. This provision provides for appeals to the Board of Registration from decisions of the Chief Election Officer adverse to applications for voter registration or refusing to rectify the register of voters for misspelled names and accidental registration in the wrong voting district pursuant to A.S.C.A. § 6.0220. The section further provides recourse to the Board from the decisions of the Chief Election Officer or district officials ruling on challenges against the registration of any person as a qualified voter. The enactment addresses the "general register and district list[s]" of "qualified elector[s]." A.S.C.A. § 6.0210. It deals only in questions of "elector" qualification and not questions touching on the eligibility of "candidates" for elective office. The succeeding paragraph (b) of section 6.0224 provides that the Board of Registration shall sit on election day, while paragraph (c) thereof provides, inter alia. that if an appeal is sustained, the Board shall so certify to the Election Officer who shall thereupon alter the register accordingly. On the other hand, where the Board disallows an appeal, the affected person may appeal within ten days, directly to the Appellate Division of the High Court. See A.S.C.A. § 6.0230. However pending a decision from the Appellate Division, the appellant’s name shall remain or be placed on the register and he or she shall be allowed to vote. That vote shall be sealed and set *7aside and then counted or discounted in accordance with the appellate court’s decision. A.S.C.A. § 6.0223.2
It is obvious from a consideration of the above provisions that the administrative appellate role of the Board of Registration as envisaged by the legislative scheme is not only inconsistent with, but makes no practical sense in, the context of candidacy eligibility appeals. The legislation would be quite meaningless in the practical sense if, for example, we admitted the construction of the enactment to include the possibility of such appeals on election day.3
*8The only manner of appeal available to the Board of Registration by petitioner Siofele would be in the context of a decision by the Chief Election Officer to deny his being placed on the general register and district lists of qualified electors. We agree on the evidence with the respondent that petitioner Siofele has not even bothered to register as an elector. The Election Officer testified that a search by his office revealed no application by Siofele to register as a voter. Such applications are made on pre-printed forms which assign a voting number and require the applicant to furnish a number of personal details. These forms are filled out in the election office before an election official and are signed by the applicant before a notary public.
Petitioner Siofele however "believes" that he has so applied. Although he could not positively recall that he had filled out a registration form, he would have the court sustain his belief because an official of the election office requested that he provide his social security number, his birthdate, and other proofs which are the sort of details required by the voter registration form. We are not prepared to draw such an inference in light of the Election Officer's evidence and also in light of the fact that a person’s social security number and other proofs of identity are also the sort of detail required in the questionnaires to be filled out by candidates. Such questionnaires were filled out and supplied by petitioner. Further, this petitioner had earlier this year sought mandamus to compel the respondent Election Officer to register petitioner’s name on the register. The court in denying mandamus found that petitioner had indeed failed to register to vote. Siofele v. Shimasaki. CA No. 79-88, Opinion and Order on "Petition for Writ of Mandate," (August 29, 1988) [8 A.S.R. 81 (1988)]. Thus petitioner was clearly counseled on registration proceedings and appeals therefrom. Given the short intervening span of time between that decision and petitioner’s testimony in this court, petitioner’s inability to recall whether or not he had applied to vote simply lacks reliability.
*9Appeals from Adverse Determination on Eligibility
We turn to appeals from the Chief Election Officer’s adverse determination of petitioner’s eligibility to run for office. The authority for the Chief Election Officer to make this determination is found in A.S.C.A § 6.0301(d). Siofele v. Shimasaki. supra. The election related enactments are silent on any specific procedure to appeal a determination of a candidate’s ineligibility to run, although direct appeal to the Appellate Division is provided for in election contest cases. A.S.C.A. § 6.0903. We grant review in the nature of mandamus given the urgent nature of the circumstances and hence the questionable adequacy of any alternative review procedures which might otherwise be available. T.C.R.C.P. Rules 87 & 88.
Petitioners seek an order compelling the respondents to permit their running for office and to prepare the ballots accordingly for distribution. If appropriate, mandamus would lie only against the Chief Election Officer since he alone is charged by statute with determining whether a nominated candidate is eligible to run for office and with preparing the ballot papers accordingly. A.S.C.A. § 6.0301(d). We therefore deny relief as against the other respondents.
Since underlying questions of fact were raised, the Court conducted an evidentiary hearing. T.C.R.C.P. Rule 94 provides for an alternative writ in the manner of a show cause order directed to the appropriate respondent. See also T.C.R.C.P. Rule 96.
As we noted at the outset, the Chief Election Officer had determined petitioner Siofele ineligible for election to the office of Governor because of the statutory five year residency requirement. The evidence disclosed that on or about September 15, 1988, the petitioner had presented to the election office a completed questionnaire detailing among other things his residency in the territory during the years 1983 to 1988. His noted occupation during these times is "Writer/Student" and petitioner holds himself out as being a resident of Tualauta County. The Chief Election Officer testified that Siofele was not on the current voter registration lists (Siofele *10admitted on the stand that he was last on the territorial register in 1977), and, that in connection with Siofele’s nomination filings, he had requested Siofele to supply routine proofs of residency in the territory over the past five years. The sort of things asked for were local utility bills and evidence of being a local taxpayer. These were not supplied by petitioner. Petitioner was not in fact in the territory during those years. Knowing that, the Election Officer also requested petitioner to supply the address he had lived at while in the United States. According to the respondent Election Officer, petitioner refused to supply both that address and any evidence that petitioner was still attending school while absent from the territory. The respondent further testified that he obtained some information that petitioner lived in Riverside, California and he thus contacted that county’s Registrar of Voters. Respondent received a certified copy of an affidavit of registration which named Joe Siofele as being a registered voter of that county. The affidavit bears the date 10/18/85. By letter dated September 23, 1988, the respondent advised petitioner of his receipt of the said affidavit of registration and his conclusion that at least as of October, 1985, petitioner was a resident of California and therefore unqualified to run for the governorship.
By this time, petitioner Siofele had departed for the United States. On September 25, 1988 a letter signed on petitioner’s behalf by Seigafolava Pene was sent to the Chief Election Officer requesting a copy of the affidavit of registration. The request was complied with under cover letter of September 27, 1988. The following day, September 28, 1988, Mr. Pene sent another letter, "as running mate of Mr. Papu Joseph Siofele Jr.," to the Chief Election Officer seeking the latter’s reconsideration of his decision of September 23, 1988. It appears that in the mutual spirit of expediting things the Election Officer by return letter of September 29, 1988, promptly notified Mr. Pene that the decision about Mr. Siofele’s eligibility was final and that further action should be taken up in the High Court.
The next encounter on record between the parties is a letter dated October 25, 1988 from petitioner Siofele, who had by then returned on island, to the Chief Election Officer responding to *11the latter’s denial of petitioner’s request for reconsideration and advising respondent that petitioner’s absence was owing to a tragic death in his family. Additionally, petitioner tendered "documents to clear my name." On the testimony, these documents were identified as: a certified copy of the same affidavit of registration from Riverside County but with an added notation that it had been "Cancelled" "[b]y request" as of September, 1988; and an illegible copy of what Mr. Siofele testified was his Riverside registration affidavit of 1981. In addition, petitioners submitted a sealed letter dated September 30, 1988, from the Riverside County Registrar of Voters stating that "Papu Joseph Siofele was registered in Riverside County May 28, 1981, and was cancelled November of 1983 because he did not vote. He registered again in October of 1985, and never voted." This letter was not, according to the Chief Election Officer, shown him until he was on the witness stand.
Notwithstanding this additional information, the Chief Election Officer was unmoved. While he could not exactly remember the day, he had by now printed the ballots.
On October 28, 1988, only ten business days prior to the scheduled election day, petitioners filed for a writ of mandate.
The authorities are replete with statements that "mandamus" lies to compel the performance of a ministerial act or mandatory duty where petitioner has a specific, well defined legal right; respondent has a corresponding specific, well defined duty; and there is a want of any other appropriate and adequate remedy. Given this statement of the law and looking to the pertinent enactments upon which the claimed right, and thus reciprocal duty, is based, petitioner Siofele’s claims of right to run for elective office are dependent on his satisfying a number of conditions, including being a bona fide resident of the territory for the past five years. At the continuing risk of overstating the obvious, the only specific and well defined requirement in the enactments is the duty imposed on the Chief Election Officer to determine the eligibility of a candidate for elective office. A.S.C.A. § 6.0301 (d). The Chief Election Officer has apparently done this. The question which therefore follows *12is whether he has made this determination in accordance with law.
We find on the evidence that the Chief Election Officer has shown sufficient cause to find and therefore act as he did. At the outset he had doubts about petitioner Siofele’s residency as the latter had sought nomination forms but was absent from the general register of qualified electors. He had sought proofs of residency from the petitioner who inexplicably proved to be uncooperative even to the point of refusing to reveal his United States address. We assume that there is a burden on any candidate for elective office to supply such meaningful proofs as to permit the Chief Election Officer to discharge his duties beyond the perfunctory level if there is to be any proper implementation of the Omnibus Local Governor Act and the American Samoa Electoral Reform Act. In this regard we find ourselves far from impressed with petitioner Siofele’s rather feeble entreaty to the effect that his furnishing of information sought by the various forms supplied by the election office suffices to satisfy eligibility requirements. To the contrary, we find a heavier burden embodied in the territory’s pertinent election statutes than that mere measure of formality that petitioner would have us believe suffices to establish eligibility to be a gubernatorial candidate. In connection herewith, we find no basis to sustain petitioner’s allusions on the stand to arbitrary treatment and caprice on the part of the election office.
Additionally, petitioner’s explanation of the 1985 registration form to the Election Officer was not necessarily sufficient to compel the officer to conclude in petitioner’s favor. In seeking to dismiss the significance of the 1985 Riverside registration form, petitioner related on the stand his explanation to the respondent Election Officer. Petitioner denied any knowledge of the 1985 registration, which he suspected was filled out and signed on his behalf by his overly exuberant son who was very active with him in the 1982 Riverside election campaigns. Petitioner directed attention to an actual error with his birthdate on the affidavit of registration, stating this was hardly a matter that he should lie about. He also pointed to the letter of September 30, 1988 from the Riverside County Registrar of Voters to corroborate his testimony that the last time he voted in *13Riverside was in 1982 as his registration was cancelled the following year because of his nonvoting.
We cannot say on this showing that an official charged with the responsibilities of the Chief Election Officer when confronted with the total evidentiary picture above must necessarily conclude in favor of petitioner. Firstly, the corroborative letter of September 30, 1988 from Riverside, which was not originally made available to the respondent, corroborates petitioner’s claim only in part. The letter also certifies petitioner’s disavowed registration of 1985. The Chief Election Officer seems to have considered the claimed forgery of the 1985 registration and to have been justified in refusing to believe petitioner. Secondly, on the lack of information provided by the petitioner as to the status of his schooling which would avail him a statutory exception to physical residence in the normal course, see A.S.C.A. § 4.0102(b)(4), petitioner quite candidly admitted on the witness stand that he had completed his bachelor of laws in 1980, and that he was currently writing a book. These are not the sort of circumstances which compels a conclusion of "bona fide" residency as required of candidates for governor let alone a basis to issue a mandate to the Chief Election Officer that he has a "specific and well defined duty" to conclude in favor of petitioner’s eligibility and to amend the ballot papers accordingly.4
*14Undue Delay
Under the facts presented, petitioners failed on substantive grounds to show their eligibility for relief. However, even were they otherwise entitled to a writ of mandate, this court would not issue the writ because of petitioners’ unreasonable delay in bringing this proceeding.
Although laches is technically an equitable defense, and a writ technically a proceeding at law, it has been held that laches applies in petitions for mandamus. State ex rel. Fisher v. Brown, 289 N.E.2d 349, 351 (Ohio 1972). See also State ex rel. Krupa v. Green, 177 N.E.2d 418 (Ohio App. 1961) (writ of prohibition).5 Respondents have shown the classic elements of laches --- an unreasonable delay in the assertion of their rights by one party and undue prejudice to the other party. Gardner v. Panama Railroad Co., 342 U.S. 29, 31 (1951).
From September 29 to October 25 petitioners did nothing in the courts or in the election office to advance their rights. A one month delay in asserting one’s rights is not necessarily unreasonable. But, such a delay becomes unreasonable when we consider that the election was to be held only two weeks after petitioners first sought to invoke the court’s aid in their attempts to be placed on the ballot and that although petitioner Siofele was understandably absent from the territory, he could have secured counsel or instructed petitioner Pene to press their rights, *15as, indeed, Pene had done earlier. One cannot wait until the last minute to assert rights when to do so causes prejudice to another. We take judicial notice of the undue prejudice which petitioners’ inaction would cause the government. With the election but one week away, reprinting the ballots in time to send them out to the districts and absentee voters, if possible at all, would constitute a significant expense that would not have been incurred had petitioners acted promptly upon receiving the Election Officer’s letter of September 29.
We deny extraordinary relief and petitioners’ claim for costs.
It is so Ordered.
The petitioners also filed a complaint which sought declaratory and injunctive relief. Although phrased in different terms, the issues raised in that complaint are *6identical to those raised in the writ proceeding. Thus, our disposition of the writ proceeding serves to dispose of the complaint as well.
Petitioner Siofele explained on the stand that he desired to go before the Board of Registration because this was a condition precedent to his access to the Appellate Division and that if the Board should rule adversely, a pending appeal to the Appellate Division, according to his reading of the statute, would permit his being placed on the ballot. We have been unsuccessful in locating on the books the statutory authority for this proposition and therefore surmise that it stems from a misreading of A.S.C.A. § 6.0223.
Additionally, even assuming for the sake of argument that petitioner had a right to appeal to the Board of Registration, we are unable to find anywhere on the evidence that petitioner had indeed filed an appeal to the Board itself. Petitioner argues that a letter from the respondent Chief Election Officer, denying petitioner’s request for reconsideration and advising the petitioner that he has a right to file a complaint with the High Court, was somehow tantamount to a denial from the Board to entertain any appeal. This is assuming too much for our liking. The Election Officer and the Board are two distinct statutory entities and there is nothing in the applicable statute to suggest that the Officer is a sort of gatekeeper to the Board. It would be the height of discretionary abuse for this court to issue its writ to an executive agency to compel that agency to do something it was never asked to do by a complaining party in the first place.
We note two additional points. First of all, although the parties’ discussion of the residency issue turned on whether the 1985 registration was authentic, petitioner would not necessarily have been entitled to relief even if the registration were forged. Residence is a matter of where one has fixed his habitation and intends to return upon being away from that habitation. A.S.C.A. § 6.0212(a). Without an affirmative showing by petitioner of those additional factors which would explain his lengthy physical absence from the territory, we could not have issued the writ. Secondly, the petitioner sought a writ of mandate without demonstrating that besides the residency question he was otherwise eligible according to the statutory criteria to be a candidate for Governor. It *14was unclear on the evidence before us that these other criteria had been satisfied by petitioner. The extent of our record does not permit this court to issue its mandate to the Election Officer.
Even if there were no authority for the proposition that laches may attach in a writ proceeding we would reach the same result. An extraordinary writ issues at the discretion of the court. In the exercise of that discretion, we find that the undue delay of the petitioners is sufficient reason to deny them the extraordinary relief they seek. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485713/ | Memorandum:
This is a request for review of an order of the Chief Election Officer. It seeks the removal *16of a candidate from the list of those eligible to run in the election to be held tomorrow, November 8. The petition was filed about an hour before the close of business Friday, November 4, the last business day but one before the election.
Appellate Court Rule 15 allows the respondents twenty days in which to file a response. The petition does not request an expedited hearing or a stay of the Election Officer’s order pending judicial review. Even if such a request had been made, there would appear to be insufficient time in which to allow respondents a fair opportunity to respond to the allegations in the petition.
Accordingly, the matter will not be set for hearing prior to the election. It is unnecessary at this time to express an opinion about whether and under what circumstances the controversy may be ripe for adjudication after the election. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485715/ | Per Curiam:
This case began when appellant Satele filed for a permanent injunction against appellantUiagalelei to stop the construction of a structure. Satele claimed the structure was being built on his land.
When the complaint was filed, Satele did not have a survey of the area that he considered he owned and called Fasamea. He commissioned a survey which covered over sixty acres. When this survey *21was offered for registration, appellants Uiagalelei and Tuiasosopo and appellee Faiai responded--claiming Satele had encroached upon their land.
Because the American Samoan Government needed to expand its landfill and so needed to know with whom to negotiate for this expansion, the trial court decided to adjudicate only that portion of the land currently occupied by the landfill and that portion of the land currently contemplated for the landfill’s expansion. Approximately 35.5 acres of the 60 acres were adjudicated by the court.
At trial, Satele and Uiagalelei presented surveys which had been commissioned specifically for trial. Appellee Faiai presented surveys that had been done in 1912 and 1914. The court found the 1912 survey covering ten acres had been registered with the Territorial Registrar. Appellant Tuiasosopo did not present any surveys.
The trial court made the following conclusions:
(1) Satele owns no part of the land involved in this case.
(2) Tuiasosopo owns one acre.
(3) Uiagalelei owns approximately 3.78 acres.
(4) Faiai owns approximately 30.72 acres.
Uiagalelei filed a motion for a new trial or relief from judgment, claiming counsel had discovered new evidence. The court denied this motion because it was untimely and without merit,
In the early 1900s, Fauolo a chief of Se'etaga cleared the virgin brush from Fasamea. Fauolo was Satele’s brother-in-law and continued throughout his life to render Satele the service due the highest chief in the county.
The trial court found that Fasamea was not Satele family land when Fauolo arrived on it and that Fauolo did not intend to make it Satele land. In 1912, Fauolo registered about ten acres of Fasamea as his own individually owned land.
In 1914, Fasamea was resurveyed and then covered 35.5 acres. The trial court specifically reserved deciding whether Fauolo registered this *221914 survey, reasoning its conclusion would be the same regardless of whether or not the survey was registered. In 1939, Fauolo conveyed these 35.5 acres to his daughter Fa'ailoilo by warranty deed. Appellee Fai'ai is the granddaughter and heir of Fa'ailoilo.
The court found that various relatives of Fauolo cultivated parts of Fasamea at various times. Some of these relatives were also members of the Satele family. Tuiasosopo Mariota, father of the appellant Tuiasosopo, also cultivated part of Fasamea and eventually established a large commercial plantation on Fasamea.
The court found the land north of Fasamea was Uiagalelei communal land occupied by Uiagalelei family members. The court also found that Uiagalelei sold approximately one acre of what is now the landfill area to Tuiasosopo as part of the stipulation approved by then Chief Justice Jochimsen in 1976.
Appellant Satele points out that the policy of the United States and American Samoa is to preserve the Samoan way of life, citing the Cession of Tutuila and Aunu'u and Cession of Manu'a Islands, and article I, section 3, of the Revised Constitution of American Samoa. Appellant argues that "[t]he twin cornerstones of the Samoan way of life are communal land tenure and the matai system.“ Individually owned land, appellant contends, is contrary to this way of life. Appellant relies upon the concise history of land ownership presented in Leuma v. Willis, 1 A.S.R.2d 48, 49-55 (1980), to argue that the concept of individually owned land was created by "judicial fiat" and violated this policy then and continues to violate this policy now.
The court in Leuma was critical of the judicial development of individually owned property. The Leuma court asserted that in Taatiatia v. Misi. 2 A.S.R. 346 (1948), "Justice Morrow misstated Samoan custom (that the virgin brush belonged to no one), and then applied the law of old England (Blackstone and Maine) to a land system and culture completely different." Leuma. 1 A.S.R.2d at 53.
However, the Leuma court did not conclude that individually owned land violated the cession *23treaties or the Revised Constitution. In fact, the court ended its historical discussion by citing the description of individually owned land in Fanene v. Talio. LT No. 64-77 (1977), and by noting the Samoan legislature’s efforts to define individually owned land. Appellant overstates his argument in contending the Leuma court found a violation.
Appellant also argues that recent Samoan caselaw "has recognized the treaty and constitutional problems with individually-owned land." As a result, appellant claims, "[p]rior to this case the judicial creation of individually-owned land had all but ceased to occur." The only case that appellant cites as evidence of this claim deals with a parcel of land already found to be communal land; so this case’s relevance to appellant’s argument is unclear.
In responding to appellant’s claim, appellee cites Reid v. Puailoa, 1 A.S.R.2d 85 (1983), where the court held that "since all land was once communal land, there is a presumption that all land still is." Id. at 87. The court found the provisions of the cession treaties and Article I, section 3, of the Revised Constitution of American Samoa preserved the rights of the native inhabitants and support the finding of such a presumption. Id. The court reasoned that these provisions "are not intended to force the retention of custom, culture, and tradition upon Samoans, but instead to assure that the Samoan way of life is allowed to follow its own path. " JEd. However, the court held that any party asserting that a parcel is not communal land must overcome the presumption that it is communal land.
While the court below did not explicitly refer to this presumption in its finding that the land was not Satele family land, Fauolo’s registering ten acres of the land in his own name in 1912 without any objection from Satele, just a couple of years after entering upon and clearing it, and then surveying the entire 35 acres in 1914 and subsequently conveying it by warranty deed to his daughter is sufficient to overcome this presumption.
Appellant Uiagalelei contends that the trial court erred in relying upon the Stipulated Judgment approved by Justice Jochimsen to find the Uiagalelei family sold one acre of land to *24Tuiasosopo. The trial court specifically noted in its decision that there was a "strong presumption of validity attaching to an order of this Court signed by a Justice thereof." LT 17-86, slip opinion at 3, 5 A.S.R.2d 143, 145 (1987). The judgment itself presents substantial evidence from which the court could have concluded the sale did take place. Appellant fails to establish clear error.
Appellant Satele claims "[i]t is contrary to law and custom that this lesser matai [Uiagalelei] should contest the wishes of the paramount chief for whom he speaks." Appellant gives no support for this claim, so he fails to meet the clearly erroneous standard.
Appellant Tuiasosopo claims that the trial court clearly erred in not finding the Tuiasosopo family owned Fasamea by adverse possession. In support of this claim, appellant simply presents evidence contradictory to the court’s finding that there was no continuous, exclusive, and hostile possession for 30 years. Appellant fails to establish clear error.
We conclude no clear error was established, and there was substantial evidence upon which the trial court based its findings. We therefore affirm. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485716/ | A case could not have been better presented, than the facts giving rise to this dispute, highlighting the urgency in need for regulatory intervention by the legislature to control the orderly sale of lands in the territory.
A growing number of individuals have managed to procure registration to large tracts of land, in individual ownership, through proceedings before the Territorial Registrar. Invariably, these tracts are then immediately offered for sale, in a piecemeal fashion, in lots of different shapes and sizes. More often than not, such sales are undertaken without any regard whatsoever for subdivision planning. There are on file with the Clerk’s office, disputes between competing buyers *27of overlapping pieces of land1 as well as disputes concerning the very same piece of land being sold twice.2 Additionally, as may be gathered from the facts here, land subdivisions have resulted without any thought given to the orderly reservation of rights of way, not only for the access of people, but also for the convenient development of such public services to homesites as utility, telephone, water, and sewer lines. It is inevitable with this sort of individualized land development that the buying public frequently suffers while the courts (as well as utility supplying and development planning agencies) are left to work out, also in a piecemeal fashion, practical solutions to what is generally an impractical mess. The emerging picture is usually the kind of hodge-podge land development that gives a town planner nightmares. In terms of undeveloped lands, therefore, it is perhaps very apt for the Fono to take a hand in the matter of overall land development, by regulating subdivisions and coordinating individual development efforts against some territorial planning standards. It goes without saying that the territory’s real property resources are limited and are in need of more meticulous use management.
Facts
The parties hereto, save for the plaintiff estate, were, at different times, purchasers of land from the late Aleki Noa (hereinafter referred to as the "grantor"). In 1985, two of the plaintiffs, the Schusters, had purchased a third of an acre from grantor as an "investment." The Schusters have since become landlocked as the result of a subsequent sale to defendants, Misipele and Tagi'ilima Leota. With the subsequent and strategic placement of certain structures by their fellow grantees located nearer to the main road, coupled with an equivocal stance taken by the grantor, the Schusters now find, in terms of ready access, that their investment could just as well be in the midst of the Florida Everglades.
*28The law is very clear, a landlocked grantee in the Schusters’ circumstances is guaranteed access to and from his property one way or the other. (More will be said on this below). The facts before us, however, typify the unusual possibilities with individualized land development.
Grantor had for sometime prior to 1983 secured registration to some nine acres of land in the county of Tualauta. The land at one extreme is binding on the Iliili/Airport Highway while at the other it is binding on the Fogagogo Road. On the Iliili/Airport side, the road frontage is relatively narrow compared to the Fogagogo frontage. Although a similar access mess arose with the Fogagogo frontage, the same has been resolved with the aid of the Survey Office and some cooperative grantees. Not so with the opposing and the narrower road frontage.
Shortly after acquiring registration, grantor first sold, on the Iliili/Airport side, a large parcel which encompassed much of the road frontage, to one Ruby Grisard. The remaining lands on towards the Iliili direction were subsequently sold by grantor in three separate lots. The roadside lot was sold to one Denny Spencer and, immediately inland to him, another lot was parcelled out and sold to the Seses in 1986. To the rear of the Sese lot, is the Schusters’ land which they had acquired from the grantor in the previous year, 1985. At the time the Schusters had acquired their piece, they shared a partial common boundary with the defendants who are located to the Iliili side of the Schusters. Beyond this common boundary line and extending to the main highway, there was open space retained by the grantor. The parcel held by the defendants at this time had been conveyed to them by the grantor in the year 1983.
While this state of affairs remained, the Schusters regarded this open land between them and the defendants as forming part of the right of way, traversing towards the highway following the Iliili boundary line of the subdivision. Mr. Schuster testified that grantor at the time of sale, physically pointed out to them their access accordingly.
The defendants also used the same access for ingress and egress onto and off the main highway up *29to a point when their right of way forked towards their property and away from the Seses’ and the Schusters’ boundary direction. Defendants similarly testified that their right of way was physically pointed out to them by the grantor after they had first moved into the area.
The testimony according to the defendants went on to state that the grantor in 1987 found himself in need of money, and after persistent offers to defendants, another land sale was struck between them. This conveyance not only extended defendants’ holding towards the direction of the main road but included the open area of land referred to above. Thus the inland part of the right of way as the other grantees knew it had been sold by the grantor, apparently without their knowledge. For a brief while thereafter, the Seses got to their lands without complaints while the Schusters rarely visited theirs.
With the matter of "pule" over the land remaining confused, the inevitable land dispute occurred. The evidence did not disclose what first fused the dispute but defendants asserted unequivocally their "pule" by erecting a rather imposing cement block wall extending all along what has now become their common boundary line with the Schusters and the Seses. Defendants have however allowed the Seses some ten feet along the boundary as a turning area into their land.
When defendants began to restrict access, plaintiffs complained to the grantor who is said to have attempted to undo the conveyance to defendants. The testimony was conflicting here. The grantor’s widow thought that her husband wanted to undo a wrong committed upon the Schusters because the conveyance purported to dispose of their right of way. On the other hand, defendants testified that grantor was well aware of what he was offering to sell. He had advised defendants before the purchase that the Schusters would be provided an alternative access over the Sese property which, grantor had claimed at the time, remained unsold.
In fact, at this point in time the grantor had already sold the Seses their property as evidenced by their sales agreement. Subsequently, the grantor died and the matter finally found its way to court. The Seses testify that they are greatly *30inconvenienced with a restricted turning area, while Schuster complains of no access at all.
Discussion
Where a subdivided piece of land sold is found to be without access to a road, an easement arises by implication over the other part or parts of the land subdivided, if the existence of the easement is strictly necessary for the beneficial use of the piece sold. Hansen v. Smikahl, 113 N.W.2d 210 (Neb. 1962). In other words the easement arises when the only practical means of ingress and egress to and from the landlocked parcel (the dominant tenement) is over those other parcels,3 sold or retained by the same grantor, which are nearer to the main road (the subservient tenement). The easement arising is one of "necessity" and is based upon the presumed intention of the parties to the conveyance. Daywalt v. Walker, 31 Cal. Rptr. 899 (Cal. App. 1963). It has been said the that "[t]he doctrine is based upon public policy,-' which is favorable to full utilization of land and the presumption that parties do not intend to render land unfit for occupancy." Condry v. Laurie, 41 A.2d 66, 68 (Md. App. 1945). This public policy against useless landlocked lands may thus be seen as a minimal measure of land development imposed on the parties to a land transaction by operation of law, and thus the implication of the easement is not dependent upon the intent, or lack of intent, of the parties. Whenever a party conveys land he is presumed to convey whatever is necessary for the beneficial use of that land and at the same time to reserve whatever is necessary for the beneficial use of the land which he retains.
An easement of necessity as it name suggests will exist only as long as the necessity continues. Condry v. Laurie, supra: Martinelli v. Luis, 1 P.2d 980 (Cal. 1931); Waubun Beach Association v. Wilson, 265 N.W. 474 (Mich. 1936).
*31On the facts, the application of the law should be straightforward. But there is a further aspect to this land development that must be considered.
Firstly, the government’s chief surveyor testified that he had drawn up some three or four years ago a composite map for the grantor to ascertain the extent of his sales and to aid in resolving some rights of way problems also existing with landlocked grantees to the Fogagogo road. The composite reveals the nine acre tract as an untidy jigsaw puzzle with a missing piece in the middle (an insignificant part of the land unsold and landlocked). The map also shows property lying outside the tract itself. Both plaintiffs are inside the nine acre tract while outside the nine acre tract and adjacent to its Iliili boundary, lie the access way as well as the Leota lots which have merged with what was the inland part of the access. These relevant portions outside the nine acre tract are said to be also claimed by a third party who contests grantor’s claim to title.
Defendant therefore argues as follows: In order to claim an easement by necessity there must have been "unity" in title at some time over the dominant and servient parcels followed by a severance thereof; that since title to the portions sold to defendant is contingent and subject to attack by a third party, it may not be said that there has been this unity and a severance in title in order to give rise to a dominant/servient relationship.
Additionally, defendants claim that an implied easement can only arise within the limits of the nine acre tract since this is the only parcel claimed by the grantor which has been registered.4 *32(One of our difficulties in pursuing this possibility is lack of jurisdiction over Spencer although he could have been the subject of proper joinder by any of the litigants had they so desired).
Defendants are correct with their submission on the requirement of unity of title and a severance. We do not agree however with their analysis of the facts and conclusions of law thereby reached.
In our opinion, a conclusion that there was unity in title concerning defendants’ lots and plaintiffs’ lots is not precluded at this time for the limited purpose of framing the relief sought herein. The facts reveal a common grantor who attempted to convey "his" title to the lands sold whatever that might be. The fact that the nine acre tract was registered in the grantor whereas the Leota tracts are not as yet so registered does not as a matter of law mean that grantor had no title in the Leota lots. Registration of lands in American Samoa does not guarantee indefeasible title to land. The "Torrens" system of recording does not exist in the territory. While registration however, may be better "evidence" of title as a consequence of A.S.C.A. § 37.0103--which requires any adverse claimants to any proposed registration of lands to file objections within a 60 day period, or in effect be barred from further consideration -- this is not to say that one cannot have title to land unless one first procures registration. As we understand the law, title to individually owned lands arises from circumstances of independent clearing of previously unoccupied virgin bush land by a Samoan claimant. See Leuma v. Willis, 1 A.S.R.2d 48 (1980). It is first use and occupancy that gives rise to title to individually owned land as a matter of law; and it is an assumption based on a faulty premise to say that until a claimant has successfully registered his claim to title that such title is any less as a matter of law. That is, title to individually owned land does not as a matter of law arise by reason of registration, but rather arises through initial use and occupation.
*33On the other side of the coin, we have noted that an easement by implication may not arise over the lands of a stranger. See n. 3, supra. At the risk of overstating the obvious, this legal limitation only arises where the stranger holds absolute title to those affected lands. It would be needless extension of the noted legal limitation (and an unwarranted dilution of the public policy behind the common law) to preclude an implied easement of necessity because of the possibility of claims by a stranger. In a sense, such an attempt would indeed be tantamount to giving sanction to the assumption that title is in the stranger. Merely because there is a contingency that a stranger may contest the grantor’s title to part of the subdivided lands it does not follow as a matter of law that the stranger has better title to the subservient tenement so as to defeat the implication of an easement.
We hold that there is neither need nor room for the Court in this instance to be concerned with whether there is a title dispute with a stranger and the determination of that dispute before the relief sought here may be considered. This holding takes into account the following circumstances: the alleged claims by the third party have not been zealously made; the Leotas moved into the area with a bulldozer shortly after acquiring their first lot from grantor in 1983; the right of way was early moved to outside the registered nine acre tract onto the allegedly disputed land; the Leotas have built houses on the area claimed as disputed; and the evidence of a dispute by the third party did not amount to too much more than the allegation by Leota of a dispute, which allegation was offered more in the sentiment of a defense.5
On the facts before us, we find there was unity of title and a severance of land giving rise to an easement by implication at common law. We further conclude that the common law doctrine is applicable in the territory by virtue of A.S.C.A. § 1.0201 (4). The public policy behind the doctrine, the beneficial use of lands, must undeniably apply *34-to the territory with its limited lands requiring the fullest and most effective use of resources.
Conclusion
From the discussion above, an implied easement of necessity arises only where it is strictly necessary for the beneficial use of the dominant tenement. Hansen v. Smikahl, supra. Such an easement will only exist as long as the necessity continues. Condry v. Laurie, supra. Martinelli v. Luis, supra, Waubun Beach Association v. Wilson, supra.
On the facts before us, we conclude that plaintiffs Lolani and Meafou Sese and their family have failed to show that they are in fact landlocked. They have been provided a ten foot entrance on the boundary line which in our view provides sufficient access for residential use. Their primary complaint with the defendants’ wall was that it restricted the convenience of the dump trucks bringing fill onto their land and impeded those vehicles from backing out of their land so as to be positioned head first towards the main highway. This inconvenience is hardly the stuff that gave rise to the doctrine at common law which talks of "strict necessity" and the possibility of a limited duration for that necessity. The Seses have acquired for themselves a large tract of land which is quite capable of accomodating the turning of vehicles so that they may exit the land directly forward without additionally burdening defendants’ land.
In the case of the Schusters, theirs is exactly the sort of circumstance for which the law mandates easements by implication. They have been effectively landlocked by the erection of the stone wall over what was pointed out to them by the grantor as their accessway to the main road. Notwithstanding what the grantor may have said to the Leotas to persuade them to purchase their second lot, given the existence of the necessity, the title conveyed by the grantor to them was subject to the easement by operation of law. Accordingly, the following order will enter and the Court sincerely hopes that the parties will exercise the proper degree of discretion in exacting compliance. The entire wall need not be completely removed and discretion and common sense *35should address the reasonable convenience of both parties.
It is Ordered that the defendants Misipele and Tagiilima Leota, and all those taking by, through, and under them, are hereby enjoined and restrained from maintaining so much of that stone and concrete wall located on or near their common boundary with the plaintiffs, Su'a and Starr Schuster, which is preventing the plaintiffs from reasonable access to their adjacent property.
The parties shall have judgment accordingly.
See Moon v. Falemalama, 4 A.S.R. 836 (1975).
See Manuma v. Bartley, LT No. 15-86 (1986).
The element of necessity is unaffected by the fact that a shorter and more convenient manner of access to the main highway could be provided over the adjoining land of a stranger. Calhoun v. Ozburn, 198 S.E. 706 (Ga 1938).
The evidence revealed that at one time the defendants first went upon their land by way of access through Spencer’s land within the nine acres’ Ili'ili boundary line. The Seses also utilized this way of passage for a short time until Spencer’s land was barred by the defendants supposedly on behalf of Spencer. Defendants’ testimony was that they are related to Spencer and were initially using his land for access at his sufferance. It was when access was closed through *32Spencer’s that the grantor moved the access turn-in outside, although contiguous to, the nine acre tract’s Ili'ili boundary line.
We imagine that the sentiment would quite obviously be otherwise in the context of an actual case with the third party. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485717/ | Per Curiam:
This is a dispute over the termination of Sio Palelei from his employment as a fish hauler for Star-Kist Samoa, Inc. Palelei’s responsibility was to supply baskets of fish to employees at the fish cleaning tables. As the fish were cleaned, Palelei was to "punch" cards held by each fish cleaner, each punch representing a certain quantity of fish.
On October 9, 1986, Palelei’s immediate supervisor issued an Employee Warning Notice to Palelei which now reads:
This is to warn you for giving free punches for the cleaners without dumping fish. Suspended pending for further investigation. (Over Punches). Terminate
Palelei refused to sign the notice. A Payroll-Notification form effective October 21, 1986, noted that Palelei was terminated involuntarily, the action having been approved by the Personnel Manager on October 21, 1986, by the Administrator on October 22, 1986, and by the General Manager on November 3, 1986. The reason given was "Giving free punches for the cleaners without dumping fish . . ."
*37In firing Palelei, Star-Kist did not follow the system of progressive discipline which is set out in the employee handbook distributed to all employees. This system consists of counselling by the employee’s supervisor and a verbal warning, written warning with the possibility of a one-day suspension, and finally a "last chance," with the determination to suspend or terminate made in conjunction with the personnel manager. The handbook also lists eighteen different offenses which may lead to termination for a first offense, without the benefit of the successive discipline procedure. This list includes insubordination or willful disobedience to an order, assignment, or instruction, and giving or receiving free punches or wrong punches for fish being cleaned. Palelei was not given an opportunity to contest the accuracy of the basis for the warning.
Palelei sued for wrongful termination on the ground that Star-Kist violated his contractual right to the successive discipline procedure outlined in the manual.
The sequence of events alleged in the verified complaint is as follows:
9/ On October 9th, 1986, there was a problem in the process which created a backlog of fish at the cleaning tables.
10/ Plaintiff was expected by his supervisor to increase his table’s production by placing more baskets of fish on the table than could be reasonably handled by the cleaners.
11/ Plaintiff maintained the normal routine to avoid overloading the cleaners.
12/ A complaint was made that day against plaintiff and he was summarily suspended from his employment by his supervisor, Henry Bernard.
Defendant’s answer denies these allegations and "specifically denies Plaintiff was summarily suspended from employment." Defendant answers further as follows:
*3813. . . . Plaintiff was given an immediate written warning when discovered to have been falsifying the fish cleaners’ production punch cards . . . which Plaintiff refused to acknowledge by signature. Plaintiff was therefore suspended and subsequently his employment terminated for falsification of records of Defendant.
Defendant moved for summary judgment and filed an affidavit of its Industrial Relations Manager which stated that he was "familiar with the facts surrounding the termination of Plaintiff’s employment." He repeats the allegation about "over-punching." He also states that Plaintiff "admitted" to him that Plaintiff "had been wrong in ’over-punching’ the cleaners’ production cards." Plaintiff relied on his verified complaint. The court received a copy of Defendant’s employee handbook, the Employee Warning Notice, and the Payroll-Notification form.
The court issued summary judgment in favor of Star-Kist. The court determined that, while the handbook does create rights on behalf of the employees, Star-Kist was entitled to summarily dismiss Palelei without following the successive discipline procedures.
The trial court found that there was no dispute that Palelei’s supervisor had ordered him to increase the speed of production and that Palelei did not comply. The trial court said, in part: Palelei does not contend here, nor does he appear to have argued below, that his failure to comply was not willful or that compliance would have been impossible or unreasonably difficult. Pursuant to the employee handbook, which the trial court held created contractual rights to the review process under certain circumstance, insubordination or willful disobedience allows the employer to terminate the employee without resort to those procedures. The trial court ruled that even if the "wrong punching" charge is factually disputed, Star-Kist was entitled to summary judgment on the basis of the insubordination charge.
The sole issue on this appeal is whether summary judgment was proper on the record before the trial court. We conclude that there are material facts in dispute and therefore reverse.
*39Preliminarily, defendant’s motion for summary judgment is defective in not being supported by affidavits based on personal knowledge. The statement by the industrial relations manager that plaintiff had "admitted" wrongdoing is at best ambiguous. The trial court concluded that plaintiff was properly terminated because he was either guilty of insubordination or of falsifying records. But defendant denies in its answer that plaintiff was terminated for insubordination and plaintiff denies "over-punching." Much of the factual material in the trial court’s decision was based on statements of counsel at the argument on the summary judgment. Such statements are not a substitute for affidavits based on personal knowledge.
The granting of defendant’s Motion for Summary Judgment is reversed and the case is remanded for further proceedings consistent herewith. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485718/ | This matter originated with an attempt by claimant Lautele Noa or Faigame Lautele Iuta (hereinafter "Lautele") to procure the registration in individual ownership of certain lands located in Tafuna, Tualauta County and delineated in yellow in a composite prepared by the government’s chief surveyor and marked Exhibit "1". Such claim is more particularly described in the Private Drawing No. 61-14-81 certified by the government survey office and is a part of the registration record kept by the Territorial Registrar and filed eventually with the Court under docket No. LT. 29-82.
Chief Lealaimatafao Mase (hereinafter "Fao") objected to this attempted registration as encompassing communal lands of the Lealaimatafao family. The extent of Fao’s claim is delineated in red in Exhibit “1" and more particularly described in Drawing No. 431-8-87, also certified by the government survey office and is a part of the registration record kept by the Territorial Registrar and filed with the Court under docket No. LT. 35-87. In essence, our record reflects a dispute over virtually the same piece of real *41property and hence these matters have been consolidated for trial on the merits.
Mrs. Overland Olotoa’s interest in this matter arises through Lautele who is said to have sold her the southern half of the land as claimed by Lautele, hence the yellow bisection of Lautele’s claim as seen in Exhibit "1".
The land is bounded at its northern extreme by the Iliili/Airport highway, extending in the southeast and sami direction to the government airport boundary fence. On its western border are lands which have been registered in individual ownership by one Aleki Noa. Its eastern or airport side abuts some 12.5 acres which have been registered by Lautele in individual ownership. Much of this registered land has been sold by Lautele to Mrs. Olotoa.
The testimony as expected was conflicting as the parties are claiming essentially the same land area.
Fao is the senior matai of the Lealaimatafao family of Iliili and a ranking matai of the Tualauta County. He is eighty years old and has held his family’s title since 1957. He testified that his family has many lands scattered throughout the county occupied by various family members. He testified that he first went on the disputed land and commenced clearing it in the year 1961. The reason he went into the area was that it was virgin bush at the time and that other members of his family had also come into the vicinity for the same reasons. He further testified that his clearing and occupation extended from the' highway all the way to the government’s airport fence. From the fruits of his labor, he also claimed that he had obtained a government contract to supply the hospital with taro and vegetables in the year 1963. Fao also claimed to have had a home built on the land together with a water tank. In those days before water development reached the area, his tank was a source of water for other people working nearby. The home was said to have been levelled by the hurricane of 1966 and never rebuilt. Fao testified that since the hurricane he had ceased further major projects on the land although he continues using the crops thereon.
*42He was unaware of Lautele’s surveying the area; however, he found out about the proposed registration posting and accordingly filed an objection. He discovered at one time Olotoa planting in the rear portion of his land and he instructed his then counsel to put a stop to this. He seems to recall an order to that effect but had no idea what happened to the case. He recalled participating in meetings at the Office of Samoan Affairs which determined that the matter should be sent to the Court for determination. Since 1981, nothing has happened in the case, although the coconuts which he claimed to have planted in the rear of his land have since been removed.
Other members of the Lealaimatafao family corroborated their senior matai’s testimony by also bearing witness to family work on the land.
Lautele is 63 years of age and is also from the village of Iliili. He claims to have been involved with implementing an early decision by the youth (aumaga) of Iliili to cultivate bush land (taloloa) in order to serve the village. He commenced clearing land in 1938 and worked his way towards the area which comprises his registered claim. He left the island after the war with a contingent of the armed forces and returned in the year 1948 resuming work on the land. It was quite obvious, however, that claimant was somewhat confused with his dates. He, like Fao, talked of his clearings as extending to the government’s airport fence whereas the airport condemnation proceedings involving the villagers of Iliili occurred in 1957. See Condemnation Proceedings In re Tafuna Airport, No. 16-1957 (Nov. 20, 1957), reported in part in 3 A.S.R. 302. Presumably, Lautele’s development efforts were therefore still ongoing at a time subsequent to the establishment of the airport boundaries in the latter part of 1957.
Lautele acknowledges that Fao had worked on the land but explains Fao’s presence as coming about through his permission given in the year 1960. Prior to that, it was only he and one Aleki Noa of his family that worked the area. Permission given to Fao, however, was said to extend only to the northern half of the land. He denied Fao’s claims to having encountered virgin bush when the latter had gone on the land, testifying to the contrary that when Fao came upon the land, the bush *43had been levelled and the land was covered with undergrowth. With regard to the home claimed by Fao as having been built on the land without permission from Lautele, the latter responded that the said building was erected at a time when he was again off island. In Lautele’s assessment, the home built by Fao was nothing more than the sort of typical makeshift plantation structure which families would build for rest periods during a work day.1
As Lautele found buyers for land, he would have an area surveyed and then seek to procure registration in individual ownership. He successfully registered some 12 acres of land without objections until Fao got notice of the particular registration attempt now before us. The registration here was sought after claimant Lautele had agreed to sell some 2 acres to Mrs. Olotoa. By way of explaining background to the sale, Mrs. Olotoa testified that she had previously acquired some other parcels from Lautele. She stated that over the years, Lautele had been a good business customer of hers. She helped Lautele with his own business by supplying him credit. As he offered her land for sale, she would give him the purchase price and he, in turn, would attend to securing registration and finally deliver a deed. In this same fashion she recalls giving claimant $18,000 or $19,000 for another 2 acres of land in 1980. With Fao’s objection, she is still awaiting a deed on this last purchase. When Mrs. Olotoa was asked by the court whether she obtained legal advice for her land transactions, she responded that she trusted claimant and essentially took a "gamble" each time that he would deliver. Claimant had proved reliable on prior sales.
*44When she moved onto the land and attempted to plant, Fao complained of her encroachment. A court case was filed in 1980 and in Mrs. Olotoa’s recollection the outcome of the case favored her side. Counsel referred us to Lealaimatafao v. Manuma, LT. No. 56-80 (1980) which is a matter that never went to judgment. The file reflects an application by Fao for provisional injunctive relief which was denied on Fao’s failure to sustain his burden of likelihood of prevailing at trial. No further action was taken on this file although in the following year Lautele attempted to register the land and met with Fao’s objection.
Discussion
On the preponderance of the evidence, we find that the original clearing of the land was undertaken by Fao and his family. The Court finds itself with too many reservations to accept the claim by Lautele that Fao entered the area through his permission. That a ranking matai of- a village would require permission of a non-titled person to enter a "taloloa" area does not set well with the cultural norm. If, as suggested by Lautele, Fao was merely looking for a place to plant crops, as opposed to settlement, the question which naturally arises is why would a leading matai be dependent for crop lands on the clearings of an untitled member of the village while overlooking the remainder of the family’s communal holdings. According to the dictates of custom, these communal holdings are in the service of the matai. Testimony to the effect that a matai in Fao’s standing would need to be in search for borrowed lands to plant crops just seems unlikely and in our opinion less credible than that testimony by Fao to the effect that his purpose in the area was the acquisition of additional family lands. The permission asserted is viewed as even less probable given the undisputed evidence that other Fao family members, Falefia and his family, were also in the vicinity clearing and cultivating the opposite side of the road as original claimants. Mrs. Folole Falefia, 65 years of age, testified that while she and her husband were so establishing their claim to the bush they did also at times participate as Lealaimatafao family members in assisting their senior matai with his development. She corroborated Fao’s testimony that when the latter came into the *45area and commenced clearing, the land was still virgin bush.
Additionally, the nature of the home built on the disputed land is simply inconsistent with permissive use. The attempt by claimant Lautele, as well as his witness Sipili Atualevao, to play down the significance of this inconsistency, by referring to the home built as being only a provisional plantation rest structure, did nothing more than taint their credibility. All agreed that the house was a two story structure. The house was built by a Rev. Iese Aasa, also of Iliili at the time, and his son Avemaia Aasa. The latter described the building as a two story "L" shaped structure, 16’x 24’ + 16’x 16’ in dimension. The upper story was constructed of wood which sat on concrete columns while the ground floor area was left unwalled or open.
The building of this large family home, coupled with the construction of a water tank in a then undeveloped area and the establishment of a commercial farm, are all real evidence of settled occupation by Fao in the area and quite the antithesis of borrowed surroundings.
Against this, counsel for claimant argues that because there are extensive registered individual holdings to the airport side of the disputed land in the name of claimant and similar extensive holdings to its Iliili side, the inference arises that the disputed area is the individually owned land of claimant Lautele.
The inference does not follow and the argument completely overlooks the law on the matter. The cases had early established, to the extent that it is trite law in the territory, that Samoan families acquire title to bush land through first occupancy and use, coupled with claim to ownership. However, a mere claim to ownership of bush land does not establish title to it. Soliai v. Lagafua, 2 A.S.R. 436 (1949). In the matter before us, there is just no room for the inference contended when there is actual evidence that the objectors (Fao and his family) cleared, occupied, planted, and asserted ownership by the sort of development outlined above. Thus the argument by counsel in the circumstances is at best no more than a mere claim to ownership.
*46Further, in the case of "individual ownership" claims, the law demands more exacting proofs. As we understand the cases, such a claim involves more than the felling of trees and the planting of some crops at one time or another. In Fonoti v. Malufau, LT. No. 1406-74 (1975), the Court spoke of proofs for individually owned claims as follows:
The Court has said on a number of occasions that there is a single question in a Registration case where the request is for individually owned land, and that is, has the applicant actually cleared, cultivated and used all of the property offered as a plantation . . . [I]f it is established that all of the land has not been so used, it shall be denied in Toto. The fact that a portion of the land may have been used as a plantation by the applicant is of no importance.
To qualify as a plantation, there must be evidence of planting of trees and/or plants. The occasional coconut, mango, banana or other tree is not considered a plantation and no credit will be given for such.
In this case ... a portion of the land offered for registration is not and has not been a part of a plantation, and in view of the rule that to qualify for registration as individually owned land, all of the land must be so used, this offer for registration is denied.
After a review of the cases, the Court in Fanene v, Magalei, LT. No. 64-77 (1977), described individually owned land as that land: 1) cleared in its entirety or substantially so from the virgin bush by an individual through his own initiative and not by, for, or under the direction of his aiga or its senior matai; 2) cultivated entirely or substantially so by him; and 3) occupied by him or his family or his agents continuously from the time of the clearing of the bush.
It will thus be seen that in order to sustain a claim in individual ownership, it must be minimally shown not only that the clearing of virgin bush (independent of aiga ties) was substantial, but that cultivation and continued *47occupation of the cleared land has also been substantial. In the Court’s view, Lautele had failed to prove on the preponderance of the evidence that he had in fact substantially cleared the area in dispute from bush land. He also failed in his evidence to show actual and substantial cultivation although he alluded to planting certain rows of coconuts as boundary markers, and certainly he made a very poor showing of continuous occupation and use by attempting to explain the adverse fact of Fao’s presence as being through his permission. His general claims to have been the first to clear lands in the area coupled with his success in having obtained registration to a large part of the lands in the area, do not establish a claim in individual ownership. Lautele’s offer for registration must therefore be denied in toto.
We do find that the evidence preponderates in favor of Fao’s claim to communal ownership. We are mindful of the adverse effect our conclusions have on Mrs. Olotoa, however she must look, in terms of relief, to Lautele from whom her rights derive. She candidly admitted risk taking in her land dealings with claimant. She gave purchase money up front without the least concern for a title search and consequently her last transaction has proven to be the "gamble" which has not paid off.
On the foregoing, it is the judgment of the Court that the lands delineated in red in Exhibit “1", and more particularly described in Drawing No. 431-8-87, are the communal family land of the Lealaimatafao family of Iliili. The Territorial Registrar may register accordingly. The application by Lautele for registration is denied.
It is so Ordered.
What is implied by claimant Lautele is that a permanent structure placed on a tract of land is an unequivocal assertion of "pule" or ownership. The construction of a plantation rest place which is not permanent in nature and easily dismantled is an equivocal act. He argued that the provisional nature of Fao’s structure was evidenced by its destruction in the 1966 hurricane whereas a Samoan type fale which he had built in the vicinity had withstood that storm. It was his structure that was more permanent in nature. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485719/ | Defendant acquired a government road construction contract in Manu'a and hired plaintiff as a truck driver at the wage of $5.00 per hour.
Plaintiff now sues the defendant for unpaid wages, claiming that he never received a pay check throughout his period of employment. In addition, plaintiff contends that defendant’s failure to pay was "wilful" and therefore also seeks "liquidated damages" in an amount equal to his claim for unpaid wages pursuant to A.S.C.A. section 32.0340.
Defendant does not dispute owing plaintiff back wages. He does contest the amount of plaintiff’s claim to actual hours worked as being inflated. He further denies wilfulness in nonpayment of wages, claiming that an ongoing dispute on the road contract with the government has caused his venture to lose money and not fulfill expectations. He expects to satisfy his obligations to plaintiff after the government releases to him some $28,000 in retentions. Defendant also claims to have made plaintiff cash advances at various times totalling some $590.00.
Plaintiff calculates his wages due as being in the amount of $5,765, of which the sum of $1,650 is said to be overtime compensation. Defendant’s figures, however, show plaintiff as being owed $1,876.50, which figure has taken into account the alleged cash advances.
Plaintiff testified that he was hired by defendant to commence work on May 11, 1987 and was immediately put to work hauling material. He testified that a few days afterward, on May 15, 1987, he was relocated to Manu'a with defendant’s equipment. He largely remained in Manu'a until October 2, 1987 when employment ceased.
Evidence of work hours submitted by plaintiff was in the form of a 1987 calendar upon which plaintiff made notations for each day of the week. In these notations he has set down hours, which he claims were time at work, as well as a short log of his activities and location for that day. Plaintiff claims that he has kept a calendar of his work activities as he has always done when *50employed by local contractors. From experience he does not trust them.
Upon close review of this diary however, we are unable to avoid agreeing to some extent with defendant that plaintiff has inflated his actual work hours with certain entries in his calendar.
The bulk of the entries in plaintiff’s calendar attempt to give a time of commencement and a time for cessation of work each day. Additionally plaintiff has also briefly noted the activity and job site of the particular day. But then there are also a number of entries which have been obviously revised with a different colored pen as an afterthought. There are also a number of entries which appear to lack any contemporaneity with work activity. They simply appear as a day’s total of hours without the usual information on starting time, activity, and quitting time. For instance, in the month of July plaintiff has credited himself with the simple notation "8 HRS" all down the Sunday column without further explanation. These entries were all made with the same pen at the same moment, while the notations for the ensuing usual work weeks of the month are in another kind ink and include work detail. There are days when the regular entry appears as "no work" made with one pen and then with a different pen, plaintiff would credit himself "8 HRS". There are times when plaintiff has noted that he is on Tutuila and has assigned himself regular and overtime hours of "work in the office." What a truck driver, who is being paid by the hour, does in the office is unclear to us, although defendant testified that plaintiff was in the habit of disappearing from Manu'a without anyone knowing about it until he again returned.
On the other hand, the credibility of defendant’s proofs left us even more uncertain. Defendant submitted a summary of plaintiff’s time sheets purportedly extracted from the regular time keeper’s records. A perusal of the timekeeper’s records revealed immediately that defendant’s summary ignored the timekeeper’s records for the month of May, while the timekeeper’s records themselves for the first week of work proved mathematically startling. A resulting equation: 8 daily hours x 5 days = 16 work hours.
*51Furthermore, and mindful of plaintiff’s exaggerated record of his hours, the difference between the timekeeper’s log of hours and that of plaintiff’s was simply too great to permit us to conclude favorably on the reliability of the timekeeper’s records. When defendant attempted to explain the discrepancy, he defensively offered that it was the particular employee’s duty to reconcile hours with the timekeeper if the employee felt there was indeed a discrepancy. Defendant put this down to "normal business practice."
After nearly five months of employment with nothing but a recurring promise of compensation, the need to reconcile hours will not have arisen as the employee would not know what hours are being paid by the employer. This is the kind of information employees are regularly given on their payroll checks or wage statements. Further, plaintiff testified that there was no established daily practice whereby they reported to a timekeeper or punch clock, and thus we assume that the possibility of reconciling hours was not at all encouraged in practice.
In our judgment, the evidence preponderates in favor of those regularly kept entries of plaintiff which are free of the criticism we noted above. We find plaintiff was employed by defendant from May 11, 1987 to October 2, 1987. During that period of employment plaintiff had accumulated the following unpaid number of work hours :
Regular Hours 625 x $5.00 = $3125.00
Overtime Hours 115 x $7.50 = $ 862.50
Total Wages = $3987.50.
We next reach the question of "liquidated damages." Plaintiff seeks to recover double the amount of unpaid wages, basing his cause of action on the provisions of A.S.C.A. section 32.0340. This enactment provides, inter alia, for punitive damages against an employer who "wilfully" violates the provisions of sections 32.0320 and 32.0323. Such damages shall be for an additional equal amount of unpaid compensation due the employee in accordance with the said sections 32.0320 and 32.0323. The former section provides for payment of minimum wages at the rate of 70 cents an hour; however, the enactment by its terms does not apply to employees covered by the Merit System Law and Federal Minimum Wage Schedule established by the *52United States Department of Labor.1 The latter section provides for overtime rates being payable to an employee after having worked 40 hours in a given week.
There appear to be two aspects of a claim under section 32.0340. These are: damages for wilful failure to pay minimum rates of 70 cents an hour; and damages for wilful failure to pay overtime rates.
On the first aspect, a claim for liquidated damages sought by plaintiff based on his contractual rate of $5.00 per hour is not available under section 32.0340. The enactment addresses a claim for damages based on the difference between the hourly rate paid by the employer and 70 cents an hour; it does not address a breach of contract situation. Furthermore, the language of section 32.0320 makes it doubtful that the punitive measure provided under section 32.0340 is available for wilful failure to pay minimum wages in circumstances where the federal minimum wage schedule is applicable.2
On the evidence before us, there was no attempt by plaintiff to show that his employment *53circumstances were other than those covered by the federal wage schedule. 29 C.F.R. section 697.1 (e) establishes a "Construction industry" which is defined to include all "construction, reconstruction, structural renovation and demolition, on public or private account, of buildings, housing, highways and streets, catchments, dams, and any other structure." 29 C.F.R. § 697.1(e)(2) (1988). Without any showing to the contrary, this classification would seem to cover the factual circumstances of employment before the Court, and accordingly plaintiff’s claim is outside the ambit of section 32.0320.
The second aspect of the claim is damages for wilful failure to pay overtime rates which are set by section 32.0323 at one and one-half times the employee’s ordinary rate of pay --- whether that rate is contractually determined or not. However, relief hereunder does not merely arise with non payment of overtime rates. The employer’s failure to pay must be "wilful." In this regard, defendant testified that he has been unable to pay his employees because of early disputes arising with the government on the roading' contract. This involved money consuming work changes from which defendant claims he never recovered and eventually resulted in a mutual agreement to terminate the contract. The defendant’s pleadings admit liability for the payment of overtime rates, although he has contested the number of hours claimed by plaintiff. In the light of our conclusions above, that objection by defendant has not proven to be without merit. Moreover, plaintiff has not produced evidence to contradict defendant’s asserted inability to pay.
We conclude against wilfulness on the part of defendant.
With regard to the alleged advances by defendant to plaintiff, we find that defendant has made an insufficient showing. When asked by the Court if defendant kept documentary recordings of such advances, defendant mentioned a certain book kept by his partner in the venture. This reported record was ordered to be produced by defendant and our review of the same failed to sustain defendant’s testimony. We disallow the claimed offset.
*54Finally, this matter was originally set for trial on October 24, 1988 but continued at that time over the objection of counsel for plaintiff. The matter was continued as defendant was off island; however, defendant has stipulated in open court to pay for plaintiff’s costs and attorney’s fees incurred as a result of the continuance. Such costs and attorney’s fees are allowed. Plaintiff’s attorney shall submit a statement to that effect for the Court’s approval.
On the foregoing, judgment will enter in favor of plaintiff in the amount of $3987.50, plus all costs of suit, attorney’s fees only as above allowed, and all lawful interest.
It is so Ordered.
The Fair Labor Standards Act, 29 U.S.C. §§ 201-19, commonly known as the Wage and Hour Law, contains particular provisions applicable to American Samoa. 29 U.S.C. § 206(a)(3) requires the Wage and Hour Administrator to appoint a special industry committee to recommend to the Secretary of Labor the minimum wages to be paid in American Samoa. As a result, wage rates have been established for numerous industries in the territory. See 29 C.F.R. § 697.1 (1984).
Save for those specific exemptions provided in the Fair Labor Standards Act, 29 U.S.C. § 213, the circumstances of employment to which the federal wage schedule appears intended for application are right across the board. See 29 C.F.R. § 697.l(n) (1984). This regulation establishes an industry classification in the territory known as "Miscellaneous activities industry" and which' is defined as including "every activity not included in any other industry defined herein." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485720/ | REES, J.:
This is an appeal from the decision of the Board of Registration that appellee Liki Reed is a qualified elector in House of Representatives District #8, comprising the village of Fagatogo. On November 8, 1988, Reed was re-elected Representative for District 8. Appellant was the only losing candidate. Although the appeal seeks only a declaration that Reed was ineligible to vote in the district and his removal from the list of voters, we assume the intended effect of the appeal is to secure the certification of appellant as the winner of the election.
The facts are undisputed. Reed grew up in Fagatogo and lived there until he went away to college in the United States. Upon his return he lived in Fagatogo for two years and then moved into a house in Gataivai, which is outside District 8. Reed had acquired the house, or a share in it, through inheritance in 1962. His family, his church, and his business are in Fagatogo. He serves the Lutu title, which is appurtenant to Fagatogo although it also has lands in Utulei. He is an officer and active member of the Fagatogo Aumaga. He has voted in Fagatogo since 1974 and has never voted in Gataivai. He was elected Representative from District 8 in 1986 and reelected this year.
*56We hold that the Board of Registration was correct in its determination that Reed is a resident of Fagatogo and therefore a qualified elector in District 8. A.S.C.A. § 6.0212(b) provides that "[a] person does not gain residency-in any district into which he comes without the present intention of establishing his permanent dwelling place within that district." The point is underscored by A.S.C.A. § 6.0212(d): "The mere intention to acquire a new residence without physical presence at that place does not establish residency, neither does mere physical presence without the concurrent present intention to establish that place as his residence."
Eight years is a long time to live in a place without intending to make it one’s permanent residence. The existence of such an intention remains, however, a question of fact to be decided in light of all the circumstances; the statute makes it clear that physical presence alone is not dispositive of intent. In Dole v. Attorney General. AP No. 23-78, this Court held that a man who had resided in Futiga for ten years was still a resident of Fagatogo, since he "resides in Futiga only for convenience, having never intended to give up his residence in Fagatogo." Id.. slip opinion at 3, decided December 5, 1978. In Dole, as counsel for appellant points out, the Court noted that the voter owned a house in Fagatogo although he physically resided in Futiga. In this case the objective indicia of intent --- participation in church and aumaga in Fagatogo, voting in Fagatogo, serving the Lutu title in Fagatogo,3 and running for office in Fagatogo ---are even stronger than those in Dole. Since Reed never intended to make Gataivai his permanent residence, he retains his original voting residence in Fagatogo.
The decision of the Board of Registration is affirmed.
A.S.C.A. § 6.0212(f) provides in pertinent part that "[t]he situs of a person’s primary matai obligations are a factor in determining district residency." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485721/ | Per REES, J.:
Appellants seek a new election in House of Representatives District 7 on the ground that the winning candidate, Fiaaoga Siatu'u, is a registered matai in Western Samoa and has voted in parliamentary elections there.
The appellees have moved to dismiss on the ground that the Court has no jurisdiction to hear an election appeal filed later than 4:30 p.m. on the seventh calendar day following the election. A.S.C.A. § 6.0903(a). This appeal was filed at 8:00 p.m. on November 15, 1988, the seventh calendar day after the election --- three and one-half hours late.
On the state of the pleadings and arguments in this case we are compelled to agree with the appellees. When the legislature takes the trouble to specify not just the date but the exact time by which an act must be done, a court should not presume to substitute another date and time. At the time this case was heard, counsel for appellants read the Court passages from American Jurisprudence to the effect that courts do not obtain jurisdiction of election cases until after the final results are announced. Since the final results of this election were not announced until November 16, appellants argue that the deadline for challenging the election cannot possibly have been November 15. The Court gave counsel twenty-four hours to cite a case in which this rule had been applied to a statute such as A.S.C.A. § 6.0903(a), which computes the time for challenging an election from the day of the election rather than from the *59announcement of the results, and no such case has been cited.
Moreover, the appellants knew what they needed to know in order to file this appeal --- that Siatu'u had voted in Western Samoa in 1985, and that the Chief Election Officer and the Board of Registration nevertheless regarded him as a resident and a qualified voter in District 7 --- by November 14 at the very latest. It is true that appellant Schuster, who was sixteen votes behind Siatu'u in the unofficial returns, could not be absolutely sure that this count would not be changed when the official results were announced. But this was no reason to delay beyond the statutory deadline the filing of a challenge to Siatu'u’s eligibility as a candidate, which did not depend in any way on the vote count.
If this were a case in which the appellees had made it impossible for appellants to meet the deadline --- if, for instance, one of the appellants were the unofficial winner but had been disqualified by the Chief Election Officer eight days after the election --- our decision on this issue would be a difficult one. On the present facts, and in the absence of any cited authority for the appellants’ argument that a statute such as A.S.C.A. § 6.0903(a) should not be regarded as mandatory, we hold that it is mandatory and that we have no jurisdiction to hear the appeal.
Even if we did have jurisdiction, however, appellees would prevail on the merits. Appellants argue that Siatu'u lost his status as a United States national when he registered his matai title in Western Samoa, since (1) under the law of Western Samoa only a Western Samoan citizen can hold a matai title and (2) in order to become a Western Samoan citizen one must take an oath renouncing the citizenship of any other nation. This proves, however, only that Siatu'u either took an oath to renounce his status as a United States national or violated the law of Western Samoa when he registered his matai title. His testimony is that he has never taken any such oath and has never become a citizen of Western Samoa. If not, he appears to have violated section 8 of the Samoan *60Status Act of Western Samoa,1 but he has not lost his status as a United States national.
Appellants also contend that even if Siatu'u did not lose his United States national status by-registering his matai title, he lost it by voting. They rely on a statement in Shelton v. Tiffin. 47 U.S. (6 How.) 163, 185 (1848):
[C]itizenship may depend upon the intention of the individual. But this intention may be shown more satisfactorily by acts than declarations. An exercise of the right of suffrage is conclusive upon the subject.
Shelton, however, concerned whether a party who had moved from Missouri to Louisiana had become a citizen of the latter state for the purpose of conferring diversity jurisdiction on the federal courts. From the willingness of the Supreme Court in 1848 to accept voting as conclusive evidence on this point, it does not follow that voting in a foreign election is also conclusive of an intention to take the much weightier decision to renounce the rights of citizenship in the United States. More to the point is 8 U.S.C. § 1481, which provides a number of ways in which a person can lose United States citizenship. The list includes naturalization in a foreign state, or taking an oath of allegiance to such a state, but does not include voting in a foreign election.
*61The list of voters in Western Samoa outside the township of Apia consists entirely of the list of registered matai title holders. Appellee Siatu'u testified that he was born in American Samoa and has lived here all his life; that he took the title Peseta in the village of Pu'apu'a in Western Samoa for family reasons unrelated to a desire to participate in Western Samoa politics; but that on one or more occasions his family in Western Samoa prevailed upon him to exercise the voting right appurtenant to his Peseta title. After he did so he returned to American Samoa where he continued to live, to participate in community affairs, and to be elected several times to the Legislature. It is clear that he did not intend to renounce his rights as a United States national.
When Siatu'u voted in Western Samoa he did lose his "residence in the territory." A.S.C.A. § 6.0212(g). However, his residency recommenced as soon as he returned to American Samoa with the intention to remain permanently. A.S.C.A. § 6.0212(a). By the time of the 1988 election he had resided here for more than one year since casting his vote in Western Samoa in 1985 and returning to American Samoa, and so he was eligible to run for the office of Representative. See Rev’d Const. Am. Samoa art. II § 3(c).
It is arguable that after officially losing his residence in 1985 Siatu'u should have been purged from the voting list and required to re-register. This, however, is irrelevant to whether he was a qualified candidate for Representative; the territorial constitution does not require that the candidate be a registered voter for a year or even a day, but only that he "have lived in American Samoa for a total of at least 5 years and have been a bona fide resident of the representative district from which he is elected for at least 1 year next preceding his election." Id. art. II § 3(c) (emphasis added). Siatu'u met these conditions.
We cannot emphasize too strongly that the Court does not confer its approval on the act of voting in foreign elections while attempting to retain the advantages of citizenship in American Samoa. Perhaps penalties for s.uch acts, including the loss of the right to vote in American Samoa for an extended period of time, should be prescribed by *62law. The law as it stands, however, does not appear to prescribe such penalties.
The appeal is dismissed.
Appellant Su'a Carl Schuster, who testified that he holds the title Su'a in Western Samoa but has never registered the title and is not a citizen of Western Samoa, would also appear to have run afoul of section 8, which makes it an offense for any non-citizen to permit a matai title to be conferred upon him. If either Schuster or Siatu'u has used his Western Samoan title in American Samoa, he would appear to have committed a misdemeanor under A.S.C.A. § 1.0414, which prohibits the use of unregistered matai titles. This law appears to be honored as often in the breach as in the observance; we have no way of knowing whether the same is true of the Western Samoa statutes cited by appellants. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485722/ | We find the facts to be as follows:
1) The manager of the defendant corporation, Jung Jun Yong, was employed until late 1986 or early 1987 by another local company, Nam’s Wholesale. He had done business with the plaintiff corporations on behalf of Nam’s.
2) A representative of the plaintiff companies, Hike Gohil, makes frequent trips to American Samoa. During such a trip in October of 1986 he met with Jung Jun Yong. In contemplation of the formation of the defendant corporation (KMST) and of his impending association with it, Mr. Jung signed a statement written out by Mr. Gohil. Although the statement is not easy to decipher, we read it as follows: "I agree to pay all bank charges and interest on after 30 days 20% per month."
3) During 1987 the defendant corporation received various shipments of merchandise from the plaintiff companies. Those proved at trial to have been sent to plaintiff were billed on the following dates at the following amounts:
Shantilal Fiji:
Jan. 10, 1987 US$ 6000
Mar. 25, 1987 US$ 6000
May 25, 1987 US$ 6000
July 7, 1987 US$ 960
Aug. 25, 1987 US$ 6000
Sept. 24, 1987 US$ 6000
June 3, 1987 F$ 1440
*64Sept. 21, 1987 F$ 2520
Shantilal Australia:
June 29, 1987 US$ 33,439.37
April 15, 1987 US$ 37,793.34
June 2, 1987 US$ 6,837.94
July 21, 1987 US$ 7,284.16
4) Two other invoices for which plaintiff Shantilal Fiji seeks judgment against defendant KMST, dated February 20 and March 27, appear to be for shipments to Nam’s Wholesale. The four invoices from Shantilal Australia are also made to Nam’s Wholesale, but Mr. Jung admits that he received these goods on behalf of KMST.
5) The documents indicating the terms of payment on the April 15 and June 2 shipments from Shantilal Australia indicate that interest is to be charged at 8 1/2 per cent if payment is not made within 30 days after the arrival of the shipment. Documents associated with the other shipments either indicate a 20 per cent interest rate or do not specify an interest rate.
6) We have no evidence of the dates on which the shipments arrived. All or almost all of them seem to have been sent from China or Australia within a day or two of the billing dates. We therefore assume that each shipment arrived ten days after it was billed. Interest on each shipment would therefore begin accruing forty days after the billing date.
7) Defendant corporation has made no payments. At one point Mr. Jung did write some post-dated checks, but the first of these was dishonored by the bank for insufficient funds. Mr. Gohil says he has presented the rest of them and that the bank will not honor them; Mr. Jung points out that they have not been stamped by the bank, but admits there is not enough money in the KMST account to honor more than one or two of the checks.
From these facts we draw the following conclusions:
1) First, we conclude that when the parties agreed in October of 1986 to an interest rate of 20 per cent "per month" they meant "per year." (This is what Mr. Gohil testified the parties agreed to, *65and it is the rate specified on most of the invoices.)
2) We note further that by making a contract in American Samoa to extend credit at the rate of 20 per cent per year Mr. Gohil and the plaintiff companies would appear to have committed the crime of usury. A.S.C.A. § 28.1510 specifies that usury is a Class A misdemeanor punishable by up to a year in prison and, in addition, by forfeiture to the debtor of the entire amount of the debt. Since the defendant in the cases before us did not plead usury as a defense, we need not decide whether the penalty of forfeiture applies only after a criminal conviction or whether it can be invoked by the defendant in a civil action.
3) The 20 per cent rate also violates the provision of A.S.C.A. § 28.1503 that interest on business loans shall not exceed 18 per cent annually. Plaintiff will therefore have judgment for pre-judgment interest at the rate of 18 per cent on all shipments except the two that specified 8 1/2 per cent interest.
4) Plaintiff Shantilal Australia argues that in addition to principal, interest, and bank charges, defendant should be liable to compensate it for the shift in the exchange rate since 1987 between Australian and United States dollars. Plaintiff could have protected itself against a disadvantageous shift in the exchange rate by specifying that payment was to be made in Australian dollars; instead it specified payment in American dollars. Two of the Shantilal Fiji contracts did specify payment in Fiji dollars, and judgment on these contracts will be in the current United States equivalent of the specified amount in Fiji dollars. Judgment on all other contracts will be in the amount of United States dollars originally agreed to by the parties. Plaintiff seems to have provided more than adequate protection for itself by charging defendant 20 per cent interest (enforceable to the extent of 18 per cent) when the Australia bank through whom payment was to be made is charging plaintiff only 8 */2 per cent on these uncollected amounts.
5) Other than interest, the only bank charges proven to have been incurred by plaintiffs on account of defendant’s non-payment are collection fees in the amount of $400 in Australian dollars.
*666) Accordingly, plaintiff Shantilal Fiji shall have judgment in the total of the following amounts:
$6000 plus 18% interest from forty days after January 10, 1987 until today, December 1, 1988;
$6000 plus 18% interest from forty days after March 25, 1987 until today;
$6000 plus 18% interest from forty days after May 25, 1987 until today;
$960 plus 18% interest from forty days after July 7, 1987 until today;
$6000 plus 18% interest from forty days after August 25, 1987, until today;
$6000 plus 18% interest from forty days after September 24, 1987, until today;
The current value in United States dollars of $1440 in Fiji dollars, plus 18% interest from forty days after June 3, 1987, until today; and
The current value in United States dollars of $2520 in Fiji dollars, plus 18% interest from forty days after September 21, 1987, until today.
7) Shantilal Australia shall have judgment in the total of the following amounts:
$37,793.34 plus 8 1/2 % interest from forty days after April 15, 1987, until today;
$6,837.94 plus 81/2% interest from forty days after June 2, 1987, until today;
$33,439.37 plus 18% interest from forty days after June 29, 1987, until today;
$7,284.16, plus 18% interest from forty days after July 21, 1987, until today; and
The current equivalent in United States dollars of $400 in Australian dollars.
8) Post-judgment interest on both judgments will accrue from today, December 1, 1988, at the rate of 12 per cent.
*67Counsel for plaintiffs shall submit to the Court no later than December 8, 1988, proposed judgments on behalf of Shantilal Australia and Shantilal Fiji in the respective totals of the amounts listed above.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485723/ | Per Curiam:
Appellant, Oketopa Atuatasi, was convicted on July 22, 1987, of attempted rape and was sentenced to seven years imprisonment. Execution of sentence was suspended and the sentencing court pursuant to A.S.C.A. § 46.2206 placed the appellant on probation for a period of five years --- on condition that he actually serve two years and 121 days in the Territorial Correctional Facility. It was an explicit condition of the sentence that
*70"[d]uring said period of incarceration defendant is not eligible for release from the confines of the correctional facility for reasons other than emergency medical care, without prior written permission of this Court." American Samoa Government v. Atuatasi. CR No. 12-87, Judgment and Sentence, at 2.
On March 15, 1988, appellant petitioned the Parole Board for release on parole. A clerical employee of the Parole Board who prepared the application mistook the condition of probation --- that appellant serve two years and 121 days in prison --- for the sentence of imprisonment. The Board did not catch the mistake and appellant’s petition was granted on March 22, 1988. In its decision, the Board stated that appellant had been "sentenced to two (2) years and 121 days imprisonment" and that he "has served one-third of his prison term and is therefore eligible to apply for parole."
Several weeks after appellant’s release, his probation officer happened to see him at large in the village of Lauli'i. The officer filed an affidavit with the Chief Justice who forwarded it to the Warden. The Warden examined the sentencing court’s judgment and sentence and after consultation with the Office of the Attorney General, ordered the appellant reconfined to the Correctional Facility. An Assistant Attorney General then notified the Chief Justice who ordered that appellant’s attorney of record be also apprised so that appellant could have legal counsel.
Exactly one month after reconfinement, appellant requested a writ of habeas corpus. The application was filed at 3:30 p.m. on May 18, 1988, and a writ issued immediately requiring the Warden and other named defendants to bring the appellant to Court on May 20 at 9:00 a.m. and to explain then and there the basis of appellant’s confinement. At the hearing of appellant’s application, the trial court concluded that detention was lawful.
Appellant moved for reconsideration claiming that his detention was unlawful because it violated the Parole Board’s order releasing him and that the procedure by which he was reconfined violated due process. The motion was denied. In its Opinion and Order on Motion for Reconsideration entered
*71July 25, 1988, the trial court in reaffirming its conclusions found: that the Parole Board had no jurisdiction to order appellant’s release and that the proceedings before the Board were had on the basis of a clerical error; that given the unique history and function of A.S.C.A. § 46.2206, the sentencing court had correctly applied the enactment; and that the procedure by which appellant was reconfined did not violate due process.
Appellant states the following for appellate consideration:
Issues on Appeal
A. Whether the judgment and sentence of the criminal court is "vague, conflicting and therefore unconstitutional for violation of due process of law." Appellant’s Brief, at 3.
B. Whether appellant’s arrest and reconfinement for one month without any judicial determination violated due process.
C. Whether the court’s "reliance" upon A.S.C.A. § 46.2206 was "erroneous and therefore illegal." Appellant’s Brief, at 3.
Constitutionality of the Judgment Below
Appellant claims that the "vagueness and ambiguity of the Judgment and Sentence . . . drew off not only the Appellant himself and the prison authorities to a different construction and understanding, it likewise construed [sic] by the Parole Board and their legal advisor from the Office of the Attorney General." Appellant’s Brief, at 5. Appellant then quotes from a number of different cases dealing with ambiguous sentences to support his argument.
We need not belabor appellant’s first point of contention. It seems to suggest that just because a, handful of individuals may misconstrue an otherwise clear judgment and sentence, it necessarily follows that the judgment and sentence is vague and ambiguous without further ado. The logical consequence of this argument would be to raise the perpetuation of a careless misconstruction to constitutional proportions. Indeed the error, or misreading, was attributable below to a *72clerk who was charged with organizing parole hearings --- not the prison authorities, the Parole Board, nor the board’s legal advisor. The ambiguity argument is simply without foundation.
Our review of the judgment and sentence complained of reveals no more than very careful compliance by the sentencing court with the provisions of A.S.C.A. §§ 46.1902(4) and 46.2206(2), which respectively deal with sentencing options and detention as a condition of probation.
Finally, appellant attempts to paint a picture of befuddlement by contending that there is an inconsistency in suspending a "sentence of imprisonment" while imposing in the same breath "detention" as a condition of probation. To coin an old phrase, this is mixing apples and oranges. While incarceration is the end result, the language quoted above, as used by the legislature, purposefully denotes entirely different and available sentencing concepts. That difference was comprehensively discussed by the court below and we see no reason to repeat it here.
Due Process and Estoppel
Appellant next contends that' upon his arrest and reconfinement, the probation officer and the court were required under A.S.C.A. § 44.2214 to initiate a hearing without delay. He claims that notification of his attorney of record was not sufficient.
The enactment here relied on by appellant deals with procedural due process requirements in the context of a probation revocation proceeding. As noted by the court below, however, appellant was not in actuality arrested pursuant to an accusation of probation violation, which would trigger the requirements of section 44.2214. Eather, appellant was in custody pursuant to an order of the sentencing court which had issued pursuant to process of law in the first place. Appellant was then released in violation of that court order but was reconfined upon the realization that there was a violation of that order. The trial division viewed the appellant’s situation as analogous to that of a convict who is mistakenly released by a prison guard without authority to order such release. Upon the discovery that such a person is at large the Warden first places him back in *73custody and then worries about a hearing. According to testimony below, appellant was still regarded as a danger to the community by the Assistant Attorney General who advised the Warden to reinstate custody.
Arguably, and notwithstanding the actual course of events, it could be said that with detention being a condition of probation, appellant’s mistaken release resulted in a breach of that probationary condition. Therefore the section 46.2214 hearing, as now contended by appellant, should have been appropriate.
Two observations may be made about this possibility. Firstly, probation revocation hearings provided by section 46.2214 are concerned with whether the probationer himself has violated the conditions of probation. The consequences of such violations include punitive measures such as enlarging the term and conditions of probation or even requiring that any sentence previously given be executed. See A.S.C.A. § 46.2209. Obviously, such punitive measures would be hopelessly improper in a case such as this where a violation of a probationary condition was not due to any fault of the probationer himself but arose through administrative oversight. Therefore it is very doubtful that the application of section 46.2214 is intended by the enactment in these circumstances. Secondly, even if the procedure whereby appellant was taken into custody fell short of due process, we are in complete agreement with the trial division that immediate notice to his counsel of record as well as a plenary hearing immediately upon his request would seem to be curative of any defect or at least render such defect moot.
While not argued in his brief, appellant at oral argument further contended that the government having once released him may not now reincarcerate him. He advances two somewhat related theories to justify this assertion. First, appellant argues that to return him to the Correctional Facility would violate his substantive rights of due process. Second, he maintains that the government is equitably estopped from arguing that he was ineligible for parole. With both these arguments we disagree.
The trial court had determined, with the agreement of the government, that appellant was *74entitled to credit towards his term of detention for the 28 days during which he was mistakenly free. We affirm since a criminal sentence " 'means a continuous sentence . . . and he [defendant] cannot be required to serve it in installments.' " Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir. 1984) (quoting White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930)). So long as appellant was released due to "the inadvertence of agents of the government and through no fault of his own,” id.. he must be granted full credit for the time he was "paroled."
However, appellant argues that due process requires not only that the government give him credit for the 28 days but that the government also be barred from reimprisoning him. Such due process claims have been recognized by several of the federal circuits in cases of rearrest following an inadvertent release. However, appellant's claim will succeed only if his reincarceration would not accord with "fundamental principles of liberty and justice." Shields v. Beto, 370 F.2d 1003, 1004 (5th Cir. 1967). Not every "ministerial mistake" will reach the level of due process violation. Green, supra, 732 F.2d at 1399. Rather, there must be " 'action so affirmatively wrong or inaction so grossly negligent that it would be unequivocally inconsistent with "fundamental principles of liberty and justice" to require a legal sentence to be served in the aftermath of such action or inaction.’" Johnson v. Williford, 682 F.2d 868, 873 (9th Cir. 1982) (citing Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973)).
On the facts below, the government’s conduct would be more properly characterized as a ministerial mistake rather than as affirmatively wrong action or grossly negligent inaction. As the trial court noted, "the clerical employee who prepared the [appellant’s parole] application and the [Parole Board’s] order simply made a mistake," and mistook the two and one-third year period of detention as a condition of probation for the sentence of imprisonment. Atuatasi v. Moaali'itele, CA No. 55-88, Opinion and Order on Motion for Reconsideration, at 5, 8 A.S.R. 53, 58 (1988). Comparison with the facts of Johnson and Green is instructive. In Johnson, defendant was sentenced under a statute which allowed no parole. The government nevertheless reviewed the defendant’s eligibility for parole on eight *75separate occasions at various levels of the parole bureaucracy, each time setting a presumptive parole date. Johnson, supra. 682 F.2d at 870. Thus the government’s action in releasing him truly reached the level of gross negligence. By contrast, in Green, the prisoner was serving concurrent federal and state prison terms in a state prison. When he became eligible for parole on the state charge, a state official inquired of the United States Marshal’s office whether a "hold" should be placed on him. Green, supra, 732 F.2d at 1398. Because of "inadvertence of a marshal . . . [which] amounts to mere negligence at worst" the detainer was never placed and Green was paroled. Id. at 1399. Clearly, the facts of this case before us seem more similar to those of Green than the facts in Johnson.
The courts have also looked to the degree of a former prisoner’s reintegration into society and how much reimprisonment would disrupt that reintegration in determining whether fundamental principles of liberty and justice would be violated by reincarceration. United States v. Merritt, 478 F.Supp. 804, 808 (D.D.C. 1979). See also Johnson, supra, 682 F.2d at 873 n.3. In Merritt, a parolee from a state prison had been released for almost three years before being arrested on a federal charge whose term was supposed to have run following the state term. During those three years, he had married, had one child and adopted another, become part owner of construction company, and been an active member of both his local church and a prison ministry. Merritt, supra 478 F.Supp. at 806, 808. By contrast appellant here had been released for but twenty eight days before being arrested.1 True, he had apparently returned to his family and was staying with them. But nothing in the record indicates that he had made such a readjustment to society that removing him from it *76now would contravene fundamental principles of liberty and justice.
The second aspect of appellant’s argument is that, having once released him, the government is now estopped from denying his initial eligibility for parole. This contention requires appellant to first demonstrate that his case comes within the traditional elements of estoppel and then surmount the additional burdens placed upon one who seeks estoppel against the government.
The Ninth Circuit has articulated a four part test for estoppel:
1) The party to be estopped must know the facts;
2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended;
3) the latter must be ignorant of the facts; and
4) he must rely on the former’s conduct to his injury.
Johnson, supra, 682 F.2d at 872 (quoting United States v. Georgia-Pacific Co., 421 F.2d 92, 96 (9th Cir. 1970)).
Here, assuming appellant could satisfy the first three conditions of estoppel, his action would fail on the fourth. Atuatasi can demonstrate no injury sufficient to raise an estoppel. The parolee in Johnson had, in the fifteen months of his inadvertent release, begun a business, hired several employees, and returned fully to life with his wife and two children. Johnson, supra. Having been released for a period of less than one month, appellant has not shown any injury of the degree demonstrated in Johnson.
Even if Atuatasi had been able to make out a case for equitable estoppel generally, his task would not be complete. He would still have to show that this is an appropriate case for estopping the government.
When it acts in a sovereign capacity, the government is generally not subject to being estopped. Johnson, supra, 682 F.2d at 871. However estoppel may be applied against the *77government if two conditions are met. "[T]he government’s wrongful conduct must threaten 'to work a serious injustice’ and the public’s interest must not 'be unduly damaged by the imposition of estoppel.’" Id. (quoting United States v. Lazy FC Ranch, 481 F.2d 985, 989 (9th Cir. 1973)). As we explained above, there is no evidence that a "serious injustice" will be occasioned by reincarcerating appellant. Moreover, we cannot say that the public’s interest would remain unharmed if Atuatasi were set free. After all, he was sentenced to detention as a condition of probation precisely because the trial court determined that he posed too great a danger to the community if he were eligible for work release or similar early release programs. On the other hand, the Parole Board’s decision to release appellant after nine months cannot be taken as an indication that that danger had dissipated. Not only was it had without jurisdiction, it reflected a certain degree of carelessness which prompted other agencies of the executive branch to affirmatively seek appellant’s reconfinement. Moreover, although the time that Atuatasi spent outside the Correctional Facility was concededly without any incidents of violence, it was too brief to allow us to say that the public interest would not be "’unduly damaged’" by his release.
Applicability of the Parole Statute
In arguing that the sentencing court’s "reliance" upon A.S.C.A. § 46.2206 was "erroneous and therefore illegal," appellant first contends that the trial court should have sentenced him to a "straight sentence" rather than suspending his sentence and putting him on probation on the condition that he serve two years and 121 days in prison. Appellant feels that the court by invoking the probation alternative, as opposed to straight sentencing, had achieved the effect of "cutting-off the early release [of appellant] on parole." Appellant’s Brief, at 11.
This claim is clearly erroneous. Section 44.2206 provides that when probation is granted, the court may designate "detention in an appropriate institution." For felonies, the period of detention may not exceed "one third of the maximum prescribed term of imprisonment for the crime of which the defendant has been convicted." A.S.C.A. § 46.2206(2). Since appellant would have *78had to serve one-third of his seven-year sentence before becoming eligible for parole, A.S.C.A. § 46.2304(a)(1), he would have had to serve that two years and 121 days under a straight sentence anyway.
Secondly, appellant argues that the sentencing court had resorted improperly to the use of section 44.2206 and imposition thereby of detention. Appellant points to the provisions of section 46.2203 dealing with probation eligibility requirements. The argument appears to be that this enactment regards probation as a "rehabilitative" measure to be imposed only in those cases where the court has determined that institutional confinement is unnecessary and the defendant is not a danger to society. Appellant reasons that as the court had found him a suitable probation candidate, the imposition of an extended term of detention was "retributive" punishment and therefore inconsistent with rehabilitative treatment.
It is to be noted that the validity of section 44.2206 is not challenged by appellant. It is also noted that appellant’s submission is made without citing any authority; it entirely ignores the history of this enactment as detailed by the court below. Additionally, the submission is premised on the faulty assumption of fact that appellant is no longer considered a danger to society nor an appropriate case for institutional confinement. The evidence below clearly indicated the contrary. That the appellant was a danger to society was precisely the sentiment of the sentencing court. Hence the reason for that court’s imposition of probation pursuant to section 46.2206(2) with the maximum allowable period of detention imposed without any possibility for earlier release unless the court approved.
Notwithstanding the apparent textual ambiguity, or conflict, between the provisions of section 46.2203 and the 1987 amended section 46.2206(2), it seems clear from the latter enactment’s history that the Fono has deliberately extended the probationary detention sentencing option beyond the traditional "shock value" function of detention. The amendment of 1987 now permits significantly more extensive supervision by the court regarding the conditions of detention of prisoners. Whereas pre-amendment times limited conditional probation detention to a period not *79exceeding 1 year, the court in appropriate cases may now impose, as a condition of probation, a detention period of up to 15 years. The change, as noted by the court below, is dramatic and we agree that it has therefore given the probation statute an entirely different purpose. The conflict between the provisions referred to above was correctly addressed below. That is, the 1987 amendment --- section 46.2206(2) --- is a specific and later enactment to that embodying section 46.2203. The cardinal rules of construction are that the general gives way to the specific and that the earlier is implicitly amended pro tanto by the latter where an obvious conflict is apparent. This is not to say that in the appropriate case the sentencing court may no longer utilize the probation option in the manner originally envisaged with the section 46.2203 recitals. On the contrary, the recitals are no longer deemed as factual assumptions of general application in every probation matter. There will be occasions where a defendant is not considered a danger to society nor appropriate for imprisonment except for shock value detention. There is now, in addition, a probationary purpose available for exactly the opposite reasons.
For the reasons given above, we affirm.
. We have serious doubts whether a release of such short duration could ever lead to a successful due process challenge to reincarceration. However, we need not decide that question today. ”[E]ach case in this area of the law must be decided on its own facts," Merritt, supra. 478 F.Supp. at 808 n.14, and on these facts appellant has shown no basis for relief. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485724/ | Opinion and Order:
Plaintiff contracted to build a roof for a small structure housing a generator belonging to defendant. The contract price was $5495.00, about half the amount of the next lowest bid received by defendant.
The contract specified that all lumber should be "pressure treated." It is clear that both parties understood this term to be a material element in the contract: the evidence establishes a universal practice in the local construction industry to use only lumber that is pressure treated, since no other lumber lasts very long when exposed to weather conditions in American Samoa. It was also proved at trial (1) that there is a *81well recognized industry standard defining pressure treatment; (2) that plaintiff knew of this standard; (3) that plaintiff used wood that did not meet the industry standard; and (4) that plaintiff used this wood knowing it did not meet the industry standard.
Exactly what lumber the plaintiff did use is less clear. The preponderance of the evidence, however, is to the effect that plaintiff purchased some untreated wood that had become available after being fraudulently or mistakenly imported by another contractor. Although this lumber was thinly coated with a substance similar to that used for pressure treatment, it fell far short of the industry standard and was rejected by its intended recipient. The untreated lumber was then consigned to Lumana'i Development Corporation, which advertised it for sale at a discount. It was specifically advertised as untreated lumber. The manager of Lumana'i testified that plaintiff purchased a quantity of this untreated lumber at about the time he was beginning work on defendant’s roof.
The roof was more or less completed by March of 1987. Defendant’s architect inspected it and reported to defendant on April 1, 1987, a list of nineteen ways in which the architect believed the work did not comply with the specifications. One item on the list was that "[i]t appears that untreated lumber was used rather than pressure treated as specified." (We infer that this was because the lumber, which had not then been thoroughly painted, did not bear the surface markings that indicate it had been pressure treated. Tests later performed on the wood confirmed that it had not been pressure treated to the industry standard. The results were more consistent with surface brushing or spraying of a chemical formula, such as had been done to the lumber plaintiff purchased from Lumana'i.)
Plaintiff attempted to correct most of his errors, and on July 1, 1987, the architect reported that no further corrections should be required if (1) the welds affixing certain plates to steel columns were cleaned, primed, and repainted, and (2) "the receipts for the treated lumber [were] received."
*82Later in July plaintiff sent defendant a bill for the contract price. He also sent copies of invoices evidencing his earlier purchase from a company in the United States of pressure treated lumber in an amount sufficient to have built the roof. One of these invoices was shown at trial to have been altered after plaintiff received it and before it was sent to defendant. The effect of the alteration (changing an invoice date from "8/25/86" to "11/25/86") was to make it seem more likely that the lumber had been used on defendant’s roof rather than on some other job. When confronted at trial with proof of this alteration, plaintiff at first testified that he did not know who had done it. Later he testified that his wife (who keeps the books for the construction company) had done it, probably in order to get defendant to pay for the roof.
Defendant did not respond to plaintiff’s demand. In September plaintiff’s attorney wrote to demand payment of the contract price. The attorney then called defendant’s manager, who alluded to a need for proof that the lumber used on the roof was pressure treated. Defendant’s manager promised to send a letter detailing this concern. After receiving another letter from the attorney, defendant’s manager wrote on October 22, 1987, that "[a]s far as we are concerned, Don Hardy of Hardy Construction has still not supplied us with proof that the lumber used on the generator shed roof was pressure treated." He also alluded to some items that had been stolen from the premises during the time plaintiff had been doing the work.
On December 17, 1987, plaintiff’s attorney sent defendant’s manager a copy of letters from the company from which plaintiff had purchased pressure treated lumber during 1986 and 1987. The letters confirmed that the lumber purchased by plaintiff on those occasions had indeed been pressure treated. It did not, of course, establish that the pressure treated lumber in question had been used on defendant’s roof.
Sometime during the latter part of 1987 plaintiff also approached the manager of Lumana'i Development Corporation to ask whether the lumber he had bought from Lumana'i had been pressure treated and whether he could get a certificate indicating that it was treated. The manager told *83him it had not been pressure treated and that he could not provide a certificate saying it was.
At trial plaintiff continued to maintain that he had used only the pressure treated lumber purchased from the United States, not the untreated lumber from Lumana'i, on defendant’s roof. This assertion is inconsistent with the inspecting architect’s report that the lumber did not look like pressure treated lumber; with the test results showing that five randomly bored samples of the wood were not pressure treated; with the alteration by plaintiff or his wife/bookkeeper of the date on one of the invoices for the pressure treated wood plaintiff did purchase; with plaintiff’s presentation of the altered invoice to defendant (and later to the Court) as evidence that he had used pressure treated wood on the roof; and with plaintiff’s unsuccessful attempt to procure a certificate of pressure treatment for the untreated Lumana'i wood.
Had plaintiff simply admitted that he had used nonconforming materials, the Court would have been faced with the question whether the lack of conformity was so serious as to bar not only recovery on the contract but also a quantum meruit recovery for the benefit conferred on plaintiff. The roof appears to be suitable for its intended purpose except that it will not last nearly as long as a roof built with pressure treated wood. Especially in light of the far higher bids by other contractors (who probably calculated their bids based on the cost of doing the job right) the evidence would point to the conclusion that defendant has received at least a $3000 roof.
An equitable remedy such as quantum meruit, however, cannot be claimed by a plaintiff with unclean hands. The circumstances of this case would certainly sustain an indictment for forgery. A business entity is chargeable with the acts and intentions of the agents --- in this case either plaintiff himself or his wife --- who conducted the transaction on which it bases its claim. See Development Bank v. Ilalio, 5 A.S.R.2d 110, 124 (1987).
A contracting party who materially and fraudulently alters a writing which the law prescribes either as sufficient or as necessary evidence of the contract --- that is, a writing *84which would either constitute an "integrated agreement" for the purpose of the parol evidence rule or which would satisfy the Statute of Frauds with relation to the contract --- automatically loses whatever rights he had under the contract. See Restatement (Second) of Contracts § 286 (1981). This is true even if he has conferred a benefit on the other party. See id., Comment a. In this case the alteration was not of the contract document itself but of a collateral document that was crucial to plaintiff’s attempt to recover under the contract. The principle --- that a party who has not fulfilled his obligations under a contract, and who might be tempted to tamper with the evidence so as to prevent a court from discerning this, should be afforded a powerful disincentive --- is the same.2
The forgery in this case, and plaintiff’s proffer of the forged document as evidence to support his claim, seem to fall just outside the rule under which any recovery would be absolutely barred; but they surely must inform the Court’s discretion to grant or withhold an equitable remedy.
Defendant seeks not only the denial of any recovery to plaintiff but also an award of exemplary and punitive damages, attorney fees, and costs. The contract does authorize an award of attorney fees. The benefit already conferred on defendant, however, a free roof not conforming to the specifications of the contract but serviceable for the foreseeable future, more than compensates it for the expenses of this proceeding. The complaint and the counterclaim are therefore dismissed.
It is so ordered.
Cf. Deuteronomy 27:14, 17 ("And the Levites shall declare to all the men of Israel in a loud voice: .... 'Cursed be he who removes his neighbor’s landmark.’ And all the people shall say, 'Amen.’") | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485725/ | On Motion for Summary Judgment:
Intervenors "Aiga Aitulagi" move for summary judgment in LT No. 12-87, the registration of land called Aoloaufou. They point out that the survey of Aoloaufou appears to have been made in 1972 but that the land was not offered for registration until 1986.
In Muagututia v. Savea, 4 A.S.R. 483 (1964), the Court construed the land registration statutes to be inconsistent with the filing of a survey for registration 17 years after the required notice that a survey would be undertaken. The basis for the Court’s construction was presumably that the requirement of notice prior to a survey is intended to let competing claimants know that the survey will soon be offered for registration. A delay of seventeen years may therefore defeat the purpose of the notice requirement.
In this case the pulenu'u of the village of Aoloau has certified that in December of 1985 he gave public oral notice in a village meeting “of the time and place of intended survey in order other interested land owners might have an opportunity to be present thereat." The most straightforward reading of this statement is that at some time in December 1985 or shortly thereafter the survey originally done in 1972 was retraced so that interested land owners could see whether it encroached on their claims. If so, the case before us is quite different from Muagututia. If not --- if the survey was made in 1972 and was not retraced in the field pursuant to the announcement in December 1985 --- then the survey would appear inconsistent with the land registration statutes unless plaintiffs can prove that the required notice was given prior to the survey in 1972. See A.S.C.A. § 37.0102(c).
Assuming that the survey was made in 1972 and not retraced in .1985, and that the required notice was given in 1972, we are faced with a situation similar to that presented in the Muagututia case. *87We believe the question whether a lapse of time between the required notice and the offer of registration prevented a party from receiving fair notice is a question of fact to be resolved on a case-by-case basis. The land registration statute itself contains no time limit. In Muaeututia the Court appears to have gone on to consider the merits of the case (i.e., who really owned the land) despite its preliminary statement that seventeen years was too long to wait before offering the survey for registration. In the case now before us, the intervenors have in fact received notice of the registration. The real danger is that at some future time a claimant who did not receive notice will argue that the result in this case does not bind him. Since the registration of Aoloaufou has already been challenged by the principal chiefs or village councils of every surrounding village, all acting on behalf of their respective villages, this appears unlikely.3
The motion for summary judgment is therefore denied.
Defendant also objects to the standing of the intervenors on the ground that "the rights of Aitulagi and A.U. Fuimaono and the Village Council of Aoloau over the land in question have already been decided in Tuilefano v. Government of American Samoa, 4 A.S.R. 594 [(1964)]." This appears to be an objection to the merits of intervenors’ claim rather than to the issue presented by this motion. If defendant wishes to raise this issue before trial it should be raised by a separate motion for summary judgment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485726/ | On Motion for Summary Judgment:
Fatu Utu, plaintiffs’ decedent, was a passenger on an "aiga" bus owned by defendant Tua *90Falemanu and insured by defendant National Pacific Insurance Co. On August 26, 1983, that bus was involved in a collision with a school bus driven by defendant Ioramo Tagaloa and owned by defendant American Samoa Government [A.S.G.]. Plaintiffs allege that an altercation between the drivers and passengers on the two buses led to their decedent’s death. They further allege that defendants’ negligent or intentional conduct caused Utu’s death and seek to hold the defendants liable for loss of his comfort and support.
Each of the defendants has moved for summary judgment under T.C.R.C.P. Rule 56.1 Under the rigorous standards of that rule, we are to grant judgment only if the pleadings and supporting papers demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Defendant A.S.G. has moved for summary judgment against all three plaintiffs. For the reasons set out below, this motion will be granted *91as to decedent’s wife, Fogaolo Utu,2 but denied as to his children, Faatasiga Utu and Uigaese Utu.
The government contends that Fogaolo Utu’s claim is time barred. We agree. The applicable statute of limitations provides that a "tort claim against the government shall be forever barred unless an action on it is begun within 2 years after the claim accrues." A.S.C.A. § 43.1204. The time at which a claim "accrues" would generally be a question of fact related to when a party discovered or should have discovered the harm sought to be redressed. Here there can be no question that plaintiff Fogaolo discovered her claim against the A.S.G. at least by August 14, 1984, because that is the date on which an administrative claim against the government was filed. The plaintiff did not name the A.S.G. as a party defendant until she filed an amended complaint on April 30, 1987. Nor has plaintiff demonstrated that the amended complaint ought to relate back to the filing of the original complaint. Thus, the two year limitations period had run and summary judgment will be granted against Fogaolo’s claim.
*92However, the statute of limitations has not run on either of the two children. Because different issues are raised, each child will be discussed separately.
Uigaese Utu is presently a minor. Our statutes provide that minors shall have one year "after the termination of [their] disability within which to commence any action regardless of any otherwise applicable limitation period." A.S.C.A. § 43.0126. We have recently held that when a minor sues the government the period set out in this statute prevails over the general period of limitations set out in A.S.C.A. § 43.1204 for tort claims against the government. Lutu v. American Samoa Government, 7 A.S.R.2d 61 (1988). In Lutu we reserved the question whether the limitation period begins to run upon the appointment of a guardian ad litem. In this case Uigaese has not yet reached his eighteenth birthday and the amended complaint was filed the day after the appointment of a guardian ad litem to sue in his name. Thus, whichever event commences the running of the statutory period, Uigaese has timely filed his suit.
Faatasiga Utu turned 18 on September 19, 1986. Because no guardian had been appointed during her minority, the limitations period commenced on that day. The amended complaint having been filed on April 30, 1987, her suit clearly falls within the one year period set forth in § 43.0126.
The government also argues that the plaintiff children have failed to exhaust their administrative remedies. The Government Tort Liability Act [G.T.L.A.] requires a plaintiff to file an administrative claim with the Attorney General’s office prior to suing the government in court. A.S.C.A. § 43.1205(a). However, the claim filed on August 14, 1984 adequately notified the government of the nature of the children’s claims. While it is true that the initial paragraph of that letter refers only to the widow Fogaolo Utu, the letter does go on to speak of the fact that decedent’s "family suffered damages" (emphasis added). Given the informal nature of the proceedings described in § 43.1205, we think this notice adequate to exhaust administrative remedies.
*93The A.S.G. has set out additional grounds for summary judgment that we need not consider at great length. Liability under the G.T.L.A., depends upon a finding that the employee acted within the scope of his employment. The defendant bus driver’s supervisor has submitted an affidavit stating that any use of the bus aside from transporting children to and from school was unauthorized and thus outside the Scope of his employment. Affidavit of Luteru Fiso, Utu v. National Pacific Insurance Co., CA No. 99-85, at 2 (April 29, 1988). Leaving aside the question whether all unauthorized acts are necessarily outside the scope of one’s employment,3 we hold that plaintiff’s assertion that the passengers on the school bus were government employees who had been working on the bus creates a factual issue on the scope of employment and precludes summary judgment on this issue. Response to Defendants’ Summary Judgment or Dismissal, Utu v. National Pacific Insurance Co., CA No. 99-85, at 4 (May 27, 1988).4
*94The government further maintains that it is entitled to summary judgment because the G.T.L.A. has not waived sovereign immunity for "any claim arising out of assault [or] battery." A.S.C.A. i 43.1203 (b) (5). But the gravamen of plaintiffs’ complaint is not that defendant Ioramo Tagaloa committed an assault or battery on decedent, but that as a result of the government employee’s negligence Utu was killed. We do not read the "arising out of" language of the section so broadly as to preclude government liability for its employee’s alleged negligence, merely because a consequence of that negligence was the intentional act of another person.
Finally, the government argues that as a matter of law plaintiffs cannot establish that an act or omission of Tagaloa was the proximate cause of decedent’s demise. We initially note that, even where there are undisputed facts, because negligence actions revolve around the reasonableness of a party’s conduct, they "'cannot ordinarily be disposed of by summary judgment.’" King v. Avtech Aviation, Inc., 655 F.2d 77 (5th Cir. 1981) quoting Gross v. Southern R.R., 414 F.2d 292, 296 (5th Cir. 1969). The A.S.G. bases its argument on the following assertions: that the school bus driver did not participate in the fight which followed the accident and left the scene immediately in order to call the police, and that Utu was slain while the bus driver was gone. Affidavit of Ioramo Tagaloa, Utu v. National Pacific Insurance Co., CA No. 99-85, at 1-2 (April 22, 1988). However, plaintiff counters with the assertion that Tagaloa knew or should have known of the belligerent nature of his passengers, which had apparently been fueled by alcohol, and should never have left the scene but should have stayed nearby in order to ensure the safety of the passengers on the aiga bus. Response to Defendants’ Summary Judgment or Dismissal, supra. at 4. We agree with plaintiffs that the facts are susceptible of such an interpretation of what would constitute reasonable behavior.
Because defendant Tagaloa’s own motion for summary judgment is grounded on the very same *95affidavit and analysis rejected in the immediately preceding paragraph, it too must be denied.
Finally, defendant Tua Falemanu moves for summary judgment on the ground that any injury to Utu did not occur as a result of any breach of duty for which he ought be held responsible.5 He contends that Utu’s injuries were caused solely by the criminal acts of others. However, we find that a genuine issue of material fact exists about the actions of Falemanu’s employee, the driver of the aiga bus. First, we find merit with plaintiff’s contention that a factual issue exists as to whether the bus driver attempted to flee the scene and abandon his passengers, thus breaching a potential duty of protection owed them. See Partial Transcript of Trial Proceedings, Testimony of Enesi Ioramo, American Samoa Government v. Mulifai, CR No. 72-83, at 10 (January 6, 1984). Moreover, there is some evidence to suggest that Falemanu’s employee contributed to the fracas by goading the passengers of the school bus on. According to the testimony of one of the assailants, the aiga bus driver said after exiting his vehicle: "Hey pretty soon somebody is going to get hurt." Id. at 9. Even if this is not viewed as instigation, it bespeaks a consciousness of the potential danger in the situation--knowledge which defendant now disclaims by stating he had no reason to foresee criminal acts by the passengers of the school bus.
For the reasons set out above, we grant in part the motion of the A.S.G. and deny the motions of the three other defendants.
It is so ordered.
. The motions were taken under advisement after a hearing on May 11, 1988. Unfortunately, the file in this action was not then sent to the judge’s office for consideration of the motions, but was instead retained by the Clerk’s office where it remained until late November when an attorney inquired concerning the status of the case. The Court apologizes to the parties and counsel for this delay.
The government has questioned whether Fogaolo Utu remained a party to the suit after an amended complaint omitted her name from the case caption and failed to mention her in its body. Memorandum in Support of Motion for Summary Judgment, or for Dismissal, Utu v. National Pacific Insurance Co., CA No. 99-85, at 3 (April 29, 1988). Plaintiffs counter that the amended complaint did not supersede the original complaint and thus Fogaolo Utu remains a party. This contention is simply incorrect. An amended complaint does not merely supplement its predecessor. Rather, it replaces it. However, because the original complaint gave notice to defendants that the claims of Fogaolo Utu would be at issue in this proceeding, we would entertain a second motion to amend the complaint in order to include her or her representative as a party. (We note that the record of a related proceeding indicates that Fogaolo Utu has died. Petition for Appointment of Guardian Ad Litem, In re Uigaese Utu, PR No. 7-87 (April 27, 1987). Substitution of her estate in her place would thus seem to be in order.)
After all, no employee would be "authorized" to act negligently, yet clearly an act of negligence may be "within the scope" of one’s employment.
We note that plaintiff’s attorney set forth this assertion in the "Response to Defendants’ Summary Judgment or Dismissal." T.C.R.C.P. 56(e) provides specifically that once a party has moved for summary judgment based on affidavits, depositions, or answers to interrogatories, the non-movant may not merely rest on the allegations in his pleadings but must in turn set forth by affidavit, deposition, or answers to interrogatories specific facts based on personal knowledge that show that there is a genuine issue for trial. This rule has not always been enforced in the past. In this case we need not decide whether to enforce it, since we take judicial notice of the record in American Samoa Government v. Mulifai, CR No. 72-83, which contains some evidence for the assertions made by plaintiff’s counsel. However, the Bar of American Samoa is advised that henceforth a party opposing another’s motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal *94knowledge of the facts.
Because defendant National Pacific Insurance Co. has not advanced any grounds for relieving it of liability other than those advanced by Falemanu, the disposition of Falemanu’s motion for summary judgment will necessarily apply to the Insurance Company as well. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485731/ | This case concerns land called Ili'ili and Tuilemuia in the village of Pago Pago.
*120I. The Seva'aetasi Claim
The case began as a dispute between Robert S. Tago Seva'aetasi and members of the Fanene family. Tago and/or the Seva'aetasi family are the undisputed owners of a 2.5 acre tract called Ili'ili, registered in 1907 by Alex Forsythe and conveyed to . Tago as agent for the Seva'aetasi family in 1951. In an action by the government for condemnation of land in the area in order to build a road, the Seva'aetasi family was also held to be the owner of land extending to the west of this tract. Government of American Samoa v. Leota, No. 248-1964. Since at least 1974 Tago Seva'aetasi has been disputing with members of the Fanene family the ownership of land immediately adjacent to the tracts taken by the government. See Fanene v. Tago, LT No. 1417-74. In 1985 Tago brought an action to enjoin construction in an area near the Seva'aetasi part of the government road. Both Tago and Fanene then made surveys of the land they claim in the area. They offered these surveys for registration and various neighboring landowners objected, giving rise to two more court cases. Finally, Epi Ua Ta'ita'i offered for registration a small parcel of land also contained within the Seva'aetasi survey. Tago Seva'aetasi objected and this case, too, came to the Court. We consolidated the four actions.
The objectors to the Seva'aetasi survey lay great stress on the fact that Seva'aetasi is not a matai name recognized by the Pago Pago village council. Since Seva'aetasi is not a matai of Pago Pago, they argue, the Seva'aetasi family cannot own communal land in Pago Pago. Tago’s response to this was to produce evidence that the then holder of the Seva'aetasi title registered himself as a matai in Pago Pago in 1912.
When asked why the title was not recognized by the village council, Tago responded that he had wished not to discuss this matter but that since the Court had brought it up he had no choice. This is a fairly frequent response to questions about the history of matai titles. Often, as in this case, it precedes a lengthy discussion of how the witness’s ancestors came from Western Samoa to Tutuila and conquered or ruled the local people.
*121Tago’s version of Pago Pago history, severely condensed by the Court, is that a chief named Te'o Seva'aetasi came from Upolu perhaps 200 years ago. He was the progenitor of both the Te'o and Seva'aetasi titles in Tutuila. He sojourned for a while in the Western District, then came to Pago Pago where he divided up the land therein. The clear implication is that the exclusion of the Seva'aetasi title (which was registered by Tago’s father but has been vacant for many years) from the Pago Pago village council is impudence of the first order.
Other families take strong issue with this testimony, particularly with Tago’s statement that when Te'o Seva'aetasi came to Pago Pago there was no chief called Mauga.
Fortunately, the Court does not need to decide this historical question, for Tago’s claim in this case does not stand or fall on whether he should be regarded as a matai in the village of Pago Pago. Before the coming of the United States government the structure of Samoan society was such that families of one village did not acquire land in other villages by original occupation. Even in those days, however, there are reported instances of acquisition of such land by gift. Today anyone with at least fifty per cent Samoan blood can acquire land in any village --- not just the village in which his family or matai title resides --- by gift or purchase. Moreover, since the coming of the government it has often happened that people of one village move to unoccupied land near another village and begin to cultivate it. In most cases these people later claim the land as their individual land, but there is no legal impediment to their claiming it on behalf of a communal family. A person who buys or is given a tract of land, or who acquires it by original occupation and cultivation, has the option of doing so on his own individual account or on behalf of his family.
It was proven at trial that Tago and other members of the Seva'aetasi family have occupied the 2.5 acre tract called Ili'ili even earlier than their formal acquisition of it from their cousin Mary Howden in 1951. During this period they were also cultivating land to the west of the 2.5 acre tract, of which we have no convincing evidence of prior occupation by anyone else. The weight of the testimony is to the effect that Tago’s sister *122Sifusi lived for many years in a house just downhill from a mango tree which was to the west of the 2.5 acre tract. Moreover, the Court’s recognition of Tago’s claim to the land taken for the government road for some distance to the west, while it does not have the effect of res .judicata with regard to ownership of surrounding land, does bolster the trial testimony of Tago about his family’s cultivations in the area, and of numerous witnesses about the presence of Sifusi.
We therefore hold that the Seva'aetasi family owns the land to the west of its 2.5 acre tract, south of the government road, north of the Epi Ua Ta'ita'i survey, and east of the Fanene survey. The Seva'aetasi family also owns a small piece of the land included in the Fanene survey just south of the government road, more particularly described hereinafter.
II. The Epi and Ua Ta'ita'i Claim
In 1947 Epi, a niece of Tago Seva'aetasi who had been living with him on Ili'ili, married a man named Ua Ta'ita'i. They built a house on land to the west of the 2.5 acre Seva'aetasi tract and to the south of the Fanene survey. Tago testified that he gave Epi .and Ua permission to occupy this land and that they did so as members of the Seva'aetasi family. The weight of the evidence, however, is that they purchased it from a minister of religion named Feleti who was of the Fuga family and who had been occupying it before 1947.
Epi’s sister Nu'ulau Vaesa'u, who has lived on this land for many years, testified that she and Epi never rendered tautua to Tago on account of their occupation of the land. She testified that they participated in family affairs only in ways that were appropriate irrespective of whether they occupied family land. Epi also submitted credible documentary evidence of her contract with Feleti and of her payments to him. Reputation in the community also upholds the Ta'ita'i claim: when asked to name their neighbors the witnesses for other parties invariably identified this tract as that of Epi and Ua, whereas other members of the Seva'aetasi family were generally identified as relatives of Tago rather than as separate landholders. No one but Tago believed Epi and Ua were occupying their land on his behalf.
*123III. The Fanene and Asuega Claims
Various members of the Fanene family have long cultivated land to the north of the Epi and Ua Ta'ita'i tract. (Fanene also appears to own land further up the mountain, as well as land to the east in the vicinity of the L.M.S. church. These lands, like other lands in the vicinity owned by Seva'aetasi and Asuega, are not at issue in this case.) The Fanene family filed a claim to the land in question in 1964, and filed the aforementioned injunctive action in 1974.
In the present action the area claimed by Fanene is also claimed by Asuega. She points out that all the Fanene family members who have occupied the land over the years are also blood members of her own family. Moreover, in a post-trial affidavit Asuega identifies two people who she says once occupied the land and who she says were members of the Asuega family but not of the Fanene family.
The weight of the evidence, however, is that the land in question is Fanene land. Oti Fanene, whom most witnesses for other parties remember as the most visible member of either family on the land during the last thirty years or so, is descended from both Asuega and Fanene but thinks of himself as occupying the land as a Fanene. Witnesses for other parties invariably identified the people in this area as "Fanene people." Only Asuega herself identified the two non-Fanene family members as occupying the area in question; even these two could have been on the land because of their connection to others who did have Fanene blood.
The failure of the then Asuega title holder to file a claim to the land in question when the government condemned the land for the road in 1964 is hardly consistent with a long family tradition that this was Asuega land. Indeed, the present Asuega testified that she herself --- a member of both the Fanene and Asuega families who then held neither title --- had urged Fanene to file his claim but made no such suggestion to Asuega.
We conclude that the Fanene family may register the land within the Fanene survey, with *124the exception of the part just south of the government road that extends to the east of the main part of the survey; and with the further exception of the area north and west of the bend in the government road, part of which Fanene has conceded to Gi. We further conclude that the Fanene family owns the following areas outside the Fanene survey: a strip to the south of their survey and north of the Epi and Ua Ta'ita'i survey; and a small area north of 'the government road, east of the Fanene survey, and west of the 2.5 acre Seva'aetasi tract.
We express no opinion about the relationship between the two Fanene titleholders in Pago Pago, particularly about whether Fanene Fetaiaiga has pule over this land to the exclusion of the other Fanene titleholder.
We conclude that the Asuega family owns no land within the area at issue in this case.
IV. The Gi Claim
Gi objected to the part of the Fanene survey that is north and west of the government road. At trial both Gi and Fanene told the Court that they intend to compromise their claims and do not wish the Court to make a judgment thereon. Accordingly, we state no opinion with respect to that part of the Fanene survey north of the northernmost line of the Seva'aetasi and Asuega claims and north and west of the government road.
V. The Te'o Claim
Uiva Te'o was granted leave to intervene on behalf of the Te'o family, although the Court noted that no objection was filed to any of the surveys within the required sixty days. If Te'o had stated a meritorious claim, we would have been faced with the question whether the failure of any member of the Te'o family to object within the statutory period precluded the Court from recognizing this claim.
The gist of the Te'o claim is that all the chiefs in the area owe service to Te'o and all the lands occupied by them are Te'o lands. The witness who testified on behalf of the Te'o claim said the first Te'o had come to Pago Pago hundreds or *125thousands of years ago and had helped to expel the Tongan invaders. He then told various chiefs where to put their houses and plant their crops within the liberated areas.
It is quite possible, however, for a chief to be recognized as having a certain authority over other chiefs and yet for these other chiefs to own their own land. In almost every village and county there is at least one chief who has ''political" pule over the whole village or district without having “proprietary" pule over the communal lands of other families. An excerpt from the testimony of a Te'o titleholder almost sixty years ago is instructive:
[The Court]: Do you claim that Leota is now living on land that you allowed him to live on?
[Te'o]: Yes.
Q: How long ago did Leota ask you if he might live there?
A: Many years ago.
Q: How old did you say that you were?
A: 51 years.
Q: Do you know how old Leota is?
A: Maybe 70 years.
Q: How old were you when you gave Leota permission to occupy this land?
A: I do not mean it was myself but the other holder of the name Teo.
Q: Would you have any objections to allowing Leota to register the land he lives on?
A: No.
Q. Did you yourself ever plant anything up there or reap the harvest?
*126A: No.
Q: And yet you have the pule of this land?
A: No.
Q: You said you gave Seva'aetasi and Leota permission to live there?
A: I mean this land originally was owned by Teo, and it was given to Leota and Seva'aetasi and Teo has no more right to it.
Transcript of Hearing held May 27, 1930, in Leota v. Seva'aetasi, No. 1-1929.
Assuming the accuracy of the historical account given by the Te'o witness at trial, we believe the status of this land to be similar to that under consideration in the Leota case. Even if one chief originally told other chiefs in a certain area where to settle and even if they still owe him some service on that account, land in Samoa and elsewhere has a way of eventually being considered the property of those who settled on it and cultivated it.
Conclusion
The Seva'aetasi family may register a tract bounded on the East by the 2.5 acre Seva'aetasi tract already registered as Ili'ili1; on the South by the Epi and Ua Ta'ita'i survey; on the West by a line beginning at the southeastern corner of the Fanene survey and extending to the point where the northern boundary of the Seva'aetasi and Asuega *127surveys meets the western edge of the land taken for the government road (at about the midpoint in the sharp bend in the road); and on the North by the southern edge of the land taken for the government road.
Epi Ta'ita'i and the Estate of Ua Ta'ita'i (or his heirs or successors, if the estate has been closed) may register the Epi and Ua Ta'ita'i survey.
The Fanene family may register two tracts, separated by a portion of the land taken for the government road. The first tract is defined on the South by the Epi and Ua Ta'ita'i survey; on the West by the stream defining the western edge of the Fanene survey; on the North by the northernmost line of the Seva'aetasi and Asuega surveys until it meets the land taken for the government road, at the midpoint of the sharp bend near the water tank; and on the East by a line extending from the point just defined (at the midpoint of the sharp bend) to the southeasternmost point of the Fanene survey, and beyond that point to the northern boundary of the Epi and Ua Ta'ita'i survey. The second tract is defined on the South by the northern edge of the land taken for the government road as it heads west toward the sharp bend near the water tank; on the Northwest by the southeastern edge of the land taken for the government road after it turns the bend and heads toward the water tank, as far as the northern boundary of the Fanene survey; and on the Northeast by the northern boundary of the Fanene survey from the southeastern edge of the land taken for the government road to the northeasternmost corner of the Fanene survey, and extending beyond that point to the intersection of the northern edge of the land taken for the government road with the western boundary of the 2.5 acre Seva'aetasi tract.
We express no opinion about the ownership of the land within the Fanene survey north of the northernmost boundary of the Seva'aetasi and Asuega surveys and west of the land taken for the government road.
We also express no opinion about the land within the Seva'aetasi survey north of the government road, except that the Fanene family proved its ownership of the small portion of this tract described above and that the Seva'aetasi family did not prove its ownership of any land *128north of the government road except that part contained in the 2.5 acre survey previously registered.
It is so ordered.
. The Court was greatly assisted in its assessment of the location of the various parties’ claims by a composite map prepared by Meko Aiumu and introduced into evidence as Tago Exhibit 10. The lines and points described in this section of our opinion are all depicted in Exhibit 10. The Court has also used Exhibit 10 as the starting point for a sketch depicting the land held in this opinion to be the property of the various parties. This sketch is available for inspection in the Clerk’s Office. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485732/ | The government has laid an information before the Court accusing the defendant of having committed the crime of assault in the first degree, a Class A felony, in violation of A.S.C.A. § 46.3520(a)(1). The defendant moves to quash the information and dismiss the criminal proceeding against him on the grounds that: he is a minor; and, that he has not been certified by the court to stand trial as an adult in violation of his rights to due process.
Government on the other hand, citing the Juvenile Justice Act of 1980, A.S.C.A. § 45.0115(c)(2)(A), asserts its statutory discretion to prosecute children over the age of fourteen years, who are accused of committing a "crime of violence."
DISCUSSION
We first look to applicable statute. Section 45.0115(c)(1) provides:
When a petition filed in court alleges a child 14 years of age or older to be a delinquent child ... by virtue of having committed an act which would constitute a felony if committed by an adult and if, after investigation and a hearing, the court finds it would be contrary to the best interests of the child or of the public to prosecute the child as a juvenile, it may enter an order certifying the child to be held for criminal proceedings as an adult.
(Emphasis added).
*130This enactment plainly leaves it to the "court" to make, in the first instance, the decision whether or not a child should be proceeded against as a juvenile or as an adult. The succeeding subparagraph further requires the court to conduct a hearing.
The statute, however, also provides a number of exceptions to this general requirement. See A.S.C.A. § 45.0115(c)(2). Subparagraph (2)(A) of the enactment provides in pertinent part:
A child may be charged with the commission of a felony . . . when the child is: A) alleged to have committed a crime of violence and is 14 years of age or older.
Thus the statute also attempts unequivocally to permit prosecutorial discretion --- to charge a child 14 years of age or older --- in certain contexts, including the situation where a crime of a violent nature is alleged.
Defendant’s Due Process Argument
The defense concedes that there is no underlying substantive constitutional or federal right to be tried as a juvenile in criminal matters.1 Rather, we find on the cases that where a right arises to be treated as a minor (and hence to a certification hearing), it invariably arises through statute. In terms of the territorial statute, we find an exception to the general requirement for certification proceedings in the context of criminal actions alleging the commission of "violent crimes" and in connection therewith, *131minor as a juvenile or an adult, the minor has no due process right to such a hearing. Id.
Territorial statute vesting discretion in attorney-general to proceed, against certain minors as adults was not constitutionally defective due to alleged inconsistency with general purpose of juvenile justice statute to accord special treatment to minors, since both the general rules of statutory construction and the specific language of another statutory provision indicated that the exception was deliberate and purposeful. A.S.C.A. §§ 45.0103(9)(B)(I), 45.0115(c)(2)(a). Id.
The Florida Supreme Court in Johnson v. State, 314 So. 2d 573 (Fla. 1975), rejected an argument to the effect that due process is denied by a statute which created an exception to the jurisdiction of the juvenile court over a minor charged with the commission of a crime punishable by death or life imprisonment. The court explained that a child who is accordingly being prosecuted as an adult is not deprived of due process because he has in effect the same substantive and procedural rights as any other person charged with a criminal offense. Id. at 577. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485733/ | On July 27, 1987, Jerry Langford flew from Tongatapu, Tonga to Honolulu, Hawaii on Hawaiian Airlines. One piece of baggage checked with the airline never arrived in Honolulu. The lost metal box contained both some personal effects of *3Langford’s and television equipment which is conceded by Langford to have belonged to his employer, the American Samoa Government. The District Court found that plaintiff Langford had suffered $80 in damages for lost clothing and awarded the American Samoa Government (hereinafter referred to as "A.S.G.") $1366.00 in damages for the lost equipment. Pursuant to A.S.C.A § 3.0309, Hawaiian appealed to the Trial Division of the High Court by way of trial de novo.
The most important issues as they developed at trial were: (1) whether plaintiff Langford was entitled to recover damages consequential in nature; and (2) the measure of such damages.
Our main problem with giving relief similar to the relief decreed in the court below is that the television equipment was simply not Langford’s and A.S.G. is not before the Court. The District Court characterized the A.S.G. as a "plaintiff" in its own right and awarded the A.S.G. the lion’s share of the damages. Findings of Fact, Conclusions of Law, and Order, American Samoa Government ex rel. Langford v. Hawaiian Airlines, CA No. 58-87 (District Court March 2, 1988). However, the complaint in that case does not indicate that A.S.G. was a plaintiff. Moreover, the complaint sets out the basis of the suit as the right of the Director of the Bureau of Consumer Protection to bring suit on behalf of individuals. See A.S.C.A. § 27.0402. As a non-party, the A.S.G. may not be allowed to recover directly.
It was tenuously suggested that Langford ought to be able to recover the full value of the lost case. His supervisor stated something on the order of: "If we do not recover during this trial, we will be looking to someone to reimburse us for the lost equipment." We doubt that that statement alone would suffice to show that Langford ‘will have suffered damages equal to the full value of the case. After all, no one has forced him to pay over the value of the lost equipment and it is doubtful that an independent suit by the A.S.G. could find Langford liable for the loss.
Langford, however, testified that he spent $395.00 of his own funds in Guam to replace one of the lost items, a battery pack, in order that he could do the filming which was the whole purpose of his travel to Guam. Langford now holds the battery *4pack, although it is of no personal use to him, in the hopes of reimbursement. Hawaiian has denied liability, while his employer, A.S.G., on the other hand chose not to entertain reimbursement expecting that Hawaiian should be responsible. We feel that in these circumstances Langford has been damaged to a greater degree than the $80.00 for lost personal effects --- he is out of pocket of $395.00 because his baggage did not arrive with him in Guam.
Hawaiian defended Langford’s claim on the basis that its contract had disclaimed liability for "valuable items including but not limited to . . . electronic equipment . . . [and] photographic, video and optical equipment" and that the television components here fell within this exclusion of liability. Rule 26 (B) (2), Terms of Contract of Carriage, at 49 (April 9, 1987).
Discussion
There is no real question that the Warsaw Convention1 is applicable to this case. The Convention applies to "international transportation." Warsaw Convention, art. 1(2). Here, Langford traveled between two countries which have signed the Convention --- Tonga and the United States. Thus, whether Langford’s expenditure of $395.00 is compensable depends on the construction of the Convention.
The Convention provides that "[t]he carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage." Warsaw Convention, art. 18(1).2 *5Courts interpreting this provision and the analogous clause creating liability for personal injury or death have reached two different results.3 Some courts have said that the clause does not itself create a cause of action. So, the definition of what is "damage" compensable under article 18 would be left up to the internal law of the court hearing the suit. See, e.g., Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied 355 U.S. 907 (1957). More recently, some federal circuit courts have reversed their previous opinions and have construed the language of the clause to create a cause of action, see, e.g., In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400, 415 (9th Cir. 1983); Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), cert. denied 439 U.S. 1114 (1979), and have held that the meaning of what is "damage" is controlled by construction of the Convention.
From our analysis of the cases, it is the Court’s view that the interpretation provided by the latter line of authority suggests the more logical and natural result of the Convention. Among the reasons given by the more recent cases to sustain the view that the Convention establishes a cause of action, was the apparent and primary concern among the delegates to create and formulate a uniform law relating to the regulation of international air carriage. The court in Benjamins pointed out that making a plaintiff’s rights under the Convention dependent on the prior question whether the domestic law of a signatory provided him a cause of action was inconsistent with the spirit of the Convention. The policy of uniformity can only be best effectuated by interpreting the Convention as establishing causes of action independent of local law. The cases further go on to consider in context a number of the Convention’s provisions as well as conference minutes as clearly establishing the intendment of universal regulation. As a result the Ninth Circuit in In re Mexico City Aircrash, concluded that article 17 of *6the Convention established a wrongful death cause of action independent of the provisions of California law. Accordingly, this Court shall be guided by the terms of the Convention in determining what damages and the amount of damages plaintiff may recover.
Under the interpretation of cases such as Benjamins, the Convention creates liability "for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage." Warsaw Convention, art. 18(1) (emphasis added). In construing this clause to determine what "damages" are recoverable, it is instructive to note that were the sentence meant to exclude "consequential" damages, it could more simply have been phrased in terms of the "value of the lost, destroyed, or damaged merchandise." At least one court has held that consequential damages are recoverable under this article. Saiyed v. Transmediterranean Airways, 509 F. Supp. 1167, 1169 (W.D. Mich. 1981). Also, the scheme of the Convention would make little sense if one were not able to recover consequential damages. Article 19 provides that airlines "shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." Warsaw Convention, art. 19. The major types of damages one might have due to delay are consequential in nature — having to do without goods, fallen market prices, replacement in the interim, etc. It would make little sense if one could recover consequential damages for the delay of baggage but not for its destruction.
Finally, it is to be noted that the common law requirement of "foreseeability" of consequential damage under the rule of Hadley v. Baxendale, 9 Exch. 341 (1854), is not applicable under the Convention. The rule of Hadlev v. Baxendale on consequential damages results in an allocation of economic risks. The common law limited the type of damages available to those foreseen by the parties when contracting. The Convention, on the other hand, while allowing recovery of consequential damages, allocates risk in a different fashion. Instead of limiting the type of damages recoveráble, it imposes a ceiling on the amount of provable damages one may recover and thus seeks to secure reasonable rates of carriage within the industry given potential risk. Saiyed, 509 F. Supp. at 1169. Otherwise, "[t]he alternative would result in recovery of different elements of damage *7depending upon the country in which the action for breach was instituted and uniformity could soon be lost." Id.
On the facts herein, Langford travelled to Guam to film and document an event, a meeting of the Pacific Post Secondary Education Council. He was not able to do so without the missing battery pack and given the exigencies of his situation he accordingly purchased with his own funds a battery pack in order to do the filming that took him all the way to Guam in the first place. In the ordinary course of things, Langford had expected his checked baggage, and hence the missing battery pack, to be available to him upon his arrival in Guam. As things turned out, he had to spend money, which he would otherwise have not, had his baggage not gone astray.
We conclude that Langford’s need to acquire the battery with his own funds, constituted damage within the provisions of article 18(1) of the Convention.
We next consider the impact of Hawaiian’s contractual disclaimer.
The Convention provides that "[a]ny provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this convention shall be null and void." Warsaw Convention, art. 23. The exclusion asserted here by Hawaiian must be viewed as one "tending to relieve the carrier of liability" since the contractual term attempts to exclude from liability such a large class of goods --- "valuable items"-- - which the Convention itself never mentions as items which are excludable. Instead, the Convention speaks in the near-absolute terms we noted above --- the carrier "shall be liable for damage."
Further any terms of contract which are inconsistent with the terms of the Convention are void for of two reasons: first, the contract explicitly states that any contractual provision "which is inconsistent with any provision of the said [Warsaw] Convention shall, to that extent, but only to that extent, be inapplicable to international transportation." Rule 1(B), Terms of Contract of Carriage, at 5 (October 30, 1983). Also, the Convention is a treaty obligation of the *8United States. It is thus the supreme law of the land, U.S. Const. art. VI, and supersedes both state laws, In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1309 (9th Cir. 1982), and private contractual terms.
In the Saiyed case, the contract of carriage had disclaimed liability for consequential damages. The plaintiff’s shipment of goods was delayed and damaged when it arrived in Pakistan and the plaintiff sought damages for his lost profits and injury to his credit rating. Saiyed, supra, at 1168. The court held that the contractual provision violated article 23 because it "tends to relieve the carrier of liability for damages which would otherwise be recoverable under the Convention." Id. at 1169. Similar reasoning would invalidate the electronic equipment exclusion. More closely analogous on its facts is Schedlmayer v. Trans International Airlines. 99 Misc. 2d 478, 416 N.Y.S.2d 461 (1979). The court in Schedlmaver found unenforceable an airline tariff disclaiming responsibility for cash in passengers’ baggage. The court held that to allow such a tariff to stand would be tantamount to allowing the airline to relieve itself of liability beyond the extent permitted by the Convention and thus contravene article 23. Id., 416 N.Y.S. 2d at 464.
Finally we look to the carrier’s limits of liability under the Convention.
The Convention limits a plaintiff to recovering $9.07 a pound in damages for lost, delayed, or damaged baggage.4 Neither party proved the weight of the bag. However, it would seem that the burden is on Hawaiian to demonstrate how much the bag weighed. See DeMarines v. KLM Royal Dutch Airlines, 433 F.Supp. 1047, 1061 (E.D. Pa. 1977), rev’d on other grounds 580 F.2d 1193 (3d Cir. 1978) (the airline must prove delivery of ticket to claim limitation of liability for personal injuries or *9death). Having failed to do so, it is reasonable to assume that the bag weighed up to 70 pounds--the most weight which Hawaiian’s contract purports to authorize the passenger to carry in one bag. Rule 24 (A), Terms of Contract of Carriage, at 46 (June 24, 1986). If we assume this, Langford’s maximum recovery of $475.00 ($80.00 in clothing plus $395.00 for the replacement battery pack) is well below the $634.90 ceiling under the Convention.
For the foregoing reasons, plaintiff Langford shall have judgment against defendant Hawaiian Airlines for the sum of $475.00. It is also decreed that the battery pack in question held by Langford shall be delivered to, and disposed of by, defendant Hawaiian Airlines in mitigation of damages.
It is so Ordered.
Multilateral Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature Oct. 12, 1929, adhered to by the United States June 27, 1934, 49 Stat. 3000, T.S. No. 876 (reprinted as note to 49 U.S.C.A. § 1502).
The Convention allows a carrier to escape liability by demonstrating that it had taken all necessary measures to avoid damage or by showing that the passenger contributed to his damage. Warsaw Convention, arts. 20, 21. Hawaiian has not attempted to make any such showing.
Although the cases to be cited in this paragraph deal primarily with questions of jurisdiction and whether a plaintiff in a Warsaw Convention case needs to meet the independent jurisdictional requirements of diversity cases, the principles they discuss apply to the question discussed as well.
The Convention limits liability to a certain amount of gold per kilogram. Warsaw Convention, art. 22(4). The figure of $9.07 per pound derives from the last "official" price for gold before gold prices became set on the free market. Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485734/ | Plaintiffs are utility consumers and the defendant power authority (hereafter "ASPA") is a government agency supplying the territory’s electrical energy needs. Plaintiffs, appearing pro se, sue ASPA and its chief executive officer, Abe Malae, for what plaintiffs . claim was the wrongful termination of their electrical supply by defendants. They pray for injunctive relief, damages for "mental distress" suffered as a result of harm arising in their family and business because of the power cuts, and for punitive damages in the amount of $5 million. Plaintiffs frame their cause of action as a breach by defendants of a certain settlement contract with ASPA This contract allegedly relates to an agreement reached by the parties concerning the payment of a certain outstanding utility account owing by plaintiffs to ASPA Plaintiffs necessarily claim that while they were complying with their obligations under the settlement agreement, defendants "illegally and improperly" disconnected their power supply to plaintiffs’ damage.
Plaintiffs’ testimony was to the effect that the alleged agreement came about as the result of an out of court settlement by the parties of that civil suit docketed Civil Action No. 45-87, which *11was dismissed with prejudice upon the stipulation of the parties thereto. That suit, by plaintiff Seigafolava Pene, also sought a multimillion dollar amount in the way of punitive damages against these same defendants and it is claimed by Seigafolava that his agreement to forbear from suit in that matter was consideration for the settlement agreement now at issue before us. This agreement, according to Seigafolava, came about as the result of a meeting he had attended with defendant Malae, Assistant Attorney General Levi, and Mrs. Betty Ah Soon. This meeting was called on the morning Civil Action No. 45-87 was scheduled to go to trial after Seigafolava moved for and obtained a brief continuance form the Court upon the representation of a settlement possibility. The motion to continue was granted over the objection of Assistant Attorney General Levi, who represented the government.
Although no written agreement resulted as a result of this meeting, save for a stipulation to dismiss with prejudice, plaintiffs here view the meeting as resulting in the following understanding: that in consideration of Seigafolava’s withdrawal of his $5 million-plus claim, ASPA and the government would "review and reply" to certain claims filed by plaintiff regarding the government’s use of certain communal lands of plaintiffs family in Manu'a; that plaintiff Seigafolava would pay their outstanding account-some two thousand dollars - with ASPA upon hearing from the defendants on these claims; and that the parties would comply with these agreements within 90 days.
Both defendant Malae and Assistant Attorney General Levi denied that there was ever such an understanding as a result of the meeting. Mr. Malae testified that all he was concerned with at the meeting was the payment of the account due ASPA The only conclusion arrived at was that the plaintiffs complaint would be dismissed with prejudice and that ASPA would allow 90 days to plaintiff to pay off his outstanding account.
Attorney Levi’s testimony was similar in effect. He was ready for trial in Civil Action No. 45-87 that particular morning and objected to a continuance. The meeting as he had understood it came about because Seigafolava wanted the matter resolved as he appeared concerned with his case and *12with keeping his electricity connected. Attorney Levi testified that he undertook all negotiations on behalf of his clients and took detailed notes of all the proceedings. These notes he maintained in his files on the matter and brought with him to Court. Seigafolava’s offer of settlement was mainly concerned with the objective of acquiring some more time to pay his account. ASPA’s objective was the payment of the bill.
According to Attorney Levi’s file, the only consensus reached was that Seigafolava would get 90 days to clear his outstanding account of approximately $2,400.00, excluding the bill for the then month of June. Seigafolava had indicated that he would pay this off in one lump sum and he would endeavor to maintain his current billings up to date. In return, Seigafolava would dismiss his lawsuit with prejudice and, according to Levi, he took special pains to explain the meaning of dismissal to Seigafolava. Lastly, counsel Levi testified that his notes reflected the final term of agreement as that the parties would bear their own costs of suit. Attorney Levi then testified that he returned to his office and. prepared a stipulation to dismiss with prejudice which was then sent to Seigafolava for signature. This stipulation was presented to the Court that afternoon and Civil Action No. 45-87 was accordingly dismissed.
On our evaluation of the evidence and assessment of the testimony, we find the defendants’ version of the settlement agreement to be more consistent with the realities of the circumstances.
The continuance of trial was sought at plaintiff Seigafolava’s instance without notice to defendants’ counsel and over his objection to further delay trial on the matter. Settlement was accordingly sought by plaintiff there, and in the circumstances the Court is far from being impressed with plaintiffs’ settlement version as making any business sense to defendants. On the other hand, defendant Malae’s testimony to the effect that it would have been beyond the scope of his authority to commit ASPA to collection deals contingent on collateral matters, is, in our view, the more plausible explanation. While it may have been plaintiffs’ every intention to attempt to secure the terms of settlement which they contend before *13the Court, we find that such intentions were never clearly communicated to, nor addressed by, defendants.
The thrust of plaintiffs’ offers of proof to sustain their version of the settlement agreement centered on a number of exhibits which were no more than self-serving documentation and prepared by plaintiff Seigafolava after the fact of negotiation. One of these self-serving claims is the alleged contractual term that ASPA and the government would "review and reply" to certain collateral land claims filed by Seigafolava within 90 days of the meeting. The alleged term is quite meaningless as a practical matter to plaintiffs. If there had been such a term and had ASPA merely replied to plaintiffs’ land claims in the negative, such a clause would be of really no contractual value to plaintiffs. The real reason for the insistence by plaintiffs to the existence of such a clause became apparent at trial. It was advanced to explain plaintiffs’ nonpayment of their electrical account within the 90 day grace period acceded to by ASPA (Plaintiff Seigafolava felt that if ASPA did not. "review and reply" within 90 days, then somehow plaintiffs were absolved from compliance with the payment clause).
Upon the foregoing it is the conclusion of the Court that judgment be entered in favor of the defendants.
As a preliminary injunction was issued against defendants to maintain the connection of plaintiffs’ electrical supply upon plaintiffs’ prior posting of bond in the monthly sum of $100.00, such bond funds collected by the Clerk shall be paid over to defendant ASPA to offset the value of electrical power supplied by ASPA to plaintiffs. as a result of the preliminary injunction, and the balance, if any, shall be returned to plaintiffs. All costs of electricity so supplied and in excess of the value of the bonds posted shall be billed by ASPA to plaintiffs, in the normal course.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485735/ | On Motion to Compel Discovery:
Defendant made a number of discovery requests with the government and subsequent to a motion by the defendant to compel discovery of certain matters objected to by the government, the issues *15for consideration by the Court were narrowed to: whether the government must disclose (1) any criminal records of its witnesses;1 and (2) exculpatory evidence.
It appeared at the hearing that defendant’s primary concern was the possibility of any witness having an off-island criminal record which would remain unknown to defendant. Defendant feels that with the government’s comparative investigative resources, the requested information should be obtained by the government.
We hold this request to be beyond the scope of the discoverable and deny relief.
With regard to defendant’s request for exculpatory evidence, defendant cites Brady v. Maryland, 373 U.S. 83 (1963). In Bradv the Supreme Court held that the requirements of due process prohibit the prosecution from suppressing any evidence favorable to an accused where the evidence is material either to guilt or punishment. Without conceding that the Brady rule is applicable in American Samoa, the government objects to the request as being overly broad and beyond the bounds of Bradv. The defense in effect addresses the possibility that such evidence may exist and contends that such a general request is appropriate under Brady. They accordingly request the Court for a holding that Brady is equally applicable in American Samoa.
*16We hold that the demands of due process, with regard to an accused’s right to a fair trial, as found in Brady, are similarly the demands of Article 1, section 2 of the Revised Constitution of American Samoa, which requires that ”[n]o person shall be deprived of life, liberty, or property, without due process of law." Secondly, and contrary to the government’s position, we agree with the defense that notwithstanding the general nature of their request, it' is nonetheless within the scope of Brady. See United States v. Agurs, 427 U.S. 97, (1976). That scope is not unlimitéd and a careful reading of the Agurs case should dispel any of the uncertainties alluded to by the prosecution.
The government has stipulated to the disclosure of its witness list at least three days prior to trial with the continuing obligation to update that list as it may change. We intimate no conclusions whatsoever with regard to the question of whether such a list of witnesses is discoverable in this jurisdiction. Cf. 18 U.S.C. § 3432. It might also be noted on the particular facts of this matter that the government had, in accordance with its claim to normal policy in these matters, made available to defendant the complete police interviéw file in connection with this case which contained among other things the names and statements of all people the police interviewed for statements. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485736/ | On Motion to Dismiss:
Defendants move to dismiss this action for failure of diligent prosecution. They allege (1) that in September 1986 counsel for plaintiff was ordered to amend his pleading to join another defendant; (2) that in April 1987 counsel for defendant Country Comfort wrote to counsel for plaintiffs noting that he had not amended the pleading and suggesting the action be dismissed; (3) that in July 1987 counsel for defendant Country Comfort again wrote counsel for plaintiffs, requesting a reply to his earlier letter; (4) that no reply was ever received to either letter; (5) that aside from one unproductive deposition later in 1987, nothing has been done on the case since 1986.
At the hearing on this motion counsel for plaintiff explained that he had never joined the additional defendant, said to be a California corporation, because the California official who keeps track of corporations had told him there was no such corporation. He offered no explanation for his failure to explain this or to respond in any other way to defense counsel’s April .1987 and July 1987 letters. Counsel for plaintiff says his failure to do much about the case is due primarily to the fact that there has been no one in American Samoa who might serve as a consultant and expert witness on skin conditions. He added that he has "pretty much left up to [his] client" the search for such a consultant outside Samoa, but that the recent return to the Territory of a doctor who formerly treated his client is an encouraging sign.
It is clear that plaintiff’s counsel has neglected the case, at least in failing to answer the two letters and probably also in not doing more about finding an expert witness and otherwise preparing the case for trial. Judged against the usual standard of diligence with which lawsuits in American Samoa have been prosecuted, this neglect is insufficient to overcome the law’s strong bias in favor of disposition of claims on their merits. It is, however, sufficient to justify an award against plaintiff’s counsel of the fees incurred by *18opposing parties in connection with this motion to dismiss.
The Court is also concerned that the denial of this motion might result in further delay. Accordingly, counsel for plaintiff is ordered to make any further discovery requests no later than fifteen days from the date of this order. No later than thirty days after defendants’ responses to any such requests, counsel for plaintiff shall move to set a trial date. These deadlines should also be sufficient for counsel to locate and consult with an expert witness.
Counsel for defendants should prove by affidavit the fees incurred by their clients in connection with this motion.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485738/ | Claimant is the senior matai of the Tela family and had offered for registration some 5.62 acres of land located in the village of Afono as the communal property of the Tela family.
Soli Aoelua objected to the offer on the grounds that claimant’s survey included land belonging to the Aoelua family as held in Aoelua v. Tela, LT. No. 31-80 (1982), and affirmed by the Appellate Division in Tela v. Aoelua, AP. No. 48-82 (1982).
On the evidence before the court, it did indeed appear that the survey Tela offered for registration does include the greater part of the land "Failafua" which was awarded to the Aoelua family in the above cited case. That case’s holding is res judicata.
However, the northern portion of Tela’s survey as does not encroach upon the land "Failafua" awarded to Aoelua in 1982, may be registered as the communal land of the Tela family pursuant to A.S.C.A. §§ 37.0101 et seq. That portion of the claimant’s offer for registration is not contested by the Aoelua family.
On the other hand, the objector contends that the southern and small portion of land remaining in Tela’s survey which is outside, but contiguous to, *22the 1982 award to Aoelua, is the communal land of the Aoelua family.
In proof of his family’s claim to the contested southern portion, Tela testified that according to longstanding custom evident to this very day in the village, the Aoelua title was a lesser matai of the Tela family. As such, there are no lands appertaining to the Aoelua title distinct from the greater Tela family holdings. This theory was rejected in the 1982 case which found that while the Aoelua and Tela families were related by blood, the two titles, at least for purposes of holding land, were distinct. Tela nonetheless feels that the 1982 decision did not accord with traditional realities.
Against this general claim to overlordship by Tela, we find that the evidence preponderates in favor of the Aoelua family and shows actual and habitual occupation of the contested southern portion by members of the Aoelua family. The homes of the widow and daughter of the former title holder, Aoelua Soli, are located there. The crops on this portion of land are maintained and utilized by the Aoelua people and we find that control over the land in terms of use as well as authorization for structures thereon has been at the instance of the late Aoelua Soli.
We conclude in relation to the disputed southern portion of the land that claimant Tela has . failed in his burden of proving entitlement and therefore deny his application for registration.
Accordingly, Tela may only register such portion of his survey depicting that area of land north of the land "Failafua" which was awarded to the Aoelua family in Aoelua v. Tela, supra.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485739/ | On Motion for Reconsideration:
Plaintiff, Seigafolava R. Pene, moves the Court, "in conformity with applicable statutes of this jurisdiction," for reconsideration of the Court’s decision in the above-entitled matter.
Plaintiff essentially complains: 1) that the presiding justice in this matter should have *24recused himself from hearing this case; and 2) that the Court’s assessment of the evidence was erroneous.
Plaintiff repeatedly made oral motions for recusal in open court and, on as many occasions, his motions were denied. No new grounds are advanced herewith for reconsideration of this recurring motion. Instead, plaintiff reasserts his same objection that the presiding justice has previously referred to him as "incoherent and unskillful." Plaintiff’s Affidavit in Support of Motion For Reconsideration at 2. Plaintiff in his moving papers conceded that, "Justice Kruse had explained that he was referring to my pleadings, (against the same defendants)." However, he goes on to opine that "it is my belief and understanding that the writer/preparer of said pleadings is definitely the subject of said evaluation." Id. Plaintiff feels that he has been unjustifiably and publicly maligned by the justice and he apparently considers it proper that another justice should . have been assigned to his case.
As this recusal request is being repeatedly made by plaintiff appearing pro se, and hopefully to restore his sense of honor, the Court is moved to elaborate on its reasons for repeated denial of this request.
The language found to be offensive occurs in Seigafolava v. American Samoa Power Authority, 4 A.S.R.2d 152 (1987). This case involved the same plaintiff and the same principal defendants.1 Defendants in that matter moved for summary judgment upon a number of grounds, including the failure of plaintiffs pleadings to state a claim in damages. In response, and actually in plaintiffs favor, the Court there held:
"We agree that the plaintiffs pleadings are patently insufficient, but disagree that a T.C.R.C.P. Rule 56 motion for summary judgment is the proper device for *25punishing incoherent or unskillful pleading."
Id. at 152-53
As authority for this proposition of law, the Court cited, Soley v. Star & Herald Co. 390 F.2d 364 (5th Cir. 1968), and Season-All Industries, Inc. v. Turkiye Sise Ve Cam Fabrikalari A.S. 425 F.2d 34 (3d Cir. 1970). The Solev case talks of summary judgment as not being appropriate merely because pleadings are "drawn unskillfully." Id. at 366. The Season- All Industries case speaks of summary judgment "[as] not [being] a punishment for the incoherence of a pleading." Id. at 39. The particular language therefore complained of is not original to the presiding justice although the same was found useful to restate and to highlight a precedential point on the law. It happens that plaintiff is not an attorney at law --- although he has repeatedly appeared before the courts on his own behalf and indeed has even attempted to appear on behalf of others --- and his working familiarity with the relevant rules relating to the drafting of pleadings were very evidently those of the layman. His pleadings, in the light of rule requirements, were inartful and the Court’s primary concern in that case at the time, was to ensure that plaintiff’s case would not be prejudiced on the merits because of defective pleadings. Language from precedent was the language which the Court there invoked to state its position in denying defendants’ motion.
The insinuation, therefore, by plaintiff that the presiding justice was, with his choice of language, particularly interested in maligning his person is thoroughly misplaced and serves no real purpose other than to distract attention from the real merits of the case.
Simply stated, this aspect of the motion has no merit as its only consequence appears to be judge shopping. That possibility will not arise. It has been said that, "[t]here is ’as much obligation upon a judge not to recuse himself when there is no occasion as there for him to do so when there is.’" Rosen v. Sugarman, 357 F.2d 794, 797 (2d. Cir. 1966), quoting In re Union Leader Corp. 292 F.2d 381, 391 (1st Cir.), cert denied, 368 U.S. 927 (1961).
*26The second ground of plaintiffs motion is an apparent quarrel with the Court’s view of the evidence. We maintain that the evidence preponderated in favor of the defendants and therefore deny relief also on that aspect of the motion.
It is so Ordered.
This matter never went to trial but was dismissed with prejudice upon stipulation of the parties. The present case arose regarding a claimed settlement said to have arisen as a consequence of the stipulation of dismissal in that earlier matter. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486341/ | Decision and Order:
Plaintiffs/Counter-defendants, United Congregational Christian Church in South Bay in Samoa (hereafter "UCCC Samoa") and United Congregational Christian Church of the South Bay, Los Angeles (hereafter "UCCC LA") seek to enjoin defendants, Sese and Raymond McMoore (hereafter collectively referred to as the "McMoores"), from entry onto a certain four acre parcel of individually owned land known as Soata (hereafter "Soata") located in the Tafuna plains. The McMoores have in turn counter-claimed for compensatory damages, alleging that they had made loans to plaintiffs over the years to repay UCCC Samoa's $120,000 loan with Amerika Samoa Bank, and for security services they claim to have rendered in connection with Soata over a number of years. For reasons given herein, we grant plaintiffs' petition for injunctive relief and deny the McMoore's counter-claim for damages.
*196The UCCC LA is a congregational church established some twenty years ago in Carson City, Los Angeles, by various Samoan residents of that area. In its temporal affairs, the UCCC LA prospered in its bingo fund raising activities (Myron Thompson, a former Secretary of the UCCC LA, testified that the church was the foremost bingo operator in Carson City) and consequently looked to purchasing land in American Samoa. On June 16, 1982, it paid High Talking Chief Pagofie Sasa'e the sum of $100,000 for Soata, as evidence by Pagofie's Warranty Deed of the same date recorded with the Territorial Registrar in Volume IV, Transfers at pages 244-45.
With the land purchase in American Samoa, certain officials of the UCCC LA began working on a grand scheme to build a $3 million plus structure on Soata, to be known as the "Samoana Conventional Center." The main planning goal behind the structure was a facility to generate local revenue, largely through bingo games, to fund different church related projects.1 To this end, UCCC LA sought and secured toward the end of 1985 the appropriate government land use permit for the project, with work beginning shortly thereafter. Then president of the UCCC LA, John Thompson, moved to American Samoa bringing with him Frank Onys, the UCCC LA’s mainland contractor, to undertake construction of the convention center. Thompson apparently thought it desirable to incorporate a separate local entity, affiliated with the local Congregational Christian Church in American Samoa, to hold church property and undertake the UCCC LA's activities in the territory. Accordingly, a charter was sought, and one was issued on July 10, 1986, for the UCCC Samoa. Additionally, a separate entity, structured for profit, known as "Samoana, Inc." was also incorporated to handle the church's local business affairs.
On July 26, 1986, a document styled "Deed Transfer" was executed by John Thompson as President of the UCCC LA,2 and witnessed by Myron Thompson as "Board Secretary," to convey Soata to "the United Samoan *197Congregational Christian Church of Samoa in the village- of Tafuna, American Samoa. "3
After securing a mainland loan for construction of the Soata project, the UCCC LA shipped equipment and a large quantity of construction material to the territory. The initial construction work, however, also utilized a credit facility with the Amerika Samoa Bank, taken out by John Thompson on behalf of UCCC Samoa. This debt totalled $120,000, which was later converted to a term loan. It was not clear on the evidence just how much money was obtained from the off-island loan; however, it was a substantial amount and not all of loan proceeds found their way to the construction project in Samoa. As events turned out, the ongoing expenses at Soata and the repayment of the Amerika Samoa Bank loan were being financed through locally operated bingo games.
In setting up its local bingo operation, the UCCC LA imported its more sophisticated bingo paraphernalia from Carson City, as well as a number of its seasoned bingo employees. The local operation soon elevated "occasional" church bingo to new heights in the territory.4 In July 1986, the UCCC LA began running "regular" gaming activities several days each week, first at Fatuo'aiga and then at the VA Club premises. The bingo games were held out under the sponsorship of the "Samoana Fellowship," the same name by which the UCCC LA’s bingo operation was known by in Carson. The bingo revenue was handled exclusively at the outset by John Thompson, who also opened up an Amerika Samoa Bank checking account with Onys and himself as the account signatories.
Defendant Raymond McMoore's (hereafter "Raymond") involvement with the UCCC LA's local activities arose through his relationship with John Thompson, who was also his maternal uncle. Although not a member of the UCCC LA, Raymond assisted his uncle with the Soata project from the outset, and he was consequently put on the payroll at $5,00 an hour, His range of duties was general in nature, involving both the construction project and the bingo games.
*198In mid 1987, Mr John Thompson returned to the mainland because of medical problems and never returned to the territory. He passed away in Los Angeles in December 1988. In Thompson's absence, Raymond assumed supervision of the bingo operation and the handling of its revenue, including the making of deposits, while Onys continued with the construction at Soata, and also the signing of checks on the local account. The work, however, effectively came to a halt when the project was about 30 percent complete. According to Onys, the construction had reached a stage where it could not go forward without certain needed material, while at the same time he was informed by Raymond that bingo revenues were becoming barely sufficient to cover operating expenses.
In October, 1988, Onys returned to the mainland. With his departure, the Soata project not only came to a standstill but eventually went to waste, and so continues to this very day. Completed work as well as a substantial quantity of building material and equipment left on the site either became dilapidated or disappeared over time.
From our assessment of the evidence, a principle reason for the stagnant state of affairs with Soata was an ensuing power struggle which arose among UCCC LA officials following the demise of John Thompson, in December 1988, and the immediately succeeding death of UCCC LA's longstanding minister, Rev. Malaki Tauiliili, in the month of January, 1989. In Carson City, the dispute came to a head with the filing of cross-lawsuits in the Superior Court of California for the County of Los Angeles. These suits resulted in the Superior Court's issuance of permanent injunction on January 6, 1993, enjoining Myron Thompson (who is also the son of the late John Thompson) and others from, among other things, further holding themselves out as UCCC LA representatives authorized to deal with UCCC LA property, including a bank account with the Amerika Samoa Bank.
In American Samoa, several attempts by UCCC LA officials to enter Soata, beginning early in 1990, were actively resisted by Raymond, who confronted these delegations with demands for large sums of money. On one such occasion, Raymond had people posted on the land, including a few who just happened to be working in and around the area with bush knives, with instructions to keep everybody out. In the interim Raymond, then assisted by his wife Sese McMoore (hereafter "Sese"), undertook the *199bingo games for their own purposes.5 The McMoores' resistance to plaintiffs' attempts to take possession of Soata brought about the matter now before us.
The McMoores assert some vague entitlement claim to possession of Soata until they are paid their claim for monies loaned to UCCC LA. They simply contend that this was their agreement with John Thompson. We see no basis for the McMoores' possessory claims. Their retention of Soata and interference with plaintiffs' attempts to go upon the land is tantamount to actionable trespass.6 Among their affirmative defenses to plaintiffs' claim for injunctive relief, the McMoores attempt to assail plaintiff UCCC LA's entitlement to take possession of Soata, citing noncompliance with the territory's native land alienation laws, A.S.C.A. § 37.0201 et seq. This, however, is nothing but a sham defense, since it does absolutely nothing to advance defendants' position in the slightest manner. As between the parties, and notwithstanding the Native Land Alienation statute, plaintiffs’ payment of $100,000 to High Talking Chief Pagofie constitutes at least one hundred thousand more reasons than the McMoores have to lay superior possessory claims to Soata. In short, the McMoores can provide no basis whatsoever to set up an adverse possessory claim to Soata. Their relief, if any, lies in damages and, therefore, plaintiffs' petition for injunctive relief should be granted.
We turn to the McMoores' counter-claim for damages. The basis of this claim is an alleged oral promise made by John Thompson to Raymond over the telephone. According to Raymond, after failure of the church's bingo, John Thompson had requested him to engage Sese's bingo to repay the Amerika Samoa Bank loan. Raymond claims that John Thompson had further promised that the McMoores would- be reimbursed for such payments on the loan. In support of Raymond's claim, his cousin Myron Thompson testified that he was privy to the telephone conversation between his father and Raymond.
On our review of the evidence, we find that the bingo operation subsequently undertaken jointly by the McMoores, the proceeds of which were used to pay the Amerika Samoa Bank loan, was in essence a *200continuation of the very same bingo operation started by UCCC LA. Sese’s questionable "flag day" bingo operation,7 simply merged with the UCCC LA's "Samoana Fellowship" bingo, the label long used and promoted by the UCCC LA both off-island as well as on-island. Insolvency of the UCCC LA's gaming operation, as claimed by Raymond, proved to be of Raymond's own doing. On the one hand, he failed to provide any accounting to anybody except, as he claims, to his deceased uncle; on the other hand, the sampling of bank deposit slips for the UCCC Samoa's checking account, furnished by the McMoores upon the plaintiffs' discovery requests, reveal that Raymond simply stopped depositing the UCCC LA's bingo cash receipts and only banked the checks received.
The bingo games, on the other hand, when run as a McMoores' venture, subsequently became profitable enough to maintain current loan payments with Amerika Samoa Bank. At the same time, we are satisfied that the bingo's association with the UCCC LA continued to provide the appearance of legitimacy to the continuing gaming operation. We have difficulty reconciling the gaming statute, A.S.C.A. § 46.4302 et seq., with the McMoores' bingo "operator" status. Furthermore, even if Sese's bingo could, for the sake of argument, be viewed as a legitimate exception to the gaming prohibition, she has failed to convince us that a legitimate "religious, educational, or charitable purpose," within contemplation of the gaming statute's proviso, includes "loan-making." Money lending is quite clearly not within the ambit of the gaming statute's proviso. See A.S.C.A. §§ 46.4301-02. Finally, we attach no weight to Raymond's self serving claim of an oral contract with John Thompson, nor to the corroborative attempt by his cousin Myron Thompson. We find their credibility questionable and their motives suspect. They were thwarted earlier in *201their attempt to cash an insurance check on-island in the amount of $41,919.38, being the proceeds of a life insurance policy taken out by the UCCC LA on the life of Rev. Tauiliili, payable to UCCC LA as beneficiary. Both Raymond and Myron appear to have difficultly accepting the fact that their once dominant family inflhence on the temporal and business affairs of plaintiffs; both in Los Angeles and in American Samoa, ended with the demise of John Thompson and the immediately ensuing election of substitute officials of the UCCC LA and UCCC Samoa. Indeed, in what seems to have been an after-thought, the theory first emerged on the witness stand (tendered as a basis for a possession claim by the defendants) that the UCCC Samoa was comprised exclusively of the Thompsons, the McMoores, and even perhaps attorney Albert Mailo, who was involved with incorporating UCCC Samoa. We see no basis in fact nor in law for this remarkable claim. We conclude that the Amerika Samoa Bank loan was in actuality discharged by plaintiffs' bingo revenue receipts, and not by the McMoores individually.
Similarly, we are also satisfied on the evidence that the expenses with regard to the night watchman who was initially on the premises after Onys' departure, was met with Samoana Fellowship bingo revenues. We find the McMoores' subsequent claimed security services, for which compensation is sought, to be utterly without merit. Soata went to waste; it was not looked after, and a principal reason for the near total waste and. substantial loss of property evident at the site was Raymond's efforts in blocking plaintiffs' access to Soata in the first place. If anything, damages would seem to more appropriately lie against the McMoores.
On the foregoing, it is the judgment of the court that the defendants Raymond and Sese McMoore, their agents, employees, representatives, and all persons acting in concert with them, are hereby permanently enjoined from going upon the land Soata, and/or from interfering in any manner whatsoever, whether directly or indirectly, with plaintiffs' possession of Soata. Further, it is also the judgment of the court that the defendants take nothing on their counter-claim for damages.
It is so ordered.
Cf. A.S.C.A. § 37.0204(b) ("It is prohibited to alienate any lands except freehold lands to any person who has less than half native blood. . . .") and § 37.0204(d) ("This section does not prohibit the conveyance and transfer of native land ... to an authorized, recognized religious society, of sufficient land for the erection thereon of a church or dwelling house for the pastor of both. . . .").
While the instrument recites the "bylaws" as the source of John Thompson's presidential authority to alienate the UCCC LA's real property, the current bylaws invest that authority in the Board of Trustees, subject to ratification by two-thirds of the church's membership. See Bylaws of UCCC LA, Art. IV, § 4(a).
Although not explained on the evidence, the instrument was only offered for registration with the Territorial Registrar on February 1, 1990, some four years after its execution.
Except for the "occasional’1 bingo game or raffle for religious, educational, or charitable purposes, it is a criminal offense in the territory to engage in gambling. See A.S.C.A. §§ 46.4301-4302. Notwithstanding, the UCCC LA also introduced at least one gaming novelty, beyond the lawfully exempted "raffle" or "bingo" game, known as "pull tabs," a chance game that mirrors the operating principle of the Las Vegas slot machine.
Sese had previously been involved with bingo games sponsored by the Office of Samoan Affairs to raise funds for the annual Flag Day celebrations. This "flag day" bingo activity of Sese's continued indefinitely beyond Flag Day to include bingo games in the name of different church groups.
Plaintiffs, however, db not seek damages.
In light of the gaming statute, A.S.C.A. §§ 46.4301-02, and its rather limited proviso, the evidence in this case points incredulously to a nascent and self-regulating gaming industry on-island involving operators principally set up for that purpose. There does not seem to be anything "occasional" about bingo games, nor does there appear to be much regard to the proscription against the keeping of gaming equipment, employees, and premises for gaming activity. The evidence before us alluded to gambling activity where cash transactions appeared to be the norm, even in the compensation of employees, with doubtful accounting. In terms of receipt splits between the operator and a particular church for whom the bingo is held out, Sese testified that she started off conducting bingos for different churches, initially under her "flag day" bingo license, under an arrangement whereby the church would take a part of the receipts, while allowing her to do what she wished with the remainder. Raymond additionally testified that Samoana Fellowship has now progressed to undertaking bingo games in its own stead, thereby exercising discretion in the distribution of the bingo profits, in order to make it "fair" for everyone. It would seem that the bingo operator is now defining the level between what is expense and what is profit, for purposes of the gaming statute. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486342/ | Order Granting Motion for Partial Summary Judgment:
This matter relates to four transactions in which defendant John's General Construction ("JGC") ordered construction materials from plaintiff Carpenters Fiji, Ltd. ("Carpenters"). JGC has made some payments against this debt but, according to Carpenters, the principal sum of $70,176.26 remains owing. Carpenters has provided an affidavit, invoices and other materials tending to establish that the foregoing facts are true, and now moves for summary judgment based on these materials. See T.C.R.C.P. 56(e). JGC has presented no contrary evidence since this summary judgment motion was filed, and was not represented at the hearing held on August 22, 1995. Additionally, Carpenters has made formal requests for admissions, which essentially ask JGC to stipulate to *203the occurrence of the relevant transactions. These requests have gone unaddressed by JGC for more than 30 days, and are therefore deemed admitted under T.C.R.C.P. 36(a).
T.C.R.C.P. 56(e) states, in relevant part:
The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
The purpose of the foregoing rule is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." F.R.C.P. 56(e), Advisory Committee Notes. In Utu v. Nat'l Pacific Ins., 9 A.S.R.2d 9 88, 93 n.4 (Trial Div. 1988), this court admonished "the Bar of American Samoa . . . that henceforth a party opposing another's motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts.”
JGC appears to have thrown in the proverbial towel by having failed to respond either on paper or in court to Carpenters' motion for summary judgment. Although JGC's president filed sworn answers to interrogatories on November 11, 1994 (prior to the motion for summary judgment), at best these constitute a denial that the relevant construction materials were ordered by facsimile. This assertion is not particularly persuasive, however, in light of JGC's subsequent failure to reference this denial in reply to the summary judgment motion, or to respond in any other way. Furthermore, in Carpenter's request for admissions filed on January 26, 1995, JGC was asked to admit that the orders were faxed, but has neither given "written answer or objection addressed to the matter," nor referenced the prior answers to interrogatories, nor made any other attempt to reply as required under T.C.R.C.P. 36(a). Furthermore, there is nothing in the answers to interrogatories which denies that JGC received and freely accepted the goods and made partial payment for them, thus incurring a debt to Carpenters. See John D. Calamari & Joseph M. Perillo, Contracts § 2-21 (1977); Robert J. Nordstrom, Law of Sales § 142 (1970).
*204For the foregoing reasons, Carpenters' motion for summary judgment is granted and judgment shall accordingly enter in favor of Carpenters against JGC in the amount of $70,176.26.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486343/ | Order Denying Motion for Reconsideration or a New Trial
On May 26, 1995, this court awarded counterclaimant Blue Pacific *205Management Corp. damages of $20,900 for Hurricane Ofa's destruction of the skylight at Pago Plaza, based on the professional malpractice of architect Richard Frey, who designed the skylight and supervised its installation while he was employed by counterdefendant G. M. Meredith and Associates ("GMA"). GMA now moves for reconsideration or new trial, alleging that we improperly applied the doctrines of res ipsa loquitur and negligence and improperly took judicial notice that Hurricane Val was of greater force than Hurricane Ofa in the Pago Plaza area.
DISCUSSION
GMA's written motion listed grounds for reconsideration or new trial, but did not provide any analysis or legal precedent in support of its general conclusions. GMA also failed to expand significantly on its assertions during oral argument.
GMA's single noteworthy argument at the hearing was that hurricanes are inherently violent, and the destruction of a structure by a hurricane should not give rise to a presumption of negligence. In an area which is not generally prone to hurricanes, this argument may hold. But in American Samoa, hurricanes are a fact of life and architects are expected to design structures to withstand hurricanes of normal strength, knowing that such structures will likely be required to withstand one or more hurricanes during their normal life span. In fact, GMA was expressly instructed and undertook to meet this standard in this case. The failure of a structure to withstand a hurricane is, therefore, generally a good indicator that either the design or construction of the structure was defective, unless the hurricane is of exceptional volatility. We have no evidence that Hurricane Ofa was in this category.
One only need read GMA's motion to see that it is conclusionary and completely devoid of any caselaw, analysis or explanation to support its assertions. This is unacceptable lawyering. T.C.R.C.P. 7(b) requires that motions, "unless made during a hearing or trial, shall be made in writing, [and] state with particularity the grounds therefor ....'' This court has previously articulated that this rule is especially important in motions for new trial to "put the trial judge and the opposing party on fair notice of the particular errors that will be alleged on appeal" and "to avoid unnecessary appeals by giving the trial judge a chance to see the errors of his ways." Judicial Memorandum No. 2-87, 4 A.S.R. 2d 172, 175 (1987).
The generality adopted by GMA in stating the grounds for reconsideration or new trial in this motion comes very close to rendering *206the motion a nullity. See United States v. 64.88 Acres of Land, 25 F.R.D. 88 (1980). In any event, we believe that we adequately addressed the issues raised in the motion in our original order and will, without having the benefit of any further elaboration by GMA, deny the motion. The party moving for reconsideration or new trial must do more than reiterate our reasons for a decision and then make a blind assertion that we were incorrect. Our decision was fortified by citations of treatises and case law, which is more than we can say for GMA's motion. This court is not paid to be an advocate for either side, nor to do legal research that should be done by the attorneys, nor to guess at or construct the legal theory upon which a losing party might oppose our decision.
ORDER
For all of the foregoing reasons, we deny GMA's motion for reconsideration or new trial.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485740/ | Plaintiff moves to enjoin defendant from further holding himself out as co-holder of the matai title Paulualo pertaining to the village of Afono. In 1980, the Paulualo family presented both plaintiff and defendant before the village council as the appointed co-holders of the family’s *27title. On the testimony, this action taken has no precedent in the customs and traditions of the Paulualo family. Bestowal of title in the customary manner was accordingly undertaken. With the family’s consent as well as plaintiff’s (in the apparent desire to resolve family differences regarding the appointment of a matai), defendant has since held himself out as a matai and has accordingly participated in council matters both at the village and county levels. According to the testimony, however, plaintiff was elected to register the title in order to comply with the requirements of the law.1
Until recently the parties have co-existed. Defendant, however, has proven more popular with the village and county. He has been nominated by the county to the government position of County Chief, which position the plaintiff also desires. Friction arises between the parties because of this issue, it also being one of the admitted reasons for this matter coming to court.
As it happens, the communal complicity in the bestowal of the title on an additional holder has resulted in the defendant’s running afoul of the provisions of A.S.C.A § 1.0414. This provision prohibits a person from using a matai title before the same has been registered in accordance with the provisions of A.S.C.A. §§ 1.401 et seq.
As defendant is not a registered holder of the title Paulualo, and his use of the title is in violation of A.S.C.A § 1.0414, it is therefore ORDERED that Defendant Faleseu Mataiumu Siofaga, is hereby enjoined from further use of title, or holding himself out as, I'aulualo.2
The process of registering matai titles involves the Territorial Registrar’s public posting of the claim for a period of 60 days. A.S.C.A. § 1.0406. If no objections are made within that 60 day period, the Registrar will register the title to the claimant. A.S.C.A. § 1.0407.
Our decision may appear harsh in that everyone concerned, including the family, is equally blameworthy in promoting the violation of the law and yet the defendant alone bears the consequences. Our concern in this matter *28is not punishment but giving proper effect to thé statute. Punishment is the concern of the criminal court. A.S.C.A. § 1.0414 is also a criminal statute and prosecution thereunder is within the exclusive province of the Attorney General. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485741/ | Petitioner seeks a divorce from respondent on the grounds of habitual cruelty and ill usage. The parties have been separated for some 17 months after petitioner left respondent. Petitioner’s reasons for leaving stemmed from his wife’s rather *29foolish attempts to hide from him her being prosecuted for embezzlement. After the embarrassment and total surprise of learning about the prosecution from a co-worker (whose husband had supplied bail money to respondent), petitioner confronted respondent on the matter. The latter denied that anything had happened and in fact berated petitioner for listening to gossip from others.
Petitioner said he was again surprised with public humiliation on the matter of prosecution at a time when he and his wife were about to depart on a tour off-island with their church choir. He again learned at the airport from others that immigration authorities would not clear his wife for departure from the jurisdiction because of a pending criminal matter. According to petitioner, he was not only embarrassed, being the conductor of the choir, but again extremely upset with respondent’s continuing attempts to suppress the truth and hide matters from him. Petitioner also learned that respondent eventually managed to get permission to leave, with the assistance of some relative who intervened on her behalf, all without any word to him.
It was shortly thereafter that petitioner decided to leave the marital home. He felt he could not further trust respondent and while greatly embarrassed with the whole affair, his wife persisted with her stance towards him. He testified that it has bothered him greatly to find out that the woman he believed he had married turned out to be a different person; that his work performance had been affected; and basically he viewed the continuance of marriage as hopeless.
Respondent’s reaction on the other hand was remarkable. She feels that the parties can still work things out, yet she continues to fault her husband for making a big issue over nothing by taking the word of third parties over hers. This is notwithstanding the fact that she did indeed face prosecution, although she settled the matter with the government. Respondent’s notion of trust simply belies us. She inexplicably elects to continue the charade with petitioner and obviously is blind to the possibility that perhaps petitioner’s attitude towards the marriage might change if she faced up to him with the truth.
*30In our opinion, the ground for "ill usage" as the same is discussed in Lea'e v. Lea'e, 3 A.S.R. 2d 51 (1986), has been established on the evidence. It is one thing to lie but quite another thing to senselessly perpetuate that lie to the other party’s obvious and continuing despondency.
We have gone at length to discuss the facts giving rise to our conclusion and having done so, we specifically reject submission by petitioner’s counsel to the effect that "habitual cruelty and ill usage" are grounds tantamount to the "no fault" notions of "irreconcilable differences" or "incompatibility" which allow divorce in other jurisdictions. We are a jurisdiction that still requires divorce to be based on "fault"1 and fault we have found herein.
The facts also show that there is one minor child of the marriage whom petitioner has largely disregarded, in terms of support, after the parties separated. Petitioner does not seek custody of the child who has remained with respondent. The latter seeks support for the minor in the sum of $200 per month. Petitioner, however, asks the Court to consider a figure between $40 to $50 a month because of the debts which he currently carries.
Petitioner earns an annual salary of $17,700. We find that much of the indebtedness which he claims, arises from the fact that since separation, petitioner has discarded the modest marital vehicle and has treated himself to a vehicle requiring $12,000 in financing. While petitioner gets to ride to work in his brand new vehicle, his daughter is no longer driven to school as she was once accustomed. It is quite apparent to us that when petitioner decided that the marriage was over, he also appears to have treated himself as relieved of his parental obligations, not only by being inattentive to the support needs of his child, but by readjusting his budget which seems to figure no-one else but himself. That budget needs readjustment again to comport with petitioner’s legal obligations to the minor child.
On the evidence before us, the Court awards custody to respondent with reasonable visitation *31rights to the petitioner. The Court further concludes on the minor’s behalf that a reasonable sum of support is $300 per month, the payment of which will be suspended for the first three (3) months to permit petitioner to reorder his affairs. In the interim initial quarter, support in the sum of $200 per month shall be payable. Such support shall be payable through the office of the Clerk and disbursed accordingly to the respondent for the minor’s use.
Accordingly, a decree will enter granting petitioner a divorce from respondent. Custody of the parties’ minor child is awarded to respondent with reasonable visitation rights to petitioner. Child support is awarded as follows: the sum of $200 per month shall be payable by petitioner for the first three (3) months ensuing this order; and thereafter $300 per month.
It is so Ordered.
See discussion in West v. West, 5 A.S.R. 2d 88 (1987). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485742/ | Facts
Plaintiff Uikirifi made two trips on Hawaiian Airlines (hereinafter "Hawaiian") from Honolulu to Pago Pago. On an August 7, 1987 trip, Hawaiian: lost two bags containing clothing which plaintiff valued at $1,926.64. On September 17, 1987 nine pieces of luggage valued by plaintiff at $5,055.24 were lost. Four boxes were said to contain 227 fine mats which the plaintiff valued at $2,270.00. The other five bags contained clothing. The District Court awarded plaintiff $1,929.00 on the first claim and $4,999.00 on the second.
Plaintiff Neru traveled on Hawaiian on February 8, 1987. He carried with him four pieces of baggage, two of which were lost. They contained auto parts that plaintiff valued at $2,286.70. The District Court awarded plaintiff relief in that sum.
Hawaiian has appealed these decisions maintaining that certain contractual clauses either bar or substantially limit the claims of Uikirifi and Neru.
Discussion
During the past decade the airline industry has undergone substantial deregulation and the tariff structure which airlines once could rely on to limit their baggage liability no longer exists. See 49 U.S.C. § 1551. At the outset, therefore, we reject any suggestion that these • cases may be simply disposed of because the baggage liability limitations at issue are "tariffs" that have the force and effect of law in binding passengers. This is not to say, however, that this Court is left to its own devices and that the contract law of American Samoa is all that we need look to in interpreting the contract of carriage which lies at *36the heart of this controversy. There are rather detailed federal regulations which regulate the area of baggage liability,1 and even in areas not covered explicitly by federal rules, applying territorial law does not seem appropriate because of the "continued federal interest in air transportation." See Arkwright-Boston Manufacturers Mutual Insurance Co. v. Great Western Airlines, Inc., 767 F.2d 425, 427 (8th Cir. 1985). Federal common law should provide the rule of decision in these cases.
There are three major issues for decision. First, Hawaiian argues that it is absolved of any liability for the loss of these passengers’ bags because of contractual provisions purporting to exclude the classes of items Uikirifi and Neru carried from liability. Second, Hawaiian maintains that even if it has some liability, it is limited to $1250.00 per passenger because of compliance with federal regulations that allow limitations of liability to be incorporated by reference into air carriage contracts. Finally, plaintiffs contend that, even if Hawaiian’s limitation of liability conformed to applicable federal regulations, the *37common law "released value" doctrine supersedes the limitation of liability and allows them full recovery.
I. Exclusions from Liability
Hawaiian maintains that certain contractual provisions release it from any liability for the lost bags. Almost half of Uikirifi’s claim from the September 17, 1987 flight was for lost fine mats. The contract states that Hawaiian "assumes no liability for irreplaceable articles and/or valuable items including but not limited to . . . religious or ceremonial mats and artifacts." Rule 26 (B)(2), Terms of Contract of Carriage, at 49 (April 9, 1987). Accordingly, Hawaiian maintains it is not liable at all for loss of the fine mats. Hawaiian also states that it has no liability for the rest of Uikirifi’s luggage and all of Neru’s bags because they contained business goods, not the "personal effects" which Hawaiian had contracted to carry. Appellant’s Memorandum, Hawaiian Airlines v. American Samoa Government ex rel. Langford, CA No. 37-88, at 7 (Sept. 19, 1988). Finally, Hawaiian contends that the "restriction of certain items from any liability was specifically approved by the CAB [Civil Aeronautics Board]." Id., citing Civil Aeronautics Board, Final Rule on Part 254---Domestic Baggage Liability, ER-1374, at 6 (December 23, 1983), reprinted in Air Transport Association of America, Memorandum No. 84-10 re: Domestic Baggage Liability (February 10, 1984) [hereinafter ER-1374].
To deal with Hawaiian’s last point first, the Civil Aeronautics Board [C.A.B. or Board] did not "specifically" approve such limitations as are present here. Rather, the Board required that carriers seeking to incorporate by reference terms of contract include with their tickets a notice of any "’[l]imits on the air carrier’s liability . . . for loss, damage, or delay of goods and baggage, including fragile and perishable items.’" ER-1374, supra, at 6, citing 14 C.F.R. § 253.5 (b)(1). As is discussed in Part HI below, a "limit" on the amount of a carrier’s liability does not mean the same thing as the exclusion of all liability. We assume that the Board, which was conscious of this difference (see Part III, infra), did not intend to use "limit" in the sense suggested by Hawaiian.
*38As to the argument that liability is contractually limited to "personal effects" to the exclusion of "business goods," we see the agreement quite differently.2 Firstly, we could not find an explicit exclusion for "personal effects" in the contract, although the contract does explicitly disclaim liability for certain items --- such as fine mats. It would appear reasonable to us, therefore, that if "business goods" were meant to be excluded from liability an explicit exclusion for "business goods" would have been provided as well.3
At the same time, another clause provides that Hawaiian will "accept for transportation as baggage, such personal property as is necessary or appropriate for the wear, use, comfort, or convenience of the passenger for the purpose of the trip." Rule 19 (A), Terms of Contract of Carriage, at 30 (November 23, 1987) (emphasis added). Two observations may be made about this clause. First, the positive does not always imply the negative. Second, even accepting Hawaiian’s reading, having once "broken" its own condition of carriage, Hawaiian should not now be heard to say that it takes no responsibility for that which it has carried. Cf. Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1316 (9th Cir. 1977) ("If the airline erred in accepting the animal, the responsibility for the mistake falls on the airline, not on the innocent shipper.") This is especially so given the extent of the class of goods sought to be excluded by Hawaiian’s suggested *39interpretation of this clause.4 In fact, the contractual baggage liability clause states simply that Hawaiian "shall be liable for the provable loss of, damage to, or delay in the delivery of a fare-paying passenger’s baggage, or other property." Rule 26 (A)(1), Terms of Contract of Carriage, at 49 (April 9, 1987). Nowhere here is it mentioned that Hawaiian is responsible only for "acceptable" baggage or for "personal" property or effects.
Furthermore, we find that the items questioned come within the definition of "acceptable" baggage. We find listed in another section of the contract several items that Hawaiian will only transport subject to a disclaimer of liability for any damage caused to such items due solely to their fragile nature. This class of fragile items includes "[advertising displays, models, sketches, blueprints and maps" and "[m]icroscopes, oscilloscopes, meters, counters and polygraphs." Rule 20 (L)(3)(e), (L)(3)(h), Terms of Contract of Carriage, at 33 (January 1, 1983). If indeed responsibility for "personal" items were all that was envisaged by the contract, then "personal" items would thus seem to include a polygraph machine or advertising model, if the contract is to be consistently interpreted. We find it hard to imagine a logical definition of "personal use" which could differentiate between a polygraph machine or advertising model and auto parts or clothing for resale. We accordingly conclude that recovery for clothing and auto parts even where they are for "business purposes" is not excluded.
Finally, even if we were to concede that the contract does reasonably attempt to exclude all liability for the clothing and auto parts, the exclusion is void for violating public policy. In Klicker v. Northwest Airlines, Inc., the Ninth Circuit held invalid an airline tariff which purported to exclude all liability for damage due *40to the death of an animal transported as baggage. 563 F.2d 1310, 1312-14 (9th Cir. 1977). The Court first explained that under the common law, carriers were not allowed to exculpate themselves from liability for their own negligence. Id. at 1312. Otherwise ”v"[a] carrier who stipulates not to be bound to the exercise of care and diligence ’seeks to put off the essential duties of his employment.””” Id. at 1313, quoting New York, New Haven and Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 136 (1953) (emphasis in original) (other citations omitted). The Court reasoned that allowing the airline to exclude all liability for damage to animals which it accepted as baggage would violate this rule even where a tariff had been filed with and approved by the C.A.B. Id. at 1314.5
Prior to Klicker, the Second Circuit had issued decisions which arrived at the opposite conclusion. These decisions disallowed recovery for jewelry contained in lost baggage, reasoning that the airline tariffs excluding liability for jewelry had been approved by the C.A.B., and that such tariffs had the force and effect of law. Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403-04 (2d Cir. 1969); Lichten v. Eastern Airlines, 189 F.2d 939, 941 (2d Cir. 1951). The Klicker decision cast doubt on the reasoning of these Second Circuit decisions. The court went so far as to say that it declined to follow the rationale of Tishman & Lipp and Lichten because "it is flatly wrong,” Klicker, supra at 1314, and noted that Lichten had "been uniformly criticized by commentators." Id. at n.6.
A choice between these two lines of authority is unnecessary for our purposes. It is important to note that even the Lichten court acknowledged that it was "the common law rule that a common carrier may not by contract relieve itself from *41liability for the consequences of its own negligence." Lichten, supra at 941. Thus, the Lichten decision did not question the principle of law that concerns us here. Instead, it was grounded on the court’s interpretation of the effect regulation of airlines by the C.A.B. had on that rule. Id. In an era of deregulation, where neither the C.A.B. nor the tariffs considered by the Lichten court exist, it seems clear that exculpatory contractual clauses such as those in question here are no longer valid.
Here, Hawaiian has attempted to exculpate itself from any liability in carrying the enumerated goods — including, presumably, liability for the intentional acts of its employees. The clause therefore, as it attempts to exclude responsibility for the loss of these "business goods," is void. Of course, this reasoning applies equally to the attempted exclusion of plaintiff Uikirifi’s ceremonial fine mats.
II. Limitation of Liability to $1250
Hawaiian seeks to limit its liability for lost baggage through incorporating by reference a contractual term setting a maximum recovery of $1250 per passenger for loss of baggage. A passenger may avoid the $1250 limit by declaring a higher value for his baggage and paying an excess valuation charge of $1.00 for each additional $100 worth of baggage. Rule 26 (A)(1), Terms of Contract of Carriage, at 49 (April 9, 1987).
To so limit its liability, Hawaiian is required to comply with two sets of federal regulations --- 4 C.F.R. Parts 253 and 254.6 The former establishes the method by which airlines may incorpórate by reference terms of a contract of carriage. The latter establishes specific rules relating to notice of limitation of baggage liability.
*42A. Incorporation by Reference
Federal regulations specifically allow an airline in interstate transportation to incorporate by reference terms of its contract so long as proper notice of such incorporation is given the passenger. 14 C.F.R. § 253.4. When such notice is given, local law is preempted and the local authorities cannot require disclosures beyond those federally required. Id. § 253.1. As it here concerns us, the regulations first require each airline seeking to incorporate by reference terms of contract to provide a "conspicuous notice" that any terms incorporated by reference are part of the contract. Id. § 253.5 (a). The regulations further require notice that the contract of carriage incorporates by reference "[l]imits on the air carrier’s liability . . . for loss, damage, or delay of goods and baggage." Id. § 253.5(b)(1). If such notice is not given, the carrier may not claim the benefit of the incorporated baggage liability limitations. Id. § 253.4 (a).
Here, it is clear that language appears on the ticket which fulfills the substantive requirements of Part 253. The second page of the ticket following the flight coupons contains a notice that the air transportation "is subject to the individual terms of the transporting air carriers, which are herein incorporated by reference and made part of the contract of carriage." Exhibit 4, Hawaiian Airlines v. American Samoa Government ex rel. Neru, CA 36-88 (August 4, 1988). Thus the requirement of section 253.5 (a) is met. There is a further notice that the incorporated terms include "[l]imits on liability for baggage, including fragile or perishable goods." This then conforms to the requirements of section 253.5(b)(1).
The question, then, is whether these notices constitute "conspicuous notice" of the incorporated terms. We were not able to find any cases that have dealt directly with what constitutes "conspicuous notice” within the meaning of 14 C.F.R. § 253.5. However, cases decided under the Warsaw Convention have dealt with a similar issue in an analogous context and should be helpful in defining "conspicuous notice." There is also one helpful case involving the adequacy of notice at a time when a tariff required such notice.
*43When its requirements are complied with, the Warsaw Convention7 limits liability of carriers in international transportation by air for loss, delay, or damage to a passenger’s baggage; for personal injury or death of passengers; and for air freight shipments. Warsaw Convention, arts. 17-19. As a prerequisite to obtaining the benefits of limited liability, the carrier must provide the passenger or shipper with a ticket, baggage check, or air waybill (as the case may be) which contains a "statement that the transportation is subject to the rules relating to liability established by this convention." Id., arts. 3(e), 4(h), 8(q). Courts interpreting these provisions have held that the "statement" contemplated by the Convention must be more than " [inconspicuous and hypertechnical ’notice.’" In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1313 n.13 (9th Cir. 1982). Rather, courts have held that as the quid pro quo for the Convention’s substantial limitations on recovery of damages, the documents involved must give the passengers "adequate notice" of the applicability of the Convention so that they might take self-protective measures such as purchasing additional coverage. Lisi v. Alitalia-Linee Aeree Italiane, S.p.A., 370 F.2d 508, 513 (2d Cir. 1966).
Not surprisingly, the factors which the courts have found important in deciding what is "adequate notice" under the Warsaw Convention bear a close relation to what one might intuitively expect to constitute "conspicuous notice." These include print size, type of print, legibility, and placement of the message.
In Lisi, the notice warning passengers about the applicability of the Warsaw Convention was:
"camouflaged in Lilliputian print in a thicket of ’Conditions of Contract’ . . . Indeed the exculpatory statements on *44which defendant relies are virtually invisible. They are ineffectively positioned, diminutively sized, and unemphasized by bold face type, contrasting color, or anything else. The simple truth is that they are so artfully camouflaged that their presence is concealed."
Lisi at 514, quoting the decision of the lower court at 253 F.Supp. 237, 243 (S.D.N.Y. 1966).
In addition, on the front of the ticket and the baggage check a message drawing the passengers attention to the actual notice was printed in "exceedingly small print." Id. at 513. Accordingly, the appellate court affirmed the trial court’s decision granting plaintiff’s motion for summary judgment to strike defendant’s Warsaw Convention defense. (A reproduction of the ticket involved in Lisi can be found at 253 F.Supp. 237, 240-42.)
In another illustrative case where the warning given was found inadequate, the first notice that the ticket was subject to the Convention found in a footnote to the face of the ticket was "in exceedingly small, almost unreadable (4 1/2 point) print." Egan v. Kollsman Instrument Corp., 234 N.E.2d 199, 200 (N.Y. 1967), cert. denied 390 U.S. 1039 (1968). On the outside, back cover of the ticket "likewise printed in miniscule [sic] type" appeared some Conditions of Contract which included a statement that the transportation was subject to the Convention. Id. at 200 n.1. A final notice was "in such exceedingly small and fine, print as almost to defy reading." Id. at 203. The court concluded that even though the airline had literally complied with the Convention notice requirement, this was nevertheless insufficient and not in accord with the overall purposes of the notice regime becáuse "a statement which cannot reasonably be deciphered fails of its purpose and function of affording notice and may not be accepted as the sort of statement contemplated or required by the Convention." Id. at 203. The appellate court reversed the trial court’s denial of plaintiff’s motion to dismiss the defendant’s affirmative defense grounded on the Convention.
The courts have also upheld the applicability of the Convention against claims that the notice *45provided was inadequate. One court did so because the "printing on the back of the ticket and baggage check in this case, though small, is certainly readable." Parker v. Pan American World Airways, Inc., 447 S.W.2d 731, 735 (Tex. Civ. App. 1969) (affirming limitation of passenger’s claim to the Convention amount). In another case:
each sheet of the five page ticket issued to appellees contained three warnings that the provisions of the Warsaw Convention applied to international flights. The reverse side of each sheet contained one warning in type about twice the size of the rest of the printing on the page. The other warning, on the reverse side, was in bold-face type in the body of the "Conditions of Contract."
Trans World Airlines, Inc. v. Christophel, 500 S.W.2d 409, 410-11 (Ky. 1973) (reversing lower court decision and ordering j.n.o.v. for appellant).
Finally, another court held that because an air waybill had notice of the applicability of the Convention "in bold face, easily legible type placed directly above the space wherein Mr. Tobin affixed his signature" the message was adequate notice of the applicability of the Convention as a matter of law. Bianchi v. United Air Lines 587 P.2d 632, 635 (Wash. App. 1978).
The last case of interest to us was not under the Warsaw Convention but under former C.A.B. tariffs. The ticket in question had the notice of domestic baggage liability limitations below a paragraph that had the bold-faced heading "Advice to International Passengers on Limitation of Liability." Greenberg v. United Airlines, Inc., 414 N.Y.S.2d 240, 240 (1979) (emphasis added). The court held that "[a]ny reasonable person, let alone a harried tourist, would conclude that the described page, under its top line, applies solely to international passengers." Id. at 241. The court continued that "[a] notice so elusive cannot fulfill the office provided for it in the tariff. In order to succeed defendant’s communication must be positioned and identified so as to penetrate the traveling public’s reasonably focused consciousness. Instead, defendant has set before the *46traveler a morsel of nourishment hidden in a banquet of dust." Id.
In this scheme of things, it is clear that defendant’s Notice of Incorporated Terms is "conspicuous." The print is not small, and it is certainly legible. Cf. Egan, supra (4 1/2 point type). Also, there is a bold-faced heading which announces the content of the notice which follows. Cf. Bianchi, supra, and the suggestion of Lisi. Moreover, although the particular notice of baggage liability limitations is buried in the midst of five other specific notices, it is important to note that each of these other notices is also required by regulations. Given the fact that the C.A.B. has specifically referred to the advantages of short form ticketing (see Part III below), it would be hard to do this with a message much larger than that here. Also, if the message ran on to several pages because it were in larger type, the airline would potentially be accused of obscuring the notice by burying it in a morass of pages. Finally, the page is the first thing a passenger would see once she got past the flight coupons. In that sense then it is effectively positioned. Cf. Greenberg, supra.
B. Notice of Baggage Liability Limits
However, for Hawaiian to successfully limit its baggage liability merely providing notice of incorporation by reference would not be enough. According to 14 C.F.R. § 254.5 Hawaiian must also:
provide to passengers, by conspicuous written material included on or with its ticket, either:
(a) Notice of any monetary limitation on its baggage liability to passengers; or
(b) The following notice: "Federal rules require any limit on an airline’s baggage liability to be at least $1250 per passenger."
There are two places on the ticket and accompanying material dealing with baggage liability limitations. First, on the ticket itself. Second, on the ticket jacket. In analyzing each of these statements, the first question to ask is whether Hawaiian provided such a notice at all and then whether it was the *47"conspicuous written material" required by the enactment.8
In our opinion, although the notice provided on the ticket itself is sufficiently "conspicuous,"9 its content renders it inadequate. The notice states that:
Liability for loss, delay, or damage to baggage is limited as follows unless a higher value is declared in advance and additional charges are paid: .... (2) For travel wholly between U.S. points, to $1250 per passenger on most carriers (a few have lower limits).
Exhibit 4, Neru, supra.
The notice does not comply with 14 C.F.R. § 254.5(b) since it deviates in several material respects from the federally prescribed language of that subsection. Additionally, we do not think it fulfills the requirement of section 254.5(a). Instead of stating the "monetary limitation on its baggage liability to passengers," (emphasis added), *48the ticket clause states a hypothetical limitation on "most carriers" without indicating what this carrier’s liability limitations are. The difference is not merely semantic. A traveller deciding whether to buy additional baggage coverage must make his decision on the basis of what he might recover without that additional insurance. Where the airline does not provide notice of its actual limitation, the customer cannot choose properly. That the importance of this distinction was understood during the rulemaking process seems clear when we consider that when the C.A.B. promulgated 14 C.F.R. § 254.5 it stated that it found the inclusion of either "(1) the Board-mandated notice, or (2) a specific statement of its actual liability limitation" preferable to "a general notice that liability may be limited." ER-1374, supra, at 6 (emphasis added). Although the notice provided on the ticket is more than a "general notice," in our opinion it seems closer to being a "general notice" than a "specific" statement of "actual" liability limitations.
Hawaiian’s . ticket jackets also include a notice of baggage liability limitation. The language here unambiguously sets forth Hawaiian’s actual limitation. It states:
Liability for loss or damage: not over $1250 per passenger unless higher value declared in advance. Charge for higher value declared $1.00 per $100 (up to $2,500).*
Exhibit 11, Hawaiian Airlines v. American Samoa Government ex. rel. Uikirifi, CA No. 35-88 (August 4, 1988); Exhibit 5, Hawaiian Airlines v. American Samoa Government ex rel. Neru, supra.
However, it is less clear that the language of limitation on the jackets is the "conspicuous written material" required by the regulation.
Hawaiian uses at least two different types of ticket jackets. In one version, the baggage liability limitation is behind the flap in the ticket jacket in which one puts the ticket. (Hereinafter referred to as Type 1 jacket.) The contractual terms here appearing would ordinarily *49be hidden from view by the passenger’s ticket. Presumably the ticket will be placed in that part of the jacket designed for ticket placement. The design of this ticket jacket is inconsistent with conspicuousness; it naturally encourages the passenger to block from view the terms of contract. In Greenberg, supra, the court talked about positioning the message so that it penetrates the consciousness of the traveling public. This message would not.
We are mindful of the fact that the front of the flap has a boldface and capitalized message that says "FOR BAGGAGE INFORMATION LIFT FLAP." Even though it is the largest sized print on that page, this alone does not render the limitation of liability "conspicuous." It does not indicate what sort of "baggage information" is to be impárted--it could just as well refer to size and weight limitations as to liability limitations. More importantly, the jacket’s design just does not encourage the message to be found.
The other ticket jacket used by Hawaiian (hereinafter referred to as Type 2 jacket) has the baggage liability limitation on an inside page of the jacket. Perhaps some may say that this message is not as eye catching as it could be, but we find the same conspicuous.10 The typeface, though small, is legible. See Parker, supra. Also, the *50message is at the top of the flap and set out in its own box. Thus the notice is not buried in a mass of other information as the information was in Lisi or Greenberg. Finally, a bold face message asking the passenger to "PLEASE NOTE" precedes it. (This last factor may not immediately appear that impressive considering there is a plethora of such "Notes"-s and "Notice"-s on the jacket. An attempt, however, to be eye catching is certainly better than no attempt at all.)
In summary, our conclusions with regard to ticket jackets are that the Type 1 jacket is inadequate notice while the Type 2 jacket is adequate notice.
Having so concluded, we consider the evidence presented. In Uikirifi. the evidence indicates that plaintiff took two flights. Yet only one ticket jacket was introduced into evidence. That ticket jacket, exhibit 11 in CA No. 35-88, is a Type 2 jacket --- the kind which provides adequate notice. On the extent of our record, and mindful of plaintiffs burden of proof, we hold on the evidence before us, that the Type 2 jacket was the applicable jacket issued on both flights. (We note that Judge Sunia’s findings below appear to be premised on Uikirifi having received a Type 1 jacket. Judge Sunia found the baggage liability limitation inadequate because it was located "underneath the flap," Findings of Facts, Conclusions of Law, and Order, American Samoa Government ex. rel. Uikirifi v. Hawaiian Airlines, CA No. 63-87, at 2 (District Court, March 2, 1988). Notwithstanding this, since these matters have come to us by way of trial de novo. Rule 14 D.C.R., it is our record of the evidence that must govern our findings.) At this juncture, then, Uikirifi’s recovery would seem to be limited to $1250 per flight.
Now, turning to the ticket jacket in the Neru case, the jacket introduced into evidence here was a Type 1 (underneath the flap) jacket --- i.e., providing inadequate notice. Section 254.5 does not state what consequences befall an airline which does not provide conspicuous notice of its liability limitations. However, the logical implication is that the airline would lose its contractual right to limit its baggage liability. Essentially, the statutory provisions having been rendered inapplicable by the absence of notice, *51there is a reversion to the common-law liability of common carriers. Under the common law, only in very narrow circumstances could the carrier escape liability for loss of or damage to a customer’s baggage. See discussion infra. Even if this were not the necessary result of failure to provide adequate notice under section 254.5, it is the result contemplated by the parties’ contract. The contractual provision limiting liability to $1250 specifically states that this level of "maximum liability shall be waived for an individual claimant where it can be shown that with respect to that claimant HA [Hawaiian Airlines] failed to provide notice of limited liability for baggage." Rule 26 (A)(1), Terms of Contract of Carriage, at 49 (April 9, 1987). Given the regulatory framework Hawaiian operates under, it seems logical to treat the "notice" referred to in the contract as being synonymous to the "conspicuous" notice required by the regulations. Accordingly, we find that Neru is entitled to recover the full extent of his damages. Neru’s unrebutted testimony valued his loss at $2,286.70. Because the items lost were all new, there is no question of depreciation and we find that Neru is entitled to that amount.
IH. Released Value Doctrine
Having found that Uikirifi was provided sufficiently "conspicuous" notice to meet the requirements of 14 C.F.R. § 254.5, we next consider whether or not the "released value doctrine" affects the limitation of liability asserted against Uikirifi.
As noted above, the common law prohibited any attempts by carriers to exculpate themselves from all liability for their own negligence. Notwithstanding, federal common law developed the "released value" doctrine which essentially permitted a carrier to limit its liability for loss to the agreed value of property shipped in circumstances where the rate charged is related to the value of the shipment. See First Pennsylvania Bank v. Eastern Airlines, Inc., 731 F.2d 1113 (3d Cir. 1984). The doctrine is nicely capsulized in that court’s conclusions.
[U]nder federal common law, the authority of a common carrier to limit its liability for the loss of the goods in its care is governed by the "released *52value doctrine," under which a carrier may limit its liability to the agreed value of the goods, provided that the shipper has the option of obtaining coverage for the full value of its goods, is made aware of that option, and knowingly chooses to pay a lower price for the lesser coverage.
Id. at 1122.
Without the released value agreement, the carrier’s liability under common law principles would equal the actual value of the property. Id. at 1116. Thus, when the carrier gave the shipper the chance to choose the higher fare --- which bought with it full liability coverage --- over the lower fare— with its correspondingly lower coverage --- the passenger would be estopped from asserting the carrier’s common law liability. One recent air shipment case has held that the carrier must give "’reasonable notice’" to the shipper of his options and that the shipper must make "’an absolute, deliberate and well-informed choice’" of the lower fare with its lower liability. Fireman’s Fund Insurance Cos. v. Barnes Electric, Inc., 540 F.Supp. 640, 646-47 (N.D. Ind. 1982), quoting Trans-American Van Services, Inc. v. Shirzad, 596 S.W.2d 587, 590-91 (Tex. Ct. App. 1980). In Fireman’s Fund, the shipper had actually signed a statement which assigned a value to a shipment of art which was destroyed while in the carrier’s custody. However, the court found this fact insufficient to grant the carrier’s motion for summary judgment to limit liability to the agreed upon amount because the shipper had a limited knowledge of English and maintained that he thought the contract of carriage to be a "questionnaire," rather than a contract. Id. at 647-48. The court thought that a jury might believe that under those facts, the shipper "was not afforded [the] ’fair opportunity’" required by the released value doctrine. Id. at 647.
On the foregoing discussion of the released value doctrine, Hawaiian would seem to be fully liable for Uikirifi’s losses because there has been no "absolute, deliberate and well informed" choice of limited liability by the passenger. No document declaring the value of the shipment or choosing the lower over the higher fare was signed, nor was there testimony that the availability of excess *53valuation protection was pointed out to plaintiff or otherwise explained to him. However, in promulgating the applicable baggage liability-regulations, the C.A.B. implicitly limited the extent to which passengers may rely on the released value doctrine to avoid an airline’s attempt to limit liability.11
During the rulemaking process, the C.A.B. considered whether to adopt a proposal, the main feature of which was, that "passengers should be given oral and written notice of the carrier’s liability policy, and asked to sign a ’statement of understanding’ at check-in." ER-1374, supra, at 4. The Board rejected the proposal because it found the suggestion to be not "justified in light of the costs that would be involved.” Id. at 6. The Board’s action in effect is a rejection of one of the principal features of the released value doctrine since the suggested "statement of understanding" is simply the sort of waiver which would seem to be necessary for a carrier to demonstrate that the passenger had made an "absolute, deliberate and well informed choice." Another commenter expressed concern over allowing incorporation by reference of the liability rules. Id. at 5. The C.A.B. responded that:
short-form ticketing was important to the efficiency of the air transportation system, and that there was no cost justification for replacing the tariff system with one of bulky individual contracts to be given out to each airline passenger. Baggage liability is just one of the many terms of the contract of carriage that are comprehended by that basic policy decision. The Board has recognized, however, the importance of baggage liability to the individual rules that are the subject of this proceeding. *54The intent of the rules is to alert every passenger directly, in simple terms, of the carrier’s limitation of liability, while making the details available through less costly means under the provisions of Part 253.
Id. This too implies that the Board had rejected an explicit waiver approach, since it would be a step toward undesirable "bulky" contracts, in favor of allowing the carriers to limit their liability through incorporation by reference.
On the other hand, the C.A.B. may also seem equivocal on the issue because in the same rulemaking, it also considered and refused to promulgate a rule requiring the airlines to carry excess valuation insurance.12 In so doing, the C.A.B. noted that nevertheless it would appear "to be in the carriers’ own interest to offer excess valuation insurance coverage, or at least to make sure that it is readily available" because the released-value doctrine was the very basis upon which an airline was allowed to limit its liability in the first place. ER-1374, supra, at 11. The Board then stated that its decision to not require excess valuation insurance was "not intended to preempt state courts on the issue of excess valuation coverage." Id.
Extending the import of this last statement of the Board’s intent to its limits, one might argue that by not intending to preempt courts on the issue of excess valuation coverage, the C.A.B. must also have not intended to preempt application of the full scope of the "waiver" requirement. Such a view would ignore the Board’s previously mentioned *55intention to facilitate incorporation by reference without the costs associated with individual sign-offs and we refuse to adopt it. Instead, we believe that these somewhat conflicting expressions of intention may be harmonized without doing violence to each other. This can be done by requiring that a carrier make available excess valuation insurance, make this fact known to the travelling public in a notice at least as "conspicuous" as the ones which are provided under sections 253.5 and 254.5 on incorporation by reference and baggage liability limitations, and set out the outlines of the coverage provided. This much Hawaiian has done. The ticket itself contains a statement attached to the one on baggage liability limitations that the contract also incorporates by reference terms on the "availability of excess valuation coverage." Exhibit 4, Neru, supra. Also, Uikirifi’s ticket jacket includes a statement that details the availability of excess valuation insurance on Hawaiian. The jacket reads ’ "[c]harge for higher value declared [is] $1.00 per $100 (up to $2500)." Id., Exhibit 5; Uikirifi, supra, Exhibit 11. Since the excess valuation statement is of the same size and in the same location as the baggage limitation statement, in the Uikirifi case it is, like the notice of limited liability, sufficiently "conspicuous."13 Accordingly, Uikirifi would not be entitled to recover any more than the contract ceiling, namely, $1250 per flight or $2500.14
*56Conclusion
We conclude that the ticket and ticket jacket given plaintiff Neru did not comply with federal regulations allowing limitation of liability for loss of bags to $1250 and thus were inadequate to inform him or those limitations. Further, it would violate public policy to allow Hawaiian to disclaim all liability for loss of the bags. Therefore, Neru is entitled to recover the full amount of his loss — $2,286.70.
In Uikirifi’s case, Hawaiian likewise could not disclaim all responsibility for the contents of the bags. However, because the notice requirements of the federal regulatory scheme were complied with, he may only recover $2500 for loss of his bags --- that is, $1250 for each of the two flights he took. We also note that Uikirifi paid $129.00 in excess baggage fees on his September 17, 1987 flight. Since Hawaiian did not deliver a single one of these bags, we find this to be an additional item of damage due Uikirifi. He will accordingly have judgment for $2629.00.
It is so Ordered.
These regulations were promulgated by the Civil Aeronautics Board. Although the particular statutory authority under which the regulations were promulgated is unclear, former 49 U.S.C. § 1374(a) provides ample room for the promulgation of these regulations. That provision provides, in part, that carriers are to provide "adequate service." This clause has been interpreted broadly enough to include regulation of smoking on aircraft as a factor of adequate service. Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039, 1044-46 (5th Cir. 1982), cert. denied 459 U.S. 1107 (1983). Clearly, then, baggage liability would also be subject to regulation under that interpretation of "adequate service." The C.A.B. no longer exists, having been deregulated out of existence. However, its authority to regulate in the areas of "safe and adequate service" has been transferred to the Department of Transportation. 49 U.S.C. §§ 1551(a)(4)(C), 1551(b)(1)(E). Thus, the Congress has expressed its concern that these areas remain subject to direct federal regulatory control.
In the Neru case, plaintiff concedes that the automobile parts were bought for resale. In Uikirifi. Hawaiian maintains that the amount of clothing bought by plaintiff indicates that he intended to resell the clothes. Although Uikirifi characterized the items as "family shopping" in his claim form, we accept for the purposes of analysis Hawaiian’s contention.
As defendant supplied the myriad terms of contract, in choosing between reasonable interpretations of the contract, we opt for that construction which operates against the draftsman. See Restatement (Second) of Contracts § 206.
The net effect of Hawaiian’s position simply fails to address the possibilities, indeed the realities, that some people who use its air service do so in furtherance of a business purpose and therefore it is not unlikely that accompanying baggage of the business traveller will have something to with that business purpose.
By the time that the case reached the appellate level, the C.A.B. had invalidated the tariffs in question as unreasonable. This, however, would not have helped the plaintiffs as the tariff was in full force at the time they traveled and it would take a judicial determination that the tariff had been void as against public policy to give them relief. Id. at 1313.
As we will see in Part IH, in some circumstances limiting liability to a fixed amount is not considered to be the same as an attempt at exculpation and may be valid.
Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature Oct. 12, 1929, adhered to by the United States June 27, 1934, 49 Stat. 3000, T.S. No. 876, reprinted as note to 49 U.S.C.A. sec. 1502 [hereinafter Warsaw Convention].
Although section 253.5 speaks of "conspicuous notice" and 254.5 of "conspicuous written material,” we do not think that there is a relevant difference between these two phrases on the facts of this case and will treat them as synonyms. There might be a valid difference if, for example, an airline gave "conspicuous notice” by orally informing each passenger of the areas of incorporated terms. This would seemingly not satisfy the "conspicuous written material" requirement on baggage liability. However, on the facts of this case there is no reason to treat them differently.
The notice is conspicuous because it is in fairly large type, easily legible by one who gets that far into the ticket, and has a bold-face heading which would draw attention to the statement. Basically, there is not that much more that an airline can do to make this more conspicuous without using individual sign-offs, larger format tickets, or similar devices which the C.A.B. has in effect said they need not do. (See below.)
Not liable for fragile or valuable articles.
There would be any number of ways that Hawaiian could have made the limitation more conspicuous --- e.g., using larger type, bold print throughout, or putting the message on the jacket cover itself next to the seat information. However, it is easy to say that things could be made more conspicuous. The question that needs to be answered is whether what was provided was conspicuous enough. Also, in answering this question, we have to be careful to remember that some of the rest of the material on the jacket is required by other federal regulations. If too much attention is drawn to this provision, then less will be drawn to such things as, for example, the notice on overbooking of flights. We should not place the defendant in the situation of having to choose to comply with one set of regulations at the expense of noncompliance with another.
It is to be noted that Fireman’s Fund involved air shipments, and not passenger accompanying baggage. In the air freight situation, we could not find comparable regulations regarding liability similar to 14 C.F.R. Parts 253 and 254. Thus the standard explicated in Fireman’s Fund is not necessarily the same as that applicable in the context of accompanying baggage.
Although phrased in terms of "excess valuation insurance" the C.A.B.’s reference is clearly to the released value doctrine. The vocabulary merely reflects a different way of saying the same thing. The classical released value doctrine talked of rates being lower for released values. Insurance implies an extra charge for additional baggage. But whether phrased in terms of a discount for lower coverage or a premium for additional coverage, the economic effect of either is the same--one pays a lower rate for limited liability and a higher one for full protection.
In the Neru case, the excess valuation notice is inadequate because of its location behind the ticket jacket flap. However, this makes no practical difference since Neru is already entitled to full recovery as explained above.
The plaintiffs also contended that they were deprived of notice of the limitations and entitled to full recovery because Hawaiian was obligated to provide notice of the baggage liability limitations in Samoan. Without expressing agreement on the merits of this contention, we find it factually inappropriate. We are not impressed with Uikirifi’s asserted inability to read English because he was able to respond to and fill out claim forms to a degree which demonstrates sufficient proficiency in English *56to understand the limitations of liability on the tickets. (Since we have awarded Neru full recovery, the issue does not arise in his case.) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485743/ | These three actions seek the termination of parental rights. At the request of counsel, all three cases were set for trial and were heard on February 15, 1989. As became clear during the respective hearings, none of the cases was ready to be heard. This is because counsel made no serious attempt to notify the natural parents whose rights he proposes to terminate.
In all three cases the natural parents are believed to reside in Western Samoa and the only service attempted on them was by publication. The American Samoa statute dealing with service by publication requires that three things be done in order to effect such service: publication in a newspaper, posting in front of the court house, and mailing by registered mail to the defendant at his last known address. A.S.C.A. § 43.0502(a). The statute requires all three of these elements, not just one of them. The attempt to reach the defendant by mail is by far the most important of the three requirements, since it usually offers the likeliest prospect of actual notice to the defendant. Yet no such attempt was made in any of these cases.
The failure of counsel to notify the natural parents by mail at their last known addresses would make any attempted termination of their parental rights null and void, since the Court has not *59obtained jurisdiction over them.1 Even if we did have jurisdiction, however, we would be most reluctant to terminate the rights of natural parents without assuring ourselves that they genuinely understand and consent to such termination, or that termination is in the best interest of the children notwithstanding a lack of parental understanding or consent.
A legal termination of parental rights has important and irrevocable legal consequences for the child and for the parent. These consequences are often quite different from those of the informal adoption which has long been common in Samoa and with which all Samoans are presumably familiar. The most important difference is that a child whose legal relationship with his natural parents has been severed can never return to them --- as children who have been subject to fava Samoa adoption quite commonly do --- except by order of the government or the adoptive parents. Samoan parents who give their children to another family to raise, or who sign a "waiver" prepared by counsel for the prospective adopting parents, cannot be conclusively presumed to understand and agree to the consequences of a legal termination of parental rights.
Except where it is genuinely impossible to locate the natural parents, or where bringing them *60to American Samoa would occasion extraordinary hardship, they should be interviewed and counseled by the Child Protective Services division of the territorial Department of Human Resources. After reading the report prepared by the Child Protective Services, the Court can decide whether it will be necessary for the natural parents to testify at the hearing.
In each of these cases counsel signed an affidavit to the effect that the natural parents could not be located despite diligent efforts. At the hearings, however, it appeared that no such efforts were made.
In cases No. 13-88 and 14-88 the natural father is the brother of one of the petitioners. She testified that she has been out of touch with him for years and has no idea how to contact him; yet in May of 1988 he told the Child Protective Services that he was living with the petitioners in American Samoa. It also appeared at the hearing that petitioners did know how to contact the natural mother, who is divorced from the father of the children, but had not attempted to contact her for several years. The Court cannot proceed further without the testimony of both natural parents. We will, however, place the children in the temporary legal custody of the petitioners for the sole purpose of allowing them to attend school in American Samoa.
In case No. 83-87 one of the petitioners testified that she is related to the natural mother, knows where she lives in Western Samoa, but has not attempted to contact her since filing this action. The natural mother should be notified of this action by extraterritorial personal service or by registered or certified mail. Petitioners should attempt to arrange for her to be interviewed by the Child Protective Services and should also attempt to learn from her the identity of the natural father. After receiving the Child Protective Services report the Court will determine whether it can proceed further in this action without the testimony of one or both of the natural parents.
It is so ordered.
The Court may in certain circumstances obtain jurisdiction over absent parties by means other than service by publication. Counsel may apply for leave of Court to effect personal service on a party outside the Territory. A.S.C.A. § 43.0504; T.C.R.C.P. Rule 4(e). Or if the defendant actually receives notice by mail and signs a registered return receipt, the remaining elements of service by publication may be dispensed with. A.S.C.A. § 43.0504. In actions for the termination of parental rights service on an absent defendant may be by publication "or by any other means authorized by the Court." A.S.C.A. § 43.0318. In this case no means other than notice by publication was requested by counsel. In any case the Court would not approve any method not genuinely calculated to effect actual notice. See Memorandum of the Justices, 3 A.S.R. 33 (1986). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485746/ | This is an appeal from the administrative decision of the American Samoa Power Authority (hereinafter ASPA) concerning a purchase of diesel fuel.
Appellant Pago Petroleum Products, Inc. (hereinafter PPP) maintains that it was the low bidder in a competitive bidding process and should have been awarded the contract. Real Party in Interest South Pacific Resources, Inc. (hereinafter SPRI) maintains that it and not PPP was the low bidder.
Appellee ASPA initially awarded the contract to SPRI, then rescinded the award and issued a new invitation for bids. In its response to this appeal ASPA seeks a declaratory judgment that the contract should be awarded in accordance with the outcome of the rebidding process. Both PPP and SPRI maintain that the proposed rebid would violate the statutory and contractual rights of the winner of the first bidding process.
I. The Bidding Process
On or about November 4, 1988, ASPA published an invitation for bids for diesel fuel to be supplied during the first six months of 1989. Four sealed bids were received, including those of PPP and SPRI.
*79The bids were opened on December 5, 1988. Representatives from PPP and SPRI were present.
The first bid opened was that of PPP, which was for 48.12 cents per gallon "plus applicable American Samoa Government Terminal Fees." When this bid was opened it was passed to the SPRI representative, who looked at it, turned to the PPP representative, and said, "You are giving it away," or words to this effect.
The SPRI bid was opened next. It was for 48.8 cents per gallon and made no reference to a terminal fee. After the bid had been opened and while it was being examined by the PPP representative, the SPRI representative said, "SPRI’s price includes the terminal fee."
The terminal fee is one cent per gallon. Since SPRI’s bid was less that one cent per gallon higher than PPP’s bid, SPRI was the low bidder if and only if its bid should have been construed to include the terminal fee. If not, PPP was the low bidder. (The other two bids were substantially higher.)
On December 6, the day after the bids had been opened, the General Manager of SPRI sent a telephone facsimile message stating:
In response to ASPA’s request for bid clarification, SPRI’s price offer includes terminal fee of USD $0.01 per U.S. gallon and any other applicable taxes. (Emphasis in the original.)
On December 12 ASPA awarded the contract to SPRI.
On December 15 PPP protested the award in a letter to ASPA, arguing that SPRI’s bid should have been construed not to include the terminal fee and that PPP was therefore the low bidder.
On December 21 the Chairman of the Board of Directors of ASPA convened a meeting at which only one other director was present. These two were the only directors physically present in Samoa and not disqualified by conflict of interest from participating in a decision on the PPP complaint. In a memorandum to the executive director of ASPA *80they announced their "conclusion on behalf of ASPA’s board of directors" that the original award should be cancelled because of ambiguities in the invitation and a new invitation issued.
On December 22 the executive director issued a second invitation for bids.
Later on December 22 this appeal was filed.
IE. The Terminal Fee
The one-cent terminal fee has been imposed by law since December 30, 1987, on all petroleum drawn out of American Samoa Government petroleum storage facilities. A.S.C.A. § 20.1607(b)(3), as amended by Public Law 20-43. (For some months prior to the enactment of Public Law 20-43, a terminal fee had been collected by Executive Order.)
The bidding process that is the subject of the present appeal is the third such process for ASPA fuel contracts during the time the terminal fee has been collected. In each of the two prior contracts the successful bidder did not include the terminal fee in its per-gallon bid price, but did charge ASPA for the terminal fee in addition to the bid price. As it happens, one of these two suppliers was PPP and the other was SPRI.
The ASPA fuel contract for the first six months of 1988 was awarded to PPP as a result of a competitive bidding process in December 1987. The PPP bid had specified a price of 60.47 per gallon "plus applicable American Samoa Government Terminal Fees." PPP did in fact charge ASPA for the terminal fee in addition to the specified per-gallon price. (SPRI had been an unsuccessful bidder. The SPRI bid was for 67.33 cents per gallon and did not mention terminal fees.)
The ASPA fuel contract for the second half of 1988 was awarded to SPRI. The SPRI bid for this contract had specified a price of 59.0 cents per gallon. The bid made no mention of the terminal fee. SPRI has, however, charged ASPA the one-cent terminal fee in addition to the specified contract price throughout the duration of its contract. (PPP, an unsuccessful bidder in this process, had specified a price of 59.34 cents per gallon plus the terminal fee.)
*81In other words, during the time between the enactment of the terminal fee and the opening of the bids that led to the present appeal, both PPP and SPRI consistently took the position that they would charge ASPA the terminal fee in addition to the contract price for fuel. PPP consistently made this an explicit term of its proposals to ASPA; SPRI gave no such advance notice of the additional fee, but did charge and collect it.
m. Exhaustion of Administrative Remedies
SPRI initially maintained that the Court lacked jurisdiction over this appeal because PPP had failed to exhaust its administrative remedies. SPRI has since requested affirmative relief from the Court, thus implicitly waiving objection to the Court’s jurisdiction. ASPA has explicitly consented to the Court’s jurisdiction.
It is not invariably the case that parties to a lawsuit can supply a court with jurisdiction denied to it by the constitutional and statutory provisions that comprise its charter. A party can generally waive the benefit of a limitation on jurisdiction that is clearly designed only for his own protection, such as a rule requiring personal service on defendants. But when the limits of jurisdiction reflect a fundamental decision that certain kinds of questions should be resolved in another court or in some non-judicial forum --- as when the court lacks subject matter jurisdiction over an entire class of cases --- the court is bound by this allocation of decision making power even when the parties to a particular case would willingly submit to a different one.
The requirement that a claimant against a government agency must exhaust his administrative remedies within the agency before bringing suit has been held to comprise both waiveable and nonwaiveable elements. Laws prescribing detailed procedures for presenting claims to an agency are generally designed to give the agency a fair chance to review and respond to the claim before being haled into court. See Matthews v. Eldridge, 424 U.S. 319 (1976); Weinberger v. Salfi, 422 U.S. 749 *82(1975).1 In a particular case the agency may decide that these purposes have been served notwithstanding the claimant’s failure to adhere precisely to all the specified procedures; it may therefore waive its right to object and the court may proceed to hear the case.2 Neither the agency nor the court, however, may dispense with requirements designed to ensure that the case admits of judicial resolution: that there be a genuine dispute between the claimant and the agency on at least one specific and identifiable question of law or fact. One such requirement is that the agency’s decision be final before the claimant challenges it in court. See Matthews, 424 U.S. at 328; Salfi, 422 U.S. at 765-67.
The territorial Administrative Procedures Act, A.S.C.A. §§ 4.1001 et seq. (hereinafter cited as A.P.A.), codifies the doctrine of exhaustion of administrative remedies in many of its particulars. Most of these particulars, such as the aggrieved party’s right to an administrative hearing and the rule that the agency must make written findings of fact and conclusions of law, are provided for the protection or convenience of the agency or the aggrieved party. See, e.g., A.S.C.A. §§ 4.1026, *834.1030. As such they are waiveable and have been waived by the parties’ submission to the jurisdiction of this Court.
The A.P.A. also provides, however, that judicial review is available only to "[a] person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case." A.S.C.A. § 4.1040(a).3 Insofar as this section merely gives the agency the right to insist that all its internal review procedures be exhausted prior to judicial review, it is waiveable and has been expressly waived by ASPA in the present case. But insofar as the "final decision" requirement incorporates the fundamental rule that courts should be in the business of deciding real controversies rather than giving advice about theoretical ones, we must be concerned with it even if the parties are not.
We conclude, however, that ASPA did finally dispose of PPP’s claim. The substance of this claim is that by being the low bidder on December 5, 1988, PPP acquired the contractual right to sell ASPA such diesel fuel as it would need between January and June of 1989 at a price of 48.12 cents per gallon plus the terminal fee. ASPA’s decision to issue a new invitation for bids, although raising the theoretical possibility that PPP might reoffer its original bid and win the second competition, entails first and foremost a renunciation of the proposition that ASPA incurred any contractual obligations as a result of the first competition.
The decision to rebid the contract came six days after PPP had filed a written protest of the *84initial award to SPRI. The stated justification for the rebid is that the initial invitation for bids contained three ambiguities, two of which have to do with whether a terminal fee will be added to the per-gallon bid price. In context it is clear that the rebid decision was a response by the governing authority of ASPA to PPP’s claim that it should have been awarded the contract.
SPRI points out that there was no quorum of the Board of Directors at the December 21 meeting. The quorum for meetings of the ASPA Board of Directors is three of the five directors. A.S.C.A. § 15.0103(c). At the time there were only four directors of ASPA, the fifth position being vacant. Two members were present at the December 21 meeting: Chairman Smith S. Lutu, and Director and Legal Counsel Enere Levi. One of the two remaining directors, who manages a company that had bid for the fuel supply contract, disqualified himself from participating in the decision because of this conflict of interest. The fourth director resides in Hawaii and the record does not reflect the extent, if any, to which he participated in the decision.
ASPA does not assert that there was a quorum, but contends that the rebid decision did not require a formal meeting of the Board of Directors. ASPA contends that immediate action to resolve the uncertainty over who was entitled to the fuel supply contract was urgently necessary since ASPA would otherwise run out of fuel within about two weeks, leaving the Territory without electricity, fresh water, or a waste water disposal system. Under these circumstances ASPA maintains that a decision taken by two-thirds of the eligible directors, although not at a formal meeting, should be regarded as a decision of the Board; or that the executive director of ASPA, who is its chief operating officer and is vested by A.S.C.A. § 15.0104 with "all executive functions," had authority to act on the recommendation of the Chairman and Legal Counsel of the Board.
It does not seem unreasonable to attribute to ASPA, acting through those of its directors who can be assembled for an emergency meeting or even through its chief executive officer acting alone, the power to respond conclusively to administrative complaints in cases whose circumstances do not admit of delay. At this stage of our analysis, *85however, we are concerned not with whether the rebid decision was lawful but only with whether it should be regarded as the agency’s final decision. It is important to notice that these are different questions: a decision may be substantively illegal and yet be the real and settled position of the agency.
Moreover, the rebid decision may be "final," for the limited purpose of determining whether it gave rise to a justiciable controversy, even if the process by which it was made was defective in ways that would have entitled ASPA or another party to insist that it be reconsidered at a proper meeting of the Board prior to any judicial review. Since all parties to this case have implicitly or explicitly consented to the jurisdiction of the Court, any procedural defects that are waiveable by the parties must be regarded as waived. See Weinberger v. Salfi, supra: Matthews v. Eldridge, supra. The only non-waiveable defects are those that would render the decision tentative or interlocutory rather than final. A decision is final in this sense, even though it might theoretically have come out differently if the agency or an aggrieved party had insisted on the full panoply of available administrative procedures, provided that it is meant to reflect the settled position of the agency and that it leaves the parties genuinely adverse.4
*86These conditions are met in the present case. After PPP filed its administrative complaint, two of the three directors who were eligible to participate in the proceeding met and formulated what they clearly intended to be ASPA’s final response to that complaint. No party to the appeal has suggested that the agency’s position would be any different if the three eligible directors were required to assemble in the same room to reconsider their decision. The chief executive officer of the agency lent his own authority to the decision by implementing it. Before this appeal was filed the agency had already translated its response into action by cancelling the original award and issuing the invitation for new bids. Finally, in its conduct of this appeal ASPA has treated the rebid decision as conclusive: although government entities commonly resist challenges to their actions by seeking judicial affirmation of their continued discretion over the matter in controversy, the primary relief sought by ASPA in this case is a judicial order that the new bidding process go forward.
The agency may have responded in the wrong way to the PPP complaint, but the agency has clearly and definitely responded. We therefore decline to contradict the judgment of both ASPA and PPP that the dispute between them is a genuine one that admits of judicial review.
IV. The Merits of the PPP Complaint
The sole argument urged by PPP on appeal is that the SPRI bid should have been construed to exclude the terminal fee.
ASPA contends, on the other hand, that the original invitation for bids contained two ambiguities with respect to the terminal fee: it did not make clear whether fuel destined for ASPA, a government agency, would be subject to terminal fees; and it did not make clear whether terminal fees charged to the supplier, if any, would be passed on to ASPA in addition to the per-gallon bid price. The decision to issue a new invitation for bids was therefore justified by the administrative rule providing for such action in the event of "[inadequate or ambiguous specifications contained in the solicitation." A.S.A.C. § 10.0232.
*87This contention ignores the possibility that the bids themselves might have eliminated any ambiguity latent in the invitation. Suppose, for instance, that all four bidders had added to their per-gallon bid prices the language used by PPP: "plus applicable American Samoa Government Terminal Fees." Both of the ambiguities would then have been eliminated: ASPA could have ascertained with certainty the identity of the low bidder and the exact price it would have to pay for fuel, the former by a glance at the bids and the latter by a call to the Tax Office about whether the terminal fee would be "applicable" to ASPA fuel.
The SPRI bid did not indicate on its face whether the terminal charge was included or excluded. PPP argues, however, that SPRI had eliminated any ambiguity on this count by its performance under the ASPA fuel contract for the second half of 1988. We agree.
The successful SPRI bid for the 1988 contract, like the SPRI bid for the 1989 contract, gave a per-gallon price without mention of the terminal fee. Indeed, the language of the two documents is identical in every important respect. Yet throughout the duration of the 1988 contract SPRI charged ASPA the terminal fee in addition to the per-gallon price. At the moment the bids for the new contract were opened on December 5, 1988, SPRI was still interpreting the price term on its existing contract to exclude the terminal fee. The first notice to ASPA that SPRI would interpret the identical language in its 1989 bid to include the fee came after the opening of the bids, after the SPRI representative had seen the PPP bid, and after it was clear that SPRI would be the low bidder if and only if it changed its interpretation.
It is a well-established tenet of contract law that ambiguities in the offer and acceptance, which otherwise might prevent the formation of a contract, may be resolved by reference to the prior business relations of the parties. See Restatement (Second) of Contracts §§ 202, 203, 223, and comment (a) to § 33; Corbin on Contracts §§ 95, 556; Uniform Commercial Code § 1-205. The circumstances of this case are unusual, in that the record suggests ASPA’s management never realized it was being charged the terminal fee under the 1988 contract. While this distinction might be helpful to ASPA in a suit against SPRI, it does not *88extricate SPRI from the consequences of its own former interpretation. A party who unilaterally places a practical construction on contract language does not necessarily bind other parties to this construction, but he seriously limits his own chances of enforcing an opposite construction when the old one should be of no further benefit to him. See Corbin, supra, § 558.
When asked by ASPA to explain the shift in its interpretation, SPRI argued that the fuel supply business in American Samoa had changed between June and December of 1988. The change was laid to a single important event. In a letter to ASPA dated December 16, 1988, the general manager of SPRI stated that
there was significant confusion during the first six months as to the legality of [the terminal] fee and if it would remain in effect. The legality question . . . was not resolved until July 1988 with legislation being passed by the American Samoa legislature .... Under these circumstances no petroleum supplier could include the terminal fee in a bid proposal ....
The above cited questions were resolved with the terminal fee legislation being enacted in July 1988. Therefore, SPRI did include the $0.01 per gallon terminal fee in the bid proposal to supply ASPA during the January - June 1989 time period.
This argument --- that the terminal fee was arguably illegal and its collection uncertain in June, but was legal and therefore certain in December — was the sole justification advanced by SPRI in response to PPP’s administrative claim that the SPRI bid should have been construed consistently with its prior performance. It is, however, clearly wrong. The terminal fee was enacted into law in December 1987, not July 1988. Its continued collection was at least as certain in June 1988 as in December 1988. There viere no changed circumstances.
With its brief on this appeal SPRI has filed *89an affidavit5 from its general manager, acknowledging that he was mistaken about the date the terminal fee was enacted but affirming that "the referenced confusion over the continued applicability of the fee to ASPA was nonetheless accurate." His affidavit also states that at some unspecified time between June and December "SPRI switched its bidding practice over to providing an all inclusive price." He asserts that this change was based on a general trend among fuel suppliers toward "inclusive" prices. He attaches two billing statements from SPRI as illustrations. One bill, dated February 1988, offers fuel at "USD .650 plus .035 excise tax plus .01 terminal fee per gallon." The other, dated November 1988, offers "bunkering at USD .565 per gallon delivered."
The manager further attests that he specifically instructed SPRFs local representative to include the terminal fee in its December bid to ASPA. SPRI also files an affidavit from its locál representative confirming that the general manager had so instructed him.
This evidence creates for SPRI at least as many problems as it solves. The two billing statements, when construed with the bids submitted by various fuel suppliers to ASPA in December 1987, June 1988, and December 1988, do not even begin to prove the asserted change in local commercial practices during the period in question. On the contrary, only one supplier other than SPRI seems to have made any change in the way it describes its prices, and that supplier was already quoting "inclusive" prices in 1987. With regard to SPRFs pricing policies, the evidence establishes only that (1) as early as February 1988 SPRI knew how to tell a customer whether or not its per-gallon price included the terminal fee; (2) nevertheless, on at least one occasion (in June 1988) SPRI quoted what would appear to the naked eye to be an "inclusive" *90price but later charged its customer extra for the terminal fee; (3) on at least one occasion prior to February (in December 1987) SPRI had also quoted what appeared to be an "inclusive" price but would have charged extra for the terminal fee if it had been awarded the contract; (4) in November 1988 SPRI again quoted a customer a per-gallon price without mentioning the terminal fee one way or another, but we have no evidence of whether the customer was in fact charged extra for the terminal fee; and (5) in its December 1988 bid SPRI employed the same language it had used in three prior quotations, in connection with at least two of which it did intend to charge extra for the terminal fee.
The affidavits by the two SPRI officials about their private conversations raise a related question. If SPRI specifically anticipated the question whether the terminal fee would be included, discussed it within the firm, and resolved that the question should be answered in a way that was directly contrary to the clear inference from SPRI’s then existing relationship with ASPA, why not say so before the bids were opened? The bidding process is not a multiple choice test in which it is forbidden to explain one’s answers. SPRI had access to the previous bids of PPP and other bidders which clearly indicated whether the terminal fee was included or excluded in the per-gallon price. Indeed, SPRI’s own description of its price in the December 1988 bid is a complicated one incorporating several terms and conditions; and on at least one occasion (in February 1988) SPRI considered it important to tell a customer whether or not the terminal fee would be included.
Even if SPRI really had changed its pricing policy toward other customers and really did intend to make such a change with regard to ASPA, it knew or should have known that this would not be so obvious as to go without saying. The prior dealings between SPRI and ASPA were an indelible part of the record in any controversy that might arise over the December 1988 bid. Until the bids were opened there was no way to tell what form such a controversy might take --- whether it would be to SPRI’s advantage to have bid 48.8 cents including the terminal fee or 48.8 cents plus the terminal fee. By not countermanding the evidentiary effect of its prior dealings by a clear contrary statement *91prior to the opening of the bids, therefore, SPRI inevitably did one of two things: either it bound itself to its prior interpretation of the per-gallon price term, or it gave itself a one-cent "point spread" over other bidders. The latter possibility would defeat the central purpose of requiring sealed bids.
We conclude that ASPA’s initial construction of the SPRI bid to include the terminal fee was clearly erroneous. The bid should have been construed, consistently with the objective evidence of SPRI’s pricing policy toward ASPA as of the day bids were opened, as for 48.8 cents per gallon plus the one-cent terminal fee. This is higher than the PPP bid which was 48.12 cents plus the terminal fee. The two other bids were for 61.0 cents and at least 50.04 cents respectively; even if they are construed as including the terminal fee, they are higher than the PPP bid. PPP was therefore the low bidder.
A call for new bids on the ground of an ambiguity that has already been cured by the bids themselves would not seem to be strictly inconsistent with the language of the administrative rule on which ASPA relies. The rule seems to allow cancellation of bids on account of " [inadequate or ambiguous specifications contained in the solicitation" when such cancellation is believed by the procurement officer to be "in the best interest of the government." A.S.A.C. § 10.0232 (emphasis added). Rejection of a bid which is clearly the low one on the ground of an. irrelevant ambiguity in the solicitation, however, would violate the statutory law governing competitive bidding. Such a rejection followed by a new invitation for bids would amount to allowing "changes in bid prices or other provisions of bids prejudicial to . . . fair competition" in violation of A.S.C.A. § 12.0211.
ASPA relies not only on the administrative rule regarding ambiguities, but also on a clause reserving "the right to reject all offers." This clause is in a section of the invitation for bids that itemizes specific grounds on which ASPA may reject a particular offer: non-compliance with the terms of the invitation, reason to believe the bidder is not financially responsible, and so forth. In this context, the most obvious reading of the clause now . cited by ASPA is that ASPA *92reserved the right to reject bidders on any of the stated grounds even if this resulted in the elimination of all bidders. In the absence of this or some other limiting construction, the clause would appear to be contrary to the competitive bidding law. An attempted reservation of the right to order a second round of bidding for no reason at all, or just because the government might get a better price if bidders are allowed to rebid after looking at their competitors’ bids, would permit changes in bids prejudicial to fair competition. See A.S.C.A. § 12.0211.
We are not suggesting that ASPA had any such ulterior motive in the present case. Nevertheless, since ASPA has advanced no reason for rejecting the PPP bid other than alleged ambiguities in the solicitation, the clause reserving the right to reject all bidders affords no authority for the rejection so long as PPP’s bid was unambiguously the low one.
V. Platt’s Oilgram Reports
ASPA’s pleading in this appeal alludes to a third ambiguity in the invitation as a further ground for ordering the rebid. This ambiguity has nothing to do with the terminal fee, which was the subject of PPP’s appeal of the initial award to SPRI. Nor was it the subject of an administrative complaint by any other bidder.
Indeed, this alleged ambiguity was not in the invitation itself but in certain of the bids. The invitation offered bidders the option of citing "a flat per gallon price with escalators." All four bidders chose to take advantage of this option, and all four referred to an industry standard called Platt’s Oilgram Reports. A letter from Mobil Oil Australia Limited submitted with its bid suggests that different parties may mean different things by their references to dates for which Platt’s provides price data. The proposed rebid would demand more information from any bidder citing Platt’s Oilgram Reports --- although not, it would appear, precisely the information Mobil suggests would be necessary to clear up the ambiguity.
The record with regard to this alleged ambiguity is between sketchy and nonexistent. The reference to it in ASPA’s pleading seems unusually opaque even for a reference to industry standards. *93Since ASPA did not brief this appeal and the other parties did not allude to this issue in their briefs, we have received no guidance from the parties on whether and how this alleged ambiguity matters.
From the record we do have it appears that PPP is unambiguously the low bidder notwithstanding the failure of various bidders to specify the "reference date[s] for the bid prices" that would be requested by the rebid. PPP and SPRI, despite using different reference dates, came up with an identical figure of 40.5 cents per gallon as the base price from which they calculated their bid prices. Mobil used a range of base prices from 36 to 42 cents per gallon and quoted a corresponding range of bid prices, the lowest of which was higher than either the PPP or the SPRI bid. The fourth bid was so much higher than any of the other three that it would seem uncompetitive no matter how many ambiguities were resolved in its favor.
We note further that both PPP and SPRI have a record of performance on ASPA fuel supply contracts that should afford an objective basis for resolving any residual ambiguity on this point. On the present state of the record we hold that PPP was unambiguously the low bidder notwithstanding any uncertainty over "reference date for the bid price." If we have misread the record or otherwise erred in this conclusion, ASPA and SPRI remain free to urge such error by timely petition for rehearing.
VI. Conclusion and Order
Since PPP was the low bidder, and since there was no ground on which to reject the low bid, PPP acquired the right to the fuel supply award upon the opening of the bids. The initial award to SPRI was based on a clearly erroneous interpretation of the SPRI bid, and the subsequent decision to reject all bids was contrary to law. A.S.C.A. § 12.0211.
After a preliminary hearing on this appeal, all three parties stipulated that SPRI should continue to supply fuel to ASPA on the terms of its 1988 contract pending the Court’s decision on the appeal. The parties further stipulated that in the event PPP should be determined to have won the contract, the period of the award would be "extended to at least a six-month period next *94following resolution" of this appeal. We therefore order that PPP be awarded at least a six-month fuel supply contract on the terms of its December 1988 bid.
By agreement of the parties and in accordance with Appellate Court Rule 40, the time for filing any petition for rehearing of this appeal is hereby set at seven days. Our judgment and order in this appeal will be stayed pending the disposition of any such petition, and the term for which PPP shall be awarded the contract will begin at the conclusion of this stay or any extension thereof.
It is so ordered.
Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.
Weinberger v. Salfi, 422 U.S. at 765.
[T]he Secretary may waive the exhaustion requirement if he satisfies himself, at any stage of the administrative process, that no further review is warranted either because the internal needs of the agency are fulfilled or because the relief that is sought is beyond his power to confer.
Matthews v. Eldridge, 424 U.S. at 330. See also Weinberger v. Salfi, 422 U.S. at 765-67.
But see also A.S.C.A. § 4.1040(c):
A preliminary, procedural or intermediate agency action or ruling shall be immediately reviewable only if review of the final agency decision would not provide an adequate remedy.
Since we conclude that the ASPA decision was final, we need not address the application of this subsection to the present case.
Cf. Weinberger v. Salfi, 422 U.S. at 767:
Much the same may be said for the statutory requirement that the Secretary’s decision must be made "after a hearing." ... [A] hearing [would] be futile and wasteful, once the Secretary has determined that the only issue . . . is a matter of constitutional law concededly beyond his competence to decide ....
In the present case the Secretary does not raise any challenge to the sufficiency of the allegations of exhaustion in appellees’ complaint. We interpret this to be a determination by him that for the purposes of this litigation the reconsideration determination is "final."
Although this evidence is not in the record, the A.P.A. authorizes the court in its discretion to receive evidence to supplement the record. A.S.C.A. § 4.1043(a). In light of the expedited process employed by ASPA to resolve the complaint before it, it would be unfair not to exercise our discretion to receive the affidavits and exhibits offered by SPRI into evidence. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485747/ | On Motion to Allocate Funds and for Approval of Attorney Fees:
This action arose from the death of infant David Galo shortly after his birth at the Lyndon Baines Johnson Tropical Medical Center. Defendant American Samoa Government negotiated a settlement with the single attorney who was representing all *96parties including the minor children. The attorney now files a request for the following distribution of the $25,000 settlement:
Peata Galo (father) $ 9,000
Iva Galo (mother) 9,000
Patisepa Galo (minor child) 1,000
Fa'apiano Galo (minor child) 1,000
Fa'afaga Galo (minor child) 0
Attorney Fees 5,000
Fa'apiano Galo is a child born to Iva and Peata Galo two years after the death of David. He is not a plaintiff in this action. The attorney has not requested any funds for Fa'afaga Galo, who is a plaintiff and for whom Iva and Peata Galo have been appointed Guardians ad Litem, on the ground that Fa'afaga has been adopted by another family. The attorney requests that the bulk of the settlement be given to the parents, with only a token amount for the children, so that the parents can purchase a piece of property.
There are several things wrong with the proposed distribution.
First, although it is possible to construct an argument that Fa'apiano has suffered injury during his lifetime from an event that occurred two years before he was born, counsel has not bothered to do so. Indeed, Fa'apiano was never named as a plaintiff in the action. Counsel proceeds instead on a theory that the Court should treat Fa'apiano as having stepped into the shoes of plaintiff Fa'afaga as a result of the adoption of the latter and the birth of the former.
This raises the second problem: although Iva and Peata Galo did relinquish their parental rights so that Fa'afaga could be adopted by another family, they did not thereby terminate his status as the brother of David. Nor was there an end to the status of Iva and Peata as guardians ad litem for Fa'afaga (a status described in the order drafted by their attorney as "Personal Representative of . . their other children FA'AFAGA GALO and MALAE GALO."). Despite the termination of their legal rights and obligations as the parents of Fa'afaga, the parents and their attorney continued to have a fiduciary relationship to the child as his guardians ad litem or "personal representatives." The principal obligation imposed *97by that relationship was the vigorous protection of the child’s interests in connection with this lawsuit, especially insofar as these interests might conflict with their own.
It does not seem unreasonable to maintain that a child suffers less by the death of his brother when the brother does not live in the same household. For the child’s guardians and their counsel to treat the child’s interests as worth exactly nothing, however, was inconsistent with their fiduciary obligation to him. This is particularly true insofar as the result of disregarding Fa'afaga’s interests was to leave more money to be distributed among other family members including the guardians themselves. Although the guardians may not have understood this, their attorney should have advised them of it rather than simply acquiescing in their request to eliminate Fa'afaga from the proposed distribution.
Finally, the parents’ intention to make use of the settlement in a way that will benefit the whole family is insufficient reason to award them a greater portion of the settlement, and the children a lesser portion, than reflects the injuries actually suffered by the various parties on account of David’s death. (This is not to say that the result desired by the parents was impossible to achieve. Upon a showing that the proposed purchase would be the best possible use of funds to which the children are rightfully entitled, the Court would presumably authorize such use subject to appropriate safeguards of the children’s interest in the property. Again, the attorney should have known the difference.)
As it happens, we believe that the parents are entitled to a larger share than the children, not because of what they intend to do with the money but because they are likely to have suffered more by David’s death. Indeed, the complaint states a cause of action for Iva Galo’s pain and suffering during labor as well as upon the death of her child. Also, as the sole legal heirs of David Galo his parents were appointed his personal representatives in this action. See A.S.C.A. §§ 40.0201(d), 43.5002. As such they are entitled to recover for the pain and suffering of David himself before his death and for medical and funeral expenses. See A.S.C.A. § 43.5001(b), 43.5002; *98Fa’avae v. American Samoa Power Authority, 5 A.S.R.2d 53 (1987).
Accordingly, we order the settlement funds distributed as follows:
Iva Galo $ 8000
Peata Galo 5000
Iva & Peata Galo as personal representatives of David Galo 4000
Patisepa Galo 3000
Fa'afaga Galo aka Fa'afaga Gaoa 2000
Attorney Fees 3000
The original proposed distribution allocated a $5000 attorney fee. This is 20% of the total settlement, the statutory maximum in cases against the government that are resolved by settlement. A.S.C.A. § 43.1213. Under the circumstances of this case, including the attorney’s total failure to represent one of his four clients and his failure to advise his other clients with respect to their fiduciary obligations, $3000 is the largest fee we can possibly approve.
The funds to be distributed to Patisepa and Fa'afaga should be deposited in the registry of the Court, where a trust account will be established for them with the guardians ad litem as trustees, or in some other trust account approved in advance by the Court.
At the request of counsel for the government and without objection from plaintiffs, the settlement agreement approved by the Court is amended to correct a typographical error. The amendment is to replace the name "Fa'afetai" with "Fa'afaga" wherever it appears.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485748/ | Defendant is charged with Felony Driving in violation of A.S.C.A. § 22.0223 --- that is, operating a vehicle while his driver’s license was suspended consequent to a prior conviction for driving while under the influence of drugs or alcohol. Felony Driving is a Class D felony, punishable by imprisonment for a period not less than 90 days and not to exceed 5 years.
In terms of proofs, the government first offered into evidence a copy of the District Court’s judgment and sentence entered July 25, 1988 in Traffic No. 37617, which found the defendant therein, "Tito Malae," guilty of Driving Under the Influence. Among other things, the District Court sentenced the defendant to suspension of his driver’s license for a period of "6 months until January 22, 1989."
The government also submitted into evidence, over defendant’s objection, a copy of the Uniform Traffic Complaint and Summons No. 36723 (hereinafter the "citation"). The citation was issued to a "Jack Malae" on October 26, 1988 and accuses the driver of operating a vehicle on the highway in the vicinity of Futiga at the rate of speed of 42 mph in a 25 mph posted zone. The citation also reveals that the accused was required to attend court on November 14, 1988. The District Court’s record on the reverse side of the citation shows that the matter was continued to November 17, 1988. On November 17, 1988 it appears that the government also secured a warrant of arrest upon complaint and information filed against a "Jack Malae" charging Felony Driving. This matter was docketed District Court CR. No. 177-88. The minutes below on the felony matter reveal that the defendant therein was taken before the court that same day, November 17, 1988, and was informed of the charge against him as well as of his rights. The minutes go on to say that the defendant notified the court that his lawyer was counsel William Reardon and that he entered a plea of not guilty to the speeding citation which was then *101apparently set for trial on November 22, 1988. The court also set for that same date the preliminary examination of the criminal matter. On November 22, 1988 the court’s minutes in the criminal matter reflect the presence of both the defendant and his counsel, Mr. Reardon; the defendant’s apparent waiver of his right to a preliminary examination; and an order by the Court holding defendant over to answer the Felony Driving charge before the High Court. Arraignment was scheduled before the High Court on November 28, 1988 while the speeding matter was continued over to December 23, 1988. On this latter date a different judge heard the traffic calendar and the defendant appeared without counsel and entered a change of plea to guilty. The plea was accepted and the defendant was sentenced to a fine.
As above noted, the defense objected to the admission of the record of the speeding citation. The basis of the objection was to the effect that defendant was not represented by counsel below when he tendered his amended plea of guilt. The argument was that this traffic record should not be admitted because somehow defendant’s right to counsel was affected. We overruled the objection.1
*102Having submitted the District Court’s judgment and sentence on the above discussed traffic matters, the government rested without calling any witnesses. Whereupon the defense also rested.
On the evidence before the Court, we are able to conclude beyond any doubt that the defendant before the District Court on the 17th and 22nd of November 1988 because of the criminal charge and the traffic speeding matter under the name "Jack Malae" was one and the same person. The question which next arises is whether we can conclude beyond a reasonable doubt that this Jack Malae is the one and same person as that "Tito Malae," found guilty and sentenced in the prior traffic matter involving license suspension.
The economy of proofs which counsel for the government opted to go forward with requires our further consideration of the traffic court’s record below. We hold that we may so take notice of the lower court’s record given the fact that one of the elements of the crime before our consideration is the prior conviction of the defendant for the traffic offense of Driving Under the Influence. In reviewing the Uniform Traffic Complaint and Summons No. 37617 (Driving Under The Influence) and the lower court’s record thereon, we find that Tito Malae of the village of Tafuna, born on July 28, 1966 and formerly issued territorial driver’s license number 576-78-2522 was convicted thereunder as charged and sentenced inter alia to the suspension of his driver’s license for a six month period. Such period of suspension was to terminate on January 22, 1989. We find that the said Tito Malae is one and the same person who was issued the subsequent Uniform Traffic Complaint and Summons No. 36723 and was convicted for speeding. We so *103conclude for the following reasons. The lower court’s record also reveals that defendant was issued in addition to the speeding citation, Uniform Traffic Complaint and Summons No. 36724 for operating a motor vehicle without the possession of a driver’s license. We are convinced that the same person acknowledged by signature the three citations. The same distinctive handwritten scrawl of the name "Malae" is consistent in all these citations. In the subsequent matters, the defendant in the Driving Under the Influence case would not have had his driver’s license in his possession as the same was suspended. In these circumstances the citing officer necessarily relied on the defendant for identification information. Defendant had reason and opportunity to misinform the officer about his identity and we find that while the defendant did not give the officer his correct first name, he did not have the same presence of mind when it came to his birth date and village. He admitted to the officer his correct birth date of July 28, 1966 and residence in the village of Tafuna.
On the foregoing, we find the defendant before the Court, Tito Malae, also having held himself out as Jack Malae, guilty of the offense of Felony Driving in violation of A.S.C.A. § 22.0223 as charged.
It is so Ordered.
The argument is puzzling. As we gathered on our review of the available records below, defendant appeared before the District Court on November 17, 1988 on both the criminal matter and speeding citation and indicated to the court that his attorney was counsel Reardon. On the speeding matter, a plea of not guilty was entered. The defendant again appeared in court on November 22, 1988 but this time with his counsel. This was the day that was set for the preliminary examination on the felony matter and for trial on the speeding matter. Here defendant waived his right to preliminary examination while trial of the traffic matter was put over to December 23, 1988. Why defendant therefore appeared without counsel on December 23, 1988 and there tendered a plea of guilt to the speeding citation, is not revealed on the record. Nonetheless, in these circumstances, the fact of being without the assistance of counsel at the traffic matter would seem to be a problem, if indeed there was one, attributable to defendant and his counsel.
*102Furthermore, a speeding violation is an "infraction" under the Traffic Code. A.S.C.A. §§ 22.0323, 22.0360. In the normal course, the traffic judge would not be concerned with questions regarding the right to counsel in traffic proceedings involving a speeding charge as the right to counsel does not attach when a defendant is not sentenced to actually serve time in jail. Argersinger v. Hamlin, 407 U.S. 25 (1972). Here the defendant was only fined. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485749/ | Order for Payment of Estimated Cost of Transcript:
On December 16, 1988, Moea'i filed his notice of appeal from the judgment of the Land and Titles Division and requested an estimate of the cost of a transcript.
On December 20, 1988, Tuia'ana filed his . notice of appeal from the same judgment. The notice stated that Tuia'ana "further requests a transcript and record of the trial."
On December 23, 1988, the court reporter served a notice of the estimated cost of a transcript on counsel for both parties. The estimated cost was $1507.50, or $753.75 per party.
Appellate Court Rule 10(b)(1) provides in pertinent part that
[w]ithin 10 days .after receiving the reporter’s or clerk’s estimate the *105appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary. The order shall be in writing and within the same period a copy shall be filed with the clerk of court and served on the appellee.
Appellate Court Rule 10(b)(4) requires that "[a]t the time of ordering, a party must deposit an amount of cash equal to the estimated cost with the reporter." The rule also requires that the party file with the clerk a copy of the reporter’s receipt.
In the course of a routine inquiry into the status of pending appeals, the Court has learned that Moea'i did not deposit the estimated cost with the reporter until January 27, 1989, and that Tuia'ana has not deposited anything to date. Moreover, the court reporters have informed the Court that counsel for Tuia'ana has informed them orally that he now wishes to order only part of the transcript. The court reporter to whom counsel communicated this information says that it came during a chance encounter with counsel later on the same day (January 27) that Moea'i had paid for his half of the transcript.
The revised request for a partial transcript would appear to violate Rule 10 in several respects: it was not made in writing, was not served on the Clerk or opposing counsel, and was made well after the expiration of the ten-day period provided in the Rule.
By countermanding his original order for the entire transcript, counsel for Tuia'ana would increase the amount that Moea'i would have to pay. If such a change had been made in writing within the ten-day period specified in Rule 10 for ordering the transcript, it would not represent an imposition on the opposing party. After the expiration of this period, however, Tuia'ana was bound by his counsel’s earlier order for "a transcript and record of the trial." Moea'i therefore ordered the transcript in the expectation that he would be required to pay only half the cost. Since counsel for Tuia'ana failed to countermand his original order until after the expiration of the deadline for deciding what parts *106of the transcript would be necessary, Moea'i was entitled to rely on the original order.
Counsel for Tuia'ana is directed to deposit $753.50 with the court reporter no later than 4:00 p.m. on Friday, March 17, 1989.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485750/ | I. Facts and Procedural History
This action arose from the filing of a copy of a foreign judgment with the Clerk of the High Court. The Uniform Enforcement of Foreign Judgments Act, A.S.C.A. §§ 43.1701 et seq., provides that a foreign judgment filed with the clerk shall be treated "in the same manner as a judgment of the High Court of American Samoa." A.S.C.A. §§ 43.1703.
Unlike any other, foreign judgment filed with the High Court during the twenty-three years since enactment of the Uniform Act, this judgment was filed in the name of someone other than the party in whose name judgment had been rendered. The judgment was accompanied by a letter from John H. Thomas, a La Jolla, California, attorney who wrote on his office letterhead that "I own the accompanying Judgment to be registered with the High Court, and I will be appearing in the case in propria personam." Mr. Thomas also enclosed an "acknowledgment of assignment of judgment" to him from Deborah Parisi, in whose name judgment had been rendered.
It was not clear either to the Clerk or to the Court that a foreign judgment can be registered on any terms other than those on which it was rendered. The substitution of a person other than *108the named plaintiff would appear to be an important change. Indeed, any interest Mr. Thomas might have would appear to have arisen not from the judgment itself but from the assignment --- a private contract whose validity has never been tested. in any court and which, unlike a judgment, is not. entitled to full faith and credit. The Court’s immediate reaction, without benefit of briefing or argument by any party, was that the summary process provided in the Uniform Act was probably not available to enforce an assignment. This would not, of course, preclude Mr. Thomas from bringing a civil action to enforce his interest. See A.S.C.A. § 43.1708.
The situation was further complicated by the fact that the judgment in question is a judgment of divorce. It is hard to see how Mr. Thomas can truly "own" Mrs. Parisi’s divorce judgment. The one sense in which such a property right could have any meaning was as an assignment of Mrs. Parisi’s court-ordered support payments, and an attempted assignment of alimentary rights raises serious questions whether the rights arose from a local or a foreign judgment. Spousal support is awarded for reasons of public policy and is not freely alienable by private contract. See In re Marriage of Higgason, 516 P.2d 289 (Cal. 1973); In re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1979); In re Fisher. 153 N.E.2d 832 (Ill. 1958).
Finally, the fact that Mr. Thomas is an attorney not licensed to practice in American Samoa — and the fact that before the date of the "acknowledgment of assignment" he had written the Clerk on his law office letterhead saying that he planned to register a foreign judgment and had been sent a copy of the High Court rules regarding appearances pro hac vice by outside attorneys— suggested the possibility that the assignment was a sham transaction designed to evade these rules. The alternative possibility, that Mr. Thomas was a genuine purchaser for value, raised the possibility that in enforcing the proffered assignment the Court might be lending its authority to a contingent fee in a domestic relations case or to some other prohibited business transaction between attorney and client.
The Court was not certain, of course, that any impropriety had occurred. There might have been (and still might be) some reasonable explanation *109for the peculiarities appearing on the face of the documents that were filed with the Court. If Mr. Thomas had been present in American Samoa or repre sented by local counsel, the Court would have set the matter for a hearing in order to learn the facts giving rise to the assignment. Instead, after devoting some thought and some study to whether such an assignment could be determined to be enforceable or unenforceable without reference to its underlying circumstances, the Court issued an order directing Mr. Thomas to supply it with certain information. This included the consideration, if any, given by Mr. Thomas; whether Mr. Thomas had represented Mrs. Parisi in the divorce or performed other legal services for her; the connection, if any, between the assignment and such representation; and whether Mrs. Parisi had consulted or been advised to consult separate counsel before entering into the assignment.
Mr. Thomas responded by way of a letter to the judge who had issued the order. In his letter he chided the Court for taking several months to decide what to do about his request; noted that he did not "understand the purpose of [the Court’s] questions"; corrected an error in the Court’s opinion; and answered all but one of the questions that had been directed to him. He said that he had represented Mrs. Parisi in the divorce action and had secured the assignment as a means of collecting the judgment for her. He did not advise her to seek separate counsel, presumably because the assignment was an incident of his representation rather than a distinct attorney-client business transaction.
Mr. Thomas’s response to the Court’s question regarding consideration for the assignment was as follows: "I paid no money to Mrs. Parisi for the assignment; I did promise my client to use my best efforts to collect the judgment." This implies, although it does not state, that Mr. Thomas had agreed to pass on to Mrs. Parisi all the money he should collect. Assuming this to be the case (or even on the somewhat likelier assumption that Mr. Thomas intends to deduct a reasonable hourly rate for legal services from any amounts recovered) the Court is satisfied that the assignment does not constitute a prohibited attorney-client business transaction.
*110This does not, however, resolve the other two questions presented by this action: (1) whether, according to the provisions of the Uniform Act, a contract for the assignment of a foreign judgment is entitled to registration and execution on the same terms as the judgment itself; and (2) whether the attorney for a foreign judgment creditor may take such an assignment and appear pro se. thereby avoiding the rule that attorneys who represent clients before the High Court must first apply and be admitted to practice in American Samoa.
n. Appearance Pro Se by an Assignee for Collection
Our answer to the question of pro se appearances by assignees makes it unnecessary to decide the broader question whether an assignee of a foreign judgment can ever register and enforce the judgment in his own name.
Mr. Thomas enclosed with his letter to the Court a copy of an excerpt from a practice aid and form book for California collection lawyers. The excerpt provides authority for the proposition that, while "[c]ivil actions must be prosecuted in the name of the real party in interest," in California an assignee for collection "is a real party in interest and may recover, even though the assignor retains an interest in the claim."
The High Court of American Samoa has, however, taken a different view of the status of assignees for collection. This is partly due to the context in which the question has arisen.
The High Court has been faced on a number of occasions over the years with individuals who, although ineligible for admission to the Bar, have set up the functional equivalent of law offices and proceeded to take on clients. Representing themselves variously as free-lance negotiators, private investigators, social workers, collection agencies, "spokesperson[s]," "certified court interpreter[s]," "Citizens’ Law Committee[s]," or simply "Samoan High Chief[s]," such persons have undertaken to perform services well within the traditional definition of the practice of law.
The Court has little control over such activities so long as they take place out of court. Frequently, however, our unofficial attorneys have *111attempted to make court appearances. After being told by the Court that only licensed attorneys can represent other people, the unlicensed advocate generally makes at least one further effort in the guise of a plaintiff or co-plaintiff appearing in his own right. The pro forma assignment of an interest in the subject matter giving rise to the litigation, although by no means the only device., by which ersatz lawyers have been recast as simulated plaintiffs, is something of a favorite. See, e.g., Tapuvae v. Lutali, CA No. 88-86; Lam Yuen v. Leomiti, LT 3-87; Pago Pago Collection Agency v. Groves Gas Station, CA 32-88.
The Court’s unwillingness to accept such devices at face value derives not from enthusiasm for the concept of a lawyers’ guild, but from experience with the unhappy results of amateur barristry. These have included not only artless pleadings and pointless arguments, but also the forfeiture of important substantive and procedural rights through the missing of jurisdictional deadlines or the fatal misconstruction of rules and statutes. Nor is the "client" of the plaintiff-for-hire the only person whose rights may be prejudiced. Certain rights of the opposing party, such as the right to proceed against the plaintiff by way of counterclaim and to require timely and truthful answers to interrogatories and requests for admission, become meaningless if the nominal plaintiff has no personal knowledge of the events on which his claim is based.
At least some of these concerns are presumably absent when the nominal plaintiff has been licensed as a lawyer in another jurisdiction. Even so, the Court and the Territory have legitimate interests in ensuring that every lawyer who represents a client here has first been admitted to practice. A lawyer who wishes to appear only in a single case may apply for admission pro hac vice. Such admission is routinely granted so long as the applicant is an attorney in good standing in another jurisdiction, has never been suspended or disbarred, and has no disciplinary complaints pending against him. The lawyer is required to associate an American Samoa lawyer upon whom process may be served and with whom the Court and the local parties may communicate concerning the case. Admission pro hac vice also submits the attorney to the rules of professional *112responsibility with which local attorneys are required to comply. See High Court Rule 145.
In the context of a case such as the present one involving many thousands of dollars, the difficulty and expense of admission pro hac vice are negligible. If Mr. Thomas had sought such admission, presenting himself from the outset as Mrs. Parisi’s attorney, this proceeding would have been a relatively simple one. By presenting himself instead as a pro se litigant and the "owner" of the Parisi divorce he confronted the Court with a far more difficult case. By making an appearance in the High Court in the course of providing legal services to a client without applying for admission pro hac vice. Mr. Thomas also engaged in the unauthorized practice of law.1
*113Moreover, in order to portray himself as the real party in interest Mr. Thomas apparently found it necessary to engage in an even more serious misrepresentation. In his submission to the High Court Mr. Thomas included an exemplified copy of the May 1986 Parisi divorce judgment, providing in pertinent part that Joseph Parisi is ordered to pay petitioner Deborah Parisi spousal support in the amount of $5,000 per month for two and one-half years, a total of $150,000. It was this judgment, as modified by the assignment to himself, that Mr. Thomas asked the High Court to register and enforce. What he did not tell the Court was that on May 2, 1988, pursuant to a stipulation between Mr. and Mrs. Parisi, the California court had issued a new order substantially modifying the 1986 judgment. Under the new order the total amount of spousal support was $66,774.08 --- less than half the amount of the judgment Mr. Thomas sought to register in the High Court.
After counsel for respondent Joseph Parisi had brought the May 1988 order to our attention, Mr. Thomas responded that he would never have attempted to collect more than was actually owed. This is beside the point. The spousal support provision of the May 1986 judgment, the only part of the judgment that could have been "assigned” to Mr. Parisi, had been supplanted and rendered legally unenforceable by the May 1988 judgment. Unless (as seems most unlikely) Mr. Thomas was somehow unaware of the later judgment, he was asking the High Court to register a judgment whose only enforceable provision he knew to be null and void. If he wished to collect only the amount of the new judgment, the proper course was to register the new judgment. To request registration of the old judgment without informing the Court that it had been modified and substantially annulled appears to have been a deliberate misrepresentation.
*114HI. Respondent’s Nonpayment of Spousal Support
If there is anything at all to be said for Mr. Thomas’s conduct in connection with this case, it is that it may not have been as bad as Mr. Parisi’s conduct. In testimony before the Court, Mr. Parisi cheerfully admitted that he had made no spousal support payments. He said his non-payment was on the advice of his California attorney, "because we’re still fighting it." Yet he does not deny Mr. Thomas’s assertion that he did not file the supersedeas bond required to stay the effectiveness of the judgment pending appeal.
Mr: Parisi also attempted to mislead the Court about his income --- initially giving evasive answers designed to make petitioner’s estimate of $250,000 per year look unrealistic, then admitting when confronted with evidence of his earnings that he made "about $200,000" in 1988.
Finally, Mr. Parisi testified that he had remarried shortly after the divorce became final in 1986. Since he seemed to hesitate before giving his answer, the Court rephrased the question and Mr. Parisi answered again that he had remarried in 1986, just after the divorce. The Court’s records reflect, however, that Mr. Parisi contracted a second marriage on September 18, 1985, about nine months before the effective date of his divorce from the first Mrs. Parisi.
IV. Conclusion and Order
Although Mr. Thomas is not entitled to collect anything from Mr. Parisi on his own account, it would appear that Mrs. Parisi is so entitled.
The record reflects that about $50,000 has been collected on a California garnishment of Mr. Parisi’s wages. Mr. Parisi testified that the garnishment is ongoing and that it will result in payment of the modified support order no later than April 30, 1989.
We therefore order a stay of further proceedings in this action until April 30, 1989. If at that time there are amounts still owing on the modified support order, or if Mrs. Parisi can show that there are other amounts owing, she may *115move for an amendment of this action to reflect (1) her status as the judgment creditor and (2) the modification of the 1986 judgment by the 1988 order and any subsequent orders. She may then proceed to enforce the judgment. If she proceeds through Mr. Thomas or another attorney, that attorney shall comply with High Court Rule 145.
In any case, Mr. Thomas is directed to answer forthwith the question directed to him on December 12, 1988, with regard to consideration for the assignment. Specifically, the Court wishes to be sure that it was correct to infer from Mr. Thomas’s letter that he had agreed to turn over to Mrs. Parisi the entire sum recovered. If Mr. Thomas agreed to turn over less than all of the money recovered, then he should inform the Court (as he should have done in response to the original inquiry) of the terms of any such agreement. If the agreement or any part of it is in writing, he should provide a copy to the Court.
It is so ordered.
See A.S.C.A. § 31.0104; High Court Rule 145. Our opinion on this question does not depend on whether an assignee for collection has standing to sue in his own name. Although most American jurisdictions recognize such standing either by statute or by judicial decision, the courts of these jurisdictions routinely look behind the fiction of "legal ownership" when an assignee for collection attempts to appear in Court pro se or otherwise to circumvent the rules concerning the unauthorized practice of law.
The taking of an assignment [by the defendants, a collection agency] . . . cannot possibly change the essential fact that the defendants are rendering legal services for another for gain. The constitutional provision designed to insure the right of a party to appear in his own behalf neither authorizes nor protects the practice of the defendants of rendering legal services to others by adopting the form of an assignment.
Nelson v. Smith, 154 P.2d 634, 640 (Utah 1944). See also, e.g., J. H. Marshall & Associates v. Burleson, 313 A.2d 587 (D.C. 1973); People v. Securities Discount Corp., 198 N.E. 681 (Ill. 1935); Bump v. Barnett, 16 N.W.2d 579 (Iowa 1944); Bay County Bar *113Association v. Finance System, Inc., 76 N.W.2d 23 (Mich. 1956); State v. C.S. Dudley & Co., 102 S.W.2d 895 (Mo.), cert. den., 302 U.S. 693 (1937); State ex rel. State Bar of Wisconsin v. Bonded Collections, Inc., 154 N.W.2d 250 (Wis. 1967). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485751/ | On Motion for Summary Judgment:
Pursuant to Trial Court Rules of Civil Procedure Rule 12(b)(6), defendants move to dismiss plaintiffs’ complaint for failure to state a claim upon which relief may be granted. The moving papers are supplemented by affidavits averring to matters outside the complaint and essentially seeking a summary adjudication on the merits. In these circumstances, we treat the motion as one for summary judgment pursuant to T.C.R.C.P. Rule 56. T.C.R.C.P. Rule 12(b).
For reasons given the motion will be denied in part and granted in part.
Defendants contend that judicial resolution of this case is inappropriate because of the "political question" doctrine. As here . concerns us, that doctrine bars our consideration of a case where there is a "textually demonstrable constitutional commitment of [an] issue to a coordinate political department." Baker v. Carr, 369 U.S. 186, 217 (1962). Defendants maintain that the constitutional provision empowering each house of the Legislature to "be the judge of the elections, returns, and qualifications of its own members" creates the requisite "textually demonstrable constitutional commitment" to make the Senate’s seating of defendant Lutu unreviewable. Rev. Const. Am. Samoa. art. II, § 22. This grant of power to the Senate to judge elections presupposes that an election has in fact been held. *118As explained below, there is a factual issue over whether the election required by the Constitution ever occurred. Until such an election takes place, there is simply nothing for the Senate to judge, and therefore no "political question" preventing our intervention in the matter.1
A motion for summary judgment will fail when there remains a factual issue for determination. Here there is such an issue --- whether defendant Lutu has in fact been elected bv the countv as one of the three senators provided for the County of Maoputasi in accordance with the provisions of Article II, section 4 of the Revised Constitution of American Samoa.2
The affidavits in support of the motion are not altogether clear that the county had in fact elected defendant Lutu. Although Senate Credentials Committee Chairman Tagaloa M. Tuiolosega’s affidavit refers to Lutu as having been "certified from Maoputasi," the affidavit also states that Lutu had been selected by a meeting only of the villages of Fagatogo, Utulei, and Fagaalu. The Chairman also deposed that these villages "was [sic] allotted one of the three senators [provided to the Maoputasi County]," again implying that the election decision was made by other than the entire county council.
Maoputasi County consists of the villages of Fatumafuti, Fagaalu, Utulei, Fagatogo, Pago Pago, Satala, Atuu, Lepua, Leloaloa, and Aua.3 It may *119well be that the Maoputasi County Council has recurringly alloted its three senatorial seats in the manner suggested by Chairman Tagaloa. But as properly stressed in Meredith v. Mola, the ultimate election of the senator must come from the county council as a whole deliberative body and not from the council of a sub-division of that county. 4 A.S.R. 773, 780-81 (1973). Accordingly, under the Constitution, the Fagatogo, Fagaalu, and Utulei village councils sitting as a body cannot on their own elect a senator. At best they may recommend or endorse a particular candidate which in the final analysis must somehow be given the stamp of approval, so to speak, by the greater Maoputasi County Council, whether that be by ratification or confirmation or some other process where it may be clearly understood that the final decision in the election of a senator rested in the Maoputasi County Council.
In addressing the provisions of Article II, section 4, Meredith v. Mola also held that election by the county clearly does not mean that the Senate elects a senator when the county cannot do so, nor does election by the county mean the appointment of a senator by one individual of the council.
On the strength of the affidavits before us, it is unclear whether the greater Maoputasi County Council has indeed given its seal of approval to the selection made by the village councils of Fagatogo, Fagaalu, and Utulei. Certainly, an important member of that greater county council, namely Mauga, is contesting such a selection of defendant Lutu by his bringing this action in the first place.
We add that the otherwise straight forward exercise of interpreting the relevant provisions of the Constitution has been unnecessarily made complicated by the parties’ incursion into "custom." When Article n, section 4 talks in terms of the election of senators "in accordance with Samoan custom by the county councils of the counties they are to represent" (emphasis added), it is addressing the traditional Samoan manner of decision making as it existed at the time this constitutional provision was adopted. There is nothing abstruse nor esoteric about this constitutional directive. As then Acting Chief Justice Jochimsen observed in the case of Faiivae v. Mola, 4 A.S.R. 834, 836 (1975):
*120The people of . , , the County are fully aware of the Samoan custom in the matter of these kinds of [senatorial] selections. This Court will not lay down a rule as to exactly how a county council must decide upon the person it selects to be a Senator, especially as there may be variations on the methods and procedures employed in the different villages and counties.
While it makes for interesting reading to be briefed on the "consensual" basis of customary decision making, this Court is very confident that the Maoputasi County Council knows exactly what the Constitution expects of it in the matter of selecting a senator or senators in accordance with its customary decision-making process. At the same time, the contention by defendants that the customary decision-making process, as spoken of in the Constitution, includes an ability in the county to delegate completely that decision making to a mere sub-division of the county is simply untenable. The logical consequence of such an argument is that a new custom — nay even a bad habit or ill conceived practice — inconsistent with the requirements of the Constitution, will have the practical ability of repealing explicit and unambiguous provisions of the Constitution. Even the legislature in its normal legislative process is unable to repeal or amend the Constitution. To sanction therefore the proposition that the term "Maoputasi County," as the same appears in the Constitution, means its lesser included constituent the "Fagatogo, Fagaalu, and Utulei village councils," in the alleged name of Samoan custom, is to make mockery of the Constitution.
Finally, in our reading of Article II, section 4, we grant summary judgment against plaintiffs’ contention that candidate Tiumalu was duly elected senator by the Maoputasi County Council in early 1985 for the 4 year term commencing in January 1989. Plaintiffs argue that in the selection of a senator for the 4 year term commencing 1985, the Fagatogo/Fagaalu Village Council did not reach an agreement on who was to be senator and that the matter was therefore referred to the greater Maoputasi County Council. Plaintiffs allege that when the greater council considered this dispute, *121it was resolved by the council that defendant Lutu would be selected senator for the term commencing 1985 and that plaintiff Tiumalu would be seated as senator for the term commencing 1989. Even accepting the facts as stated by plaintiffs, the argument advanced cannot be the basis for any relief for the simple reason that it admits the possibility that any one council, for the time being composed, may select for the future any number of senators. The Constitution provides that "[e]ach senator shall hold office for a term of 4 years," Rev. Const. Am. Samoa, art. H § 6, and, as above discussed, the Constitution also provides that a senator is to be elected by his county council, hi our view the cumulative effect of that election provision and section 6 is the logical requirement that the election process should occur every 4 years or subsequent to a sooner lapse of tenure. Further, a county council’s composition is not static and its membership changes from time to. time like any other organizational body and therefore no one particular county council should be permitted to lock senatorial selections into the future. This ability in the name of custom is as inconsistent with the Constitution as that suggestion above discussed regarding the complete delegation of the election process to a mere constituent body of the county council.
The motion is denied.
It is so Ordered.d.
Having said as much, we also reject defendants’ arguments to the effect that the Court is without subject matter jurisdiction. See Meredith v. Mola, 4 A.S.R. 773, 776-77 (1973) (citing Baker v. Carr, 369 U.S. 186 (1962); Powell v. McCormack, 395 U.S. 486 (1969)).
This provision reads: "Senators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent, the number of senators from a county or counties to be as indicated .... Ma'uputasi [sic], three senators."
See Rev. Const. Am. Samoa art. II, § 2; A.S.C.A. § 5.0102. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485752/ | On Motion for Reconsideration:
These consolidated cases concern title to various lands in and around the village of Leone, all claimed to be parts of land called "Lega'oa."
Le ga'oa means "the flat land." Litigants Tony Willis, Dorothy V. Asuega, and Sa'aga Levi— hereinafter referred to as "plaintiffs," although their posture varies from case to case --- maintain that Lega'oa once consisted of all the flat land in the valley that includes Leone, from the ocean to the mountains.
Plaintiffs contend that Lega'oa was once the individual property of Talamaivao Lei, a chief from 'Upolu, and that Talamaivao gave it to his wife Amelia Va and two of her relatives, To'omata and Tali. They further contend that two High Court decisions in 1906 and 1918 effectively divided the flat land in the Leone valley into two parts, the seaward half belonging to the chiefs of Leóne and the mountain side to Va, Tali, and To'omata as tenants in common. Finally, they maintain that after the 1906 decision there was a "compromise," under which Va, Tali, and To'omata (or perhaps Va alone) received the mountain slopes surrounding the back half of the valley.
Plaintiffs have submitted for registration a survey, claimed to be a retracing of a survey *125prepared for To'omata in 1306. (The latter survey was described on its face as containing 297 acres and is hereinafter referred to as "the 297-acre survey," although evidence adduced at trial suggests this figure may not be exactly accurate.) Plaintiffs say their survey reflects the land awarded to Amelia Va, To'omata, and Tali in the 1906 High Court decision and the subsequent "compromise."
Most of the other parties (hereinafter "defendants") are chiefs of Leone or members of families appertaining to the village of Leone. They claim that they and their ancestors have occupied the land in question since the memory of man runneth not to the contrary; that Talamaivao, his legatees, and their descendants were never "residents or citizens or tagata moni of Leone"; that insofar as the High Court ever awarded anything to Amelia Va and her relatives, it must have been a relatively small tract toward the mountains that has long been occupied by descendants of these people, including plaintiff Tony Willis; and that insofar as the Va people ever had title to other lands, such title has been superseded by the adverse possession of various Leone families.1
*126At the suggestion of counsel for plaintiffs and without objection from any party, the Court ordered a bifurcated trial. The first hearing would concern all events up to and including the 1918 High Court case. It was anticipated that much of the evidence at this hearing would be documentary, with live testimony serving primarily to authenticate and explain old land grants, judicial decisions, surveys, and so forth. The Court would then issue an opinion dealing with plaintiffs' primary claim: that as a result of the 1906 and 1918 High Court decisions and events that led up to them, Va, Tali, and To'omata were in 1918 the co-owners, of land called Lega'oa roughly defined by the 297-acre survey.
The second hearing would concern events since 1918. It was anticipated that this hearing would have to do primarily with claims based on adverse possession. Most of the defendants had asserted such claims, which would become important if and only if plaintiffs should prevail on the threshold questions to be resolved after the first hearing. The first hearing began on December 1, 1988. The first day was consumed with the introduction of exhibits, the testimony of plaintiffs' surveyor, and the testimony of plaintiff Tony Willis. The Willis/Va plaintiffs then rested. The next day, however, the Court heard from plaintiff Tony Willis again, this time as a witness for plaintiff Levi. This testimony did not have to do with issues uniquely relevant to the Levi claim (which is based on an assignment from an heir of Amelia Va) but consisted largely of reiteration and elaboration of what plaintiff Willis had told the Court "the day before. The Court then heard from the final plaintiff, To'omata.
After all plaintiffs had rested, we granted a motion to dismiss.
Our order of dismissal did not dispose of all claims by all parties, but only — in keeping with the arrangement for a bifurcated trial — of *127plaintiffs' claim that Amelia Va, Tali, and To'omata were co-owners of Lega'oa (as defined by the 297-acre survey) as a. result of the 1906 and 1918 High Court cases and an associated "compromise."
We held that the 297-acre survey reflected not the award to To'omata in the 1906 case, but the entire extent of his original claim. The 1906 decision awarded To'omata only a fraction of what he had claimed. The Court first held that Lega'oa included only flat land and no mountains, then divided the flat part of Lega'oa in two and awarded only half to To'omata. To'omata v. People of Leone, 1 A.S.R. 142 (1906). The 1918 decision recognized that To'omata was not a sole proprietor but a co-tenant with Tali and Va. Falesau v. Tuitele, 1 A.S.R. 298 (1918).
Plaintiffs had offered their survey, a retracing of the 297-acre survey apparently prepared for To'omata in 1906, as the map of what To'omata, Tali, and Va owned after the Court decisions had denied most of their original claim. We held, on the contrary, that the Court had awarded those three persons only the back half of the flat portion of plaintiffs’ survey.
Plaintiffs now move for reconsideration of our order dismissing their claim to ownership of all the land encompassed in the 297-acre survey. We deny the motion, believing the facts and the law to be consistent with the opinion and order announced from the bench.
Facts
1) At some time prior to 1852 Talamaivao Saisaofai, a chief of Upolu, began to claim certain lands on the island of Tutuila in the vicinity of the village of Leone. Plaintiff Tony Willis testified that Talamaivao had been given these lands by Malietoa. An earlier Talamaivao family tradition is that Saisaofai’s ancestor Ulualofaiga saved the life of a great chief of Upolu called Fonoti. According to this tradition, Fonoti then declared Ulualofaiga to be a togiola (life-giver or saviour) and gave him the Tutuila land as a reward.
2) In 1852 Saisaofai sold Matthew Hunkin a tract of land in Leone. Hunkin paid "One hundred dollars (or its value [in] pork)." Matthew Hunkin, *128also known as Mataio, settled in Leone at some time during the 19th century and became the progenitor of a prominent family of that village and its environs. The tract he purchased was described in the deed of sale as "Lepule with its 'Tuafanua.’"
3) Lepule (sometimes written as Le Pule or le Pule) is a small tract of land near the center of the village of Leone, at some distance from the lands presently in dispute.
4) The term Tuafanua (or tua fanua) means "back lands." It was a generic term used to describe the unsettled and uncultivated land, if any, behind a tract of settled or cultivated land. Samoan land owners often regard their property rights as extending not only over the land they actually occupy, but also over any unoccupied land extending behind them to the mountains and forward to the ocean reef.2 The most logical construction of the term "Lepule with its 'Tuafanua’" in a deed of sale would be that the buyer acquired the tract called Lepule, together with whatever rights the seller would have had to cultivate the adjacent bush. As is further discussed below, however, by around 1900 the term "Tuafanua" was being used as a collective term for various tracts of land to the mountain side of the village of Leone.
The 1895 Decision of the Apia Court
5) In 1894 Matthew Hunkin’s executors sought confirmation by the Samoan Land Commission in Apia *129of his claim to ""'Lepule’ & its ""Tuafanua’ adjoining it." They based their claim on the 1852 purchase from Saisaofai.
6) A person named Iulio, sometimes calling himself Talamaivao Iulio, was the only objector to the Hunkin claim. He objected not to Hunkin’s claim to Lepule itself, bin only to "its Tuafanua." Iulio’s objection was signed and apparently prepared by "Natives’ Advocate" E.W. Gurr. The stated reason for the objection was "Fact of sale is disputed."
7) Iulio was a son of Talamaivao Saisaofai. He was also the half-brother of Talamaivao Lei, who was (at least from 1895 until 1910) the holder of the Talamaivao title. Iulio was a catechist from Upolu who spent a good deal of time in Leone. He sometimes claimed to be the true holder of the Talamaivao title, and he sometimes also claimed to be the individual owner of the Talamaivao or Saisaofai lands in Leone. It is clear, however, that in the trial against Hunkin he was acting as agent for Talamaivao Lei. See Exhibits 6 (letter from Iulio to Misitea dated 12 March 1906 re land Le Gaoa, from record of LT 5-1906) and 12 (letter from Iulio to Misitea dated 12 March 1906 re land Le Pala); see also Iulio v. Talamaivao, No. 6-1910, 1 A.S.R. 217 (1910).
8) The Land Commission confirmed Hunkin’s claim to Lepule but rejected his claim to the Tuafanua. The Land Commission’s decision with regard to the Tuafanua was limited to a rejection of Hunkin’s claim. It did not purport to declare Iulio or anyone else to be the owner of the disputed lands. Exhibit 2; see also Iulio v. Talamaivao, supra. 1 A.S.R. at 220 ("[T]his Court is convinced that it [the Land Commission] merely rejected or recommended the rejection of the petition of the foreign claimant for a court grant.")
9) Alfred Hunkin appealed to the Supreme Court of Samoa, sitting at Apia, from the decision of the Land Commission. The appeal was heard in 1895. Alfred Hunkin was the part-Samoan son of Matthew Hunkin and was one of Matthew’s executors. He was also, at all times relevant to the 1895 and 1906 proceedings, the holder of the title Fai'ivae in Leone.
*?10) Fai'ivae Alfred Hunkin claimed on appeal --- contrary to Ms original claim before the Land Commission --- that "the Tuafanua" which he had purchased from Saisaofai included various lands that did not directly adjoin Le Pule but were in back of the village of Leone. He said there were about a hundred parcels of land included in the Tuafanua of Leone, but that he laid claim to only fifteen. These fifteen parcels, he said, were in addition to three that bad "already been confirmed to me." According to his testimony, these three parcels had been awarded to him in a previous proceeding in which he had claimed all 100 pieces of the Tuafanua of Leone, including the nearby village of Amanave. In the 1895 proceeding he specifically disavowed any claim to Amanave.
11) Seven of thefifteen parcels claimed by were in a portion of the or le Pala ("the swamp.") were in another portion "about 1 -*72 miles 'oa were "about Hunkin in the 1895 Tuafanua called The remaining eight of the Tuafanua called Lega'oa from Leone." The dimensions in width from the court house to Blacklock3 and about the same distance in lengths." Hunkin had originally estimated the size of his entire claim, including at least Lepule, Lépala, and Lega'oa, to be 50 acres (Exhibit 2). In his testimony he estimated that his entire claim was about 100 acres (Exhibit 5).
12) The Supreme Court denied Hunkin’s claim to the aforementioned 15 parcels of the Tuafanua. Hunkin v. Iulio. Rehearing of Claim No. 2791, Supreme Court of Samoa, decided September 10th, 1895.
*13113) It is difficult to discern the precise grounds for the 1895 opinion, or even what the court thought it was deciding. Hunkin’s claim had been to "'Lepule’ & its 'Tuafanua’ adjoining it" (Exhibit 2; see also Exhibit 1, the 1852 deed). The most obvious ground for the court’s rejection of Hunkin’s claim to any "Tuafanua" was that by 1895 there was no unsettled back land adjoining Lepule. All adjacent tracts had been sold and occupied by others. See Exhibits 5 and 6. Although Hunkin may well have cultivated other lands behind Leone in an area known as "the Tuafanua of Leone," any rights he may have had to such lands would seem to have been unconnected to his purchase of "Lepule and its Tuafanua." In any case such rights were not put at issue by his claim before the Land Commission to "'Lepule’ & its 'Tuafanua’ adjoining it." (Exhibit 2, Description of Land, emphasis added.)
14)The Apia court appears, however, to have addressed matters not raised by the appeal that was before it. It "confirmed by ten years occupation and cultivation undisputed" Hunkin’s ownership of Onu'uolupe and Pagaloa (Pugaloa) although he had not claimed them. (Exhibit 6.) Perhaps these were among the three parcels he said had already been confirmed to him, or perhaps they were parts of the larger tracts Hunkin called Lépala and Lega'oa. (The record of Hunkin’s testimony, Exhibit 5, is ambiguous: Pugaloa ‘may be the name of one of the fifteen parcels claimed by him, but seems more likely to have been the name of the land immediately to the west of that parcel.)
15)The scope of the 1895 decision of the Apia court is further confused by what appears to have been an unofficial record prepared by "Misikea, Councillor for Samoa." Misikea (sometimes written Misitea) is a Samoan transliteration of "Mister Gurr." This was the same E.W. Gurr who had appeared for Iulio before the Land Commission. Gurr’s undated note (Exhibit 8) was found in the record of Iulio v. Talamaivao, supra, a 1910 case having to do with the ownership of the village of Amanave. It varies in several ways from the official report of the Apia case. First, it states that the appeal was heard on September 10, 1896; the official record is dated September 10, 1895. (The latter date is corroborated by a letter Gurr himself wrote a few days after the proceeding. See note 4, infra.) Gurr’s caption for the case is *132"Amanave, Lepule & its backgrounds"; the official documents (Exhibits 2, 3, and 6) speak only of Lepule and its backgrounds. In Gurr’s version of the decision the Court "restored" the rights of "Iulio and his family" to "the town Amanave, & the land Lépala, & the land Legaoa, & other lands of the background of Lepule that is left." The official report signed by the clerk (Exhibit 6) does not mention Amanave and does not mention any award or "restoration" of rights to Iulio. Gurr’s report, on the other hand, omits any mention of the court’s affirmation of the rights of landowners adjacent to Lepule, which the official report does mention. The pattern of variations from the official report, and the error regarding the year in which the appeal was heard, strongly suggest that Gurr’s note was not a contemporaneous record of the 1895 case but was prepared in anticipation of a 1906 case having to do with Amanave, in which it was Iulio’s principal exhibit. See Iulio v. Talamaivao, supra. 1 A.S.R. at 219. In any case it appears that Gurr, denominated "Natives’ Advocate" in Iulio’s objection before the Land Commission and "Councillor for Samoa" in his own letters describing the Apia court case, was acting throughout as an advocate for Iulio.4
*133The 1906 High Court Case
16) On March 12, 1906, several years after the cession of Tutuila to the United States, Iulio wrote a letter to the Secretary of Native Affairs and Registrar of Titles and Lands for American Samoa. It appears from the letter that these two offices were combined in one person, who was none other than the aforementioned Misikea or E.W. Gurr. The letter seems to have been intended to operate as a deed of conveyance. In it Iulio announced:
a) that eleven years previously he had been awarded "the back land of Lepule in Leone" [O le Tuafanua o le Pule i Leone] by the Land Commission;
b) that "this back land is called Lega'oa";
c) that Iulio and Talamaivao have agreed to give the land to To'omata and Tali and Amelia Va— - "in her [Amelia] and her children . is the true ownership [pule], because Amelia is the wife of Talamaivao and the daughter of Tuitele; this is our paolo [family connection] to Tuitele, this our true family."
d) "The true ownership of Lega'oa will be in Amelia and To'omata and Tali forever, without any disturbance from our family or our children."
e) The text concludes with the following sentences: "Also all the lands of the foreigners and missionaries, the true ownership is in them, because these lands have all been registered with the government in years gone by, because of fa'ataufua [sales that were invalid or *134unauthorized] by some chiefs of Leone. These lands are within le Ga'oa, but pieces of land are with the chiefs of the village of Leone. Amelia Va and her whole family are the true owners forever."
f) The letter is signed "Iulio." Below this signature are other signatures purporting to be those of Talamaivao, "Sasafai," To'omata, Talita'ua (Tali), and Amelia.
17) On or about the same day that Iulio wrote as recounted above to the Registrar about the land he called Le Ga'oa, he undertook to sell the proposal to certain chiefs of Leone by promising them gifts of land. To Le'oso he wrote that if Leñoso would "testify to Talamaivao’s pule over Lega'oa . . . your lands in Lega'oa will remain." Iulio also hinted that it was futile to fight Talamaivao in court, reminding Le'oso that when FaFivae had tried this in 1895 he had lost badly. Meanwhile, however, Iulio appears to have written FaiMvae a letter of which we have no record; we do have a terse letter from Fai'ivae to Iulio, dated March 12, apparently rejecting an offer and making a counter-offer: "If there is no land around Le Pala, then in my opinion it would be useless for you to give my family any land or share in Le Gaoa." (The evidence also includes a blank form dated March 1906, purporting to be a letter from Talamaivao and written in a style similar to that used by Iulio in his other letters, by which Talamaivao would "give the land Le Pala to the Faiivae family at no cost to be Faiivae land forever." The form is not signed by anyone, and was apparently never executed. But there is a letter dated March 12 from Iulio to Gurr in his capacity as registrar of land titles, stating the intention of Iulio and Talamaivao to give Le Pala to Faiivae and agreeing to have the property registered in Faiivae’s name.)
18) Instead of supporting Talamaivao’s proposal to register Le Gaoa as the land of To'omata, Tali, and Va, neighboring chiefs registered their objections. On March 12 the Western District Governor wrote to Gurr (this time in his capacity as Chief District Judge) "because I have heard that Talamaivao is going to register with the government the name Legaoa. . . . and . . . everyone has a piece of land there." On March 13 Fai'ivae objects that his land "Lefega" is in Legaoa. (Fai'ivae identifies himself as Western *135District Governor, but the handwriting of the two letters described above differs markedly.) On March 14 Leone chiefs Salave'a, Samaga, Tuiteleleapaga, Toilolo, Suafo'a, Su'a, Tavai, Talava, Puloto, Aigamaua, Uo, and Iuli wrote to object to "what Talamaivao has done to the nu'u [village, district, or people] of Le Gaoa" and listing their lands within Lega'oa.
19) On or about March 27, 1906, it appears that Iulio or To'omata filed the 297-acre survey with Gurr. The survey is dated March 27, 1906 and purports to be "Le Ga'oa, land of To'omaata, Leone." The original is contained in the High Court file for Land and Titles case No. 5-1906.
20) On March 28, 1906, Le'oso wrote to Gurr-- - addressing him as "Chief Judge" — objecting to "Iulio and Talamaivao’s survey [fua]." Significantly, this is the first mention of a "survey." Objectors who lodged their objections prior to March 27 spoke of what they had heard, or of a proposed registration, or of "what Talamaivao is trying to do." We conclude that the 297-acre survey must have been given to the Registrar, or at least made public, on or about the date on its face, March 27, 1906.
21) It is clear from the two surveys and from the testimony of plaintiffs’ surveyor that the 297-acre survey dated March 27, 1906, and the 1988 retracing designated "Legaoa 1906" on Exhibit 18 are substantially identical. These are also substantially identical to the Willis/Va plaintiffs’ survey submitted for registration in LT No. 45-81, one of the cases now before us.
22) Lega'oa as defined by the three surveys mentioned above is bounded on the east, north, and west by mountain ridges or slopes. It is bounded on the south by a stone wall and by land called Pugaloa or Pagaloa. Much of the land in the eastern and northern portions of this tract, and some of the land in the western portion, is mountainous. The southern and , southwestern portions, and much of the area in the center of the survey, are flat land.
23) The evidence establishes that the following tracts, some of which were registered as freehold land prior to 1906, are within plaintiffs’ survey: the "Sisters’ Land"; Fai'ivae land called *136Lefega; Le'oso land called Lesolo; Uo land called Leifi; and two tracts called Lépala, out of at least three by that name in the vicinity. The evidence establishes that the following lands are outside the survey: Hunkin’s land called Pugaloa; Hunkin’s land called Lepule; Lalopua; and the French Roman Catholic Mission. These lists are not exhaustive of the tracts within and without Lega'oa, but only of the lands of whose location plaintiffs submitted sufficient evidence to allow us to make a finding.
24) Of the lands listed above, all but one of those within plaintiffs’ survey were listed by objectors to the proposed Iulio/To'omata registration as being within Lega'oa: Lefega, Lépala, Lesolo, and Leifi. Only the "Sisters’ Land" was not part of the dispute. Of the lands we find to be outside plaintiffs’ survey, none was listed as a source of objection in 1906.
25) The trial was held on May 3, 1906. Presiding was E.W. Gurr, Chief District Judge. All witnesses testified that the boundaries of Lega'oa were substantially those stated in our description . of the 297-acre survey, except that some witnesses testified that Lega'oa included only flat land. In particular, Talamaivao testified that the seaward boundary of Lega'oa was Pugaloa.
26) At trial a number of Leone chiefs testified that they had long had plantations within the area being offered for registration by Talamaivao on behalf of To'omata.
27) The Court announced its decision at the conclusion of trial. It held that "[t]he land named Lega'oa is the flat land below the mountain." It ordered that the land be divided in the middle. The inland portion was to be that of. To'omata and the seaward portion the property of "the Leone people whose names are now recorded." The Court also announced that "Leoso will get the two lands Togiagogo and Lesolo that are situated on the sami side of Legaoa."
28) In a written decision dated May 4, 1906, the Court held that "the property in controversy LEGAOA is defined to be the flat land of the valley before the rise to the hills surrounding"; that it was the property of To'omata by gift of Talamaivao but had long been occupied by others, who were *137entitled to compensation for their improvements; and that Legaoa should be divided equally as stated above. To'omata v. People of Leone, 1 A.S.R. 142 (1906).
29) It is absolutely clear that the court was defining Lega'oa as "the flat land of the valley" within the survey that had been offered for registration. There is no evidence at all to support the alternative hypothesis offered by plaintiffs, that Lega'oa originally consisted of the entire Leone valley and that the 297-acre survey reflects the portion that was awarded to To'omata in the 1906 case. And there is abundant evidence to the contrary: (a) The 297-acre is dated March 27, 1906, before rather than after the trial. (b) From the first mention of Lega'oa in 1895 it is described as among the "back lands" behind the village of Leone, (c) In 1906 the objectors were obviously unhappy with Talamaivao and Iulio, but no one alluded to an attempt by Talamaivao or Iulio to register the entire Leone valley. Such an event would have been a remarkable event in the life of the village of Leone; if Talamaivao had attempted to register the whole valley including the central village, it is inconceivable that the chiefs’ objections would have mentioned only some backlands toward the mountain, (d) On the contrary, however, every land which any objector claimed to be part of the original proposed registration, and of which we have any evidence at all, has been shown to be part of the 297-acre survey. (e) At trial Talamaivao himself testified that Pugaloa — not the ocean , or anything near the ocean — was the seaward boundary of Lega'oa. Pugaloa is also the southern boundary of the 297-acre survey and of plaintiffs’ current survey. (f) Finally, the Court itself alluded to the location of Lesolo "on the sami [seaward] side of Legaoa." Lesolo is in the sami portion of the 297 acre survey (see Exhibits 18 and 29) but it is nowhere near the sami side of the Leone valley.
On plaintiffs’ hypothesis that the tract called "Lega’oa" consisted of the entire Leone valley before the Court divided it in two, everyone involved in the case --- Talamaivao, the objectors, the Court itself — was badly confused about the tract’s location and its boundaries. On the contrary hypothesis, that Talamaivao and To'omata attempted to register only the 297- acre survey, all the evidence makes sense. The flat land within *138the 297-acre survey --- a survey substantially identical to the one now offered by plaintiffs as "their" portion of Lega'oa --- was what the Court in 1906 ordered to be divided between plaintiffs’ ancestors and defendants’ ancestors.
30)The flat portion of the 297-acre survey is substantially identical to the 60.1 acres marked "Lot A" on plaintiffs’ Exhibit 36. This is the area that was ordered to be divided in two, the inward portion to belong to Tovomata and the seaward portion to the chiefs of Leone whose cultivations had been within Lega'oa.
The 1918 Case
31) By 1918 To'omata had acquired the Tuitele title. Two of the children of Amelia Va sued him, urging that he had made unauthorized sales of parts of the land belonging partly to their mother.
32) Although the Court found the children had no standing so long as Amelia Va lived, she appeared at the trial and the Court issued a judgment on the merits.
33) The Court’s judgment was that "the title to the land in controversy is vested in TO'OMATA, now known as TUITELE, TALI and AMELIA VA, as tenants in common, each of these persons having an equal interest in the same."
34) In a finding or preamble preceding the above judgment, the Court stated that "[t]he portion of the land "LEGAOA", which was given by this deed to AMELIA VA alone was by the High Court, in said case [i.e., the 1906 case], awarded to the people of Leone." This finding was apparently based on a letter from E.W. Gurr explaining the 1906 Court’s decision.
35) We believe the letter from Gurr, and the 1918 Court’s finding, to be based on a misconstruction of the deed. The deed is in the record of LT No. 5-1906 and its principal parts are stated in paragraph 16 supra. We do not find any evidence of an intention to give any part of Lega'oa to Amelia Va alone; rather, the deed says in one place that "in her is the true ownership of the land," because she is the connection between the Talamaivao and the Tuitele families. Nevertheless, in two other places the deed speaks *139of the "true ownership" belonging to To'omata, Tali, and Va jointly. Judge Gurr in his letter to the Court in 1918 apparently tried to resolve the conflict by reading the last sentence of the deed as a gift to Amelia Va alone of lands that, were "with the chiefs of Leone." We do not think that is what the deed says.
36) To'omata and Tali were close relatives of Amelia Va. In 1906 the High Court had already declared To'omata the heir apparent to the Tuitele title. In re Matai Title Tuitele, 1 A.S.R. 25 (ca. 1902). The stated purpose of the 1906 transfer was to illustrate and strengthen Iulio’s and Talamaivao’s paolo [family connection, but also "shade" or "protection"] to the powerful Tuitele family. The apparently conflicting terms of the deed --- one sentence that appears to give the "true" ownership of the land to Amelia Va, while the rest of the deed gives ownership to her "whole family" or to the three named persons --- make sense in this light. The brothers Talamaivao were giving the land to Tovomata et al. because of Amelia Va, and so were giving it "truly" to her and also to the whole family.
37) Our difference of opinion with the 1918 Court on this question of fact is, however, moot. Despite its view that Talamaivao had intended to give Amelia Va certain lands separately and that those lands had been awarded to the chiefs of Leone in 1906, the Court concluded that she was an equal co-owner with To'omata and Tali of the portion of Lega'oa that had been awarded to them.
38) Plaintiffs’ counsel has alluded to a missing deed, and sometimes to a second deed. We have no evidence that there was ever any deed other than the one described in paragraph 16 supra. Although we believe Judge Gurr’s 1918 letter (contained in the record of the 1918 case) to be an incorrect interpretation of the deed that is before us, its structure strongly suggests that it is an attempt to construe this deed rather than some other or others.
39) Nor have we any evidence of a "compromise" subsequent to the 1906 case, whereby the chiefs of Leone awarded Amelia Va any additional lands in compensation for what she lost in the 1906 litigation.
*140Conclusions
1) Although we assume for the purpose of this motion that the 1895 decision of the Apia court is binding on us, it has no bearing on the outcome of this litigation. The only issue properly before the Court was Alfred Hunkin’s appeal of the denial of his father’s claim to "Lepule and its 'Tuafanua’ adjoining it." The land in dispute in the present case clearly does not adjoin Lepule. Even if we are bound by what the court seemed to think it was deciding --- the denial of Hunkin’s expanded claim to an area of 50 to 100 acres in the backland of Leone, part of which he called . Le Ga'oa --- the official record of the decision purports only to reject Hunkin’s claim and not to confirm that of Iulio as against the world. Moreover, even if Iulio had won Hunkin’s eight portions of the backland called "Le Gaoa" in 1895, we would have no evidence of how much of the 297-acre survey was included in those tracts. Finally, the far more specific ruling of the High Court of American Samoa in 1906, which did define the rights in Lega'oa of the Talamaivao legatees and of the Leone chiefs, . would seem to supersede any contrary implication of the earlier Apia decision.
2) The High Court in 1906 held that Lega'oa consisted of the flat land within the 297-acre survey that had been offered for registration. The Court ordered that the land be divided into two equal parts, with the back portion belonging to To'omata and the seaward portion to the chiefs of Leone whose cultivations had been within the survey. To'omata v. People of Leone, supra. In 1918 the Court held that To'omata had not been awarded the land as a sole proprietor, but that he was a tenant in common with Tali and Amelia Va. Falesau v. Tuitele, supra. These holdings are binding on us and on the parties to the present case by the rule of res judicata.
3) Much of plaintiffs’ argument on rehearing was devoted to urging that we had misapplied the standard of proof on a motion for summary judgment. But the motion we granted was not a motion for summary judgment. It is true that at the conclusion of the plaintiffs’ evidence, the Court announced that it would hear arguments on a motion for summary judgment that it had previously deferred until trial on the merits. When, in response to this announcement, plaintiffs’ counsel *141argued that the Court would have an obligation to find the facts in the most favorable possible light for plaintiffs, the Court asked if defense counsel wished to make a motion to dismiss. Defense counsel did make a motion to dismiss, and argument resumed on that motion. The motion was in order, plaintiffs having rested and defendants not having put on any evidence.
4) The standard of proof on a motion to dismiss at the conclusion of plaintiffs’ evidence at trial, unlike the standard on a motion for summary judgment prior to trial, is that plaintiffs must prevail by a preponderance of the evidence.
The court is not to make any special inferences in the plaintiff’s favor nor concern itself with whether plaintiff has made out a prima facie case. Instead it is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies.
9 Wright & Miller, Federal Practice and Procedure: Civil § 2371 at 224-25 (1971).
At the conclusion of the plaintiffs’ case the Court would have been justified in treating the case as though defendants had rested without submitting any evidence. As it happened, the clear contemporaneous evidence of what happened in 1906 --- almost all of it offered by the plaintiffs and much of it from the Court’s own files -— and the testimony of plaintiffs’ own surveyor about the current location of the various tracts discussed by the parties and the Court in 1906 and earlier, far outweighed the slight contrary evidence. This consisted almost exclusively of the testimony of plaintiff Tony Willis to the effect that his family had once owned all of Leone and had been consigned to the 297 acres of plaintiffs’ survey after "the first illegal division of the land" by the High Court in 1906.
The Court, moreover, did far more than what was strictly necessary to ensure plaintiffs a fair hearing. First we allowed plaintiff Tony Willis to testify for a second time at the request of counsel for plaintiff Levi, although we had heard plaintiff Willis for several hours the day before and counsel for plaintiff Levi had previously had the opportunity to question him. Then, having noted that the *142testimony of plaintiff To'omata — technically a plaintiff since his claim was derived through the 1906 conveyance from Talamaivao --- was more helpful to defendants than to plaintiffs, the Court decided to disregard this testimony in reaching a decision on the motion to dismiss. Finally, in response to the argument of plaintiffs’ counsel that he had been saving certain evidence for rebuttal, the Court heard plaintiffs’ offer of proof and agreed to assume the truth of every bit of the proffered evidence in reaching its decision on the motion to dismiss.
Plaintiffs had a fair trial. Plaintiffs’ counsel did an excellent job. They simply did not have much of a case. At the close of the plaintiffs’ evidence it was quite clear that defendants should prevail on the only issue before the Court, and that neither the Court nor any party would benefit from another two days of testimony.
The Land and Titles Division of the High Court is specially authorized by statute, in cases where "the strict compliance with any rule of practice or procedure may be inequitable or inconvenient," to act "in such manner as it considers to be most consistent with natural justice and convenience." A.S.C.A. § 3.0242. Although we feel that the procedures we followed were correct even in the absence of this statute, we reaffirm our conviction that justice and convenience would have been disserved by requiring the many defendants in this case to present evidence and arguments in the slim hope that the plaintiffs’ case would be struck by the evidentiary equivalent of lightning.
5) For the purpose of the motion to dismiss we agreed to assume that the United States Government established a rifle range in the seaward half of the 297-acre survey during World War II. Tony Willis testified that his mother received a damage award from the government after the war on account of the rifle range; he also submits documentation of an award, which does not mention whether it was on account of a rifle range. We assume, however, that it was. We also assume the truth of testimony that plaintiffs’ counsel said he would have offered on rebuttal, to the effect that Dorothy Asuega, an heir of Amelia Va, has lived in the seaward portion of the 297-acre survey; and that aerial photographs of Lega'oa and vicinity taken during the last *143twenty years or so would not show clear boundary lines between a number of small cultivated tracts.
This evidence might be relevant to a claim based on adverse possession, which is not now before us. We understand also that relatively recent patterns of occupation are not altogether irrelevant to what the Court might have done in 1906. These three pieces of evidence, however, and Tony Willis’s testimony with regard to his version of Talamaivao family history, are insufficient to overcome the clear contemporaneous documentary evidence of what was before the Court in 1906 and what the Court then decided.
6) Finally, with regard to the mountainous portion of plaintiffs’ survey we are bound by the rule of res judicata to the holding of Leuma v. Willis, 1 A.S.R.2d 48 (1980).
The land is not the individually owned land of Defendant [Tony Willis, plaintiff in the present case]. . . . We have found that Willis [the same Tony Willis who is a plaintiff in the present case] and his co-tenants were deeded only the flat land of the valley. Since we have found that the land in question is not part of the flat land of the valley, Willis cannot claim this land by the deed, whether or not the deed is valid.
Id. at 55.
This does not, of course, preclude plaintiff Willis or any other party from proving a claim based on original occupation or on adverse possession. Those issues, by stipulation of the parties, are not presently before us.
Order
We reiterate our judgment from the bench. The amended complaint of the Willis\Va plaintiffs in consolidated cases 45-81 and 45-82 is dismissed, and all the relief demanded therein is denied with prejudice, except that the following declaratory judgment will issue:
The inland half of the flat portion of the 1906 To'omata survey of Lega'oa, more particularly identified as the inland *144half of Lot A on Plaintiffs’ Exhibit 36 in the present case, is the individual property of the successors in interest of To'omata, Tali, and Amelia Va, who held equal interests in the land as tenants in common. The seaward half of the same survey, more particularly identified as the seaward half of Lot A on Plaintiffs’ Exhibit 36, is the communal property of those families of Leone who were occupants prior to 1906 of any part of the land described by the survey. This judgment is without prejudice to the rights of any person who has acquired a title to any portion of the described land by registration in accordance with law, or by adverse possession.
The Court will hold a second hearing at the convenience of the parties in order to resolve any claims by adverse possession, to allow the various defendants to prove their claims within the seaward half of the survey, to consider any claims within the mountainous portion of the survey, and for other purposes not inconsistent with this decision. All claims in cases LT No. 8-84, LT No. 22-86, and LT No. 6-87 are also deferred until the second hearing, to be resolved consistently with this opinion and the judgment herein.
The motion to reconsider is denied. It is so ordered.
Litigant To'omata M.T. Tuitele, claiming to appear on behalf of himself and the heirs of To'omata and Tali, is hard to characterize as a plaintiff or defendant. To'omata and Tali are the other two people to whom (along with Amelia Va) Talamaivao is said to have given Lega'oa. Thus a victory for plaintiff Willis and the heirs of Va, awarding the full 297 acres to the three legatees and their descendants, would seem to be a victory for To'omata as well. To'omata is also, however, a chief of Leone, as was his ancestor of the same name who received the legacy from Talamaivao. The present To'omata first appeared in this litigation as an objector to the attempted registration of the whole 297 acres as property of the heirs of Va. After the cases had been consolidated, counsel for To'omata filed a three-sentence answer from which it is not possible to discern a theory of the case. In determining the order in which evidence should be presented, the Court ordered without objection that To'omata should *126be characterized as a plaintiff. His testimony with regard to the historic boundaries of Lega'oa, however, turned out to be in substantial agreement with the position taken by most of the defendants.
We take judicial notice of this attitude only for the purpose of understanding the term "tuafanua." We do not hold that it has the force of law in this or any other case. The current law of American Samoa is that an individual or family that clears and cultivates virgin bush can acquire a property right in the land, notwithstanding its proximity to other land that has previously been occupied or cultivated by others. See Leuma v. Willis, 1 A.S.R.2d 48, 49-54 (1980), and authorities cited therein; Lago v. Mageo, 4 A.S.R. 287 (1962), and authorities cited therein; A.S.C.A. § 37.0101. See also Lago v. Mageo, supra, at 299-302 (land below the high-water mark is held by the United States in trust for all the people of the Territory).
The Court is of the opinion that it can take judicial notice that the Court House and Blacklock’s store (later Parkhouse & Brown’s store) were both located in downtown Apia. See Cyclopedia of Samoa at 27, 99, 110 (1910). If Hunkin’s estimate was correct, the land called "Lega'oa” involved in the 1895 case therefore constituted only a few acres. Such a finding, however, is unnecessary to our decision; it is sufficient that the evidence establishes Hunkin’s entire claim to have comprised only 50 to 100 acres. See also Conclusion of Law No. 1, infra.
Gurr also wrote a letter in 1895 to the "Chiefs and Councillors of Amanave," telling them that Iulio had "put before the judge an objection to protect your town & cultivations & also land." He informed the chiefs that "the Case is now over & the town Amanave & its lands are saved." The only hitch, according to Gurr, was that "you [the chiefs of Amanave] are to pay taxation for the investigation of the land, the sum of one hundred dollars, then your land will be saved." Otherwise the Chief Judge and the Government would "be at a disposal of selling your land to whom they choose." Gurr suggested that each resident of Amanave contribute two or three dollars. The letter was signed "Misitea, Councillor for Samoa" and was dated September 16, 1895, six days after the Apia trial. The chiefs later claimed that they had paid the $100 to Iulio. (Gurr’s letter to the chiefs and the chiefs’ claim to have paid the money to Iulio are part of the record of Iulio v. Talamaivao, supra.)
The official report of the Apia case, *133contrary to Gurr’s letter, assesses $100 not against the chiefs of Amanave but against Iulio himself. Moreover, the assessment appears on its face to have to do with "all the rest of the Tuafanua" — - that is, such portions of "the Tuafanua of Lepule" as were not confirmed to Hunkin --- rather than with Amanave in particular. Assuming that "Councillor for Samoa" was something other than a self-description, and whatever the official duties of that post might have been, it is difficult to escape the conclusion that Gurr was operating as an advocate for Iulio. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485754/ | On Motion for Preliminary Injunction:
This case is one of those, that have been consolidated with LT Nos. 45-81 et al., Willis v. Fai'ivae. This motion involves only the Uo family and the Fai'ivae family.
In 1987 certain members of the Uo family sued to enjoin the defendants, members of the Fai'ivae family, from occupying land the Uo family calls Leifi. Lucy Uo commissioned a retracing of a 1915 survey of Leifi on record with the Territorial Registrar. The retracing shows two houses occupied by Fai'ivae family members to be within the boundaries of Leifi. The Fai'ivae family maintains that the retracing is incorrect and that the houses are actually within the boundaries of land claimed by Fai'ivae called Lefega.
The present motion for a preliminary injunction was occasioned by the construction, now in progress, of a third Fai'ivae house adjacent to the existing houses in the disputed area.
The Court visited the land and made the following observations:
1) The house now under construction is roughly 600 feet north of a bathing pool identified by chief Fai'ivae to be the pool called "Pugaloa."
*1522)The evidence at the first hearing on the consolidated cases showed that there was land called Pugaloa or Pagaloa belonging to the heirs of Matthew Hunkin; that this land was a few hundred feet to the south of Leifi; and that at the northern boundary of Pugaloa there was a bathing pool.
2) Fai'ivae defends his claim that the house is outside the boundaries of Leifi by reference to two maps that were introduced into evidence at the first hearing on the consolidated cases. One of these maps (Exhibit 32) is of property called Lépala, registered in 1915 by Mrs. Thomas Meredith. The other (Exhibit 30) is the 1915 map of Leifi, registered by Uo.
3) According to the 1915 map, Lépala should extend about 290 feet from north to south along the trail or road that traverses it.
4) According to the 1915 map and also to the position currently taken by both Uo and Fai'ivae, Leifi should extend about 200 feet from north to south along the trail or road.
5) The 1915 map of Leifi shows Pule and Tuiteleleapaga as neighbors to the south, Fai'ivae and Le'oso as neighbors to the north. The 1915 map of Lépala shows "Fai'ivae" to the south and Suafoa to the northwest. (Fai'ivae in 1915 was Alfred Hunkin, an heir and executor of Matthew Hunkin.) The 1915 map of. Lepala does not say who owns the land directly to the north.
6) If the pool pointed out to the Court by Fai'ivae is the same as the pool on pre-1900 maps of the area (see, e.g., Exhibit 20), and Pugaloa was immediately adjacent to Lépala on the south, and Leifi was immediately adjacent to Lepala on the north, then Leifi begins about 290 feet north of the pool and ends about 490 feet north of the pool, hi this case the FaiMvae house now under construction is to the north of Leifi and outside its boundaries, and would appear , to be within land that was claimed by Fai'ivae in 1915.
7) For the purpose of this motion the Court assumes that the current bathing pool is the same as the historic one. It is also assumed that Lépala was immediately to the north of Pugaloa. It is not clear from the 1915 maps, however, whether *153Leifi was just to the north of Lépala or whether there was other land in between these two tracts.
8) One of the two neighbors to the south of Leifi in 1915 was "Pule." Lépala was registered not by "Pule" but by Mrs. Thomas Meredith.
9) The land along the road between Pugaloa and the area now in dispute between Uo and Fai'ivae appears to be occupied primarily by Chief Puletu Meredith, who has appeared in the consolidated cases on behalf of the Puletu family.
10) Puletu pointed out to the court what he claims to be the northern boundary of his land. It agrees with what the Uo family claims to be the southern boundary of Leifi. It is roughly 535 feet north of the bathing pool.
11) It would appear, therefore, that Puletu Meredith claims not only the tract registered by Mrs. Meredith, but also an area claimed to be communal land of the Puletu family extending about 245 feet to the north of this tract. (This seemed to be the gist of a third map shown to the Court by Fai'ivae and said to be Puletu’s recent resurvey of the area. This map, however, has not been introduced in evidence.) Puletu appears to believe that "Leifi" begins at the north of this area rather them immediately to the north of the Meredith survey. The Uo family appears to agree with him.
12) The Court has no strong opinion, either from looking at the land or from evidence in the current record, whether the Meredith survey of Lépala and the Uo survey of Leifi adjoined each other or whether there was an area in between that belonged to Puletu or someone else.
13) The notation on the 1915 map of Leifi to the effect that "Pule" owned the land to the south would lend some support to the existence of a Puletu tract north of the Meredith survey and south of Leifi.
14) According to composite maps prepared by a surveyor for plaintiff Tony Willis in the consolidated cases, and introduced at the first hearing as Exhibits 18 and 29, the southern boundary of Leifi would appear to be about 400 feet north of the bathing pool. This is about halfway *154between Fai'ivae’s estimate of about 290 feet and Uo’s estimate of about 535 feet. If the surveyor was exactly correct, then the house now under construction would appear to be almost exactly on the northern boundary of Leifi. It is not clear, however, what the margin of error on the composite maps was.
15) The evidence is also insufficient to determine whether the disputed land has been occupied by the Fai'ivae family for long enough and under such circumstances as would give them title by adverse possession. Fai'ivae appeared at the hearing on this motion to be making such a claim, although it was not articulated very precisely.
Conclusion
The Court cannot conclude from the evidence now before it whether Fai'ivae or Uo will probably prevail at trial on this issue. It also appears that a remarkable amount of progress has been made on the construction of the house during the short time it has been under way. The exterior construction appears to be almost entirely complete. We therefore no longer have the option of ordering the land to be left "as is" during the pendency of the litigation; the damage to avoided by an injunction — that one person might turn out to have built a house on land belonging to another — has already been done.
We note, however, that beginning construction on disputed land after notice of the opposing party’s claim, and especially during the pendency of litigation to determine title to the land, is a foolhardy thing to do. Fai'ivae may proceed with the construction of the house, but he does so at his own risk. If the house now under construction is determined at trial to be on Uo property, Fai'ivae will not be entitled to compensation for the value of his improvements. His only choice will be between removing the house and abandoning it.
Counsel for the Uo family has expressed the fear that without an injunction his clients may ultimately be forced to pay for improvements made by others on their land. Counsel cites Atofau v. Lopa, 2 A.S.R.2d 45 (1985), in which the Court did invoke its equitable powers to compensate a person who had built a house even after the true landowner *155had sued him. The plaintiff in Atofau, however, had let his objection languish for several years while the construction continued. He even allowed his first lawsuit to be dismissed for lack of prosecution. The Uo family, on the other hand, has "respond[ed] with diligence" to the present construction. See Atofau, supra, at 47. If the Uo family prevail at trial they will be put in possession of their land free and clear of any obligation to pay for improvements undertaken by persons who had adequate notice of their claim. This might or might not include houses built prior to 1987, but it would certainly include the house currently under construction.
Accordingly, the motion for a preliminary injunction is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485756/ | On "Motion in Apposition to Proposed Judgment":
On July 18, 1988, the Court granted plaintiff’s motion for summary judgment. The Court held that, assuming all disputed facts in the light most favorable to defendants, the defenses raised were insufficient as a matter of law. Plaintiff was therefore entitled to recover the unpaid balance of $4750 on its loan to defendants plus accrued interest, court costs, and attorney fees to be proved by affidavit. 8 A.S.R. 30 (1988).
On July 28, 1988, defendants moved for reconsideration. The Court held a hearing on September 2, 1988, and denied the motion for reconsideration except that the 18% interest rate specified in the original judgment was reduced to 15%. The Court ordered the Bank to submit a proposed judgment reflecting the revised interest rate.
Due to an apparent misunderstanding of the Court’s order, the Bank did not file a proposed judgment until January 30, 1989. After reviewing the proposed judgment to ensure that it accurately reflected the revised judgment that had been announced from the bench, the Court signed it. Defendant R.S. Pene then filed the present motion.
*159Defendant urges that at the September 1988 hearing the Court did not deny the motion for reconsideration of the summary judgment. Rather, defendant contends that the Court promised to review the transcript of the evidentiary hearing that had been held on the motion for summary judgment. According to defendant’s recollection, the purpose of the promised review was to see whether "defendants had raised the issue that the automobile was inoperative, due to the actions or inactions of the plaintiff." If the transcript of that hearing did show that these facts had been alleged by defendants, "it will then be grounds to set the matter for trial." Defendants maintain that "we are still waiting for said review of said transcript."
Defendant’s recollection of what happened at the September 2 hearing differs from the recollection of the Court and of plaintiffs counsel. It also differs from the record taken by the Clerk at the September hearing, which states as follows:
Court: Motion for Reconsideration is denied.
Bank will submit a new judgment on the interest rate will be 15% instead of 18%.
Pene will have ten (10) days to appeal.
At the hearing on the present motion, however, the Court undertook to review the court reporter’s verbatim record of the September 2 hearing to see whether defendant’s recollection might be accurate.
The reporter has prepared a transcript of the only portion of the September 2 hearing in which the Court discusses the question of an inoperative car. The Court’s remarks on this question, in pertinent part, were as follows:
Now, this business about the car being inoperative. Frankly, I had a sneaking suspicion it might have been inoperative. . . . I don’t want to give you any inappropriate encouragement, but I will tell you that .... [i]f the bank had somehow immobilized that car, if they had deliberately taken possession of the car by saying, "No, we have got the title documents and we are going to keep them, *160we are not going to let you get your license for that car until you pay us the money," then that might constitute a repossession and at least to the extent of the value of the car, you might have a case. I don’t think that case was presented before we tried the motion for summary judgment, and I have searched in my mind for what you said orally. If I was wrong about that, there is really only one way of finding out. I am so sure that I am right about it, I am not going to deal with it any further. If you think I am wrong, you are entitled to bring an appeal. If I thought there was any significant chance that I was wrong about that, I wouldn’t rule this way. But it simply is not my recollection that the issue was ever raised, and you did have the right to raise the issue at the time the motion was made.
Defendant Pene evidently misinterpreted the Court’s statement. What the Court said was that if defendants had raised a certain issue at the evidentiary hearing, then the case should have been set for trial. The Court did not, however, promise to go back and check to see whether defendants had raised this issue. On the contrary, the Court said it was quite sure defendants had not raised that issue, and reminded defendants that "[i]f you think I am wrong, you are entitled to bring an appeal." If defendants wished upon appeal to contest the Court’s recollection of what evidence had been presented at the evidentiary hearing, the burden of producing a transcript would be on defendants themselves. See Appellate Court Rule 10.
The present "motion in apposition" is construed as a motion to reconsider the judgment as revised, and is denied. Defendants have ten days from the date of this order to file notice of any appeal. (Counsel for the Bank has indicated his intention to argue that the time in which defendants may appeal has already expired. This argument, and any further arguments by either party, should be addressed to the Appellate Division.)
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485758/ | On Request for Approval of Stipulation:
The vessel Conquistador was arrested by the Marshal of the High Court in 1983 pursuant to the complaint in admiralty filed by plaintiff S.W. (Southwest?) California Production Credit Association.
On September 20, 1983, pursuant to a stipulation among plaintiff , and the various defendants, a receiver was appointed. The marshal relinquished possession of the vessel, and counsel for the owners of the vessel "accept[ed] full possession of the vessel . . . for . . . the appointed receiver." According to the stipulation of the parties, which was incorporated into an order of the Court, the vessel was to be "deemed . . . in custodia leáis" during the receivership. The stipulation also provided that "[n]othing in this stipulation and order shall be construed to create any ranking or priority of any liens against the Vessel . . . other than that . . . which would exist but for the provisions of this stipulation and order."
On November 15, 1983, subsequent to the stipulated order and release of the vessel, the Court granted a motion to intervene by Jackel, Inc., a vendor of ship supplies and materials. The order provided that intervenor' s lien would be junior to that of plaintiff.
The receivership has now been in existence for almost six years. During this time the vessel has been regularly engaged in fishing.. As far as the Court can discern from the occasional reports of the receiver, proceeds from fish sales have been divided among the various parties and other creditors in accordance with the terms of the 1983 stipulation.
Plaintiff and defendants now request the Court to approve a stipulation by which plaintiff (or, more precisely, an entity into which the plaintiff has merged) will lend $110,000 to the réceivership *9and to the owners of the vessel. The stipulation specifies that the loan shall give rise to a lien, and that the lien "shall be subordinate and secondary only to the preferred ship's mortgage of the plaintiff . . . ."
The Court has no objection to the loan. The Court is reluctant, however, to issue an order affecting the rights of absent parties without affording them prior notice and opportunity to be heard. One such party is the intervenor, who has apparently not received notice of the stipulation. (It also would appear from a notation in the Court's voluminous file on this case that some other party, represented by counsel Aviata Fa'alevao, has entered an appearance at some time during the six years the action has been pending. The Court is at present unable to determine who this party might be.)
Even more importantly, the proposed order would purport to subordinate all liens on the vessel --- including, presumably, the rights of crewmen and suppliers on future fishing voyages--to the rights of the proposed lender. This may or may not be in accordance with what would otherwise be the law. When a vessel is actually or constructively in the possession of the Court, liens do not ordinarily accrue in favor of crewmen or other suppliers of goods and services to the vessel. See Gray. Cary. Ames & Frye v. HGN Corporation. 6 A.S.R.2d 64 (1987); Putnam v. Lower. 236 F.2d 561 (9th Cir. 1956). This rule may not apply, however, to a vessel placed in custodia lecris but subsequently "allowed to ply the harbors in furtherance of its trade without restriction." Gray, Carv. Ames & Frye. supra. 6 A.S.R.2d at 71.
It would be grossly unfair to permit the [mortgagee], by proceedings that were essentially ex parte as to [crew members on voyages undertaken while the vessel is in custodia leqisl, 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 ....
Id., quoting Northwest Marine v. United States. 307 F.2d 541 (9th Cir. 1962).
Notwithstanding the stipulated order that the Conquistador shall be "deemed" in custodia legis *10during the present receivership, it is unclear whether---with respect to those who were not parties to the stipulation and had no notice of it ---the facts and circumstances of this receivership are such as to render the vessel within or without the Court's custody. Unlike the vessel at issue in Gray. Carv. Ames & Frye. which embarked on a single fishing expedition with the express and specific approval of the Court, the Conquistador appears to have been allowed to "ply the seas in her usual custom." Id., 6 A.S.R.2d at 73. We note also that the stipulated receivership order, while providing that the vessel should be "deemed" in custodia leáis, nevertheless purported not to "create any ranking or priority of any liens against the Vessel . . . other than that . . . which would exist but for the provisions of this stipulation and order." This provision would arguably preserve the rights of those who, in the absence of the stipulation that the vessel be deemed in the constructive possession of the Court, would have obtained liens on the vessel during the period of receivership.
Assuming the status of the Conquistador to be such that maritime liens may arise in favor of. crewmen, suppliers, and others during the receivership, and assuming further that some or all of these liens would be superior to- those of the proposed lender, it is not clear that the Court has the power to alter the rank or priority of such liens by approving an ex parte stipulation to which the lienholders were not parties. On the contrary assumption---that no valid liens could arise during the receivership, or that any liens that did arise would be subordinate to that of the proposed lender --- no Court order is necessary to effectuate the stipulated priority. Nor is it altogether clear, assuming the vessel to be in custodia leqis so that no lien can be created by operation of law, that a Court order purporting to create or recognize a lien on behalf of the proposed lender would have the desired legal effect.
While the Court feels compelled to notice the existence of these questions, it would not be appropriate to resolve them without benefit of any briefing and argument the parties might wish to offer. Accordingly, the stipulation is approved on the following conditions:
*111) Insofar as Court approval is necessary for the loan from Farm Credit Services to the receiver, such approval is granted.
2) Insofar as the Court's permission is necessary to allow the loan and accompanying mortgage to give rise to a lien against the vessel, such permission is granted.
3) Insofar as the rights of the parties to the stipulation are concerned, the loan and accompanying mortgage shall give rise to a lien that shall be subordinate and secondary only to the preferred ship's mortgage held by plaintiff. (In the event it should be held that this Court has no power to create or recognize such a lien, then the parties to the stipulation should be understood as stipulating that any rights they may have in or against the vessel, its fixtures, its proceeds, or its cargo (with the single exception of plaintiff's rights arising from its preferred ship mortgage) shall be subordinate to the contractual right of Farm Credit Services arising from this loan; and the Court approves this stipulation and incorporates it into its order).
4) The Court expresses no opinion on whether maritime liens can be created during the receivership with or without the permission of the Court.
5) The Court neither expresses any opinion on the rights of any person who is not a party to the stipulation nor purports to alter the rights any such person would have in the absence of this order.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485759/ | Plaintiff's aiga bus was involved in a collision with a backhoe/loader belonging to the defendant corporation. Plaintiff sues in damages for certain repairs to the bus and for loss of revenue during the repairs.
Liability
The driver of the bus testified that on the day in question he was heading westbound, and travelling within his proper lane, in the vicinity of Lauli'ifou. He further testified that towards the crest of the hill at the end of the village, he noticed a backhoe off the road on the opposite sami side. As he was passing the machine, it somehow backed onto the eastbound lane with its hoe extending in such a manner that it caught the side of the bus to the rear of the driver's side. A supervisor employee of the corporation testified that he and his crew were involved with laying pipe lines in the vicinity and that the operator was sent on the backhoe to pick up a load of sand. The *13backhoe was not attended by a flagman although this supervisor .testified about certain safety requirements imposed on them to have warning signs at intervals of 1000 feet. The operator was not called to testify.
We find on the evidence that defendant corporation's employees were negligent. The backhoe's driver did not keep a proper lookout for normal traffic on the road; the bus was travelling in its proper lane with the right of way; and the backhoe was unattended by a flagman.
On the other hand, we give little weight to the counter testimony offered on defendants' behalf to the effect that this particular bus driver had been the cause of many past complaints from their flagmen, and that ensuing damage to the bus should have been much greater if the bus driver's testimony is to be believed. Such evidence is hearsay and invites speculation. Indeed it is more consistent with the resulting damage that the bus driver was travelling at a moderate rate of speed. Given the total loaded weight of the backhoe, as testified to by Mr. Poysky, the damage would have been much more devastating if the bus had been travelling at greater speed. In fact, the bus was brought to rest with the hoe of the machine resting against the bus. We accordingly reject defendants' claim of comparative negligence on the part of the driver. At the same time, we find no actionable claim established against Mr. Poysky personally, a shareholder and employee of the defendant corporation, and accordingly dismiss the complaint as to him.
Damages
Plaintiff testified that subsequent to the collision, which occurred on November 18, 1987, he offered to settle the matter for the sum of $3,000.00. Defendant, however, rejected this proposal and instead offered to have its own carpenters repair the bus. Plaintiff stated that he had agreed on the assurance that defendant had qualified personnel to do the work and that defendant would pay him $70 a day for lost income.1 *14The bus was then taken to defendant's yard on November 20, 1978.2
Plaintiff testified that he visited defendant's yard on November 24, 1978 and was disappointed with the progress of the repairs. He was told that the type of glass used on the bus was not available on island and he therefore told Mr. Poysky to use an alternate as he wanted the bus on the road again. He again went to check on the bus the following day and was again disappointed with the extent of repairs. Plaintiff stated that he then offered to take back the bus in exchange for the materials acquired by the defendant for repairs plus $1000. He was told that defendant preferred to finish repairs to the bus and Mr. Poysky wanted to consult with the corporation's attorney. The bus was finally delivered to him on December 2, 1978 in a condition which, according to plaintiff, greatly angered him. He said the windows were improperly set and incomplete as a curved rear comer window was not replaced; that the repair work was not properly finished nor painted; and that some of the seats remained bent. Not knowing how to secure his rights, plaintiff said that he then sought out the defendant's attorney for assistance and informed the attorney that he was willing to settle for $1500 to finish the bus repairs. The attorney referred him to the corporation's insurance carrier who proved to be of no help and eventually plaintiff engaged his own lawyer. Somehow plaintiff was under the impression that the defendant's attorney was going to view the bus and he held off finishing the repairs which he finally commenced, after further consultation with his own counsel, on December 17, 1978. Plaintiff went on to state that he took four days to finish the repairs and that in the process it had cost him $200 in paint and primers and about $500 in labor. Plaintiff prays for these costs plus $70 a day representing an average of income lost, as well as punitive damages.
*15For defendant, Mr. Poysky denied any agreement to pay plaintiff $70 a day. As far as he was concerned, his company had offered to repair the bus and that the work done on the bus by his carpenters was of good workmanship. He testified that the bus was not however painted by the company's carpenters as plaintiff had made clear to them that he would do the painting because he had a stencil for the bus logos. Defendant's evidence went on to point out that after stripping the bus's relevant side panels and uprights, the carpenters encountered much wood rot. At Mr. Poysky' s instructions, the rotting wood was replaced and a whole new tire well built. According to Tony Caldwell, an employee of defendant, they had rebuilt beyond the damage resulting from the collision and structurally the framework was restored to its former, if not a better, condition. He further testified that the bus repairs were completed within a week and that they were unsuccessful in contacting plaintiff by telephone. The carpenters' time sheets presented as evidence by defendant indicated that work ended on November 28, 1987.
On the foregoing, the following damages are found proven and awarded plaintiff: (a) $500.00 being 4 days labor costs incurred by plaintiff to completely restore the bus to a finished and painted condition; (b) of the $200.00 sought as the cost of materials to finish the bus, we allow only the sum of $160.00 as justified on the receipts submitted; (c) on the claim for lost revenue, we award damages for income lost between November 19, 1987 and December 1, 1987 and for the 4 days of restoration by plaintiff, which we find to be 13 working days (inclusive of Saturdays) at the daily rate of $42 .00 per day3 or $546.00.4
Judgment will accordingly enter in favor of plaintiff, Nick Bohanak, against the defendant, Samoa Maritime, Inc., in the sum of $1,206.00.
*16It is so Ordered
The figure of $70.00 was given by plaintiff as the average daily turn in by the bus driver. In turn, the driver's income was based on a rate of 30% of that return.
Hr. Poysky testified that the offer to repair was not an admission of fault. He averred to a company policy of not referring every accident involving their machines to their insurance carrier. Instead they have in the past handled minor damage on their own without concern for fault as a gesture of goodwill to the public. Hr. Poysky stated, however, that this was one case which they just could not give in on entirely.
See footnote 1 supra.
Except for the four work days incurred by plaintiff in finishing the bus, we have disallowed any claim for lost revenue during those days the bus was in plaintiff's possession. This conclusion is consistent with plaintiff's duty to mitigate damages. Additionally, we find nothing on the evidence to support the prayer for punitive damages. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485762/ | Petitioner seelss an cinnulment of his marriage to responden!:., He alleges that at the time of this marriage respondent liad a lawful and living spouse.
I» Facts
Although respondent did not appear, the Court held an evidentiary hearing as required by A.S.C.A. § 42o0205o Petitioner presented a copy of what appears to b© a final judgment of divorce in favor of respondent ©gainst one Rodney Carter. The judgment was rendered in California; although it states that jurisdiction Tías obtained over Carter by service of process on October 5, 1979, the judgment itself was not rendered until 1985. The *32purported marriage of the present parties took place on December 6, 1980, in American Samoa.
Petitioner did not wish to present any further evidence. The Court, pursuant to the responsibility imposed by A.S.C.A. § 42.0205, inquired about the circumstances of the marriage whose annulment is now sought. Petitioner testified, in response to the Court's questions, that he had known at the time of his purported marriage to respondent that she was already legally married to Carter; and that he had lived with her as man and wife both before and after her 1985 divorce from Carter.
Asked by the Court if he wished to say anything about his state of mind during these events, the petitioner declined to do so. His attorney interposed that since the marriage is "void ab initio." petitioner is entitled to an annulment regardless of his culpability or lack thereof.
The Court then expressed its uncertainty on this point of law and asked petitioner, who is himself a licensed attorney, whether he wished to rely entirely on the argument of his counsel rather than to present evidence tending to mitigate the effect of his own prior knowledge that his marriage was bigamous. Petitioner declined to present further evidence, and the case was then taken under advisement.
The Court is therefore constrained to decide this case without a clue about what the parties had in mind when they contracted this marriage and carried it on for over seven years.
Perhaps even more important, we know very little about the California divorce action on which petitioner rests his case. The judgment submitted in evidence is a one-page form containing no findings or conclusions about the marriage between the present respondent and her former husband. The most interesting piece of information on the page, for the purpose of the present proceeding, is that petitioner filed for divorce against Carter at some time before October 5, 1979 --- over a year before the purported marriage of the present parties. A final judgment did not issue, however, until about six years later. We are informed that the action was "default or uncontested," that it was heard "by *33declaration" (i.e., on affidavits rather than live testimony), and that a Marital Settlement Agreement was incorporated by reference. We have no copy of this agreement; it might have been made shortly before the final judgment (in 1985) or at around the time suit was filed (in or before 1979) or when the parties separated (at some unspecified earlier time). The copy of the judgment presented to us refers to six pages of attachments, but these have not been introduced into evidence.
One important fact that we do not know is when, if ever, an interlocutory judgment was granted in the California action. Prior to 1983 the law of California provided for a two-stage divorce process. After the Court had heard the case and determined that the parties were legally entitled to a dissolution of their marriage, it issued an "interlocutory" judgment. After six months either party could move for a "final" judgment, or the Court could issue such a judgment on its own motion.1 The evidence before us, to the effect that respondent's suit against Carter was filed in 1979 and a final judgment issued in 1985, is in no way inconsistent with the issuance of an interlocutory divorce in 1979 or 1980.2
Nor, for that matter, is the evidence before us dispositive of the question whether Carter obtained an absolute divorce in another proceeding before December, 6, 1980. We do not even know for a fact that Carter was alive on that day.
*34II. The Presumption that a Marriage is Valid
Rarely does the law impose on a party the burden of proving that an event did not happen. One who attacks the validity of a marriage, however, assumes the task of overcoming "one of the strongest presumptions of the law." Reed v. Reed, 43 S.E.2d 539, 543 (Ga. 1947). This presumption arises
because the law presumes morality and not immorality; marriage and not concubinage; legitimacy and not bastardy. The presumption arises ... by virtue of the proof of the ceremonial marriage between the parties, and proof of their cohabitation as man and wife ....
"The presumption as to the validity of the marriage can only be negatived by disproving every reasonable possibility. . . ." The invalidity of the marriage attacked must be shown by clear, distinct, positive, and satisfactory proof.
Id. at 542-43, quoting Brown v. Parks, 160 S.E. 238, 240 (Ga. 1931). See also, e.g., Williamson v. Williamson, 101 A.2d 871 (Del. Super. 1954); Smith v. Smith, 185 P. 67 (Idaho 1919) (proof that former marriage had not ended "must be so cogent and conclusive as to fairly preclude any other result"); Carr v. Carr, 232 S.W.2d 488, 489 (Mo. 1950) ("The presumption of the validity of the last marriage may be repelled only by the most cogent and satisfactory evidence . . . ."); Smith v. Smith, 131 P.2d 447 (Or. 1942); Harsley v. United States, 187 F.2d 213 (D.C. Cir. 1954) ("the rebutting evidence must be strong, distinct, satisfactory and conclusive"); Pritchard v. Purcell. DR No. 65-88, 11 A.S.R.2d 16, 23 & n.7 (1989).
The presumption that the latest marriage is valid displaces any presumption of the continuation of an earlier marriage, and even the presumption of the continuation of the life of the first spouse. The net result is that "there is a presumption that the earlier marriage was dissolved by death or divorce before the later one was contracted." C± *35McCormick, Handbook on the Law of Evidence § 312 at 254 (1954).
Hie best way to rebut this presumption is to have both parties to the earlier marriage present in court to testify that they were not divorced prior to the later marriage. See, e.g., United States v. Burns, 95 F. Supp. 628, 630 (E.D. Ark. 1951). It often happens, however, that at least one party to the earlier marriage is not available to testify. Hie presumption of death or divorce is therefore most often rebutted by competent and convincing evidence that (1) the absent party to the first marriage has been seen or heard from after the date of the second marriage; (2) the other party to that marriage never filed for divorce and never was served with divorce papers prior to the date of the second marriage; and (3) a search of the records of every jurisdiction in which either party to the former marriage has lived yields no record of any divorce. See, e.g., Smith, supra, 131 P.2d at 448; Jordan v. Copeland, 131 So.2d 696 (Ala. 1961); Teel v. Nolan Brown Motors, Inc., 93 So.2d 874 (Fla. 1957); In re Marriage of Sumners, 645 S.W.2d 205 (Mo. App. 1983); Marcum v. Zaring, 406 P.2d 970 (Okla. 1965); In re Pilcher's Estate, 197 P.2d 143 (Utah 1948); Parker v. American Lumber Co., 56 S.E.2d 214 (Va. 1949); Dixon v. Gardner, 302 F. Supp. 395 (E.D. Pa. 1969). See generally H. Clark, The Law of Domestic Relations in the United States § 2.7 at 69-70 (1968) .
"There is agreement that testimony by one spouse that he never got a divorce, that he never received service or notice of divorce proceedings by the other spouse, and never was guilty of conduct which would be grounds for divorce is not enough to rebut the presumption." Id. at 69; see. e.g., Jordan, supra; Teel, supra; In re Pilcher's Estate, supra; Marsh v. Marsh, 250 P. 411 (Cal. App. 1926); and cases cited in H. Clark, supra, at 69 n.33. For the same reason, evidence that one party to the first marriage procured an invalid divorce, or procured a divorce at some time after the date of the second marriage, has been held insufficient; for it does . not negate the possibility that the absent spouse had procured a valid divorce, with or without actual notice to the other, before the second marriage began. See Smith, supra, 185 P. at 69; Reed, supra. 43 S.E.2d at 543; Missouri Pacific R.R. v. Harris. 120 S.W.2d *36695 (Ark. 1938); Boulden v. McIntire, 21 N.E. 445 (Ind. 1889); Stokes v. Heckler, 773 F.2d 990 (8th Cir. 1985); cf. Williamson v. Williamson, 101 A.2d 871 (Del. 1954). Although a later divorce has occasionally been found sufficient to rebut the presumption of an earlier one, in such cases the courts have had evidence of the other party's whereabouts and activities which was apparently found sufficient to support an inference that he or she did not obtain a valid divorce prior to the second marriage. See Fowler v. Fowler, 79 A.2d 24 (N.H. 1951); Cartwright v. McGown, 12 N.E. 737 (Ill. 1887).
In this case the record tells us next to nothing about the absent Carter, and precious little about the present petitioner and respondent. We do not know when Carter and the respondent were married or when they were separated. The latter event could have happened just before the divorce was filed in 1979, or it could have happened ten years earlier. We do not know where Carter and respondent lived during the marriage or where either of them went after the separation.
We can infer from the divorce judgment only that one or the other of them was domiciled in California in 1979. We also know that the respondent was married in American Samoa late in 1980. Carter and the respondent may or may not have known how to get in touch with each other during the years after their separation. Our record does not reflect whether Carter had actual notice of the divorce proceedings or whether he was served in absentia by publication.
We can reasonably assume that the respondent did not procure a divorce before 1985, for it would make no sense for her to divorce Carter twice. We will even infer, from the fact that respondent went to the trouble of getting a divorce and that the California court granted her one, that respondent and Carter were at one time legally married.3 We also infer from respondent's actions in filing the suit and bringing it to judgment that she had no *37notice of any prior divorce action brought against her by Carter. This is clearly insufficient, however, to establish that no such action was ever brought. See, e.q.. Reed, supra; H. Clark, supra, § 2.7 at 169 n.33, and authorities cited therein.
We can conclude nothing further from the California divorce judgment. We are bound to give the judgment full faith and credit, but only insofar as it actually or necessarily resolved questions now before us. In her divorce action petitioner had only to prove the fact of her marriage, the domicile of one of the parties in California, and that either "irreconcilable differences" or "incurable insanity" had transpired. See Calif. Civil Code § 4506. Such proof would not have been inconsistent with the parties' long having lost contact with each other.
In the California proceeding, unlike this one, there was no affirmative duty to disprove a prior divorce or to prove that Carter was still alive. In that action the law presumed the continuation of life and of marriage; in this action it strongly presumes the opposite. From the fact that a divorce was granted, without any evidence of the findings or conclusions on which it was based, we can conclude only that neither a prior death nor a prior divorce affirmatively appeared on the record. Neither do they appear on the present record; but the petitioner has the burden of affirmatively disproving them, and cannot do so on the strength of a judgment that did not depend on their being affirmatively disproved. See Williamson, supra, 101 A.2d at 873, and authorities cited therein.
Nor, finally, does the fact that Carter was served with process in October of 1979 establish that he was alive in December of 1980. See, e.q.. In re Marriage of Sumners, supra, 645 S.W.2d at 208-09 (appearance in court by spouse did not prove that she was alive three months later). Indeed, since we are not told whether Carter was served in person or by publication, we cannot even say whether he was alive in 1979. Petitioner had the burden of proving by "the most cogent and satisfactory evidence" that respondent had a spouse living when she married petitioner. Carr, supra, 232 S.W.2d at 489. He presented no evidence to sustain this burden.
*38The presumption that the latest marriage is valid, and the rule that it can be rebutted only by conclusive proof of two universal negatives, undoubtedly results in many adjudications that seem inconsistent with the true facts as they are privately known to the parties and their acquaintances. If we had only to determine what probably happened, we might well conclude even on the scant evidence before us that Carter was probably alive in 1980, as were the great majority of people against whom divorce actions were filed in 1979. We would also feel comfortable concluding that a man whose wife divorced him in 1985 had probably not divorced the same wife prior to 1980.
Inferences and probabilities, however, are not always enough. The law frequently allows people to be acquitted who were probably guilty; insurance companies deny policies to people who are probably healthy; most people refrain from sky diving although they would probably not be injured thereby. In each case the consequences of a wrong decision are regarded as unacceptable, and the likely benefit from reliance on the probable facts as relatively slight. In the settled judgment of the vast majority of courts that have faced the question, even a slight risk of an incorrect adjudication of bigamy is not justified by whatever benefits may be derived from an accurate diagnosis of that condition. See H. Clark, supra, § 2.7; C. McCormick, supra, § 312 at 654 & n.6; Annot., 14 A.L.R.2d 7, 11-14, and cases cited therein.
Indeed, the decisions give the impression that the courts are more than willing to tolerate a certain amount of bigamy so long as the law can avoid acknowledging and thereby validating it. "This is another instance of the law's treating the de facto assumption of the marital status as paramount to compliance with legal forms." H. Clark, supra, § 2.7 at 69. It is fair to ask whether a less delicate approach --- finding bigamy as a fact whenever the evidence so preponderates, and relying exclusively on the doctrines of equity to mitigate harsh or absurd consequences --- might not be preferable. See Part III, infra. No decision to depart from the great weight of persuasive authority, however, should be made in a case in which the proofs and the equities are as weak as they are here. We find that petitioner did not carry his burden of proving affirmatively and *39conclusively that respondent had a living and lawful spouse on December 6, 1980.
III. Equitable Barriers to Relief
If petitioner had proven that his marriage was bigamous from 1980 until 1985, his knowledge of such bigamy from its outset would raise serious guestions about his right to an annulment.
Many courts, while holding that a bigamous marriage is "void ab initio" and cannot be ratified by the parties even after the dissolution of the earlier marriage, nevertheless refuse to grant annulment to a party who knowingly contracted such a marriage.
Such relief is sometimes denied on the ground that a party, having contracted a marriage with full knowledge of the facts constituting the impediment, is estopped to deny the validity of the marriage. See In re Marriage of Recknor, 187 Cal. Rptr. 887 (Cal. App. 1982); In re Marriage of Sumners, supra. Cf. Higgins v. Higgins, 588 S.W.2d 454 (Ark. 1979); Gress v. Gress, 209 S.W.2d 1003 (Tex. App. 1948).
In cases where a marriage was bigamous because of the invalidity of a prior divorce, courts have held that a party to the earlier divorce --- or one who married a party to the divorce despite knowledge of its invalidity --- is estopped to deny its validity. Such a person is therefore estopped to assert the bigamy of the later marriage. See. e.g.. Sears v. Sears, 293 F.2d 884 (D.C. Cir. 1961); Schotte v. Schotte, 21 Cal. Rptr. 220 (Cal. App. 1962); McIntyre v. McIntyre. 191 S.E. 507 (N.C. 1937); Kazin v. Kazin, 405 A.2d 360 (N.J. 1979).
The Supreme Court of California has specifically applied the estoppel to deny divorce decrees to a California interlocutory judgment, which "at least gives color as a judicial determination of divorce . . . ." Spellens v. Spellens, 317 P.2d 613 (Cal. 1957). Since even a slight presumption in favor of the validity of marriage would lead to us to conclude on the present record that respondent had obtained an interlocutory decree in her uncontested 1979 divorce action prior to December of 1980, this estoppel would defeat the present action even in *40the absence of more fundamental obstacles. See notes 1-2, supra. and accompanying text.
Most often, however, the denial of an annulment to one who was a knowing participant in bigamy is by reference to "unclean hands" or pari delicto. A court should not "aid a man who founds his cause of action on his own immoral or illegal act." Otte v. Pierce, 194 P.2d 331, 334 (Colo. 1948), quoting Potter v. Swinehart. 184 P.2d 149, 151-52 (Colo. 1947).
Where the contract or transaction in question is illegal, fraudulent, or immoral, and there is mutual misconduct of the parties with respect thereto, neither law nor equity will aid either to enforce, revoke, or rescind. To such disputes the courts will not listen, and the parties thereto they will leave in the exact position in which they have placed themselves.
Otte, supra, at 334, quoting Baker v. Couch, 221 P. 1089, 1090 (Colo. 1923). See also Higgins v. Higgins, 146 So.2d 122, 123 (Fla. App. 1962) (annulment available "only to an innocent party"); Tyll v. Keller. 120 A. 6, 7 (N.J. 1923) (husband with prior knowledge of wife's bigamy who "afterward tired of his bargain" barred from relief); Hansen v. Fredo, 303 A.2d 333 (N.J. Super. 1973) (In uncontested annulment case "a court of equity, as a court of conscience, should sua sponte raise" unclean hands defense.). Cf. Halker v. Halker. 285 N.W.2d 745 (Wis. 1979); Belcher v. Belcher, 88 N.E.2d 344 (Mass. 1949).
Many cases have refused to apply estoppel and unclean hands to suits for annulment based on bigamy. See, e.g.. Simmons v. Simmons. 19 F.2d 690 (D.C. Cir. 1927); Johnson v. Johnson, 16 So.2d 401 (Ala. 1944); Townsend v. Morgan, 63 A.2d 743 (Md. 1949); Kiesenbeck v. Kiesenbeck. 26 P.2d 58 (Or. 1933). The usual justification is that the social interest in condemning bigamy, and in rooting it out where it is found to exist, transcends the personal interests and transgressions of the parties. Society "refuses to countenance the continued perpetration of crime between such parties in violation of law and good morals." Simmons, supra. 19 F.2d at 691.
*41When a party files a suit for annulment of his marriage, he is deemed as coming into court repenting of his wrongdoing and asking the court to correct his wrongful act as far as possible, in order to prevent any injurious consequences which might be cast thereby in the future upon innocent persons and upon the State.
Townsend, supra. 63 A.2d at 746.
Careful application of equitable doctrines such as estoppel and clean hands, however, may well complement rather than defeat society's interest in opposing and deterring bigamy. If this Court should come across a plaintiff whose suit was apparently motivated by remorse for his offense against society's moral and legal code, equity will not bar relief. See Ramshardt v. Ballardini, 324 A.2d 69 (N.J. Ch. 1974). In general, however, annulments "have in fact become . . . substitutes for divorce." Commissioners' Note to Uniform Marriage and Divorce Act § 208. Leaving aside the occasional blackguard to whom the nullity and consequent easy terminability of bigamous marriages are a positive attraction, the typical plaintiff is someone who has "tired of his bargain." The American Samoa divorce statute requires a five-year waiting period for divorce except where one party is at fault and the other is not. A.S.C.A. 42.0202. A special exception to the principles of equity, whose sole effect would be to allow a certain class of wrongdoers to extricate themselves from unwanted marital bargains far more easily than people who have done nothing wrong, seems an unusually bad way to show disapproval of such wrongdoing.
The straightforward application of equitable principles --- under which (1) innocent persons may treat a bigamous marriage as null, and (2) any innocent person with a cognizable interest may secure a judicial declaration to this effect, but (3) a person who deliberately brought such a marriage into being is effectively denied any rights he would not have if the marriage were valid ---would seem far more effective both as an expression of social disapproval and as a deterrent to future bigamy. "To hold otherwise protects neither the welfare nor morals of society but . . . is a flagrant invitation to others to circumvent the law, cohabit in unlawful state, and when tired *42of such situation, apply to the courts for a release from the indicia of the marriage status." Spellens, supra. at 618, quoting Harlan v. Harlan, 161 P.2d 490, 494 (Cal. App. 1945.)
Equitable bars to causes of action based on the plaintiff's own wrong, moreover, are not designed only for the litigants. They also protect the courts themselves from the appearance (and sometimes from the substance) of helping to make crime pay. When people have called upon the state to declare them married, have taken oaths proclaiming themselves eligible to be married, have held themselves out as married and derived whatever social advantages are to be gained from the marital status, for the Court to make itself available to declare them unmarried without a showing that this would be convenient to anyone but themselves "would be the juridical equivalent of driving the getaway car." Pritchard, supra, 11 A.S.R.2d at 27.
The marriage now before us, moreover, is clearly not bigamous at present. If it were, there would be some force in the argument that by denying an annulment the Court would be "countenanc[ing] the continued perpetration of crime." Simmons, supra, at 691. Moreover, in a case where the prior marriage had never been dissolved it would be far more likely that an annulment of the later marriage would help to clarify the rights of innocent third parties. In some such cases, and even in some other cases,4 the equities in favor of granting an *43annulment might be even stronger than the equities against it. In the case before us, however, no such equities appear.
Our conclusion that these equitable principles should apply to actions for annulment, even in cases of alleged bigamy, is bolstered by the Territorial statutes dealing with such actions. In providing that the High Court "may" annul any marriage that was illegally contracted, A.S.C.A. § 42.0203 restates the general rule that annulment is an extraordinary remedy to which equitable principles would ordinarily apply. See generally Pritchard, supra, 11 A.S.R. at 25-27. The rest of the chapter, A.S.C.A. §§ 42.0204-11, is primarily devoted to a series of strict rules against judgment by default, collusive suits, and the granting of judgment in favor of a "guilty" party. Although some of these provisions make more sense in the context of a divorce than of an annulment, the general statutory scheme calls just as clearly for a fault-based analysis in annulment actions as in divorces.5 This scheme reinforces the general rule that neither law nor equity should "aid a man who founds his cause of action on his own immoral or illegal act." Otte, supra, 194 P.2d at 334.
*44IV. The Validity of Formerly Bigamous Marriages
Although petitioner's marriage may well have been "void ab initio." it may or may not be void today. If respondent was already legally married when she purported to marry the petitioner, then their marriage was void and could not be ratified by any amount of cohabitation. When she procured the divorce from Carter in 1985, however, any impediment to her marriage to the petitioner would have been lifted.
In the case of most impediments to a valid marriage -— fraud, duress, "nonage," extreme intoxication, insanity --- voluntary cohabitation after the lifting of the impediment would amount to "ratification." The parties would then be legally married, without the need for a new ceremony. In theoretical terms, the new agreement to marry after the lifting of the impediment "relates back" to the marriage ceremony; or perhaps the ceremony "relates forward" to the time of the new agreement. In the case of bigamy, however, and in the closely related case of a marriage contracted prior to the conclusion of a statutory waiting period after a divorce, courts generally hold that no ratification is possible even after the lifting of the impediment. See, e.g., Simmons, supra; Johnson, supra; Townsend, supra; Kiesenbeck, supra.
The rule against ratification in such cases is conceptually unnecessary. Although it is frequently justified on the ground that ratification can occur only where a marriage is "voidable" rather than "absolutely void," this argument is circular: the words bring no substantive content to the analysis, but exist primarily as terms by which to classify marriages that can and cannot be ratified. To say that a bigamous marriage cannot be ratified because it is "absolutely void" is to say that it cannot be ratified because it cannot be ratified.
It is sometimes said that a relationship begun while one of the parties is already married is "meretricious" and therefore cannot ripen into a valid marriage; but a relationship to which one party's formal consent was obtained at gunpoint can also be fairly described as meretricious, and yet this can be ratified with no need for a new ceremony. Although the rule against ratification of formerly bigamous marriages is usually stated as *45though it were a principle of metaphysics, it is almost certainly a rule of policy "influenced by a deeply felt hostility to bigamous or other 'void7 marriages." H. Clark, supra, § 3.3 at 130.
As a rule of policy it is probably counterproductive. It often punishes the innocent and rewards the guilty. Even where the rule is derived from statutory designation of certain kinds of marriages as void, "serious harm can result . . . of a sort which the legislators very likely would not have sanctioned had the possibility occurred to them." Commissioners7 Note to Uniform Marriage and Divorce Act § 207. And yet "[f]rom a pragmatic viewpoint, judicial invalidation . . . years after [the marriage ceremony] ... is a less than effective sanction against an institution whose charm lies in its immediate respectability." Spellens, supra, at 619.
Courts in some jurisdictions deal with the problem of formerly bigamous marriages by holding that voluntary cohabitation after the dissolution of the prior marriage gives rise to a valid common-law marriage. See, e.g.. Matthews v. Britton, 303 F.2d 408 (D.C. Cir. 1962) . At least nine other states have adopted statutes recognizing that cohabitation after the lifting of the impediment, at least in some circumstances, results in a valid ceremonial marriage. See Uniform Marriage and Divorce Act § 207(b) (adopted in Arizona, Colorado, Illinois, Minnesota, Missouri, Montana, and Washington as of February, 1985); Turner v. Turner, 75 N.E. 612 (Mass. 1905); Smith v. Smith, 190 N.W.2d 174 (Wis. 1971).
The Supreme Court of Wisconsin has ruled, relying on its powers as a court of common law rather than on the state statute, that a "void" marriage which both parties knew to be bigamous at its outset becomes "voidable" upon the dissolution of the earlier marriage that constituted the impediment. It may then be ratified and become a valid marriage. Smith v. Smith, 190 N.W.2d 174, supra. See also Halker, supra. This rule is quite similar to that provided by Uniform Marriage and Divorce Act § 207(b).
Of the various rules that have been applied to formerly bigamous marriages, the rule endorsed by the Commissioners of Uniform State Laws and applied by the Wisconsin Supreme Court seems most *46consistent with the principles that otherwise apply to the validity of marriages. Since the Wisconsin rule would . provide for ratification only of formerly bigamous marriages, never of presently bigamous ones, it is not inconsistent with society's refusal to countenance bigamy or to encourage its continuation. In this case, however, we have no occasion to decide what rule applies in American Samoa.
V. Conclusion and Order
Petitioner did not prove that respondent had a living and lawful spouse on December 6, 1980. In any case his action for annulment would have been barred by estoppel and unclean hands. We therefore need not decide whether the marriage, if bigamous at its outset, was ratified by the cohabitation of the parties after respondent's divorce from her first husband. The relief reguested must be denied and the action dismissed.
It is so ordered.
The interlocutory divorce judgment established “entitlement" to a dissolution, but did not render the parties free to marry. Nevertheless, the California courts would not annul a subsequent marriage contracted after the interlocutory judgment — at least not at the suit of a party who had freely contracted the second marriage with knowledge of the facts. See Spellens v. Spellens, 317 P.2d 613 (Cal. 1957).
But see Williamson, supra. 101 A.2d at 873 {Capacity of parties to the first marriage ceremony to contract a valid marriage was not put at issue in their divorce action; divorce judgment therefore did not constitute evidence, in suit to annul second marriage, that first marriage was valid.).
For instance, if either the petitioner or the respondent had contracted yet another marriage and children had been born to this marriage, these children would have an interest in having their status clarified. See Townsend, supra. 63 A.2d at 746.
The argument of Townsend and some other cases, that every annulment case involves the status of hypothetical future children, is in our opinion insufficient to meet the arguments in favor of equitable barriers to relief. This argument assumes that because the marriage is "void ab initio" the parties are free to disregard it and to remarry even if an annulment action is barred by estoppel or unclean hands. But this is not true: an estoppel sufficient to bar an annulment should also bar the right to remarry without first’obtaining a divorce. "The theory is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the . . . marriage was invalid." Spellens, supra. 317 P.2d at 618. See also In re Marriage of Sumners, supra; In re Marriage of Recknor, supra.
The idea that people can contract marriages and then simply disregard them if they are "void ab initio" is subject to a variety of practical, and theoretical objections. Cf. Perlstein v. Perlstein, 204 A.2d 909, 911 (Conn. 1964):
*43Seldom, if ever, would a party to a bigamous marriage, in the face of the presumption of it's validity, feel free to treat the marriage as a nullity without a decree of annulment. Nor do we believe any attorney would advise such a course of conduct.
Each of the seven sections after § 42.0204 either explicitly refers to annulment actions or refers back in some way to § 42.0204, which provides that either husband or wife may petition for "dissolution of a marriage contract on any ground set out in § 42.0202 and 42.0203." A.S.C.A. § 42.0203 deals exclusively with annulment.
Of special importance is § 42.0207, which states that "[cjondonation may be presumed in all matrimonial actions by the voluntary cohabitation of the parties with the knowledge of the offense charged." (Emphasis supplied.) Although condonation had its origin in the law of divorce, the courts of at least one jurisdiction recognize it as a defense to an action for annulment. See Callaghan v. Leonard. 387 A.2d 390 (N.J. Super. 1978); Hansen v. Fredo, supra. The doctrine of condonation could be meaningfully applied to an annulment action only where, either because of a continuing impediment to .the marriage or for some other reason, cohabitation with knowledge would not result in ratification. In cases where ratification is possible, such cohabitation creates a valid marriage; in cases where ratification is not possible, A.S.C.A. § 42.0207 might still raise a bar to judicial relief. Since the effects of such a bar in this case would be identical to the effects of estoppel or unclean hands, however, we need not decide whether condonation would also bar the requested relief. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485764/ | The land presently in dispute is located on the side of a mountain. It is about a mile uphill from the village of Pava'ia'i, and a short distance downhill from Aoloau Fou. Until the late 1940s the land was virgin bush.
During World War II the military authorities built a road from the main east-west highway in Pava'ia'i to the mountaintop. This road contributed to the development of the mountainside from two directions. From the south the land was cleared and cultivated by people from Pava'ia'i, particularly Otto Haleck who is an adopted member of the Leomiti family and holds the unregistered matai title Lemauga within that family.1 From the *51north came the whole village of Aoloau, whose chiefs decided to move the village up the mountain from its former location on the inaccessible north shore of Tutuila. In or around 1945 the village moved to its present location, called Aoloau Fou, on the mountaintop near the terminus of the new road.
In or around 1946 Lefotu Tuilesu, a matai of Aoloau, settled on a portion of the land presently in dispute. He cleared and cultivated about 4.08 acres and built a dwelling house and a store. His house and store were destroyed when the government widened the road in or around 1972, but his plantations continue to the present day.
Also during the late 1940s some clearing and cultivation was done by Miller Salima on behalf of the Leomiti family. He testified that he left for the United States in the early 1950s and that his brother took over his plantations. We have no evidence, however, of how long these plantations continued to be cultivated after the departure of Miller Salima, and no direct evidence that they were continued at all. We also do not know exactly where these plantations were. Although Mr. Salima was of the opinion that they were within the present Lefotu survey, Lefotu says he never saw Salima there; and according to Mr. Salima's specific recollection of the relative locations of his plantations, the road, and Haleck's house, the plantations could well have been outside the Lefotu survey.
In or around 1950 Otto Haleck moved into the area. He built at least one house, just outside the boundaries of the present Leomiti survey, and cultivated extensive plantations. He and Lefotu lived peacefully side by side for many years.2 *52Haleck's driveway traverses Lefotu's plantations, and at least until recently there have been no problems between the two neighbors. Since it does not appear likeiy that Lefotu cleared his entire 4.08 acres . at once, and we have no specific evidence of whether Lefotu began planting in the area of the driveway before or after Haleck began building . it, we conclude that these two events occurred at about the same time.
Although Leomiti presented some evidence of cultivation in the general area by members of the Leomiti family other than Haleck and Salima, it appears that many of the leading members of the Leomiti family (including the present senior matai, who testified that he has rarely seen members of the Lefotu family on the land) were away from the Territory for much of the time between 1946 and 1982 when the present litigation began. At least one member of the Leomiti family, Lemauga Otto Haleck, does appear to have been physically present in the area for about forty years, living immediately adjacent to the land claimed by Lefotu. Haleck was represented by counsel in this case, who also served as co-counsel for the Leomiti family. If Haleck could have truthfully testified that he, like Leomiti, had not seen Lefotu family members occupying the land they now claim, he would have been a far more effective witness than any of those who did testify for Leomiti; but Haleck was not called.
The evidence clearly preponderates in favor of Lefotu's ownership of the land he claims. We conclude that he began clearing the land from virgin bush in 1946, lived on it until 1972, and has cultivated it continuously to the present day.
Even if we were to conclude---as on the present record we cannot --- that Miller Salima's plantations were within the Lefotu survey, we would *53still have no evidence that they were cultivated by members of the Leomiti family at any time after the early 1950s. Under the twenty-year adverse possession statute then in effect, Lefotu's occupation of this land (which was open, notorious, exclusive, continuous, and hostile to the claim of the Leomitis) would have made him the owner well before this suit was filed in 1982.
The remainder of the Leomiti survey, with the exception of the portion in the southwest comer that leomiti has stipulated to be the property of Tuana'itau, appears to have been cleared and cultivated by Haleck and perhaps by others on behalf of the Leomiti family.
Order
Lefotu may register the 4.08 acres within his survey as the communal land of the Lefotu family. Lefotu's rights are, however, subject to the right of Otto Haleck to continue using the driveway that traverses part of the Lefotu tract.
leomiti may register the land within his survey, with the exception of the 4.08 acres in the northeastern comer that belongs to Lefotu and the area in the southwestern comer stipulated to belong to Tuana'itau. The tract which Leomiti may register as the communal land of the Leomiti family would appear to comprise between eleven and twelve acres.
The Toluao family may register the westernmost portion of the 1980 Haleck survey (the tract marked "A" by the Court on Leomiti Exhibit 1).
The Tuana'itau family may register the tract within the Haleck survey to the east of the Toluao portion (marked "B" by the Court on Exhibit 1). This includes an area, appearing to comprise slightly less than two acres, within the southwestern comer of the present Leomiti survey.
It is so ordered.
Settlement from Pava'ia'i had also proceeded, probably at an earlier time, along another trail about a half-mile to the west of the military road. The western part of the land that was originally in contention in the present case was cleared and cultivated by the Toluao and Tuana'itau families of Pava'ia'i. In the case of Toluao v. Haleck, LT No. 40-80, the Court held that 13.5 acres offered for registration by Haleck were the property of the Toluao family (two acres at the western extreme of the Haleck survey), the Tuana'itau family (about six acres just to the east of the Toluao property) and the Leomiti family (about 5.5 acres at the eastern end of the Haleck survey).
Leomiti's offer of registration in one of the cases consolidated herein, LT No. 35-82, included a large part of the Haleck survey. Tuana'itau and Toluao objected on the ground that the Leomiti survey included part of the land that had been awarded to them in LT No. 40-80. At the beginning of the trial in this case, counsel for Toluao, Tuana'itau, and Leomiti submitted a *51stipulation by which they settled their boundary dispute. This stipulation is illustrated in Leomiti Exhibit 1; it is approved and incorporated into the Court's order and judgment. The only matter remaining for resolution by the Court is the dispute between Leomiti and Lefotu at the northeastern corner of the Leomiti survey.
The long, close, and amicable proximity of Lefotu and Haleck is evidenced not only by the testimony in this case but also by the record of LT No. 40-80, Haleck's unsuccessful attempt to register land that included some of the same land at issue in the present proceeding. Without objection, we took judicial notice of the record of LT No. 40-80, to which Leomiti and Toluao *52were parties. Haleck called Lefotu as his first witness at the preliminary injunction hearing, in his capacity as the occupant of the nearest adjacent land; Lefotu's testimony was consistent with his testimony at trial of the present matter. Lefotu also was identified as Haleck's next door neighbor by at least one other witness at the 1980 hearing, Senator Paogofie of Pava'ia'i; and neither Leomiti nor any other party questioned these assertions, although it would have been most useful to their case to do so if possible; | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485765/ | This case concerns about sixty acres of a tract called Malaeimi near the village of Faleniu.
I. Facts
Malaeimi has had an eventful legal history during the hundred years that there have been courts in Samoa. Indeed, the facts of this case consist largely of the results of various legal proceedings.
1) In 1895 an entity called W. McArthur & Co. attempted to register a mortgage with the Samoan Land Commission in Apia. The mortgage was given by one Sa Manoa over nine acres called "Malaeaimi," said to be in the village of Faleniu. Fanene of Nu'uuli objected, claiming to be the rightful owner of Malaeaimi. The land commission registered the *56mortgage, but this decision was reversed by the Supreme Court of Samoa. The official record of the decision does, not show that the Court declared anyone to be the owner of Malaeaimi or Malaeimi, but only that the claim of W. McArthur & Co. was rejected. W. McArthur & Co. v. Fanene, Claim No. 2215, Supreme Court of Samoa (on rehearing, Dec. 19, 1895).
2) In 1905 several persons, all but one of whom appear to have been matais of the village of Pago Pago, attempted to lease the entire Malaeimi Valley and the surrounding mountainsides to the Church of Jesus Christ of Latter Day Saints (hereinafter the Church). The tract in question occupied a substantial portion of central Tutuila; it comprised about 905 acres extending from Faleniu to Fagasa and from Asu to Nu'uuli. Objection was made by people from all of these villages, including Puailoa Vaiuli of Nu'uuli, and the lease was not approved by the Governor.
3) In 1906 Puailoa Vaiuli executed a lease to the Church of 360 acres within Malaeimi for a term of forty years.
4) In 1908 Alo Taisi brought an action against Puailoa Vaiuli in the High Court of American Samoa, which had by then replaced the Apia tribunal as the appropriate forum for such actions. Alo was a chief of Fagasa; he claimed that he owned part of the 360 acres that had been leased to the Church, and he demanded part of the rentals. The court ruled for Puailoa. The court found that Malaeimi "ha[d] been unimproved property during the memory of any living man up to the year 1900." Alo. v. Puailoa, 1 A.S.R. 194, 195 (1909). Puailoa had, however, appointed caretakers, gathered lumber for the building of houses in Faleniu, and done other acts amounting to assertion of ownership. Moreover, the court found that Puailoa had assisted Fanene in the successful resistance of McArthur's claim before the Apia court, and it was "the opinion of the Court that, were it not for the vigilance of Puailoa and Fanene in resisting the [McArthur] claim . . . , the entire property known as Malaeimi . . . would have passed out of the control of .'.native Samoans." Id. at 196-97. Puailoa was • therefore declared the owner of Malaeimi, or more precisely of "all Malaeimi not controlled by Fanene." Id. at 195.
*575) Puailoa Vaiuli received the rents from the Church until his death in 1929. After his death the rents were' paid to his widow, Salataima.
6) In or around 1931, some matais of the Puailoa family demanded from Church officials that the rents for the 360 acres be paid to them rather than to Salataima, apparently on the ground that Malaeimi had not belonged to Puailoa Vaiuli as an individual but was communal land of the Puailoa family. A Church official asked the Chief Justice of the High Court what he should do. The Chief Justice told the official to pay the rents into court pending a resolution of the dispute between Salataima and the Puailoa chiefs. Instead the Church withheld the rental payments pending a resolution of the dispute.
7) As it happened, there was at that time (1931) a case involving the Puailoa family on the court's calendar. This was a case involving the succession to the Puailoa matai title. According to the Chief Justice, he moved the case forward on the calendar, putting it ahead of many cases that had been filed earlier, so that the land dispute could be resolved in the same proceeding. Chief Justice E.P. Wood to Gov. G.S. Lincoln, 11/30/1931 (Nouata v. Pasene. LT No. 18-1930, 1978 Motion to Reopen, Puailoa Exhibit 19).
8) At the hearing of the matai title case, the Chief Justice questioned all the principal witnesses concerning whether Malaeimi was individual or communal land. Their testimony was as follows:
a) Fanene testified that the Puailoa title was a lesser title within the Fanene grouping and held no lands, but that Puailoa Vaiuli had owned some lands in his individual capacity.
b) Nouata, a contestant for the Puailoa title, testified that Vaiuli had held Malaeimi not in his own right but as Puailoa family land.
c)Salataima, the widow of Vaiuli, testified that Malaeimi had belonged not to the Puailoa family but to her husband personally "because if he had not been there [in Apia during the McArthur case] the land *58would have gone forever." She testified that Vaiuli had always used the rental payments for himself and herself, not for the expenses of the Puailoa family; that no member of the Puailoa family had ever questioned this practice; that Vaiuli had made a will giving her the pule over the land; and that Vaiuli had won the land in the Apia case before he acquired the Puailoa title.
Nouata v. Pasene, LT No. 18-1930 (Transcript of trial held June 9, 1931).
9) The Court ruled that Nouata was entitled to hold the Puailoa title. With regard to the property, the Court held that
that part of Malaeimi that is leased to the Mormon Missionaries is the property of the widow of Puailoa and that she should have during her lifetime the rents.
Nouata, supra (Judgment, rendered June 9, 1931) (emphasis added). The Court also made a "suggestion" to the widow Salataima:
While she is living it is suggested that she shall make a written statement signed by two witnesses, who she wants this money to go to after her death. It is only a suggestion but it might be a good idea for her to give it to the Puailoa family after she dies.
Id. (emphasis added).
10) The newly-designated Puailoa Nouata, along with various other family members and chiefs of Nu'uuli, then attempted to secure a reversal of the Court's decision that Salataima was the owner of Malaeimi.
a) First Nouata went to discuss the decision with Chief Justice Wood. As Nouata later described this encounter in a letter to the Governor, "[t]he Judge chased me away from the office. Nothing could be dgne,, as a decision of the case." Letter from Puailoa et *59al. to Gov. G.S. Lincoln (Nouata, 1978 Motion to Reopen, Puailoa Exhibit 6).1
b) Nouata and his co-signers therefore urged the Governor himself to overrule the Court decision. Letter from Puailoa to Lincoln, supra. Among other reasons for such an action, they urged (1) that the Court had been without jurisdiction to dispose of the land, since the case was a matai title case and "there was not a case tried between Salataima and Puailoa about the Land called Maleaimi [sic]"; (2) that the Court had been wrong on the merits, since Puailoa Vaiuli had acquired Malaeimi for the Puailoa family rather than in his individual capacity as Vaiuli; and (3) that the land had been taken away as a result of a conspiracy including Salataima, the Chief Justice, the Attorney General, and Nouata's own counsel at trial, a chief of Nu'uuli named Soliai. Id.
c) The Governor then wrote to the Chief Justice asking for information about the case. Lincoln to Wood, 10/21/31 (Nouata, 1978 Motion to Reopen, Puailoa Exhibit 9).
d) The Chief Justice responded with suggestions for the best procedural means by which to arrange for a rehearing of the property issue if the Governor wished a rehearing. Wood to Lincoln, 10/24/31 (Nouata, 1978 Motion to Reopen, Puailoa Exhibit 12).
e) The Governor announced, however, that there would be no rehearing, because "the case was tried in open court and all parties were given full opportunity to be heard. [and] appears to me to be in accordance with the testimony." Lincoln to Soosimea et al., 10/24/31 (Nouata, 1978 Motion to Reopen, Puailoa Exhibit 10).
f) The matais then wrote again to the Governor, enclosing a copy of a letter they had written to United States Senator Hiram Bingham to complain about the decision, both *60on the merits and because they had been unfairly surprised by the injection of the property issue into the matai title case. Puailoa et al. to Lincoln, 11/18/31 (Nowata, 1978 Motion to Reopen, Puailoa Exhibit 15).
g) The Governor forwarded thin letter to the Chief Justice, noting the complaint that "the property was not referred to in the summons, and testimony as to the property not presented, nor fully investigated." Lincoln to Wood, 11/27/31 (Nguata, 1978 Motion to Reopen, Puailoa Exhibit 18).
h) The Chief Justice responded at length, saying that Nouata had been "primarily" a matai title case but had been advanced for trial specifically in order to ascertain who should be paid the rents for Malaeimi; that the decision "affected only a part of the land Malaeimi"; that no summons are issued in matai or land cases? that "[f]ull testimony as to the ownership of the property concerning which a decision was made in this case was taken at the trial"? and that all of the signers of the letter protesting the decision had been present in court and had had an opportunity to be heard. Wood, to Lincoln, 11/30/31 (Nguata, 1978 Motion to Reopen, Puailoa Exhibit 19).
i) Finally, the Governor wrote back to Puailoa and the other matais, quoting the Chief Justice's letter and reiterating that the case would not be reopened. Lincoln to Puailoa et al., 11/30/31 (Nguata, 197S Motion to Reopen, Puailoa Exhibit 20).
11) It was clearly understood by all parties to the Nouata case ■ that Salataima was not a member of the Puailoa family and that, having no children by her deceased husband, she had according to Samoan custom no right to remain on coiumunal land of the family. See, e.g.. Nouata v. Pasene, LT No. 18-1930 (Transcript of trial held June 9, 1931) (testimony of Salataima); Puailoa et al. to Wood, 11/18/1931 (Nguata, 1978 Motion to Reopen, Puailoa Exhibit 15) . This fact was reiterated by Puailoa Tavete in sworn testimony in 1982; "She doesn't have any right. She does not have any connection and she doesn't have any children." Reid v. Puailoa, LT No. 41-79 (Transcript of trial held *61March 5, 1982), at 341. It is also consistent with the universal understanding of Samoan custom regarding the status of widows. See Tuiteleleapaga v. King, 8 A.S.R.2d 49, 50 (1988).
12) About a year later, in a case to which neither Salataima nor Puailoa was a party, Chief Justice Wood wrote in dictum that the part of Malaeimi "on the right side of the road is the land of the name Puailoa" and that "the rental of this land is received by Salataima, the widow of Puailoa Vaiuli"; and that the part of the land not rented to the Church "is under the pule of the Present Puailoa, Puailoa Nouata." Tu'utau v. Fanene, No. 1-1931 (Decision rendered October 13, 1932). The land at issue in Tu'utau was not the 360 acres leased to the Church, but some land on the other side of the road that was held to be the property of Fanene. During the trial various witnesses including Salataima and Puailoa Nouata had testified about whether Puailoa Vaiuli's claim to part of Malaeimi had been in his own right or on behalf of the family. Tu'utau, supra (Transcript of trial held October 7, 1932). The Court's statements about the ownership of the part of Malaeimi that had been leased to the Church, however, were obiter dicta rather than part of the holding.
13) In 1942 Salataima wrote a will reciting her ownership of the 360 acres and bequeathing the land to her brother, Lagafuaina Laisene.
14) In 1944 Salataima renewed the lease to the Church for another forty years. The lease specified that upon the death of Salataima the rents ($360 and two cows per annum) were to be paid to Lagafuaina.
15) In 1953 Salataima sold the Church 300 of the 360 leased acres. She retained the remaining sixty acres, which are the subject of the present case.
16)A few years after the sale of the 300 acres, then-Chief Justice Morrow wrote that the sale did not need to be approved by the Land Commission because "it conveyed land individually owned by a Samoan" rather than communal land. In re Airport at Tafuna. CA No. 15-1959, Opinion rendered December 28, 1959, at 19. Since this case did not directly concern the land in question *62(the sale to the Church being relevant only to the question of fair market value of land in the vicinity) Chief Justice Morrow's characterization of Malaeimi was dictum rather than holding.
17) Salataima died in 1956, leaving to her brother Lagafuaina the.sixty acres of Malaeimi that she had not sold to the Church.
18) The weight of the evidence in the present case is that the sixty acres were occupied and cultivated by Salataima and Lagafuaina, apparently by consent of the Church, even during the time it was leased. In any case it is clear that Salataima and Lagafuaina were in possession of the sixty acres from the time the other 300 acres were sold to the Church in 1953, and that Lagafuaina and his family (together with their various lessees and vendees) remained in sole possession until about 1979.
19) Beginning in the late 1950s Lagafuaina leased and sold portions of the sixty acres. Such transactions included sales to Smith Ho Ching in 1959, to Lefaga Beaver in 1963, 1968, and 1971, to Epifania Felise in 1964, to Marie Langkilde in 1968, to Hugo Gebauer in 1971, and to Tui Marcus in 1975. Leases included those to South of Pago Pago, Inc., in 1968 and 1973, to Air New Zealand Ltd. in 1968, to Bums Philp (South Sea) Co. in 1969, to John Pyke in 1973, and to Mr. and Mrs. Robert Payes in 1975. Some of these transactions were recorded in the office of the Territorial Registrar, and at least two (leases to Bums Philp and to Mr. and Mrs. Robert Payes) were approved by the Land Commission.
20) Lagafuaina built at least one dwelling house on the land and his granddaughter, Sola Sewell, built another. Many of the vendees and lessees also built houses and other improvements. There are at least fifteen structures on the sixty acres, including some large as well as some smaller homes, stores, a warehouse, and a private school complex that was formerly operated as a hotel. Although, in light of our conclusions regarding the law, it is unnecessary for us to place a precise value on each of these improvements, the total value of all improvements would appear to exceed a million dollars.
*6321) Although the daughter and son-in-law of the current holder of the Puailoa title, Puailoa Tavete, testified that the Puailoa family also used parts of the sixty acres at various times between 1953 and the present, there is no convincing evidence of such activity prior to about 1979 when Siufaga Fanene, the son-in-law of Puailoa Tavete, apparently began some cultivations on parts of this land as well as on the land then in the possession of the Church. The evidence suggests that this activity was part of a strategy to recapture for the Puailoa family the land that had been lost to Salataima in 1931.
22) In 1975 Lagafuaina Laisene died. He left a will leaving, inter alia, certain land within the sixty acres to his daughter. Puailoa Tavete filed an objection, asserting that the land belonged to the Puailoa family. This was the first formal indication since 1931 (or at the latest 1932, when Puailoa Nouata testified in the Tu'utau case that all of Malaeimi belonged to the Puailoa family) that the Puailoa family claimed the sixty acres or any part of it. Counsel for the executrix asked that the objection be dismissed on the ground that Puailoa had failed to object in 1970 when Lagafuaina had registered, with the various forms of notice required by statute, a separation agreement for this portion of the land. After a hearing, the objection was "withdrawn and dismissed." In re Estate of Lagafuaina Laisene. PR No. 5-75 (Order issued December 4, 1975). The Estate is still in probate, partly as a result of the pendency of the present litigation in which it is the principal defendant.
23) In 1978 Puailoa Tavete filed with the High Court a motion for a new trial in the 1931 Nouata case. In the alternative the motion asked that the forty-seven-year-old judgment be set aside. The Court denied the motion, primarily on the grounds that (1) the Governor, who was then entitled to sit as President of the High Court, had already rejected such a motion shortly after the decision in 1931; and (2) in any case, forty-seven years was too long to wait before moving for relief from a judgment. Nouata v. Pasene, LT 18-1930 (Order Denying Motion for New Trial and for Relief from Judgment, issued February 20, 1979).
24) The trial court judgment denying the motion for relief from the Nouata judgment was *64upheld on appeal. In an opinion written by Acting Associate Justice Kennedy (now Justice Kennedy of the United States Supreme Court) the Appellate Division held that the 1931 decision was not void for want of jurisdiction:
[T]he predecessor in interest of the party making this motion [i.e., Puailoa Nouata, predecessor of Puailoa Tavete] submitted himself to the jurisdiction of the trial court in the 1931 litigation and therefore had sufficient notice of the pendency of the suit. The only way, then, that the irregularity allegedly committed by the 1931 court in making a determination concerning the status of the land can be grounds for finding the judgment void is if the determination was so remote from the subject matter of the litigation that the court could not adjudicate the two matters simultaneously.
[I]t was apparently understood by all parties that the status of the land Malaeimi, whether personally belonging to Salataima or whether communal, was in dispute as well as who could lawfully claim the matai title Puailoa .... [T]he two matters were inextricably intertwined, and . . . [Puailoa Nouata], who was apparently the party adversely affected by any determination of the status of the land Malaeimi, was reasonably and actually notified that the two matters would be jointly resolved.
Nouata v. Pasene, AP No. 7-79, 1 A.S.R.2d 25, 31, 32-33 (1980) . The appellate court also held that no other basis for relief from the judgment had been presented. Id. at 35.
25) After disposing of the motion, the 1980 appellate court added: "We intimate no views as to the interpretation of the 1931 decision or its bearing on the ultimate question of title, only that it is valid as to these parties [i.e., Puailoa, the Estate of Lagafuaina, the Government, and the Church]." Id. at 35. This may have been a reference to an issue that later became very *65important: whether the question of who was entitled to the rentals was somehow separate from the question of who owned the land. It can also be read, however, as a caveat to the effect that the 1931 decision was binding only on the parties to the case, namely Puailoa, Salataima, and Fanene, and their successors in interest; as in most cases, the "ultimate question of title" could still be litigated by anyone who had hot already had his day in court.
26) The question of who owned the 300 acres was relitigated yet again in Reid v. Puailoa, LT No. 41-79. In this case the plaintiff was the Church, which alleged that in May 1979 (about three months after the denial of the Motion for New Trial in Nouata) Puailoa Tavete and members of his family had begun planting crops on portions of the 300 acres of Malaeimi belonging the Church. The decision in the case was rendered three years later, by the same trial judge (Chief Justice Miyamoto) who had denied the motion for new trial in Nouata. This time Puailoa won: the Court held that Malaeimi was the communal land of the Puailoa family, having been recognized as such in the 1909 Alo case; that it therefore could not legally have been alienated without the observance of certain statutory prerequisites; and that "the 1931 Nouata opinion only gave to Salataima the rentals from the Church lease." Reid v. Fanene & Puailoa, LT Nos. 7-79 & 41-79 (Decision and Order issued April 19, 1982).
27) The trial court decision in Reid also declared that the sixty acres which Salataima had left to her brother Lagafuaina
---the sixty acres involved in the present case— - had always been and were still the communal property of the Puailoa family. Neither the Estate of Lagafuaina Laisene nor any of the other defendants in the present litigation, however, had been parties to the case. After the decision the Estate attempted to intervene, as a necessary party to any decision with regard to the sixty acres, but the trial court never ruled on the motion.
28) In 1983 Reid v. Puailoa was upheld on appeal. The Appellate Division treated the trial court's determination that the land was communal— - including its interpretation of the 1909 and 1931 opinions---as a finding of fact. As such, it *66should be upheld if "supported by the evidence." Reid v. Puailoa, AP No. 14-82, Opinion rendered March 30, 1983, at 7. (This portion of the opinion was omitted from the reported opinion at 1 A.S.R.2d 85.) "On appeal, Appellant's burden is to show that the decision of the trial court was clearly erroneous . . . . "Id., slip opinion at 7. Since the trial court's finding that "the language of the 1931 decision [was] ambiguous," and its consequent construction of that decision as granting only a life interest in rental payments, were not "clearly erroneous," they were upheld. Id. at 8, 10.
29) The appeals court then rejected the contention that the Church might have acquired the 300 acres by adverse possession. Since the Church had acquired the land from Salataima in 1953, and since "a family member cannot adversely posess [sic] communal land, there could be no tacking and the operation of law could vest title in the less than thirty years" between 1953 and 1978. Id.. slip opinion at 12, 1 A.S.R.2d 85 at 88. The Court added in dictum that communal land may not in any case be acquired by adverse possession. Id. at 12 n.l, 1 A.S.R.2d at 88 n.l.
30) The Church later made a motion for relief from judgment, presenting evidence from the records of the Legislative Reference Bureau to the effect that the applicable adverse possession period was twenty years, not thirty years. The same appellate panel then held (1) that the legislature never intended to "permit Samoan land to be taken by foreign corporations by adverse possession"; and (2) that in any case the record reflected "actual physical presence on the land in question [the 300 Church acres]" by the Puailoas from which "the trial court could easily have concluded that the occupancy of the Church was never exclusive, an essential element of adverse possession." Reid v. Puailoa, AP No. 14-82 (Order issued December 11, 1984) at 6, 7.
31) The Appellate Division reversed that portion of the trial court decision that had purported to award to the Puailoa family the sixty acres involved in the present case. This was because the trial court had no jurisdiction to "terminat[e] the property rights of several individuals without their knowledge and without granting them an opportunity to defend their interests." Reid, supra, 1 A.S.R.2d at 89. *67"Elementary concepts of due process" dictate that "[o]ne is not bound by a judgment" resulting from litigation in which one has not had notice and an opportunity to be heard. Id. The individuals to whom this portion of the appellate decision refers ultimately became the defendants in the present case.
32) Although neither Puailoa nor any other party to Reid had attempted to bring any of the present defendants into that case, during the early 1980s some members of the Puailoa family, including Puailoa Tavete, told some of those who had purchased property from Lagafuaina that they were residing on Puailoa land. Among those who received such communications were Marcus Langkilde, Tui Marcus, and perhaps others among the defendants to the present litigation.
33) In 1983 Puailoa Tavete filed the present action. It was erroneously filed in the Trial Division rather than the Land and Titles Division; the named defendants were the Estate of Lagafuaina Laisene, the executrix of the Estate, and "Does I thru X."
34)In 1987 the action was transferred to the Land and Titles Division and the complaint was amended to name the various purchasers and lessees from Lagafuaina in place of "Does I thru X."
II. The Effect of Nouata v. Pasene
At the outset, we observe that our decision in this case is constrained by the 1931 decision in the case of Nouata v. Pasene. That decision--alone among the various opinions that have touched in one way or another upon Malaeimi or the Puailoa family --- has the effect of res judicata in a case concerning the sixty acres presently in dispute, and having as parties the respective successors in interest of Salataima and of Puailoa Nouata.
For the reasons stated in the 1980 decision of the Appellate Division refusing to reopen the case, the Court had jurisdiction over the subject matter; although the way in which this jurisdiction was exercised was informal compared to current High Court procedures, the losing party had such notice and opportunity to be heard as afforded due process of law. See Nouata v. Pasene, AP No. 7-79, 1 A.S.R.2d 25, 31, 32-33 (1980), summarized in *68paragraph 24 of Part I, supra. The 360 acres involved in Nouata clearly included the sixty acres involved in the present case, and the holding of Nouata adjudicated the rights of the Puailoa matai against Salataima. Whether or not we approve of or agree with the holding in Nouata. we are absolutely bound by it.
There remains the question what exactly the holding of Nouata was. The necessity of discussing this question at some length is occasioned more by various similar discussions that have taken place between 1931 and 1989 than by anything in the language or context of the decision itself. On its face the decision holds the 360 acres to be "the property of the widow of Puailoa." Nouata, supra (Judgment rendered June 9, 1931), discussed in paragraph 9 of Part I, supra. Unless the Court can be shown not to have meant what it said in 1931, then the successors in interest of Puailoa Nouata are forever bound --- and this Court is accordingly bound in the present casé---to treat the land presently in dispute as "the property of" Salataima and her successors. Thus there must be judgment for the defendants.
It is suggested, however, that the 1931 Nouata decision did not really adjudicate the question of who owned the 360 acres. Indeed, this suggestion formed the basis of the trial court's opinion in Reid v. Puailoa, supra. Because neither the land presently in dispute nor any of the present defendants or their ancestors in title were before the Court in Reid, the decision in that case would not appear to bind the Court in the present case. Yet even in the absence of any such binding effect (a question discussed more fully in Part IV, infra) we should carefully consider on its merits the argument that convinced the Court in Reid.
. The nub of the argument is that the words appearing to adjudicate the question of ownership ("is the property of the widow of Puailoa") were modified and effectively cancelled by the words immediately following ("and that she should have during her lifetime the rents"). In the opinion of the 1982 Court, the 1931 Court was hopelessly confused:
[T]he common law legal terminology applied by a nalaoi [sic: papalagi] judge in Nouata came into conflict with the *69non-Westem concepts of communal land and pule. The Nouata decision states "that that part of Malaeimi that is leased to the Mormon Missionaries is the property of the widow Puailoa and that she shall have during her lifetime the rentals." On its surface this holding appears to be confusing even the common law notions of the granting of a fee simple interest in the land and at the same time granting only a common law dower interest in the rents.
Reid, supra (Decision and Order issued April 19, 1982), at 11. In other words, the Chief Justice in 1931 is said to have been ignorant not only of Samoan customary law, but also of the Anglo-American law he is said to have been erroneously trying to apply. And it gets worse:
The Nouata decision then only further confuses the issue by going on to give to Salataima some power over the rentals upon her death, if the lease was still running.
Id. at 12. Thus finding the 1931 decision incoherent on its face, the 1982 Court proceeded to "interpret" it in light of various extrinsic factors so as to find that it "only gave to Salataima the rentals from the Church lease." Id.
But the 1931 decision is not incoherent. Indeed, the language quoted by the 1982 Court does not even appear to us, read in its entirety, to be ambiguous. There is one way, and only one, in which the operative language can be read so that each phrase has some effect and so that the whole passage makes sense:
1) The land in dispute is the property of Salataima.
2) As the owner, she is entitled to receive the rents during her lifetime; and
3) As the owner, she is also entitled to say who will receive the rents---that is, who will become the next owner---after she dies. She should therefore make a will.
*704) It would be. a good idea if she left the property to the Puailoa family, but this is only a suggestion.
It should be recalled that the intense interest in who owned this particular 360 acres was because it was rented out. There was at that time (as contemporary records generally attest and as the 1931 Court expressly found) plenty of land available for occupation and cultivation; but not much of it was rented to wealthy corporate tenants. That the Court, having declared Salataima the owner, should go on to say where the rental payments would go---to the owner during her lifetime, and to whomever she designated after her death --- makes perfect sense in the context of the case.
The 1982 Court's alternative interpretation, in contrast, discards and then negates about three-fourths of what would otherwise appear to be the 1931 Court's holding. Not only is the land in question not "the property of" Salataima, but it would be pointless for her to leave a will saying "who she wants this money to go to after her death," for the devolution upon the Puailoa family after her death is not "only a suggestion."
The more straightforward interpretation of the 1931 holding has the added advantage of not making it necessary to conclude that the Court was ignorant either of Anglo-American law or of Samoan custom. It is true, as the 1982 Court points out, that Western concepts such as "fee simple" and "dower right" were not invariably useful in describing Samoan land tenure. But these terms were not used by the 1931 Court; rather, they were introduced by the 1982 Court itself in the course of explaining how the earlier court must have been confused. Although the Samoan word pule does mean some things other than the English word "ownership," and may therefore give rise to confusion, it is no more evident that the 1931 Court was the victim of such confusion than that the 1982 Court was.
The simplest explanation for the 1931 Court's decision is that it believed Salataima's testimony: that her husband Vaiuli went to Apia and "won" the land from the McArthur company before he became Puailoa, and that he had always been recognized within the family as having the right to do with *71this land and its proceeds as he wished. While this testimony might not have required the conclusion that Malaeimi belonged to Puailoa Vaiuli in his capacity as Vaiuli rather than as Puailoa, it was certainly sufficient to support such a conclusion. The testimony of one other witness, Fanene, was to the effect that all lands owned by Puailoa Vaiuli were his own lands rather than Puailoa family lands. Only Nouata testified to the contrary. Even taking into account the presumption that land is communal rather than individual, the Court's decision appears to have been well supported by the evidence.
The 1982 Court, without directly addressing the possibility that the Court simply believed Salataima., discounts it by finding that her testimony had been "self-serving," as it clearly was and as testimony in land cases tends to be. The 1982 Court draws the further unwarranted inference that the 1931 Court "saw through this [i.e.,, Salataima's testimony]" since "otherwise it would have awarded the entire Malaeimi lands to her" instead of recognizing the claim of the Puailoa family to that portion of Malaeimi not leased by the Church. Reid, supra, at 12. Here the 1982 Court overlooks the testimony itself. Salataima did testify that Vaiuli won all of Malaeimi for himself, but not that he .left all of Malaeimi to her. -She said only that he left her the land that was leased to the Church. If the remainder of Malaeimi was Vaiuli's individual property he had the right to leave it to the Puailoa family if he wanted to, and on cross-examination Salataima appears to have acquiesced to the proposition that he did so.. Nouata v. Pasene, LT No. 18-1930 (Transcript of trial ;held June 9, 1931) (testimony of Salataima) . Thus the most obvious reading of the 1931 Court''s opinion is in no way inconsistent with the record' before it..
In construing the ostensibly ambiguous 1931 decision the 1982 Court relied heavily on its reading of the decisions and of the records of three other proceedings: the 1905 lease controversy discussed in paragraph 2 of section I, supra., which the Court assumes to have been a judicial proceeding although there is no record of it and although It may well have been an informal hearing before an administrative official; Alo Taisi v. Puailoa, 1 A.S.R. 194 (1909), discussed in paragraph 4 of section I, supra; and Tu'utau v. *72Fanene, No. 1-1931, discussed in paragraph 12 of section I, supra.
It is true that both the 1909 and the 1932 decisions speak, albeit in passing, of part of Malaeimi as the land of "the name Puailoa." It is also true that Puailoa Vaiuli's testimony in the record of the 1909 case would have supported a finding that he had gone to Apia to regain land for the Puailoa family rather than to gain it for himself. Neither of these cases, however, involved a dispute about the question that was directly confronted in 1931 and that directly confronts us in the present case: whether Malaeimi, or any part of it, was individual or communal land.
The 1909 case was a dispute between Puailoa Vaiuli and a chief of another village who clearly did not own the land. Puailoa Vaiuli stressed both the historic claims of his ancestors to Malaeimi (which is said to have been the site of a long-abandoned village of which Fanene and/or Puailoa may long ago have been the principal matais) and his role and that of his father in winning the land in Apia. See Alo v. Puailoa, LT. No. 4-1908, Transcript of Proceeding held June 9, 1909 (Nouata, 1978 Motion to Reopen, Puailoa Exhibit 1) , testimony of Puailoa. The statement by the 1909 Court that part of Malaeimi belonged to "the name Puailoa," even in the unlikely event it was intended to resolve any future controversy with the individual heirs or devisees of Vaiuli, was obiter dictum and was not binding on the 1931 Court.
The 1932 decision, written by the same Chief Justice Wood who was the author of the 1931 decision, is more interesting in that it does seem to say that part of Malaeimi belongs to "the name Puailoa," that the rental of some of that part is received by Salataima, and that the remainder is "tinder the pule" of Puailoa Nouata. Tu'utau v. Fanene, supra. Again, however, the case did not concern the question for which it has been cited. Tu'utau was a case between Fanene and a member of the Puailoa family over a tract other than that involved in the 1931 case and in the present case; any reference to the previous decision, or to who owned the 360 acres across the road, was dictum.
Dictum is not regarded as binding in subsequent cases because of the presumption that a judge will have a more thoughtful reaction to a *73question when his attention is fully engaged by it and all the facts are before him than when they are not. To the extent that Chief Justice Wood's passing remark in 1932 differs from his holding in 1931, it may be because he expressed himself more carefully on one occasion than on the other; the law presumes that the more careful expression was in the holding itself. Or it may be that by 1932 he had forgotten the precise details of the 1931 case, or thought better of the matter. In any case we are bound by the 1931 holding and not the 1932 dictum. Moreover, we note that on at least two occasions after the 1931 holding --- in his letters to the Governor of October 24 and November 30, 1931 --- Chief Justice Wood spoke of his decision as having involved the "ownership" of the land in question. Nouata. 1978 Motion to Reopen, Puailoa Exhibits 12 and 19, discussed in paragraph 10 of part I, supra.
Any general canvass of judicial statements concerning Malaeimi must also take account of Chief Justice Morrow's dictum in 1953 that the land leased to the Church was "individually owned by a Samoan [i.e., Salataima]." In re Airport at Tafuna. quoted and discussed in paragraph 16 of section I, supra.
The main point, however, is that the Nouata decision speaks at least as well for itself as any earlier or later statement can speak for it. In our view, the unambiguous holding that the 360 acres was "the property of" Salataima is reinforced rather than rendered ambiguous by the Court's additional comments and recommendations regarding disposition of the rentals before and after Salataima's death. We are bound by this decision whether or not we agree with it.
Accordingly, we hold that Salataima was the owner of the sixty acres presently in dispute; that upon her death the land devolved upon Lagafuaina Laisene; and that plaintiff Puailoa has no right to any relief against the present defendants.
III. Adverse Possession
Even if Salataima did not own the sixty acres in 1931, we would hold that Lagafuaina Laisene and his devisees had acquired them by adverse possession before this suit was filed.
*74Salataima was neither a blood member of the Puailoa family nor, after her husband's death and the events of 1931, analogous to a member of the family in any way that would prevent her possession of the sixty acres from being clearly hostile to the Puailoa claim. Her adverse possession of the sixty acres almost certainly began no later than 1931, when it had become clear (painfully so to the Puailoas) that she exercised authority over the land in her own right and not as a permittee of the Puailoa family. Her possession of the land from that date, albeit through a tenant, was as open, as notorious, and as hostile as possession can ever be. Even if occupation through the Church as tenant were somehow inadequate, the exclusive occupation by Salataima herself, her brother Lagafuaina, and other members of the Lagafuaina family after 1953 would have been more than sufficient to constitute adverse possession.
Under the twenty-year adverse possession statute then in force, Lagafuaina and his devisees would have acquired the sixty acres by 1973. The claim filed by Puailoa in the Lagafuaina probate proceeding in 1975 was the first arguable interference with possession by Lagafuaina. Since this claim was soon withdrawn, it is more likely that the filing of the motion for new trial in Nouata in 1978 was the first such interference.
By then it had been at least twenty-five years, and probably forty-seven years, since the adverse possession began.
We respectfully disagree with the dictum in the appellate decision in Reid to the effect that an individual can never acquire communal land by adverse possession. See Reid, supra, 1 A.S.R.2d at 88-89 n.l. Contrary to the view therein stated, we believe that the circumstances under which land is acquired by adverse possession are so different from those attendant to the ordinary alienation of land that the Fono cannot be .presumed to have regarded adverse possession as a "sale, gift, exchange, or other method of disposal of property" to which the racial restrictions and other procedures governing alienation of communal property apply. A.S.C.A. § 37.0201. We note that adverse possession is provided for in the chapter on "Titles to Land" rather than in the separate chapter on "Alienation of Land" containing the aforementioned restrictions and procedures. *75A.S.C.A. § 37.0120; 37.0201 et seq. Finally, we note that the jurisprudence of the High Court has long recognized that an individual can acquire communal land by adverse possession. See, e.g., Sione v. Tiualii, 3 A.S.R. 66 (1953); Lolo v. Heirs of Sekio, 4 A.S.R. 477 (1964).
This question was apparently neither briefed nor argued by any party to Reid, and the Court's statement was not necessary to its holding. If an appeal should be taken from the present decision, and if the appellate court should find it necessary to reach the question of adverse possession, we would suggest that the parties and the Court give plenary consideration to whether the correct rule is stated by the dictum of Reid or by the earlier rule of Sione and Lolo.
Finally, we note that the primary grounds on which the Reid Court held that the Church had not acquired the 300 acres at issue in that case by adverse possession are inapplicable here. The holding of the appellate decision in Reid was that the Church had not begun its adverse possession until 1953 and therefore, under the thirty-year adverse possession statute, had not acquired title by the time suit was filed in 1979. 1 A.S.R.2d at 88.
The adverse possession was held not to have begun until the sale to the Church in 1953 because of a finding of fact---that Salataima was a member of the Puailoa family---which may have been consistent with the evidence before the Court in Reid, but which is clearly contrary to the evidence in the present litigation. See id., 1 A.S.R.2d at 88; compare paragraph 11 of section I, supra. In any case, on motion for relief from the judgment the Church pointed out that the twenty year adverse possession statute, not the thirty year statute, was in force during the period in question. This rendered it irrelevant whether Salataima was a family member, since even if the period of possession did not begin until 1953 title would have been acquired by 1973. The Court then held (a) that a foreign corporation could acquire land only in certain ways prescribed by statute, not including adverse possession; and (b) that in any case the possession of the 300 acres by the Church might not have been exclusive, since the Puailoas may have interfered with it in various *76ways. Reid v. Puailoa, AP No. 14-82 (Order issued December 11, 1984) at 6, 7.
Neither of these factors was present in the case before us. Lagafuaina Laisene was not a foreign corporation, and the Puailoas did not interfere with his possession or that of his devisees at any time between 1953 and 1978.
IV. The Effect of Reid v. Puailoa
We have taken a different view than the trial court took in Reid v. Puailoa upon the two principal questions presented in that case and in this one. It is appropriate to ask, particularly in light of the affirmance of Reid on appeal, whether that decision should be regarded as a precedent that binds us regardless of our own view on the merits of the case before us.
We have already stated that Reid does not have the effect of res judicata on the present case. Res judicata applies only where the parties and the subject matter of the earlier case are identical to those of the case at hand. In this case one of the parties was a party to Reid, but the parties .who count---the ones who would automatically lose if res judicata were applied —were not parties to the earlier case and were not represented by an ancestor in title. Nor is the subject matter exactly the same; that case involved the 300 acres that Salataima sold to the Church, this one involves the sixty acres she left to her brother.
The doctrine of collateral estoppel sometimes bars relitigation of issues even where the facts or the parties are somewhat different in the new case than in the old. The estoppel can apply, however, only against a party who was represented in the earlier litigation. If Puailoa had litigated against the Church and lost, he might have thereby been estopped from bringing essentially the same case against the present defendants. Having won, however, he is not automatically entitled to a similar judgment against people who were not parties to the earlier litigation and who are not successors in interest of anybody who was. The doctrine of collateral estoppel does not apply here.
The only doctrine that might bind us to reach the same result as Reid is stare decisis. This is *77a far broader doctrine than res judicata or collateral estoppel: it often effectively dictates the result in cases whose facts and parties have little or nothing to do with those of the precedent. Stare decisis, however, applies to questions of law and not of fact, to general propositions rather than to specific inquiries.
It often happens that more than one lawsuit arises from a single event or chain of events. Almost inevitably the first case litigated involves the decision of some question or questions of law, and more often than not the law and the facts are intertwined so as to make it technically possible to argue that stare decisis applies even though res judicata and collateral estoppel do not. Even in cases involving such "mixed questions of law and fact," however, courts preclude relitigation only by parties who have already litigated the question or who had a fair chance to do so in the first lawsuit. See generally Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979).
Our disagreement with the trial court in Reid is not about general propositions of law but about the application of those principles to a particular fact situation. The principal question on which we disagree concerns the interpretation of yet another judicial decision --- specifically, whether Nouata dealt with the question of title to the 360 acres. This can fairly be called a mixed question of fact and law. But in the present case and in Reid this question of interpretation operates more as fact than as law: it is more like the question whether A and B have a contract than whether contracts are binding without consideration. It is the sort of question whose relitigation should be barred or not according to the rules of res judicata and collateral estoppel rather than those of stare decisis.
We do not disagree with the Reid Court about whether one case adjudicating a question bars relitigation of the same question between the same parties, but only about whether Nouata did in fact adjudicate the question of who owned the 360 acres. Indeed, we do not even disagree about canons of interpretation —for instance, about whether ambiguous language should be construed by reference to extraneous sources ---- but about whether the words "the property of the widow of Puailoa" are, in a particular context, ambiguous.
*78That strangers to a lawsuit should be bound by the court's construction of language in a document on which their claim is based, even though they had no chance to present their own arguments and evidence to the court, is precisely what the limits of res judicata and collateral estoppel are calculated to avoid. That the document in question is an ancient court decision --- a decision stating no doctrine, of no more importance to anyone outside the case than an identically worded and equally ancient will or deed---does not justify the erosion of these limits. This is not what stare decisis is about. See Swilley v. McCain, 374 S.W.2d 871 (Tex. 1964)
Our analysis is consistent, we believe, with that applied by the Appellate Division in Reid. The appellate court did not treat the trial court's interpretation of Nouata as a question of law but as a question of fact. See Reid v. Puailoa, AP No. 14-82, Opinion rendered March 30, 1983, at 7, discussed in paragraph 28 of part I, supra. The extremely deferential "clearly erroneous" standard of review was therefore applied, and the trial court's interpretation was found not to be without some support in the evidence. Id. There is no inconsistency between this result and a different determination of the same question in a later lawsuit involving a party who is not bound by the decision in Reid.
Indeed, the Appellate Division, even while affirming the trial court decision in Reid as against the appellee in that case, specifically held that the present defendants were not bound by the result. The trial court's attempt to "affect the rights of individuals who were not parties to the litigation" without "granting them an opportunity to defend their interests" was held to have violated "[e]lementary concepts of due process." 1 A.S.R.2d at 89.
It was because the Appellate Division held the trial court's judgment not binding with regard to the sixty acres presently in dispute that Puailoa found it necessary to institute the present lawsuit. We feel sure that in guaranteeing the present defendants an "opportunity to defend their interests" the Appellate Division had something in mind other than the mechanical imposition of the very holding whose application to these defendants *79in the first instance violated "elementary concepts of due process." Surely it must have been contemplated not only that the defendants would get a day in court, but also that they might conceivably win.
V. Laches and Other Equitable Defenses
If the defendants had not acquired title through Salataima or by adverse possession, the doctrine of laches would apply to limit Puailoa's recovery. About fifty-two years elapsed between the last occasion on which we have any evidence that Puailoa Nouata protested the Nouata decision and the filing of the present suit. - Four more years elapsed before most of the present parties were named as defendants. In the meantime, and particularly during the years between 1960 and 1987, innocent third parties bought land, built homes, and raised families on the land. We have no evidence that any of the purchasers knew of the Puailoa claim at the time they built their improvements. Puailoa, on the other hand, did know the identities of at least some of the purchasers, contrary to his assertion at the time he filed suit in 1983. According to the testimony of Puailoa's daughter who was his principal witness at trial, these people were left more or less alone for several years because it had been decided for strategic reasons to go after the Church first and the individual owners later.
Even in the absence of circumstances giving rise to laches, those who built improvements prior to 1987 would appear to be good-faith improvers with a right to compensation upon eviction. See Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988).
In light of our decision on the merits it is not necessary to calculate the amount that would be necessary to compensate those who purchased land and/or built improvements in the event they were evicted by Puailoa. This issue can be addressed, preferably after a further evidentiary hearing, in the event an appeal should be taken and the appellate court should reverse and remand.
VI. Order
Since plaintiffs have not carried their burden of proving that they own the land presently in *80dispute, judgment is entered for the defendants and the action is dismissed with prejudice.
It is so ordered.
We take judicial notice of the record of the proceedings in Nouata and in the other cases concerning Malaeimi that are cited in the text. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485773/ | On Request for Extension of Time to File Brief:
The trial court decision from which these consolidated appeals are taken was rendered on February 16, 1989. A motion for new trial was denied on March 20 and a notice of appeal filed the same day. Appellant's brief was timely filed on April 24, and appellee's brief was due on May 25.
By the May 25 deadline appellee had neither filed its brief nor moved for an extension of time to file. On June 19, 1989, almost a month after the deadline and about a month before the scheduled session of the Appellate Division, counsel' for appellee (Assistant Attorney General Tauivi Tuinei, who also served as counsel at trial) requests a 45-day extension of the time for filing his overdue brief. The filing appears to be ex parte. It does not mention the fact that the brief is already overdue, and gives no explanation other than that "[a]ppellees are awaiting information from Washington, D.C. to complete their research."
The requested 45-day extension is denied for the following reasons:
1) It was not filed with proof of service on the opposing party, as is required by Appellate Court Rule 27(a).
2) Counsel offers no excuse for his failure to have moved for an extension of the deadline before rather than after it had passed.
3) It is not clear whether counsel is asking for an additional forty-five days from the original deadline or forty-five days from the date of his motion. A 45-day extension from June 19 would have the effect of depriving appellant of its right to *118be heard at the upcoming July session of the Appellate Division. The next regular session after this one will probably be held late in 1990, over one and one-half years after the trial court decision in the present case. Even if the present motion had been timely filed with notice to the other party, no extension would have been granted unless it would have permitted the case to be considered at the July 1989 appellate session.
Appellate Court Rule 31(c) provides that an appellee who fails to file his brief on time will not be heard at oral argument except by permission of the appellate division. Since the effect of such a sanction in the present case would fall not on counsel Tuinei nor even on his employer, but on innocent third parties to whom counsel appears to have breached a fiduciary responsibility, the Appellate Division may prefer to impose, another sanction.
Accordingly, counsel Tuinei is directed to file a brief on behalf of appellees by July 9, 1989. The full Appellate Division will decide whether to accept the brief, whether to permit oral argument, and whether to impose other sanctions. If counsel wishes to supply the Court with an explanation for his failure to move for the extension of the deadline before it had expired, or for his failure to comply with the rule reguiring certification of notice to opposing counsel, he should do so on or before July 9.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485774/ | This matter came on regularly for hearing upon the government's motion to revoke plaintiff's probationary status.
Factual Background
Defendant, Pepe Lam Yuen, was convicted in the above-entitled matter of the offenses of fleeing from a police officer, and resisting arrest. Defendant was ,sentenced, inter alia, to prison terms respectively of six (6) months and twelve (12) months on the respective counts. Execution of the sentences was suspended and the defendant was placed on probation for a period of one (1) year upon a number of conditions. One of the conditions of probation required defendant to be a "law abiding citizen." Sentence was rendered July 29, 1988.
Within the period of probation, defendant was arrested and charged with the offense of production and cultivation of marijuana following a search undertaken by the police pursuant to a search warrant. On March 30, 1989 the defendant duly appeared for preliminary examination before the District Court. The District Court found probable cause to bind the defendant over to the High Court on the charge. The government moved to revoke probation on the grounds that defendant had *120violated the probationary condition of remaining law abiding.
The extent of the government's case at the revocation hearing herein was the introduction of the reporter's transcript of the evidence taken at the preliminary examination. No other evidence was presented. The transcript revealed that the police had applied for and obtained a warrant to search a certain land area in the Western District for marijuana plants. The testifying police officer first related his training and experience with identifying such plants both by visual examination and by a certain chemical field test. Plants and seeds which the police found at the scene of the search, both indoors and outdoors, tested positive. The officer further testified that from previous surveillance with field glasses he had seen the defendant among the plantings and that on the day of the search, the defendant, after being verbally warned of his Miranda rights, admitted that the plants seized were his.
The Argument
Defendant contends that the evidence presented in the transcript could not properly provide the required factual basis for revocation of his probationary status. The argument appears to revolve around the premise that the type of evidence admissible in a preliminary examination for probable cause is, by virtue of Court Rules of Criminal Procedure, Rule 5.1(a), invariably treated by the District Court as free of possible objection based on the exclusionary rule. Defendant argues that the exclusionary rule in American Samoa is constitutional and also applicable in probation revocation hearings. American Samoan Government v. Samana, 8 A.S.R.2d 1 (1988). It is further argued that the District Court had admitted, over objection, "evidence resulting from the search, which included alleged admissions by the defendant, and would not permit inquiry into whether the evidence and the admissions were lawfully obtained, thereby preventing the defendant from exercising his right to confront and crossexamine the witness on those issues." Defendant's Memorandum of Points and Authorities at 2. Defendant claims, therefore, that use of the transcript would be in violation of the exclusionary rule, the rule against self incrimination, and his right to confront witnesses. *121Additionally defendant asserts a violation of his right to procedural due process.
Discussion
For reasons given we disagree with defendant. The evidence presented by the police at the preliminary examination, namely the plants, was obtained through the "process" of a search warrant. Subsequent to the execution of the warrant, the defendant made certain inculpatory statements to the police. While it is true that the defendant was not permitted the opportunity to develop the possibility of exclusionary matters at the preliminary examination, we see no reason why such a possibility could not have been fully developed in the probationary revocation proceedings before us. A search warrant duly issued upon application is presumed valid unless otherwise shown to be to the contrary. An admission against interest has always been regarded as probative evidence unless otherwise shown to have been exacted involuntarily.
Defendant nonetheless claims that he is also deprived in these proceedings of the opportunity to explore the possibility of excludable matters because of the fact that the government had decided to introduce only the transcript and not call witnesses. The protest lodged is that one cannot cross-examine a transcript. The immediate problem with defendant's position is that, in sum, it suggests a duty on the government to anticipate a probationer's defenses and to gear its presentation accordingly. Obviously, there is no basis for prescribing such a prophetic duty on the government, and we see no barrier which prevents ab initio our consideration of the transcript of the evidence taken at the preliminary examination. Even assuming for the sake of argument that the evidence necessary to establish probable cause in a preliminary examination may be lesser in quality than that necessary to meet the standard of proof demanded in a probation revocation matter,1 it does not follow that such evidence is therefore quantitatively inadequate to establish a finding that a probation condition has been breached.
*122The requirements of due process in parole revocation proceedings were addressed by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972). These included the parolee's right: to have the evidence against him disclosed to him; to be heard in person and to piresent witnesses and documentary evidence; and to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing such confrontation. Id. at 489. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court extended the rule established in Morrissey to probation revocation proceedings as well.
On the foregoing cases, we see that at the heart of the matter is the concern for basic fairness --- the non-arbitrary treatment of a probationer/parolee by the state. In the context of such proceedings, due process requirements were said to be flexible and dependent on the demands of each case. The Court was careful to point out in Morrissey that it would not attempt to write a national code of procedure in these matters. Morrissey, supra, 408 U.S. at 489.2
Further, the Court made clear in Morrissey that a parole revocation inquiry was a narrow one and that the process could be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial. Morrissey, supra, 408 U.S. at 489. Expanding on this in Gagnon, the Court pointed out that it had not intended in Morrissey to prohibit the use, where appropriate, of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence, although the Court did note that in some cases, there is simply no adequate alternative to live testimony. Gagnon, supra, 411 U.S. at 783 n.5.
In the present case, we are satisfied that this defendant knew precisely why the government had moved to revoke his probation (quite apart from the fact that he was duly noticed with the *123government's motion to revoke). He knew the extent of the evidence which the government had against him not only from the search, after which he made an inculpatory admission, but from the preliminary examination undertaken at the District Court. His claim therefore to being surprised had absolutely nothing to do with his ability or inability to meet the government's evidence in accordance with the notions of due process, but simply had to do with the fact that he had not anticipated the government's decision not to call the police officer who testified below. That officer was equally available to the defendant by subpoena if live testimony was considered crucial by the defendant. On the other hand, the government's decision to rely on the transcript of the officer's testimony taken in the District Court surely came within that flexibility referred to by the Supreme Court when it talked about "conventional substitutes for live testimony." Id.
Having considered the transcript of the police officer's testimony given in the District Court, and being satisfied that the evidence complained of was gained by the police through the due process of a duly issued search warrant, we find on the preponderance of the evidence before us that defendant, Pepe Lam Yuen, was involved with the cultivation of marijuana plants in violation of this Court's Order in the above-entitled matter that defendant shall remain a law abiding citizen throughout his term of probation.
The defendant, Pepe Lam Yuen, is hereby Ordered and Summoned to appear before this Court on July 24, 1989 at 9:00 a.m., for further disposition in accordance with the findings herein.
Cf. Territorial Court Rules of Evidence, Rule 5.1101(d)(3) which provides, inter alia, that the Rules of Evidence (other than with respect to privilege) are inapplicable to proceedings for revocation of probation.
. In Gagnon, for example, the Court rejected the contention that the standards of due process (in a probation revocation proceeding) required the appointment of counsel in every case. Gagnon, supra, 411 U.S. at 787. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485775/ | Plaintiff and defendant are both closely held corporations. Plaintiff corporation is owned and operated by Robert Porter and defendant corporation by Warren Fisher. Prior to the incidents that gave rise to the present action Porter and Fisher had enjoyed a close and friendly business relationship. Each was the principal witness for his company at trial.
Porter claims that Fisher agreed to purchase $30,000 worth of aggregate (crushed rock); that Fisher received 612 cubic yards of aggregate before wrongfully terminating the contract; and that Fisher's company still owes $5602 on the purchase price of the aggregate it received.
Part of the amount claimed by Porter is for aggregate said to have been received by Fisher in excess of the amount reflected by Porter's invoices. The invoices are said to have understated the amount because Fisher had misrepresented the size of the dump trucks in which his company hauled the aggregate. Fisher told Porter that each of his trucks holds seven cubic yards, whereas Porter says he later discovered that the two trucks hold 7.8 and 9.07 cubic yards respectively.
Fisher counterclaims for damages said to have been suffered by Porter's failure to perform his contractual obligations. His story is that Porter never delivered the amount of aggregate he had promised to deliver, and that it therefore became necessary to make the aggregate out of cinders. Although cinders are substantially less expensive than crushed rock, Fisher says the costs of processing make the cinder aggregate more expensive than crushed rock aggregate. Fisher claims his company was damaged in the amount of $27,287.36 by Porter's failure to deliver the promised rock. He also claims that Porter's company breached its obligation to load the aggregate onto Fisher's trucks and that Fisher was thereby injured by having to use his own loader. Fisher further *126contends, contrary to Porter, that neither of his dump trucks holds more than seven cubic yards.
Each of the two principal witnesses attempted to convince the Court that the other could not be trusted. Both were in some measure successful. Each man testified to specific and detailed conversations of which the other professed to have no recollection. Porter said Fisher had left his loading machine on Porter's lot for his own convenience for some months, whereas Fisher said the loader had been specially diverted from other important but unspecified tasks because of Porter's inability to fulfil his obligation to load the aggregate. Porter was shown to have altered invoices so as to bill Fisher for aggregate in amounts greater than those Porter's employees had certified as the amounts Fisher had picked up. (These alterations happened before Porter claims to have discovered the alleged excess capacity of Fisher's trucks.) Fisher submitted, what the Court finds to be a grossly misleading estimate of what it cost him to process the cinders he ultimately used instead of Porter's crushed rock. Each side attempted to portray an incident early in the contractual relationship, wherein it seems to have been contemplated to bill Fisher's customer (the American Samoa Government) for aggregate that had not yet been produced by Porter, as the suggestion of the other.
I. Facts
Because each party relied heavily on the largely uncorroborated testimony of its owner/operator, and because the Court finds the testimony of these two witnesses to be about equally believable, neither side succeeded in proving very much of its case. We find the material facts to be as follows:
1) The parties did have a contract whereby plaintiff (hereinafter, for convenience, Porter) was to supply . defendant (hereinafter Fisher) with 1500 cubic yards of crushed rock at a price of $30,000. Delivery was to be "F.O.B. our [Porter's] plant at Tafuna." Porter was to "start stockpiling by April 4, 1988" an initial quantity of 1000 yards. The parties did not agree on a date by which any particular amount had to be delivered. Fisher made an advance payment of $500.
*1272) Neither side was initially in a great hurry. Porter did stockpile an unspecified quantity of rock within a few weeks, but Fisher had experienced some unrelated delays in his contract with the government, took a trip off-island for a few weeks, and did not attempt to pick up any rock until mid-June. By then Porter had sold some of the stockpiled rock to other customers.
3) Between June and September Fisher picked up 462 cubic yards of rock from Porter. Throughout this time Porter was experiencing problems with his rock-crushing machine and was under pressure from other customers to supply them with rock. Consequently, he did not always supply Fisher with rock at such times and in such quantities as Fisher desired.
4) The figure of 462 yards for the aggregate received by Fisher is based on the records made by Porter's employees at the time of each delivery. These records reflect that some of the loads picked up by Fisher's trucks were partial rather than full truck loads. Porter's revised estimate of 483 yards, reflected in the invoices he sent to Fisher, was based on the assumption that all loads received by Fisher were in fact full loads. This assumption is not supported by the preponderance of the evidence.
5) On September 21, 1988, Porter yet again revised his estimate of the size of each load. The new estimate---9.02 cubic yards for one truck, 7.8 for the other---was based on the assumption that each load was "heaped up to (4) four feet in the middle" --- about two feet higher than the side1 panels placed around the bed of the truck to prevent spillage.
6) Meanwhile, on September 20, Fisher wrote a letter to the effect that he viewed the amount of rock thus far delivered to be insufficient to "honor [Porter's] contract obligation." The letter added that if Porter would be "unable to do so [i.e., to produce an unspecified but presumably greater amount of crushed rock] by September 23rd we will be forced to look to alternative sources in order to meet our construction schedule." Neither this letter nor Porter's September 21 letter appears to have been a response to the other; the two letters apparently crossed in the mail.
*1287) Fisher's September 21 letter also stated that Porter's company had "failed to meet [its] F.O.B. obligations." This was a reference to the fact that the aggregate had been loaded onto Fisher's trueles by Fisher's own loading machine. Fisher estimated that his "actual loading costs" were $2.50 per cubic yard. He also claimed to have incurred $581.25 in "truck standby time" (46V2 hours at $12.50 per hour) and "loader standby.time" of $10,043.25 (105 days at $95.65 per day).
8) It appears that Fisher had been seeking an alternative source of aggregate prior to the September 20 and 21 letters. On September 27 he sought and received the approval of the government's project engineer for the use of cinders rather than crushed rock on most of the project. Fisher did use the crushed rock aggregate obtained from Porter for certain parts of the project. At the time of trial the project had not yet been completed --- Fisher's deadline having been extended for reasons not shown to have been related to Porter's failure to deliver more aggregate --- and Fisher still had a substantial supply of the crushed rock on hand.
9) Fisher claims that the cinder aggregate he has used in place of the undelivered crushed rock has cost him $31,363.77 so far and will cost him an additional $25,923.59 by the time the project is completed, for a total of $57,287.36. (The cost of the 1038 cubic yards of crushed rock for which these cinders are a replacement would have been $20,760.)
By far the largest element in Fisher's estimate of the cost of the cinder aggregate--about $40,000 of the $57,000 total---is a claim for the use of two machines belonging to Fisher himself. He says that these two machines are necessary to screen the cinders; that the fair market value of the machines is $125 per hour and $58.50 per hour respectively; that he has used the two machines for 125 hours in screening 562 cubic yards of aggregate so far; and that he has 476 cubic yards left to screen, which will take about 105 additional hours.
Porter vigorously contests Fisher's estimate of the number of hours it takes to screen cinders. Moreover, it appears that the hourly rates on which Fisher relies are what he believes he would get if *129he rented the machines to people. Assuming the $125 and $58.50 figures to be accurate estimates of "market value," they appear nevertheless to include a substantial profit to Fisher. Fisher did not show that he lost revenue from any particular projects or would-be customers during the 125 hours he allegedly used the machines to screen cinders. He did not even show that the machines were generally in profitable use. The actual injury to him resulting from any breach by Porter, therefore, was limited to the actual cost of operating the machines: the $5 per hour or so he paid his operators and the cost of fuel and of actual depreciation (i.e., "wear and tear" actually incurred from the incremental use rather than a pro-rated figure adopted for tax purposes) of the machines. Fisher presented no evidence of the cost of fuel or depreciation. On the present record we conclude that his actual operating costs were far lower than the quoted hourly rates. Since the cinders themselves cost substantially less than crushed rock, Fisher has not shown that he was damaged---indeed, he may well have profited--by the substitution.
10) The record reflects that Fisher paid Porter $7225 prior to the termination of the contractual relationship. At the contract price of $20, the 462 cubic yards delivered would have cost $9240. Porter also supplied other items to Fisher at a cost of $575. The remaining amount due on the contract price of the 462 yards of crushed rock, therefore, was $2590.
II. Wrongful Termination of the Contract
From these facts we conclude that neither party carried its burden of proving that the other party breached the contract, except that (1) Porter did not load the aggregate onto Fisher's trucks as he should have done and (2) Fisher still owes Porter part of the purchase price of the aggregate that was delivered.
Porter delivered 462 yards of aggregate, or about one-third of the total due under the contract, within 90 days of Fisher's first indication that he was ready to accept any aggregate at all. This rate of delivery did not violate any express term of the contract. Nor was there any evidence to suggest that the delivery of 462 cubic yards by September, rather than some *130larger amount, was a breach of an implied term of the contract. Although every contracting party has an obligation to deal reasonably with the other, Fisher did not prove a breach of this obligation. He might have been able to do this, even in the absence of any specific reference in the written contract to a date of delivery, by showing that Porter knew or should have known of deadlines imposed on Fisher under his construction contract with the government. No such showing was made. Indeed, at the time of trial in May 1989 Fisher's contract' with the government did not appear to be near completion, the deadline having been extended on account of delays that were apparently unrelated to the present controversy, and no penalties had been imposed on Fisher by the government. If Porter had continued to supply aggregate to Fisher at the rate he had been supplying it before Fisher chose to terminate the contract, the whole 1500 yards would have been supplied by March 1989. From the evidence before us we cannot’ conclude that complete performance by that date would have violated the contract.
In any case, Fisher has not proved that his company was damaged by Porter's failure to deliver more crushed rock. The cinders with which they replaced the crushed rock cost them $6 per cubic yard rather than $20. The only credible evidence Fisher presented of the cost to him of screening the cinders was $5 per hour for machine operators. Even on the generous assumptions that fuel and actual depreciation will cost him an additional $20 per hour per machine, and that it will really take him about 230 hours to screen all the cinders, and that he will really need to buy 2000 cubic yards of cinders in order to produce 1000 usable yards, the cinder aggregate would cost him roughly what the crushed rock aggregate would have cost.
Fisher himself may have breached the contract by refusing to accept further aggregate from Porter after September 21. It appears, however, that Porter acquiesced in the termination. The only damages claimed or proved by Porter were for the unpaid purchase price of the crushed rock that was actually delivered. We find that Fisher does owe Porter $2590, the unpaid balance of the purchase price.
*131III. "Free on Board"
With regard to the loading of the crushed rock, Porter had the burden of proving that F.O.B. had any meaning other than the usual one, which is that the seller is obliged to load the goods "free on board" the conveyance by which they will be transported to the buyer. See, e.g., Alfred Hofmann & Co. v. United States, 329 F.2d 657 (Ct. Cl. 1964); Stalik v. United States, 247 F.2d 162 F. Supp. 652 (10th Cir. 1957) . Despite trial testimony to the effect that f.o.b. means "freight on board" and has only to do with the risk of loss, this burden was not met. Fisher insists that he never, by word or deed, gave Porter any reason to believe that his failure to supply equipment for loading the aggregate was excused; Porter insists otherwise; the Court regards the two witnesses as equally credible; and the burden of proof was on Porter. Accordingly, we find that Porter did breach the contract in this respect.■
The burden of proving injury on account of this- breach was on Fisher. He did not prove that his own loader was diverted from other profitable uses by its employment in loading Porter's aggregate, so he is not entitled to compensation for "standby time." His estimate of $2.50 per cubic yard as the cost of operating the loader, however, does not seem unreasonable in light of the contract price and of Porter's admission that delivery costs are a substantial factor in the price of aggregate. Accordingly, Fisher is entitled to an offset of $1155 (462 x $2.50) against the unpaid balance of the purchase price.
TV. Excess Loads
Finally, Porter claims that he unknowingly delivered Fisher about 129.6 additional cubic yards of aggregate because Fisher's original estimate of seven cubic yards per truck load was too low. Porter did prove, by means of a photographic demonstration, that one of the trucks could hold about nine cubic yards when the load was tamped down manually and was piled about two feet higher than the truck's side panels. Fisher claimed that the loads actually delivered to him by Porter were not tamped down so firmly and therefore contained fewer cubic yards than Porter's demonstration load.
*132The difference is immaterial. Any load as high as that depicted in Porter's photographs would have been in clear violation of A.S.C.A. § 22.0331, which provides in pertinent part that no vehicle may be driven or moved on any highway when any load thereon is not entirely within the body of the vehicle, unless the load is securely fastened by "clamps, ropes, straps, cargo, nets, or other suitable mechanical devices" to prevent it from dropping or shifting. Although the parties apparently regard this prohibition as technical and unimportant, the Court does not so regard it and does not believe that the Fono so intended it.
The transportation of any load of over seven cubic yards on either of Fisher's trucks would have broken a law enacted to protect innocent bystanders from being hit by rocks. We decline to trivialize this protection by redressing the failure of one contracting party to compensate• another for assisting in its infringement.
V. Conclusion and Order
Damages in the amount of $1435 are assessed against the defendant in favor of the plaintiff. All other claims by plaintiff and defendant are dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485776/ | On June 20, 1989, the Court issued an order permitting the release of this prisoner to attend boxing matches in Western Samoa.
The Court has just received a copy of an order from the Acting Commissioner of Public Safety, dated earlier in the day on June 20, denying an identical request. The Court had not been informed of this denial when it issued the original order.
This is to make it clear that the effect of the Court order of June 20 was to permit the Commissioner to release the prisoner, not to require such release if it is against the best judgment of the Commissioner.
The Commissioner, acting on the advice of the Attorney General, is free either to permit the release of this prisoner to attend the Western Samoa boxing matches or to deny such release, according to the best exercise of his own judgment.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485778/ | This is an action for eviction. Plaintiff is the sa'o of the Gi family. Defendants are nonmembers of the Gi family who are residing in a house on Gi family land.
The house was built in 1968 by Peleifofoga Temu, a blood member of the Gi family. Pele obtained a separation agreement and a Development Bank loan for the house. The Gi title was then *139vacant and the separation agreement was signed by a number of family members in lieu of a sa'o. Pele subsequently passed away and his widow, Fale Temu, lived in the house and made payments on the Development Bank loan until about 1984. After Fale had moved away the present defendants moved into the house.
Defendant Leaia Temu is the mother of the deceased Pele Temu. Leaia7s daughter, defendant Solema Temu, is Pele7 s half sister. Although neither is a blood member of the Gi family1 (Pele having been a member of the family through his father) they went on the land in 1985 with the support of at least some members of the family.
On November 4, 1985, a family member called Lotoa Gi Onosa'i purported to execute on behalf of the family a second separation agreement for Pele7s house. This agreement was in favor of defendant Leaia. It was superfluous and probably illegal: in the first place, the Gi title was not then vacant, although the incumbent sa'o was living off island; and in any case the house, which in accordance with the earlier agreement was the personal property of Pele, had presumably passed upon his death to his surviving wife and children. See A.S.C.A. § 40.0103, 40.0201.
On August 20, 1986, Fale Temu signed a document purporting to convey the house to Leaia in exchange for Leaia7s agreement to pay the balance of $6284.79 on the Development Bank loan. Leaia has since made a number of payments on the loan.
On August 31, 1986, the then incumbent Gi titleholder renounced his title in favor of Moe Malala. Gi Moe Malala then registered the title, apparently with the support of an overwhelming consensus of the family. There was in any case no formal objection to the registration, which became official on November 6, 1986.
*140Leaia and Solema rendered service to Gi Malala and lived peacefully with the Gi family for a year or two. A difference then arose with some Gi family members who lived in a neighboring house. The difference concerned some crops that Leaia, Solema, and some of their respective children had planted in an area between their house and that of their neighbors. Gi Malala ordered Leaia and Solema to remove their crops. They refused to do so, and eventually built a small sleeping house in the disputed area. The sleeping house was occupied by teenage boys and seems to have been regarded by both sides as a sort of frontier post.
One day early in 1988 Gi went to remonstrate with Solema about the crops and the house. She went into her house and got a bush knife which she brandished at him. That night Solema and Leaia invited some Tongan friends onto the Gi property. The friends had guns, with which they spent the evening shooting fruit bats.
Gi made at least one attempt to settle the dispute peacefully, calling together some older members of the family including two who had been among Leaia's closest allies in her dispute with her neighbors. Gi suggested that the only solution was to expel the two non-family members from family land; he relented, however, when a distinguished talking chief of the family got down on his knees to apologize for the conduct of Leaia and Solema. Gi then agreed that the two could remain if the house and crops were removed. This was not done.
On June 11, 1988, Gi ordered Leaia and those residing with her to vacate the house in which they were living. They ignored this demand, which eventually led to the present action.
At the conclusion of the trial the Court observed that controversies such as this one are better settled within the family than in court. The Court urged defendants and those family members who took their side in the controversy to go to the sa'o and to apologize, to destroy the offending structure, and to cause no further dissension. The Court urged Gi to find it in his heart to accept such an apology. The record was left open for a period of thirty days for a report by the parties on the results of any such efforts at settlement.
*141When two months had gone by with no word from the parties, the Court issued a memorandum to counsel requesting a report on efforts at settlement. Counsel for plaintiff filed a letter from his client, the sa'o, to the effect that the sleeping house had been removed but that there had been no apology and that defendants had continued their quarrel with the neighboring family members and even cleared new areas within the disputed land. Counsel for defendant has filed no response to the Court's memorandum.
Without making any finding with regard to the truth of the allegations in the report filed by Gi, we conclude that there has been no settlement and that the Court must render its decision.
Defendants advance two principal argúments against Gi's right to evict them. First, they suggest that the land may not belong to Gi at all. Lotoa Gi Onosa'i testified that the land really belonged to another family; that her late father, Gi Onosa'i, effectively appropriated the land for the Gi family; and that before he died he conveyed sole authority over the land to her. This argument is inconsistent not only with the testimony of every other witness, but also with Lotoa7s own affirmation in the 1968 and 1985 separation agreements that the land belonged to the Gi family. A unilateral and apparently secret attempt by Gi Onosa'i to give his daughter sole authority over family land to the exclusion of his successors in the Gi title would seem to have been inconsistent with Samoan tradition, and would certainly have been contrary to the statutory law of American Samoa with regard to alienátion of family land. See A.S.C.A. §§ 37.0201 et seq. The idea seems to have been an afterthought by Lotoa, whose testimony makes it clear that she regards herself rather than Gi Malala as the principal authority in the family. She is wrong on both counts.
The defendants also contend that Gi cannot expel them from family land without further consultation within the family, and that such consultation must include consultation with themselves personally. We reject this contention.
It is true that a matai should ordinarily consult with the family, including especially those family members directly affected, before taking land assigned to a family member in order to use *142the land for some other family purpose. Talili v. Satele. 4 A.S.R.2d 23 (1987); cf. Fairholt v. Aulava, 1 A.S.R.2d 73 (1983). Nor can a matai seize on minor disagreements as a pretext for the expulsion of family members who have otherwise rendered long and loyal service. Tago v. Faleulu, 3 A.S.R. 370 (1958). But these exceptions prove the general rule that a sa'o has the authority to make decisions about family land. "Ordinarily an assignment of land ... by the matai to a family member is for the latter's lifetime, and it cannot be revoked and the family member deprived of its possession, except for good cause." Taesali v. Samuela. 3 A.S.R. 359, 361 (1958) (emphasis added). "[W]ith respect to the termination of occupancy rights . . . only the matai would have this power." Malaga v. Alaga, 4 A.S.R. 735, 738 (1966). Courts will not interfere with the decisions of a sa'o unless they are arbitrary, capricious, illegal, or abusive of discretion. See Fairholt, supra.
In the present case Gi attempted to solve a dispute between two groups of people living on his land. There is no evidence that he was motivated other than by a desire to perform his principal duty as the sa'o, the preservation of peace within the family. The defendants responded by ignoring and disobeying his legitimate directives, threatening him with a knife, and sponsoring a shooting party. Under the circumstances we cannot say that the order of expulsion was without good cause, illegal, arbitrary, capricious, or abusive of discretion.
Our conclusion is bolstered by the evidence that Gi did consult with a number of family members on at least one occasion. Contrary to defendants' suggestion, the obligation of a sa'o to discuss family decisions ■ with family members cannot be reduced to a formula. See Tiumalu v. Scanlan, 4 A.S.R. 194 (1961); Haleck v. Tiumalu, 3 A.S.R. 380 (1959). In this case the sa'o acted reasonably.
Finally, we note that the defendants are not blood members of the family. Although we decline to hold that persons living within a family who are not blood members can always be expelled at the whim of the sa'o, it is axiomatic that non-members do not enjoy the benefit of the strong presumption that a family member may live on family land.
*143"[U]nder Samoan customs (faa-Samoa) . . . communal family land is owned by the Samoan family as such and each member of the family has a right to the use of a portion of the family ' land.This right to use family land has also been held to be a proprietary right within the due process clause .... [A] family member has such a proprietary right to use family land whereas [a non-family member] by definition has no such right.
Lutu v. Taesaliali'i. LT No. 20-88, 11 A.S.R.86, 94 (1989), quoting Tuanaitau v. Paogofie, 4 A.S.R. 375, 381 (1963). See also, e.g.. Mageo v. Viena, 1 A.S.R.2d 83 (1983); Fa'amuli v. Leiato, 3 A.S.R. 308 (1957); Lam Yuen v. Leomiti. LT 3-87. The behavior of the present defendants would have constituted good cause for the expulsion of a family member; a fortiori, it was' sufficient to justify Gi*s decision to expel these two non-family members.
The situation is complicated, however, by the separate ownership of the house. Since Fale Temu had no power to convey any interest owned by the surviving children of Pele, it would appear that the house now belongs partly to these children and partly to Leaia. The children of Pele, who are Gi family members and who have not been shown to have done anything meriting expulsion from family land, have the right to live in the house so long as they render service to Gi and. respect his authority. Leaia may have a right to compensation from the children of Pele for her interest in the house. If no children of Pele wish to occupy the house---- and assuming that it is still not possible for the parties to reach a settlement whereby the defendants sincerely apologize to Gi and Gi agrees to let the defendants live in the house so long as they respect .his authority---the best solution might be for the Gi family to purchase the house from its owners. Since no children of Pele are parties to this action, however, these questions- do not presently admit of judicial resolution.
Judgment will issue for the plaintiff ordering eviction of the defendants from the land Utumoa and enjoining them from entering upon the land. Execution of the judgment will be stayed for thirty days. Unless plaintiff agrees otherwise, defendants must vacate the land by July 27, 1989.
*144It is so ordered
[At a hearing held August 22, 1989, on defendants' motion for relief from the judgment under T.C.R.C.P. Rule 60(b), the Court held that this finding of fact was partly incorrect. Defendant Solema Temu is a blood member of the Gi family. The Court denied the motion for relief from judgement on other grounds and did not reverse those parts of this opinion which apply to expulsion of family members from family land. See Gi v. Temu, 12 A.S.R.2d _, LT No. 22-88, Opinion and Order on Motion for Relief From Judgment, issued August 24, 1989.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485779/ | I. Facts
1) This case concerns a certain improved parcel of real property located at the Pago Pago *145International Airport and owned by plaintiff American Samoa Government (hereinafter "ASG.") An aircraft hangar was constructed on this parcel during the 1970s. This parcel and the improvements thereon are hereinafter referred to as "the premises."
2) In or about August of 1988 defendant Samoa Aviation, Inc. (hereinafter "Samoa Air") agreed to purchase the American Samoa assets of a bankrupt airline, South Pacific Island Airways, Inc. (hereinafter "SPIA"). The premises that are the subject of this action had previously been leased by SPIA, and some or all of the assets about to be acquired by Samoa Air were housed in the hangar on the premises.
3) The pending acquisition of SPIA's American Samoa assets apparently did not, however, include SPIA's leasehold interest in the premises and/or any property interest SPIA might have had in the hangar located thereon. (This may have been because the lease had terminated automatically with SPIA's bankruptcy, or it may have been because the leasehold interest had been inadvertently omitted by the Bankruptcy Trustee from the list of such assets.) Samoa Air therefore initiated negotiations with ASG to lease the premises.
4)Pending the transfer of assets to Samoa Air by the Bankruptcy Trustee, ASG was using SPIA's American Samoa equipment and facilities --- that is, the assets that were to be transferred to Samoa Air and the hangar in which they were housed --- to provide the inter-island air service that had formerly been provided by SPIA.
5) On or about December 20, 1988, the transfer of SPIA's assets to Samoa Air, including those housed in the hangar, became effective. ASG then ceased its interim airline operations and allowed Samoa Air to go into immediate possession of' the premises pending negotiation of a lease.
6) After initial negotiations, a representative of then-Govemor . Lutali advised Samoa Air that the lease would be on a month-to-month basis. ASG employees, working at the direction of the Governor, prepared a document embodying a month-to-month lease agreement. The Governor then signed this document, but it was not at this point presented to Samoa Air.
*1467) When Samoa Air was offered the month-to-month lease, its representatives requested a five-year lease instead.
8) Samoa Air negotiated with then-Governor Lutali's legal advisor, Lyle Richmond, and Assistant Attorney General .Robert Dennison for the five-year term. Governor Lutali was consulted by Richmond and Dennison.
9) As negotiations concerning the Samoa Air lease progressed, Governor Lutali and his legal advisor Richmond were also contacted on a number of occasions by George Wray. Mr. Wray is or was president of the bankrupt SPIA, and has organized another corporation ("Airsystems, Inc.") that is interested in acquiring the premises. He raised a number of objections to the proposed Samoa Air lease.
10) After a meeting with Dennison and Richmond at which the question of a five-year lease to Samoa Air was discussed at length, Governor Lutali approved the proposal.
11) The document that had been signed by the Governor was then revised, while still in the possession of ASG and before any presentation to Samoa Air, by the substitution of a new page 2 containing a five-year term instead of the month-to-month term.. A provision may also have been added on page 2 providing that the lease was subject to any claim of the Trustee in Bankruptcy of SPIA. (Mr. Wray had attempted to persuade-Richmond that the SPIA lease might still be in effect despite the Trustee's omission of the premises from the list of assets.) It appears that the date---December 30---was also filled in at the same time the new page 2 was inserted. The date is on page 13, just above the Governor's signature.
12) The Governor, however, did not re-sign the document after the replacement of page 2.
13) The document embodying the five-year lease agreement, as drafted and revised by ASG employees Richmond and/or Dennison and bearing the signature of Governor Lutali, was then presented for the first time to Jámes Porter, President of Samoa Air, on December 30, 1988, at the Governor's *147office. Mr. Porter immediately signed the lease agreement.
14) On or about January 5, 1989, the executed lease agreement was delivered to the Office of the Territorial Registrar for recordation. The lease was recorded the same day by an employee of the Registrar's Office authorized to receive and record such documénts.
15) January 5, 1989, the day the lease was recorded, was the first business day after Governor Coleman had replaced Governor Lutali. (December 30, 1988, the date on the lease and the day on which Richmond had presented it to Porter and Porter had signed it, had been the last business day of the Lutali administration.) The person who delivered the lease to the Registrar's Office had been an employee of Governor Lutali and may or may not have been retained by Governor Coleman. He had insisted that the lease, along with some other documents he was delivering, be recorded immediately. According to the testimony of Assistant Territorial Registrar Starr Schuster, the Registrar's Office employee with whom he dealt had complied but had complained to Schuster about being "harassed."
16) Mr. Wray, the former SPIA president who had contacted Lutali administration officials with objections to the proposed Samoa Air Lease, also contacted Governor Coleman "many times" to the same effect. He testified that Governor Coleman had told him there might be problems with leases being approved in the last days of the Lutali administration and that the new administration would need to take a hard look at such leases, or words to that effect.
17) On January 14, 1989, Governor Coleman wrote a letter to Samoa Air president Porter, telling him that "[i]t appears that there are certain areas that may present questions and possibly problems in said lease transaction" and asking Samoa Air "not to rely too much at this time" on the lease.
18) In mid-January 1989, Assistant Registrar Schuster began "reviewing" the lease agreement. She testified that she initiated her own review of the lease without being asked to do so by officials of the new administration, by Mr. Wray, or by *148anyone else. She testified that she did, however, call the Attorney General's office to discuss what she saw as problems with the lease, and that she also had a brief encounter with George Wray in which he said something about the lease. Schuster did not, however, discuss the matter with her immediate superior, Territorial Registrar Pelema Kolise.
19) On February 6, 1989, during a ' two-day period when the Territorial Registrar was on leave and Ms. Schuster was serving as Acting Registrar, she decided she should cancel the previous recordation of the Samoa Air Lease. This she did by writing "VOID" across the stamp, date, and signature that had indicated recordation by the Registrar's Office.
20) Ms. Schuster testified that the Registrar's Office had never previously, to her knowledge, attempted to cancel the recordation of a document that had already been recorded. The Court asked why she chose to inaugurate a new activity for the Registrar's Office --- the cancellation or retroactive "rejection" of registrations --- during a two-day stint as Acting Registrar without prior discussion with the Territorial Registrar himself. She merely shrugged good-naturedly and repeated her earlier testimony that she had told the Registrar about it afterward.
21) On the same day Ms. Schuster "rejected" the registration, she wrote a letter to the Attorney General saying that she had done so. She gave three reasons: (1) the absence of a specific clause in the lease providing for a land valuation index adjustment on the rental rate, as required by A.S.C.A. § 37.2020; (2) "Page 2 of the agreement is questionable" (the text began too high on the page); and (3) "Who is the LESSEE here?"
22) The lease designates "Samoa Aviation" as the lessee. The space designated for the signature of a representative of the lessee was signed by James Porter. . (The full text of this section, including Porter's signature, is "LESSEE: By: James Porter.") As Ms. Schuster knew at the time, documents in the Registrar's office listed James Porter as an officer of Samoa Aviation, Inc. As she testified at trial, her questions about who the lessee was therefore boiled down to the omission of "Inc." on the lease document.
*14923) On April 7, 1989, Attorney General Fa'alevao wrote a letter to Mr. Porter demanding that Samoa Air vacate the premises. He stated that "[i]t was this failure to include Provisions of 37.2020 ASCA [the inflation adjustment clause] that caused the Office of Territorial Registrar to reject the document. He also stated that Samoa Air had not paid any rent. (Mr. Porter says Samoa Air has in fact paid all rents due under the lease agreement, and ASG makes no contrary allegation in this action.)
24) On May 4, 1989, Mr. Porter responded to the Attorney General. He wrote that in his opinion Article IV of the lease, "requiring the lessee to comply with all territorial authorities in force pertaining to the premises," effectively incorporated the inflation adjustment clause. He also stated that all rentals were current.
25) On May 17, 1989, the Attorney General again wrote to Porter. In this letter he said that ASG had "determined that the hangar itself ... is the property of SPIA," and that "SPIA then sometimes ago transferred its interests therein to Airsystems, Inc. [Mr. Wray's new company]." Samoa Air was thus "advised that as far as any further occupancy of the said hangar, Samoa Aviation has to make arrangement with Airsystem, Inc. officials." (ASG does not base the present action upon a claim of ownership of the hangar by Airsystem, Inc. Rather, ASG relies on its own undisputed title to the land on which the hangar is located and on the alleged flaws in the lease of the premises --- the land and its improvements, including the hangar---' to Samoa Air.)
26) A few days later Samoa Air brought an action against ASG, Mr. Wray, and Airsystems, Inc., claiming that Mr. Wray and Airsystems had entered onto the premises in violation of the Samoa Air lease. Samoa Air demanded, inter alia, a preliminary injunction against further entry upon the premises by Wray or Airsystems. After Samoa Air had presented its evidence at a hearing on its motion for a preliminary injunction, ASG, Mr. Wray, and Airsystems stipulated to the injunction. At the time of the stipulation Mr. Wray and counsel for ASG indicated their intention to bring a summary action for eviction against Samoa Air.
*15027) On June 16, 1989, ASG brought the present action for eviction, invoking the summary proceedings provided by A.S.C.A. § 43.1301. Trial of the case was held on June 26, 1989.
Conclusions of Law
It would be disingenuous not to observe that this controversy, while presenting questions of law and fact appropriate for judicial resolution, is seen by many of those involved as a political dispute. Counsel and witnesses for ASG directed the Court's attention to what they regarded as the unseemly haste with which the lease was concluded in the last days of the Lutali administration. Samoa Air, in turn, wafted suggestions of chicanery and vindictiveness within the new administration. The Court's job is to try to decide the legal questions without passing judgment on the political ones.
lutali was Governor until noon on January 3, 1989. During that time he was legally entitled to exercise all the powers of the dffice, including whatever power the Governor has to make contracts that áre' binding on 'ÁSGlN. Coleman1 has’ been Governor from' that¡ 'time forward and has the right to exercise the same powers to their full ’extent-.,' It': should; go ■ without saying that' whethér the1'Court:1 thinks- either the former or present' Governor, -or-.; his subordinates, acted wisely-or unwisely does not,matter.. The only question is whether ASG and'Samoa" Air have a-r contract. “■ • •• .
:: ASG •' urges " that ' the -• five-year lease never became•;^'effective ’ because -A.S.C.A. §.: ‘3'0:.0131 requires any transaction' by which a corporation: acquires an interest in land to be "approved in writing; 'by'-- the "Governor. "'■ ASGVcontends -that since a- -leasehold--"interest is. -'-an interest in ' -'land," and'-sincéyr'tae Governor" "did-" not""' re-sign: the ' lease" document ; svfter-' his subordinates ’had- revised' Page - 2y this .státutóry-• requirement was hot mfet-.;--: "" ■'
■- '•■'V'Ássimiing that'-oné who takes a five-year lease' "acquires • an - interest in- land'? 'within'-'the', meaning': of AÍS.C.A. §-‘30.0131, Ve conclude that the lease: does meet the! statutory" requirement of-approval in1: writing by-‘’the.'Góyemor;'■ - • " " ■' v ■
The if iv'é-year lease presented-by ASG -to Samoa-Air did in fact contain the Governor's signature. *151Although counsel for ASG and Mr. Wray (who was a witness for ASG) suggested that the Governor's subordinates may have changed the lease after he signed it without his knowledge or approval, Governor Lutali himself testified that he discussed the question at length with Dennison and Richmond and that he did approve the revision. The revision he approved did not entail any changes on the signature page. We decline to construe A.S.C.A. § 30.0131 as requiring the Governor either have resigned below his original signature or to have ordered the destruction of the last page and the preparation of a new one so that he could sign again.
The document that ASG presented to Samoa Air was "in writing." The writing contained the five-year provision and also contained the Governor's signature. The Governor knew it contained both these things. The order in which they got there was up to him.
ASG also urges, however, that the lease was invalid because it did not include a specific provision for the periodic adjustment of rental payments. A.S.C.A. § 37.2020 provides that "no lease of real property owned or controlled by the government may be entered into" for more than four years unless it contains such a provision. It does not say what happens when the Government and another party nevertheless enter into such a contract. The statute does not provide, as many statutes do, that a contract violating its provisions is invalid or without legal effect. At least in a situation such as that presented by the. present case --- where the offending document was drafted by ASG itself and where the lessee has no objection to reformation of the contract (or construction of the clause requiring compliance with all applicable laws) to require periodic adjustment of the rent---the appropriate remedy would appear to be reformation or construction to conform to the law rather than invalidation.
This is consistent both with the apparent intentions of the contracting parties and with the purpose of § 37.2020. There is no evidence that the escalator clause was left out for any reason other than inadvertence. Nor does the text or context of § 37.2020 give us any reason to believe that its purpose is to punish wrongdoers by *152forfeiture rather than to ensure a fair return for the government.
Courts have been increasingly reluctant to' refuse enforcement on the ground of mere noncompliance with some regulatory law. A court may disregard the noncompliance if the regulation is intended to serve only an economic interest, and not an interest, in health or safety .... And it may infer, from the legislature's silence on the question of unenforceability when compared with explicit provisions in similar legislation, that this additional sanction is inappropriate.
Farnsworth on Contracts § 5.5 at 355-55 (1982) (citations omitted). See also Restatement of Contracts 2d § 178. Accordingly, we hold that ASG has the right under the lease, as modified by A.S.C.A. § 37.2020, to adjust the rent upward or downward for inflation at intervals of its choosing.1 It cannot, however, use its own failure to include this term in the document as a pretext for invalidation and eviction.
Finally, we hold that the lease was recorded by the Territorial Registrar on January 5, 1978 and therefore complied with the requirement of A.S.C.A. § 30.0131 that it be so recorded. We express no opinion on whether the February 6 action of the Acting Registrar would have cancelled the effects (if any) of the January 5 recordation if the lease were actually invalid. We also express no opinion, on whether A.S.C.A. § 30.0131 would have rendered the lease invalid if the Territorial Registrar had simply refused to register the document when it was presented on January 5. In this case the document *153was not invalid and it was in fact recorded.2 All the statutory requirements having been met on January 5, the lease became effective on that day and the Acting Registrar had no discretionary power to divest Samoa Air of its contractual rights on February 6.
Order
We conclude that the five-year lease is enforceable, subject to the right of plaintiff to adjust the rent upward or downward for inflation at intervals of its choosing.
Judgment will therefore issue for the defendant.
We note that ASG has already filed a Motion for New Trial, based on the Court's remarks from the bench and in anticipation of the formal entry of judgment. This motion, and any revision thereof to state additional grounds within ten days from the entry of this order, will be heard on July 21, 1989.
Due to the summary nature of these proceedings, neither counsel nor the Court has had the opportunity to do much research into the questions presented by this case. Thus far not one case from any jurisdiction has been cited to the Court by either counsel. And yet the questions presented --- particularly the question whether a contract that omits a clause required by statute is on that account absolutely unenforceable --- are of the sort on which there must certainly be precedents from other jurisdictions, some of them presumably thoughtful and persuasive.
*154In retrospect, this was not the sort of case that should have been tried ten days after it was filed. The purpose of summary eviction proceedings is to provide speedy relief for landowners against deadbeats and squatters who have no fairly arguable legal right to remain on the premises and who would otherwise take unfair advantage of the law's delay. This was clearly not such a case. The Court therefore puts counsel on notice that it will take the motion for new trial seriously, especially insofar as questions of law are concerned. Counsel are urged to provide such authorities to the Court as might have been provided at or before trial there had been more time.
Judgment will issue for the defendant denying the requested relief.
It is so ordered.
This case is somewhat different from the typical case involving the modified enforceability of contracts that fail to conform with statutory requirements, since in most such cases it is the presence rather than the absence of a particular provision that offends the law. Modifying contracts by striking clauses out presents fewer problems for courts than putting them in. In this case, however, the questions left open by the statute can be resolved by leaving them up to A.S.G. itself, which has the right to insist on a provision "satisfactory to the lessor." A.S.C.A. § 37.2020.
The requirement of the statute would presumably be even more clear if ASG had promulgated a regulation to make applicable "recognized indexes by government agencies." Although A.S.C.A. § 37.2020 was enacted in 1978 and specifically requires the adoption of such a regulation, A.S.G. has adopted none to date.
A.S.C.A. § 4.1104 provides that the registrar may "reject any instrument appearing to be illegal." A.S.C.A. § 4.1106 provides that "any person aggrieved by any official action of [the Registrar] may, at any time, apply to the High Court for direction or redress." At trial counsel for ASG urged that since Samoa Air had not directly appealed the Acting Registrar's retroactive rejection of their lease, they and the Court were bound by this action. It appears from the record, however, that Samoa Air was never directly notified of the "rejection" and did not learn of it until shortly before this action for eviction was brought. Moreover, A.S.C.A. § 4.1104 does not provide any specific procedure for correction by the High Court of errors by the Registrar; rather, it provides for a broad right to "apply to the High Court for direction or redress" and to do so "at any time." By urging as a defense to this action that the lease was in fact legal and that it should have been recorded, Samoa Air has applied for such redress. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485780/ | *155On Order to Show Cause:
On June 15, 1988, defendant Etuale was sentenced to fifteen years imprisonment for the crime of Rape. The fifteen-year sentence was suspended and the defendant was placed on probation. One of the conditions of the probation was that defendant serve five years' detention at the Tafuna Correctional Facility, during which " [d]efendant is not to participate in any work release programs or be released from the Correctional Facility for any reason, except medical emergencies, without the prior approval of the Court . . . ."
On April 5, 1989, the Court received an affidavit to the effect that on or about March 18, 1989, defendant Etuale was at large in the village of Leone. If the allegations set forth in this affidavit had been true, it would appear that the Warden of the Tafuna Correctional Facility, and/or some official or officials responsible to the Warden, had violated the Court order.
The Warden of the Tafuna Correctional Facility was therefore directed to appear in the High Court to respond to the allegation that Etuale had been released in violation of the Court order; to explain in detail the circumstances surrounding such violation, if any; and, in the event a violation were proven, to show cause why he should not be held in contempt of Court.
At the hearing and a continuation thereof, it was not proven that Etuale was in Leone on March 18. It also appeared that the warden, to whom the Order to Show Cause had been issued, had not held that position March 18. It was therefore clearly shown that the warden had not been in contempt of court.
It did appear, however, that Etuale had been in Leone on March 25 in violation of the terms of his probation. The Commissioner of Public Safety appeared at the hearing and assured the Court of his determination that such violations not occur. Accordingly, he commissioned an investigation into the circumstances of Etuale's release on March 25.
*156It appears from this thorough and honest report that several prison officials --- including the former warden, at least one guard, and a "counselor" --- have knowingly and defiantly violated court orders by releasing prisoners from the Correctional Facility in violation of the terms of their probation. If Orders to Show Cause had been directed to these persons and the facts in the Commissioner's report had been proven in court, the persons in question would have been held in contempt of court.
The Commissioner has, however, adopted regulations with regard to release of prisoners for work release and other temporary release programs. These rules are designed to ensure that Court orders are observed and that dangerous criminals are not released into the community. One of the rules --- that no prisoners whose sentences include conditions forbidding release shall be eligible for such programs---is already incorporated in the sentences in question, and is hereby made a part of this order.
The Order to Show Cause directed to the Warden is dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485781/ | We took under advisement petitioner's motion to execute that portion of the Oregon divorce judgment purporting to transfer ownership of an interest in real property located in Pago Pago, American Samoa, from respondent Lahey Godinet to petitioner Nancy Godinet.
We conclude that the Oregon court was without jurisdiction to issue such an order. "It is well settled that although a court may have in personam jurisdiction to order one of the parties to convey to the other party a deed to property in another state, it cannot directly affect or determine title to that real property." Perrv v. O'Donnell, 749 F.2d 1346 (9th Cir. 1984); see Fall v. Eastin. 215 U.S. 1 (1909). Since there was no jurisdiction to transfer title to the Pago Pago land, this part of the judgment was not entitled to full faith and credit unless it is shown that the question of jurisdiction was fully and fairly litigated in the court which rendered the original judgment. Durfee v. Duke. 375 U.S. 106 (1963). Pending a showing of such full and fair litigation --- presumably including a showing that the Oregon court was made, aware of the possibility that a transfer of land in American Samoa to Mrs. Godinet would deny full faith and credit to the American Samoa statutes regarding land ownership by non-Samoans --- we decline to enforce this part of the judgment.1
*158The Oregon judgment .did not order Mr. Godinet to execute a deed. Nor does it appear whether the Court had acquired jurisdiction over the person of Mr. Godinet (as opposed to in rem jurisdiction over the marriage status) so as to give it jurisdiction to issue such an order.
Accordingly, the motion for an order in aid of judgment is denied insofar as it requests an order to transfer the Pago Pago land to Mrs. Godinet.
In the course of our research we have also come across authority for the proposition, contrary to our ruling in an earlier stage of this proceeding, that a court may modify a foreign alimony judgment (at least with respect to those portions of the judgment that have not yet become due) notwithstanding the entitlement of the judgment to full faith and credit. See, e.g.. Paolino v. Paolino, 420 A.2d 830 (R.I. 1980); Overman v. Overman. 514 S.W.2d 625 (Mo. App. 1974). In an earlier hearing we concluded that Mr. Godinet's current circumstances did not make it possible to pay the full amount ordered by the Oregon judgment, but denied reduction on the ground that full faith and credit precluded it. We do not propose to modify this judgment on our *158own motion, but do feel that we should call the contrary authority to the attention of counsel. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485782/ | On or about September 1, 1988, plaintiff Liliu Maulupe, accompanied by her mother Lialia Maulupe, drove to "Pago Pago International Airport" to await the arrival of her father, Saofaigali'i Maulupe, who was returning from an off-island trip. The vehicle she *2was driving was registered in the name of her father. Liliu testified that as she approached the intersection by the Army Reserve compound, she noticed a pickup'truck speeding towards the intersection. However, she continued towards the airport anticipating that the pickup would give way and stop in compliance with the posted stop sign at the intersection. As it happened, the pickup truck ran the stop sign and collided into the side of the Maiilupes’ vehicle. Both plaintiffs, Liliu and Lialia Maulupe, suffered ceftaih injuries, while their vehicle was later declared a total loss.
The pickup belonged to defendants Jack and Ese Liu who had been travelling overseas for a month and who were also returning to the territory on the same flight as Mr. Maulupe. Liu had taken out compulsory third party liability insurance on the vehicle as required by A.S.C.A. §§ 22.2001 et seq. with defendant American International Underwriters (South Pacific) (hereinafter referred to as "A.I-U."). However, the pickup truck at the time of collision was driven by defendant Isapeli Vaenuku, an unlicensed driver.
Jack Liu testified that defendant Vaenuku was employed in his shop and that she was a very good employee. He had sponsored her for immigration purposes and he had also furnished .her living quarters, situated to the rear of his family residence, which Vaenuku occupied with her own family. Liu also testified that he had several business vehicles which he parked at home after hours. He further testified that defendant Vaenuku’s duties did not require her to drive nor had she ever driven any of these vehicles before. Liu also stated that he started his business at home and that'he continues to maintain his old office space in the house for. business use. This room he kept locked and at the same time he kept therein a locked cabinet for all'his vehicle keys. Liu further testified that while he and his wife were away, he had arranged for his sister-in-law to open and close Ins business premises each day. He testified that his sister-in-law would each day use the said pickup truck for these purposes and that she had, at the time, the vehicle key with her. Liu discovered, however, that Vaenuku had in fact obtained the spare key which was kept in the locked cabinet. This defendant had admitted to him that she had been under the influence of alcohol when she decided to take the pickup truck and that she had forced the locks to the office and key cabinet.
Liability ■
' There is no doubt that defendant Vaenuku was negligent and that her negligence was the proximate cause of the personal and property *3injuries to plaintiffs. In so concluding, we rule out the insurance company’s argument of comparative negligence on the part of plaintiff Liliu Maulupe. Although- this plaintiff had noticed the approaching pickup truck and admitted hurrying to the airport knowing that her father’s plane had landed, we hold that it was reasonable for her in the circumstances to expect that the pickup truck would come to a halt and give way. The only real questions before us are whether defendant Liu may be held vicariously1 liable to plaintiffs and whether A.I.U. is liable as insurer within the provisions of A.S.C.A. §§ 22.2001 et seq.
We conclude on the evidence that Jack Liu is not vicariously liable to plaintiffs for the negligent acts/omissions of defendant Vaenuku. The latter had simply taken the pickup truck for a joyride with friends. Her actions were unauthorized and without any purpose referable to the fact that she worked for Mr. Liu.
With regard to A.I.U., the insurance company contested the existence of a policy on the ground that its insurance contract with Jack Liu had expired the day before the collision. The evidence reveals that A.I.U. had notified Liu thirty days beforehand of the pendency of-the contract’s expiration date. Its notice, which invited renewal, was sent to Liu’s office while he was off-island. Alternatively, A.I.U. argues that even if the policy had not expired, coverage would not be available in the circumstances as defendant Vaenuku was not an insured permittee within the provisions of the compulsory insurance statute. We find merit in this argument. Accordingly we need not address the question of whether or not there was an insurance contract in effect.
Coverage mandated by the compulsory insurance statute includes "any . . . person’who uses the [insured] vehicle . . . with the express or implied permission of the' named insured against loss from liability imposed by law for damages." A.S.C.A. § 22.2003(2). There is no evidence of express consent in this matter; however, counsel for plaintiff contends that implied permission may be inferred from an employment relationship, and, in addition, from circumstances which essentially depict a setting of household familiarity and therefore the sort of acquiescence typical with intra-family borrowing.
*4"Implied" permission resulting in extending liability insurance coverage to the non-owner driver, within the meaning of the enactment, involves an inference , from a course of conduct or relationship between the vehicle owner and driver in which there is mutual acquiescence or lack of objection under circumstances signifying consent. Sataua v. Himphill, 5 A.S.R.2d 61 (1987); Toleafoa v. Sioka, 5 A.S.R.2d 18 (1987). It is permission which may be inferred from circumstances whereby the owner may be seen as having tacitly consented to the vehicle’s use. For example, a showing that the owner had tolerated the driver’s past use of his vehicle may sufficiently indicate permission to the fact finder. By requiring the extension of compulsory insurance coverage to include the driver with "implied permission," the Legislature was obviously concerned with eliminating any opportunity for an otherwise acquiescent vehicle owner to deny, based on his subjective intentions, the existence of permission after the fact of third-party injury. However, that consent or permission, whether expressed or implied, must be effectively shown. As stated in Sataua v. Himphill, ”[t]he 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." 5 A.S.R.2d at 68.
On the evidence presented, it is difficult to find any basis for concluding that defendant Jack Liu tacitly consented to use of his car. The driver Vaenuku’s actionable use of the pickup truck arose under the following circumstances: the owner, Jack Liu, and his wife were off-island; in his absence, the key to the truck was given by Jack Liu to his sister-in-law; his sister-in-law retained possession of that key; the driver drove the truck by using the spare key to the vehicle; she obtained the spare key by breaking two different locks within Liu’s premises; her use of any of Liu’s vehicles was unprecedented. Against this, plaintiff urges us to draw the appropriate inferences of permissive use from the relationship of employment and the household relationship which plaintiff contends existed between the parties. We are unable to find implied permission within the meaning of A.S.C.A. § 22.2003(2).
On the foregoing, the complaint against Jack Liu, Ese Liu, and A.I.U. shall be dismissed. Having concluded actionable conduct on the part of defendant Vaenuku, we next consider damages.
Damages
As a result of the collision, plaintiff Lialia Maulupe suffered a laceration to her head requiring stitches and she also experienced pains *5about the head area and on her right arm. She attended an outpatient clipic over the following two week period and her primary complaint was of a lot of pain. She also missed a few days at work claiming $94.80 in lost income. We assess Lialia Maulupe’s damages for pain and suffering in the amount of $1500 and in addition she is awarded $95.00 in lost income — a total of $1,595.00.
Plaintiff Liliu Maulupe suffered cuts and abrasions to her head and facial area as the result of being thrown against glass. She y/as admitted for two days of observation and, fortunately, she had escaped potentially serious injury', having worn her seat belt at the time. Liliu also attended hospital op an outpatient basis over the next two weeks for pain experienced to her back and head area. She lost work days also for which she claims $104.00. We assess Liliu Maulupe’s damages for pain and suffering in the amount of $1500 and allow damages for lost income in the amount of $104 — a total of $1,604.00.
Saofaigali’i Maulupe prays for damages in the amount of $4,740 for vehicle loss plus an additional $3000 for "alternate transport and inconvenience." He testified that his vehicle was declared a total loss and that after the accident, it was towed to a mechanic’s yard where it remains today. He also testified that he purchased the said vehicle in 1985 and together with finance charges he had paid over $10,000 for it. We find the amount of $4,740 claimed as reasonably reflecting the value of the vehicle at the time of loss. We find no basis, however, to sustain plaintiffs additional claim of $3,000 for alternate transport and inconvenience. Liu allowed plaintiff the use of a vehicle for a period of one week after the collision. Mr. Maulupe purchased another vehicle two months after the collision. Taking into account his duty to mitigate damages, we allow Mr. Maulupe the additional sum of $500 for loss of use.
.On the foregoing, we dismiss the complaint as against Jack and Ese Liu and A.I.U., and plaintiffs take nothing thereby. Judgment will enter against defendant Isapeli Vaenuku in favor of plaintiffs as follows: Lialia Maulupe, damages in the amount of $1,595.00; Liliu Maulupe, damages in the amount of $1,604.00; and Saofaigali'i Maulupe, damages in the amount of $5,240.00.
It is so Ordered.
There was simply nothing in the evidence on which to base a claim of primary liability on the part of Mr. Liu. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486344/ | Opinion and Order:
In this criminal prosecution, plaintiff American Samoa Government ("ASG") charged defendant Theresa Fanuaea Gurr Leiataua ("Leiataua") with two counts of larceny or fraud, in violation of A.S.C.A. § 28.0111. These acts were allegedly committed from September to October 1992, and in January 1993, when Leiataua was an officer of the Development Bank of American Samoa ("DBAS"). The lengthy bench trial commenced on May 23 and concluded on June 5, 1995. Leiataua and counsel for both parties were present throughout the trial. The court, having heard testimony and considered the evidence, and pursuant to T.C.R.Cr.P. 23(c), makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
Leiataua was employed as the Vice President for Loans at DBAS in July 1988. In January 1993, in accordance with A.S.C.A. § 28.0103(b), Leiataua was appointed President of DBAS by the Governor of American Samoa and confirmed by the Senate. Prior to her employment by DBAS, she worked for the American Savings and Loan in California for about 13 years, including experience as an assistant branch manager for several years and as a branch manager for the final two years, 1985-1987.
DBAS makes direct home loans, whereby it pays the invoices submitted by the suppliers of the building materials and the contractors performing the construction. DBAS further guarantees the payment of direct home loans made in this manner for residential construction by the local commercial banks, either the Amerika Samoa Bank ("ASB") or the Bank of Hawaii ("BOH").
On December 27, 1990, while Leiataua was still the Vice President for Loans, she submitted a request to DBAS for a direct loan of $75,000 for the construction of a residence on the Gurr family's land in the area known as Maloata on the north shore near the western end of Tutuila Island, American Samoa. This amount is the maximum for both direct home loans and guaranteed home loans under DBAS' loan policies.
*208Leiataua's loan file at DBAS contains a letter, dated June 12, 1991, to Leiataua, stating that on March 27, 1991, DBAS' Board of Directors had approved her "application for a guaranteed home loan," subject to providing adequate security by a mortgage of the land and residence and to obtaining credit approval by either ASB or BOH. This form letter calls for leiataua's signature as the Vice President for Loans and, perhaps for that reason, is unsigned either by her or anyone else.
More importantly, the minutes in evidence of DBAS's Lending Committee and Board of Directors for 1991 do not show any action taken by either body on Leiataua's loan application. Both sets of DBAS's bylaws in effect during this period require the Lending Committee to examine loan applications, make recommendations to the Board for action on the applications, and require the Board to examine and record in minutes the action it takes on all loan applications.
Leiataua claims that during May through July 1991, the Board imposed a freeze on disbursing funds for direct home loans, but the minutes in evidence of the Board for 1991 do not record that the Board either imposed or lifted any freeze on such disbursements. In any event, for that or some other reason, Leiataua decided to apply for a separate direct home loan of $75,000 from ASB. She submitted this application on July 15, 1991, more than six months after her loan application to DBAS. ASB's Lending Committee approved the loan in this amount on July 24, 1991, with terms at 11.5% interest per annum and 120 monthly installment payments of $1,054.46.
On the following day, July 25, 1991, Leiataua signed a "Master Note for Multiple Advances" with ASB in the principal amount not to exceed $75,000, maturing on January 21, 1992, and end-of-month interest payments at the rate of 11.5% per annum on the unpaid balance of the amounts advanced.1 Inexplicably under the evidence, an ASB real estate lending officer then permitted Leiataua to draw down the entire loan amount within seven weeks, without any underlying invoices or other documentation of actual construction expenses for the house.
*209On My 25, 1991, Leiataua was allowed to draw $61,190 from the ASB loan, of which $1,190 was used to pay the loan fee and attorney's fee and the remaining $60,000 went directly by cashier's check to Leiataua.2 This same day, Leiataua endorsed the $60,000 check and gave it for safekeeping to her brother Bernard Gurr ("B. Gurr"), who was then the chief executive officer of the American Samoa Government Employees Federal Credit Union ("ASGEFCU"). B. Gurr deposited the check proceeds in a share account in his name at ASGEFCU and withdrew $2,000 from the account for Leiataua's immediate use and was to hold the $58,000 balance for her. That night, she departed American Samoa on a trip to Los Angeles.
Apparently Leiataua gave the $2,000 to a cousin in California to purchase furniture. Despite telling H.G. Flores ("Flores"), Executive Vice President of ASB, in a February 4, 1992, meeting, that during this trip, she purchased building materials for her house and stored them with her brother, she actually merely priced the materials. She also told Flores that the two $500 draws were also used to purchase materials, and that the last draw was used for interest payments during the construction phase of the loan, shipment of building materials to American Samoa, and land grading. She further told him that the grading was not yet completed, because only one operator would take the needed heavy duty equipment to her remote village, but in actuality his equipment had broken down and then was still in disrepair.
Meanwhile, B. Gurr, instead of safeguarding Leiataua's loan funds, rapidly depleted the $58,000 to his personal ends. By September 30, 1991, just two months after receipt of the funds, he had spent the entire amount, except for a $148.86 share dividend credited to the account on that date. On October 31, 1991, he withdrew this meager remaining amount, leaving the account with a zero balance.
Leiataua deposited the proceeds of the remaining three cashier's checks in her personal checking account at BOH. These funds were commingled with funds from her paychecks and other sources. She spent some of these funds on loan payments to ASB, and for furniture and cabinets for her house, but most of these funds were spent on personal transactions unrelated to the construction of her house, and none of the funds were spent on building materials. By February 13, 1992,' the balance in this *210personal account was reduced to $156.94.
On October 23, 1991, Leiataua submitted an application to ASG's Development Planning Office ("DPO") for a land use and building permit for her proposed residence.3 DPO issued the permit on November 1, 1991, but the original was never entered into evidence. Despite the issuance of the permit, no residence or other structure has been constructed on the site. The work done was limited to excavating an access road from the main road and some site clearing and grading. On July 9, 1993, DPO inspectors noted that the site has since become revegetated. Leiataua cites the 1991 DPO permit's fourth condition as the reason for the lack of further construction. This condition, which appears in DPO's official copies, postponed construction for two years after leveling the site.4
In January 1992, Leiataua resolved to order the building materials and enlisted the assistance of her brother Peter Gurr ("P. Gurr"). She explained that despité the construction delay condition, and her mother's reluctance, she was still hopeful that with the concurrence of her brothers and sister, she could persuade her mother to allow construction of her residence elsewhere on the family's land at Maloata.
*211At her request, B. Gurr provided $50,000.5 Cloaked with his chief executive officer's position, B. Gurr either directly or in some manner indirectly used the ASGEFCU savings account of Lisona Leiataua, Leiataua's husband, to fund this purpose.6 In addition, P. Gurr contributed $40,000, $25,000 for Leiataua's order due to loans she had previously made to him and $15,000 for his own order. He obtained these funds from an insurance settlement paid for storm damages occurring during Hurricane Val in December 1991.
Recruiting Jack Yamaguchi, a stateside friend of P. Gurr, an order for building materials, totaling $85,141.89, including freight and other charges, was processed by a Washington state supplier on or about February 26, 1992. The materials were consigned to T & T, Inc. ("T & T"), to the attention of P. Gurr, who was then this company's general manager. They arrived in American Samoa on April 14, 1992, and upon payment of the import excise tax by T & T, were released to P.. Gurr on or about April 24, 1992.
P. Gurr stored Leiataua's materials at T & T’s premises and took his materials elsewhere. Later, due to Leiataua's inability to proceed with construction of her residence, the decision was made to sell her materials before they deteriorated and in light of the demand for them created by Hurricane Val. Most, if not all of these materials were sold by the end of February 1993 to several local building materials suppliers and some buyers who passed by T & T's premises. Specifically, Tasi Asuega, T & T's principal owner and a Gurr relative, stated that he bought a large amount, paying about $10,000 in cash and still owing about $20,000, which he intended to pay by allowing Leiataua to use his heavy equipment *212when she started construction.7
On June 7, 1993, Leiataua told DBAS' auditors that prior to ASB's contacts with her in July 1992 concerning her loan with ASB, she sold the materials purchased off-island back to suppliers before they rotted and deposited the proceeds in a six-month certificate of deposit. On the same day, however, she told the attendees at DBAS' Executive Committee meeting that she sold the materials to local suppliers, at a profit, and the funds were deposited in a savings account at the American Savings and Loan in Buena Park, California. In actuality, Leiataua received little, if any, of the sales proceeds.
On February 6, 1992, Flores, in his capacity as Vice President of ASB, and concerned about the absence of construction or building materials, and lack of insurance covering loss of the materials, advised Leiataua in writing that ASB required her: (1) to provide an insurance policy of at least $63,000 covering loss of the materials she had purchased for the residence, naming ASB as the loss payee, and to state the exact location of the materials; and (2) to open a savings account at ASB in the minimum amount of $30,356.18, representing the $11,862.18 loan advance she received on September 12, 1991, plus $18,494, the difference between the loan amount and total estimated construction cost. The funds were to be transferred immediately from an existing savings account or later when an existing certificate of deposit matured, if she advised ASB of that maturity date.
Leiataua disclaimed receipt of this letter, even though it was correctly addressed. In any event, she admits to receipt of a later letter, dated July 21, 1992, in which Flores notified Leiataua that she had not complied with the February 6, 1992, directions and was also delinquent in her loan payments, and had until August 6, 1992, to comply with the requests and bring her loan payments current. Leiataua, in response to receipt of this notice, contacted Flores and told him that her loan payments to ASB were current through July 1992.8
*213In September 1992, Flores once more notified Leiataua that the loan was still in default, but she again refuted the delinquency. Frustrated by ASB's stance, Leiataua decided to free herself from this loan. Other factors, however, were surely involved. Her residence was not constructed or under construction. Her land use and building permit would expire on October 31, 1992, and perhaps, in any event, she was stalled from construction by government officialdom until November 1, 1993. More important still, she did not have any building materials. Thus, she could not comply with ASB's demand to know the location and be insured against loss of the materials, and she realized that her good standing with ASB was in serious jeopardy and coming to an end. However, she was without immediate means to repay ASB. She did not have in savings or elsewhere sufficient proceeds, if any at all, from her brother P. Gurr's sale of any budding materials she may have purchased in early 1992. She knew that she had spent a substantial portion of the ASB loan proceeds on items unassociated with construction of her proposed residence. Most important, she knew that she had insufficient funds at ASGEFCU to buy out her ASB loan. She either knew that her brother B. Gurr had embezzled most of her ASB loan proceeds, or at the. very least she truly believed that these purchase funds came from her ASB loan proceeds still in B. Gurr's hands for safekeeping. She could also obtain more advantageous loan terms from DBAS — a term of 20 years, with 11% interest and monthly payments of approximately $774, compared to 10 years, with 11.5 % interest and monthly payments of approximately $1,054 under her ASB loan.
Shortly after her contact with Flores in September 1992 regarding the status of her ASB loan, Leiataua asked Manu Meredith ("Meredith"), who was then DBAS's President, to approve and direct purchase of her ASB loan by DBAS. Apparently, on the strength of the loan approval letter of June 12, 1991, or his knowledge or belief that by then that Leiataua's application for a direct DBAS loan had been properly approved, Meredith sent written directions on September 30, 1992, to DBAS's legal secretary for preparation of the documents needed to purchase Leiataua's loan from ASB.
DBAS's personnel completed the purchase of the ASB loan on October 2, 1992, as Meredith had instructed, for a purchase price of $72,308.95. *214Leiataua signed an installment note in the principal amount of $75,000 and a payroll deduction authorization, both dated October 2, 1992, a mortgage of the land and improvements as collateral, dated December 21, 1992, and various other related documents.9
DBAS's purchase of the ASB loan is questionable because Leiataua did not submit an application specifically for the loan purchase and a large amount of time had elapsed since her earlier 1991 application. Meredith either ignored the lapse of time because the apparent loan approval of Leiataua's earlier 1990 loan application or did not consider it necessary to update the customary support documentation.10 Also, neither DBAS's Lending Committee nor Board of Directors reviewed and approved the loan purchase.11 The 1991 loan approval, assuming it was actually granted, was for a different purpose, a guaranteed home loan, and was inherently flawed, as the application was for a direct home loan and the unsigned record of the approval was for a guaranteed home loan.
On January 22, 1993, Bernadette Fruean ("Fruean"), a loan interviewer and processor at DBAS, prepared a check to reimburse Leiataua in the amount of the remaining balance of Leiataua's loan from DBAS. One of Fruean's duties is to prepare checks in payment of invoices issued for materials and labor provided to DBAS's direct home loan borrowers. Fruean found a disbursement record in Leiataua's loan file showing the undisbursed balance to be $2,691.05 and prepared the check in the amount of the balance, even though she did not have a supporting invoice.
On the same day, Leiataua and another authorized official of DBAS signed the check, as was necessary to negotiate the check, and Leiataua endorsed and deposited the proceeds of the check in an account at ASB, which she *215apparently maintained despite her dissatisfaction with ASB's management.
On January 26, 1993, Fruean obtained from Makisi's Home Improvement Center, with the help of a friend employed there, a so-called "pro-forma invoice-quotation only" for Leiataua's purchase of building materials. The amount of this invoice, $2,701.45, exceeded the loan balance which was disbursed by the January 22, 1993, check. The invoice form was designed to permit customers to obtain advances from their home construction loans and would be replaced by a payment receipt when the customer made actual payment and took delivery of the materials. However, at some point during this transaction, someone noted "Paid Cash" on this pro-forma invoice and enabled its use in back-up support of loan balance disbursement. Although Makisi's did not in fact sell or deliver materials to Leiataua, the pro-forma invoice was used for this purpose.
Contradicting Fruean's testimony, Leiataua denied instigating either the loan balance check or false invoice, or participating in the latter in any manner. Fruean was not a strong witness. She was hesitant and uncertain at times, made partially inconsistent prior statements, and may have committed some acts which bring her truthfulness into question. On this basis, we will give Leiataua the benefit of any doubts. She may not have initiated either of these transactions. However, she admitted that the same legal secretary who prepared the loan purchase documents asked her if she wanted to be reimbursed for the amount of the loan balance, and that she did not purchase any materials justifying reimbursement. Unquestionably, Leiataua signed the loan balance check and received the proceeds and knew that the false invoice was used to support the disbursement. This disbursement is on the same footing as the purchase of the loan from ASB.
CONCLUSIONS OF LAW
Appropriate to this case, the elements of the offense charged in CR No. 44-94 are:
1. on or about September and October 1992,
2. in American Samoa,
3. the defendant,
4. then an officer of DBAS,
5. with intent to injure or defraud DBAS, or any other person,
6. embezzled or misapplied moneys or funds of DBAS, to wit: disbursement of DBAS's funds, without proper authorization, to purchase her direct construction loan from ASB.
*216The elements of the offense charged in CR No. 9-94 are:
1. on or about January 1993,
2. in American Samoa,
3. the defendant,
4. then an officer of DBAS,
5. with intent to injure or defraud DBAS,
6. embezzled or misapplied moneys or funds of DBAS, to wit: disbursement of DBAS's funds, without proper authorization, as a reimbursement to her, or made a false entry in DBAS's records or performed another fraudulent act, to wit: use of a false invoice for the purchase of building materials.
Indisputably, as to both charges, ASG has proven the first four elements beyond a reasonable doubt. The court is equally satisfied that ASG has proven the sixth element of each offense beyond a reasonable doubt.
Undeniably, Leiataua caused DBAS to expend its funds as a direct loan to her to purchase her direct home loan from ASB. DBAS' Lending Committee and Board of Directors are required to approve this loan, under DBAS's bylaws and did not do so. This disbursement was clearly a misapplication of DBAS's funds.
Undoubtedly, Leiataua participated in the disbursement of DBAS' funds reimbursing her for a purchase of building materials, which she did not in fact buy, and supported by placing in DBAS's records a fictitious invoice. This, too, was a misapplied expenditure of DBAS's funds.
The only genuine issue before the court, with respect to both counts, is whether or not Leiataua acted with the requisite intent to injure or defraud DBAS.
In addition to proving that Leiataua committed the act of larceny, fraud, or misapplication of funds, ASG has the burden to show that she acted "with the intent to injure or defraud the bank." A.S.C.A. § 28.0111, which mirrors 18 U.S.C. §§ 656, 657. Intent to injure or defraud a bank exists when the defendant acts knowingly and the natural result of this conduct would be to injure or defraud the bank, regardless of motive. United States v. Krepps, 605 F.2d 101, 104 (3rd. Cir. 1979). It is not required that the bank suffer a loss or injury, since the intent of the law is to protect the bank's right to make its own decisions regarding the use of its funds. United States v. Cauble, 706 F.2d 1322, 1355 (5th Cir. 1983). Furthermore, there exists an inherently fraudulent nature to *217bank loans made by officers for their own benefit. United States v. Krepps, 605 F.2d at 106.
Considering Leiataua's position as the Vice President for Loans with DBAS at the time of the loan purchase, in addition to her actions in securing the loan and the misapplication of the funds for purposes other than construction of a residence, we conclude that the evidence shows beyond a reasonable doubt that she committed these acts with the requisite intent to injure or defraud, as required by A.S.C.A. § 28.0111.
The people of American Samoa are entitled to have their development bank, as a public financial institution, managed with impeccable integrity. The events underlying the instant charges show a decided failure to meet this standard. These events are marked by improper procedures and faulty documentation, by the lack of exercising effective internal controls, and above all by a bank official's intolerable use of insider advantage.
DECISION
Leiataua is guilty of both counts of larceny and fraud in violation of A.S.C.A. § 28.0111, as charged in the consolidated informations.
Leiataua is continued on bail in the sum of $10,000, pending sentencing, on the condition that she is present before the court whenever required. The Attorney General shall retain her travel documents. ASG's stop order prohibiting her departure from American Samoa, unless by prior court order, remains in effect.
Leiataua shall be present before the court for sentencing on October 20, 1995, at 9:00 a.m. The presentence report will be completed and made available to the court and counsel not later than October 18, 1995.
It is so ordered.
This multiple advances note was apparently replaced on September 12, 1991, the day of the final draw completing the advances of the entire $75,000, when Leiataua signed a promissory note to ASB and a mortgage of the land and anticipated residence to secure payment of the note. This promissory note was in the principal amount of $75,000, with interest at 11.5% per annum, and provided for 120 monthly installment payments of $1,054.46, commencing October 1, 1991.
Leiataua also received cashier's checks from ASB for $500 on August 30, 1991, $500 on September 5, 1991, and $11,862.18, apparently the remaining balance with earned interest, on September 12, 1991.
On July 18, 1994, Leiataua submitted an application to DPO for a renewed land use and building permit. This application is on hold, pending clarification of the record titleholder of the building site. Although not recorded in DPO's official file in evidence, Leiataua claimed that she first sought a permit in June 1991, but DPO never responded. Hence, she filed again in October 1991. She further claimed that she resubmitted an application in 1993. Again, this application is not reflected as such in the DPO file, except possibly by inference from a DPO inspection site visit in July 1993. These three applications are not significant to our decision, except to illustrate Leiataua's continuing desire throughout the time frame involved to construct a residence in Maloata, an intention we do not question.
The inclusion of the fourth condition in the permit is suspect. The original permit, which is usually given to the applicant, is not in evidence, and the DPO official who issued the permit does not recall whether the fourth condition was initially included. The first three special conditions are regularly included in permits, while the substance of the fourth condition is within the expertise of structural engineers and not DPO planners. The permit routinely required construction to begin within 120 days and expired in one year, on October 31, 1992, which is inherently inconsistent with the two-year postponement in the fourth condition. Also, the type used for the fourth condition is different and not aligned with the first three conditions. These circumstances suggest that the fourth condition was added later. However, no evidence shows that Leiataua or anyone acting on her behalf had surreptitious access to her DPO file at any relevant time. Thus, although worth mentioning, the suspicion is not persuasively established, and it is not a factor in our decision.
In essence, Leiataua claimed that in January 1992, she'thought the $50,000 came out of the $58,000, which she believed B. Gurr was still holding for her, and that although she asked him about the $58,000 at various times, she did not learn about his expenditure of these funds until after this prosecution was commenced. We do not find her testimony on this late discovery credible, and while she may still have been in the dark at the beginning of 1992, we are convinced that she knew or should have known about B. Gurr's waste of the $58,000 by the summer of 1992.
Leiataua claimed that she was unaware of the source of the $50,000 until 1994, but it appears that she may have learned about this source about or after September or October 1992 when her husband applied for a loan of $90,939.46 from ASGEFCU, apparently to consolidate existing loans. In the application, he listed his present occupation as a Vice President of DBAS, for the previous six years, with a salary approximating Leiataua's recompense. During the trial, she still disclaimed any prior actual knowledge of this loan. ASGEFCU gave Leiataua's husband final notice of his default of this new loan in July 1993.
P. Gurr denied that he owned and operated a business under the name "Pete Gurr Lumber Company." The documentation in evidence, however, apparently related to the sales of Leiataua's materials at T & T bears references to this business. The total amount of sales shown in these documents is $31,868.82. Tasi Asuega's purchases account for $11,868.82 of this amount.
ASB also notified Leiataua, by letter dated January 13, 1992, that her loan was delinquent due to nonpayments in October and November 1991. Leiataua returned ASB's letter with her note appended, denying the delinquency, and enclosing her payment book. According to *213Leiataua, ASB did not respond to her note, and she assumed that ASB corrected its records. Apparently, other than her meeting with Flores on February 4, 1992, Leiataua next received communication from ASB about the loan when she received Flores letter of July 21, 1992.
She apparently made loan payments until at least June 7, 1993, when DBAS placed her on administrative leave with pay, and probably made payments until she left DBAS's employment at a later date.
As pointed out by DBAS's independent auditors as a result of their inspection of Leiataua's loan file in 1993, the file lacked current credit information when DBAS purchased the ASB loan, such as verification of deposits from other banks, documentation of hazard and life insurance, copies of last paid utilities bills, and a copy of her last pay stub.
On June 7, 1993, Leiataua told the independent auditors and later members of the DBAS's Board of Directors attending an Executive Committee meeting, which was called to review, among other matters, Leiataua's loan file with her, in essence, that she thought it unnecessary to go through the loan underwriting process again. She also told the auditors that she thought the DBAS loan was adequately secured by the site for her residence and her life insurance benefit provided by DBAS. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486345/ | Opinion and Order:
Plaintiff Richard Johnson seeks the dissolution of a partnership, which he claims was formed with defendant Robert B. Coulter, and the distribution of partnership assets. To this end, he further seeks the award of a constructive trust and an accounting of partnership assets. Coulter, on the other hand, denies the formation of any partnership with Johnson.
Upon joint motion of the parties, trial of the issues herein was bifurcated to consider, first, the issue of whether or not Johnson and Coulter had entered into a partnership. There is no written partnership agreement between Johnson and Coulter. Accordingly, the court is invited to look to circumstantial evidence offered by each party to back his oral claim of the presence or absence of a partnership.
The parties initially met when Johnson was employed as the accountant for South West Marine, the operator of the local dry dock facility, and Coulter was a salesman for Pacific Machinery Inc., a dealer in equipment and *219machinery which was one of South West Marine's trade vendors. Johnson and Coulter got to know each other socially and subsequently became friends. Johnson later left South West Marine and temporarily departed the territory. Coulter went on to set up shop for himself, essentially assuming Pacific Machinery's business niche after the latter's withdrawal from the territory.
Coulter then began to receive various things in the mail for Johnson, who had apparently given Coulter's mail box as a forwarding address. Coulter stored Johnson's mail until Johnson returned to the territory in the early part of 1989 to participate in a joint venture involving the hauling and dumping of cannery sludge at sea. Subsequently, Johnson sold his interest in the sludge hauling business and extended his accounting expertise to Coulter, who had started South Pacific Engine & Repair ("SPEAR") as a sole proprietor. As SPEAR began to grow, acquiring a NAPA Auto Parts agency for the territory, Coulter found himself becoming overwhelmed with work, requiring him to put in long hours. He needed help. He sought Johnson's accounting expertise and Johiison agreed to help him out. At the outset, both parties recognized that SPEAR was not in a position to appropriately compensate Johnson, but this did not deter Johnson's desire to help out.
While the evidence does not suggest that Johnson had agreed to work for nothing, we find that there was no attempt by the parties to define their intentions at the outset. Johnson initially instituted various control systems, but he became increasingly involved with the retail side of the business, beyond accounting work. He loaned $5,000 to the business, which was later repaid. Subsequently, he made additional advances to the business, during certain "crisis" times when there was no money to lift various bank drafts for specific orders which became due and payable. These "crisis" times occurred on six occasions, between July 8, 1989, and January 2, 1990; Johnson, from his own pocket, paid SPEAR's suppliers a total of $66,029.41. He claims that these cash injections were in the way of capital contributions.
On the one hand, Johnson saw his relationship with Coulter as one of partnership. In support of his contention, Johnson testified that, around July 1989, he and Coulter had met concerning the business' capital needs and that as a result of that meeting, they agreed to put in capital of $65,000 each.
Johnson also offered the corroborating testimony of Douglas Harrington, a mutual friend of the parties, who testified about a conversation that he *220had with Coulter one afternoon around October or November 1989. Harrington testified that he and Coulter were conversing through the fence at the Satala Power Plant, where he was working at the time, and that Coulter had mentioned that he and Johnson were going in together on a deal with SPEAR, and that Johnson was going to invest some money. He further recalled Coulter saying that it would be a "good marriage," given Johnson's accounting background, but that neither Coulter nor Johnson had said anything to him about the exact nature of Johnson's investment.
Coulter, on the other hand, flatly denies the formation of a partnership with Johnson. While acknowledging that Johnson had advanced funds to SPEAR, he claims that these were simply loans, not capital contributions. He testified that in other times of need, he had received loans from other friends as well. Coulter further testified that he had always run his business as a sole proprietor, that the business license was under his name alone, that he alone did the hiring and firing, that he alone established the business's credit rating with suppliers and the bank, that he alone signed on the bank loans, and that he alone had the final word on the placing of orders. In corroboration, Coulter tendered his tax returns, financial statements, certain correspondence with Bank of Hawaii, and the testimony of a former employee to the effect that Johnson was introduced as, and was always understood to be, merely the accountant and not a co-owner.
We find the evidence insufficient to establish a partnership between Johnson and Coulter. Harrington's testimony is at best equivocal on the issue of partnership. As a corroborative witness, Harrington is not particularly reassuring. His articulation is prone not only to inexactness but also a certain degree of embellishment. For instance, he testified that, at the time, he was a heavy equipment mechanic seeking to sublease space behind the Faganeanea premises from SPEAR. This, he considered, would also be a "good marriage. ” Additionally, he alluded to his being invited to participate on a SPEAR "board of directors," in what was then, however, a non-corporate business. Finally, we note an early affidavit Harrington had given in support of a Johnson motion to dismiss. Harrington stated in this affidavit that Johnson was a "co-owner" of SPEAR. He later attempted to retract that statement, not wanting to "perger" himself.
On the other hand, the documentary exhibits received into evidence lend some objective support to Coulter's claim that SPEAR was not only run as a sole proprietorship, but also held out as such to third parties, including the government and other creditors. For instance, the *221promissory notes issued pursuant to a revolving line of credit from the Bank of Hawaii objectively demonstrate that Coulter alone was liable on the indebtedness evidenced by them. There was nothing to suggest that the Bank of Hawaii could hold Johnson jointly liable on those notes. The same may be said of SPEAR's other trade obligations.
The nature of the advances by Johnson is also unclear. The context in which they were made does not lend more credence to Johnson's position than Coulter's. Indeed, the advances arose in response to "crisis" situations, albeit recurring, which demanded the immediate payment for goods shipped on SPEAR's account, rather than as the product of a contemporaneous or preceding agreement of partnership. In our assessment of the evidence, the resultant figure of $65,000, claimed as partnership capital by Johnson, had more to do with the fortuitous value of the invoices for "crisis” shipments than any predefined partnership terms. Again, while we find no suggestion on the evidence that Johnson had simply donated these funds out of the goodness of his heart, we also find nothing in the evidence suggesting anything but ill-defined intentions at these particular times of "crisis."
The resulting situation had, in our view, simply arisen upon a mutual friendship premise, that one party will do good by the other, and vice versa. In this same vein, Johnson was permitted to live on the SPEAR shop premises rent-free, after Coulter had made rudimentary alterations to the premises for that purpose. That relationship between the parties was fine so long as the friendship was alive and well. When the relationship deteriorated, and the friendship began to sour, each party's interpretation of their business relationship had, in our view, more to do with hindsight than any concluded agreements.
While counsel for Johnson earnestly submits that no-one works for nothing nor advances great sums of money without a sensibly underlying explanation-e.g., a joint venture~it might equally be said that business people operating in a business relationship, as opposed to relationship based on friendship, do not in the normal course commit themselves to lay out time and money until they reduce their agreements to more objective foundation than the ill-defined agreement suggested by plaintiff.
Because we find the evidence insufficient to establish the formation of a partnership between the parties, and because plaintiff has the burden of proof, we conclude that judgment on this issue must be entered in favor of the defendant Coulter.
*222It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486346/ | Order Denying Motion for Reconsideration:
BACKGROUND
On September 7, 1995, this court issued an order appointing Marshall Ashley, a United States citizen, as defined by 14 C.F.R. § 47.2, Trustee on behalf of plaintiff Samoa Aviation, Inc. and defendants Robert G. Bendall, Pace Aviation Ltd., and Pal Air International, Inc. as beneficiaries ("order"). We appointed Ashley Trustee, holding title to the aircraft known as N28SP and N711AS, both DeHavilland Twin Otters, solely for the purpose of registering such title with the Federal Aviation Administration ("FAA") pending adjudication of the rightful ownership of the planes. Title was transferred to the Trustee, and possession and operation of the aircraft were left with plaintiff.
On September 11, 1995, defendants filed a motion for reconsideration, or, in the alternative, for certification of our order for interlocutory appeal on the issue of the appointment of the Trustee and transfer of title. The hearing on the motion was expedited and came before the court on September 27, 1995. The parties were represented by counsel.
DISCUSSION
I. Motion for Reconsideration
Defendants give great weight to the fact that "no statutory authority nor a rule of court" was cited by plaintiff in arguing for the appointment of a trustee. Def.'s Mem. Supp. Mots, at 3. Much to our disappointment, *224defendants also have chosen to cite no statutory authority nor a rule of court. Without any guiding authority, and apparently expected to proceed strictly on gut instinct, we choose to stick with our initial instinct, as articulated in our order, and deny defendants' motion for reconsideration.
A. Interpretation of the Code of Federal Regulations
Defendants claim that the portion of the Code of Federal Regulations dealing with airplane ownership and registration, See Aircraft Registration, 14 C.F.R., Pt. 47, Subpt. A (1984), does not authorize this court to appoint a trustee and transfer title to the aircraft in question. Defendants, however, merely point us to the language of Part 47, itself, without citing any authority interpreting that language.
Nowhere does Part 47 state that a court may not appoint a trustee to hold title in the interest of justice. To the contrary, Section 47.7(c)1 sets forth the citizenship requirements for a trustee seeking to register an aircraft at some length. In so doing, Section 47.7(c) refers to a trustee as "[a]n applicant for aircraft registration under section 501(b)(l)(A)(i) of the [Federal Aviation] Act [of 1958, 49 U.S.C. §§ 1301 et seq.] that holds legal title to an aircraft in trust. ” 14 C.F.R. § 47.7(c) (1984). Although the section does not tell us how one might come to hold legal title to an aircraft in trust, neither does it limit such a prospect.
Even more telling, Section 47.11(h) deals with the documentation of ownership required from an applicant for registration. "The trustee of property that includes an aircraft . . . must submit either a certified copy of the order of the court appointing the trustee, or a complete and true copy of the instrument creating the trust." 14 C.F.R. § 47.11(h) (1984) (emphasis added). Thus, § 47.11(h) definitely recognizes that legal title to an aircraft in trust can arise by judicial order. Furthermore, this section places no limitations on the situations in which this might occur.
Defendants' bald assertion that "[t]he 'Trustee' created by this Court does not qualify as [an] owner under the definition of CFR § 47.5(d)," misinterprets that section. Section 47.5 provides that "[a]n aircraft may be registered only by and in the legal name of its owner." 14 C.F.R. § 47.5(b) (1984). Section 47.5(d) provides that the term " 'owner' includes a buyer in possession, a bailee, or a lessee of an aircraft under a contract of conditional sale, and the assignee of that person." 14 C.F.R. § 47.5(d) *225(1984) (emphasis added). Section 47.5(d) does not limit the definition of "owner," as defendants apparently contends, but instead provides that, in addition to those persons holding legal title, the term shall include the enumerated persons, not normally thought of as owners.2
Section 47.11, dealing with evidence of ownership, further shows that § 47.5(d) is not meant to limit the definition of "owner." Section 47.11 lists the documentary proof of ownership needed not only by a buyer in possession, a bailee, a lessee, or their assignees, see 14 C.F.R. § 47.11(a), but also by a repossessor, a buyer at a judicial sale, the owner of a title that has been in controversy and determined, by a court, the executor or administrator of an estate, a buyer of an aircraft from an estate, the guardian of another person’s property, and, of course, a trustee. See 14 C.F.R. § 47.11(b)-(h). Since all of these fall under the heading "Evidence of ownership, ” we find it difficult to conceive that each cannot be an owner for purposes of the same Part. Thus, a trustee can clearly be an owner for registration purposes.
Therefore, while agreeing with defendants that Title 14, Part 47 of the Code of Federal Regulation does not explicitly grant this court the authority to appoint a trustee to hold title to die aircraft in this controversy, neither does it limit our ability to do so. The only question, then, is under what circumstances this court may validly appoint a trustee.
B. Courts of Equity Mav Appoint A Trustee Where The Interests Of Justice So Require.
The power of a court of equity to appoint a trustee in a proper case is part and parcel of its general jurisdiction and control over trust estates. 76 Am. Jur. 2d, Trusts § 248 (1992); see also Citizens Bldg. & Loan Ass'n v. Knox, 146 Kan. 734, 74 P.2d 161 (1937). The court can exercise this power very broadly. See Wertin v. Wertin, 217 51, 13 N.W.2d 749 (Minn. 1944). The court may also make necessary orders to protect the property of such trust. McKee v. Lamon, 159 U.S. 317 (1895).
A constructive trust is one "created by operation of law and imposed by a court in equity to prevent a fraud.” 76 Am. Jur. 2d Trusts § 11 (1992); see also Black's Law Dictionary 285 (5th ed. 1979). Facts giving rise to a constructive trust in themselves give rise to an action to enforce *226such trust. Brainard v. Buck, 184 U.S. 99 (1902). Plaintiff alleged such facts before this court and properly pursued an action to impose a constructive trust on the aircraft.
A court in equity will not be bound by an unyielding formula, but must shape its relief to match the nature of the transaction. To do this, a court should consider all of the circumstances bearing on the matter. Wertin, 13 N.W.2d 749. We have done this in establishing the present Trust, and defendants have failed to present us with any evidence to the contrary.
C. Appointment of a Receiver
Plaintiff has urged upon us that, as an alternative to appointing a trustee, we might also appoint a receiver in this matter "to protect and preserve the property pending the outcome of the litigation." Pl.'s Resp. to Def.'s Mot. for Recons, at 2. Although it is not necessary for us to reach this issue now, having decided to affirm our earlier decision in the matter, we would like briefly to address our reason for appointing a trustee instead of a receiver in the first place, having felt it unnecessary to do so in our order.
A receiver is a "ministerial officer, agent, creature, hand, or arm of, and a temporary occupant and caretaker of the property for, the court, and he represents the court appointing him, and he is the medium through which the court acts." Black's Law Dictionary 1140 (5th ed. 1979).
The ultimate end of a receivership is to enable the court to accomplish, so far as practicable, complete justice between the parties before it. To this ultimate end it is the purpose of a receivership to prevent injury to the thing in controversy and to preserve it, pendente lite or after judgment, for the security of all parties in interest, to be finally disposed of as the court may direct. . . . The appointment of a receiver certainly is not made for the purpose of destroying the rights of persons, but rather, that their rights may be made more secure.
65 Am. Jur. 2d, Receivers § 3 (1972) (footnotes omitted). We articulated this end and purpose in making the order.
In the normal course of a trial where the court is concerned about the improper disposition of property by one of the parties, a receivership would be our selected form of protection for that property. However,
*227[t]he general rule is that the appointment of a receiver does not in and of itself operate to change any title, right, or interest, or to vest any title or estate in the receiver; on the contrary, the title to the property in receivership continues in the defendant. . . until he is divested of it by a receiver's sale, or act of his own.
Id. at § 160 (footnotes omitted).
Before this Trust was ordered, defendants had allowed the certificates of registration with the FAA to lapse. See Pl.'s Mem. Supp. Am. Prelim. Inj. ex. A (letter from FAA). The FAA denied plaintiff's attempts to register the aircraft in its own name, and plaintiff justifiably feared that the aircraft would be grounded. Thus, we instituted this Trust to allow registration of the planes and to allow plaintiff to continue flying.
We find no provision in Title 14, Part 47 of the Code of Federal Regulations allowing registration of aircraft in the name of a receiver. On our reading of the regulations, the applicant for registration must hold title to the aircraft he wishes to register. Setting up a normal receivership would have left plaintiff in the same position as if this court had taken no action whatsoever. For these reasons, we created this Trust, and it is the creation of that Trust which we now reaffirm.
II. Motion To Certify Order For Interlocutory Appeal
Defendants have requested that, upon denying the motion for reconsideration, we certify the order creating the Trust for interlocutory appeal. Generally, an interlocutory order during the course of a trial or other judicial proceeding is not a "final decision" within the meaning of A.S.C.A. § 3.0309 and similar statutes. Kim v. American Samoa Gov't, 17 A.S.R.2d 193, 195 (App. Div. 1990). Such orders, even though they may be "fully consummated decisions" with respect to the issues they address, "are but steps towards final judgment in which they will merge, ” and are therefore reviewable only by means of appeal from an adverse judgment in the main proceeding. Id.; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see Deaver v. United States, 483 U.S. 1301 (1987).
An interlocutory order falling within the "collateral order exception," however, can be appealed. Kim, 17 A.S.R.2d at 195. This exception describes "that small class [of interlocutory orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the *228cause itself to require that appellate considerations be deferred until the whole case is adjudicated." Cohen, 337 U.S. at 546. To fall within the collateral order exception, an order must (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case. Kim, 17 A.S.R.2d at 195; Van Cauwenberghe v. Biard, 486 U.S. 517 (1988); Coopers & Lybrand v. Livesay, 458 U.S. 263 (1978).
The order challenged is clearly collateral, in that it determines a question separate and distinct from the merits of the action. The appointment of the Trustee to hold title and register the planes will in no way effect the ultimate determination of ownership. Furthermore, we have conclusively resolved the issue of the Trustee's appointment, both in our original order and in this order denying the motion for reconsideration.
Finally, normal appeal will not present an effective review of this issue. A collateral order is generally regarded as "effectively unreviewable” where "substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated." Kim, 17 A.S.R.2d at 196 (quoting Kowalski v. Holden, 276 F.2d 359 (6th Cir. 1960)). Defendant urges upon this court that
the order of the court has effectively taken away legal title from Pace Aviation Ltd. without a full adjudication on the merits and has thus changed the status quo of Pace Aviation Ltd. as it will be forced, even if it is temporary, to show a deduction of valuable assets from its financial statements and condition.
Def.'s Aff. Supp. Mot. at 4. We agree.
We, therefore, hold that the order appointing the Trustee to take title and register the aircraft is within tire small class of pre-judgment orders which are final decisions immediately appealable under A.S.C.A. § 3.0309.
CONCLUSION
In conclusion, we reaffirm today our earlier order appointing Marshall Ashley Trustee for the aircraft-to take title and to register them with the FAA. We, therefore, deny defendants' motion to reconsider.
However, we agree with defendants that this order is a final decision, and certify it for immediate appeal in accordance with the appropriate *229procedural provisions.
It is so ordered.
All references are to 14 C.F.R., unless otherwise noted.
"Owner" can be commonly defined as "[t]he person in whom is vested the ownership, dominion, or title of property." Black's Law Dictionary 996 (5th ed. 1979). None of the terms listed in Section 47.5(d) would fit this definition. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486347/ | Order:
This matter came on regularly before the Court on March 11, 1994, on plaintiffs motion to suppress evidence.
The court heard testimony from Sg. Mikaele and Officer Fuifatu. The defendant also gave limited testimony on the extent of his injuries.
The essential facts are as follows: Sgt Mikaele came upon defendant's vehicle in a ditch near Vaitogi. Defendant was injured, (a cut above his *2eye), and Sgt. Mikaele radioed the O.M.V. substation and the E.M.S. that defendant would be transported to the O.M.V. substation for treatment. After being treated by the E.M.S. at the O.M.V. and after Sgt. Mikaele had left, field sobriety tests were conducted by Officer Fuifatu. Upon Defendant's failure to pass these tests, defendant was subjected to a breathalizer test after being arrested for driving under the influence (“D.U.I”).
At some later time in the evening, defendant and his family members were allowed to push his vehicle out of the ditch. This is, at least, what the court understood to be Officer Fuifatu's testimony. Also, at some point after the arrest, Officer Fuifatu inspected the accident scene, most likely at the time the vehicle was removed from the ditch.
The issue before the court is whether the arrest for D.U.I. was valid.
By way of discussion the court notes that Officer Fuifatu had information from Sgt. Mikaele that defendant's vehicle was involved in an accident and the defendant was injured by that accident. As this court has previously ruled, a motorist stopped by a traffic officer may be detained briefly by that officer, upon a reasonable belief that the driver was under the influence, until a qualified officer may be summoned by radio to administer field sobriety tests. This court has also previously ruled that a person who was pursued for a traffic offense by a police officer, apprehended, identified, and taken into custody by another officer, taken to the police station, and subsequently administered field sobriety tests and then arrested for D.U.I. could not have been legally arrested at the police station.
The instant case appears to fall precisely midway between the court's prior mlings. This defendant was in the custody of the police and at the police sub-station when the field sobriety tests were administered. Yet, Sgt. Mikaele was not qualified to administer field sobriety tests and upon first procuring medical attention for the defendant, turned him over to Officer Fuifatu for further investigation. Counsel argued that the previous rulings of this court support their respective positions on the validity of this arrest. Indeed, both are equally correct in that regard.
This case is different, however, since it involves a motor vehicle accident. The Legislature has specifically set forth its requirements for a valid arrest of a driver involved in an accident under A.S.C.A. § 22.0803. The requirements are that an officer at the scene of an accident must conduct a persona investigation, and upon reasonable grounds to believe a misdemeanor traffic offense (or infraction) has occurred, issue a traffic citation.
*3This court has interpreted this statute as authorizing an investigating officer to view the accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist, to issue that driver a traffic citation.
In the present case only the sequence of the arrest is at odds with the statute. Officer Fuifatu viewed the accident scene after, not before issuing the traffic citation. In a case not involving personal injury caused by a traffic accident, this sequence would likely prove fatal to the validity of the arrest. And, only a valid arrest for D.U.I. invokes the implied consent to chemical testing under A.S.C.A. § 22.0601 et seq.
Yet A.S.C.A. § 22.0803 does not apply to felonies. Under A.S.C.A. § 22.0708 the injury to any person resulting from the operation of a motor vehicle by a person under the influence of intoxicating liquor creates a felony offense. Officers may upon reasonable grounds, arrest persons found near the scene of a felony within a short time after its commission. See A.S.C.A. § 46.0805 (3).
Under all of the circumstances, Defendant's arrest for driving under the influence was valid. The breathalizer results are therefore admissible as evidence lawfully obtained.
As a logical consequence of this decision, the court is compelled, however, to dismiss, without prejudice, UTC#131687. The validity of the arrest being predicated upon a felony having been committed, A.S.C.A. § 22.0803 does not authorize a uniform traffic citation to serve as a valid summons, complaint, and affidavit for initiating or sustainipg a criminal action. See A.S.C.A. § § 22.0801,22.0803, and 22.0810(d).
Nothing prevents the government from refiling a summons, complaint and affidavit in this matter, but uniform traffic citation #131687, issued in violation of A.S.C.A. § 22.0803, cannot sustain the present action.
So ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486348/ | Opinion:
This matter came on regularly before the court on 11th of March 1994, upon defendant's motion to suppress evidence.
The court heard testimony from the arresting officer, Officer Füifatu and his supervisor, Inspector Mika Kelemete. At issue was whether or not the D.U.I. roadblocks conducted by the Department of Public Safety during the Christmas 1993, and New Years holidays were in violation of the 4th Amendment search and seizure provisions.
The testimony from the police officers may be summarized as follows: The Christmas day and New Years day roadblocks were publicized in *5advance in the two local newspapers of the territory. The roadblocks were at 3 locations and conducted from 6:00 p.m. to 6:00 a.m. as ordered in writing by the Commissioner of Public Safety. The locations were selected based upon public safety, marked with traffic cones, reflectors, flashing lights and additional lighting provided by A.S.P.A. All officers were in uniform and the roadblocks were conducted according to written procedures.
Every vehicle passing the roadblock was stopped and its driver briefly questioned by an officer. On average, such stops took 20 seconds each. In those instances where the driver, based upon the reasonable suspicion of the interviewing officer, was directed off the roadway for subsequent investigation by other uniformed officers, that investigation proceeded in the same fashion as a traffic stop. Driver's license and registration were required to be produced and, if during that process the Officer had reasonable grounds to proceed, field sobriety tests were conducted. The failure of which lead to an arrest for D.U.I. See A.S.C.A. § 22.0707.
In the 1993 - 1994 holiday season, no fatal traffic accidents related to alcohol were recorded. The roadblocks averaged 15% of the drivers passing through being arrested for D.U.I. In previous years, when roadblocks were not in force, alcohol related traffic fatalities in the holiday season totaled 3 in 1991 and 1 in 1992.
Defendant contends that the 4th Amendment to the U.S. Constitution prohibits D.U.I. roadblocks as unreasonable, warrantless seizures unless the government has followed all of the procedures set forth in Michigan State Police v. Sitz, 496 U.S. 44 (1990). The government argues that only those procedures necessary to demonstrate the such seizures are not unreasonable, considering all of the circumstances, are required, and the government has met the burden in the instant case.
Discussion and Opinion
It is beyond dispute that a stop of a motor vehicle at a check point or roadblock is a seizure within the meaning of the 4th Amendment. The precise issue for the court to decide in such cases is whether or not the seizure is unreasonable, and therefore, prohibited.
In the instant case, by either a subjective or objective measure, the intrusion upon the freedoms of the motoring public was slight. Most drivers passed through the roadblock in a brief period, the average interview taking 20 seconds. The questioning also appeared to be of low intensity - the officers explaining the purpose of the roadblock and advising drivers to drive safely.
*6Although the executive branch, not the court, has the authority to decide between alternative law enforcement approaches, the court notes in passing that a 15% D.U.I. offense rate of drivers stopped at the roadblock, does provide empirical evidence in support of the roadblock as an effective tool in promoting highway safety.
The D.U.I. roadblock advanced a legitimate government interest with minimal intrusion upon the rights of the motoring public. Its effectiveness is borne out by the arrest rate and the decline in alcohol-related traffic accidents and fatalities. The procedures leading up to, and at the roadblock demonstrate it was safely and uniformly conducted.
Although not all of the procedures used by the Michigan State Police, see Sitz, supra, were used in the instant matter, there were substantial similarities in the local procedures utilized for the D.U.I. roadblock. The court notes, however, that the U.S. Supreme Court did not expressly require identical procedures be used in all roadblock or checkpoint situations. Judicial review proceeds from the determination of whether the seizure was reasonable, considering and balancing the government's compelling interest in protecting the motoring public from alcohol related traffic accidents, with the individual's constitutional right to be free from unreasonable seizures.
The D.U.I. roadblock conducted by the Department of Public Safety was not prohibited by the 4th Amendment. Evidence obtained pursuant to this roadblock will not be suppressed solely because it was obtained as a result of the D.U.I. roadblock.1
Motion denied.
The other cases affected by this decision are: UTC#137339 (Junior Mageo, UTC#136889 (Susana Correia), and UTC#135723 (Tofi, Taimanini). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485783/ | On Motion to Set for Trial:
This is an action to remove a matai and petitioners have moved to set the matter for trial. After examination of the file, the Court notes that the matter has not been referred to the Office of Samoan Affairs for the preliminary administrative hearings before the Secretary of Samoan affairs as provided by A.S.C.A. § 43.0302. Counsel for petitioners submits that the enactment’s requirements for administrative action apply only to cases of matai appointments and not to matai removal.
We (Jisagree, A.S.C.A. § 43.0302(a) provides in part:
Before any action relating to controversies over . . . mata] titles may be commenced in (he land and tjtlps *7division, each party shall file with his complaint fi certificate signed and attested by the Secretary of Samoan Affairs or his deputy, in which the Secretary or his deputy affirms and states:
(1) that on at least 2 occasions, the párties have appeared personally before him aqd 2 persons designated by him, without an attorney or counsel, and that an attempt was made to resolve the controversy.
The enactment talks generally in terms of "controversies over matai titles"; it does not attempt to discriminate, in terms of its application, between actions to appoint a matai arid action? to remove a matai. At the same time, we see no apparent reason why the enactment’s underlying policy of preliminary extra-judicial resolution should not be equally applicable to matai reinoval mutters as well.
Further, Rule 2(b) of the Land and Titles Rules provides, inter alia, that matai removal actions are commenced by the filing of the appropriate pleading with the land and titles division of the High Court, That appropriate pleading is a petition, Land and Titles Rule 4(a). Thjs rule further provide? that:
[i]f the . . . petition [to remove a matai] is not accompanied by a certificate of irreconcilable dispute from the Secretary of Samoan Affairs, the clerk of court shall receive, but not file, the . . . petition and shall assign a case number. A copy of the . . . petition shall be transmitted forthwith by the clerk of court to the Secretary of Samoan Affairs for resolution as provided by statute.
Id. (emphasis, added).
On the foregoing, the following Order will enter:
1. Motion to set a trial date is hereby denied.
2. The Clerk shall forthwith forward a copy of the petition to the Secretary of Samoan Affairs as provided by Land and Titles Rule 4(a) if he has not already done so. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485784/ | Memorandum Order:
Upon notice from the Secretary of Samoan Affairs that the parties in the above-entitled matter have not met in accordance with the requirements of A.S.C.A. § 43.0302 and that the Certificate of Irreconcilable Dispute dated June 21, 1989 was issued upqn misinformation given by one of the parties and whereas compliance with the requirements of A.S.C.A. § 43.0302 have not thus been shown to the Cpurt’s satisfaction,
*9It is Ordered that the proceedings in above-entitled matter before the land and titles division shall be stayed until compliance with the requirements of the aforesaid enactment has been certified by the Secretary of Samoan Affairs or until further order of the Court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485785/ | At one time, the petitioner was a legal practitioner entitled to practice before this court. For reasons which are not clear on the extent *10of this record, his .name was removed from the rolls of leg^tl practitioners. Petitioner,seeks a'writ of mandate directing the American Samoa Bar Association to reinstate him on its list of members.1
The petitioner has not demonstrated that he has been aggrieved by any decision of the Bar Association. Indeed, he has not shown th^t the Bar Association has rendered any decision in his case. The materials he has submitted show only that he sent a letter to the Bar Association on June 21, 1989. He filed this petition on July 3, 1989. The Territorial Court Rules of Civil Procedure do provide that an administrative body’s "failure to act" may be addressed through extraordinary writ proceedings-T.C.R.C.P. Rule 88. However, a two week period without a response is hardly the sort of "failure to act" which may be remedied by a writ qf mandate. This is all the more so since petitioner, by his own admission, has not undertaken, those steps which the Bar Association has asked him to take in reviewing his case. Respondent Hall apparently requested that petitioner file an application explaining the circumstances surrounding his being stricken from the membership of the Bar Association. This, petitioner has not done — apparently in the belief that such application would be rejected out of hand. As this court said in another case involving petitioner, it "would be the height of discretionary abuse for this court to issue its writ to an [administrative body] to compel that [body] to do something it was never asked to do by a complaining party in the first place." Siofele v. Shimasaki, 9 A.S.R.2d 3, 7 n.3 (1988).
The petition is denied.
Although the petitioner addressed his pleadings to the Appellate Division, the clerk has assigned the matter a Trial Division civil docket number. Territorial Qourt Rule of Civil Procedure 88 provides that extraordinary review of executive or administrative acts is to be had in the Trial Division. Petitioner has chosen to sue the Bar Association and we will assume for purposes of considering this matter that the Bar Association could repder the relief petitioner seeks. It is to be noted, however, that the ultimate authority to decide who may or may not practice law in the territory rests with the Chief Justice of the High Court. A.S.C.A. § 31.0101 (a). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485787/ | Grandmother, who was recently widowed, petitions to terminate the parental rights of her daughter and son-in-law to their four year old daughter whom she wishes to adopt. The natural parents are a young couple who left the territory last year in pursuit of the natural father’s new career with the United States Army. They have, however, executed a notarized document which recites their consent to grandmother’s adoption of their daughter. Prior to starting out a life in the armed forces, the natural parents lived in the territory with grandmother.
The grounds for the petition are simply that grandmother (together with grandfather while he was alive) took care of the child since birth.
The petition is denied. The facts here do not reveal the circumstances of a "neglected or dependent child" envisaged by A.S.C.A. §§ 45.0401(a)(1) and 45.0115(a)(3), which provide the basis for a petition to terminate parental rights. See In re Two Minor Children, 8 A.S.R.2d 75 (1988). Rather, the facts here reveal circumstances of "voluntary relinquishment" envisaged by A.S.C.A, § 45.0401(a)(2). Even if we treat the petition as one of voluntary relinquishment the end result would nonetheless be denial of the petition. A.S.C.A. § 45.0401(b) states that:
No parent may relinquish his parental rights in a child other than in accordance with the provisions of this chapter [A.S.C.A. §§ 45.0402 et seq.].
*17Before a petition for voluntary relinquishment may be granted, the Court is required by A.S.C.A. § 45.0402(d) to be satisfied "that the relinquishing parent has been counseled and fully advised of the consequences of his act." The Court is further required by paragraph (f) of this enactment to be satisfied that the "relinquishment would best serve the interests of all parties concerned." Neither of these requirements has been satisfied on the evidence before us.
Firstly, the natural parents were not before the Court and accordingly we had no opportunity to evaluate whether they had been counseled and fully advised as to the consequences of relinquishment.
Secondly, and perhaps more importantly, we simply cannot conclude that the minor’s best interests would be secured by terminating her legal relationship to her parents. We can find nothing on the evidence to suggest that her grandmother is better equipped to secure the child’s future than her parents. The circumstances of the natural parents are that they are 23 and 22 years of age respectively. They are a relatively young couple who have opted to start out in life with the security that a military career offers. There is a wealth of benefits available to military dependents to which this petition, if granted, would disentitle the minor.
On the other hand, grandmother’s income is limited. She receives a modest survivor’s benefit in the way of a monthly check. (For purposes of these proceedings she has also figured into her disposable income the social security benefits which she receives on behalf of her own dependent child.) We note the difference in age between her and her grandchild as well as the grandchild’s expected period of minority and dependence. This is a relevant factor which weighs against the petition. Further, we cannot avoid noticing that there is no father figure in grandmother’s household. While none of these factors are conclusive in every case to deny a petition, they, in sum, tally negatively against altering the child’s natural circumstances.
Petition is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485788/ | Per REES, J.:
This dispute arose when the late Aleki Noa subdivided a tract of land near Hi'ili and sold parcels to various people. Some of these purchasers, including appellants Bese and Schuster, were "landlocked"; that is, they had no frontage on a road and therefore could not enter or leave their property without passing over land belonging to somepne else.
The trial court found that Noa had pointed out a certain route of aecess to appellees Schuster and Sese when he sold them their parcels in 1985 and 1986 respectively. In 1987, however, Noa sold the area containing this access way to Mr, and Mrs. Leota, the present appellants. When appellant Misi Pele Leota pointed out to Noa that the tract Leota was buying was apparently used by the Schusters for access to their property, Noa said he would provide an alternate route over the land that had already been sold to the Seses.
The Leotas went ahead and purchased the property containing the existing access route; later they built a wall blocking this route. The wall required the Seses to use a different route of access to their property, and deprived the Schusters of any access whatever to their property. The trial court held that the Leotas had not violated the rights of the Seses by blocking the established access route as they had done, since the Seses were left with an adequate although inferior route encroaching only slightly on the Leota tract. The court also held, however, that the Schusters had an easement of necessity over tfye established route of access traversing the Leota tract. Sese v. Leota, 9 A.S.R.2d 25, motion for new trial den., 9 A.S.R.2d 136 (1988).
*20Appellants urge that the Court should have located the Schusters’ easement of necessity not over appellants’ property but over the Sese tract. They contend, in the first place, that this route was consistent with the intentions of the grantor, Aleki Noa. The evidence does establish that on two occasions Noa manifested an intention to provide the Schusters with a new route of access oyer the Sese tract. These two manifestations, however — in 1987 when Noa was selling the Let?tas their land and later in 1987 at or after an attempted mediation at the Office of Samoan Affairs —- both happened after the signing and recordation of a deed of sale to the Seses. By this instrument the Seses became at least the equitable owners of the property; by 1987, therefore, Noa no longer had any right to encumber the property by establishing an easement' over it.
Appellants further contend that the Schusters can have no easement of necessity over their property because there was no unity of title between their tract and the Schuster tract. This contention is based oh the fáct that Aleki Noa had registered as his individual property a nine-acre parcel, including the parcels that were later sold to the Schusters and the Seses but not that which was still later sold, to the Leotas. Appellants now suggest that the land they bought from Aleki was not his individual land at all but was the communal land of the Noa family.
The problem with this contention is that it would have the effect of divesting appellants of any property rights at all in the disputed tract. If Aleki was not the owner of the land when he sold it to the Leotas in 1987, then they did not become its owners and did not acquire a right to interfere with its pre-existing use by the Schusters as a means of access to their property. A contention made by counsel for appellants at oral argument, that the Leotas might have become owners of the tract not by buying it from Noa in 1987 but by bulldozing it at some prior time, is. raised for the first time on appeal and is starkly inconsistent with the contentions made by appellants at trial and in their brief on appeal; we therefore need not and should not address this possibility. As the trial court correctly observed,
The facts reveal a common grantor who attempted to convey "his" title to the lands sold whatever that might be. The fact that the nine acre tract was registered in the grantor whereas the Leota tracts are not as yet so registered does not as a matter of law mean that grantor had ho title in the Leota lots. ... It would be *21needless . . . (and an unwarranted dilution of the public policy behind the common law) to preclude an implied easement of necessity because of the possibility of claims by a stranger.
9 A.S.R. at 32-33. On the present record the trial court was correct to conclude that the Leotas had acquired only such property rights as Aleki Noa had the power to convey to them in 1987. Those rights were subject to an easement in favor of the Schusters. If some other person should prove in some other .case that he and not Aleki Noa was the true owner of the tract sold to the Leotas, it might follow that the Schusters’ easement must be over the Sese tract or perhaps elsewhere. Until and unless this should happen, the easement is over the Leota property.
Finally, appellants urge that the trial court never had jurisdiction over the case. They contend that A.S.C.A. § 43.0302 deprives the Court of jurisdiction unless there is an "irreconcilable dispute," and that a letter dated August 28, 1987, from Puleleiite M.F. Túfele of the Office of Samoan Affairs negatives the existence of such a dispute. This contention is wrong for at least three reasons:
First, appellants misread A.S.C.A. § 43.0302. The statute requires only that in cases involving, communal land or matai titles, the plaintiff must "file with his complaint a certificate" from the Office of Samoan Affairs certifying that the parties have met twice at that office and that the meetings did not result in a resolution of the dispute. Plaintiffs in this case, the present appellees, did file such a certificate. LT No. 5-88, Exhibit "D" to Complaint. The certificate was dated February 3, 1988, and signed by the very Puleleiite on whose earlier letter appellants now rely as evidence that there was no dispute. The record therefore reflects that the jurisdictional requirement was met.
Second, even if it mattered whether the 1987 letter from Puleleiite negated the existence of an irreconcilable dispute, we would conclude that it did not. The letter merely states the outline of a proposal by Aleki Noa to resolve the dispute by establishing a route of access over the Seses’ land. It does not even hint that the Seses or the Schusters had ever agreed to this proposal. The record clearly reflects that they did not. Indeed, the answer filed by defendant/appellants specifically admitted the existence of an irreconcilable dispute. LT No. 5-88, Answer, paragraph 12. Only in their Post-Trial Memorandum did defendant/appellants begin relying on the Puleleiite letter as evidence that there was no dispute and therefore no jurisdiction.
*22Third, by its terms A.S.C.A. § 43.0302 does not apply to disputes over individually owned land. As we have already stated, the trial court was correct to conclude, on the present record and for the purposes of the present proceeding, that the tract purchased by the Leo tas had been and continued to be individually owned.
We therefore affirm the judgment of the trial court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485790/ | Per Rees, J.:
Appellant Ifopo sued for eviction of the Siatu‘u family from a small piece of land claimed to be communal land of the Ifopo family. The land, however, was registered in 1945 as the individual property of Reverend Peleti Siatu‘u, the late father of the appellees. Ifopo claimed that Siatu‘u never had any right to. register the land and that the registration did not confer title; the Siatu‘us responded that their father had bought the land from the father and grandfather of the present Ifopo and registered only what he' had purchased.
The trial court held that when land is offered for registration in accordance with A.S.C.A. §§ 37.0101 et seq., anyone who wishes to object on any ground whatever to the registrant’s claim of ownership must do so within the statutory sixty-day limit. Ifopo v. Siatu‘u, LT No. 10-88, 10 A.S.R.2d 66 (1989); see A.S.C.A. § 37.0103 (a)-(b). If an objection is lodged within the sixty days, the matter is referred to the High Court for adjudication of the competing claims; if not, the land is registered in the name of the claimant and all other claims of ownership are forever precluded. Puluti v. Muliufi, 4 A.S.R. 672 (1965); Molitui v. Pisa, 2 A.S.R. 268 (1947).
Appellant urges that for the Court to give such preclusive effect to the registration process amounts to a sort of judicial transfer of the land from the "true" owner to the registered owner. As the trial court observed, however, the registration statute gives anyone who believes himself the owner of land a fair opportunity to present his claim to the court; it then conclusively presumes that anyone who did not avail himself of this opportunity was not the true owner of the land.
Appellant urges, however, that in giving effect to the registration statute the trial court failed to take account of the statute prohibiting *27alienation of communal lands without approval of the Land Commission and the Governor. This prohibition is currently codified as A.S.C.A. § 37.0204, and was formerly contained in 18 A.S.C. §§ 1281-82. In the present case there was no evidence that any sale from Ifopo to Siatu'u was approved by the Governor and the Land Commission. Appellant urges that the Court must "reconcile" the registration statute with the prohibition on alienation of communal lands, and that the proper reconciliation is to treat the registration by Siatu'u as null and void unless it should affirmatively appear that his purchase from Ifopo was approved by the Land Commission and the Governor.
The statutory registration process, gave Ifopo or any member of the Ifopo family sixty days in which to urge any objection to the proposed registration by Siatu'u. This would include the objection now urged by Ifopo: that the land was communal and that no. sale was approved by the land Commission or the Governor. If such an objection had been made and proved, Siatu'u would never have been allowed to register the land. Since no objection was made within the specified period, the law now conclusively presumes either that the procedures for alienation of communal land were met or that the land was not communal.
The purpose of requiring such an objection to be made within sixty days of the proposed registration was precisely to relieve the registrant of the burden which appellant now wishes the Court to impose: the burden of disproving the objection by affirmatively proving every fact necessary to establish title after the passage of many years, during which witnesses would tend to die and documents would tend to be lost or destroyed. The registration statute does not ignore or nullify the restriction on alienation, but provides a channel for its orderly administration. Since the statutory scheme effects its own reconciliation of the competing policies, there is no need for the Court to fashion a new and different one by refusing to enforce the registration statute.
Finally, Ifopo urges that the registration was invalid because the required notice was never given. This contention is based partly on the testimony of Ifopo herself (who did not live in American Samoa in 1945) to the effect that neither she nor any member of her family ever learned of the proposed registration, and partly on the absence in the files on the Territorial Registrar of a certificate from the pulemTu that the required notice had been given.
*28This contention is. easily the most serious of those raised by appellant. If no notice was given, then the central purpose of the registration statute was defeated and due process of law was denied. Courts can and do disregard registrations that are clearly proved to have been procured by fraud, or in which the failure to afford the required notice affirmatively appears in the record of the registration itself. See, e.g., Faleafine v. Suapilimai, 7 A.S.R. 2d 108 (1988).
The Territorial Registrar, however, is charged with registering title only when all the statutory procedures have been met, and the Court should not assume that he did not comply with this obligation. As the court observed, that a document should be missing from a file in the Registrar’s office is so common as to be an extremely unreliable indicator of whether an event that might have been attested by the document did or did not occur. Nor can the Court conclude that no notice was given simply because a number of witnesses testified that they never saw any notices. The registration statute cannot have the intended effect of affording finality to disputes and security to titles if the Court is prepared to conduct its own de novo review of whether there was compliance with the statute in every case where non-compliance is alleged. Rather, the Court must assume — and, absent compelling proof to the contrary, must conclude — that the Registrar recorded a title only after complying with his obligations under the law.
In the present case the trial court correctly refused to look behind a Registrar’s certificate of title that had gone unchallenged for over forty years. As the trial court observed,
[e]ven a casual glance at the [registration statute] . . . would reveal the unmistakable legislative design to secure finality of the registration process. A review of the process some 40 years after the fact must surely be in derogation of that objective. If review could be readily available at any time whatsoever, then any public confidence in the recordation process will disappear and "[the] security of registered land titles would be seriously weakened to the detriment of the Samoan people."
10 A.S.R.2d at 70, quoting Molitui v. Pisa, supra, at 270.
Accordingly, we affirm the judgment of the trial court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485806/ | On petition for stay:
Appellant has been ordered by the Immigration Board tp leave the Territory for his country of origin by August 31, 1989.
He now moves ex parte for a stay of this order pending judicial review.
The Court cannot entertaip such an ex parte motion. Appellate Court Rule 18 specifically requires that "[Reasonable nptjce of the motion shall be given to all parties."
Moreover, á stay pf a deportation order should not be granted unless petitioner proves both that there is a substantial likelihood of his prevailing on the merits and that he will be greatly or irreparably injured if the stay is not granted. Leti v. Immigration Board, 8 A.S.R.2d 107 (1988). Such proof ordinarily requires a hearing. It is not clear why this motion is being made only two days before the deadline, when a hearing with the requisite reasonable notice will be difficult if not impossible to arrange.
If, however, petitioner complies immediately with the notice provision of Rule 18, it may be possible to schedule an expedited hearing at some time during the next two days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485793/ | Memorandum Order:
This case arose from a petition by Gi Malala for the Court to order Leaia Temu and Solema Temu evicted from Gi family land.
Trial of the case was held on Mqrch 15, 1989. The Court requested the parties to attempt a settlement, suggested the terms of a possible settlement, and asked the parties to report back to (he Court within thirty days.
On May 20, 1989, the Court requested a report from counsel about the progress of any attempts at settlement.
On June 2, 1989, counsel for plaintiff Gi filed a report indicating that there had been no settlement or reconciliation among the parties; that a building had been dismantled by the defendants had been suggested by the Court; but that the defendants had never apologizéd to Gi as had also been suggested by the Court; and that the defendants had in fact begun clearing a new area previously assigned to other persons.
On June 15, 1989, counsel for defendants filed a report saying that the building had been taken down, but not contesting plaintiffs allegation that no attempts at apology or reconciliation had been made by defendants.
On June 27, 1989, the Court issued its opinion and order. The Opinion and order affirmed the right of Gi to evict the defendants, and ordered them to vacate the property within thirty days unless Gi should give them permission to remain. [Gi v. Temu, 11 A.S.R.2d 137 (1989).]
No motion for reconsideration or new trial was filed by the defendants within the ten-day period required by A.S.C.A. § 43.0802(a).
*35Today, August 7, 1989, a lengthy memórandum addressed to the Justice who presided at trial has been hand-delivered to the Court. The memorandum is dated July 17, 1989. No explanation is given for the twenty-one day delay in its delivery. It is signed by several persons including defendant Solema, and it states that "the defendants and we children of Temu Malala just received the Clerk’s Entry of Judgment."
The memorandum then states a number of things its signatories believe to have been wrong with the Court’s decision. Aside from general disapproval of the Court, of Gi Malala, and of certain uncles and aunties who are said to have been responsible for allowing Gi Malala to become sa‘o of the family, the memorandum contends (1) that the Court’s statement that defendant Solema is not a blood member of the family is contrary to the evidence at trial; and (2) that defendants did in fact attempt a reconciliation with Gi but that he evaded and then rebuffed them.
The deadline for filing a motion for new trial was July 7, 1989, A copy of the opinion and judgment were served on défendants’ counsel on June 27. It was his duty to inform them of the result in the case in time for them to decide whether they wished to file a motion for new trial or reconsideration. When they did not file such a motion by July 7, defendants gave up their right to appeal the decision. See A.S.C.A. § 43.0802(a),(b).
Although it is true, as is pointed out in the memorandum, that defendants’ counsel has been suspended from the practice of law for a period that began on July 1, he should have informed them of the opinion and explained their right to appeal prior to July 1.
The deadlines for filing motions for new trial and appeal are set by the Fono. The Court is not free to overlook or extend them. The Rules of Civil Procedure do provide, however, that a party may file a Motion for Relief from Judgment later than ten days after the judgment. T.C.R.C.P. Rule 60(b). In order to prevail on such a motion, a party must show not only that the judgment was wrong but also that he has some compelling justification for not having called the mistake to the Court’s attention within the ten days provided for filing a motion for new trial. Motions for Relief from Judgment are only granted in the most extraordinary circumstances. (This explanation is a simple and therefore incomplete one; the defendants are strongly urged to seek new counsel if they wish to pursue this matter.)
*36Since the memorandum submitted on behalf of defendants states that the defendants had "just received" the judgment on July 17. If so, and depending on the circumstances, this might support a motion for relief fropi the judgment. Since the memorandum does seem to seek relief from the judgment, the Court will construe it as a Rule 60(b) motion and will set it for hearing on August 22, 1989.
Defendants have the right to represent themselves at this hearing, but the Court strongly urges them to seek representation of counsel. If they do wish to be represented, they should retain a lawyer or legal practitioner today so that he will have time to prepare for the August 22 hearing.
The setting of this matter for hearing does not give defendants the fight to ignore or disobey the judgment against them. The defendants were ordered to vacate by July 27. The memorandum filed on their behalf seems to indicate that defendants do have places to live other than the Gi land. Until and unless their motion is granted, they must obey the Court’s order of June 27.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485794/ | Per Canby, J.:
This appeal is from a decision of the Land & Titles Division denying appellant Willis’s application to register, on behalf of himself and others, a tract of land of approximately 297 acres. [Willis v. Fai'ivae, 10 A.S.R. 121 (1989). The survey offered by Willis is substantially identical to a survey involved in a land registration case decided in 1906, To'omata v. People of Leone, 1 A.S.R. 142 (1906).
The land, or part of it, has borne the name "Lega‘oa," the "flat land," and is so denominated in the 1906 decision. Underlying the controversy now on appeal is one question: whether "Lega'oa" originally included land of the Leone valley all the way from the mountains to the sea, or whether "Lega'oa" referred only to a smaller tract of flat land between the Village of Leone and the mountains. Appellant Willis contends that "Lega‘oa" was the larger tract, and that the 1906 decision referred only to the flat lands within the 297 acre survey. Those flat lands were approximately 60 acres in extent, of which the inland half was awarded to Willis’s predecessors and cotenants.1
*39Willis now argues that the trial court misinterpreted the 1906 decision, and incorrectly decided the boundaries of Lega‘oa. We reject the contention. The trial court wrote an extensive and well-reasoned opinion in support of its order denying reconsideration, and we adopt its reasoning. We need not repeat the many considerations that led the trial court to conclude as it did. Prominent among them are the frequent references in the historical materials to Lega‘oa as the "back lands” behind the Village of Leone; the lack of vigorous contention that would have attended the 1906 claim by Willis’s predecessors had that claim included the Village of Leone; and testimony by Talamaivao at the 1906 trial that a tract called "Pugaloa". was the seaward boundary of Lega'oa.
The question of the extent of Lega'oa is one of fact. The trial court’s resolution of that issue was not clearly erroneous. On the contrary, it was very well supported on the record. The trial court also correctly interpreted the 1906 decision in apportioning the flat lands. We therefore affirm its decision.
Appellant Willis raises an objection to the procedure of the trial court. The trial was bifurcated, without objection, and the first part of the trial was concerned with events occurring up to 1918. Willis put on his case and rested. Willis then testified at length in support of other plaintiffs, who then rested. At this point, the trial court concluded that plaintiffs could not establish their claim by a preponderance of the evidence, in the face of the documentary evidence to the contrary. The trial court accordingly dismissed the complaint of Willis and those sharing his interest.
Willis contends that the procedure of the trial court was unfair, and constituted a "rush to judgment." But Willis had an ample opportunity to present all of the evidence needed for his case in chief, and he rested. The trial court even assumed as true some evidence that Willis indicated that he would have offered in rebuttal. The meaning of the 1895, 1906, and 1918 court decisions was well supported in documents. There was no reason why the trial court was required to hear more evidence when plaintiffs’ case in chief was insufficient to make out his claim. There was no unfairness and no error.
The judgment of the Land & Titles Division is AFFIRMED.
The trial court also reviewed two other decisions. One was a decision of the Supreme Court of Samoa in 1895, dealing with a claim of Alfred Hunkin to certain lands within or near the lands in issue here. Hunkin v. Iulio, Rehearing of Claim No. 2791, Supreme Court of Samoa, decided September 10, 1895. Hunkin’s claim had some bearing on the location of "Lega'oa.” The second decision was one of the High Court in 1918, which held that the disputed lands that had been awarded to To'omata in the 1906 decision were held by him as Tuitele and by Tali and Amelia Va as cotenants with him. Falesau v. Tuitele, 1 A.S.R. 298 (1918). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485795/ | Per Canby, L:
.This case pomes to us from the Land & Titles Division, where Tela P. Tagoa‘i offered to register 5.62 acres of land as communal property of the Tela family, of which.he is the senior matai, Soli Aoelua objected on the ground that Tela’s survey included land belonging to the Aoelua family.
The trial court held that a substantial portion of the 5.62 acres was a part of a tract entitled "Failafua," which was ordered registered to the Aoelua family in Aoelua v. Tela, LT No. 31-80 (1982), affirmed. Tela v. Aoelua, AP No. 48-82 (1982). Tela’s claim for registration of that portion was accordingly denied, [Aoelua v. Tela, 10 A.S.R.2d 20 (1989).]
Aoelua did not object to Tela’s claim to the portion of land in Tela’s purvey lying to the north of "Failafua," and the Land & Titles Division permitted Tela to register that land.
There was an additional southern and small portion of the land in Tela’s survey that was outside the previous adjudication, but was contiguous to the land awarded to Aoelua in 1982. This land wps claimed by Aoelua on the ground that it was communal land of the Aoelua family, like the adjoining tract. Tela contpsted this claim pn the same ground that he had urged in the 1982 litigation: that the Aoelua title was a lesser matai of the Tela family. The trial court pointed out that this theory had been rejected in the 1982 litigation. It also held that a preponderance of the evidence showed actual and habitual occupation of the disputed southern portion by members of the Aoelua family. Tela was accordingly denied registration of the contested southern portion. Tpla now appeals.
Tela does not dispute the occupation of the disputed southern tract by members of the Aoelua family. He argues very strongly, however, that they cannot hold the land independently for the Aoelua family because the Aoelua title is a lesser matai of the Tela family. Consequently, he contends, they occupy the land as communal property of the Tela family.
*42The difficulty with Tela’s argument is that it is precisely the same issue of fact that was decided between the same parties in the 1982 litigation. Indeed, the only point nade by the Appellate Division in affirming the 1982 decision of the Land & Titles Division was that the two titles were separate and that the Aoelua family was capable of holding communal land in its own name independently of the Tela family. Because that issue .was actually litigated by the same parties in the 198? case, and its resolution was essential to the court’s- decision, Tela is collaterally estopped , from denying the separate and independent nature of the two titles today. Restatement (Second) of Judgments § 27.
Tela also argues that the 1982 decision itself should be reconsidered.1 He contends that it was wrongly decided, and that even today the. Aoelua title is recognized as a lesser title of the Tela family. The 1982 decision, Tela contends, .was so contrary to custom that it violates the Treaty of Cession, under which the United States was obligated to protect Samoans’ rights to their lands. . >
All of Tela’s arguments either were presented or should have been presented to the Land & Titles Division and the Appellate Division in the 1982 litigation. With regard to the lands subject to the 1982 litigation, the court’s decision is res judicata. It would be totally contrary to the principles of finality underlying the judicial process to relitigate a matter1 that was fully litigated seven years ago. We decline to revisit the matter.
Tela finally contends that the 1982 decision permitting Aoelua to: register "Failafua" was in violation of A.S.C.A. §.37.0101, which provides that land should not be registered when a competing application for registration is pending. This, too, is an argument that should have been addressed to the Land & Titles Division during the 1982 litigation. The 1982 decision is res judicata even if a mistake of law was made. See Fauntleroy v. Lum, 210 U.S. 230, 237 (1908); 46 Am. Jur. 2d Judgments § 641 & n.7 (1969).
Nothing in § 37.0101 renders void a final judgment entered in violation of'its terms, or otherwise permits a collateral attack on that judgment. Moreover, the purpose of § 37.0101 is to preclude registration of land without the opportunity of competing claimants to be heard. Tela was an objector to Aoelua’s 1982 registration, apd his *43competing claim was fully heard and decided. He cannot havé been prejudiced by the court’s failure, if failure it was, to determine hig competing application for registration at the same time.
The judgipent of the Land & Titles Division is in all respects AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485796/ | Per Canby, J.:
Seigafolava R. Pene appeals his conviction by a jury on two counts of unauthorized practice of law, in violation of A.S.C.A. § 31.0104. He attacks his conviction on several grounds.
Speedy trial
Appellant first argues that he was denied his right to a speedy trial, guaranteed to him by Article I, Section 6 of the Revised *45Constitution of American Samoa. Appellant was first informed of the charges against him at his initial appearance on June 21, 1987. Although appellant thereafter requested that he be promptly tried, his trial was not held until July 12, 1988, over one year after his initial appearance.
There is no fixed formula for determining when the right to a speedy trial has been violated; each case must foe determined on its own facts. Barker v. Wingo, 407 U.S. 514, 530 (1972). Relevant factors are the length of delay, the reasons for the delay, a demand for trial by the defendant, and the prejudice to the defendant resulting from the delay. Id. In this case, the delay was long and a prompt trial was demanded, but the reasons for the delay were very substantial. One source of delay was that appellant caused subpoenas to be inappropriately issued to many officials, and motions to quash had to be entertained and granted. An even greater cause of delay was for competency examinations, resulting in the trial court’s ordering of 120 days of treatment for appellant. After the treatment, appellant was found to be competent to proceed with his trial. In light of the justifiable reasons for most of the delay, we conclude that there was no violation of the right to speedy trial. We also note that appellant was not substantially prejudiced by the delay; he was not incarcerated, and the documentary nature of the evidence minimized the danger of fading memories.
Self-representation
At his initial appearance, appellant elected to represent himself, and he consequently conducted his own defense before the jury, although with the advisory aid of an attorney designated by the court. Appellant raises many arguments that arise from the fact that he represented himself. He contends that his waiver of counsel was not informed and intelligent, that he should have been provided with counsel at his competency hearing, that his defense was incompetently conducted, and that he was inadequately advised by his advisory counsel.
Appellant is now represented by counsel on this appeal, however, and counsel has shown us nothing to indicate that appellant’s original decision to conduct his own defense was not voluntary, or that appellant was not made aware of the dangers and pitfalls of self-representation. The right to counsel is attended by "the correlative right to dispense with a lawyer’s help." Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942); see Faretta v. California, 422 U.S. 806 (1975). Appellant is thus free to represent himself at any stage of the criminal proceedings, including the competency hearing. Appellant *46chose to exercise his right to represent himself, and the trial court was correct in honoring that choice.
It is almost certainly, true that appellant’s defense would have been better conducted by a lawyer than it was by appellant himself, but that fact does not free appellant from the consequences of his choice. Sec Faretta, 422 U.S. at 834. Appellant is not entitled first to insist on his right to defend himself and then to insist that his conviction must be reversed because his defense was less than competent. The trial court did appoint a public defender to assist appellant during trial,1 and appellant conferred with him on occasion. The conviction was supported by documentary evidence and the trial was not a farce or mockery of justice. We are satisfied that defendant’s right to the assistance. of counsel was not violated.
Unauthorized practice of law
Appellant contends that the crime of unauthorized practice of law, as set forth in A.S.C.A § 31.0104, is so vague that its enforcement violates due process of law. He also contends that the acts of which he was found guilty cannot qualify as the unauthorized practice of law.
Section 31.0104 simply prohibits the "practice of law" without a license or the authorization of the Chief Justice. While "practice pf law" is a general term, it has been held to be sufficiently definite that its employment in a criminal statute satisfies the demands of due process. Hackin v. State, 102 Ariz. 218, 220, 427 P.2d 910, 912 (1967); People v. Ring, 26 Cal. App. 2d 768, 70 P.2d 281 (1937). We adhere to that rule.
Appellant’s contention that his actions cannot qualify as the practice of law is presented to us in an awkward posture. Appellant did not object to the court’s instructions to the jury, and he has not attacked the instructions on appeal. His argument is therefore reduced to a contention that the actions with which he was charged could under no circumstances be found to constitute the practice of law. We reject that claim.
*47We need not describe the outer boundaries of the practice of law, because there is no question that legal representation of another in court, or in settlement negotiations with opposing attorneys, falls well within the definition. The evidence established that appellant filed a memorandum in Criminal Case No. 9-87 in support of a defendant’s motion for reconsideration of an adverse decision. The memorandum clearly contains legal argument offered on behalf of the third party, the defendant. The evidence is more than sufficient to support the jury’s verdict that appellant was guilty of the charge in Count I.
The evidence also shows that appellant undertook to write certain letters on behalf of a convicted prisoner, William Lloyd. One letter, to Lloyd’s former lawyer, states that appellant is prepared to bring a civil action on behalf of Lloyd "pro se" against the Government of American Samoa. It also proposes an offer of settlement of Lloyd’s criminal case, to be transmitted to the government. Another letter, to an assistant attorney general, follows up on ”my personal offer and compromise," and urges further efforts on the part of the Attorney General’s office to negotiate regarding Lloyd’s case. These letters clearly support the jury’s verdict that appellant was guilty of the charge in Count II.
Conclusion
The conviction of appellant on both counts is AFFIRMED.
Because appellant has not been sentenced to imprispnment, the Sixth Amendment of the United States Constitution would not have required counsel to be appointed even in the absence of a waiver. Argersinger v. Hamlin, 407 U.S. 25, 40 (1972). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485797/ | On Motion for Reconsideration:
This case arose from plaintiffs claim that defendant owed $5602 as. the unpaid balance on a contract for the sale of crushed rock aggregate. Defendant counterclaimed, alleging damages ip the amount *49of about $40,000 from plaintiffs failure to perform in accordance with the contract. We held that the only elements of either party’s claim that had been proved at trial were: (1) an unpaid balance of $2590 on the purchase price owed to plaintiff and (2) damages suffered by defendant in the amount of $1155 on account of plaintiffs failure to load the crushed rock onto defendant’s trucks in accordance with a term of the contract. The net amount owing plaintiff was $1435, and judgment was rendered in this amount.
Defendant moves for reconsideration on two grounds. The first ground has to do with our observation that defendant’s total payments of $7225 on its account with plaintiff applied not only to the $9240 that had been billed for crushed rock aggregate, but also to $575 for other items supplied to defendant by plaintiff. This finding was in accordance with evidence that was admitted without objection at trial; it also accords with the parties’ stipulation with regard to the unpaid balance on the invoices that had been submitted for crushed rock. There was no dispute between the parties about the other items; $575 was billed for them and $575 was paid. The Court’s opinion mentioned these other items only because the invoices submitted as evidence included them — and payments for them - — along with the crushed rock. The reference to them did not resplt in an unwarranted $575 charge against defendant; on the contrary, it was necessary to avoid giving defendant an unearned $575 credit on the crushed rock bill for payments already credited against other invoices. (At the hearing on this motion the Court explained this to defendant’s counsel, who then waived this ground for the motion.)
Defendant’s second contention is that the Court should have awarded damages for "standby time" for defendant’s dump trucks and loader, said to have resulted from the need to wait at plaintiffs yard for plaintiff to produce aggregate that should have been produced earlier. All the facts necessary to support this contention — that plaintiff did not produce the crushed rock when it should have been produced in accordance with the parties’ understanding, that it was therefore necessary for defendant’s trucks and loader to wait at plaintiffs yard, that they were thereby diverted from other profitable work, and the amount by which defendant was damaged by such diversion — are said to have been proved by the uncontroverted testimony of defendant’s owner/operator.
Plaintiff did, however, present testimony to the effect that defendant’s loader had been left at plaintiffs yard, for the convenience of defendant, for some weeks or months prior to its use in loading the *50crushed rock. Plaintiff also presented evidence that its delivery of the crushed rock was in accordance with the schedule contemplated by the parties. Plaintiffs evidence on these points was no better than defendant’s, but neither was it any worse: each party relied almost exclusively on the testimony of its owner/operator. As detailed in our original opinion, each of these witnesses made so many extravagant and misleading claims that his unsupported testimony must be regarded as insufficient to meet even the slightest burden of proof. On at least two points necessary to sustain this ground for reconsideration — that plaintiff kept defendant waiting in violation of the terms of the contract,1 and that defendant’s loader was diverted on account of this breach rather than having been stored there all along — the defendant had the burden of proof and the evidence was an exact tie. We therefore declined to award any "standby" damages.
Even if defendant had proved that it was necessary to leave the loader and dump trucks at plaintiffs yard for long periods of time on account of plaintiffs failure to have crushed rock ready as promised, we would not have exceeded our discretion in insisting that defendant’s principal tell us the exact details of the profitable uses from which the equipment was allegedly diverted — or in inferring from his failure to supply such details that there was no such profitable use and therefore no monetary loss from the diversion. Defendant cites a case in which an appellate court upheld the trial court’s assessment of damages on the basis of testimony by a single interested witness as. "the best [evidence] available." Allen v. Gardner, 272 P.2d 99, 104 (1954). The trial court in Allen evidently thought more of the witness in question than we do of this one. The case does not support the proposition that a trial court is bound to believe the "best available evidence" when this consists solely of the testimony of a witness whom the court has reason to believe is not telling the truth.
The motion is therefore denied.
This alleged breach is distinct from the one we did find, viz., plaintiffs failure to supply the crushed rock "free on board" by using its own loading equipment. On account of this breach we awarded defendant its principal’s own estimate of what it cost him to load the rock using his own loader. For "standby time" he would have to prove not only that it was necessary to use his own loader, but that plaintiff somehow made it necessary for the loader to wait at plaintiff’s yard while it was not actually being used. This was alleged but not proved. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485799/ | Per Rees, J.:
This appeal concerns the power of a sa‘o to allocate family land. The trial court held that appellee Tiapula acted within his authority in reassigning a tract of Tiapula land formerly occupied by the appellants, and in ordering the disassembly of a small Samoan-style house on the tract, after appellants had abandoned the house and land. Toleafoa v. Tiapula, 7 A.S.R. 117 (1988).
As happens far too often in the Appellate Division of the High Court, this appeal is primarily a quarrel with the facts as found by the trial court. An appellant who seeks to overturn the trial court’s findings of fact on appeal bears the heavy burden of showing that these findings were "clearly erroneous" in light of the record. A.S.C. A. § 43.0801(b). Counsel for appellants in the present case makes no serious attempt to discharge this burden, choosing simply to ignore the trial court’s view of the facts rather than to explain in detail why this view was wrong. The legal arguments advanced by counsel are premised on the contention that *58appellants never did abandon the house and land: that appellant Aukuso Toleafoa lived in the house from 1983 until 1987 except during occasional visits to California. The trial court found, however, that "relinquishment of possession had occurred after the many years of absence" by appellants. 7 A.S.R.2d at 122. This finding was supported by testimony that Aukuso lived in Lauli'i and rarely visited the village of Alao in which the disputed house was located. The finding was not clearly erroneous and we decline to disturb it.
On the facts found by the trial court little is left of appellants’ argument. The trial court correctly stated the law:
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.
The trial court also correctly rejected appellants’ contention that a family member may avoid reversion to the matai and family by having a long-abandoned residence "looked after" by other family members who live elsewhere, or by executing sub-assignments to persons who are not family members.
Appellants urge that even if the sa‘o did have the power to evict them, they are entitled to compensation for the value of their house and of crops that were growing on the land. We cannot say that such compensation would never be appropriate. In the present case, however, the house was a fale constructed in 1977 at a cost of $600; the trial court found that the land was "unattended" and "overgrown"; and one of appellants’ own witnesses testified that the clearing of the "crops" on the land might have been done "as part of the ongoing beautification program." The trial court was therefore justified in declining to award compensation.
We affirm the judgment of the trial court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485800/ | Per Thompson, J.:
Nu‘uelea S. Pu‘u sustained damages as a result of the negligent operation of a motor vehicle by Silipa Leupule. Pu‘u sued Leupule and Continental Insurance Company. Continental was sued pursuant to the *60provisions of the compulsory third-party liability automobile statute, A.S.C.A. §§ 22.2001 et seq. Continental had issued a third-party liability policy covering Leupule and the vehicle involved in the accident. The policy was for the period from March 4, 1986 to September 3Q, 1986. The accident occurred March 3, 1987. Pu‘u alleged that even though the term of the policy had expired, and the policy had not been renewed, the policy nonetheless remained in full force and effect because Continental had not given notice of the pollicy’s expiration pursuant to A.S.C.A. § 22.2013. This section provides:
(a) The director of administrative services shall be notified by the insurance carrier of the cancellation of any motor vehicle liability policy ofinsurance at least 10 days before the effective date of such cancellation.
(b) In the absence of such notice of cancellation, the policy of insurance shall remain in full force and effect, except that any policy subsequently procured and certified shall on die effective date of its cancellation terminate the insurance previously certified with respect to any vehicle designated in both certificates.
(c) Upon receipt of the notice of cancellation, the license and all of the registration certificates-: of the person whose insurance has been cancelled shall be suspended by the director of administrative services and shall remain so suspended until that person files a certificáte of insurance.
A.S.C.A. §§ 22.2013.
The trial division granted summary judgment in favor of Continental. [Pu'u v. Leupule, 8 A.S.R.2d 68 (1988).] Pu‘u appeals. We affirm.
Section 22.2013 does not require notice of the "expiration" of a policy. This section only requires 10 days advance notice in the event of "cancellation" of a policy. In the present case, the policy expired because the term of coverage ran out and the policy was not renewed. The policy was not "cancelled." It simply "expired,"
*61The term "cancellation" as used in insurance law usually refers to termination of a policy prior to the expiration of the policy period by act of one or all of the parties; "termination," on the other hand, refers to the expiration of a policy by lapse of the policy period. See, e.g., Waynesville Security Bank v. Stuyvesant Ins. Co., 499 S.W.2d 218, 220 (Mo. App. 1973).
There is no legislative history to suggest that the Fono intended to alter this generally understood principle of insurance law when it enacted A.S.C.A. § 22.2013. Had the Fono intended to require insurance companies to give notice of a policy’s expiration as well as its cancellation it quite easily could have done so. It did not. Moreover, as the lower court noted in its opinion, the annual licensing requirement for a motor vehicle may not be met unless the vehicle owner provides certification of insurance. See § 22.1002(3). This statute provides a common commencement and expiration date for both license and insurance. It thus assures that at the time a license is issued a vehicle will be covered by a policy of insurance and that the policy will remain in existence during the term of the license; unless, of course, the policy should be "cancelled," in which event § 22.2013(a) requires 10 days advance notice of cancellation. If the policy is not cancelled, then upon expiration of the license period a renewed license for the vehicle can be obtained, but only if the expired insurance policy is also renewed, or a new policy is obtained. Section 22.002 then requires that certification of insurance coverage consistent with the requirements of §§ 22.1001 et. seq. be made to the director of administrative services as a condition of obtaining the renewed registration. Enforcement of these licensing/insurance requirements is effectuated by § 22.1003, which provides that license tags must be placed visibly on the front and rear of all vehicles, This enables law enforcement personnel to detect an expired license, and to discover any lack of insurance coverage. These statutes effectively implement the legislative scheme of compulsory motor vehicle liability insurance.
We hold that A.S.C.A. § 22.2013 does not require an insurance carrier to give notice to the director of administrative services when a motor vehicle liability policy lapses due to the expiration of its term.
The trial court’s grant of summary judgment in favor of Continental is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485802/ | This is yet another attempt by plaintiff to revive a land dispute that went to final judgment in Patea v. Taulaga, 4 A.S.R. 739 (1966), hereinafter referred to as the "1966 case." A previous attempt by the same plaintiff to reopen this litigation resulted in summary judgment and an award of attorney’s fees for defendant Patea. See Taulaga v. Patea, 4 A.S.R.2d 186 (1987), hereinafter referred to as the "1987 case," also *65a final decision of the Court. Plaintiff continues to challenge the judgment entered in the 1966 case which awarded. certain land, "Laloulu," to the Patea family. Plaintiff invokes at this time Trial Court Rule of Civil Procedure, Rule 60 (which tracks the language of Rule 6Q of the Federal Rules of Civil Procedure).
When plaintiffs complaint herein was served by delivery to defendant’s home, defendant was in fact off-island. After the usual period for responsive pleading had lapsed, plaintiff moved for default sanctions. However, prior to the hearing day for plaintiffs motion, an answer was filed on behalf of defendant together with a counter-motion for summary judgment and attorney’s fees. For reasons given, we; grant defendant Patea summary judgment and attorney’s fees and at the same time deny plaintiffs motion for default.
Discussion
The circumstances presented here magnify the very policy reasons behind the general objective for judicial finality. The Patea family finds itself today having to again defend its title to the land "Laloulu," which title had been affirmed in the Patea family by the Court some 23 years beforehand.
Plaintiff asserts today in his pleadings that he is entitled to a "retrial" pursuant to Rule 60 because: (1) the Court had made mistakes in both the 1966 case and the 1987 case; and (2) that plaintiff can produce new evidence not presented or available to the Court previously.
Trial Court Rules of Civil Procedure, Rule 60(b) empowers the Court to relieve a party, other than the party in whose favor judgment is rendered, or his legal representative from a final judgment for any of six enumerated reasons. The rule uses the word "may" and thus granting motions under the rule is subject to the Court’s sound discretion.
Furthermore, the availability of relief thereunder is not without time limitations. The rule generally requires that motions be made within a reasonable time, and, in the case of motions pursuant to clauses (l)-(3) of the rule, no more than one year after entry of judgment. Thus a motion under one of these first three clauses made beyond the one year period must be denied regardless of the reason shown for delay. Ackermann v. United States, 340 U.S. 193 (1950). Additionally it is settled that clauses (l)-(3) on the one hand, and the catch all provision of clause (6) — "any other reason justifying relief" — on the other, are *66mutually exclusive so that resort to the latter may not be had to escape the time limits applicable to motions grounded on the former. Klapprott v. United States, 335 U.S. 601 (1948), Ackermann v. United States, 340 U.S. at 193.
In the present matter, the pleadings, in terms of the 1966 case, seek relief under Rule 60(b)(1) — mistake, etc., — and Rule 60(b)(2) — newly discovered evidence. Plaintiffs claim to relief is time barred.
Additionally, we exercise our discretion in favor of finality and an end to the needless protraction of litigation. After 23 years of settled expectations the equities are against the reopening of judgment. Our conclusions are necessarily dispositive of any claims to relief with regard to the decision of the 1987 case. Indeed the decision in that case is also res judicata.
Defendant Patea’s motion for summary judgment is granted. Defendant is awarded his attorneys fees and costs. A statement of fees and costs shall be submitted for the Court’s approval. Plaintiffs motion for default is denied.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485803/ | University Industries, Inc., moves, pursuant to Trial Court Rules of Civil Procedure, Rule 12(b)(2), to dismiss plaintiffs complaint against it for lack of in personam jurisdiction. Plaintiff Patau argues that he has not had sufficient time to meet the allegations set forth in defendant’s supporting affidavits and thus requests permission to undertake depositions and other discovery on the issues of fact raised by tjie motion. Plaintiff further contends that defendant will not be unduly prejudiced by the resulting delay.
Given the early posture of this case we hold that plaintiff should be given the opportunity to conduct discovery as to the jurisdictional facts. Following discovery, plaintiff shall be required at an evidentiary hearing to prove jurisdiction by the preponderance of the evidence.
Accordingly, defendant’s motion to dismiss is continued and either party has leave to conduct discovery as to the jurisdictional facts.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485804/ | The Court finds the facts to be as follows:
1) Plaintiff Vaimaona Foloi is the senior matai of the Vaimaona family of the village of Lauli‘i. The other plaintiffs are members of the Vaimaona family.
*692) Defendant Fa'amamafa Tuitasi is also a member of the Vaimaona family.
3) On or about December of 1977, plaintiff Vaimaona Foloi executed a warranty deed conveying a certain portion of the Vaimaona communal land called Mulipa to defendant Tuitasi.
4) Defendant Tuitasi then undertook to register the tract as her own individual land. The record does not reflect whether, before or during this initial attempt at registration, defendant Tuitasi or plaintiff Vaimaona Foloi attempted to secure approval of the conveyance by the Land Commission and the Governor, as is required by A.S.C.A- §§ 37.0201 et seq. for the alienation of communal land.
5) When plaintiff Arieta Vaimaona learned of the warranty deed, and of the pending registration procedure, she complained to various government officials including the then-Acting Governor. The record does not reflect that any formal action was taken by the Registrar, the Land Commission, or anyone else to deny the registration. All parties agree, however, that Ms. Vaimaona’s efforts somehow resulted in the destruction or disappearance of the original copy of the warranty deed.
6) At a meeting of the Land Commission either on September 28, 1987, or shortly before that date, plaintiff Vaimaona Foloi appeared personally before the Commission to seek its approval of his conveyance of the land to defendant Tuitasi. Members of the Commission asked him if he had consulted with his family about the transaction, and he said he had not. Members of the Commission then recommended that he not alienate the land without consulting with his family, and also suggested that a separation agreement in favor of Ms. Tuitasi would be far preferable to an outright conveyance.
7) Either later the same day or at a subsequent meeting of the Commission, Vaimaona Foloi returned to the Commission and reiterated his request for Commission approval of the conveyance to Ms. Tuitasi. This time, at a meeting held on September 28, 1987, the Commission approved the conveyance.1
*708) On October 2, 1987, the conveyance was approved in writing by then-Govemor A.P. Lutali. (This was done by signing a copy of the warranty deed.)
9) Meanwhile, on August 6, 1987, defendant Tuitasi had offered the deed for registration as her individually owned land. Notice of the offer of registration was posted at the Court House and at two public places in Lauli‘i as required by law, and on October 20, 1987, no objection having been filed to the proposed registration, the Territorial Registrar recorded the land as the individually owned property of defendant Tuitasi.
It is the conclusion of the Court that the land is the individually owned property of defendant Tuitasi.
Plaintiffs’ complaint alleges that the defendant defrauded Vaimaona into thinking he was signing something other than a warranty deed. Then she is alleged to have waited ten years and snuck the conveyance past the Land Commission without the knowledge of any of the plaintiffs. Far from proving any of this, the evidence establishes that Vaimaona was specifically advised by members of the Land Commission of the nature of the conveyance yet reiterated his request that it be approved.
It does appear that plaintiff Vaimaona, the sa‘o of the family, acted under the influence of the forceful personality of defendant Tuitasi. It also appears that Vaimaona and others, including whoever improperly removed or destroyed the original copy of the deed, have been influenced at times by the equally forceful personality of plaintiff Ar jeta Vaimaona. Such influence does not render null and void the otherwise lawful actions of the sa‘o, the Land Commission, the Governor, and the Territorial Registrar.
If there was any fraud in this case it was by the sa‘o himself against the members of the family who should, in accordance with Samoan custom, have been consulted before any family land was alienated. This is not, however, an action by such family members *71against the sa‘o; he appeared in this case as a plaintiff rather than a defendant. Aggrieved family members might well prove their entitlement to an accounting from the sa‘o, to compensation for any lands previously assigned to them that were alienated to Ms. Tuitasi, and possibly even to removal of Vaimaona from his matai title. They could not, however, secure the invalidation of the record title to the land. Although the real property statutes of American Samoa provide numerous safeguards in an effort to deter the alienation of communal land when such alienation would not be in accordance with tradition, a matai who is really determined to ignore tradition — and who secures the approval of the Land Commission and the Governor and complies with all other statutory procedures — is legally free to do so.
Finally, any objections to the registration of this land as the individual land of defendant Tuitasi come too late. A.S.C.A. §§37.0101 et seq., require that such objections be made within sixty days of an offer of registration or be forever barred. See Ifopo v. Siatu‘u, AP 12-89 (July 12, 1989). In this case, as in most other collateral attacks on land registration, those who would invalidate the registration testified that they never saw the notices posted. Such testimony is insufficient to meet the heavy burden of proving that the Registrar ignored his sworn duty when he recorded Ms. Tuitasi’s title to the land. See Ifopo, supra. In the present case the plaintiffs did not even call the Registrar or any member of his staff as a witness on the question of posting. In the absence of clear and convincing evidence to the contrary, the official record stands.
For the foregoing reasons, the action is dismissed.2 It is so ordered.
One member of the Commission who testified at trial, Western District Governor Tuitele Le'oso, remembered only the first meeting at which the members of the Commission advised Vaimaona not to convey the land. Another member of the Commission, former Manu‘a District Governor Soli Aolaolagi, testified to the subsequent appearance of Vaimaona before the Commission and the decision to approve his request. *70The official minutes of the Commission, attested by its secretary Territorial Registrar Pelema Kolise, confirm the Commission’s approval of the conveyance on September 28, 1987. The evidence therefore clearly preponderates in favor of Vaimaona’s reiteration of his request and the Commission’s ultimate approval thereof, although the record does not reflect whether the two appearances happened on the same or different days.
The foregoing are the findings and conclusions of the Associate Justice, who presided at trial. The judges have conferred on this matter and judgment is being entered today in accordance with A.S.C.A. § 3.0241(a). The Associate Judges have not, however, had the opportunity to review the written opinion of the. presiding judge, and reserve the right to concur, to dissent, or to join in the opinion. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485805/ | VAIVAO, J.,
concurring in part and dissenting in part:
Although the decision of the Court is correct according to the law, the sa‘o should never have alienated this communal land without consultation and consent of the family.
The Fono has recently enacted an amendment to A.S.C.A. § 37.0103 that will prevent the registration of land unless the proposed *72registration has been advertised at least twice in a local newspaper. Public Law No. 21-1. This law will go a long way toward solving the problems presented by cases like this one. The pono should also provide, however, that (he Land Commission may not approve the alienation of communal land unless it is satisfied that there has been full consultation with the whole family and that the family consents to the alienation. Indeed, the Fono should strongly consider an outright prohibition on the further alienation of communal land.
I concur in the judgment, because the law allows the Court no choice in the present case. But I strongly disagree with the law insofar as it allows any alienation of communal land except in strict accordance with Samoan custom.
(Rees, J., joins in this separate opinion.) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485807/ | On Motion to Intervene in Post-Judgment Execution Proceeding:
The Development Bank sued defendants for the balance due on a loan, and defendants stipulated that judgment be entered against them in the amount of $68,397.98. On December 29, 1988, a writ of execution was issued ordering the Marshal of the High Court to seize and sell property of the defendants in the amount of the judgment. The judgment creditor’s instructions to the Marshal specified-only one asset, a leasehold interest in "the premises commonly known as the Seaside Garden Club."
The Marshal did not immediately seize the Garden Club, which defendants were then sub-leasing to a partnership whose principal operating officer was Ma‘i Afuvai. Instead, by mutual agreement of the Bank, the defendants, and Afuvai, the monthly rent Afuvai had been paying to defendants was thereafter paid directly to the Bank. The Bank remitted $500 monthly to defendant Fanene Scanlan and applied the rest toward the judgment debt.
This arrangement broke down quite dramatically on the evening of June 1, 1989, when Mr. Afuvai, after an argument with Mr. Scanlan, closed the Garden Club and began throwing heavy objects around the premises. Several items were broken including at least one exterior glass door. Counsel for the Bank, driving by the Club on his way to work the next morning, perceived something amiss and posted a guard. The Bank then caused its seizure of the defendants’ interest in the Garden Club to be perfected.
The Marshal seized not only the premises but also the Club’s inventory, fixtures, equipment, and furniture. Afuvai has petitioned the Court for the return of most of the furniture and equipment, which he *76says is his own personal property. Defendants maintain, however, that the furniture and equipment pláced in the Garden Club by Afuvai became the property of Sam Scanlan, Inc., in accordance with the terms of the sub-lease to Afuvai.
The document in question does provide that lessee (the Afuvai partnership) was to "renovate and refurnish the interior" of the Club. The "initial costs of renovation, furnitures, equipments and inventories" were to be $30,000 "to be verified by invoices." In exchange for these renovations, lessee was to pay $2500 per month rent rather than some unspecified higher figure. Under the lease, therefore — contrary to the usual rule whereby only fixtures "permanently attached" to leased premises by a lessee are said to become part of the premises -r- the furniture as well as the other items purchased by Afuvai would have become the property of Sam Scanlan, Inc., had the lease run its course.
The lease also provided, however, that if it should be. "terminated due to the fault of the lessor then all improvements less depreciated value [would] be reimbursed to lessee." We are convinced that the lease did in fact terminate by the fault of the lessor, several months prior to Mr. Afuvai’s inexcusable outburst.
When defendants, by not paying their lawful debt to the Bank, caused a writ of execution to be issued against the leased premises, they breached the covenant of quiet enjoyment which is an essential element of every leasehold agreement. Because the Afuvai lease was unrecorded (and also because it appears to have been a lease only of the building, inventory, and equipment that comprised the Garden Club rather than of the land on which the Club was located) it gave rise only to contractual rights, not to a real interest in the property. Afuvai could have been lawfully evicted at any time after December 29, 1988, with no recourse but to try to collect his damages from the Scanlans. On that day, therefore, Afuvai was constructively evicted from the premises by the fault of the lessor. That the Bank initially chose not to shut down the Club and sell its contents, but instead allowed Afuvai to remain as a tenant at will, is irrelevant to an analysis of his legal relationship with the Scanlan defendants.
The record also reflects other breaches by the Scanlans. Having leased the Club to the Afuvai partners, Fanene Scanlan and some members of his family apparently continued to regard themselves as its proprietors. They demanded drinks on credit, and repeatedly threatened to fire employees who attempted to deny such credit. When part of the *77Club’s roof blew away and Afuvai secured another loose piece of the roof by placing a large rock on top of it, Fanene Scanlan told Afuvai to take the rock down because it was an embarrassment, but refuséd to fix the roof. Even if the Scanlans had not altogether lost control of the property, Afuvai would have been justified in regarding the lease as at an end well before June 1989.
Afuvai is still the owner, therefore, of the furniture and other improvements he installed, "less depreciated value." Although the actual cost of these improvements is disputed, the expenditure required by the lease was $30,000. At the time of the constructive eviction the lease had run for about 19 1/2 months of its 48-month term. The "depreciated value" owed by lessee upon the premature termination of the lease is therefore 19.5/48 x $30,000, or $12,187.1 As it happens, this is somewhat less than the amount Afuvai spent (even accepting the Scanlans’ estimate of about $6000 for labor costs rather than Afuvai’s estimate of $15,000) on the improvements that cannot easily be removed from the building: lumber, paint, doors, interior decorations, and so forth. Afuvai is entitled, therefore, to the return of all items in the Marshal’s inventory that are not affixed to the building by bolts, glue, or similar devices. He also remains the owner, in accordance with the lease agreement, of any kitchen equipment purchased by him whether or not it is affixed to the building. The Marshal is directed to return these items to Afuvai.
Whether Afuvai is liable to the Scanlans, or to the Bank, for damage done in the June 1 incident to items not belonging to him, is not before us in this proceeding. Nor do we express any opinion concerning the rights of Afuvai and his partners, if any, in "Garden Club Ltd." as among themselves.
*78It is so ordered.
Counsel for defendants suggests that the $30,000 should be depreciated only over the first two years of the lease, since the parties were to "review lease price after two (2) years and renegotiate a lease price fair to both parties." Counsel suggests that this term, together with Fanene Scanlan’s testimony that a previous tenant had been paying $5000 per month before going out of business, establishes that the $30,000 was fully depreciated over two years. We find this possibility no more or less plausible, however, than that the parties were to negotiate an increase or decrease according to the cost of living, or to the gross receipts of the Club, or to some other factor not in evidence. We know little or nothing about whether the "fair market value” of the premises was $2500, $5000, or some other figure. . The lease did not provide for termination after twp years if no new rate were negotiated; rather, in that case the $2500 figure was to remain in force for "the full terpt of this lease. ” The evidence therefore preponderates in favor of depreciation of the $30,000 over the four years of the lease term. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485808/ | Plaintiff (hereinafter "ASG") seeks to evict defendant (hereinafter "the airline") from a hangar and office space at Pago Pago International Airport. ASG also seeks judgment for past due rent, for the balance due on a promissory note, and for the return of money advanced by ASG to the airline in exchange for prepaid tickets.
The airline admits that it has not paid the rent, at least not in cash, for some time. It also admits to owing $24,497.58 on an open *79account, consisting partly of landing fees due ASG and of rents accrued as of May 1987 and partly of the balance on a promissory note executed by the airiine in January 1987 to consolidate earlier past due rents and landing fees. The airline further admits that it dishonored some prepaid tickets — purchased in vast numbers by ASG in order to help the airline with cash-flow problems — when further cash-flow problems made it seem necessary to accommodate "paying" customers in preference to prepaid ones. The prepaid tickets have in any case been unusable since late 1988 when the airline ceased its operations, and there is no immediate prospect of resumption.
The airline contests the right of ASG to evict it, however, by reference to a March 1988 agreement between the ASG Treasurer and airline officials. The agreement was as follows:
1) The airline would "not issue tickets to ASG representatives on credit" (a practice apparently preferred by many ASG employees but not by the Treasurer’s office); rather, ”[a]ll travel . . . will be made through prepaid tickets." The only exception was to be for medical emergencies.
2) The airline would make monthly payments of $500 on the promissory note.
3) In return, "any offsets made out of monies due to Manu‘a Air [e.g., for past ticket sales made other than through prepaid tickets] will be used to pay current ASG invoices."
The airline points out that during 1987 and 1988 offsets in the amount of $22,323.72 were credited against the balance of the promissory note. If instead only $14,000 had been credited against the note — $500 for each month between January 1987 and April 1989, when the present suit was filed — the $8000 remainder could have been applied to "current invoices" for landing fees and rent. Since the past due rent, other than the pre-1987 rent folded into the promissory note, is only $6270, the airline figures it is not really behind.
There are several problems with this analysis. The most obvious is that Manu‘a Air has not kept its two parts of the three-part bargain on which it relies. The airline was to make $500 monthly payments on the promissory note — cash payments, in addition to any offsetting obligations ASG might happen to incur toward the airline — and to honor ASG prepaid tickets and no other form of payment for ASG *80employees. In return, ASG was to apply offsets first toward current invoices and only then toward the promissory note. But the airline never made any of the promised payments, and it dishonored at least some prepaid tickets. ASG is therefore free to apply offsets to the earliest debt first.
Nor do we know how much, if any, of the $22,323 in offsets was applied to the promissory note after the March 1988 agreement. The only evidence presented by Manu‘a Air is that total offsets for calendar year 1988 were $20,191.48. If this entire amount had been credited to the promissory, note before the agreement was madé, ASG would not have been obliged to credit anything toward current rents, since the agreement was prospective only.
An ASG exhibit suggests that there was only one credit to the account of Manu‘a Air after March 1988, in the amount of $6090. Since this was insufficient to pay the $9005 in landing fees incurred during 1988, it is not clear that ASG was obliged under the March 1988 agreement to credit any of it toward the rent. Even if the $6090 credit had been allocated pro rata between rents and landing fees it would have left a substantial 1988 balance in each category.
In any event, during 1989 there have apparently been no offsets and no cash payments. Even if ASG had applied all 1988 offsets to current rents before applying them to current landing fees or to past due balances, and even if this had wiped out the rent arrearages for 1987 and 1988, it would not have relieved the airline of the obligation to pay subsequent rentals as they came due. Even exercising every factual and, legal presumption in favor of the airline, therefore, and ignoring its noncompliance with the 1988 agreement, the rent is still at least eight months overdue.
Finally, there is no evidence to support the airline’s claim that this is a retaliatory eviction. The only thing ASG appears to be retaliating for is the airline’s failure to pay the rent. Fat from being a pretext for the settling of an extrinsic score, non-payment is itself the only motive of which there was any evidence. This is the very opposite of a retaliatory eviction.
Accordingly, plaintiff will have judgment restoring it to immediate possession of the premises, and for $4370 in past due office rent, $1900 in past due hangar rent, $24,497.58 for amounts owing *81before May 31, 1987, and $12,737.50 for unusable prepaid fickets, or a total of $43,505.08 with post-judgment interest at the legal rate.
We express no opinion with regard to the unpaid AS<3 accounts alleged by Manu'a Air, as no evidence was presented in this action to substantiate them. Counsel for plaintiff and defendant are urged to review any such evidence and to stipulate to any amounts that should in fairness be credited against the judgment. In the event no such agreement can be reached, Manu‘a Air is free to bring a separate action or actions on such accounts, either against ASG or against any employees who may have incurred obligations not chargeable to ASG.
It is so ordered- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486480/ | Order Denying Motion for Summary Judgment:
Objectors Vi'i Pita, Tolani Teleso Fuga, Eletise Matagi Wolman, Senouefa Pritt, Tauinaola Lauama, Fiale Niko, and Sovita Living Trust moved for a summary judgment against defendants Miriama Garrett and Richard Garrett, Ray McMoore and Sese McMoore, Timu Family, Pearlita Candy Fuavai, Amerika Samoa Bank, and Does 1-10. The court regularly heard the motion on January 6, 1997.
DISCUSSION
*161On July 6, 1993, this court denied a motion for a preliminary injunction in LT No. 20-93 and declared that the title registration of approximately 8.37 acres of land known as "Tualepipi" in Ili’ili, American Samoa (“the land”), by defendant lone Fe'afe'aga Ene (“Ene”), now deceased, as his individually owned land was “void” because the registration was not in accordance with statutory law.
On December 21, 1995, this court ordered the Territorial Registrar to commence the title registration.process of the land in the name of Ene’s Estate, and in due course complete the registration process in full compliance with all applicable procedures. Unfortunately, the Territorial Registrar commenced the title registration process in the name of Ene’s “heirs,” not Ene’s “Estate.” Under A.S.C.A. § 40.0332, claimants under an estate include “heirs, legatees, devisees and creditors.” Thus, “heirs” is not the equivalent of an “estate,” and a finding that Ene’s heirs have title to all 8.37 acres would not guarantee that Ene’s grantees and their successors would have a right to own the land purportedly purchased from Ene prior to Ene’s death.
One of the goals of the court’s order to commence registration again was to enable the court to proceed with these consolidated actions and the pending probate of Ene’s Estate. We ordered the Territorial Registrar to commence registration in the name of the Estate. The Territorial Registrar failed to do so. Because the Territorial Registrar violated the court’s order, we hold that the action was ineffective for any purpose, and therefore void.1
ORDER
The court denies the motion for a summary judgment.
*162The Territorial Registrar shall commence the registration process of the land in the name of Ene’s Estate within 30 days of the entry of this order. Since Ene’s earlier attempt to register the property was “void,” i.e. “without force and effect and incapable of being enforced by law,” Black’s Law Dictionary 1411 (5th ed. 1979), we emphatically declare this process to be a new and original title registration, requiring new notice according to statutory prescription. Any party seeking judicial declaration of their interest in any portion of the property, including those individuals whose interests stem from Ene's Estate, must file an objection with the Territorial Registrar within the 60-day period following the commencement of the registration process.
We also reaffirm the court's order orally announced on January 6, 1997, that LT No. 14-93, LT No. 20-93, and LT No. 10-95 are consolidated with LT No. 20-96. However, we necessarily vacate the previously scheduled trial date of March 27, 1997 for these four consolidated actions to accommodate the renewed title registration process. Any party may move for a new trial date after completion of the title registration process.
It is so ordered.
The movants for a summary judgment seek a declaration that the parties opposing the motion do not own the land, or any part of it, and their dismissal with prejudice from these actions. The movants base their motion on the opposing parties’ failure to object, within the statutorily afforded 60-day time period, during the Territorial Registrar's purported title registration proceedings.
The opposing parties could rightly assume that the title registration would be initiated for Ene’s Estate, according to the court's order, and fail to register their objections or claims to the land, or some portion of it, with the Territorial Registrar. Citizens have a legitimate expectation that public officials will act according to court orders; as a matter of equity, the court is reticent to dismiss the claims of parties who detrimentally relied on this expectation. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485811/ | Both of these petitions for relinquishment of parental rights have been brought in contemplation of legal adoption by grandparents or otfyer family members. In each case the prospective adopting parents are considerably older than the natural parents, qnd in each cage the child has been living with the prospective adopting parents since birth.
The Court is permitted to grant a petitions for relinquishment of parental rights only when it finds that relinquishment would be in the best interest of the child, See A.S.C, A. § 45.0102(a)(1). In neither of these cases can we make such a finding.
*88The prospective adopting father in JUV No. 21-89 is almost seventy years old. He suffered a stroke a year ago and is still too sick to come to Court for the relinquishment hearing. The natural parents are young and healthy. Although the child has been adopted by his father’s older relatives according to Samoan custom, and although he may go on living with them for as long as this arrangement is suitable to all concerned, it is quite possible that at some time during his minority he may need the care and/or support of his natural parents. It would not be in his best interest to terminate their obligation to provide such support.
In JUV No. 49-89 the child’s natural parents and fiis grandparents live adjacent to one another. They sleep in different houses but otherwise live together as a Samoan family. The child is said to sleep in the grandparents’ house and to be under their primary authority, This arrangement has subsisted for nine years without the necessity of a legal adoption. The only effect of such an adoption, aside from any possible increase in the retirement or Social Security benefits of the grandfather, would be to deprive the child of the legal düty of support owed by his 38-year-old employed natural father and to substitute a similar duty on the.part of a 62-year-old retired grandfather. This .is not. to say that the grandparents may not continue to love and care for the child. But a change in legal relationships would not be in the child’s best interest.
The petitions are therefore denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485813/ | Per Kruse, C.J.:
Appellant, Moea'i Uliata, for himself and his communal family, appeals from a decision of the Land and Titles Division denying much of his offer to register title to some 15.5 acres of land located near the village of Faleniu. [Moea'i v. Te'o, 8 A.S.R.2d 85, motion for reconsideration den., 9 A.S.R.2d 107 (1988).] Basically underlying the appeal is a quarrel with the trial court’s unfavorable assessment of appellant’s evidence.
Appellant’s first contention is that his side presented "the most detailed history of its entitlement to the land." He urges, in rather strong terms, that there was substantial evidence to support his claim to all of the 15.5 acres and that the trial court was thus clearly in error.
With regard to findings of fact of the Land and Titles Division, the appellate court’s role is statutorily delimited in A.S.C.A. § 43.0801(b). This enactment provides that the Appellate Division may not set aside findings of fact below unless they are clearly erroneous. Trial Court Rules of Civil Procedure, Rule 52(a) not only restates this proscription, but further provides that "due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." This Court has previously given, in National Pacific Insurance Co. v. Oto, 3 A.S.R.2d 94 (1986), a detailed explanation why appellate tribunals defer to the factual judgment calls made by the trial court on the basis of conflicting testimony.
There is more to the trial court’s fact-finding exercise than merely making comparisons to see which is the more researched, the less contradicted, or the better sounding story. Credibility alone might negative the best presentation — the trial court with the live witness before it is in the best position to assess credibility. We note frpm the record at least one glaring difficulty with appellant’s exclusive claim to title which required explanation. That is, his claim to sole ownership of the area was directly inconsistent not only with documentary records (a lease of the land to the Mormon church in 1902 or 1903 and a deed of conveyance to the church) indicating a number of Faleniu chiefs as owners of the disputed land, but also contradictory with the result of at *93least one previous case which recognized appellee, Tuia‘ana, as a land owner in the vicinity. See Siufanua v. Uele, 2 A.S.R. 462 (1949).
Whether or not a dissatisfied litigant had himself presented substantial evidence is not, as appellant seems to suggest, the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court’s conclusions. Here, there was substantial evidence in support.
Appellant’s other contention on appeal is that appellee Tuia'ana is not a senior matai capable of holding land under Samoan customs and that the award of land to Tuia’ana was, therefore, error.
In its Opinion and Order on Motion for Reconsideration and Relief from Judgment, the trial court held that this issue was not properly raised at trial. Moea'i v. Te‘o, 9 A.S.R.2d 107, 111-12 (1988). We. agree. Moreover, we find that there is substantial evidence to support the alternative conclusion that Tuia’ana is a matai of Faleniu and can therefore own communal land.
The judgment of the Land and Titles Division is affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485814/ | Facts
Plaintiff is registered as the holder of the matai title Leaana of Lauli’i. He brings suit on behalf of the Mulitauaopele/Leaana family to enjoin certain construction undertaken by defendant, allegedly without authority, on the family’s communal land "Pataua."
Defendant, Loretta Laban, is a blood member of the family and a non-matai. She claims that the late Mulitauaopele Tamotu had assigned to her the site where the disputed construction is located, and that the work being undertaken on the site is actually the rebuilding of her home which had been previously destroyed by fire. She adds that if construction is enjoined, she would suffer economic harm in the way of liquidated damages payable to her contractor at the rate of $1,700 per week.
Both sides acknowledge that the senior matai with pule over family lands is the holder of the title "Mulitauaopele” (hereafter "Pele"). *95However, this title is currently vacant and a dispute about who may act for the family in the absence of a senior matai arose in the following circumstances.1 It is common knowledge in American Samoa that the relevant government authorities require the land owner, or senior matai in case of communal land, to sign off on building permit applications.' The signing of building permits has taken on very significant implications in the communal context. It is indeed an act of "pule." When Leaana and other family members checked into the permit issued by the government to the defendant, they discovered that "Pataua" is stated to be owned by one "Konelio Pele." Konelio is a non-matai family member and a contender for the family’s senior matai title. (In his bid for the family title, Konelio is supported by the defendant.) He admitted signing defendant’s permit application because, as he said, Leaana was off-island at the time.
Defendant’s position, as she testified, is that even if plaintiff was on island at the time, she would not have sought his approval of her permit application. She maintains that "Leaana" is the traditional designation for the head of the aumaga (kava bearers), and accordingly she does not recognize Leaana as a matai of the family with matai authority.
Plaintiff, who is also a contender for the Pele title, claims that in the absence of the senior matai, the Leaana titleholder is the next matai in rank with the appropriate family authority to sign on government papers concerning family assets. He acknowledged that he was not against the rebuilding of defendant’s house and would have approved, on behalf of the family, defendant’s permit application if she had properly requested him to do so. What plaintiff does consider objectionable is the apparent attitude that without a senior matai there is no family control and that therefore people like the defendant may do as they please without regard for family norms. For example, plaintiff spoke of defendant’s stubborn refusal to bury her father’s body within the family’s designated burial ground. Instead, and over plaintiffs objection, she had her father interred at a site within the family’s already limited residential resources. Now she has been instrumental in the usurpation of the matai’s function and authority by a non-matai of the family, Konelio.
*96
Discussion
A.S.C.A. § 43.1301(j)(l)(2) sets out what are "sufficient grounds" for issuance of a preliminary injunction. That is, there is a substantial likelihood that the applicant would prevail at trial on the merits and that great injury will result to the applicant before a full trial may be had.2
We turn to the merits of the application and find that the evidence preponderates in favor of plaintiffs version of family authority in the absence of the senior matai. We further find that defendant Laban’s permit application was undertaken in defiance of the traditional role of family matai and without any regard whatsoever for the communal interest. Her collaboration with a non-matai was indeed contemptuous of the family and the matai, and the evidence strongly suggests that her actions were principally motivated by the underlying matai title dispute. (Konelio candidly admitted that he had never before assumed approval authority on the family’s behalf. At the same time, defendant’s justification of her actions — the claim that Leaana is not a matai — simply bespeaks obstinacy. Her claim is not only inconsistent with the legal reality that the territorial Matai Registry (kept in accordance with the requirements of A.S.C.A. § 1.10401 et seq.) recognizes the "Leaana" as a matai title, but also inconsistent with the fact that the Leaana takes a kava cup at village council meetings.
Plaintiffs complaint on behalf of the family is well taken. Since Konelio did not have the pule to sign building permit applications, the ongoing construction work by defendant will not only be regarded by family members as unauthorized but, as plaintiff suggests, a disdainful display of contempt for communal authority. Individual family members *97simply should not be allowed to do as they, see fit with communal assets whenever the family is without a sa‘o.
Notwithstanding, we are of the opinion that it would not be appropriate to enjoin construction. A preliminary injunction to stop construction would, in the circumstances, serve no other purpose but to. punish defendant for past deeds. Punishment is not the purpose behind injunctive relief. Additionally, we are also mindful of the following factors: the home site in question is after all the site duly designated by the late senior matai, Pele Tamotu, to defendant Laban — this claim was not controverted; defendant is rebuilding on the exact same site of her previous house which was destroyed by fire; plaintiff does not really object to defendant’s entitlement to a home on communal land; defendant is liable to her contractor for a liquidated damages sum of $1,700 per week whether the construction work proceeds or not; and the normal requirement of security or bond is not applicable. See A.S.C.A. § 41.1309(b).
The only continuing wrong which defendant is guilty of is not so much the rebuilding of her home, but her allowing a public record to misrepresent family land "Pataua" as being owned by Konelio Pele.3 We conclude that the continuance of that misrepresentation may be enjoined under A.S.C.A. § 43.0303. See Talili v. Satele, 3 A.S.R.2d 36 (1986).4
Conclusion
Accordingly, a preliminary injunction will issue enjoining defendant, Loretta Laban, and those in active concert with her, from perpetuating on public record, to wit her building permit and application *98therefor, the misrepresentation that the land "Pataua" is. owned by Konelio Pele. Defendant shall have 10 days from date of entry hereof to rectify her building permit application and building permit to properly reflect family ownership and family ápproval given under the signature of Leaana.
It is so Ordered.
The evidence also shows that, without a sa’o, the family has become divided as a result of ongoing and competing succession claims to the senior matai title. Indeed the matter before us clearly appears to be an extension of that title dispute adding intensity to the division.
Cf. A.S.C.A. § 43.0303. The Land and Titles Division, in Talili v. Satele, 3 A.S.R.2d 36 (1986), referred to this enactment in the following terms:
[I]n apparent recognition of the unusual nature of the interests often being asserted in Samoan land disputes, the Fono has provided that in such disputes a Justice of the High Court may make such ’preliminary orders as to him seem just to restrain any Samoans from ... exercising any right or doing any act, matter, or thing concerning or affecting any Samoan land’ pending the outcome of the litigation, without requiring that any specific irreparable harm be shown.
Id. at 38-39.
Perhaps defendant is also guilty under Sarrtoan custom of failing to atone or make amends to family dignity for her flagrant breach of customary norms and effrontery displayed to the family’s matai. This is something, however, beyond the realm of the Court.
Noone raised the prohibition contained in A.S.C.A. § 41.1309, which requires that, in the absence of a sa’o, injunctive actions concerning matters of communal land within the family may only be brought by "two" blood male matai of the family. Did not Leaana require another male blood matai of the family to join him in the application for injunctive relief? May we assume, as we must with the result we reach, that the statutory prohibition does not apply to a family whose traditions are such that family authority passes to the next ranking titleholder upon the death or incapacity of the sa’o? | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485816/ | Per Thompson, J.:
This case began when Satele sought a permanent injunction in the trial court to stop construction of a structure he claimed was being built on his land. The trial court rendered judgment on December 18, 1987 in the case. The court’s findings of fact, conclusions of law, and order are set forth at 6 A.S.R.2d 143. Satele, Uiagalelei and Tuiasosopo appealed from that judgment (appeals Nos. 5-88, 7-88 and 8-88). The appellate division affirmed the trial court in an opinion published at 9 AfS.R.2d 19 (1988). While the appeals were pending, Uiagalelei filed a motion in the trial court styled a "Motion for New Trial or Relief from Judgment." This motion was grounded on the discovery of what Uiagalelei stated was new evidence. As a new trial motion, the motion was filed approximately seven months too late. The trial court construed the motion as a motion for relief from judgment under Territorial Court Rule of Civil Procedure 60(b), and denied the motion by order filed September 20, 1988. Satele v. Uiagalelei, 8 A.S.R.2d 97 (1988). Uiagalelei appeals from the denial of this motion.
At the outset we note the possibility of a jurisdictional problem created by the trial court’s entertaining a Rule 60(b)motion while an appeal from the underlying judgment was pending. To the extent such a problem may have existed, however, we conclude it does not prevent us from hearing this appeal. If the trial court was not deprived of jurisdiction by the filing of the notice of appeal, then the appeal from its order denying the 60(b) motion would be in order. If the trial court was deprived of jurisdiction because a notice of appeal had been filed, we can, in the interest of judicial economy, treat the notice of appeal from the Rule 60(b) order as a motion for a limited remand of the case to the trial court to permit it to consider the motion. See Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir. 1979). In this framework we can consider in this appeal the arguments made in the appellants’ motion and the trial court’s ruling on it. Id.
Turning to the merits of the appeal, we affirm the trial court’s denial of the Rule 60(b) motion. The motion was premised on what was alleged to be newly discovered evidence. Rule 60(b) provides in pertinent part that a party may be relieved from judgment on the ground of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial . . . ." The new *105evidence which was proffered in support of the motion consisted of certain statements made at the hearing of Fauolo v. Tauvaelua, 1 A.S.R. 260 (1912), and in the pleadings of Teo v. Siatafu, 1 A.S.R. 327 (1921).
Counsel for Uiagalelei explained at the hearing on the Rule 60(b) motion that he had not found the Fauolo and Teo cases because their captions did not refer to the land called Fasamea, which was the land involved in the litigation. The trial court concluded, however, that this was insufficient reason not to have discovered the "new" evidence. We agree. As the trial court noted, more thorough research could Jiave unearthed the Fauolo and Teo cases, and in any event the evidence which apparently was disclosed by these cases could have been obtained through normal pretrial discovery directed at one of the parties in the pending litigation. Thus, there was an insufficient showing that the newly discovered evidence could not have been discovered in the exercise of due diligence before trial or within ten days after trial.
We also agree with the trial court that even if the newly discovered evidence had been discovered and presented at trial, it would have made no difference in the outcome of the case. See Trial Court Decision filed September 20, 1988 in Satele v. Uiagalelei, 8 A.S.R.2d 97, 101-06 (1988).
The trial court’s order denying Uiagalelei’s motion is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485817/ | Facts
Plaintiff is a carpenter by trade, and in October 1987 he was contacted by defendant, Sam Mulipola, who requested his services in connection with a construction project of his which other carpenters had unsatisfactorily commenced and left unfinished. At first, plaintiff was hesitant to handle a project started by someone else; however, after visiting the site with defendant, and at the latter’s urgiiig for assistance, plaintiff agreed to do the work. Also at defendant’s insistence, plaintiff reluctantly agreed that his service would be compensated in thé fa‘a Samoa or traditional manner.
Aided by his sons, plaintiff started working for defendant around the last week of .October 1987. The extent of the project when plaintiff commenced working consisted of a foundation and some upright concrete columns; however, there were no building plans for plaintiff to work with from the outset. He was told that these were forthcoming and in fact plaintiff was instructed by a draftsman who was supposed to be in the process of preparing such plans.
By December, 1987 the plaintiff had erected reinforced concrete beams and built the roof structure. (The actual roof cover itself was not done as defendant had not acquired the material.) Plaintiff had also poured the foundation, upright columns, and beams to an extension which plaintiff was instructed to add to the existing layout.
Just prior to Christmas, plaintiff had informed defendant that he wanted to visit his family in Western Samoa. Defendant in turn advised that his wife was due to return very shortly from the United States with funds and that plaintiff would be given $1,000 plus foodstuffs for his family’s Christmas. By the time plaintiff was ready to leave for Western Samoa there were neither funds nor the returning wife. In the end, a *107suspicious and dejected plaintiff was given $100 by the defendant with the reassurance that money, as well as the Christmas hamper, would be later sent upon the return of Mrs. Mulipola. Defendant promised that he would send the money and food with one of his sons.
Between plaintiffs departure and Mrs. Mulipola’s return,. defendant ousted plaintiffs sons from his property. Several subsequent attempts by plaintiff to contact the defendant were met with deliberate evasion.
Plaintiff sues for the reasonable value of services rendered, claiming 40 days of heavy labor involving 11 hours each day. His calculation of normal charges for such time and work ^mounted to $7,920.00. He futher added the sum of $2,300.00 which represents an away from home per diem "allowance" plaintiff claims as a usu?tl billing to clients.
Defendant counterclaims incompetence and bad workmanship on the part of plaintiff. He seeks damages for the cost of material wasted by reason of his having to undertake a number of major changes to the work done by plaintiff, as required of him by the building authorities. Defendant seeks damages in the amount of $20,603.00.
Conclusions
We conclude that the parties entered into a service agreement whereby the plaintiff would be compensated for his services in accordance with Samoan custom. The said agreement, however, was unilaterally terminated by defendant after plaintiff had significantly performed thereon. Indeed, we conclude that plaintiff could regard the agreement as repudiated — given defendants’ dismissal of plaintiff s sons and his continuing failure to make good on the promised $1,000 and foodstuffs — after defendant’s deliberate evasion of plaintiff in the latter’s various attempts to contact him.
Additionally, we question defendant’s good faith in his dealings with plaintiff. He evidently secured plaintiffs agreement to do the work even though he did not have the present means to compensate plaintiff. His insistence on the traditional alternative for compensation was nothing more that a ruse to induce plaintiff to work on credit. It was very clear, after examination by the Associate Judges, that defendant had no idea what was involved with compensating an artisan according to fa‘a Samoa. He not only overlooked certain mundane customary preliminaries relating *108to the formal engagement of a builder, but he also left plaintiff to largely fend for himself and his workers in terms of daily necessities.
Furthermore, we conclude that defendant’s termination of the agreement was entirely without cause. His claims of structural faults in the project had nothing to do with workmanship, but all to do with the fact that there were neither plans nor even a clear concept of what was intended by the project. It was very evident that the buildipg in?pe<?tor who testified on behalf of defendant was talking about an entirely different design or concept than that which plaintiff was instructed to pursue without the benefit of approved plans.
Plaintiff is entitled to the reasonable value of his labor, which we fix at the amount of $8,000.00. Defendant’s counterclaim is dismissed. Judgment will enter accordingly.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485818/ | On Order to Show Cause:
On June 29, 1989, defendant was sentenced to serve two years in the Correctional Facility for the crime of Second Degree Assault. The sentence was suspended and defendant was placed on probation for five years. One of the conditions of his probation was that he actually serve six months in the Correctional Facility. The Court’s order provided that during this six month period of detention the defendant was not to be released from Jthe Facility except with Court approval or for emergency medical treatment.
On July 21, 1989, defendant requested the Court to modify its order to allow for "work release." The Court granted the requested modification subject to several conditions.
The conditions were carefully drawn to ensure that the "work release" would genuinely serve its stated purpose. The order allowed the Commissioner of Public Safety to release the defendant "only during such hours between 6:00 a.m. and 6:00 p.m. Monday through Friday as are necessary to allow defendant to work at his place of employment." The order further provided that defendant was "to go directly to work and to return directly to the Correctional Facility after work.” He was "to remain at his employer’s principal place of business throughout the day" and was "not to be employed in any capacity that would require him to leave his employer’s principal place of business."
On August 31, 1989, defendant’s Probation Officer met with him to discuss reports that he had been seen around the island at times and places not authorized by the Court’s order. Defendant confirmed that he had been sometimes been released from the Correctional Facility on Saturdays. He said he could not remember whether he had been at the market one Saturday rather than at his place of employment. He also told the Probation Officer he would prefer to be on "home release" rather than "work release." The Probation Officer reminded him of the terms of the Court’s order and told him any modification would have to be authorized by the Court.
Later that same day a call was placed from the Court to defendant’s place of employment. The person who answered the phone *110said that defendant was not working that day. An attempt was then made to reach the defendant at the Correctional Facility. Defendant was not there either; the Facility’s records reflected that he had been released to go to work.
The Court then issued an order requiring defendant to show cause why he should not be held in contempt of Court for violating the terms of the work release order, and why his work release should nqt be revoked.
. On September 5, 1989, a Tuesday, the Marshal of the High Court attempted to serve the Order to Show Cause on defendant at his place of employment. Defendant was not there. The Marshal located defendant at his residence in Malaeimi.
The order to show cause was heard on September 19, 1989. Defendant admitted being away from the facility on Saturdays. He further admitted that he frequently spent time at his home rather than at his place of employment, and that he and his wife had breakfast one Saturday at the market place and then socialized with several other inmates who were also on work release. His excuses were that there was frequently no work for him to do at his place of employment; and that he had read but not understood the Court’s order requiring him to return directly to the Correctional Facility after work and not to spend time at any other place. He apologized and promised not to violate the order again.
Under the circumstances excuses and apologies are not enough. Defendant is an intelligent man. He graduated from high school in California and is fluent in the English language. The Court’s order was carefully drafted with the specific purpose of making it impossible for anyone to interpret "work release" to mean "home release" or "brunch release." And yet this is how the defendant chose to interpret it. Moreover, on August 31 the order was explained to him again by his Probation Officer. He complained about the terms of the order and was told that it could not be changed except by the Court. And then he violated the order again that very day. Finally, contrary to defendant’s testimony at the Order to Show Cause hearing, he violated the order at least once more on the following Tuesday when the Marshal found him at his residence.
*111The Court’s order of August 2, 1989, allowing the release of the defendant for the purpose of employment, is hereby rescinded. During the remainder of his six-month period of detention the defendant is not to be released from the Facility without written permission of the Court except in case of medical emergency.
The Court farther finds that defendant’s wilfal violation of the August 2 order constitutes contempt of court. Sentencing for this contempt will be deferred until the completion of defendant’s period of detention. If he complies with the present order and with all other terms of his probation during the remaining period of detention, no additional sentence will be imposed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485819/ | On Order to Show Cause:
On September 27, 1989, having been presented with evidence that the respondents violated the Court’s previous order by causing Tuia Laumoli to be released from the Correctional Facility on Saturday, September 23, the Court ordered respondents to show cause why they should not be held in contempt of Court and sentenced accordingly,
The hearing on the Order to Show Cause was held Thursday, September 29, and continued to Friday, September 30. Tuia Laumoli was represented by counsel. Masalosalo Pamene, the Warden of the Correctional Facility, was advised of his right to counsel and chose to represent himself. Each of the respondents was given the opportunity to present evidence, and each respondent testified on his own behalf. The Court then heard other witnesses, after which each respondent presented further evidence in rebuttal.
The Court finds that respondent Tuia Laumoli was released from the Correctional Facility on Saturday, September 23, in direct violation of the Court’s order that he not be released "for any reason except medical emergency." The Court further finds that both respondents were aware of the terms of the order and wilfully disregarded them.
*113There is no merit in the Warden’s contention that since the copy of the order he initially received did not bear the signatures of the judges, the order was not binding on him. The sentence in this case was announced from the bench on Wednesday, September 20. The Attorney General’s office then drafted a written order which was presented to the Court for review and signature by the judges. The Warden was apparently provided with a copy of this document at the same time it was presented to the Court.1
An order issued in open court is binding from the moment it is announced, whether or not it is ever reduced to writing. In providing the Warden with a document stating the terms of Tuia Laumoli’s sentence, the Attorney General’s office was doing exactly what it should have done in its capacity as lawyer for the Government: acting to ensure compliance by government officials with an order that had already been publicly announced in the presence of counsel for the Government and was already binding on the Government as well as on the defendant. The Attorney General’s office was under no duty to wait until the judges had signed the written order before providing a copy to the Warden. Receipt of this document imposed a duty on the Warden to inquire further of the Court or the Attorney General’s office, at the very least, before releasing the defendant in direct violation of the notice he had been given.
Nor is there any merit in the contention of both respondents that they did not fully understand the sentence. Even without the specific admonition that defendant was not be released except for medical emergency, most people would understand a sentence of "seven weekends in the Correctional Facility" to exclude the possibility that defendant could spend all day Saturday at a rugby game.
Moreover, if the respondents had not known they were doing wrong they would presumably not have bothered to cover their tracks. Although the Warden authorized the release of Tuia Laumoli on Friday night and again on Saturday, the records of Tuia’s comings and goings on both days are conspicuously absent from the prison log book. Each respondent also lied to the Court when first asked whether Tuia had been released on Friday night. Under repeated questioning from the Court, *114both respondents stuck to their story that Tuia had been present in the Facility at all times between 6:00 p.m. Friday and 9:00 a.m. Saturday. They admitted the contrary only after testimony by two witnesses who had seen Tuia elsewhere that night and by a third (Acting Commissioner of Public Safety Fonoti Jessop) to whom the Warden had admitted authorizing the Friday release.
The respondents are accordingly held to be in contempt of Court and are sentenced as follows:
Respondent Tuia Laumoli is sentenced to serve thirty days in the Correctional Facility. Execution of the sentence is suspended on condition that Tuia serve the remaining term of his sentence for Second Degree Assault in strict accordance with the conditions imposed by the Court, and that he also serve two additional weekends in the Correctional Facility.
The total number of weekends included in both sentences, including the weekend of September 22-24, is nine (9). Respondent shall report to the Facility no later than 6:00 p.m, each Friday and shall leave no earlier than 6:00 p.m. on Sunday.2 During his periods of detention he is not to leave the Facility for any reason other than medical emergency.
Respondent Masalosalo is also sentenced to serve thirty days in the Correctional Facility. Execution of the sentence is suspended apd respondent placed on probation for a term of two years on condition that he pay a fine of $500 no later than October 13, 1989, and that he comply strictly with the terms of all Court orders.
This sentence is imposed only for the contempt of Court constituted by the release of respondent Tuia on Saturday. Although evidence of the release on Friday was relevant to the veracity of both *115respondents and to the pattern of conduct underlying the Saturday release, it is a separate incident with respect to which po Order to SJiqw Cause was issued.
It is so ordered.
Signing of the written order was delayed until Friday, September 22, pending the expedited hearing of a motion by defendant Tuia Laumoli asking the Court to revise his sentence. The signed order was served on the Department of Public Safety late Friday afternoon. The Warden says he did not personally receive a signed copy until Monday, September 25, but admits having read the unsigned copy on or before the previous Friday.
At the request of the Speaker of the House, a slight change will be made in the schedule of respondent’s sentence for the weekend of September 29 to October 1. In order to allow respondent to attend a meeting of the Fono that is required by law to be held on September 30, his detention for this weekend is modified to allow him to report to the Correctional Facility by 6:00 p.m. Saturday and leave no earlier than 6:00 p.m. on Monday, October 2. The terms of this change are incorporated in a separate written order. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485820/ | Factual Background ■
Plaintiff Chang and defendant Fuiava went into business together for purposes of merchandising in American Samoa. Chang is a merchant of Western Samoa, where he operates a business, Dragon Light Co. Ltd., a Western Samoan corporation and the co-plaintiff herein. Also, *2Chang had either the goods, or at least access to a credit facility, to supply the venture with inventory.
Fuiava, on the other hand, had neither business experience nor capital to contribute to the venture. However, as the American Samoan party, he had the responsibility of securing the requisite license to do business in the territory.1
At first the parties went through the motions of setting up a corporation under the name "National Import Export Company, Inc. * Articles were duly adopted which stipulated that sixty percent of the corporate stock would be held by Chang and his family, with the remaining forty percent held by Fuiava and his family. The articles further named Chang as President and Fuiava as Vice President.
As the approval of corporate status proved to be time consuming, the parties decided to obtain in the interim a license ip Fuiava’s name in order to open for business immediately. Fuiava did indeed secure a business license as a proprietorship trading under the name "National Import & Export Enterprize." After opening a bank account and taking delivery of a variety of goods supplied on credit by the plaintiff, Dragon Light Co. Ltd., the parties began selling at a location in Pago Pago. Although a corporate charter was eventually granted, the parties continued doing business under the license issued to Fuiava personally.2
In time, Chang notified Fuiava that he desired to terminate their business relationship and he proposed to Fuiava a division of the inventory between them. With some American Samoan relatives of his wife, Chang formed another local corporation called "Dragon Light, Inc.," which was opened for business in Happy Valley and retailed in the same lines. Fuiava retained a certain quantity of the inventory for which an invoice, drawn on Dragon Light Co. Ltd. letterhead, was made out *3in the amount of $35,945.50 to "National Import & Export." This invoice also contained a paragraph reciting an agreement "that a weekly payment of $500.00 (US) to be paid [sic] to Mr. Joe Chang by Mr. Mike Fuiava on behalf of the NATIONAL IMPORT & EXPORT, commencing 8th December 1984." This invoice/agreement was signed by Chang on behalf of Dragon Light Co. Ltd. as its director, while Fuiava signed as "Vice-President" on behalf of National Import & Export.
Fuiava found a location for himself in Nu'uuli where he set up shop and for the first few months he managed to make the scheduled payments to Chang. It did not take very long, however, for Fuiava to learn that there was more to business than anticipated riches. He was just not generating the sort of sales envisaged at the time of the invoice/agreement and he began to fall progressively into arrears. Plaintiffs filed suit to enforce the invoice/agreement.
Notwithstanding the filing of suit, there was dialogue between the parties in the hope of resolving arrears and reinstating the payment schedule. Despite Fuiava’s further attempts at business, the situation with sales did not improve. He therefore notified Chang that he would return the remaining inventory with him and pay the difference. Over the course of several days, Fuiava’s wife and some relatives delivered pickup truckloads of the inventory to the Happy Valley premises of Dragon Light, Inc. There, a count was made by Chang’s sister-in-law or shop employee as each load was delivered. Fuiava’s wife was promised a copy of the count by Chang’s sister-in-law but none was ever delivered.
The Suit
The controversy before us is somewhat puzzling. For reasons unknown, the matter between the parties was never finalized. Nobody bothered to reconcile what Fuiava had returned and paid for against what he was initially given. It seems that the goods he had returned were eventually commingled with whatever stock Dragon Light, Inc., possessed. As to what happened to the stock count taken by Chang’s sister-in-law, the Court was never told; however, the significance of the suit against Fuiava became apparent with Chang’s testimony that the business venture with his American Samoan in-laws incurred a loss of some $70,000.
Chang nonetheless insists that the invoice/agreement continues to render Fuiava liable to plaintiff Dragon Light Co. Ltd. He opined on *4the stand that Fuiava’s delivery of the goods (subject to the invoice/agreement) to Dragon Light, Inc., a distinct and separate corporate entity, did not constitute a restitution by Fuiava to plaintiff Dragon Light Co. Ltd. Additionally, Chang argues that when he agreed to Fuiava’s return of the goods, it was Fuiava’s duty and responsibility to do the stock taking and to reconcile an accounting of his indebtedness to the plaintiff corporation.
Fuiava, on the other hand, testified that as far as he was concerned, his obligations to Chang and Dragon Light Co. Ltd. were settled, except for that which he owes on the goods he had sold less the installment payments which he had already made pursuant to the invoice/agreement. Chang, however, has never billed him.
Conclusions
We are in agreement with Fuiava’s position that he is liable on account with Dragon Light Co. Ltd. and that the extent of his liability is for the goods he had sold or failed to return less the payments he had paid to Chang. In so concluding, we reject Chang’s alternative and somewhat inconsistent theories: that the return of the inventory held by Fuiava'did not vary the effect of the invoice/agreement, which remained in full force and effect; or that Fuiava was responsible for providing an accounting of the returned goods to Dragon Light Co. Ltd., and by failing to do so remains liable on terms of the invoice/agreement. Neither theory has any support in law or on the evidence. Further, Chang’s resort to legal niceties about separate corporate identities in the attempt to get around the undisputed fact that Fuiava returned the goods is, at best, desperate and also thoroughly unconvincing. The parties in their dealings with each other and with the government licensing authorities had only so much respect for corporate formality as it suited their convenience.3
Finally, in terms of what is actually owed by Fuiava to Chang and Dragon Light Co. Ltd., the evidence was just not there to permit the Court to make any meaningful finding. The evidence at its best *5suggested that the loads delivered by Fuiava’s wife constituted the bulk of the inventory listed in the invoice/agreement. (In view of the losses incurred by Dragon Light, Inc., there is hardly any mystery in what happened to these returned goods.) To attempt, however, to be any more specific with the ultimate division of the inventory among Chang and Fuiava would take us well within the realm of speculation,
Plaintiffs have simply failed in their burden to adduce sufficient proofs and judgment shall therefore enter accordingly.
It is so Ordered.
The territorial licensing laws — A.S.C.A. §§ 27.0201 et seq. — are in certain aspects parochial in effect. An applicant for a business license who is neither an American Samoan nor a "permanent” resident of the territory is subject to greater scrutiny and regulation, particularly if the activity for which licensure is sought is already adequately covered by local businesses.
The corporation, for purposes of the business licensing.Iaws, would have been treated as a non-American Samoan given the stock issue contemplated by the articles of incorporation which designated the majority shares in non-American Samoans. See A.S.C.A. § 27.0207.
Indeed, if we accepted Chang’s argument on corporate legalities, then we would also be required to question why Fuiava should not have the benefit of limited liability, since the invoice/agreement purported on its face to be a dealing between the Dragon Light Co. Ltd. and arguably the American Samoan corporate entity National Import Export Co., Inc. Fuiava signed as "Vice-President" rather than as proprietor. | 01-04-2023 | 11-18-2022 |
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