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https://www.courtlistener.com/api/rest/v3/opinions/8485822/ | On Motion for Summary Judgment:
Plaintiff moves for summary judgment pursuant to T.C.R.C.P. Rule 56. The rule provides for entry of judgment if the pleadings and supporting papers show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c). All the pleadings and supporting papers submitted on a motion for summary judgement must be viewed in a light most favorable to the opposing party. United States v. Diebold, Inc., 369 U.S. 654 (1962). That is, the Court must not only treat the adverse party’s evidence as true, but he should also be given the benefit of all inferences reasonably deducible from the evidence. Lokan v. Lokan, 6 A.S.R.2d 44 (1987).
In the present matter, plaintiff sues for the value of goods sold and delivered to defendants for which checks drawn against insufficient funds were tendered to plaintiff. Defendants, on the other hand, have raised triable issues of fact in their responsive pleadings and affidavit filed in opposition to the motion for summary judgment. Defendants claim that the alleged sale of goods contract was forced upon them at plaintiffs insistence; that plaintiff supplied material not ordered; that plaintiff overcharged for quantities incompletely supplied; and that an exhibit upon which plaintiff places reliance for its motion — a certain letter acknowledging liability and under signature of one of the defendants --- was in fact prepared by plaintiffs representative for "the record" and "[that defendants should] not worry about it."
*13We hold that there is a factual dispute regarding the obligation underlying the returned checks and deny plaintiffs motion accordingly.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485823/ | Plaintiff seeks to evict the defendants from a tract of land she calls Talie.
It is undisputed that this land was registered in 1983 as the individually owned land of plaintiff and her children. It is also undisputed that the defendants are or have been occupying parts of the land. Defendants maintain, however, that the land never really belonged to Tutupu Meafua and that her registration of it did not vest title in her to the exclusion of the true owners.
' Defendant Viñeta Allen testified that the land in dispute is part of a far larger tract called Vaipapa, which is said to extend from the mountains to the ocean and to belong to a Vaitogi family called Ufuti. Defendant Allen contends that plaintiffs parents began cultivating the land not on their own account but because of a connection to the Ufuti family. As a member of the Ufuti family herself, Allen claims the right to occupy part of the land.
This claim should have been made within sixty days of plaintiffs offer of registration, not five years later. See A.S.C.A. § 37.0103(c); Ifopo v. Siatu‘u, 12 A.S.R.2d 24 (1989); Puluti v. Multufi, 4 A.S.R. 672 (1965); Mulitui v. Pisa, 2 A.S.R. 268 (1947).
Even if the contention that this land and the surrounding area are the historic communal land of the Ufuti family had been timely raised, we would reject it on the merits. Although all three parties to the present case are from Vaitogi and therefore regard the land as belonging to Vaitogi, the most .credible téstimony is to the effect that the area was originally settled by Ili‘ili people and that settlers from Vaitogi did not arrive until well into the present century. The land is located miles from the village of Vaitogi proper, on the far side of the village of Ili'ili; much of the surrounding land appears still to be occupied by Ili‘ili people. *15Defendant Allen’s testimony that the land has alwáys been the communal land of a Vaitogi family is therefore far less credible than the testimony of plaintiff and of defendant Siaki Taliu that their respective fathers came from Vaitogi about fifty years ago to clear and cultivate the land for themselves.
The claim raised by defendant Siaki Taliu raises a far more difficult issue. It is clear that Taliu’s father worked part of this land, or perhaps another tract very close to it, for some years. Plaintiff concedes that the elder Taliu worked near her father; she says that he once encroached on her father’s plantations but that her father soon put a stop to the encroachment. Defendant says his father never left until the 1970s when he became too old to tend plantations.
The choice between plaintiffs versipn of the history of this land and that of defendant Taliu would be a difficult one were it not for •Taliu’s failure to rajse any objection to plaintiffs registration during the sixty days provided by A.S.C.A. § 37.0103(c). As the Appellate Division of the High Court held in Ifopo v. Siatu‘u, supra:
[T]he registration statute [A.S.C.A. §§ 37.0101 et seq.] 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.
Id., 12 A.S.R.2d at 26.
Defendant Taliu testified that the land was offered for registration at a time when no land in the area was being worked by anyone in his family, since his father was old and sick and the defendant himself was otherwise engaged. Nobody in the Taliu family was there in 1982 to see the survey conducted on the land at the request of plaintiff Meafua, or the notices posted by the Territorial Registrar later the same year to the effect that Meafua had offered the land for registration and that any objections must be filed within sixty days. The result — that Meafua’s title was recorded and the Talius barred forever from; pressing their competing claim — may be a harsh one even ip light of the temporary abandonment of the area by the Talius, but it is clearly the result dictated by the law then in force. See Ifopo, supra, and authorities *16cited therein; see also Vaimaona v. Tuitasi, 12 A.S.R.2d 68, 71 (1989) (Vaivao, J., concurring in part and dissenting in part).1
Finally, defendant Allen contends that the registration by Meafua is invalid because it was not effected in accordance with the procedures set forth in A.S.C.A. §§ 37.0101 et seq. If it should affirmatively appear, either on the face of the public records or by other clear and convincing evidence, that a land title was registered in contravention of the statutory requirements for registration, then such registration would be of no force or effect. Ifopo, supra, at 28; Faleafine v.Suapilimai, 7 A.S.R.2d 108 (1988).
In this case, however, it affirmatively appears that the registration was conducted in accordance with the statutory procedures. Records of the Territorial Registrar admitted into evidence reflect that a survey was conducted ort the land in October of 1982. The pulenu‘u of the village of Vaitogi certified that he had given public oral notice in the village-at a meeting of the chiefs of the time and place of the intended survey in order that other interested land owners might have opportunity to be present thereat. The employee of the Registrar’s office designated to post notices in the village and at the Court House certified that he had *17done so.2 The only evidence that the procedures were-not followed was the testimony of Ulu, a matai of the-Ufuti family, that he always attends village council meetings and always checks the telephone pole near the church in Vaitogi but that he never heard an announcement and never saw a notice. Ulu admitted on cross-examination, however, that he frequently travels abroad to visit his children, sometimes for months at a time; and may have done so during 1982. Moreover,-
the Court [cannot] conclude that no notice was given simply because a number of witnesses testified that they never saw any notices. The registration statute cannpt 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 noncompliance is alleged. Rather, the Court must assume *18— and,, absent compelling proof to the contrary, must conclude —- that the Registrar recorded a title only after complying with his obligations under the law.
Ifopo, supra, at 28.
Because the registration by Meafua was effected in compliance with the statutory procedures and neither the defendants nor anyone else objected within the statutory time limit, the law conclusively presumes that she was and is the owner.
Accordingly, judgment will enter in favor of the plaintiff enjoining the defendants, members of their families, their agents, employees, servants, and others in active participation with them from continuing to trespass, to plant crops, or to construct buildings or other structures on the land. Defendants must remove any structures and harvest any crops which they presently have on the land within ninety days.
It is so ordered.
An amendment to A.S.C.A. .§ 37.0103 recently enacted by the Fono will go a long way toward eliminating such results in future cases. The amendment, contained in Public Law No. 21-1, will prevent the registration of land-unless the proposed registration has been advertised at least twice in a local newspaper. Thus a land claimant who is neither presently occupying the land nor privy to the proceedings of the village council will have notice that a competing claimant is about to register the land, provided only that he reads the newspapers.
Under the system that was in effect in 1982 and 1983 when the land presently in dispute was registered, a claimant who was not represented in the village council and who did not actually live on the land might easily have missed the required notices. According to file testimony of the present Territorial Registrar, it has never been the practice of the Registrar’s office to make periodic visits to the telephone poles on which notices are posted to make sure that they have not been illegally removed. The posting official simply posts the notice and then certifies sixty days later that he has posted it for sixty days. Unless a potential land claimant wishes to make frequent visits to the Courthouse in Fagatogo to check for notices of pending registration, the only ways to be certain of getting notice are (1) physical presence on the land or in the immediate neighborhood, so as to be aware of any survey that might be conducted; and (2) scrupulous attention to the proceedings of the village council, so as to receive notice of any pending surveys. Although these methods are reasonably calculated to give notice to Samoans who are living in accordance with Samoan custom and tradition, the amendment embodied in Public Law 21-1 recognizes the increasing likelihood that they will not reach all potential claimants.
Counsel for defendant Meafua contended at trial that this certification was invalid, relying on a provision of A.S.C.A. § 37.0112 that "[n]o affidavit affecting the chain of title to real estate may be filed for record" unless the affidavit has first been posted for sixty days at the courthouse in Fagatogo and in the village where the land is located, This provision would appear to be a reference to the preceding section, A.S.C.A- § 37.0111, which provides that an owner in possession of land may under certain circumstances post "an affidavit explaining any defect in the chain of title" to his land. In any event the posting requirement of A.S.C.A. § 37.0112 has no bearing on the present case. A.S.C.A. § 37.0103, the section that requires posting for sixty days of a notice that an offer of registration has been made, does not require the official who posts this notice to file an "affidavit" — or even an unsworn certificate — that the posting has been done. It is within the discretion of the Registrar to file such a certificate for the convenience of his own office, of the Court, and of the interested public. In the absence of a certificate, however, the fact that the Registrar recorded the title at all would give rise to a strong presumption of compliance with the posting requirement. See Ifopo, supra, at 28.
The rule proffered by counsel for defendant Allen — that after the Registrar posts a notice for sixty days he must make an affidavit that the notice was posted for sixty days, but cannot file this affidavit until he has posted the affidavit itself for sixty days, and would be unable to certify the posting of the latter document by any means other than yet another document which itself would presumably have to be posted for sixty days before it could be filed — would amount to an infinite regress under which no document could ever be filed and no land could ever be registered.
The location of the land does raise one serious question about the procedural regularity of the registration: whether the notice of proposed registration should have been posted in Ili’ili as well as (or instead of) in Vaitogi. If one of the present defendants regarded himself or herself as a resident of Ili’ili or had complained that he did not receive notice because the notice was posted in the wrong village, the Court would have to consider whether posting in Vaitogi was sufficient to meet the requirements of the statute. Since all three parties to the present case regard the land as part of Vaitogi, however, none has standing to raise this issue. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485824/ | On Motion for Reconsideration:
Luavasa Tauala moves for reconsideration of the Court’s order finding him in contempt and sentencing him to serve .five weekends in the Correctional Facility.
The contempt consisted of violating an injunction not to hold himself out as the Tauala titleholder. Luavasa and all other claimants to the title were enjoined from "asserting any authority or doing anything which such matai title holder would do within and outside of the village of Ta‘u, Manu‘a." Luavasa was found to have performed a role in a village function which, according to Samoan custom, was absolutely inconsistent with his status as an untitled man. He claims no matai title other than Tauala, and his actions at the function in question were those which Tauala ordinarily would have performed. He was therefore found to have violated the order not to assert the authority of Tauala pr to do anything which'Tau&la would do.
Luavasa now contends that the Court engaged in a "broad interpretation" of the injunction, and that he should not have been found in contempt since he avoided using the name Tauala. He particularly relies on the testimony of one witness, Leasau, whose testimony he interprets as tantamount to a "special dispensation" by the village council allowing him to participate in the function as aq untitled man notwithstanding the admitted tradition to the contrary.
We find this argument unconvincing. The "special dispensation" — assuming for the sake of argument that the village council ever agreed to any such thing —- was a smokescreen evidently designed to insulate Luavasa from the consequences of what he surely knew to be a clear violation of the substance of the Court’s order. Indeed, it was quite clear from the testimony of Leasau that he believes the Court had no authority to enjoin Luavasa from using the title in the first place. For a person who has been specifically ordered by a Court npt to do certain things, perhaps the surest way to be found in contempt of Court is to accept a "special dispensation" from someone who believes that he and not the Court has the final authority to say what the law is.
*21Luavasa was enjoined not just from using the name Tauala, but also from holding «himself out as Tauala, asserting the authority of Tauala, or performing any of Tauala’s usual functions. A person who had been enjoined to stop asserting the authority of a judge would violate such an injunction if he wore a black robe and purported to announce judgments, even if he designated himself a special non-juclicial adjudicatory officer.. An injunction not to assert the authority of the Governor would be violated by an attempt to veto a bill, even if the attempt were accompanied by a solemn assurance that it was being done not in the vetoer’s capacity as Governor but in his capacity as himself. Similarly, the performance by one who has long claimed to be Tauala of acts that throughout the centuries have only been performed by orators of the standing of Tauala is an assertion of the authority of Tauala, notwithstanding the- dramatic announcement of a new and contrary tradition.
Finally, Luavasa apologizes for the misunderstanding and promises that it will, not happen again if his jail sentence is remitted. We note, however, that this is the third time Luavasa has been found to have violated the law by holding himself out as Tauala. In 1976 Chief Justice Jochimsen found that "defendant Luavasa Tauala did disobey the order of the Court" by holding himself out as the Tauala titleholder, but decided that "the court will overlook this and will not take action against the defendant at this time." LT No. 189-76, Order Restraining Luavasa Tauala from Holding and Using the Tauala Title, issued December 30, 1976. Again in January of 1989, Chief Justice Kruse and three Associate Judges found that "the matai title. Tauala is vacant, and defendant is holding himself out as the title holder . . . contrary to Section 1.0410 ASCA, subjecting himself to criminal penalties under Section 1.0414 A.S.C. A." There was testimony at the recent hearing of several arguable violations of the injunction issued in January. Far from taking a broad interpretation of the injunction, we gave Luavasa the benefit of every possible doubt and found him guilty of contempt only for one of these violations. He has already had a second chance and a third chance, and at some point the law must be enforced.
Accordingly, the motions for reconsideration and for a stay of execution are denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485825/ | Pua'aelo and Fa‘amanu Puailoa petition, under the Uniform Enforcement of Foreign Judgments Act, A.S.C.A. §§ 43.1701 et seq. *23(hereinafter "the. Act"), for. the "registration" of two adoption decrees issued by the Magistrate’s Court of Western Sajnoa. Specifically, petitioners point to A.S.C.A. § 43.1702 for the proposition that judgments of the courts of Western Samoa are entitled to full faith and credit in American Samoa.1
We disagree. The section cited merely defines the scope of the Act as extending only to those foreign judgments "entitled to full faith and credit in American Samoa." The enactment does not say which foreign judgments are entitled to full faith and credit in American Samoa. In order to determine this we need to look to other law.
"Full faith and credit" is a term of art referring to a specific provision under the United States Constitution.2 The Constitution, as supplemented by legislation,3 does not apply to judgments of foreign countries. Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185 (1922). Rather,.
[t]he extent to which the law of one nation . . . shall be allowed to operate within the dominion .of another nation, depends on , . . ‘the comity of nations.’ ‘Comity’ in the legal sense, is neither a matter of absolute obligation . . . nor of mere courtesy and good will. ... It is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having dpe regard both to international duty and convenience, and to the rights *24of its own citizens, or of other persons who are under the protection of its laws.
Hilton v. Guyot, 159 U.S. 113, 16 S Ct. 139, 143 (1895). Thus a judgment of a court of Western Samoa, while not entitled to full faith and credit under organic law (nor under the Act), may nonetheless be recognized in the Territory because of the "comity" due from one nation to another, and to its courts and judgments. The recognition of any particular judgment of a foreign court is dependent on wide ranging local policy considerations. Thus in different circumstances, for example, a foreign divorce decree may or may not be recognized and enforced. See, e.g., Sangiovanni Hernandez v. Dominicana de Aviacion, 556 F.2d 611 (1st Cir. 1977); Pentz v. Kuppinger, 107 Cal. Rptr. 540 (Cal. App. 1973); Rosenbaum v. Rosenbaum, 130 N.E.2d 902 (N.Y. App. 1955). Moreover, ‘"[t]o actuate the doctrine of judicial comity or reciprocity, the foreign judgment must partake of the elements that would support it if procured in this country."’ Pawley v. Pawley, 46 So.2d 464, 468, (Fla. 1950), cert. denied 340 U.S. 866, quoting Ogden v. Ogden, 33 So.2d 870, 874 (Fla. 1947). That is, a foreign proceeding must in essence comport with our notions of due process. Ogden v. Ogden, 33 So.2d at 874.
The precise effect a Western Samoa adoption decree should have in American Samoa is an issue involving serious questions of law and of public policy. The answer to some of these questions plight depend heavily on the facts of the particular case before the Court. For instance, to deprive a child of his share in his inheritance op the ground that his deceased parent had adopted him in a foreign country would seem directly contrary to policies underlying the law of intestacy. At the other extreme, a "no questions asked" approach would almost certainly encourage resort by residents of American Samoa to extraterritorial proceedings as a means of evading due process safeguards imposed by the United States Constitution with regard to termination of the rights of natural parents. This would be contrary not only tp sound policy but also to law.
We cannot decide the present case on its facts because we are told-nothing about the facts. The petitioners are essentially seeking something in the way of a blanket declaration to the effect that Western Samoan adoption decrees ought to be given full faith and credit in American Samoa. At the same time, the petitions are conspicuously unrelated to any underlying rights at stake requiring "enforcement" in the Territory. They are properly subject to dismissal. No factual basis *25sufficient for an extension of comity has been shown to be present in this case. The petitions are hereby dismissed.
It is so Ordered.
For purposes of the Act, the term "foreign judgment" means any judgment of a court of the United States or of any other court which is entitled to full faith and credit in this territory. A.S.C.A. § 43.1702.
Article IV, § 1 of the Constitution requires that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.
Congress did exercise its delegated power to implement the provisions of Art, IV, § 1, which resulted in 28 U.S.C. § 1738, which in pertinent part reads:
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such States, Territory or Possession from which they are taken. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485826/ | On Petition for Stay:
Appellant moves to stay the order of the Immigration Board that he leave the Territory for his country of origin.
An interlocutory stay of a deportation order should be granted "only when 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." Loti v. Immigration Board, 8 A.S.R.2d 107, 109 (1988). Because deportation tends severely to disrupt the life of the one deported, whether a stay is granted pending trial usually depends on whether the petitioner appears to have a good chance of prevailing at trial.
The present proceeding began a$ a request by petitioner Rakhshan himself that the Board allow a change in his sponsorship. The Board denied the request. Since Rakhshan’s former sponsor had moved out of the Territory, he was left without a sponsor and would appear to have had the right to remain in American Samoa for only ten days. See A.S.C.A. § 41.0408(i). Mr. Rakhshan contends, however, that the Board routinely allows change of sponsorship and that the denial in this case was therefore an abuse of discretion.
The Board gave threé reasons for denying the change of sponsorship:
(1) Petitioner has "changed sponsors several times without any clear reasons."
(2) "Mr. Rakhshan’s main purpose here is to. look for employment," his previous employment having been terminated.
(3) After being asked "whether he was involved with the law in the Philippines," he answered that he had not. "When alien Rakhshan was confronted with [a] document," however, to the effect that "one *27Davoud Rakhshan was arrested in Manila, Philippines and that a warrant for his arrest is outstanding. ... .his counsel announced that Mr. Rakhshan will not gay anything that might tend to incriminate him."
Hie Immigration Board’s decision implies, although it does not clearly state, that the third ground for its decision was the most important. Petitioner contends, however, that he was never arrested in Manila, never knew of any warrant for his arrest, and did not lie to the Board. He admits that he was technically "involved with the law," but only as the complaining witness in an assault case; his counsel speculates that the defendant in that case may have filed a countercharge which resulted in a warrant that .was never served on Mr. Rakhshan.
Petitioner’s counsel further represented to the Court that this, explanation of the Manila.incident had been tendered to the Board at its hearing on his motion for reconsideration; and therefore that the Board’s conclusions that Rakhshan was a fugitive from the Philippines and had lied to the Board about this were inconsistent with the record.
Judicial review of Immigration Board orders "is confined to the record; however, the court in its sound discretion may receive evidence to supplement the record." A.S.C.A. § 41.0210. Whatever else this may mean, it would seem to direct that the starting point for our inquiry be the record itself. After the hearing on the present motion we granted a temporary stay pending production of the record. Without determining exactly what it was Mr. Rakhshan told, the Board about "involvement with the law" in the Philippines, and how he explained himself later at the hearing on his motion to reconsider, we cannot begin to evaluate his claim that the Board’s conclusion is inconsistent with the record.
Unfortunately, however, the record with respect to these questions turns out not to exist. Counsel for the Board has submitted a transcript of the original hearing interspersed at frequent intervals with ellipses (". . . .") and with the notation "(NOT CLEAR)." It includes the following exchange:
TUINEI: Did you have any confrontation with the law in the Philippines?
RAKHSHAN: (NOT CLEAR)
Counsel for the Board further informs us that no record at all exists of the hearing on Rakhshan’s motion for reconsideration.
*28Since it was the responsibility of the Board to produce a record, the absence of-any süch record compels us to find the missing facts favorably to Mr. Rakhshan. .We therefore conclude, that he did not tell the Board that he had never been "involved with the law." Nor does the record reflect that he lied when he said he had never been arrested. Insofar as the Immigration Board’s order was based on false statements made by Mr. Rakhshan, therefore, we must conclude for the purposes of this motion that it was not supported by the record.
The allegedly false statements were, however, only one of three, grounds cited by the Board for denying the change of sponsorship. At least as important was the-Board’s finding that Mr. Rakhshan was no longer employed. On this ground the record is more complete: it reflects that Mr. Rakhshan originally came to American Samoa as a tourist. On May 23, 1988, his status was changed to that of an alien admitted for the purpose of professional employment in accordance with A.S.C.A. § 41.0303(a)(4)(b). The Immigration Board’s approval of this change in status was granted "only as follows: .... One year contract until May 11, 1989."
The immigration statute provides that when a person loses the status which entitled him to enter or remain in American Samoa, he shall "be deemed to be a person seeking to enter American Samoa from the date when he ceases to hold such status." A.S.C.A. § 41.0407. That is, he has' no further right to remain indefinitely in the Territory. If the Board’s decision to'deport the present petitioner had been based solely on his loss of employment, therefore, we would be inclined to deny his petition for a stay of enforcement.
It is by no means clear from the Board’s decision, however, that in the absence of the alleged false statements Mr.-Rakhshan would have been deported solely because he was no longer employed. In its written opinion the Board treats the two issues as though they were one. Concluding a paragraph about Mr. Rakhshan’s current employment status, for instance, and before going on to discuss his search for new employment, the Board observes that his "false statement before the board and his effort to hide the truth is in clear violation of immigration rules." The Board seems to be saying that an unemployed alien is bad enough but that a lying unemployed alien is a good deal worse. There is much to be said for this proposition, but it leaves us unable to conclude that the Board would wish to deport Mr. Rakhshan if it did not believe him to be a liar.
*29The two issues are even more closely intertwined in the record, such as it is, of the Immigration Board hearing. This record reflects that the Deputy Director of Education — who was apparently present to testify on behalf of Mr. Rakhshan — had second thoughts after learning about the Philippine arrest warrant. He thereupon spontaneously rescinded á request that Mr. Rakhshan be allowed to remain in the Territory for re-employment as a teacher.
Because there is no récord with respect to any statements made by petitioner about the Philippine incident, and because the Immigration Board relied heavily on that incident and those statements to the virtual exclusion of other grounds for deportation, a stay will be granted pending further proceedings.
For the same reasons, it would seem impossible on the present record for the Court to conduct a "review of the board’s interpretation of the evidence, its factual inferences, and its conclusions of law" as required by A.S.C.A. § 41.021Ó. Accordingly, we remand the case to the Immigration Board for a new hearing. The Board is free to take evidence with regard to any or all of the grounds on which it based its previous decision or to such other grounds as it may choose. Care should'be taken to produce a complete transcript and to state clearly the grounds for any action taken.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485827/ | On Request for Preliminary Injunction:
Petitioner, for himself and the Gaoa family, seeks a preliminary injunction to enjoin respondents from their continuing construction of a *31guest house on a certain land area in the village of Tau known as "Malaetele." Petitioner claims ownership to this land and he complains that the respondents are building on "Malaetele" without his consent.
Respondents are members of the Tulifua family who are allegedly involved with the mentioned construction. Their senior matai, Tulifua Siva, was off-island for medical reasons át the time of the fi}ing of the petition. However, Tulifua has since returned to the territory and has moved to intervene as the senior matai of respondents’ family. The motion was granted. ’
The work complained of is in fact the rebuilding of the Tulifua family’s guest house which was damaged during hurricane "Tusi." The rebuilding has utilized much of the old structure.
A preliminary injunction may only issue upon applicant’s showing of "sufficient grounds" after a hearing inter-partes duly noticed, A.S.C.A. § 43.1301(g). Also, A.S.C.A. § 43.1401Q) provides that sufficient grounds for the issuance of a preliminary injunction means:
(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and
(2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.
The petitioner has not sustained the required statutory showing on the evidence presented. The merits of petitioner’s case essentially consist of a claim to ownership based on an uncertain family history. Against this, respondents’ claim to ownership does not merely rest on contradictory family history, but it is also coupled with a showing of established use and settled occupation.
Additionally, there has been no showing of "irreparable harm" by petitioner. At one point in his testimony, petitioner talked of irreparable harm in terms of physical alteration to the land through excavation and the placement of things thereon. He could not, however, be specific with the extent of the harm claimed. The extent of the evidence presented does not suggest that the physical injury claimed is such that it may not be adequately redressed at law.
*32Petitioner also alluded somewhat unclearly to the indignity and profound sense of . hurt , felt by his family by reason of Respondents’ unauthorized reconstruction on Gaoa family land and their continuing disregard for petitioner’s, objection to that reconstruction. This is not "irreparable harm" within the meaning of the statute. Moreover, petitioner’s sense of hurt is derived from the presupposition that his family owns the land in question. But that is exactly the very issue to be decided by the Court after trial on the merits.
For reasons given, the application for preliminary injunction is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485847/ | Plaintiff is the senior matai of the Maiavatele family of Vailoatai village. He has filed suit seeking, among other things, the eviction of defendant Mulimuli L. Fasimoli from a certain piece of land on which the latter recently built a home. Plaintiff claims that the site on which Mulimuli has built his home is a part of the Maiavatele family’s communal holding known as "Vaigafi."
While Maae Paaka is the senior matai of the Maae family from the adjacent village of Taputimu and a named defendant herein, he has actually had very little to do with anything regarding these proceedings. Rather, his brother, Ai‘i Maae, appears to have assumed the role of the senior matai as it was Ai‘i who encouraged Fasimoli and his wife to continue building their home, notwithstanding the objections from Maiavatele; Ai‘i also signed the relevant building permit application, as well as the separation agreement. These are ordinarily executed by the senior matai as owner of the building site on behalf of the family.
Findings
The site in question (some two and one half acres) was once in the exclusive use of the various pastors of the Christian Congregational Church who had been assigned over time to minister the Church in Taputimu. Accordingly, for many, many years, the land was left to the undisturbed possession of the incumbent pastor for his agricultural use.
However, with the emergence of a dispute over the land, the pastors gave up the land assignment, wanting no part in the controversy. Consequently, a number of people in the vicinity soon jockeyed to assert in one manner or another their respective family’s ownership claim to the land. For example, members of both the Maiavatele and Maae families who live adjacent to the disputed land now argue that they have harvested the different crops growing thereon. At another time, in 1978, one Aiulu Manu, a member of the Maiavatele family, attempted to build a home on the area now disputed. He was stopped by his family matai because of the urging of Afoa, the senior matai of another family in the area. For reasons unknown, a confrontation over title was then avoided.
*25Indeed, a peculiar feature of this case has been the conspicuous absence of any direct and serious attempts on the part of the relevant senior matai to address and confront the question of ownership and pule. The matter has become a lingering uncertainty ámong those in the vicinity. Pespite various vague claims to the land, nobody has bothered to attempt title registration proceedings as might be normally expected. The evidence at best pointed to simulated or feigned motions on the part of the matai.
This reluctance to confront the issue of ownership was ¿Iso very evident at the trial itself with the noticeable absence of the senior matai. Although Maiavatele filed this suit, he was not at trial to testify and present the basis of his family’s claim — he left this primary duty to lesser matai. Nor was Maae, who seemed content throughout'to simply sit back and await the outcome of the proceedings. Maae did not attend any of the meetings called by the Office of Samoan Affairs, although his older brother Ai‘i attended and spoke on behalf of the Maae family. (Ai‘i unabashedly admitted that he had encouraged the disputed construction on the land in order to bring the dispute to a head before the courts.) We also noted, with equal puzzlement, that the senior matai of the neighboring Te‘o family, although not a party to the case but whose land, according to Maiavatele, 'yas also included in Maae’s survey, did attend the beginning of the trial but then did not choose to wait around and testify accordingly. Instead he suffered an untitled member of his family t<? do so rather poorly.
Thp resulting evidence, given by those who took the stand, was thoroughly contradictory. The testimony essentially amounted to one side asserting ownership and pule, which in turn was met by the other’s equally earnest counter-assertion of ownership. If anything is clear from the testimony, neither side has had much of anything to do with the land within recent memory. (There is one grave on the land which, depending on who you listen to, is the final resting place of a deceased member of either the Maiavatele family or the Maae family.)
We find neither side to be convincing with their respective claims to use and occupation of the land prior to its assignment to the pastors. Indeed, in those few instances where the testimony was not contradictory, it tended to show that neither side, apart from Fasimoli’s construction, had.ever built before on the disputed land. Both sides have, however, had family members who erected structures and lived immediately adjacent to the disputed area, and it is this particular factor which seems to have been heavily relied upon as a basis for each’s claim.
*26
Conclusiqns
On the foregoing, we necessarily conclude that neither party has been able to shpty better title to the disputed land qrea. nor a superior . right to possession. In these circumstances, plaintiffs must be denied the relief sought herewith.
We unfortunately note that the uncertainty over the land’s ownership will continue. It is equally unfortunate that this matter was qot first addressed by the senior matai pf the relevant families as opposed to its bping hastijy forced to a head hy individual family members and then rather badly presented before the Court. We sincerely hope that the senior matai will take the opportunity to. address their respective differences, if any, with regard to entitlement to the land, and if a resolution canpot be arrived at then fije land should be offered for title registration pursuant to A.S.C.A. §§ 37.0101 et seq., whence the matter may be dealt with in rem.
Judgment accordingly. It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485848/ | On Motion for Reconsideration and New Trial:
Plaintiffs and defendant are all members of the Paulualo family. Plaintiff Paulualo Fatu is the registered holder of the Paulualo title; for a number of years the family and village council recognized defendant Siofaga as an unregistered co-holder of the same title, in violation of A.S.C.A. §§ 1.0413-14. When the relationship between the two co-claimants turned sour, Paulualo Fatu successfully sued to enjoin Siofaga from holding himself out as an Paulualo. See I'aulualo v. Siofaga, 10 A.S.R.2d 26 (1989). Plaintiffs then brought the present action to evict defendant Siofaga from the home he has long occupied on Paulualo family land.
The Court held that plaintiffs had not proved that they were entitled to evict Siofaga. Although the power of a matai over family land is substantial, it is not absolute. See Talili v. Satele, 4 A.S.R.2d 23 (1987), and cases cited therein at 27-28. In particular, a matai may not evict a family member without cause from a house which the family member himself has built or substantially improved with permission of the matai or his predecessor in title, even though the house be on family land. Tali v. Tupeona, 4 A.S.R. 199 (1961). In the present case Siofaga substantially improved the dwelling and plaintiffs did not object until several years later.
Moreover, in those rare cases when some important family purpose has been held to justify the eviction of a family member who has done no wrong from family lands he has been occupying, it has always been held essential that the family member be compensated by the *28assignment of equivalent lands. See Talili, supra at 27, and cases cited therein. In the present case the only compensation offered for the proposed eviction of defendant from the finished Western-style house in which he has long resided is a general assurance that he is free to build another house on other family lands.
Finally, the only cause asserted by plaintiffs for the proposed eviction is their allegation that the house in which Siofaga resides was originally built by the immediate family of plaintiff Ma‘ave and was intended for the sole use of that immediate family. The Court found the facts to be more complicated.
Before it was enlarged and improved by Siofaga, the house consisted of two separate houses. The front house v/as built by various members of the extended I‘a family, not just by members of the immediate family of Ma‘ave, and was used for some years by the late I‘a titleholder who was Ma‘ave’s father. It was then used, apparently' without objection, by the late chief Laupola. Laupola later gave Siofaga permission to move in, also apparently without objection from other family members. Plaintiffs’ contention that Laupola gave Siofaga permission to reside in the house only temporarily is inconsistent with the weight of the evidence, which shows that Siofaga lived in the house for many years without objection from anyone. (We also note defendant’s position that Laupola, as an ali ‘i, holds pule within the family superior to that of tulafale I‘a, and that the family is properly known as the "aiga sa Laupola ma Paulualo." We state no opinion on this issue.)
The back part of the house was originally a separate structure built by a brother of Ma‘ave named Feti‘i. Siofaga began occupying this structure with the permission or at least the acquiescence of Feti‘i, who does not now join in the petition to evict him.
The motion for reconsideration or new trial is based partly on a general assertion of the power of the matai and partly on plaintiffs’ claim that "[t]he building plans [for the back building] show the names of two brothers Ma‘ave and Feti‘i." Plaintiffs urge that ”[t]he court appears to be under the misconception that the house in the back belonged to Feti‘i alone and such misconception appears to be the result of its impression that the building plans reflected only one name. "
The building plans, however, do contain only one name: "Mr. Maave Fetii of Afono." In context this appears to be a reference to the person to whom the present parties refer simply as "Feti‘i." It is *29undisputed that he arranged for the plans to be drawn and took out a loan to finance the construction, and witnesses other than the plaintiffs generally referred to the structure as "FetFi’s house.” Despite the concession by counsel for defendants that FetFi was never, as far as counsel is aware, known by the name Ma'ave FetFi, the judges have discussed the matter and are unanimous in their opinion that (1) "Mr. Ma‘ave FetFi" was a reference to only one person and (2) that person was far more likely to have been FetFi than plaintiff Ma‘ave.
In Samoa it is not uncommon for a person to be known by a variety of names, the use of formal surnames being of recent vintage. While it is undisputed that both "Ma‘ave" and "FetFi" are calling names rather than matai or family names, we note the common practice of referring to people by their calling names together with the calling name of a father or other family member: e.g., "Ioane Iosefo" or "Iosefo Samuelu." If FetFi had a prominent relative (either the present plaintiff or a forebear) whose calling name was Ma'ave, or if the draftsman, thought he did, or if there was for some other reason a group within the Fa family associated with the name Ma‘ave, then the draftsman might well have referred to the young man as "Mr. Ma’ave FetFi." Any of these hypotheses would make more sense than plaintiffs’ suggestion that "Mr. Ma‘ave FetFi of Afono" should be construed as a reference to two separate people.
In any case, the preponderance of the evidence aside from the building plans indicates that FetFi built and paid for the house in question.
For the foregoing reasons, the motion for reconsideration is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485850/ | On First and Final Accounting and Request for Approval of Distribution:
Heinrich Ah Mai was a fifteen-month old child who appears to have died in an accident. His mother, Iva Ah Mai, petitioned for appointment as the administratrix of his estate and the petition was granted. She now requests Court approval for distribution of the proceeds of the estate to herself and the decedent’s father.
The accounting and request for distribution lists the only asset belonging to the estate as "$15,000 — Settlement with American Samoa Government Tort Claim." The accounting designates the decedent’s parents as "next of kin." In response to the Court’s inquiry, counsel for the administratrix indicates that the decedent also left brothers and sisters. These brothers and sisters are all minor children of the administratrix and her husband.
The request for distribution calls for an interpretation of A.S.C.A. § 40.0201, which provides that in the absence of children, other lineal descendants, or a surviving spouse, personal property "shall be distributed among the next of kin of the intestate." The statute does not specify whether, in the event a person is survived by one or more siblings as well as one or more parents, his "next of kin" are his parents, his siblings, or both.
This question appears never to have been directly addressed by the High Court. Nor have we been able to find guidance in the legislative history of A.S.C.A. § 43.0201 or in the statutory scheme surrounding it, with the possible exception of the parallel provision of A.S.C.A. § 40.0202 to the effect that brothers and sisters take priority over parents in the devolution of real property. This, however, can be taken either way: as an indication that the legislature believed that brothers and sisters were nearer kin than parents for inheritance *34purposes, or as evidence of a positive intention that real property should devolve upon someone other than the "next of kin."1
Counsel for the administratrix refers us to a California case holding that "next of kin" means aunts before cousins — and therefore, presumably, parents before brothers and sisters. Estate of Way, 85 P.2d 563 (Cal. App. 1938). This is an application of the "civil law rule," according to which kinship is determined by a series of steps up and down the genealogical ladder. According to this rule a person is one step away from his parents and two steps from his siblings. See T. Atkinson, Handbook on the Law of Wills § 18 at 69 (2d ed. 1953). According to the competing "common law rule," however, a person is related to both his siblings and his parents in the first degree. See id. § 7 at 45-46. The process of defining the term "next of kin" within the meaning of our inheritance statute can be restated as an inquiry into which of these rules the Fono intended to adopt, or into which rule the Court should apply in the absence of any discernible legislative intention.
The present ex parte motion, although hardly the ideal context in which to decide an important legal question of first impression, appears on its face to require such a decision. Upon closer examination, however, the motion presents a prior question whose resolution may render the inheritance question immaterial. Briefly, it is not at all clear that the estate is the true owner of the $ 15,000 tort settlement which is its only stated asset.
*35We infer from the record that the tort settlement arose out of the death of the decedent himself. If so, the estate was entitled to recover only the reasonable expenses of the decedent’s last illness and burial and compensation for any damages suffered by the decedent prior to his death. A.S.C.A. §§ 43.5001(b), 43.5002. Damages for loss of society, companionship, comfort, protection, and related damages, as well as any pecuniary loss suffered on account of the decedent’s death, were recoverable not by the estate but by "the surviving spouse, parents, children or other next of kin, if any, of the decedent as the court may direct." A.S.C.A. § 43.5001(b).
The class of beneficiaries encompassed within the term "next of kin" for wrongful death purposes does not appear to designate only those persons who are first in line to inherit the decedent’s real or personal property; if it did, the phrase "as the court may direct" would be superfluous and possibly mischievous. Whether or not a decedent’s brothers and sisters are as closely related to him as his parents for inheritance purposes, they have frequently been allowed to recover along with parents in wrongful death actions. See, e.g., Galo v. American Samoa Government, 10 A.S.R.2d 94 (1989); Continental Insurance Co. v. Ching-Sam, CA 53-89 (1990). This practice is in accord with that of at least some other jurisdictions whose wrongful death statutes limit recovery to the "next of kin." See, e.g., Fountain v. Chicago, R.I. & P. Ry. Co., 422 S.W.2d 878 (Ark. 1968); Crystal v. Hubbard, 324 N.W.2d 869 (Mich. 1982); Karr v. Sixt, 67 N.E.2d 331 (Ohio 1946). See generally Annotation, Brothers and Sisters of Deceased as Beneficiaries Within State Wrongful Death Statute, 31 A.L.R.3d 379, 390-95 (1970).
Although our wrongful death statute requires that suit be brought "on behalf of" the next of kin as designated by the Court, it also provides that the "personal representative" of the decedent (presumably the executor or administrator of . his estate) may "with the consent of the court ... , at any time before or after the commencement of the suit, settle with the defendant the amount to be paid." A.S.C.A. § 43.5001(d). The requirement of judicial consent would appear to be necessary in light of the personal representative’s competing fiduciary responsibilities to the estate and to the designated next of kin — or, in settlement negotiations prior to the filing of suit, to those whom the court would designate in the event suit should be filed — who may or may not be distributees of the estate. In the present case the record reflects neither the filing of a lawsuit nor a request for judicial designation of the "next of kin" or for judicial approval of a wrongful death settlement.
*36The facts may, however, be different from those we have inferred. Perhaps judicial approval has been sought and received in some proceeding to which reference has not been made in this probate action, or perhaps the settlement proceeds have to do with some tort entirely unrelated to the death of Heinrich Ah Mai. Accordingly, the present motion will be set for a hearing on Thursday, February 15, 1990.
Counsel for the administratrix and for the American Samoa Government, whose interests may also be affected by our decision on the present motion, should appear at the hearing prepared to answer the following questions:
1) Did the tort settlement listed as an asset of the estate arise out of the death of Heinrich Ah Mai?
2) If so, did the claim asserted against the Government include any elements other than medical expenses, funeral expenses, and damages-for which Heinrich had a right to recover prior to his death?
3) Did Heinrich’s brothers and sisters have a right of action for his wrongful death under A.S.C.A. § 43.5001, or could they have acquired such a right by designation of the Court?
4) Was it the understanding of the parties to the settlement that it would foreclose any future wrongful death action not only by the parents and the estate, but also by Heinrich’s brothers and sisters?
5) Should judicial approval have been sought for the settlement?
6) In light of the answers to the above questions, does the tort settlement belong to the estate or to some other person or persons?
It is so ordered.
The common law of England and its medieval antecedents treated the ownership of real and personal property as two radically different kinds of interest which therefore devolved differently upon death. See T. Atkinson, Handbook of the Law of Wilis § 3 at 11-21 (2d ed. 1953). This attitude has contributed-substantially more to the structure than to the substance of the statutes governing inheritance in modem England and the United States. See id. §§ 13, 14.
At one time the common law had it that ancestors, including parents, were absolutely prohibited from inheriting land. See id. § 6. This prohibition derived from feudal principles and is apparently not now in force anywhere, although the subordination of parents to siblings in A.S.C.A. § 40.0202 may be a vestige of it. That this absolute prohibition was limited to real property should not be taken to suggest any particular enthusiasm for the lineal ascension of chattels; under a statute which remained in force until at least 1833, an intestate’s father inherited personal property to the exclusion of the mother and siblings, but a surviving mother received only a share equal to that of each brother and sister. See id. § 7 at 46-47.
The presence of two different sections for real and personal property in the American Samoan statutory scheme appears attributable to this general tradition. It affords no evidence of any specific legislative plan having to do either with differences between the two kinds of property or with their similarities. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485854/ | On Motion to Amend Pleading:
Upon trial of this case we held the defendants partly liable for damages arising from the wrongful death of plaintiffs’ daughter, Ballerina Saufo‘i. We did not, however, enter judgment because plaintiffs had never petitioned the Court for designation as "next of kin" in accordance with A.S.C.A. § 43.5001, the territorial wrongful death statute.
Practice in the High Court has been to include brothers and sisters along with parents as plaintiffs in wrongful death actions where the decedent has left no surviving spouse or descendants. Ballerina, who was four years old at the time of her death, left four siblings, all of whom were minor children of plaintiffs. On the record before us it was not clear whether a judgment in plaintiffs’ action was intended to foreclose the rights of these minor children to recover for any damages *53they might have suffered, or to leave the defendants open to further litigation by the brothers and sisters. Either of these results would raise problems of procédure and of substance, although either might be preferable to leaving the question unresolved until the potential claimants should reach the age of majority in ten years or so. We therefore withheld entry of judgment pending a petition by plaintiffs for designation of "next of kin" under A.S.C.A. § 43.5001, either of themselves alone or of themselves along with Ballerina’s brothers and sisters.
Plaintiffs have chosen to request amendment of their pleadings to include the brothers and sistérs. Although this course seems the wisest of those now open, an amendment of this sort after trial can only be permitted insofar as it does not prejudice any of the defendants. In effect, this means plaintiffs must share their award of $ 30,037.50 with their new co-plaintiffs, who might have been able to prove and recover additional damages had they been joined before trial. (Plaintiffs have assured the Court through counsel that they understand this consequence of the present motion.)
It is commonplace to remark the difficulty of placing a value on pain and suffering, particularly of the emotional rather than physical variety. It is perhaps even more difficult to compare the emotional effects upon different people of a single tragic event. This is particularly true when the Court has no particular evidence on which to base such a comparison. Both human experience and judicial precedent suggest, however, that a person is likely to be more deeply affected by the death of his child than of his sibling. It is also true that minor children are far more likely to provide future financial support to their parents than to their brothers and sisters. The High Court has therefore approved wrongful death settlements by which the parents of a deceased child receive substantially more than the brothers and sisters, even though the parents were doing the negotiating for all the aggrieved parties. See, e.g., Galo v. American Samoa Government, 10 A.S.R.2d 94 (1989) ($17,000 total for two parents, $5,000 total for two children). In the present circumstances — which include the fact that the parents themselves have been held partly responsible for the events leading up to Ballerina’s death, and that the children would presumably have been able to recover with no reduction for comparative negligence had they been named as plaintiffs at the outset — an award of $3,000 for each child seems reasonable. This leaves $18,037.50 for the parents.
*54Accordingly, the motion to amend the pleadings is granted. Plaintiffs Lumana‘i and Tausisi‘i Saufo‘i are designated guardians ad litem for Joseph, Faimasasa, Iupeli, and Ilalio Saufo‘i, who are also joined as plaintiffs. Judgment will enter against defendants Pauli, Holt, and Continental Insurance Company in the amount of $20,025, and against defendant American Samoa Government in the amount of $10,012.50. A total of $12,000 of this amount ($8,000 from the first three defendánts and $4,000 from ASG) should be deposited in the registry of the Court to be placed in trust for the minor plaintiffs. The remaining $18,037.50 of the judgment will be entered in favor of plaintiffs Lumana‘i and Tausisi'i Saufo‘i.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486482/ | Opinion and Order:
This case originally went to trial in the Land and Titles Division in March of 1992, and concluded with the title "Faumuina" being awarded to candidate A.P. Lutali. On appeal, the Appellate Division vacated the trial court’s decision and remanded. The appellate court reversed on two grounds: that the court failed to determine the identity and makeup of the Faumuina family clans, and that certain associate judges who sat at the trial level should have recused themselves. Since remand, candidate Utu Sinagege has passed away and candidate A.P. Lutali has withdrawn his claim. A.P. Lutali’s withdrawal from the case has eliminated the perceived conflict of interest involving the associate judges. The case is now once again before the Land and Titles Division having first being placed on calendar for trial for August 26, 1994. However, after countless postponements, for further family discussion, the matter was finally heard on January 22-24, 1997. Following the parties’ filing of post-trial briefs, the court took the matter under advisement and now issues the following opinion and order.
DISCUSSION
*166In these matters, the court is guided by the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to family, village, and country.
1. Hereditary Right
Each party measured his hereditary entitlement to the nearest titleholder in his lineage. Fautua L.T. Faumuina ("Fautua") claimed 50% entitlement on the basis that his father, Faumuina Tuika III, was a previous title holder. Suafa'i P. Satele ("Satele") claimed 25% entitlement in that Faumuina Tuika III was his maternal grandfather. Saunoa S. Vaouli ("Saunoa") traces his line to Faumuina Tuika II, his great, great grandfather and accordingly claimed 6.25% entitlement.
Fautua clearly prevails on this issue, and we so find.
2, Wish of the Clans
We note at the outset that the parties have all changed their respective positions on the identity and makeup of family clans from the positions they had asserted and testified under oath at the original trial. On the evidence before us, we find that there is only one clan of the Faumuina family, known as Tuika. We further find that no one candidate enjoyed prevailing family opinion at the very first series of family meetings which were convened before the original trial in this matter. However, on the evidence received as to post-appeal family gatherings, we find that Fautua had lost much of the support that he had previously held, largely because of his perceived endorsement of candidate Lutali when he withdrew his appeal in the name of "peace and harmony in the family."
Saunoa, on the other hand, demonstrated .• ome' family support, but we find the evidence preponderating in favor of Suafa'i on the issue of clan preference. While both Saunoa and Suafa'i live in the village, unlike Fautua, Suafa'i finds the greatest favor with family elders because of regular service to the family. He has, together with his uncle Logomai, maintained the family sao’s monotaga and he is the only candidate who is confronted from day to day with the family's commitments. At the same time, he has invariably served as the family's spokesman on numerous occasions. In a nutshell, he enjoys the weight of family opinion because of his active tautua.
Since Suafa'i enjoys the greatest measure of family support, we conclude that he therefore prevails on this consideration.
*1673. Forcefulness. Character and Personalty, and Knowledge of Samoan Customs
In our evaluation of each of the parties, we rate Saunoa slightly ahead of the other candidates on the element of forcefulness. He has relatively excelled in his efforts to better himself, having graduated from college and made a career in the federal government as a recruiter for a branch of the armed forces. He is young, industrious, and is also enjoying some measure of success in the business ventures that he operates with his wife.
Fautua is now retired from the American Samoa Government where he had, for many years, employed his skills and talents as an automotive mechanic. Notwithstanding the more limited opportunities that were available to his generation, Fautua has done rather well for himself. He is financially secure in his retirement, receiving both government retirement and social security benefits, as well as regular monetary assistance from his adult children. He currently concentrates his efforts in farming and boasts rental homes as a supplemental source of income. With his age, he is more circumspect and better tempered in disposition. Family harmony seems to be his motto, even at the expense of incurring family wrath when he endorsed, in the name of family concord, the trial court’s previous choice of candidate Lutali as the next titleholder. His demeanor on the stand also manifested his personable qualities. He appeared genuine when he expressed his utter disappointment in the seemingly no-holds-barred approach taken during trial by the other candidates, his younger relatives, in derogation of family harmony. We are inclined to rate Fautua ahead of Saunoa and Suafa'i on the consideration of personality.
Suafa‘i on the other hand has also had a long career with the American Samoa Government. He has dutifully wo ked his way up the ranks and now enjoys a supervisory position with the Port Administration. At one time, he also ran a business in the village but was less successful. This had, in our view, something to do with his choice of lifestyle; that is, emphasis on the communal way of life and the active service of the family in accordance with the dictates of the fa ‘a Samoa. Unlike Fautua and Saunoa, whose lifestyles have tended to emphasize their own individual wants and aspirations, SuafaTs choice of lifestyle has been less independent of the demands and needs of the Faumuina family. In this regard, we are inclined to place him ahead of the other candidates in terms of the character factor. Additionally, SuafaTs day to day experience with family and village affairs, is clearly demonstrative of his greater familiarity with matters of Samoan customs, as revealed by his answers to questions of the Associate Judges. (The earlier trial court also noted SuafaTs "excellent" knowledge of Samoan custom.) We are *168satisfied that Suafa'i is stronger in terms of the elements of character and knowledge of Samoan customs.
Weighing the relative strengths and weaknesses of the parties, we conclude in favor of Suafa'i on this criterion.
4. Value to Family. Village, and Country
In their own chosen career, fields, each candidate has positively contributed to the general well being of the territory. However, Suafa'i is superior on the issues of value to family and village.
The evidence shows that Fautua has for many years lived in the Malaeimi area, and that he is involved only intermittently in Faumuina family fa‘alavelave. He readily admits reliance on the family members living in Alofau to attend to the day to day obligations of the sao and family. This is, in actuality, effective testament to Suafa'i’s service to the family. Moreover, Fautua’s allegiance as a matai and as a church deacon are primarily owed elsewhere, and not with Alofau.
Saunoa, although living in Alofau, has not, as a non-titled person, involved himself much in village affairs. He is involved about as much in family affairs. Although he does contribute to important family fa'alavelave, Saunoa must point to the past services of his father and ancestors to highlight the equities on his side of the family. His focus in life to date, however, has been his own personal and career goals. Indeed, his return to the territory was coincidental with his good fortune in securing a duty station on Tutuila. He purports to excuse his seeming apathy with his political rights-he does not participate in local elections--by claiming a misguided fear of jeopardizing his federal career if he exercises his political rights. Finally, the matai title Faumuina has paramount stature, but Saunoa is without any matai experience whatsoever.
Suafa'i, however, impresses us as having the best potential to lead the family and take on the burdens and responsibilities of the Faumuina title. He enjoys strong family following and support since he is perceived, as not having simply demanded entitlement to the Faumuina title, but that he has effectively demonstrated merit by earning it the traditional way-through service and tautua to the family. In terms of rapport with the village council and. beyond, Suafa'i has and continues to enjoy recognition and stature not only because of the many inter-family occasions, both within and beyond Alofau, that he has acquitted himself as the Faumuina family’s spokesman, but also because of his active involvement in village projects and village affairs.
*169On this fourth consideration, we find that the parties are by and large equal with respect to value to the country, but find that Suafa'i’s record speaks most convincingly in terms of value to family and village.
We conclude that Suafa‘i prevails also on this criterion.
CONCLUSIONS & ORDER
Based on the foregoing, we hold that Suafa'i is qualified to hold the title Faumuina. While Fautua prevails on hereditary considerations, Suafa‘i prevails over both Fautua and Saunoa on the second, third, and fourth criteria. The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Faumuina, attached to the village of Alofau, in candidate Suafa'i P. Satele.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485829/ | On or about March 17, 1989 the Court found that the respondent/counter-petitioner hud satisfactorily proven grounds for divorce and accordingly announced its findings and conclusions. With regard to ancillary issues, the proceedings were continued to allow the parties to discuss the division of marital assets and liabilities. These discussions have led to a mutual resolution (the Court was advised that appropriate stipulations would be réduced to writing and filed with the Clerk for the Court’s approval and annexation to the decree of divorce) in all but two issues, which are here presented for the Court’s determination.
Factual Background
The parties were married on or about February 23, 1987, and separated in January 1988. During the short period of cohabitation, the parties built a home on communal land of the respondent’s family. They made a sizable home loan and engaged certain relatives of the petitioner to build the said home fa‘a Samoa (the builders would be rewarded for their labor with presentations in accordance with Samoan custom). Respondent on her own accord arranged and made certain remunerative presentations for the builders in accordance with her perception of what was due under custom. Petitioner, on the other hand, feels that the builders were insufficiently rewarded.
*36The parties have sensibly agreed that the marital home be awarded to respondent on the condition that she repay the home loan and indemnify petitioner accordingly.1 Petitioner, however, also claims in addition a total of $9,500 from the respondent as set out below.
The Dispute
A. One claim is for $6,500 which petitioner feels should be additionally paid by the respondent to the carpenters. In his view a further payment of $6,500 would be fitting, given the extent of work undertaken. Petitioner seeks the said amount so that $5,000 may be given to a carpenter named Taito and $1,500 to the finishing carpenter named Lene.
B. Additionally, petitioner wants respondent to reimburse him the sale proceeds of his pickup truck. Petitioner claims that these funds were used by the respondent to provide food for the builders while they were working on the marital home. Petitioner testified that the truck (which he had purchased before the marriage) was sold to his son in Western Samoa for $4,000 and that his son turned over the proceeds to respondent.- Although he admitted using $1,000 thereof, petitioner testified that the sale proceeds were earmarked for the purchase of another vehicle. While he further admitted that he did not know exactly how the remainder of the proceeds were used, he seeks $3,000 from respondent on the basis that the proceeds of the sale of his separate property would have benefitted the construction of the home.
Respondent, on the other hand, denied using all of the sale proceeds to feed the carpenters. She testified that she received the proceeds in installments and that the funds simply went into the overall household budget. As the family exchequer, she testified that she applied the first $1,000 to pay off an account which petitioner had incurred. The rest of the money was expended not only on food for the carpenters but also on petitioner’s large extended household who lived with them. At the same time, the money was also used on such typically family expenses as fa’alavelave and village and church matters.
*37
Conclusions
A. At trial, we summarily denied petitioner’s introduction of evidence on the first claim upon objection by counsel for respondent. We refused to entertain a collateral suit on behalf of the carpenters ip the context of petitioner’s divorce proceedings.
Counsel for petitioner argued ip response to the objection that his client was not suing on behalf of the carpenters but merely seeking indemnification against possible claims by the carpenters. We rejected this argument. The evidence on the reasonableness of the carpenters’ claim, which was objected to by respondent, clearly had nothing to do with indemnification against possible suit by the carpenters. Rather, petitioner sought a specific recovery for himself, asking for a judgment in the amount of $6,500. Such a claim is for a "liquidated" amount, which is hardly consistent with indemnification given the "contingept" nature of any claims the carpenters might have.
More importantly, the pleadings did not alert anyone to anticipate the claim as presented, and certainly respondent did not have adequate notice. The very fact that an argument arose regarding the extent of petitioner’s claim (specific recovery versus indemnification) highlighted this lack of adequate notice.
We held the objection to be well founded. The respondent’s entitlement to adequate notice and a meaningful opportunity to be heard is a right of constitutional dimensions. At the same time, our conclusions in this regard are without prejudice to any claims which the petitioner may have to indemnification, as well as to any claims which the carpenters may have relating to accord and satisfaction fa‘a Samoa.
B. Petitioner’s other claim (for reimbursement of proceeds) is totally without merit. This remarkable claim requires the Court to attempt a restoration of divorcing parties to their former positions as if the fact of marriage had never occurred. It would follow, on the logic of petitioner’s claim, that respondent should also be reimbursed by petitioner for all monies she had earned from her separate rental car business and which she had contributed during the marriage to such matters as petitioner’s upkeep, the upkeep of any members of petitioner’s extended household, fa'alavelave involving petitioner’s side of the family, petitioner’s matai obligations to the village and church, and other similar expenditures. If petitioner had used any of respondent’s rental vehicles *38during the marriage, should he now be liable for rental charges since the marriage is now over?
If the proceeds from the sale of the pickup truck had been spent during the marriage on food for the carpenters, then the proceeds were, indeed, used for a marital purpose — the iparital hoipe —which undoubtedly benefited the petitioner as well. Just because the marriage has legally ceased to exist does not mean that such a marital benefit has now somehow taken on the form of a post-marital detriment claimable at the option of one party from the other. During the marriage, a certain amount of water, so to speak, had flowed under the bridge. The Cpurt cannot, in the course of divorce proceedings, turn back that flow of water.
•Petitioner is .denied relief on both claims.
It is so Ordered.
In fact, since the filing of the petition and counter-petition, respondent has refinanced the home loan by taking out another in her name alone. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485831/ | On Motion to Disburse Funds and for Approval of Attorney Fees:
These motions concern disbursement of funds obtained in a post-judgment proceeding brought in the name of a deceased plaintiff. Distribution is requested in accordance with the terms of a contingent fee agreement said to have been made between the late plaintiff and an attorney who has since been disbarred.
Plaintiff Te‘o Manurna brought this wrongful death action in 1983 against defendants Schwalger, Tedrow, and Continental Insurance Co. The Court awarded Te‘o $10,000 against Continental and $90,000 against the other two defendants. Te‘o was represented at trial and throughout most of the appeal by counsel Mulitauaopele Ivi. After the appellate briefs had been filed, Mulitauaopele was disbarred; the oral argument was made by counsel Asaua Fuimaono. On April 5, 1985, the Appellate Division upheld the judgment of the trial court.
During 1986 and 1987 counsel Fuimaono made several unsuccessful attempts to collect on his client’s $90,000 judgment against Anita Tedrow.1 Counsel Fuimaono’s collection efforts were directed *44primarily to a parcel of land with a house on it, which was occupied by Anita Tedrow and her family: Although this property was not registered in Mrs. Tedrow’s name, she had signed an agreement to purchase it in 1983 and had. paid the purchase price in full by 1986, Counsel Fuimaono’s efforts to execute upon the property were pointless, however, because Mrs. Tedrow is a Samoan and "[n]o real property of a Samoan may be subject to sale under a writ of a court to satisfy any judgment Other than a judgment foreclosing a valid mortgage . . . A.S.C.A. § 43.1528(a).
In September 1987 counsel Fuimaono learned that the Tedrows had taken steps to sell the property and to leave American Samoa- He immediately reported this discovery to the Court by way of an "Expedited Ex Parte Motion to Invalidate Warranty Deed and to Prohibit Any Transaction on Land Without Approval of the Court." The ensuing saga is told in Te‘o v. Continental Insurance Co., 6 A.S.R.2d 135 (1987); In re Special Guardianship of Tedrow, 1 A.S.R.2d 72 (1988); and Tedrow v. Manuma, 12 A.S.R.2d 51 (1989). The upshot is that the registry of the Court now contains $32,500 plus accrued interest which has been held to be the property of Te‘o Manuma.
Unfortunately, however, Te‘o Manuma has passed away. He had already passed away two months before counsel Fuimaono filed his Expedited Ex Parte Motion, yet counsel chose to litigate for two years on behalf of his deceased client rather than to move for the substitution of decedent’s estate. Counsel now informs the Court of his client’s demise and asks that the proceeds be disbursed directly to the heirs of Te‘o without resort to probate: one-third to the widow Sifaga Manuma, and the balance to be "distributed amongst" certain unnamed children. To be more precise, counsel asks that half the proceeds be thus distributed. He requests that the other half be given entirely to Sifaga Manuma, who was mentioned in several places in plaintiffs complaint although she was not actually named as a plaintiff.
The Court can grant half of this request. Although the omission of Sifaga Manuma as a named plaintiff was extremely sloppy pleading and caused the trial court to omit any mention of Sifaga in its decision - ”- and also caused the appellate court, apropos of another issue, to observe that "there is only one plaintiff besides the estate" — the *45pleadings as a whole can be construed to request recovery for Te‘o on behalf of himself and Sifaga jointly. Sifaga, the mother of the boy who was killed, had the same legal and equitable right as Te‘o to recover for their son’s death. We believe the trial and appellate courts would have mentioned her specifically had the matter been called to its attention. We therefore construe the judgment as being in favor of Sifaga and Te‘o jointly. Half of the award, after deduction of attorney fees, should be distributed directly to Sifaga.
The requested distribution of the remainder of the proceeds not to Te‘o’s estate but directly to his heirs, most of whose names are known neither to the Court nor apparently to counsel (and without any prior notice to creditors or to anyone else who might wish to make a claim against the estate) would violate several bedrock principles of the law of successions, not to mention numerous explicit statutory provisions. See generally Title 40 of the American Samoa Code Annotated. The share of the proceeds belonging to Te‘o Manuma will be disbursed to the administrator of his estate as soon as an administrator has qualified.
The Court is asked to perform yet another illegal act by distributing a fifty per cent share in a contingent fee to former counsel Mulitauaopele, who is not licensed to practice law. See Model Rules of Professional Conduct, Rule 5.4; ABA Model Code of Professional Responsibility, EC 3-8, DR 3-102. One of the rights counsel Mulitauaopele lost when he was disbarred was the right to enforce, as against sums accruing to his clients after the disbarment, contingent fee agreements he had made while still a lawyer. Although he had a duty to assist his former clients in an orderly transition to new counsel, he had no right to sell or barter his practice or any part of it to another attorney in exchange for a percentage of the proceeds.
We assume for the purpose of this motion, although we have been unable to find any authority on the question, that a disbarred lawyer might be able to collect on a quantum meruit basis for work performed for clients prior to his disbarment. In the present case, however, we note that attorney Fuimaono has already collected $12,520.85 from Continental Insurance on behalf of Te‘o and other parties who were represented by Mulitauaopele and later by himself. This happened in 1985, after counsel Mulitauaopele had been disbarred; it was therefore unlawful for him to collect his forty per cent contingent fee or to divide it with counsel Fuimaono; the request presently before us, however, strongly suggests that he and counsel Fuimaono did not see the matter this way. If Mulitauaopele has already collected several thousands of *46dollars for his work on this case, it would appear most unlikely that he could recover more on a quantum meruit basis. If he wishes to make such a claim, however, he may do so within the next ten days.
Counsel Fuimaono did not have a contingent fee agreement — nor, as far as the record discloses, any agreement at all — with Te‘o. Fuimaono’s agreement with former counsel Mulitauaopele to violate Rule 5.4 by sharing the latter’s unenforceable fee agreement is itself unenforceable; for the same reason that Mulitauaopele is forbidden from selling shares in his former cases, counsel Fuimaono may not purchase them. He may, however, collect fees on a quantum meruit basis.2
The writer of the present opinion was . the trial judge in all the post-judgment proceedings in which counsel Fuimaono was involved and is intimately familiar with the record in these proceedings. On the basis of this record the Court will authorize a $3,000. fee for counsel Fuimaono. If he believes he is entitled to a larger fee he may move for reconsideration of this order within ten days.
In accordance with the above, the following distribution of the sum in the registry of the Court will be authorized: $3,000 to Asaua Fuimaono; $16,250 plus accrued interest, minus $1,500, to Sifaga Manuma; $16,250 plus accrued interest, minus $1,500, to the administrator of the Estate of Te‘o Manuma when such an administrator shall have qualified.
Execution of this order will be stayed for ten days pending any motions for reconsideration or. modification.
It is so ordered.
Continental paid its part of the judgment, along with accrued interest, soon after the appellate decision was rendered. Schwalger, who as driver of Mrs. Tedrow’s car was *44principally responsible for the fatal accident, seems to have had no assets. Soon after the judgment was affirmed on appeal he disappeared from the case and apparently from the Territory.
At the time this motion was made counsel Fuimaono had been suspended from the practice of law. The work he did on these post-judgment proceedings, however, was done at a time when he was under no such disability. In order to avoid any question about his ability to collect pn a quantum meruit basis, the Court has held the present motion under advisement pending counsel Fuimaono’s recent reinstatement. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485832/ | On Motion for Summary Judgment:
Plaintiff Tufono Ionatana seeks a permanent injunction against the defendants to enjoin them from interfering with his family’s use of the land "Milomilo” and to enjoin defendants’ encroachment on said land.
*48Defendants are various individuals alleged as living "immediately adjacent to Plaintiffs land MILOMILO, a couple of their dwelling[s] actually [having] overlapped onto plaintiffs land." Complaint paragraph 4. Plaintiff also complains that defendants have at different times interfered with his family’s use and enjoyment of "Milomilo," which numerous court decisions have affirmed as being owned by the Tufono family. Plaintiff seeks a permanent injunction.
In order to delimit the issues in this matter, the Court required the parties to either provide pre-trial briefs on past court decisions or, alternatively, to seek summary judgment where appropriate.
Plaintiff has responded by way of a lengthy motion for summary judgment addressing only the question of ownership. After reviewing the cases referred us by the parties, we find ourselves in agreement with plaintiffs claim that his family was awarded title to a certain 2. $9 acre, tract of land known as "Milomilo," located in the village of Fagatogo. See Tufono v. Ta'amu, LT NO. 06-1984 (1984).
In so concluding, we necessarily reject defendants’ argument to the effect that the decision in LT NO. 06-1984 is not binding on them since they — as members of the Fa‘agata family — were not privy to those proceedings. The defendants are bound by the .decision in Tufono v. Ta‘amu. This particular matter was referred to the Land aqd Titles Division as a'contested registration application pursuant to A.S.C.A. § 37.0104. Tufono there attempted to register title to the subject land pursuant to the. provisions of A.S.C.A. §§ 37.0101 et seq. The only objector to the offer for registration was the Ta‘amu family. The Fa‘agata family, by failing to object to Tufono’s offer of registration, cannot now complain. Puluti v. Muliufi, 4 A.S.R. 672, 674 (1965). Registration proceedings pursuant to A.S.C.A. §§ 37.0101 et seq. have in rem effect. Molitui v. Pisa, 2 A.S.R. 268, 270 (1947).
The Fa’agatas, and indeed the rest of the world, are therefore bound by the decision in Tufono v. Ta'amu, LT NO. 06-1984 (1984). Partial summary judgment against the defendants may accordingly enter on the issue of established ownership.
To obtain an injunction as a matter of summary judgment, the plaintiffs would of course have to show that no material, question of fact exists. T.C.R.C.P. Rule 56.. Tufono’s motion fails on at least two critical points. First, he alleges that the defendants have committed several acts of actual or near violence. This is the reason his family *49seeks an injunction. The defendants deny this in paragraph 4 of their Answer. This alone raises a material question of fact. Secondly, plaintiffs pleadings do not specify the exact location of defendants’ interference pr overlap beyond stating that it is within "Milomilo." No reference to any survey or map is made. To prevail, plaintiff must establish that such interference or overlap is within "Milomilo" as that tract of land is known in LT NO. 06-84.
Additionally, we note from the exhibits in Tufano v. Ta‘amu, LT NO. 06-84, particularly plaintiff’s exhibit No¿ 1, that Tufonp’s survey of "Milomilo" upon which judgment was based actually traversed through what look like existing structures. If indeed these are instances of asserted overlapping, then any permanent injunctions would necessarily give rise to equitable considerations "to avoid economic waste or unjust enrichment." Atofau v. Lopa, 2 A.S.R.2d 45, 47 (1985).
Summary judgment is denied. Partial summary judgment is granted.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485833/ | On Motion to Suppress Evidence:
Defendant moves to suppress evidence seized pursuant to a search warrant. Counsel for defendant cites Illinois v. Gates, 462 U.S. 213 (1983), and Massachusetts v. Upton, 466 U.S. 727 (1984), for the proposition that a warrant grounded on information supplied by a confidential informant is constitutionally defective in the absence of "independent corroboration of the tip." Neither case stands for such a proposition; indeed, Upton specifically rejected an almost identical argument. See 466 U.S. at 730. It is true that extrinsic evidence tending to corroborate information provided by an informant might be important to bolster a relatively weak showing on either of the two principal factors considered by issuing magistrates in such cases: the credibility of the informant and the basis of the informant’s knowledge. Gates, supra, 462 *51TJ.S. at 227-28. In the present case,- however,, neither oí; these factors needed bolstering. ' ■
The police officer’s affidavit stated persuasively and with particularity the grounds for the officer’s belief that the informant was personally reliable and had a reliable basis for knowing whereof he spoke. The officer swore that he had personally known the informant for over a year; that the informant had previously provided information which had proved reliable and trustworthy; and that information provided by this informant had in fact been instrumental in securing more tfian one criminal conviction. The information .provided to the officer, moreover, was that the informant had not only been told about the existence and location of the substance in question by the defendant himself, but had also seen it. personally and actually obtained samples.
This showing would have been sufficient to justify the judge in finding probable cause to believe the substance was present at that location even if there had been no extrinsic corroborating evidence. In fact, however, the polipe officer himself tested the samples provided by the informant and found them to be marijuana. This test tended to corroborate only part of the informant’s story, and not the part tying the marijuana to the location in question; but if the officer had tried to corroborate that part of the story before applying for a warrant, defendant might well have been justified in complaining, of a warrantless search. Instead, the officer went before a judge and told him why he believed that (he informant (1) was trustworthy and (2) had a reliable basis for knowing the. truth or falsehood of the information he had given to the officer.
The judge’s task was to make "a practical, common-sense decision whether, given,all the circumstances set forth in the affidavit before him . . . there [was] a fair probability that contraband or evidence of a crime [would] be found Gates, supra, at 238. The duty of this Court in reviewing the issuing judge’s decision is not to try the question anew but "simply to ensure that the magistrate had a ‘substantial basis for . . . concluding]’ that probable cause existed." Id. at 238-39, quoting Jones v. United States, 362 U.S. 257, 271 (1960). The judge’s conclusion was clearly supported by the record.
The memorandum accompanying the present motion also alleges that the police officer’s affidavit "contains material false and misleading statements" and that a statement given to the officers by the defendant *52was not voluntarily made. No evidence in support of these contentions was adduced at the hearing on the motion.
Accordingly, the motion is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485834/ | Plaintiff taxpayer brings this action pro so to recover certain funds of his which the government seized for unpaid taxes by way of a levy on his bank account. Plaintiff denies owing any taxes and claims that the government’s assessment of additional taxes and its collection thereof was "erroneous and illegal."
Facts
We find on the evidence that the Tax Office was, for a brief period between August 2(3 and October 12, 1984, active in the process *54of examining plaintiff’s returns. for tax years 1981 and 1982. The examining agent assigned had proposed a disallowance of certain claimed deductions on the grounds that plaintiff had not provided substantiating records as requested of him. A copy of the agent’s report explaining his proposed adjustments was sent to plaintiff together with a transmittal letter (30-day letter) dated September 26, 1984. Plaintiff did not respond to the options offered in the 30-day letter.
Quite surprisingly, the Tax Office did not thereafter process and mail out a statutory notice of deficiency (the 90-day letter). Except for a letter dated October 12, 1984, which demanded plaintiffs compliance with certain informational requests, there was nothing further done in these matters for the next two (2) years.1 . .
On December 2, 1986, the Tax Office prepared and sent two notices’ to plaintiff. These notices contained the headings "FIRST NOTICE" and "STATEMENT OF TAX DUE." One notice was for tax year 1981 and it stated "assessed tax” in the amount qf $1,158.00, with penalty of $327.00 and interest at $538,37, for a total of $2,023-49. For tax year 1982, the other notice stated the "assessed tax" as being $1,438.00; penalty as $256.36; and interest at $368.91, totalling $2,063.27. When plaintiff received these notices, he simply wrote the Tax Office advising that he had paid his taxes for the tax years referenced.
On May 1, 1987, the Tax Office next sent out a further notice to plaintiff which contained the notation "FINAL NOTICE." This notice, demanded payment of the taxes claimed as due and owing from taxpayer, and it also cautioned that certain collection means, including the power to levy bank accounts, were, by statute, available to the government-Plaintiff, in turn, gave the Tax Office the same response he had given to the notices earlier sent.
On or about August 4, 1987, the gqvemment, after making further adjustments for additional penalties and interest, levied plaintiffs savings bank account and seized $4,256.46.
*55
Discussion
A. The Levy
For purposes of income taxation in the Territory, the Fono has simply incorporated by. reference the United States Internal Revenue Code of 1954, hereafter referred to as the "Code." See A.S.C.A. § 11.0403. The power of levy and distraint oyer a taxpayer’s property is provided in 26 U.S.C. § 6331(a), and may be invoked without the intervention of the judicial process. United States v. Eiland, 223 F.2d 118 (4th Cir. 1955). This power.has been described as "a summary nonjudicial process, a method of self-help authorized by statute which provides the [government] with a prompt and convenient method for satisfying delinquent tax claims." United States v. Sullivan, 333 F.2d 100, 116 (3rd Cir. 1964). This broad administrative power is drastic, however, and as one commentator has explained:
it is based on the theory that the taxpayer has already had the opportunity at this stage to invoke his administrative and judicial remedies to redetermine or to set aside the asserted tax liability, and that he is now at the stage where he owes a tax liability that he refuses or neglects to satisfy.
Chommie, Federal Income Taxation 923 (2d ed. 1973).
In the present case, the evidence clearly demonstrates that the government simply ignored the administrative process mandated by the Code. In the normal course, the Tax Office is first required to mail the taxpayer a statutory notice of deficiency (the 90-day letter) by registered mail. See 26 U.S.C. § 6212(a). The Code further provides that within 90 days after the notice of deficiency is mailed, the taxpayer may file a petition with the Tax Court2 for a redetermination of the deficiency. Until such a notice has been issued, the assessment or collection of any deficiency, whether by levying on or otherwise seizing a taxpayer’s property, is expressly prohibited by the provisions of 26 U.S.C. § 6213(a). In view, therefore, of its omission in this case to issue the required deficiency notice pursuant to 26 U.S.C. § 6212(a), the *56government not only lacked the power of self-help when it levied plaintiffs bank account, it violated a clear statutory prohibition against the use of self-help. It acted illegally.
A number of observations giving cause for concern may be made in the light of events. Firstly, the Court’s jurisdiction in a deficiency proceeding initiated by taxpayer is dependent on the issuance of a 90-day notice,3 and the statute providing for the 90-day notice4 is as binding on the government as upon plaintiff. Maxwell v. Campbell, 205 F.2d 461 (5th Cir. 1953). The government’s failure in this case to issue the 90-day notice had, therefore, effectively deprived plaintiff of his option to litigate the Tax Office’s claim of deficiency as provided by 26 U.S.C. § 6213(a). This option was specifically given by Congress to overcome the potential hardship associated with having to first pay out the Internal Revenue Service’s determination of a deficiency before one is afforded the opportunity to litigate that determination. Laino v. United States, 633 F.2d 626 (2nd Cir. 1980). "[Section 6213(a) is a]n essential part of the whole statutory scheme of furnishing the taxpayer with an option ... to apply for relief to the Tax Court, . . . [and] was not enacted as mere idle gesture." Maxwell v. Campbell, 205 F,2d at 463.
Secondly, a distraint on and seizure of a taxpayer’s property presupposes in the normal case that a prior and valid deficiency assessment has been made. 26 U.S.C. § 6212(a). In turn, a valid assessment presupposes that: (a) the government has prepared and sent the required 90-day notice to taxpayer;5 and (b) the statute of limitations, 26 U.S.C. § 6501(a), has not run.6
The outcome here has been a total disregard for the administration process provided by the Code — that is, the government not only overlooked clear statutory directives, prohibitions, apd *57limitations with regard to its ■ revenue powers, but it also clearly undermined taxpayer’s statutory rights. .
B. Recovery and Sovereign Immunity
Having said as much, the question remains, however, whether plaintiff can recover. It is one thing to say that the government has acted in excess of its tax collection powers, but it is quite another thing to say that government can therefore be sued, For instance, -it has been said "that the right to sue the government is purely statutory, and that the right to recover back taxes wrongfully collected rests upon the same basis." Gotham Can Co. v. United States, 37 F.2d 793 (C.Cl. 1930), cert. den. 281 U.S. 706 (1930). That is, at issue is the doctrine of sovereign immunity and whether there has been a waiver of immunity.7
The Code does provide for refund suits against the government for the recovery of any tax alleged to have been erroneously or illegally assessed or collected. 26 U.S.C § 7422. Such an action, however, is not available in the situation presented here. The filing of a refund suit ensues certain detailed administrative proceedings. Unsurprisingly, the occurrence of certain steps in this administrative process are jurisdictional prerequisites to suit, including: the government’s assessment of the tax owed, Hansen v. United States, 455 F. Supp.1367 (W.D.Mo. 1938), and the taxpayer’s timely filing of a refund claim with the Tax Office.. U.S.C. § 7422(a). In the matter before us, an assessment of taxes owed had not been made by. the government and, at the sarqe time, the opportunity to file administratively for a refund did not arise. Given the circumstances of the levy, plaintiffs filing of a refund claim with the Tax Office would have been a meaningless exercise. The remedial provisions of 26 U.S.C. § 7422 are not apposite.
C. Immunity Waived
Taxation is a subject matter which has been extensively regulated, and in the process of that regulation Congress has come up with an elaborate statutory scheme which attempts' to address two competing but fundamental interests: the government’s need to raise and *58collect taxes on the one hand, and the individual’s right to own property free from undue government interference on the other. The Code has accordingly furnished the taxpayer with a remedial process designed not only to afford him with a number of protective measures but opportunities as well for judicial review and, therefore, statutory waiver of sovereign immunity. In the statutory scheme of things, his access to the courts is, as we have seen, a sequel to an administrative process which is as binding on the government as it is on the taxpayer. The government is such an integral part of that statutory scheme that without its envisaged cooperation that whole scheme can be effectively frustrated.8 -
In cases involving the seizure of real property, some courts have been quite willing to find a waiver of sovereign immunity under 28 U.S.C. § 2410(a), which provides that the United States may be named as a party in a civil action to quiet title and to set aside sale. See, e.g., Aqua Bar & Lounge Inc. v. United States, 539 F.2d 935 (3d Cir. 1976); Yanicelli v. Nash, 354 F. Supp. 143 (D.N.J. 1972).
Yet in other cases, certain courts have, without any mention of § 2410 (or sovereign immunity), simply invalidated certain tax sales which were not undertaken in strict compliance with the requirements of the Code. Johnson v. Gartlan, 334 F. Supp. 438 (E.D. Va. 1971), cert. denied, 414 U.S. 865 (1973); Reece v. Scoggins, 506 F.2d 967 (5th Cir. 1975). The starting premise in these cases is the proposition that tax laws which permit the seizure and sale of property must be strictly construed. This is in recognition of the citizenry’s inviolable right to property; it was noted by Chief Justice Marshall in 1821:
That no individual or public officer can sell, and convey a good title to, the land of another, unless authorized so to do by express law, is one of those self-evident propositions to which the mind assents, without hesitation; and that the person invested with *59such a power must pursue with .precision the course prescribed by law, or his act is invalid, is a principle which has been repeatedly recognized in this court.
Thatcher v. Powell, 19 U.S. (6 Wheat.) 119, 125 (1821), In Reece v. Scoggins, supra, the Fifth Circuit went on to suggest that:
[t]he reason for this notion of the inviolability, of private ownership *** [is that the power] of seizure and sale of land is one of the most potent weapons in the government’s arsenal. The consequences of seizure and sale are often staggering and irreversible; this action not only deprives a taxpayer of a sometimes significant capital investment but also denies him a source of additional income. Seizure and sale are therefore generally available only as a last resort. In recognition of the Damoclean nature of this ultimate weapon, Congress has imposed precise strictures on the seizure and sale of property to satisfy legitimate tax deficiencies.
Id. at 971.
An explanation for jurisdiction in these and similar cases is attempted by the concurring opinion in Aqua Bar & Lounge Inc. v. United States, supra, which involved a § 2410 action. The suggestion here made is that the elaborate and detailed seizure and sale provisions of the Code provide an implied waiver of sovereign immunity where it is alleged that the Internal Revenue Service has failed to comply with the Code:
It would appear axiomatic that whenever Cpngress directs in an unambiguous, detailed manner prescribed, protective procedures to be taken by a government agency, but fails to provide either sanctions or a method of enforcement in the event its mandate is ignored, a waiver of sovereign immunity necessarily must be inferred in order to enforce the legislative will. If it were otherwise, Congressional mandates *** could be treated not as obligatory but rather as mere recommendations which the Internal Revenue Service could violate negligently or intentionally behind the shield of sovereign immunity.
*60Id. at 942.
The. logic is compelling. Since Congress has.deliberately waived sovereign immunity by providing deficiency hearings and refund suits, can it then be said that the government may perversely benefit by its very own wrongdoing which has, among other things, effectively thwarted taxpayer’s access to the courts? Of course not. We note subject matter jurisdiction and conclude that sovereign immunity is not a bar to plaintiffs action here for relief.9
P. Due Process
However, these proceedings do not concern issues of taxation. We are not here concerned with the question of whether or npt taxes are owed and payable, nor are we concerned with the merits of the Tax Office’s claim of deficiency. Those issues come up properly for judicial feview in the context of deficiency proceedings pursuant to 26 U.S.C. § 6212 or refund'actions under 26 U.S.C. § 7422. As we have seen, those opportunities for review never arose because of the government’s actions. To the contrary, the Court is accordingly confronted with questions of whether plaintiff’s property interests were seized in accordance with "due process" of law. Compliance with the deficiency notice procedure satisfies due process requirements. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 597 (1931). We are here concerned with the question of whether the government complied with the detaijed requirements of the law concerning seizure of taxpayer’s property. We are here concerned with the question of whether or not the government has, in seeking to enforce the law, followed the enforcement steps detailed by Congress. Thatcher v. Powell, supra, For reasons given, the above questions must be answered in the negative.
An order will enter accordingly to enjoin the government from depriving plaintiff of his rights to due process:
The government is hereby enjoined from continuing to deprive plaintiff of his rights under the Code to challenge and contest any and all income tax deficiency as the government may determine as due and payable from plaintiff for income tax years 1981 and 1982.
*61In compliance with this injunction, the government is further enjoined from withholding all property it had seized frpm plaintiff as aforesaid until it has complied with all the requirements of the Code pertaining to distraint and levy.10
It is so Ordered.
The Court was given the explanation that an ongoing suit by plaintiff, which related to some dispute about his 1983 income tax return, had apparently distracted attention from the proceedings involving the 1981 and 1982 returns. To compound matters, the examining agent subsequently resigned and the returns in question were further overlooked.
The High Court has exclusive and original jurisdiction with respect to American Samoa income tax proceedings. A.S.C.A. § 11.0408. The High Court sit? as a Tax Court in deficiency proceedings, and otherwise as a District Court when hearing refund cases. A.S.C.A. § 11.0401; Pato v. Westervelt, 4 A.S.R. 818 (1974).
United States Tax Court Rule 13(a).
26 U.S.C. § 6212(a).
An assessment is illegal and void if a 90-day letter has not been sent to the taxpayer. Steiner v. Nelson, 259 F.2d 853 (7th Cir. 1958); United States v. Williams, 161 F. Supp. 158 (E.D.N.Y. 1958),
This enactment requires that assessments be made within 3 years after the return was filed.
In tort, for example, an action for damages, allegedly arising from the wrongful seizure of property pursuant to a tax levy, would not lie against the government. The government’s waiver of immunity under the Government Tort Liability Aot, A.S.C.A. §§ 43.1201 et. seq., does not extend to any claims relating to the assessment or collection of any tax. See A.S.C.A. § 43.1203(b)(3).
Undoubtedly, Congress was cognizant of this possibility when it also waived sovereign immunity in the following circumstances. Generally no suit can be maintained to restrain the assessment or collection of any tax. 26 U.S.C. § 7421(a). However, 26 U.S.C. § 6213(a) provides an exception to that general prohibition by granting the taxpayer the right to sue and enjoin the government from making any levy, seizure or distraint under the authority of purported deficiency assessments where the government has failed to give the 90-day notice of deficiency. See also Laino v. United States, 633 F.2d 626 (2nd Cir. 1980).
See also United States v. Hefner, 420 F.2d 209 (4th Cir. 1969), for the proposition that where a government agency fails to scrupulously observe its rules and regulations, its actions cannot stand and the courts will strike it down.
The government’s ability tp comply with the Code’s requirements at this point ip time is not of concern to the Court. The Court here focuses on the constitutional requirement that qny seizure meet the due process standard formulated in the Code. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485835/ | Plaintiff Posini Tauiliili was severely injured after an automobile in which he yvas riejing ran off the road and crashed into some trees. The defendant Eddie Samuelu was the driver of the vehicle involved, which belonged to his employer, the American Samoa Government. Samuelu was clearly negligent' in the manner in which he operated the vehicle.
Plaintiff seeks damages from the government pn (a) the basis of the common law doctrine of respondeat superior; and (b) the theory that the Compulsory Insurance statute, A.S.C.A. §§ 22.2001 et seq., provides a remedy against the government, as self insurer, for the torts of its permittees.
Facts
Samuelu, who had long departed the territory before process was served on him, worked as a cameraman for the government television station. One particular Friday, after work hours, the station’s employees held a "Tofa" (farewell) party for a departing fellow worker. For Samuelu, the party escalated into a night out on the town, even though *63he was scheduled to work early the next morning to cover a certain sporting event. In the early hours of the morning, Samuelu decided to go to the station and pick up the station’s vehicle which he and a coworker would be using to attend the coverage of the sporting event. Samuelu was then in no condition to be operating a vehicle; however, he found a friend to drive with him to Taputimu where they encountered plaintiff and others. Plaintiff and his friends were invited to go riding to the airport and after they got into the car Samuelu drove off at such a great rate of speed that he soon lost control of the vehicle and ran it off the road.
The evidence also revealed that Samuelu took the vehicle contrary to published station policies arid duly promulgated government regulations regarding the private use of office vehicles. The station manager at the time testified that Samuelu’s actions were not authorized and he was dismissed from employment as a result.
Discussion.
A. Vicarious Liability
This Court has jurisdiction over civil actions against the government for personal injury "caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment." A.S.C.Á. § 43.1209. Subject to a number of specific exceptions, the government is liable in the same manner and to the same extent as a private individual under like circumstances. A.S.C.A. § 43.1203(a).
We find that the defendant Samuelu was not, at the time of injury, acting within the scope of his office or employment. His taking of the vehicle was unauthorized and contrary to his employer’s written directives. He was, at all relevant times, clearly on a frolic of his own. To read an employment purpose into his actions because of the fact that he was scheduled to work later that morning would be stretching the limits of credulity. We conclude against plaintiffs claim of vicarious liability.
B. Statutory Liability
Although this aspect of plaintiffs claim raises very interesting issues, those issues will have to be left for another day. Assuming that the Compulsory Insurance statute creates a new basis for liability on the *64part of a vehicle owner, that liability would be dependent on whether the driver had the owner’s "express or implied permission." See A.S.C.A. § 22.2003 (2).
There was no evidence of express permission given to Samuelu to take the vehicle after work hours. In terms of implied permissiqn, such permission is inferred from past occasions of acquiescence or absence of objection in circumstances signifying consent on the part of the vehicle owner. Sataua v. Himphill, 5 A.S.R.2d 61 (1987). The evidence here was quite contrary to a showing of acquiescence and passive consent. A written statement of policies issued by the station manager and dated January 8, 1987, contained, among other things, a directive forbidding the use of station vehicles after hours or on weekend assignments without the manager’s prior approval. Additipnally, and some three months before the collision, the Governor himself sept out a memorandum, dated May 20, 1987, to all government departments regarding the use of government vehicles. He specificalfy pointed to applicable rules and regulations set forth in the American Samoa Administrative Code pertaining to the "authorized" use of government property. The Governor’s concerns were in turn raised by the station manager at staff meetings, and copies of his memorandum were circulated to the staff. We conclude that no permission was given.
Finally, plaintiffs counsel at closing arguments also invited the Court to consider "negligent entrustment" as an alternative basis of liability. The submission made is that the government was negligent in the manner in which its vehicle was secured. Counsel for the government, on the other hand, objects to the interjection of a new thpory at the conclusion of the proceedings.
The government’s objection is well taken and sustained. A negligent entrustment theory means an allegation of negligent conduct or omission on the part of an employee other than the driver Samuelu. This is an entirely new claim. The complaint (and the administrative claim) only alerted the government to defend a claim based on the allegation that Samuelu’s conduct alone was the proximate cause of damage.
For the foregoing reasons, plaintiffs complaint against the American Samoa Government is dismissed.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485836/ | On Motions for New Trial and Modification of Judgment:
Plaintiff American Samoa Government (hereinafter "ASG") sued for the eviction of its lessee Samoa Aviation, Inc. (hereinafter "Samoa Air") from a parcel of ASG property including an aircraft hangar, alleging various flaws in the lease agreement. We denied the réquested relief. 11 A.S.R.2d 144 (1989). ASG then moved for a new trial and Samoa Air, which had prevailed on all issues except its request for attorney fees, also moved for mpdification of the judgment.
We took these motions under advisement primarily in order to re-examine our holding that, where a lease agreement fails to include ail inflation adjustment clause required by statute (A.S.C.A. § 37.2020) to be included in all such agreements, the lease should not be held invalid at the instance of the drafting party but should instead be subject to *67reformation or construction to conform to the statutory requirement. The question is one of first impression in American Samoa and yet arises from a type-situation that must recur fairly often in places having greater numbers of people, contracts, and statutes. The summary nature of this eviction proceeding having paused our original opinion to be written without prior citation of authorities by either party, we requested post-judgment memoranda, and argument on what remedy is appropriate where parties to a written contract have omitted a prqvision required by statute to be included.
On reconsideration it appears that this question is indeed one on which there has evolved a "majority rule.” The rqle, to which all or nearly all courts facing the question have adhered, is stated by Corbin:
State legislatures have sometimes enacted thqt a specified provision shall be included in every contract of a particular class thereafter made. Such a statute is one that prescribes (he legal operation of contracts, not one that affects factual interpretation. If in exact obedience to the law, the specified provision is integrated into a written contract in exact terms, the provision must be . . . given effect. . . . Exactly the same result is reached even though tjie parties knew nothing of the statute and do not include the provisiqn, and even though they know of it and expressly agree upon the exact contrary.
Corbin on Contracts § 551 at 200-.01 (1951) (footnotes omitted). In reliance on this rule, courts have consistently treated statutes drafted according to the formula of A.S.C.A. § 37.2020 not to invalidate nonconforming contracts, but to make them conform by operation of law. In effect, the courts read the words, "No contract shall omit provision X" to mean, "Every contract shall include provision X." See Green v. Lehman, 544 F. Supp. 260 (D. Md. 1982), aff’d, 744 F.2d 1049 (4th Cir. 1984);1 Board of School Commissioners v. Hahn, 22 So.2d 91 (Ala. *681945); Bakker v. Aetna Life Ins. Co., 190 N.E. 327 (N.Y, 1934);2 Sterling Engineering & Construction Co. v. Town of Burrillville Housing Authority, 2.79 A.2d 445 (R.I. 1971);3 Jones v. Preferred Accident Ins. Co., 275 N.W. 897 (Wis. 1937).4
These opinions are generally premised op the idea that "(he laws which subsist at the time and place of the making of a contract. . . enter into and form a part of it, as if they, were expressly referred to or incorporated in its terms." Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 550 (1866). As Corbin observes, this formal justification is a fiction and in most cases not even a very useful one, having little to do with why the provisions in question ought to be enforced. See Corbin § 551 at 197-98. It would seem more accurate to treat contracts falling afoul of the "No contract shall be entered into unless" formula as a special instance of the contract that is partly illegal but in some respects enforceable.
In the present case ASG seems to assume that if it can prove it violated the law by entering into its agreement with Samoa Air, it will automatically be entitled to walk away from the agreement. On the contrary, however, "it is not the case that all unlawful agreements are *69ipso facto void. If the denial of relief is disproportionately inequitable the right to recover will not be denied." Jackson Purchase Rural Electric Cooperative Assoc. v. Local Union 816, 646 F.2d 264, 267 (6th Cir. 1981); see 14 Williston on Contracts § 1630A (3d ed. 1972). Nor is judicial enforcement of such agreements generated solely by a desire to avoid harsh results. As this Court has previously observed,
Except in those rare cases where the legislature has specifically defined the consequences of a particular kind of illegal contract, courts are left to "a delicate balancing of factors for and against enforcement of the particular agreement." E. Farnsworth, Contracts § 5.1 at 328. Illegal conduct should of course be deterred and punished, and judicial process should not be available to those who seek only to consolidate or recover ill-gotten gains. But unenforceability may not always deter or punish, and may sometimes even reward the principal wrongdoer. Then, too, "caution . . . is . . . especially necessary in these times when so much of commercial life is governed by regulations of one sort or another, which may easily be broken without wicked intent." St. Johns Shipping Corp. v. Joseph Rank Ltd. [1957] Q.B. 267 (Devlin, J).
Enekosi v. Moaali'itele, 3 A.S.R.2d 81, 83 (1986), affd, 6 A.S,R,2d 49 (1987).
Confronted with an agreement whose making was prohibited by statute but which, having been made, the statute does not declare to be void, a court finds itself in a conceptual hall of mirrors in which neither statutory interpretation nor contract law seems to yield an answer without one last reference to the other. The legislature is presumed to be aware of the usual tenets of contract formation, interpretation, and enforcement; although the legislature has the power to change these rules, it is more likely to want to preserve them insofar as such preservation is not inconsistent with the precise objective of a particular enactment. Similarly, contracting parties are presumed to know the law and, except in cases where a contrary intention clearly appears, to want their contract to conform thereto. Courts have therefore attempted to enforce the rule made by the legislature while avoiding unnecessary damage to adjacent principles such as fidelity to the intentions of the parties and the avoidance of forfeitures.
*70Such damage cannot, however, be eliminated altogether; derqgating from the common law is, after all, the main thing statutes do. See Pound, Common Law and Legislation, 21 Harv. L. Rev. 383 (1908). Courts declining to invalidate contracts made in contravention of some statute or public policy have done so by reference to a wide variety of traditional doctrines and techniques, some of them wrenched from their traditional contexts.
Thus, for instance, the majority rule discussed by Corbin deals with the absence of a required clause by declaring that the clause is really present after all, having been inserted automatically "as if ... in bold print" by the very statute that might otherwise have rendered the contract illegal. Green v. Lehman, supra, 544 F.2d at 263; see generally cases cited herein at pages 67-68, supra.
Other courts have dealt with nonconforming contracts as we did in our original opinion, by extending the concept of "reformation" ->■- a term of art usually reserved for provisions specifically agreed upon by the parties but inadvertently omitted or rendered incorrectly when the agreement was reduced to writing — to cover situations in which the written contract faithfully recorded the agreement of the parties but inadvertently failed to include some provision or other formal requirement without which the law would deem the agreement unenforceable. See, e.g., Oatman v. Niemeyer, 278 P. 1043 (Cal. 1929); Gaylord v. Pelland, 47 N.E. 1019 (Mass. 1897).
Another approach is to interpret a statute as merely "directory" rather than "mandatory" where "it fails to provide a method for enforcement and does not.... declare the consequences of a failure to comply . . . .” Sullivan v. Credit River Township, 217 N.W.2d 502, 504 (Minn. 1974).5 Yet another is to hold a government entity estopped to assert its own violation of its own laws as a means of avoiding its Otherwise lawful obligations. See, e.g., United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); Board of Education of Village of Estancia *71v. Woodmen of the World, 77 F.2d 31 (3d Cir. 1935); Sullivan, supra, 217 N.W.2d at 507.
Finally, it is well settled that a court can excise the illegal portions of a contract and enforce the remainder, with or without other compensating adjustments in the contractual obligations of the parties; or may modify an illegal term to make it conform to the law. See, e.g., Alston Studios, Inc., v. Lloyd V. Gress & Associates, 492 F.2d 279 (1974) (covenant not to compete); Shantilal Brothers, Ltd., v. K.M.S.T. Wholesales, Inc., 9 A.S.R.2d 62 (1988) (usurious interest rate).
Although each of these techniques may leave something to be desired from the standpoint of pure theory, together they comprise a regime under which courts can more effectively advance the legislative purpose underlying regulatory statutes — not to mention the intentions of contracting parties and traditional notions of fair play — than would be possible under a rule of absolute unenforceability. See Enekosi v. Moaali'itele, supra, 3 A.S.R.2d at 83, quoted at page 69 supra. In practice this regime allows the enforcement, albeit in part or as modified, of many if not most contracts made in contravention of statute or public policy:
Out of the welter of common law rules regarding illegality has come the general principle that illegal contracts are unenforceable only where (1) a statute explicitly provides that contracts contravening it are void or (2) 'where "the interest in [the contract’s] enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms." Restatement (Second) of Contracts § 320(1) at 53 (Tent. Draft No. 12, March 1, 1977).
California Pacific Bank v. Small Business Administration, 557 F.2d 218, 219 (9th Cir. 1977). The factors a court should consider in determining whether the interest in enforcement is outweighed by a strong public policy include "the justified expectations of the parties; the forfeiture that would result from non-enforcement of the agreement; any special public interest in enforcement; the strength of the public policy that the agreement violates, as shown by legislation or court decision; the likelihood that refusal to enforce will further that policy; and the seriousness of the misconduct." Jackson Purchase Rural Electric Cooperative Assoc. v. Local Union 816, supra, 646 F.2d at 267.
*72In the present case almost all of these factors militate strongly against avoidance of the lease agreement. A.S.C.A. § 37.2020 prohibits the making of certain contracts but does not provide that such contracts shall be absolutely void. Even if we decline to follow the rule that the required language is deemed to be part of every contract by operation of law, we are left with a contract that complied with all applicable laws and regulations but one. The only "misconduct" in which Samoa Air may be said to have engaged was to sign an apparently lawful agreement drafted by ASG. There is no evidence that the required clause was omitted by any reason but inadvertence; Samoa Air did sign a covenant to obey all territorial laws pertaining to the premises; soon after being notified of the absence of the inflation adjustment clause, Samoa Air expressed its belief that it was in fact bound to pay the required adjustments. See .Finding of Fact 24.
As we observed in our original opinion, A.S.C.A. § 37.2020 does not appear designed to punish conduct regarded as malum in se by effecting a forfeiture; rather, it is designed to protect the government in a specific way that can be accomplished at least as. effectively by imposing on Samoa Air the obligation to pay the required adjustment as by declaring the whole agreement void.6 This is particularly true under the circumstances of the present case, in which the record rather clearly shows that the absence of an inflation adjustment clause is not a genuine point of controversy between ASG and Samoa Air. Rather, this was one of a series of technical grounds on which ASG sought to evict Samoa Air in order to accommodate another prospective tenant. See Findings of Fact 9, 16, 17, 18, 19, 21, 23, 24, 25. Nor does this preference seem to have been generated by the opportunity to negotiate a higher rent, a concern which would be arguably related to the statutory defect. On the contrary, it appears that ASG was at one point willing to surrender the hangar to the other prospective tenant for free. See Finding of Fact 25.
For these reasons it appears that our original decision on this question was correct, although in retrospect we regret the use of the word "reformation" to describe the enforcement of the lease agreement as modified by the requirement of A.S.C.A. § 37.2020. We reaffirm our judgment that ASG has the right to enforce, in accordance with *73A.S.C.A. § 37.2020, "a provision satisfactory to the lessor whereby the rentals or lease price is adjusted upward or downward at intervals to adjust for inflation"; and that the lease is otherwise enforceable as written. To eliminate uncertainty about the appropriateness of any particular provision in this and other cases, the Court urges ASG to comply with the requirement imposed by A.S.C.A. § 37.2020 that it adopt’ a rule in accordance with the Administrative Procédure Act. selecting particular "recognized indexes" of real property values for the purposes of this section."
ASG also argues that the lease was invalid because it was altered after being signed by the Governor but before being presented to Samoa Air, and also because of a purported retroactive "rejection" by the Deputy Territorial Registrar. We reject these arguments for the reasons stated in our original opinion, The lease as presepted to Samoa Air was "approved in writing by the Governor," who was free to arrange the internal affairs of his office as he saw fit. Assuming for the sake of argument that the Deputy Territorial Registrar would have had power to cancel a previously recorded lease agreement had there been something genuinely wrong with it, an aggrieved party would have the right, "at any time, [to] apply to the High Court for direction or redress." A.S.C.A. § 4.1106. Samoa Air has exercised that right in this case, and the Deputy Registrar’s action has been reversed on the ground that the substantive bases therefor were without merit.
• With regard to Samoa Air’s request for attorney fees, such .awards are generally regarded as within the Court’s discretion even where-authorized by statute. While we have held ASG’s position jn this litigation to have been incorrect, we believe there was a genuine controversy between the parties and that an award of attorney fees is not appropriate.
Accordingly, the motions are denied.
It is so ordered.
Green was a suit by a former midshipman contesting his dismissal fpm the Naval Acacjemy and transfer to active duty as an enlisted man. The Navy relied on 10 U.S.C. § 6959, providing in pertinent part that ”[e]ach midshipman . . . shall sign an agreement” to complete the course of instruction at the Academy and that ”[a] midshipman who does not fulfill his agreement” may be transferred to active duty." Although the Navy ”fail[ed], (o produce an ‘agreement’ setting forth the specific language contemplated by § 6959," 744 F.2d at 1054, the Court of Appeals affirmed the trial court’s holding that the *68provision rpqpired by § 6959 "is as much a term of the contract plaintiff had executed, as if it had appeared in bold print." 544 F.2d at 263.
This law is mandatory, and any insurance company which issues a policy without this provision violates the law. Should tjic provision he omitted, the courts will read into the policy the provision in order to give effect to this salutary regulation.
190 N.E. at 328.
While the record does not disclose the reason or reasons for the absence of the required arbitration clause in the subject agreement, the legislative mandate cannot be ignored. It is a fundamental rule that all contracts are made subject tp any law prescribing their effect or conditions to b? observed in their performance. The statute is as much a part of the contract as if the statute had been actually written into the contract. This is so even though the parties knew nothing of the statute and did not include the provision or even though they knew of the legislation and expressly agreed upon the exact contrary.
279 A.2d at 447.
"Because that provision is required by statute, it is mandatory and obligatory .... and cannot be varied or waived by the private conventions of the parties." 275 N.W. at 898. A contract omitting the provision in question was therefore held to have the same legal effects as an otherwise identical contract that did contain such a provision.
In practice the "directory/mandatory" distinction appears to be conclusory rather than analytical. The court does not generally confine its inquiry to the language of the statute, but examines all the circumstances of the case to determine whether fh® contract should be enforced and then classifies the statute as mandatory or directory. One result of this technique is that some awfully mandatory-looking statutes get classified as merely directory. See, e.g., Sargo, II, Inc., v. City of Philadelphia, 488 F. Supp. 1045 (E.D. Pa. 1980); Sullivan, supra, 217 N.W.2d at 504, and cases cited therein.
A.S.C.A. § 37.2020 was enacted in 1978 by the Fifteenth Legislature of American Samoa as Public Law 15-69. The preamble to P.L. 15-69 noted that "inflation is a persistent problem which may not abate" and that it was therefore "deemed appropriate to fix policies which will assure that real property of the Government of American Samoa will be wisely used and that the market value thereof will be realized." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485838/ | On Motion for New Trial:
We held that a warranty deed signed by plaintiff Vaimaona Foloi conveying land to defendant Fa‘amamafa Tuitasi was valid and that the land in question now belongs to the defendant. 12 A.S.R.2d 68 (1989), Plaintiffs allege fourteen grounds of error in our decision..
One of these grounds may have merit. Our finding that "on August 6, 1987, defendant Tuitasi had offered the dee4 for registration as her individually owned land," while technically an accurate statement of the record, may haye been misleading.
It appears that defendant (and/or,plaintiff Vaimaona) filed a copy of the warranty deed with the Territorial Registrar on August 6- (Sec Plaintiffs’ Exhibit 2. The record reflects that the Registrar treated this filing as a request (1) for approval of the sale by the Land Commission and (2) for registration of the land as individually-owned land of defendant Tuitasi. See id. A notice Was. posted the same day at the Court House and at two places in Lauli’i, stating that any objections could be filed with the Secretary of the Land Commission on or before September 8, 1987. No objections'were fjled, The sale was approved by the Land Commission on September 28 and by the Governor on October 2.
On October 20 the Territorial Registrar issued a "Certificate of Registration." ' It certified that "Warranty Peed, Portion of Land ‘Mulipa’ in the Village of Lauli’i" had been offered for registration by Mrs. Tuitasi "as her individually-owned land" and had been "duly registered." •
The Registrar’s certificate implies that the registration in question was both a registration of the deed as an "instrument . . , effectual to pass title" under A.S.C.A. § 37.0210 and a registration of the land described therein as the individually-owned land of defendant Tuitasi in accordance with A.S.C.A. §§ 37.0101 et seq. Although the statutes in question do not prohibit the registration "of the deed" and "of the land" from being initiated by a single application, the two processes are technically distinct.
*79Chapter 1 of Title 37 of the American Samoa Code Annotated (A.S.C.A. §§ 37.0101 et seq.) deals with "Titles to Land." This chapter provides, inter alia, that the owner of any land not previously registered may register his title with the Territorial Registrar. A.S.C.A. § 37.0101(a). The application for registration of title is done in accordance with the procedures set forth in A.S.C.A. §§ 37.0102-03, whose purpose is to give notice to anyone who might wish to file an objection to the application. Provided that no such objections are filed, the Registrar records a title which is good against the world. A.S.C.A. § 37.0103(c); see Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989). A procedurally valid registration in accordance with A.S.C.A. §§ 37.0101 et seq. precludes subsequent judicial inquiry into the validity, of the record owner’s title; the statutory scheme gives "anyone who wishes to object op any ground whatever to the registrant’s claim of ownership" a sixty-day period within which to do so, and provides that in the absence of such objection, "the land is registered in the name- of the claimant and all other claims of ownership are forever precluded." Ifopo, supra, at 26.
The immediately succeeding chapter, A.S.C.A. §§ 37.0201 et seq., deals with "Alienation of Land." It provides a number of substantive restrictions on alienation and also sets forth procedures for the lawful alienation of land. The latter, including a requirement that any proposed alienation of comriiunal land be submitted to a Land Commission and to the Governor for approval or rejection, are designed to ensure that land will not be alienated lightly even in the absence of a specific substantive restriction. The final step in the procedure for alienation of land is set forth in A.S.C.A. § 37.0210, providing that ”[n]o instrument shall be effectual to pass the title to any lapd . , . until such instrument has been duly registered with the territorial registrar." When a buyer and seller comply with the provisions of A.S.C.A. §§ 37.0201 et seq., including the recordation provision of A.S.C.A. § 37.0210, the buyer becomes the owner of whatever interest the seller had in the land.
The distinction between registration "of the land" and "of the deed" is best .characterized as a distinction between substance and procedure. The protection afforded a landowner by compliance with A.S.C.A. §§ 37.0101 et seq. is essentially a form of estoppel: having been duly notified to come forward within sixty days, rival claimants are thereafter precluded from attacking the validity of the record owner’s title. The protection afforded by compliance with A-S.C.A. §§ 37.0201 et seq. is substantive: although rival claimants remain procedurally free to object to the record owner’s title, anyone who acquires land in *80conformity with the substantive and procedural provisions of this chapter (and who acquires the land from someone who réally was the owner) thereby becomes the lawful owner of the land. Thus a party who claims to own land, even though he may not have registered the land in accordance with the procedural requirements of A.S.C.A. §§ 37.0101 et seq. and therefore cannot take advantage of the preclusive effect of that chapter, will nevertheless prevail on the merits provided that he bought the land from its lawful owner in compliance with A.S.C.A. § 37.0210 and the other statutes governing the validity of land transfers.
It would be to the advantage of a party who purchases land that has never previously been registered to apply for registration in accordance with both the "Titles" chapter and the "Alienation" chapter. The Certificate of Title issued by the Registrar suggests that defendant’s application was so construed. It does not appear from the evidence before us, however, whether the process of registration met all the statutory requisites for registration of land under A.S.C.A, §§ 37.0101 et seq. Specifically, although it does appear that a notice was ported telling interested persons that they had a right to object to the warranty deed, the last date specified for such objections.was September 8. This was twenty-eight days sooner than the end of the sixty-day period specified by A.S.C.A. § 37.0103 for objections to land registrations.
It may be that the Registrar was relying on the sixty-day notice that had been posted pursuant to Vaimaona’s offer of registration in 1978 — which, together with the subsequent warranty deed from Vaimaona to Tuitasi, would arguably bar any objections to Tuitasi’s title — or it may be thnt a separate notice was posted pursuant to A.S.C.A. § 37.0103 but not introduced into evidence in the present case. Although a number of documents pertaining to registration of the land were introduced by both parties, neither party called the Registrar to testify about whether the documents in evidence constituted his office’s entire file on the land, as is the usual practice in land registration cases. The record does reflect that the Registrar waited until October 20, which was more than sixty days after the application and posting of notices, before registering defendant’s title.
Contrary to another of plaintiffs’ assertions of error, the Registrar’s certificate of title is presumed to be valid and a party asserting its procedural irregularity has the burden of presenting "compelling proof." Ifopo v. Siatu'u, supra, at 28 (1989). "[T]hat a document should be missing from' a file in the Registrar’s Office" — much less from what may have been only the partial contents of such a *81file —- "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. ” Id. at 28. Nevertheless, if our holding that defendant Tuitasi is the owner of the land rested squarely on the preclusive effect of plaintiffs’ failure to file objections within the sixty days prescribed by A.S.C.A. §§ 37.0103, we would be inclined to grant a new tfial for the limited purpose of calling the Territorial Registrar to testify about the process by which Mrs. Tuitasi’s title was registered.
Snph an exercise would be pointless, however, for plaintiffs cannot prevail on the merits even if A.S.C.A. § 37.0103 does not preclude them from attacking defendant’s title. This is because the record clearly shows that the land was validly purchased in accordance with a}l the provisions of A.S.C.A. §§ 37.0201 pt seq. Defendant acquired the land from Vaimaona, who as sa‘o of the family was the person vested by law with power to dispose of it within the statutory restrictions and procedures for alienation of communal land.
Plaintiffs’ assertion that A.S.C.A. § 37.0204 "specifically prohibits the alienation of communal lands" is simply wrong. On the contrary, the section prohibits such alienation only "without the written approval of the Governor" and "to any person who has less than one-half native blood- ” • This section is living proof that the Fono knows how to restrict the powpr of a.sa'o when it wants to. The custom that prajor decisions should be made in consultation with the whole family (a custom unfortunately honored .perhaps as often in the breach as in the observance)-is not among those the Fono has seen fit to incorporate into the statutory restrictions on the otherwise plenary powers of a sa‘o over family lands. Vaimaona is therefore unable to avoid his contract on the ground of his own violation of this custom, and the other plaintiffs’ remedies are against Vaimaona and not the purchaser. When she "received her. deed from the grantor and registered it ... . title to the property described in her instrument passed to her and the grantor lost all of his interest therein," Moon v. Falemalama, 4 A.S.R. 836, 839 (1975).1
■ Plaintiffs’ other objections are without merit. Our finding that Vaimaona signed the deed is supported not only by the weight of the evidence but also by plaintiffs’ own judicial admission: paragraphs 5 and *826 of the complaint state that he executed the document in question but that he did not understand what it was. Plaintiff Vaimaona had every opportunity prior to trial to examine the deed for possible forgeries; he even appended it to his complaint as Exhibit A. His discovery that he did not sign the document after all seems to have been a last-minute inspiration.
Similarly, Vaimaona’s testimony that he always thought he was just giving permission to renovate a house and not conveying land was contradicted not only by the defendant but also by the two Land Commission members who testified at trial. Although their recollections differed in some respects, both members specifically recalled explaining to Vaimaona the legal effects of his proposed action.
Plaintiffs also urge for the first time that notice of the deed and/or (and registration should have been posted in Aumi, not Laulifi. Aumi is usually regarded as a subdivision of the village of LaüliM. In any case, plaintiffs did not raise this issue in their pleadings or at trial; indeed, paragraph 4 of their complaint alleges that the disputed land is located "in Aumi, Laulii, American Samoa."
Plaintiffs'further suggest that the registration was invalid because' ■ the file contains no notarised affidavit of posting. This Objection is moot insofar as our holding does not rest on the preclusive effect of A.S.C. A. § 37.0103. In any case, this section does not require that posting be evidenced by an affidavit or any other particular form of evidence;' see Ifopo, supra. (A.S.C. A. § 37.0210, the statute providing for registration of instruments as opposed to title itself, not only requires no affidavit but does not specify posting or any other particular form of notice prior to registration. In this case, however, the record shows that at least 52 days’ notice was given of the Land Commission hearing on the deed transferring title. Indeed, it is hard to see how plaintiffs can complain that they received no notice when plaintiff Vaimaona himself was there and testified.)
Finally, plaintjffs note that the certificate of posting says that notice was posted at "the Administration Building" rather than "the Court House." Again, this matters only insofar as our holding rests on the preclusive effect of A.S.C.A. § 37.0103; it has no bearing on whether defendant validly purchased the land. We take judicial notice, however, that (he language in question tracks the language qf A.S.C. A. § 37.0103 prior to its amendment in 1979, and that for some years now the Registrar has posted notices not at the Administration Building but at the. *83Court House (which is itself the former Administration Building). Although the Registrar’s office should certainly have gotten around to changing its form by npw, we decline to accept this as a basis for the invalidation of every land title registered since 1979.
Accordingly, the motions are denied.
It is so ordered.
The quoted passage cites former 27 A.S.C. § 601(a), the section providing for registration of instruments which was renumbered as A.S.C.A. § 37.0210 whep the present Code was adopted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485839/ | On Motion for Reconsideration:
This motion, filed in connection with what would otherwise be a routine request by the guardian of a minor child, for disbursement of funds held in trust for the child, raises the question whether the law of American Samoa recognizes a cause of action for "loss of filial consortium" for a parent whose child has been injured.
The child in question, Sa'ft’i Falelua, was injured in a tp°tor accident. The child had been riding in a pickup truck belonging to his father. The truck was being driven by someone else, apparently with permission of the father. The child’s mother sought appointment as guardian ad litem and then sued the driver and the owner’s (i.e., the child’s father’s) insurance company. The complaint alleged that the driver had negligently caused the minor’s injuries. Although plaintiff was identified throughout the complaint as guardian ad litem and purported fo sue oqly in such capacity, her complaint also stated {hat she had "been deprived of comfort and happiness in minor’s society and has suffered a great deal of mental pain and anguish, has b$en deprived of the services of minor as her parent, and those other pleasures and rights growing out of the parent-child relationship known as consortium."
On April 24, 1989, the parties submitted a proposed settlement and stipulated judgment for the approval of the Court. The stipulation provided in pertinent part that "[t]he Court, having previously appointed Plaintiff herein as Guardian ad Litem of the minor child ... , is *85respectfully urged to order deposit of the proceeds of this settlement in the Court Registry." The Court approved the proposed settlement and accepted the proposed deposit of funds into the registry of the Court jp trust for the child.
On June 1, 1989, the guardian submitted a "petition for release of funds." The petition stated that the American Samoa Government had determined that the child Sofa’i should be sent to Hawaii for medical care; that, in accordance with its Usual practice, the Government was to pay air fare for Sofa’i and also for the guardian herself as well as all medical costs; but that the guardian anticipated certain other travel expenses for which she requested a disbursement from the child’s trust fund. The unitemized request was for $1,500. The Court felt, that $300 was more consistent with the usual standard for supplemental travel expenses, and disbursed this amount subject to the guardian’s commitment to file an accounting upon her return from Hawaii.
On June 22 the Court received a request for a supplemental disbursement of $35Q. This request contained the foilowing assertion:
[t]he funds on deposit . . . represent the settlement of claims on behalf of the minor child, as well as the parents as outlined in Count II of the original complaint. The actual amounts due the minor [and] the parents . . . has yet to be judicially determined.
This was news to the Court, which had already established a trust account for the minor child and approved a disbursement from [his account. The Court did approve the requested supplemeptal disbursement of $350, subject to the requirement of a subsequent accounting, but "observed that "the money belongs to the child."
The Guardian- subsequently moved for reconsideration of that part of the Court’s order decreeing that the entire sum held in the registry of the Court belongs to the child. Counsel has submitted authorities for tbe proposition that parents have a right to recover for loss of "filial consortium" in connection with injuries to a child, and argues that the Court should allocate part of the settlement to the mother/guardian as compensation for such loss.
"Loss of filial consortium" is a. new idea in American Samoa ar¡d a relatively new one elsewhere. No such cause of action was recognized at common law, although parents could recover damages for *86tangible losses such as a child’s lost wages and medical expenses. Prosser & Kpeton on Torts § 125 at 934 (5th ed. 1982). Despite the traditional association pf the term "consortium" with discontinued sexual relations between an injured person and his spouse, at least one court has used this term in connection with damages arising from the loss of fiiial companionship, society, and comfort. See Reben v. Ely, 705 P.2d 1360 (Ariz. App. 1985). Other courts have awarded such damages while avoiding the term "consortium." Shockley v. Prier, 225 N.W.2d 495, 499 (Wis. 1975); Bullard v. Barnes, 468 N.E.2d 1228, 1233 (Ill. 1984).
■ It may be true, as cases such as Shockley and Bullard suggest, that the traditional limitation of damages for the injury of one’s child to palpable economic losses reflects an outmoded view of children as mere economic assets. In American Samoa, however, where the typical ■ tortfeasor has few traceable assets and is insured for $10,000 if he is insured at all, the recognition of a cause of action for collateral hum) to a parent as a result of his child’s injuries would almost certainly have the principal effect of reducing the sum otherwise available to compensate the child for injuries that are by definition far more palpable, direct, and severe. This, in turn, would practically guarantee a substantial conflict of interest in every settlement negotiation arising out of personal injuries to a minor child; unless the direct injury to the child is unusually slight or the fund available for settlement unusually large, zealous representation pf the child’s claims will have the effect of depleting the fund available to compensate the fiduciary, Cf. Galo v. American Samoa Government, 10 A.S.R.2d 94 (1989); Logoa'i v. South Pacific Island Airways, Inc., 6 A.S.R.2d 28 (1987).
The facts of the present case, moreover, render it a singularly inappropriate vehicle for the recognition of a new cause of action for loss of filial companionship. On the face of the complaint it appears most unlikely that the injuries suffered by Sofa‘i will have the sort of "shattering effect" on the parent-child relationship that has been founc} to justify such a cause of action. Shockley, supra, 225 N.W.2d at 499.' It was also asserted in defendants’ answer that the guardian herself had contributed to the accident by permitting her child to ride in the back of a pickup truck. If proven at trial, this might have severely limited the guardian’s recovery.
If the guardian ever had a claim in her personal capacity, she waived itwhen she submitted a stipulated judgment which requested that the entire settlement be deposited in the Registry of the Court. In the context of High Court practice, such a request in connection with a *87settlement involving a minor (and in a stipulation referring to the child’s mother as Guardian ad Litem and in no other capacity) can only bq reasonably construed as a request for the establishment of a trust account. See Judicial Memorandum No. 1-88, 1 A.S.R.2d ,146 (1988). Finally, a proposed order submitted by the guardian during the pendency of the present motion for reconsideration, formally requesting the establishment of a trust account and approval of the submitted expenses submitted by the guardian, appears even more clearly to waive any personal claim of the guardian to the funds in the trust account.
Accordingly, insofar as it requests a reconsideration of opr decision that the entire settlement amount belongs to Sofa’i Falelua, the motion is denied.
Taking the motion as one fpr the approval of the. submitted expenses, we find the following items to be related closely enough to the child’s medical condition to justify their satisfaction from the trust fund: $ 79,04 for prescription sunglasses; $ 8.78 for eye patches; $ 5.00 for medicine; and $45.00 for transportation to medical appointments-while in' Hawaii. The request for $131.20 for telephone calls from Samoa to Hawaii is granted on the guardian’s representation that the calls concerned the child’s medical treatment.
The guardian has also submitted a claim for $565.00 for food, representing payments the guardian says she made to the relatives with whom she was staying. Only those food costs- in excess of what would have been expended in Samoa for food may be recovered. -Despite the lack of any evidence on this, but in recognition of the fact' that prices ip Hawaii may be somewhat higher, $150.00 is granted for food costs.
The guardian has also submitted a bill for $168.34 for medical bills she herself incurred while in Hawaii. Because she was in’Hawaii to care for Sofa’i during his medical appointments, and because she would have had access to free medical care had she remained in Samoa, these expenses may be recoverable provided that they were truly necessary. The guardian has submitted no evidence to establish the necessity of these expenses.
We therefore approve expenditures from the trust fund in the amount of $419.02, out of the total amount of $650 that was advanced to the guardian. The guardian should submit evidence to document the necessity of the $168.34 requested for her own medical expenses, and should return $62.64 to the trust fund.
*88It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485840/ | This is a boundary dispute between two parties who purchased adjoining lots in the same subdivision.
Most of the facts are undisputed. Plaintiff and defendants each purchased a portion of a tract of land in Ili‘ili called Leuluasi. This *89tract, said to contain about 18 acres, had been registered and subdivided in 1974 by one Logotala Noa.
In 1975 Noa sold a lot ip the northwest comer of the subdivision, described by reference to certain metes, bounds, and iron pins and further described as containing 1,027 acres more or less, to Vincent Ah San. In 1984 Ah San executed a contract of sale to the defendants, which was recorded in the office of the Territorial Registrar. Ah San .also signed a deed conveying the land to the defendants but die} not appear before the Territorial Registrar to attest to his signature, apparently because the Semeatus had not yet paid the purchase price. The Registrar has therefore not recorded the deed. Defendant Muamua Semeatu testified that he has paid Ah San about $10,000 pf the $15,000 purchase price.
In the meantime, plaintiff had purchased her lot from Noa and recorded the deed in 1981, This lot, like that of defendants, is defined by reference to metes and hounds and iron pins; it is further described as containing .998 acres mpre or less. It is clear from the maps accompanying the 1975 deed to Ah San and the 1981 deed to plaintiff that the two lots were meant to share a 208-foot border, Plaintiffs property is along the western edge of the subdivision just to tfie southeast of defendants.
After purchasing their land in 1981 plaintiff and her husbapd did not immediately build on it. In 1986 plaintiff went tp clear what she thought was her land and found much of it occupied by defendants. This lawsuit followed.
Each party hired a surveyor to retrace his or hpr boundaries. Each surveyor testified that he had found a few old pins and other landmarks, although not many, suggesting that the boundary was where his client said it was. On balance this evidence was not particularly helpful to either party.
Each party also offered evidence offered that his or her boundaries were accepted as such by other neighbors. Unfortunately, this evidence also pointed both ways.
It appears that the line used by defendants to calculate their western boundary (i.e., the western boundary of the whole Leuluasi subdivision) roughly corresponds to the boundary observed by the occupants of a tract to the west. This tract, called Lauofe, was *90registered in 1981 as the property of Lupelele Letuligasenoa, and its occupants are there by permission either of Lupelele of the late Ti‘a Misilagi. (Lupelele and Ti‘a are prominent land claimants in apd around Ili'ili.) The boundary observed by plaintiff, on the other hand, corresponds to the boundaries observed by most if not all of the other residents of the Logotala Noa subdivision.
Whether or not acceptance of certain boundaries by neighbors is part of the solution to this case, it definitely is part of the problem. If plaintiff, is right about her boundary with defendants, then the tract purchased by defendants is further to the west than defendants claim it to be, and therefore includes an area currently occupied by the Lupelele or Ti‘a' people. If defendants are right, then not only plaintiff but everyone else in the subdivision is mistaken: plaintiffs eastern and southern neighbors are encroaching on her land, and those neighbor’s own eastern and southern neighbors are committing a similar encroachment, and so forth.
At the conclusion of the trial the Court observed that neither side had presented what appeared to be a crucial piece of evidence: expert testimony with respect to the actual physical location of the two coordinates (X = 239,818.75’, Y = 283,953.05’) defining the starting point of the subdivision. The legal descriptions of both plaintiffs and defendants’ land consisted of metes and bounds defined by reference to this point. The point, in turn, is defined as being a relatively short distance (1328 feet) in a specified direction from a point (the Agogo Triangulation Station) whose location is undisputed. If this point could be relocated on the ground, and if it was correctly located when .Npa did his survey in 1974, the Court would be.able to identify with certainty the true boundary between plaintiffs land and that of defendants.
Plaintiffs surveyor apparently did not attempt to relocate the original starting point on the ground by reference to the Triangulation Station because he accepted the accuracy of a point identified by Tito Malae, an occupant of the subdivision who had purchased his lot from Noa in 1983. The Court asked defendants’ surveyor why he had not located this point on the ground; he said that he considered this exercise too time-consuming and that the evidence he had already presented was more probative than the physical location of the point in question. The Court respectfully disagreed and ordered the parties to present evidence by August 31, 1989, of the physical location of the starting point defined in the 1974 survey. The Court ordered that the parties agree on a single *91. surveyor to do the necessary work, or in the event such agreement should prove impossible that each party choose a surveyor and the two surveyors choose a third surveyor to locate the point of beginning.
August 31 came and went with no submission of evidence by the parties or either of them and no request for an extension. The High Court of American Samoa being an extraordinarily easygoing tribunal with respect to its treatment of those who inadvertently disobey its orders, the Court waited until mid-October and then asked the Clerk to inquire after the missing evidence.
Counsel for defendants responded with a memorandum reiterating his position that the evidence requested by the Court was unimportant compared to the evidence already submitted by defendants, and concluding with the observation that "defendants’ surveyor does not have sufficient information to either retrace the original surveyor’s control in the field or to calculate the accuracy of the mathematics used to establish the co-ordiqafes given." Although couched'in language suggesting the impossibility of compliance with the Court’s order, on closer inspection this statement amounts to yet another reiterátian of defendants’ original position that the evidence sought by the Court was not important because the original surveyor might have been mistaken about the coordinates.
While it is impossible for a Court to evaluate evidence it has not yet seen, we have as yet no reason to believe that the coordinates depicted in the 1974 survey map — the key link in each party’s chain of title — were anything but an accurate representation of the point from which Logotala made his original survey on the ground. Counsel for defendants advances no particular reason to believe any such error occurred, but seems to say that if the point depicted by the coordinates should turn out to be anywhere but where his surveyor says it ought to be, then the coordinates would necessarily be wrong. For reasons we shall discuss, this contention rests on a vastly inflated estimate of the strength of the evidence presented by defendants. If, however, counsel for defendants had wished to readvanoe this argument in an effort to persuade the Court to reconsider its order, he should have filed a motion for reconsideration within ten days after the order was made. Instead he apparently chose simply to ignore the order.
Courts usually deal with a party’s refusal to produce evidence by presuming conclusively that the evidence would be unfavorable to the *92party. In this case, however, the defendants were not alone in ignoring ' the order. When the Clerk contacted counsel fpr plaintiff to inquire about the supplemental evidence, counsel responded that he had been very busy and had, not been able to get to it. Like counsel for defendants, he expressed the opinion that the evidence already presented clearly, preponderated in favor of his own client and obviated the need for further evidence.
The Court has given serious consideration to imposing sanctions on both counsel. Our decision not to do so should not be regarded as a precedent likely to be followed in future cases.
We are left to decide the case on the preponderance of the evidence before us. This evidence, although hardly clear and convincing, favors the plaintiff.
Both parties agreed that many if not all of the original 1974 pins and monuments can no longer be located and have probably been removed, and that many new monuments have been placed by various persons since 1974. Defendant Muaipua Semeatu himself admits to having removed survey pins, although he insists that he has removed only new, illegitimate pins and not old legitimate ones. All of the pins and' other man-made monuments (fences, hedges, etc.) "found" by defendants’ surveyor could easily have been placed there some ye^rs after 1974 by persons — most notably defendants themselves, their grantor Ah $an,. apd the Lupelele or Ti‘a people to the west — whose interests may have consisted not in perpetuating the 1974 boundary but in relocating it. Indeed,, one of the surveyors who. surveyed the tract sold to Ah San by Noa in 1974 testified that he revisited the land in or around 1985 and that Ah San’s tract (which Ah San had contracted to sell to defendants).was by then located in a different place.
It further appears that the 1981 survey of Lauofe registered by Lupelele substantially encroaches on the northwestern comer, of the 1974 Leuluasi survey registered by Logotala. According to the survey maps, any attempt by the residents of Lauofe to occupy the entire extent of the area claimed by Lupelele would consume all the land purchased by the defendants and much of that purchased by the plaintiff.
This evidence, together with the Court’s impression of the witness Ah San as a man with a healthy regard for his own interests but no taste for outright disagreement with anyone, supports plaintiffs contention that Ah San — or possibly defendants themselves — moved *93to the south and east of the tract Ah San had purchased from Noa in order to avoid a boundary dispute with his western neighbors, or perhaps as the result of such a dispute. .This put him in occupation of a substantial portion of the tract sold to plaintiff Lutu but not yet occupied by her. Although the evidence for this contention is circumstantial rather than direct, it is Jess speculative and more consistent with the record than defendants’ contention that the various other buyers in the Leuluasi subdivision — including the Nomuras, who purchased their tract in 1975, before the Ah San purchase and only a year after the original survey by Noa — all made an identical mistake about the location of the boundaries of this survey.
Nor does the evidence support defendants’ contention that any conflict must be resolved in their favor because their .grantor,. Ah San, purchased his. tract before plaintiff purchased hers. This does not appear to be a case in which a common grantor sold two parties the same land; on the contrary, the deeds to Ah San and the plaintiff clearly describe two different parcels which adjoin but do not overlap. If the tract sold to Ah San really belonged to Lupelele, there was no reason to take it out on Mrs. Lutu. If (as seems more likely in light of the undisputed facts that Lupelele’s survey was not registered until seven years after Noa’s and that the area now in dispute was jungle ip 1974) the Lupelele people began encroaching op Ah San’s land at some time after he'bought it, then his remedy was against them and not plaintiff Lutu.
Defendants could purchase from Ah San only what he pwned. This'appears tp be á tract whose boundary with defendant is about 84 feet to the north and west'of the boundary they claim, to the northwest of the land designated "disputed area" in Plaintiffs’ Exhibit 4.
Although it would appear from the evidence that defendants may have a claim against Ah San and/or their neighbors to the west, no such claims can be adjudicated in this action.
For the reasons stated, judgment will be entered for the plaintiff permanently enjoining the defendants from going on the tract belonging to plaintiff, including the land designated "disputed area" in Exhibit 4. Execution of this judgment will b'p stayed for sixty days to allow defendants time in which to harvest crops and remove any other property they may have in the disputed area.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485841/ | These two cases involve the requested termination of parental rights in order to facilitate adoptions by much older sets of prospective adopting parents.
The prospective adopting father in JUV No. 43-89 will be 82 when the child reaches the age of majority. The prospective adopting father in JUV No. 9-89 will be 91 when the child reaches the age of majority.
In each case the prospective adopting parents are prominent citizens and fine people who wish to provide a good future for the child. Also, however, in each case the natural parents are much younger, have the potential to be good providers, and appear to have strong bonds to tfye child.
In each case the parties are free to adopt the child fa‘a Samoa and to have the child live with them as long as this is the wish of the cfyild and the natural parents. But in neither case can we certify that *95termination of the legal rights and duties of the natural parents would be in the best interest of the child.
Accordingly, the petitions are denied.
It is so ordered, | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485842/ | In January 1981, Alaimalo Pepine Henry Porter surveyed a certain area of land which he then offered for registration as the individually owned land of "Alaimalo Pepine Henry Porter and his heirs." This offer prompted a number of objections.from members of both the Utu family and the Paolo family of Amouli village in the County of Saole, Eastern District. The land, which the parties refer to as "Oloie," is located in Auasi towards the eastern outskirts of Amouli village. The objectors complain that Porter is attempting to claim their respective communal family land. They point to an earliér title dispute which the Court resolved in favor of the Utu and Paolo families against certain people from Aunu‘u who Jaid^claipi to a part of Olóie. Utu and Paolo v. Fonoti, 1 A.S.R. 208 (1907).
At the time of trial, claimant Porter aborted his claim of individual ownership. In lieu thereof, he sought to establish his family’s . stake as being one in communal ownership pertaining to the title "Alaimalo." Mr. Porter has, since the commencement of this action, resigned from the title "Alaimalo" in favor of his daughter, Jane, who has joined in these proceedings as the Alaimalo title holder. The Porters are also members of the Utu family; however, they ground their claim to' "Oloie" on the basis of an "assignment" of the land made by a former Utu to one Faimafili. They contend that this assignment was in fact an outright transfer of ownership to Faimafili, a taule‘ale‘a (non-matai) who was at the time rewarded for tautua (traditional services) rendered to Utu. Faimafili is also the father of claimant Alaimalo Pepine Henry Porter.
The Porters further claim that the said Faimafili "created" for himself the matai title "Alaimalo" in 1947 with the blessings of the Ufm The conclusion one is invited to draw from the above is that- Faimafili’s new found matai status then somehow merged with his estate in the land "Oloie," giving the said land communal status appurtenant to his Alaimalo title, and, therefore, belonging to the Alaimalo family.1 .
*97- Counsel for the Paolo family objected strongly against permitting the claimant to suddenly change story in ■midstream- His clients were pot. alerted, to contest a communal ownership claim. - Alternatively, counsel pointed out that the new allegations by the claimant, regarding an assignment by a former Utu, did not take anything away from the Paolo family’s entitlement to "Oloie" as established in Utu and Paolo v. Fonoti, supra. Utu may not give away what is Paolo’s.2
For the Utu family, the incumbent senior matai, Utu Sinagege R. Morris, who himself resides on "Oloie," also rejected the Porter’s ownership claim and vigorously denied the asserted conveyance. He explained their presence on "Oloie” as stemming from the fact that they are members, of-the Utu family occupying. Utu family property in accordance with custom. Utu further claims that Alaimalo is a lesser matai of the Utu family.
Discussion ■
The claim to ownership asserted by the Porters sadly lacked coherence and hence the rather uncertain manner ip which, their claim evolved in the course of these proceedings. Credibility was immediately at issue with claimant’s change of theory. Among .other things,- a claim to "individual" ownership is a claim to initial clearing of bushland as well as sustained use and occupation of the land thereafter. . See, e.g., Lealaimatafao v. Noa, 9 A.S.R.2d 39 (1988). The initial clearing of bushland by claimant would, therefore, have been a necessary offer of proof for a plaim in individual ownership. Such an offer of proof, however, would be a contradiction of Utu and Paolo v. Fonoti, supra. In these pircumstapces, it is difficult to resist the conclusion that claimant’s change in theory was necessitated by the peed to be consistent with the holding in Utu and Paolo v. Fonoti.
*98The ■; amended • claim to '.communal ' ownership is, however, without foundation. ■ The claim to an outright assignment, or surrender by Utu of his family’s title to "Oloie," in return for services rendered, is not only inconsistent with law but also with custom. Firstly, a.matai assignment or designation of family land for the use of a particular-family member does not divest the matai of his authority or "pule" over the land-. Toleafoa v. Tiapula, 7 A.S.R.2d 117 (1988), aff’d 12 A.S.R.2d 56 (1989); Leapaga v. Masalosalo, 4 A.S.R. 868 (1962); Pisa v. Solaita, 1 A.S.R. 520 (1935); Levu v. Maluia, 1 A.S.R. 197 (1908). If it were-otherwise,’ there would be very little communal land left/if any, in the territory.
Moreover, a family member’s continued right to use and occupy communal land holdings is conditional upon his providing tautua to the matai. Toeleafoa v. Tiapula, supra. If, as suggested by cl’aiinánt, assignments could be construed as out and out grants, then there would be no further need for tautua, for matai, or indeed for a communaj way of Jiving and fa‘a Samoa.
Finally, claimant’s theory of assignment (of communal land) cannot be reconciled with the legislative prohibition against-' matai alienation of land without compliance with certain statutory procedures, .including the approval of the Governor of American Samoa. A.S.C.A. §§ 37.0201 et seq. See also Teo v. Totoa, 2 A.S.R. 243 (1947); Tuafili v. Taape, 2 A.S.R. 155 (1944).
We sustain the objections and accordingly deny the application by-Alaimalo.Pepine Henry Porter and his heirs to register title to the land "Oloie." • •
On the other hand, neither of the objecting families provided a survey delineating the exact extent of their respective claim for the Court’s consideration. At the same time the objectors both agree and submit that "Oloie" is a much larger area of land than that considered in Utu and Paolo v. Fonoti, supra, and that surveyed by the Porter family. They also both lay claims to greater Qloie, whatever that might be. With regard, therefore, to the respective claims of (The Utu and Paolo families, we intimate no opinion beyond this Court’s holding in Utu and Paolo v. Fonofi.
Judgment accordingly. It is so Ordered.
The offer to pursue his elaim as one in "communal" ownership as opposed to *97’’individual'’ ownership is in essence the same attempt to register the land In favqr pf the Porter family to the exclusion of the extended Utu family. Registration of title to the land "Oloie" is sought in the name of the "Alaimalp" family. The "Alaimalo” family is none other than the Porter family as the title “Alaimalo” is claimed by the Porters as a creation of thejr grandfather, Faimafili, and, therefore, as the exclusive reserve of Faimji fill's immediate descendants.
Notwithstanding the reasoned submission by counsel,-curiosity nonetheless remains aroused with Paolo’s admission that none of his family members had, withiq his time, occupied or maintained crops in the vicinity of Oloie. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485845/ | Plaintiff (hereinafter sometimes referred to as "Hardy") built an extension or addition to a home belonging to defendants A.P. and Susana Lutali. The Lutalis made payments in a total amount of $82,458 but declined to pay several subsequent invoices sent by plaintiff in a total amount of $47,986. Hardy brought this action to recover the unpaid balance.
The Lutalis contend that Hardy agreed to do the entire job for $65,000; that the work was substandard in various ways; and that Hardy fraudulently billed them for labor and materials not actually employed in the building of the addition. By way of counterclaim they demand $97,000 in compensation for the damage they claim to have suffered on account of these alleged breaches of the contract, as well as for punitive damages and attorney fees.
I. Facts
We find the facts to be as follows:
1) In late 1985 or early 1986, Mr. and Mrs. Lutali met with Don Hardy, the managing officer and co-owner of the plaintiff coiporation, to discuss the possibility of his building an extension to their home in Ili‘ili. A.P. Lutali and Don Hardy had been friends for several years.
2) The Lutalis initially wished only to extend by a few feet the length of the existing bedrooms on their one-story house. At the meeting with Mr. Hardy, however, the discussion eventually focussed on the possibility of a discrete two-story addition containing several new rooms.
*33) At this meeting or shortly thereafter, Mr. Hardy may have given a verbal estimate of $65,000 for the two-story addition.
4) On May 27, 1986, Mr. Hardy delivered to Lutali’s office a letter estimating that the addition would "take three months to complete and would cost approximately $75,000." The letter also stated that the addition "would be constructed on the same design as the present house" and that "[a]s all materials would be ordered from the U.S.A., the quality would be of the highest."
5) In June or July of 1986, Mr. Hardy arranged for plans to be drawn up depicting the proposed addition. Although it is not clear whether the Lutalis actually reviewed these plans, the preponderance of the evidence is to the effect that they at least had the opportunity to do so.
6) Don Hardy testified that the initial plan for the addition (on which he says his $75,000 estimate was based) called for a structure 48 feet long, and that at some point the Lutalis ordered the length extended to 53 feet so that it would be the same as the length of their existing house. While a 48 foot extension may have been discussed at some early stage of the negotiations, the evidence does not support a finding that a change in the size of the proposed structure was made between May 27 when Mr. Hardy gave the $75,000 estimate and July when the plans were drawn up. The voluminous documentary evidence with which we have been presented includes no plans for a 48-foot structure and no other documentary evidence reflecting a change in the parties’ understanding. Neither defendant A.P. Lutali nor witness Epenefa Te‘o, the person retained by Hardy to draw the plans, recalls a revision during this period. We therefore find that the structure for which Mr. Hardy ordered plans to be drawn in June or July of 1986 was the same structure he had offered on May 27 to build for approximately $75,000.
7) In July or early August Mr. and Mrs. Lutali met with Don Hardy and his wife, the other co-owner of the plaintiff corporation, to discuss flooring materials, bathroom fixtures, and so forth. The Lutalis selected materials of relatively high quality, such as parquet hardwood floors and ceramic tiles. Neither A.P. Lutali nor Don Hardy recalls any discussion of the price of these materials. Hardy testified that he assumed the Lutalis understood that their selection of such materials would increase the price of the structure; Lutali testified that he believed he was entitled to high quality materials for the price that had already been agreed upon.
*48) During this period the parties discussed having Hardy renovate the existing portion of the Lutali home. The proposed renovations included a master bathroom, a "ladies’ lounge," and improvements to the kitchen.
9) On August 7, 1986, Don Hardy wrote a letter to Susana Lutali enclosing a list of the materials he had ordered for the addition. The total cost to the Lutalis was to be $50,905.17. Hardy noted that it was "very possible" that some material might be "leftover" and therefore available for use on the renovations to the existing structure, and also that he "might have missed something which we can get on the next shipment when we order for your master bath, Ladies lounge, and the kitchen."
10) At some time between August 7 and October 7, the Lutalis paid the $50,905 invoice for materials and an additional $9,000 for freight.
11) Construction on the addition began in late August or early September.
12) On September 15 Hardy sent the Lutalis an additional invoice in the amount of $13,276 ($6,516 for additional materials and $6,760 for labor).
13) On October 4 Hardy sent yet another invoice for $9,277 ($677 for materials and $8,600 for labor).
14) On October 7 Hardy furnished the Lutalis with a written estimate of the entire amount that would be necessary to finish both the two-stpry addition and the renovations to the existing structure. This estimate was for $148,825, not including the $59,905 the Lutalis had already paid. It breaks down as follows:
Material, Labor, and Freight already billed for the addition (including the $59,905 already paid): $82,458
Material and freight for remodeling the existing structure (apparently for materials already ordered or about to be ordered by Hardy from his supplier in the United States): 81,272
"Estimated Material & Labor to complete job": 45.000
*5Total: $208,730
Minus amount already paid: - 59.905
Total cost to complete both projects: $148,825
15) It was not made clear on this invoice how much of the $45,000 "to complete job" was for completing the two-story addition and how much was for the proposed renovations to the older part of the house. Taking account of the evidence that some progress had been made on the addition whereas the renovations were barely begun, we estimate that no less than $10,000 and no more than $20,000 of the remaining $45,000 was to complete the addition. Thus Hardy’s revised estimate of the total cost of the addition, as of October 7, was between $92,458 and $102,458.
16) Shortly after receipt of the October 7 estimate, the Lutalis told Hardy they could not afford the proposed renovations to the preexisting structure. They directed him to proceed with the addition but not with the renovations. (We have insufficient evidence to determine whether the parties ever had a contract with regard to the proposed renovations to the pre-existing structure. It appears that Hardy had begun work on them prior to October 7, yet it also appears that the Lutalis made it clear they did not want the renovations as soon as they were given a firm estimate of the cost. Since neither party seeks relief for the breach of any agreement involving renovations to the pre-existing structure, we need not conclude whether there was such an agreement.)
17) During October the Hardys paid the September 15 and October 4 invoices described in paragraphs 12 and 13 above. This brought the total amount they had paid to $82,458.
18) Also in or around October, the Lutalis inspected the addition and decided that the bedrooms in it were too small. They therefore ordered Hardy to extend the width of the addition by four feet. (The new dimensions were to be 30’ x 53’ rather than 26’ x 53’.) Hardy testified that this change increased the total cost of the project by a large (although unspecified) amount, since the structure was already substantially built; it was necessary not only to knock out walls and build new ones, but also to move the pillars that supported the second floor. Hardy also testified, however, that he did not discuss the additional cost with the Lutalis but simply assumed they would pay whatever the cost turned out to be. Lutali, on the other hand, testified that he assumed the *6changes would be included in the original price since they were necessary to make the addition conform to its original purpose, which was to have larger bedrooms.
19)Hardy continued working on the addition until February of 1987.
20) Hardy submitted additional invoices on October 31, 1986; December 2, 1986; January 6, 1987; January 19, 1987; February 1, 1987; and February 28, 1987. The total amount of these invoices was $47,986. Of this amount $14,266 was for material (including freight) and $33,720 was for labor. None of these additional invoices were paid by the Lutalis.
21) Further communication between the parties consisted of several inquiries by Don Hardy about the unpaid invoices and at least three letters from Lutali (May 11, June 18, and August 10, 1987) about defects in the construction. On one occasion, according to Hardy, he attempted to visit Lutali at his office and was shown the door. This lawsuit followed.
22) The Lutalis contend that Hardy billed them for materials which he used on other projects. Aside from one instance in which Hardy concedes having billed the Lutalis for $200 to $300 in freight charges that should have been billed to another customer, the evidence does not support this contention. The charge appears to have been inspired by this Court’s opinion in Hardy v. Anderson, 9 A.S.R.2d 79 (1988), in which we found that Mr. or Mrs. Hardy had altered an invoice in order to make it appear that certain lumber had been used on one project rather than another. As it happens, the evidence in the present case reveals that the phantom lumber in Hardy v. Anderson was the very lumber that had already been billed to the Lutalis. While it is always gratifying to be treated to a surprise visit to old stomping grounds — and doubly gratifying to be presented with new evidence to support old conclusions — the Court is unable to find this evidence particularly helpful to the present defendants. Rather, it supports Hardy’s present position that the lumber billed to the Lutalis, or at least the great majority of it, was the same lumber actually used on the addition to their house.
23) Specifically, Hardy submitted invoices to the Lutalis for materials and freight in the total amount of $81,364. Hardy testified that he charges his customers a "retail" figure equal to about 133% of the cost of materials to him. The invoices to and from Hardy reveal that he *7charged the Lutalis amounts varying from 116% to 192% of the cost of particular items to him. Assuming that all the items billed to the Lutalis were actually used on the project, it would appear that the materials for the addition cost Hardy between $50,000 and $60,000 including freight charges. With regard to fixtures and other items that are particular and identifiable, our examination of the invoices reveals that these items do correspond to the number apparently used in the addition.
24) The evidence does, however, support the Lutalis’ contention that at various times during the course of the project Mr. Hardy and his employees carried off quantities of lumber and other building materials from the job site. Mr. Hardy himself testified that he took only about one truckload of lumber and that this was old lumber tom from the Lutalis’ house in order to make doorways to the extension. The testimony of witness Mausa, the Lutalis’ housekeeper who appeared to be an honest and relatively disinterested witness, was that the quantity was greater and included other materials. The preponderance of the evidence is to the effect that there were, as Mr. Hardy had originally estimated there might be, some lumber and other materials left over from the original shipment.
25) The evidence also supports the Lutalis’ contention that Hardy billed substantially more for labor costs than the amount actually incurred. Company records show that the total amount paid to construction workers on the project was $11,194.05. The addition of a 12% surcharge (the figure Hardy used to estimate employer Social Security payments and other costs associated with the employment of these workers) brings the total labor cost to $12,537.34. In contrast, the amount billed to the Lutalis was $49,080. The $37,000 difference appears to have been allocated to payment of Mr. and Mrs. Hardy and members of their immediate family for supervisory and administrative services. (Mr. Hardy did supervise the project, although the best evidence is that he visited the site for only an hour or two each working day; the evidence of services performed by Mrs. Hardy in connection with the project are that she participated in one meeting with the Lutalis and performed general bookkeeping services for the company.)
26) The Lutalis’ contention that the work was defective is supported by the evidence to the following extent:
a) Electrical problems that cost about $200 to repair.
b) Plumbing problems that cost $262 to repair.
c) A leaking septic tank. The repair bills for this item were commingled with bills for other projects, including the renovations to the *8pre-existing portion of the house and the construction of a master bathroom adjacent to the addition, which the Lutalis apparently decided to have done by contractors other than Hardy. From the evidence before us we can conclude only that the septic tank probably cost between $300 and $1,000 to repair.
d) Persistent leakage through the first-floor ceiling, caused by settlement of water on a deck adjacent to the second floor. The evidence is that this problem was caused by Hardy’s failure to build thé roof so as to overhang the deck, as provided by the plans for the project; by Hardy’s failure to build the deck so as to slope slightly away from the adjoining wall; by Hardy’s failure to provide protective "flashing" at the intersection of the deck and the exterior wall; and perhaps also by the addition of an extra layer of boards under the deck. (This last feature was requested by the Lutalis for cosmetic reasons; Hardy incorporated it without warning the Lutalis of any problems that might result.) This problem has resulted in water damage, principally to the acoustical tiles on the first-floor ceiling. Replacing the damaged tiles has cost the. Lutalis about $196 for materials and several hundred dollars for labor. From the evidence of other construction costs submitted by both parties, we estimate that building a four-foot overhang along the 53-foot length of the roof and installing the flashing will almost certainly cost over two thousand dollars and almost as certainly less than five thousand; this range of figures is unfortunately the most precise estimate we can make on the present record.
e) A large crevice in the floor caused by the uneven laying of the foundation. Again, the evidence does not support a precise estimate of the cost to repair this problem. The lowest possible estimate — based on what appeared to be the wildly optimistic testimony of an expert witness for Hardy to the effect that a plastic solution could be poured over the foundation so as to level it — would probably run into thousands of dollars, taking into account not only the acquisition and pouring of such material but also the removal and replacement of 1,000 square feet of parquet tiles. This technique was unknown, however, to the Lutalis’ expert witness; if it should prove impossible to repair the foundation without tearing it up and starting over, the cost could amount to many thousands of dollars.
27) Another problem, having to do with water welling up from under the foundation, has not been shown to have been caused by any defect in Hardy’s design or workmanship. The problem did not appear until about two years after construction was completed, and the Lutalis’ own expert witness conceded that it might be the result of causes unrelated to Hardy’s work.
*9From this evidence we conclude that Hardy originally contracted to build the Lutalis a 53’ x 26’ structure composed of the "highest quality materials" for "approximately $75,000," and should be held to this contract; that Hardy is nevertheless entitled to some , compensation in addition to the contract price for the extra four feet of width added to the structure at the insistence of the Lutalis; and that the Lutalis are entitled to a reduction corresponding to the diminution in the value of the structure attributable to its several defects.
II. The Contract
The contract between the parties came into being when the Lutalis, having received Hardy’s $75,000 written estimate, told Hardy to begin construction. This event occurred at the very latest in July or early August when the Lutalis and the Hardys met for the puipose of choosing the specific materials that would be used in the house.
Contrary to Hardy’s contention that the Lutalis’ choice of materials amounted to an implicit agreement to pay more than the contract price, it was perfectly consistent with the term of Hardy’s offer providing that all materials would be "of the highest quality." Hardy testified that his $75,000 estimate was based on far less expensive materials, such as vinyl tile rather than wooden floors in the living areas. A reasonable consumer, however, can hardly be assumed to understand the term "highest quality materials" as including vinyl tile but not wood. In the Court’s experience Mr. Hardy is the very first person who has ever suggested that a "highest quality" bedroom or living room floor might be made of vinyl; indeed, although there may be some flooring material that is generally regarded as of lower quality than vinyl tile, the Court is unable to name such a substance.
Mr. Hardy points out, however, that the phrase "the quality would be of the highest" must be construed in light of the modifying language, "As all material would be ordered from the U.S.A." On balance, however, this does more harm than good to Hardy’s case. While it is not syntactically impossible to read the language in question as making a distinction between high-quality "Made in the U.S.A." vinyl living room floors and inferior Oriental ones, to a prospective buyer in American Samoa the invocation of the United States in connection with "highest quality" materials is far more likely to reinforce the impression that everything will be first-rate, not third-or-fourth-rate.
*10In the present case, moreover, the Hardys showed the Lutalis catalogues containing materials that were of genuinely high quality. Having assured their customers that $75,000 would pay for a structure in which all materials would be of the highest quality, the Hardys knew or should have known that the customers might understand this ássurance to include the particular materials they were being shown. Yet the Hardys made no suggestion to the contrary. The contract was therefore enforceable in accordance with the Lutalis’ understanding that the $75,000 price included the materials they selected. See Restatement (Second) of Contracts § 20(2) (1981).
The Lutalis argue that they are accordingly entitled to a refund of the amount they paid Hardy in excess of the contract price. It is important to notice, however, that the estimate was for "approximately" $75,000. The Lutalis paid Hardy $82,458, slightly less than 10% over the estimate. If both parties had otherwise performed in accordance with the original contract — if there had been no changes and no defects —. we would hold the $82,458 that was billed and paid to be in accordance with the contract price of "approximately" $75,000:
Hardy contends, on the other hand, that by receiving and paying invoices suggesting that the actual cost of completing construction would be well over the $75,000 estimate, the Lutalis implicitly agreed to pay whatever the cost might eventually turn out to be. This contention is at odds with the facts and also with the law. The initial invoice received by the Lutalis on August 7 was for $50,905 plus an unspecified freight charge. This invoice appeared to be for substantially all the materials that would be necessary. It was not unreasonable to assume that the labor plus freight and any remaining materials would cost no more than $30,000 or so. (Construction was supposed to take only three months; Hardy’s actual labor costs over a somewhat longer period amounted to about $12,000.) By late September or early October, when the Lutalis had reason to believe that Hardy’s bills might substantially exceed $75,000, they already had a massive investment in the project and were in no position to call it off. Under these circumstances neither their payment of two invoices which did not bring their total payments beyond the original estimate of "approximately $75,000," nor their silence in the face of invoices which did far exceed the contract price, can fairly be regarded as consent to a dramatic and one-sided modification of the contract.
There was, moreover, no consideration for such a modification in the absence of changed circumstances or other special equitable *11considerations. By paying $82,458 the Lutalis had already fully performed their side of the bargain whereas Hardy proposed to do nothing for $100,000 that he was not already obliged to do for approximately $75,000. "Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration . . . ." Restatement (Second) of Contracts, supra, at § 73; see Lingenfelder v. Wainwright Brewery Co., 15 S.W. 844 (Mo. 1891).
III. Quantum Meruit
Somewhat later in October, however, the Lutalis ordered Hardy to undertake additional work that was not included in the original agreement. The structure being erected was 53 feet long by 26 feet wide, in accordance with the plans; the Lutalis directed that it be extended so as to be 30 feet wide.
Defendant A.P. Lutali testified that this change was necessary in order to provide large bedrooms as originally contemplated, and that he therefore assumed Hardy would make the change without increasing the price. Asked whether he had seen the plans which had been drawn up in July, and which clearly indicate the room dimensions to which he later objected, the witness said he did not recall but that he does not really understand plans. Lutali, however,, is a highly intelligent man and a licensed legal practitioner who conducted for many years an extensive practice in the area of real property law. At the time of the events involved in this lawsuit he was serving as Governor of the Territory. Even if he did have difficulty reading the plans, he knew or should have known that the construction he was about to order would attempt to replicate them and that it was therefore important to take such steps as were necessary to know what was in them. He surely understood that the two-story addition was different in many important ways from the extension he had initially discussed with Hardy, and it was unreasonable simply to assume that any particular feature of the original concept was incorporated into the final plans.
It was perhaps even more unreasonable for the Lutalis to assume in October — after the October 7 invoice had given them reason to know of Hardy’s desire to do business on a "cost-plus" basis rather than in accordance with the original estimate — that Hardy would tear out the exterior walls he had already built, add 424 square feet of floor space, and rebuild the walls, all at no extra charge.
*12It was just as unreasonable, however, for Hardy to assume that the Lutalis, who had recently cited financial reasons for cancelling their plans to renovate the older portion of the house, had agreed to a new contract by which he would add four feet to the new addition and they would pay whatever he asked.
With regard to the work involved in this four-foot extension, the parties did not even attempt to reach an agreement on the price; instead each party chose to proceed in deliberate disregard of the materially different interpretation which he surely knew the other party would eventually place on the arrangement, each apparently believing that it would be strategically preferable to resolve this difference after the work was done. The result was that the parties never made a contract with respect to this portion of the work. See Restatement (Second) of Contracts, supra, at § 20(1).
Accordingly, the revision ordered by Lutali affords no contractual basis for Hardy’s claim that Lutali owes $47,986 over and above the $82,458 he has already paid. (This is especially true in light of the October 7 invoice, which reveals that Hardy was already well over the original budget before Lutali ordered the revision; a substantial portion of the $47,986 now demanded, therefore, has nothing to do with the revision and cannot possibly be justified by reference to it.) It does not follow, however, that the Lutalis get the extra 424 square feet for free. Rather, the court must apply the doctrine of quantum meruit to award Hardy the value of the benefit conferred on the Lutalis by the work done beyond that required by the original contract. Cf. Hardy v. Anderson, supra at 83.
The only evidence we have of the benefit conferred by the additional work is the value the parties agreed to place on the work originally scheduled. If a 53’ x 26’ two-story addition is worth approximately $75,000, then an identical structure approximately one-sixth larger (53’ x 30’) should be worth about $12,500 more. Hardy might also be entitled to greater compensation for revising a structure that was already substantially built than if he had simply built the extra square footage from the ground up, since the cost of construction — and therefore, arguably, the value of the services rendered — was greater. See Evans v. Mason, 308 P.2d 245 (Ariz. 1957). It is not clear, however, that the extra expense to Hardy increased the value of the benefit conferred upon Lutali, which is the traditional measure of damages under quantum meruit. See Hill v. Waxberg, 237 F.2d 936, 939 (9th Cir. 1956) (" [Restitution is properly limited to the value of the *13benefit which was acquired.") In any case, Hardy’s equitable claim to compensation beyond the value of the benefit acquired by the Lutalis is substantially weakened by his failure to apprise the Lutalis of the extent of the work that would be entailed by the revision they had requested. While it might go without saying that the walls would have to be tom out and rebuilt, there was no reason to assume that the Lutalis would understand that the structural supports for the whole second floor would need to be moved.
IV. Offsetting Damages
Depending on the resolution of these questions, the revision would appear to entitle Hardy to at least $12,500 and perhaps as much as $20,000. Against such entitlement, however, it is necessary to offset the damages suffered by the Lutalis on account of defects in the construction. While the evidence of the amount owed by Hardy on account of such damages is at least as imprecise as the evidence of the amount owing to Hardy for the revisions, the two figures are of the same order of magnitude.
On the present record we cannot conclude that Hardy is entitled to quantum meruit recovery beyond the $82,458 already received, since we have insufficient evidence on which to find that the value of the extra services he performed exceeds the amount of the damages suffered by the Lutalis on account of Hardy’s defective performance. Nor can we conclude, however, that the Lutalis have proved damages in excess of the benefit conferred on them by the additional construction.
Preservation of the status quo, aside from being practically compelled by the rule that each party bears the burden of proving his own damages, also seems a just result from the standpoint of all parties. The Lutalis have already spent between $1,000 and $2,000 to repair defects in Hardy’s performance. (This estimate excludes amounts spent for such items as the new master bathroom and the "ladies’ lounge," which were not part of the addition or of this case.) By spending another $2,000 to $6,000 they can probábly repair all the defects except the crevice in the floor. They will then have paid from $85,000 to $90,000 for a building that is one-sixth larger than the one they originally agreed to purchase for "approximately" $75,000, but which has an uneven floor. If it turns out that the floor can be fixed for an additional two or three thousand dollars, they can have a flawless building one-and-one-sixth times as large as the one they originally agreed to purchase, for approximately one-and-one-sixth times the amount they agreed to pay.
*14If the cost of repairing the defect in the floor should prove so high that a reasonable person would prefer simply to make whatever cosmetic repairs are possible and live with the result, then the Lutalis will be left with an imperfect but habitable structure for a somewhat lower price. In such a case the measure of damages for defective performance is not the cost of repairing the defect but the difference in value between the benefit conferred by the defective performance and the benefit that would have been conferred by the promised performance. See Jacob & Youngs v. Kent, 129 N.E. 889, 891 (N.Y. 1921) (Cardozo, J.):
The owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value.
Nor is a denial of further payment particularly harsh toward Hardy. The record reflects that Hardy’s total expenses, excluding payment to the Hardys themselves, were between $62,000 and $72,000 for all work including the additional 424 feet. Their compensation for their own efforts in connection with the Lutali project, therefore, is between $10,000 and $20,000. They also appear to have recovered an indeterminable quantity of unidentified excess building materials. While perhaps not handsome by the standards of the construction industry, this measure of compensation is hardly unfair in light of the serious problems that developed with the Lutali project.
V. Order
Accordingly, both the complaint and the counterclaim are dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485846/ | *16On April 10, 1987, plaintiffs’ four-year-old daughter was struck by a bus and killed. This action is against the driver, the owner, and the insurer of the bus and also against the American Samoa Government (hereinafter "ASG") in its capacity as proprietor of the pre-school program the child was attending on the day of the accident.
The child, Ballerina Saufo‘i, was enrolled in an ASG pre-school program called Early Childhood Education (ECE). The classes in which Ballerina was enrolled were held in a home uphill from Evalani’s Cabaret Lounge in the village of Pago Pago. Access to this home is by way of a steep path and stairway beginning on the main road beside Evalani’s.
In an effort to assure the safety of children attending ECE classes, ASG had given all teachers instructions that no student was to be allowed into a class unless accompanied to the door by a parent or other adult. Teachers were specifically prohibited from agreeing with parents that they themselves would undertake the responsibility of seeing children to and from school. These instructions had been communicated to Salilo Scanlan, who was Ballerina’s ECE teacher.
Despite these instructions, Ms. Scanlan made an arrangement with plaintiffs, to whom she is related, according to which she took Ballerina to and from most ECE classes.
On April 10, 1987, the day of the accident, Ms. Scanlan had taken Ballerina to school. She had also dismissed her ECE class early that day so that she could take her own child to a medical appointment. The early dismissal, which was undertaken on Ms. Scanlan’s own authority in contravention of general ECE policy, had been announced to parents that morning as they brought their children to class. At the time of the accident all but four of the children had been picked up. The four who remained were Ballerina; plaintiffs’ other daughter; Ms. Scanlan’s own child; and another child whose parents had not yet come for him. Ms. Scanlan was cleaning up and putting away ECE materials as ECE rules required her to do. In the course of this activity she went into another room. Upon her return she found Ballerina gone.
Defendant Kilisi Pauli, according to his testimony, was driving his bus on the main road at a speed of about fifteen miles per hour. His testimony is to the effect that he did not see Ballerina before the moment of impact. He testified that the point of impact was somewhere on the right side of the bus, and that she was thrown forward and to the side. *17The only other eyewitness, Sefo Etuale, apparently did not have a very good view of the accident. He testified that he saw someone get hit by a vehicle about ten cars ahead of him and that the person was thrown to the side. He could provide no further details, not even the type of vehicle that was involved in the accident.
Ballerina was taken to the hospital where she was pronounced dead upon arrival.
Police officers arrived upon the scene a few minutes later. The officers found a large bloodstained area on the road near the stairs that lead to the ECE center. The bloodstained area is quite close to the center line of the road, about nine feet from the mauga or right-hand shoulder and about fourteen feet from the sami or left-hand shoulder. The eyewitness testimony of the reporting officer and police photographs taken shortly after the accident reveal no evidence of any other significant bloodstains on the road. The bloodstained area, therefore, almost certainly marks either the point of impact or (more likely) the point at. which Ballerina’s body came to rest and lay until it was carried away. In either case the point of impact was at or near the middle of the road.
The police officer also observed that the accident had occurred at about 10 a.m. and that it was daylight, the weather was clear, and the road was dry.
Counsel for defendant Pauli argues that this case is governed by our decision in Matalolo v. Penitusi, 4 A.S.R.2d 46 (1987) in which we observed that "the mere fact that a vehicle strikes a pedestrian does not give rise to strict liability without fault, or even to a responsibility on the part of the defendant to prove that he was not negligent." Id. at 47.
In Matalolo the plaintiff, whose child had been injured when hit by a car, testified that her child stepped out from behind a bus and was hit by the car. We found that "[t]he point of collision with defendant’s vehicle was at the extreme right end of the front of the vehicle, indicating that the child stepped into the road at the last possible moment before impact." Id. at 46. Under these circumstances, and in the absence of any other evidence that the driver had been negligent, we held that there was no showing of negligence.
This case, however, is not Matalolo. In that opinion we pointed out that the law does not automatically hold the driver at fault in every automobile/pedestrian collision. We did not mean to imply that judicial *18inquiry into every such collision —or into every collision that results in the death of one of the two people in the best position to observe what happened — should begin and end with the survivor’s recollection that the decedent just suddenly ran into the side of the car. Indeed, we began our analysis in Matalolo with the observation that "[t]he defense of ‘he darted into the road at the last minute’ is often asserted but seldom proved.’" 4 A.S.R.2d at 47.
In the present case this assertion is at odds with the physical evidence, which is the most reliable evidence we have. If, as the driver testified, he was driving in the right lane, and if Ballerina had run into the side of the bus and had been thrown toward the right side of the road, then blood or other evidence of the presence of a fatally injured person should have been located near the far right edge of the roadway. That this evidence was found instead near the center line — that is, in the leftmost portion of the lane in which the bus was being driven — leads to two important distinctions between the facts of this case and those of Matalolo:
(1) It becomes difficult to believe the driver’s testimony that the point of impact was on the right side of the vehicle, much less counsel’s conclusion that "young Ballerina was killed as the result of an unavoidable accident when she ran, unexpectedly and with out warning, into the public highway thereby colliding with the side of the defendant’s bus." Rather, the location of the bloodstain and the driver’s testimony that he was driving entirely in the right lane would indicate that the child was hit squarely by the front of the bus, most likely the left front portion.1
(2) Even more important, and regardless of what part of the vehicle hit the child, the fact remains that she made it to the middle of the street without being seen by the driver. The police photographs taken on the day of the accident reveal that a person approaching the roadway *19from the steps to the ECE center would first have to cross a small footbridge over a ditch by the roadside. The bridge and the shoulder together appear to be three or four feet wide; a person standing on the bridge or the shoulder, even a child, would be clearly visible to approaching motorists. In Matalolo the child was hidden by a bus until the very moment he stepped out from behind the bus into the path of an oncoming car. In the present case the child was clearly visible to oncoming motorists for at least the time it takes a four-year-old child to negotiate the bridge, the shoulder, and nine feet of roadway.2 It is hardly strict liability to find that a driver who fails to observe a child as she crosses a footbridge as well as the shoulder and almost the entire right lane of a public highway, all in broad daylight, is probably not looking carefully enough.
This is not to say, of course, that defendant Pauli was solely responsible for the accident. The evidence does not suggest that he was guilty of such gross negligence that the accident might not have been, avoided by the exercise of due care on the part of some other person or persons. It does suggest that he was not looking carefully at the road ahead of him and that this contributed to the accident.
Accordingly, we hold that the evidence preponderates in favor of plaintiffs’ claim that defendant Pauli was negligent in failing to keep a proper lookout. Defendant Fata Holt, who has admitted being the owner of the commercial vehicle driven by Pauli and the holder of the commercial vehicle license and has not denied plaintiffs’ allegation that she employed him to operate the vehicle, is therefore vicariously and secondarily liable for the negligence of defendant Pauli. Defendant Continental Insurance Company, which admits being the insurer of the vehicle at the time of the accident, is liable in such capacity for the negligence of the driver.
Plaintiffs also claim .that defendant ASG is responsible for the death of their daughter. They argue that ASG was negligent in placing the ECE center in a high traffic area without taking special precautions such as the installation of traffic safety devices, and that ASG is also *20liable for the negligence of its employee, Salilo Scanlan, in allowing Ballerina to wander away from the ECE program.
The evidence does not support plaintiffs’ contention that ASG was negligent in its placement of the ECE center. Forced to choose between having early childhood education classes in private homes or not having them at all, ASG adopted a variety of safeguards — very small class sizes, limitation of enrollment to children living in the immediate neighborhood, and especially the rule that parents must drop off and pick up their children from each class — to minimize traffic safety problems. These measures, although tragically unavailing in the present case, would appear in general to be at least as effective as the designation of each ECE center as a school and posting of the surrounding area as a school zone. (In the present case, moreover, it is not at all clear that the absence of a school zone sign or similar warning device was a cause in fact of the accident. Defendant Pauli testified that he knew there were sometimes young children in this area and that he was driving only fifteen miles an hour, somewhat slower than the usual limit in school zones.)
ASG is, however, liable for any negligence of Salilo Scanlan provided that such negligence occurred in the course and scope of her duty as an ASG employee.
Perhaps because Ms. Scanlan herself was not made a party to this case, no party has seriously disputed plaintiffs’ contention that she was negligent. We are satisfied that she was indeed negligent in leaving children unattended a few steps from a busy roadway. ASG contends, however, that it cannot be held liable for Ms. Scanlan’s conduct because she was not acting in her capacity as an ASG employee. Rather, she specifically violated her employer’s instructions in pursuance of a private arrangement with her relatives, the plaintiffs themselves, which arrangement ASG regards as the sole means by which she contributed to BalUrina’s death.
The position that an employee’s defiance of her employer’s instructions takes her outside the course and scope of her employment is not without attractions both equitable and metaphysical. It is, however, contrary to settled law:
The fact that the servant’s act is expressly forbidden by the master, or is done in a. manner which he has prohibited, is to be considered in determining *21what the servant has been hired to do, but it is usually not conclusive, and does not in itself prevent the act from being within the scope of employment. . . . Thus, instructions to a sales clerk never to load a gun while exhibiting it will not prevent liability when the clerk does so, in an effort to sell the gun. If the other factors involved indicate that the forbidden conduct is merely die servant’s way of accomplishing an authorized purpose, the master cannot escape responsibility no matter how specific, detailed and emphatic his orders may have been to the contrary.
W. Prosser & P. Keeton, The Law of Torts § 70 at 502-03 (5th ed. 1984) (footnotes omitted).
In the present case Ms. Scanlan had been hired to conduct a class whose students included Ballerina Saufo’i. Although the negligence with which Ms. Scanlan is now charged occurred a few minutes after she had dismissed the class, it occurred at her place of work during her usual working hours. Although she was planning what was arguably a detour and frolic of her own, and had dismissed class early in anticipation of this personal errand, at the time of the accident she was still at her place of work performing at least two of her duties as an ASG employee: cleaning up after class and waiting for the parents of one of her students to come for him.
Although Ms. Scanlan’s contribution to the accident was clearly related to her agreement with Ballerina’s parents, it was also clearly related to her performance of the duties required of her by ASG. When Ms. Scanlan left the room just before the accident she did so in pursuance of her duty to clean up after class. That her particular way of doing this (leaving children unattended) was contrary to her employer’s wishes, or that she violated her employer’s specific instructions by mixing her dual roles as ECE employee and private agent for Ballerina’s parents, cannot avoid the fact that her negligence occurred when she was acting at least partly in her role as an ECE employee.
Nor, however, can Ms. Scanlan’s connection with ASG relieve the plaintiffs of their own responsibility for the arrangement that contributed to the accident. It appears that they knew this arrangement was against the rules. Moreover, the plaintiffs knew as well as defendant ASG that the ECE center was located just uphill from the main road at a place where there was heavy traffic, and they had even more reason *22than ASG to be familiar with the strengths and weaknesses of their relative, Ms. Scanlan. Their entrustment to her of their child’s safety during the period after classes were over, when they knew or had reason to know she would be attempting to combine this grave responsibility with her responsibilities to her employer, was a factor that contributed substantially to the accident.
Apportioning the negligence of the various parties in accordance with A.S.C.A. § 43.5101, we find the accident to have been caused by two equally culpable courses of conduct. One of these was the failure of defendant Kilisi Pauli to keep a proper lookout. The other course of conduct consisted of two elements: the agreement by which Ms. Scanlan was to care for Ballerina after class, and her leaving the children unattended just before the accident. The. first of these elements represents negligence attributable to the plaintiffs; ASG is vicariously liable for the second element. We therefore assess liability at 50% for Pauli, his employer, and his insurer; 25% for ASG; and 25% for the plaintiffs.
Plaintiffs describe their damages as consisting almost entirely of "emotional distress." Construing the pleadings liberally in order to do justice, we assume plaintiffs mean to assert their rights under A.S.C.A. § 43.5001 to recover for the wrongful death of their child. The statutory elements of such a claim include "pecuniary injury and loss of love and affection, including . . . loss of society, companionship, comfort, consortium, or protection; [and] loss of filial care and attention." Id. § 43.5001(c). We assess plaintiffs’ damages, including the loss of love, affection, society, companionship, comfort, and possible future protection, support, care, and attention, at $40,000.
Plaintiffs also claim to have incurred medical expenses of $50 and funeral expenses of $3,945. The claim for medical expenses is allowed. Plaintiffs submitted, no credible evidence either of the amount of funeral expenses or that such expenses were actually paid by the plaintiffs. The only evidence submitted was the testimony of plaintiff Lumana‘i Saufo'i, who was clearly not telling the truth. Accordingly, no special damages are awarded for funeral expenses.
Damages are therefore assessed against defendants Kilisi Pauli, Fata Holt, and Continental Insurance Company in the amount of $20,025. Damages are assessed against defendant ASG in the amount of $10,012.50.
*23We note, however, that plaintiffs have not applied to the Court for recognition as the proper parties to bring this action. The wrongful death statute requires that an action "must" be brought on behalf of the surviving spouse, parents, children or other next of kin, if any, of the decedent "as the court may direct." A.S.C.A. § 43.5001(b). We have not thus far been asked to give the requisite directions. By allowing the case to be brought to trial and submitted for judgment, the various defendants would appear to have waived any objections to this defect in the pleadings. We are concerned, however, that by proceeding in their own names without asking for leave of court, plaintiffs may have prejudiced the rights of Ballerina’s brothers and sisters. Plaintiffs are therefore directed to make the appropriate application immediately.
Formal entry of judgment will be delayed pending action on such application. The time period during which parties may move for reconsideration of the judgment will commence with formal entry of judgment.
It is so ordered.
The driver testified that he was driving somewhat further toward the center of the road than might otherwise have been the case, since road workers had placed cones near the rightmost edge of the roadway, but that he stayed in the right lane. The police photographs confirm the existence of the cones but show them extending only about two feet into the roadway. If the bus was in the right lane and if the bloodstain was anywhere near the point of impact, then Ballerina was struck by the left front portion of the bus.
The police officers observed no damage to the bus from which the point of impact could be precisely determined. (Nor, contrary to the suggestion of defendants’ counsel, was there any evidence that Ballerina ran rather than walked into the roadway.)
It also appears from the photographs that an oncoming driver, at least one with the relatively high vantage point of a bus driver, would have been able to see over some intervening foliage so as to observe the child even earlier, as she came down the stairs leading to the roadway. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485855/ | The natural parents petition to relinquish their natural rights to their youngest child in favor of the child’s maternal grandparents. The grandparents, who are social security beneficiaries, have cared for the child since birth, however, this arrangement also appears to have largely *55arisen as a matter of the natural parents’ convenience. The parents are young and industrious and are both tied up with a promising business. They candidly admit that their business currently demands a large part of their time and hence they are unable to properly care for their child.
The child care arrangement can only be temporary in any event. The grandparents’ circumstances are that they are both 75 years of age, and the parents naturally expect to take over from them when they are no longer able to look after the child. These are not circumstances which requires changing the child’s legal status.
The Court is required by A.S.C.A. § 45.0402(e) to look to the best interests of all concerned. In the circumstances, we are unable to conclude that granting the petition would be in the best interests of all parties concerned, especially those of the child.
Petition denied. It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485856/ | Petitioner, the administratrix of her deceased child’s estate, has submitted a final accounting for approval by the Court. The sole asset listed is a $ 15,000 tort settlement. We requested further information about this settlement from counsel for petitioner and for the American Samoa Government, the other party to the settlement. It now appears that the $ 15,000 was intended by the parties as full settlement of a claim for wrongful death of the decedent and also of a related claim for the decedent’s pain and suffering prior to his death.
The American Samoa wrongful death statute provides that "[t]he personal representative of the wronged decedent, if he was appointed in the Territory of American Samoa, with the consent of the court making such appointment, may, at any time before or after, the commencement of the suit, settle with the defendant the amount to be paid." A.S.C. A. § 43.5001(d) (emphasis added). The companion statute governing the survival of actions belonging to a deceased person, A.S.C. A. § 43.5002, contains no provision requiring judicial approval for a settlement. If the $ 15,000 listed as the sole asset of the estate had resulted from settlement of the survival claim only, we could approve the accounting. Insofar as it is also in settlement of the wrongful death claim, however, A.S.C.A. § 43.5001 clearly requires the personal representative of the deceased (in this case the petitioner/ administratrix) to secure approval of the Court for any settlement, even a settlement reached "before . . . commencement of the suit."
We have received no request for approval of the proposed settlement. It therefore affirmatively appears on the record before us that the estate has no assets. The final accounting must therefore be disapproved.
As was noted in our request for information about the settlement, the requirement that administrators obtain judicial approval for the settlement of wrongful death claims would appear to be motivated by concern for the rights of absent parties. The present decedent was survived not only by his parents, the present petitioner and her husband, but also by several minor siblings. If petitioner should seek judicial approval for a wrongful death settlement that excludes the brothers and *57sisters, she should provide the Court with an explanation for such exclusion. (If petitioner takes the position that the decedent’s brothers and sisters are not included within the class of eligible beneficiaries in a wrongful death action under A.S.C.A. § 43.5001(b), she should address the authorities cited in our earlier opinion.)
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485857/ | This is an action for eviction. On March 20, 1985, plaintiff Caroline Fealofa‘i and her late mother agreed to lease the defendants a parcel of land, along with the house that had been built upon it, for a term of ten to twenty years. (Although the lease speaks of Caroline Fealofa‘i as the "lessor" and her mother Ruby Pritchard as the "landowner," the land actually belonged to a trust of which plaintiff Fealofa‘i and her mother were the sole beneficiaries. Plaintiffs do not urge this as a ground for invalidity of the lease.)
At the time the lease agreement was made the construction of the house was not complete. The structure itself had been erected, but various important items including the windows, doors, floor covering, and interior ceiling remained to be installed. The lease agreement permitted defendants "to finish building the house and then credit the costs to the rent of the house and premises at an amount of $300.00 a month until the full amount is credited." The rental for the first ten years is $300 per month; defendants are given an option to renew for another ten years at $650 per month. Lessors further agreed to pay $1,000 "as an advance on rents."
Defendants began finishing the house almost immediately and completed the work in about three months. The improvements made by defendant were not limited, however, to items that can fairly be described as "building the house." Much of the work done was designed to facilitate the conversion of the house into a laundromat. In early July of 1985 the defendants opened Luisa’s Laundromat on the leased premises.
Also in July of 1985, the lease was amended to give defendants an option to renew for an additional twenty years at the rate of $1,000 per month. This amendment was insisted upon by defendant in exchange for making a further advance on future rentals (apparently another $1,000) to plaintiff Fealofa’i.
Beginning in late 1985 or early 1986, plaintiff and her mother began asking defendant Eugene Reid when they would begin receiving *59regular rental payments. Reid responded that the amounts to be credited — cash advances plus the cost of improvements — had not yet run out. On at least one occasion plaintiff and her mother demanded an accounting; defendant had his secretary give them a stack of receipts, which plaintiff says added up to $30,000 or $40,000. Defendant occasionally did give plaintiff Fealofa'i an additional "advance" on the rent; four "advances" — at least some of which, on plaintiffs’ view of the facts, should actually be regarded as partial payments of past due rent — were made during 1986 and 1987 in a total amount of about $1,500.
Plaintiff Fealofa'i and her mother eventually consulted a lawyer. In June of 1988 he called defendant Eugene Reid and was referred to Mr. Reid’s attorney. The record does not reflect what discussions, if any, the attorneys had, but on September 27, 1989, plaintiffs’ attorney wrote to defendants demanding that they vacate the premises. On October 31, 1989, defendants’ attorney responded that "[t]he amount of expenses in building the laundramat [sic] and cash advances comes out to a little over $21,000" and that defendants (who by then had been occupying the premises for about four years without paying rent) still had $8,000 in credits left to deduct before any rent would be due.
This lawsuit followed. Shortly before trial, defendants submitted an accounting in which they claim that their credits amount to $17,050.80, including about $14,000 in building expenses and about $3,000 advanced to plaintiff Fealofa‘i. At trial defendants conceded that $944.72 of the claimed building expenses were necessary only to fit the house as a laundromat, not to finish building it, and were therefore not creditable against the rent. If, however, defendants’ estimate of $16,106.08 in credits is correct, then no rent was due until January 1990, the fifty-fourth month after construction was completed.
Plaintiffs contend, however, that most of the claimed building expenses were not to "finish.building the house" but to establish and operate a laundromat. They claim that only about $4,000 (including about $2,500 in advances) should be credited, and therefore that the rent is nearly four years overdue.
This lawsuit could probably have been avoided if the lease agreement were not so very uninformative. The one-page document (actually only about fourteen lines) fails to specify most of the terms generally included in a contract of lease. In particular, it purports to specify a rental amount but does not really do so. As the present controversy reveals, the figure of $300 per month minus credits is *60illusory unless the amount of the credits is agreed upon or at least determinable by reference to the agreement. The document neither specifies what amount the Reids were to spend to "finish building the house" nor provides information from which a reasonable range might be determined. This omission, together with the vast disparity in the parties’ statements of their respective understandings of this essential term, suggests strongly that the lease was too indefinite to constitute a legally binding contract.
If there were never a binding contract between the parties, each party would nevertheless be entitled to quantum meruit recovery for any benefits he or she conferred upon the other party in the belief that there was a contract. Mrs. Fealofa'i would be entitled to possession of her house and to its fair rental value for the time during which it has been occupied by the Reids, but only after compensating the Reids for improvements they made that are or will be of benefit to her.
Even on the assumption that there was a valid contract, however, the defendants’ broad interpretation of their right to "finish building the house" at plaintiffs’ expense exceeded even the ample limits within which reasonable people might disagree about the meaning of that vague term.1 By claiming many more thousands of dollars’ worth of expenses than they were even arguably entitled to under the lease, and refusing to pay the rent until such time as these expenses should all have been credited, they put themselves in breach of the contract by mid-1988 at the very latest.
In the first place, defendants’ accounting includes $3,101.50 for improvement not of the house but of the surrounding land. Perhaps the only thing that emerges clearly from an examination of the lease agreement is a distinction between the "house" and the "house and premises." Defendants are to lease the whole "house and premises" but may deduct only such expenses as are necessary to "finish building the house." Even so, a reasonable person might construe "finish building the house" to include such improvements to the surrounding premises as were necessary to prevent the house from being inaccessible or otherwise uninhabitable. It is undisputed, however, that the house was accessible from the road before these improvements were made. They appear to have consisted primarily of a parking lot for the laundromat.
*61Similarly, certain other claimed expenses (beyond the $944.08 conceded by defendants at trial) appear to have been necessary not to finish building the house but to install a laundromat therein. For instance, defendants divide their expenses for plumbing materials as follows: $472.36 for such materials as were necessary to make the house suitable for general residential or business purposes, and only $25.97 for the specialized materials necessary to fit the house as a laundromat. Expenses for electrical materials are allocated $1,069.77 for general materials, $129.25 for laundromat materials. The Court’s visual inspection of the house, however, revealed about thirty washing machines in all conceivable locations, all surrounded by pipes, wires, and fixtures that would be of no use anywhere but a laundromat, including at least one large pipe running above the floor through the center of the house. That pipe alone must have more than $25.97.
Moreover, the small amount allocated to establishment of the laundromat in defendants’ accounting consists entirely of materials acquired at least two months after the laundromat, had been open for business. The conclusion is inescapable that a substantial portion of the money spent on plumbing and electrical materials between April and early July of 1985, and also some of the lumber and miscellaneous hardware allocated to other categories in defendants’ accounting, were expenses of the laundromat business and not fairly creditable against the rent. The total cost of materials now claimed by defendants (excluding materials for improving the land rather than the house) is $7,792.73. The most precise estimate we can make from the record before us and from visual inspection of the house/laundromat, giving the defendants the benefit of every conceivable doubt, is that the cost of laundromat-specific materials amounted to at least 10 per cent of the cost of all materials, or $779.27.
Even more disturbing are credits claimed by defendant for materials that appear not to have been used on the house at all. For instance, the 55 bags of cement purchased and credited in May and June of 1985 would appear to have been more than enough to do the cement work (a bathroom floor, steps at the three entrances to the house, and a top for a septic tank) which defendants’ construction superintendent recalls. Defendants’ accounting, however, includes an additional $757.35 for 150 bags of cement. Defendant Eugene Reid testified that the large expenditure on cement was justified because the house had a dirt floor when he acquired it and it was necessary to lay a concrete slab for the whole house. This was contrary to the testimony of plaintiff Fealofa’i and of defendants’ own superintendent, who said that only the small *62bathroom area needed a slab. The documentary evidence is also strongly against defendants’ contention: although defendants’ accounting dates the purchase of the 150 bags of cement on July 11, 1985, the invoice itself is dated July 11, 1986. This, was over a year after the laundromat had opened for business and well after the completion of all cement work of which defendants produced any evidence.
Several other items purchased in 1986 or in late 1985 are included in defendants’ accounting, all incorrectly listed as having been acquired in June or July of 1985: $522.48 for a large quantity of hack saw blades and rebars (allocated to a wooden partition that does not seem to have any hack saw blades or rebars in it); $13.45 for lumber; $47.92 for lumber and nails; $1.20 for indecipherable items; $69.75 for more indecipherable items.
Nor is it clear that all the materials acquired between April and June of 1985 were used on the house. Various invoices include a total of 25 gallons of paint costing about $250; the disputed house measures about 35’ x 50’ and consists almost entirely of one room; 25 gallons is a lot of paint; yet an invoice for $938.45 (incorrectly listed on defendant’s accounting as $1,105.59) from a professional house painting company indicates that "we applied paint both interiorly and exteriorly" and includes $557.59 for "materials." At the rate defendants are seeking to credit paint against rent, that would be another fifty gallons. The house painters having supplied their own paint, we cannot conclude that another large quantity of paint was also used on the house from the bare fact that this other paint was acquired by defendants (who own other businesses besides the laundromat) at about the same time.
Finally, defendants’ claimed labor costs of $1,873.40 are documented only by reference to the names of the persons who were paid and the dates on which they were paid. Since labor as well as materials were expended on fitting the house as a laundromat, improving the surrounding land, and other purposes extrinsic to "finish[ing] building the house," the claimed credit for labor must be reduced in the same proportion as the claimed credit for materials.
In conclusion, we find that the defendants are entitled to the following credits against rent:
Materials
Total amount claimed, April-July 1985
("Phase I" and "Phase II"): $10,894.23
*63Minus amount spent on land rather than house: -3,101.50
Minus estimated amount spent between April and July 1985 to install laundromat rather than to finish building house: - 779.27
Minus other amounts that do not appear to have been spent to finish building the house: - 1.662.00
Credit for Materials: $5,350.66
Labor
Claimed credit for labor: $1,873.40
Credit for materials allowed/claimed: x ('5350.66/10.894.231
Credit for labor: $920.11
Amounts Paid to Plaintiffs
Total Amount Claimed: $3,338.45
Minus 2/26/85 payment apparently related to separate land transaction: - 100.00
Minus amount claimed but not documented or admitted: - 700.00
Plus amount not claimed or documented but admitted by plaintiff: + 1.000,00
Credit for amounts paid: $3.538.45
Total Credits: $9.809.22
This credit is equal to the $300 monthly rental for 32 months (July 1985 through February 1988) plus $209.22 toward the rental for the next month (March 1988). Defendant owes $90.78 for March 1988 and $300 for each additional month, for a total of $7,290.78 through March 31, 1990.
If it appeared that defendants’ refusal to pay the rent during the last two years was based in a reasonable interpretation of the lease *64agreement and that defendants had stood ready at all times to make a full accounting to plaintiffs and to pay whatever rent should appear to be due, then equity would militate strongly against enforcement of the plaintiffs’ legal right to repossess the premises upon defendants’ breach. On the contrary, however, defendants attempted to charge plaintiffs for all sorts of expenses far removed in time, place, and purpose from the limited enterprise of "finish[ing]" to "build the house." Even if the defendants believed in good faith that the lease agreement allowed them to do this, such belief was not reasonable.2 Indeed, the position taken by defendants in response to plaintiffs’ early demands for rent would appear to have been even more difficult to sustain than the scaled-down accounting they submitted at trial. As late as October of 1989 defendants’ then-attorney was insisting that the credits against rent amounted to over $21,000, a figure which was not itemized but which apparently included not only the cost of setting up the laundromat but also some of the ongoing expenses of running it.3 Accordingly, *65judgment will be entered in favor of plaintiffs putting them in immediate possession of the house and premises. Judgment will further be entered in favor of plaintiffs in the amount of $7,290.78 for rent arrearages. This judgment will be stayed until March 31, 1990, or until the decision on any timely motion for reconsideration or new trial, whichever is later.
It is so ordered.
This is particularly true in light of the rule that vague or ambiguous language should ordinarily be construed against the party who drafted it. The lease was drafted by defendants’ then-attorney. Plaintiffs were unrepresented by counsel during the negotiations.
We need not and do not find that defendants deliberately engaged in culpable behavior, but only that they breached the agreement (assuming it was definite enough to be susceptible of breach) and that the breach was not in reliance on a reasonable interpretation of the agreement. There may even be an innocent explanation for defendants’ submission to the Court of invoices for items that appear not to have been used on the house; time has passed and memories may have faded. Reliance on such invoices as a justification for not paying the rent, however, must be regarded as unreasonable even if it was sincere.
Defendants’ position that they were entitled to credit for all improvements including those directly related to operation of the laundromat — a position from which they had receded somewhat by the time of trial, but which appears to have been at the heart of their refusal to pay any rent between 1985 and 1990 — was inconsistent not only with the most straightforward reading of the term "finish building the house" but also with the surrounding circumstances. This was not a short-term lease under which the landlord might expect to derive some eventual benefit from improvements made by the tenant for his own purposes. At the end of the forty years during which defendants were given the right to occupy the building, the value of most of the improvements — even those that were designed for general use rather than the tenant’s own limited use — would have been negligible. Since the rental payments were the only benefit the landlord could expect to derive from the agreement, she had no reason to agree to an open-ended arrangement by which the defendants could avoid paying rent indefinitely simply by building themselves a better and better laundromat. Nor is $300 per month the sort of rent from which one would expept a landlord to allow extraordinary abatements.
These circumstances, together with the fact that defendants’ attorney drafted the language over which the parties now disagree, would even support plaintiffs’ position that defendants had the right only to credit a few really essential items such as doors and windows. Even such items as floor covering and the interior ceiling, which would presumably need replacement within forty years and would therefore be of no use to anyone but defendants, might plausibly be regarded as aspects of "interior decoration" rather than of "building the house."
*65We have, however, given credit for all items shown to have been used in the house and not exclusively related to operation of the laundromat. The credits allowed include not only those for improvement of the interior, plumbing, wiring, and so forth — or rather, for reasons discussed in the text, 90 per cent of the amounts claimed in these categories — but also such items as the construction of a snack bar and the purchase of light bulbs for the fluorescent light fixtures. Whether or not such credits would have been appropriate if defendants had retained the building for forty years, they do seem appropriate insofar as plaintiffs are now in a position to derive some benefit from the items in question. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485858/ | On Motion to Approve Annual Accounting and for Payment of Fees:
So'onalole Togamau is an adult who suffered mild brain damage in an automobile accident in 1978. The partial proceeds of an insurance settlement in the amount of $6,487 were placed in a trust account for the benefit of So'onalole. The Court ordered that $50 per month be distributed to So'onalole’s father, Finau Togamau, for the support of So'onalole. Finau Togamau has withdrawn this money in a lump sum of $600 each year since 1981, and has also requested and received certain other sums over the years.
Unfortunately, the amounts disbursed have been substantially greater than the interest accruing on the insurance proceeds. The guardianship account currently contains only $ 1,733. If disbursals should continue at the rate of $600 per year, So'onalole will run out of money in about three years. Not only would his father then stop receiving regular sums for his support, but So'onalole would also be without resources to deal with any future emergencies related to his medical condition. Since So'onalole is currently in his thirties and can expect to live for many years, such early exhaustion of the trust fund would defeat the purpose of the guardianship.
A recent medical examination reveals that So'onalole appears to be in good physical and mental health except that he has double vision in one eye ("but is able to play billiards with this disability") and that he "is still slow in adding and subtracting numbers [and] takes time to recollect events." From this report it would appear that he is capable of living and working as an active and useful member of a Samoan family. Indeed, the Court has made inquiries through counsel and has learned that So'onalole does in fact work on his family’s plantation in Western Samoa.
These facts strongly suggest that of the two possible uses to which the remaining funds in the estate can be put — either to supplement the family income for three more years, or to be preserved and to accumulate interest against the possibility of a future relapse or other medical emergency — the latter is wiser by far. Indeed, it is not at all clear that the prior annual disbursements to Finau Togamau were *67justified once So'onalole recovered sufficiently to become a full contributing member of the family.
The request for an additional $600 disbursement is therefore denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485859/ | *68This case came regularly for trial on March 6, 1990. Claimant Tupusemanuia was present and represented by counsel. Objector Malele was neither present nor represented.
Counsel for Tupusemanuia, as well as Tupusemanuia himself, told the Court that Malele had agreed to withdraw his objection and let Tupusemanuia hold the title. The objection had not, however, been formally withdrawn as of the time scheduled for trial. The Court therefore proceeded to hear the testimony of Tupusemanuia with respect to his own qualifications to hold the Muagututi‘a title.
The law governing matai titles specifies four criteria on which the Court must make findings in every action for the registration of a matai title. These are (1) the best hereditary right to the title; (2) the "wish of the majority or plurality of those clans of the family as customary in that family"; (3) forcefulness, character, personality, and knowledge of Samoan custom; and (4) value to the family, village, and country. A.S.C.A. § 1.0409.
The Court finds that Tupusemanuia is related to theMuagututi‘a title in that his mother’s mother’s father held the title. According to the method the Court has traditionally used to calculate degrees of relation to titles, this is a 1/8 blood relationship. This was the best hereditary right to the title demonstrated by any contestant, since Malele neither appeared in Court nor provided evidence of his genealogy in the questionnaire he submitted.
Tupusemanuia also testified that all clans within the family support him for the title. Since this was the only evidence presented to the Court, it was necessarily the best evidence. We therefore find for Tupusemanuia with respect to this criterion.
Tupusemanuia further demonstrated that he has at least some knowledge of Samoan custom, so that we find for him on the third criterion.
With respect to the fourth criterion, the value of the holder of the title to the family, village, and country, we are deeply troubled. The testimony of Tupusemanuia with respect to various services he has rendered to the family, to his church, to the village, and to the Territory would ordinarily be enough to satisfy this criterion, at least in an uncontested case. It was also clear from the testimony of Tupusemanuia, however, that for several years he has been using the Muagututi‘a title *69even though the objection of Malele was still pending. This is specifically forbidden by law. A.S.C.A. § 1.0414 provides that "[a] person who uses any matai title . . . before the same has been registered . . . shall be sentenced as for a class B misdemeanor." (A class B misdemeanor is punishable by up to six months in jail and a $500 fine.) Since no title can be registered until any objections have either been withdrawn or resolved in Court, it is clear that Tupusemanuia has been violating this law for some time.
Nor did Tupusemanuia show any remorse when questioned by the judges. His excuses — that he only held himself out as Muagututi‘a because the family wished him to do so, and that his rival Malele had behaved in bad faith — are the same excuses always given by people who have violated the law by using an unregistered matai title. See, e.g., In re Matai Title "Sotoa", 6 A.S.R.2d 91 (1987); In re Matai Title "Tauala", 13 A.S.R.2d 19 (1989). Respect for the law, even for laws with which a person disagrees or with which compliance is inconvenient, is an essential ingredient of value to the family, village, and community. With respect to fitness to hold a matai title, obedience to the laws enacted by the Fono to govern matai titles is particularly important.
If another candidate had presented himself to the Court, and if that candidate had not violated the law by holding himself out as Muagututi‘a before the case was resolved, we would find for that candidate on the criterion of value to the family, village, and country. In the present case we find only that Tupusemanuia has failed to prove his case on this criterion.
Tupusemanuia has, however, proved his fitness to hold the Muagututi‘a title with respect to three of the four statutory criteria. No other candidate has proved his fitness with respect to any of the four criteria. We therefore find that Tupusemanuia is the candidate best qualified to hold the Muagututi'a title, and judgment will issue accordingly.
Finally, we note that it is most unusual to proceed to judgment in a matai case when one of the parties is not present. In this case the record reflected that Malele knew about the trial date, since he was present in Court when the date was set. The Court was also informed by Tupusemanuia and by his counsel that Malele had agreed to withdraw his objection and that this was probably the reason he was not present in Court. We proceeded with the trial on the basis of these facts.
*70If Malele should wish to present evidence to the Court that his absence at trial was not for the reason stated by Tupusemanuia but for some other compelling reason, or if he should have any other objection to our decision, he has ten days to file a motion for reconsideration and/or new trial with the Clerk of the High Court. If no such motion is filed by 4:00 p.m. on Monday, March 19, 1990, Tupusemanuia will have the right to register the Muagututi‘a title.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485861/ | Factual Background
Plaintiff was injured on March 21, 1987. On March 21, 1988, he filed an action in the San Diego Federal District Court. On March 22, 1989, he filed an identical action in the High Court of American *80Samoa. In August 1989, the complaint in San Diego against the defendant Ralston Purina was dismissed with prejudice for failure to prosecute. Ralston Purina, then relying on the San Diego dismissal as res judicata to bar the plaintiffs suit in Samoa, successfully moved this Court on October 19, 1989, to dismiss plaintiffs complaint. On January 10, 1990, the Federal District Court amended its order of dismissal, adding the following final sentence: "This Order dismissing this action with prejudice is not meant to be a determination on the substantive merits of this action but, rather, merely an order barring any further amendment of this action in federal court."
Discussion
The Federal District Court relied on F.R.C.P. Rule 60(a), which allows the correction of errors and omissions in court orders. That court apparently modified its order after becoming aware that under F.R.C.P. Rule 41(b) a dismissal with prejudice for failure to prosecute is an adjudication on the merits unless the court "otherwise specifies". Because the court neglected to "otherwise specify," its earlier dismissal appeared facially to be an adjudication on the merits. The court remedied its oversight in its January 10, 1990, amendment. In the order pronouncing the amendment, the District Court Judge noted that when issuing the dismissal with prejudice, he "did not intend the dismissal to be a determination on the merits or to affect in any way a concurrent action that was proceeding in the state court of Samoa." The intent of the dismissal with prejudice was "to simply bar the plaintiff from any further amendment in federal court while not affecting the concurrent action in the Samoan court." The District Court thus made quite clear that the earlier order was not intended to be an adjudication on the merits and in the future could not be so construed.
In light of this amendment, plaintiff moves for relief from the order of dismissal in American Samoa. T.C.R.C.P. Rule 60 governs relief from orders. Subsection (b) provides a list of circumstances in which a court may relieve a party from an order, including in subparagraph 5 "a prior judgment upon which [the order] is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." Although T.C.R.C.P. Rule 60(b)(5) is arguably not applicable to this situation, which involves an amendment and not a reversal or vacation, the effect of the San Diego Court’s amended order has been the complete removal of the very premise on which this Court’s order was based. In light of the modified *81order, it hardly seems equitable or rational to give the original San Diego order prospective application; its amendment brings it within the spirit if not the letter of (b)(5). "If the judgment in the first case is reversed and the basis for the judgment in the second case is thus removed, then the appellate court should also reverse the second judgment." 7 Moore’s Federal Practice ¶ 60.26[3] (2d ed. 1985). The Supreme Court followed this rule in Butler v. Eaton, 141 U.S. 240 (1891). In that case, the Massachusetts Supreme Court decided in favor of the defendant. The federal court based a subsequent decision on the Massachusetts judgment. The United States Supreme Court overruled the Massachusetts judgment and then overruled the later federal judgment as well since its legs had been cut out from under it. While this case did not address the exact factual situation at bar, the principle is the same.
As additional grpunds justifying relief from a judgment, T.C.R.C.P. Rule 60(b)(6) contains the catch-all provision specifying "any other reason justifying relief from the operation of the judgment." The very unusual circumstances before us seem to meet this test.
The defendant contends that 60(b) is applicable only in exceptional or even extraordinary circumstances. Without addressing the applicability of this standard to T.C.R.C.P. Rule 60(b), we note that the facts of this case rise to this standard. Plaintiff thus qualifies for relief under either T.C.R.C.P. Rules 60(b)(5) or 60(b)(6). Eveh if relief is not appropriate under (b)(5), it certainly comes within the ambit of (b)(6), the catch-all provision, simply because it would be patently unfair to deny the plaintiff an opportunity to litigate his claim solely because the San Diego Court neglected to include one sentence in its August 1989 order of dismissal, which it then later rectified. To deny plaintiff the relief he seeks here would create extreme hardship, as it would be tantamount to summarily denying him any access at all to the courts. On the other hand, we see no genuine hardship to Ralston Purina by allowing plaintiff to proceed on his claim. This defendant’s allusions to being put to defend an unmeritorious law suit begs the very question requiring judicial determination.
Additionally, it is of note that the original San Diego dismissal no longer qualifies as res judicata. Res judicata requires "an existing final judgment rendered upon the merits...." 46 Am. Jur. 2d Judgments § 394 at 558 (1969). Since the dismissal in San Diego has now been explained as not being a dismissal going to the merits, there is no basis for our order previously grounded on the doctrine of res judicata. To *82deny the plaintiff his day in court because the action in American Samoa happened to be dismissed before the District Court Judge noticed and modified his error would not only be unjust but offensive to common sense. Our order of dismissal heretofore entered October 19, 1989, is vacated.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485862/ | This petition for relinquishment of parental rights is brought in anticipation of an adoption by a couple who are 75 and 60 years old respectively. The natural parents are 36 years old, married to each other, and able-bodied. The natural father is gainfully employed. The child lived with his natural parents until about two years ago, when the *83prospective adopting father asked the natural father to "give him a child because he doesn’t have anyone to do the chores." For the last two years the child has lived in the prospective adopting parents’ household, in which the natural father also stays most of the time so as to be near his place of employment.
The prospective adopting parents appear to be fine people, and they appear to have developed genuine affection for the child. He can go on living with them as long as it is his wish and that of his natural parents.
A legal termination of the natural parents’ rights and obligations, however, is appropriate only when it would serve the best interests of the child. In the absence of extraordinary circumstances the child’s best interests are not served by terminating the legal obligations of young able-bodied parents to support him. No such circumstances are present here.
The petition is therefore denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485863/ | This controversy began in 1976 when the then-holder of the Tauala title, Tauala Tulaga, announced that he was relinquishing the title in favor of his son Luavasa, who was then about 35 years old. Although such designation by a living matai of his successor (known as fa'aui le ula) has its place in the customs of Samoa, it has always been understood that the whole family has the right to decide whether to accept the designee or to choose someone else.
At least some family members believed that Luavasa was not the right choice and that the family had not been given a fair chance to decide. Prominent among these was Laeli Tauala, who believed he himself ought to be the next titleholder. He filed a petition in the High Court alleging that some of the customary formalities incident to accession to a matai title had already been done and that the crucial last step in the process, the fale‘ula, would take place shortly.
With the holding of the fale'ula, as the petition pointed out, Luavasa would "become the holder of the above mentioned title in the eyes of the family, the village and the whole Samoa," whether or not he had really been selected by consensus of the family. Laeli therefore requested a temporary restraining order enjoining Luavasa and those in *85concert with him from holding the fale‘ula until the title had been duly registered and any objections resolved.
The High Court granted the restraining order, but the fale'ula was held anyway. Then-Chief Justice Jochimsen held a hearing and concluded that"[defendant Luavasa Tauala did disobey the order of this court." The Court therefore ordered Luavasa to refrain from holding himself out as Tauala "or to take any advantages that may flow from being the title holder, nor suggest to anyone, for any reason that the defendant is the title holder pending final disposition of this case . . . ." The order added that if Luavasa disobeyed he would be in contempt of Court. It was signed by the Chief Justice on December 30, 1976.
The case was subsequently referred to the Office of Samoan Affairs for arbitration. Apparently any such efforts were unsuccessful, for about two years later, on March 9, 1979, Laeli offered the Tauala title for registration. There were three objectors: Luavasa Tauala, Ta‘avasa Falesigago Tauala, and Logona Tigilau. Meanwhile, however, it appears that Luavasa was using the title and exercising all the functions of Tauala within the family and village.
On or about September 7, 1983, the then-Deputy Secretary of Samoan Affairs wrote a letter to the Territorial Registrar stating that the Tauala case "has been resolved among the parties themselves" and that ”[t]he family has agreed that ‘LUAVASA TAUALA’ shall hold the title of ‘TAUALA. ’" He added that "all parties affected are advised to . . . finalize their withdrawals." None of the objectors actually filed a withdrawal at that time, however, and Ta‘avasa strenuously denies that any such agreement ever took place. Luavasa testified that the alleged resolution occurred not as a result of arbitration at the Office of Samoan Affairs, but at a family funeral. He says that after the funeral the family discussed the title dispute, and that everyone was in favor of him (Luavasa) except Ta‘avasa, who finally said that he would do whatever the family wanted. It appears that Luavasa interpreted this as a withdrawal of Ta‘avasa’s claim and that he or someone else told Samoan Affairs that the case had been resolved. Luavasa must have known there was no final resolution, however, for although he went on using the title he made no attempt to get it registered in his own name.
On October 8, 1984, Laeli did write a letter to the Territorial Registrar withdrawing his claim and stating that it was the will of the family that Luavasa should have the title. (Although the original of this *86letter does not appear in the file sent to us by the Registrar, counsel for Luavasa has submitted a copy which appears to be genuine.)
Nothing further happened in the case until December 20, 1988, when the file was unearthed by the Deputy Territorial Registrar. This official noted that according to her "research," two of the objections had not been withdrawn and that the case should have been forwarded to the Court for resolution. (Counsel for Luavasa suggested that the case might have been resuscitated at the behest of someone who was unhappy with Luavasa for opposing the re-selection of Lefiti Fa‘afetai, a family member who is one of the principal chiefs on the island of Ta‘u, to his position as a Senator from Manu‘a. This does appear to be a plausible explanation for the Deputy Registrar’s sudden decision to conduct "research" into the case. Whatever her motivation, however, it is clear that Ta'avasa had not withdrawn his objection and that either party has the right to have the case heard by the Court.) On December 23 the Registrar sent the file to the Court.
On the same day, December 23, 1988, Lefiti Fa’afetai brought an action "for himself and on behalf of members of the TAUALA family," seeking an injunction to prohibit Luavasa from holding himself out as Tauala. Lefiti’s petition attached a copy of the 1976 injunction.
On January 6, 1989, a hearing was held on Lefiti’s petition. Chief Justice Kruse and three Associate Judges found that "the matai title Tauala is vacant, and defendant is holding himself out as the title holder and using the said title." Luavasa was therefore enjoined from using the title Tauala, holding himself out as Tauala, or asserting any authority or doing anything which Tauala would do within and outside of the village of Ta‘u, pending final resolution of the title case.
In June 1989 objector Ta’avasa moved to set the Tauala case for trial. The trial was set for December 4, 1989.
In September Ta’avasa moved that Luavasa be held in contempt of Court for continuing to hold himself out as Tauala in violation of the preliminary injunction. On October 17, 1989, a hearing was held on this motion. The Court did find that Luavasa had wilfully violated the injunction. He was sentenced to serve five weekends in the Correctional Facility.
The trial of the matai title case was postponed twice (both times at the request of Luavasa) and was finally held on March 15, 1988. *87Witnesses for Luavasa were Lieutenant Governor Galea‘i Poumele, Tigilau Logona (who has now withdrawn his candidacy in favor of Luavasa), Lautua'a Fulipopo, and Luavasa himself. Witnesses for Ta'avasa were Lefiti Fa‘afetai, Vivao Taliese, Fa‘agau Lefiti, and Ta'avasa. Ta‘avasa also offered into evidence the transcript of a deposition given by Laeli, who was absent from the island on the rescheduled trial date.
The law governing matai titles specifies four criteria on which the Court must make findings in every action for the registration of a matai title. These are (1) the best hereditary right to the title; (2) the "wish of the majority or plurality of those clans of the family as customary in that family"; (3) forcefulness, character, personality, and knowledge of Samoan custom; and (4) value to the family, village, and country. A.S.C.A. § 1.0409.1
I. Best Hereditary Right
With respect to the first criterion we find both candidates equally qualified. Each is the son of a former Tauala title holder.
II. Family Support
With respect to the second criterion the Associate Judges are divided. There appear to be three clans in the family, and each candidate appears to enjoy some support from members of each. Two judges would hold that no candidate enjoys the support of the majority or plurality of the clans, since no clan is united in favor of a single candidate. The other two judges would interpret the "majority or plurality of the clans" provision, in light of the Samoan traditions upon which it is based, to mean that a clan should be counted in support of a *88candidate if that candidate clearly has more support within a clan than any other candidate.
Even on the assumption that the latter interpretation is correct, however, the evidence of clan support is mixed. At two family meetings, one held in April 1989 and the other about two weeks before the trial in March 1990, the clear majority of the speeches were in favor of Luavasa. His supporters included prominent representatives of all clans. On the other hand, Ta‘avasa contends that the meetings were called by supporters of Luavasa and that many of his supporters were not invited. At trial Ta‘avasa presented prominent members of all three clans as witnesses on his behalf; so did Luavasa.
Similarly, each candidate has submitted lists of what purport to be the signatures of family members supporting him for the title. Luavasa’s petitions contain about 500 names, Ta‘avasa’s only about 100. Most of Luavasa’s signatures, however, do not appear to be genuine. Some people signed more than once, and almost every page contains groups of five or ten names written in the same handwriting. Ta’avasa’s petition also contains some instances in which one person appears to have written several "signatures," but a far higher percentage of his signatures appear to be genuine. (Luavasa examined the Ta‘avasa petition and admitted that the signatures appeared to be those of blood members of the family, but complained that some of the names were also on his own petitions.) Nor does the evidence show to which of the clans the various signatories belong or how the numbers of signatures compare to the total number of members in any clan.
The difficulty of assessing family or clan support is compounded by the fact that Samoan families traditionally make decisions not by pure majoritarian democracy but by consensus. We cannot merely count names or speeches, but must attempt to gauge the breadth and depth of support for each candidate within the family and its clans.
In this case there is an added complication. Within any Samoan family’s decision making process it is traditional to show great deference to the opinions of ranking family members, and particularly to the senior matai. It is therefore not clear how many of those who expressed support for Luavasa did so not because they believe he is or will be a good Tauala but because, having undergone a saofa’i and a fale’ula, he is the Tauala "in the eyes of the family, the village and the whole Samoa," and they therefore regard themselves as bound to support him. Since Luavasa seized this tremendous strategic advantage in defiance of *89numerous statutes and court orders — by holding a fale’ula and exercising the functions of Tauala while other candidates’ claims were still pending — it is practically impossible to make a fair and accurate comparison of his support with that of Ta’avasa.
In this connection it is noteworthy that Laeli, who at some time after 1979 assumed the title Tunupopo, now supports Ta’avasa rather than Luavasa. Tunupopo is the matua or elder statesman of the family, who would ordinarily have much of the responsibility for looking after family affairs in the absence of a senior matai. (Unfortunately, Tunupopo Laeli now spends most of his time in California. He says this is for medical reasons and is temporary. In any case, Laeli is recognized as Tunupopo by all factions within the family and has not been asked to vacate the title since he went to California.) Laeli says that not only he but also "many people in the family . . . supports and would like for Foutu’ua [Ta’avasa] to succeed and to take over the title in the family." We cannot ignore this assessment by the matua of the family.
On the other hand, a finding that Ta’avasa enjoys majority or plurality support would be at odds with the evidence that a large number of family members from all clans do regard Luavasa as the Tauala and support him as such. It also appears that at least some family members, including members of high rank such as Lieutenant Governor Galea’i, strongly support Luavasa on his own merits and not just because of his formal investiture with the title. Other prominent members of the family, including not only Laeli but also former Senator Lefiti, are equally strong in opposition to Luavasa.
On balance we conclude that neither candidate has proven a better right than the other on the issue of clan support.
III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom
With regard to forceiulness, character, personality, and knowledge of Samoan custom, the picture is also quite hazy. Luavasa is clearly the more forceful and dynamic of the two candidates. He might also have demonstrated the superior knowledge of Sámoan custom had he not been cursory and evasive in many of his answers to questions (both in his testimony and on his candidate questionnaire) about custom within the family and village. On the record as it stands, both candidates demonstrated an adequate knowledge of Samoan custom. Luavasa’s personality is characterized by charm, intelligence, sophistication, and *90oratorical skill in both Samoan and English. Ta‘avasa is a quiet and humble man.
Unfortunately, however, the evidence casts serious doubt on Luavasa’s character. Certain matters raised by opposing counsel on cross-examination raise questions about this candidate’s respect for the law, about his willingness to tolerate people who disagree with Mm, and about his honesty. These matters include at least two and probably three convictions by military courts martial. There is also Luavasa’s role as a principal participant in the illegal installation im 1986 of a person other than the lawful holder of the Sotoa title as Sotoa within the village of Ta‘u. Luavasa’s testimony on these incidents was deeply troubling not only because of the substance of the incidents themselves but also because of the way Luavasa reacted when asked about them.
Perhaps most disturbing was Luavasa’s testimony with regard to the convictions by military tribunals:
Q. BY MR. TOGIOLA: You mentioned in your direct testimony that you spent eight years in the mainland and spent some time in the United States. One of the criteria here, sir, is your value or your character. When you were in the United States, were you ever convicted of any crime?
A. [BY LUAVASA TAUALA:] I had traffic ticket citations.
Q. I only asked of any crimes. How about the time when you were in the service? Were you ever convicted by a special court martial or some other judicial authority in the military?
A. No.
Q. Do you remember on April 24, 1968, while you were in the military service stationed in San Diego whether or not you were convicted by a special court martial for violation of the Uniform Code of Military Justice Article 86?
A. There was but it was a summary court martial.
*91Q. Wasn’t that — wasn’t that October 24 of 1967 that you were found guilty by a summary court martial?
A. I do not know the exact date, but it was 1968.
Q. Well, do you deny that you were convicted by summary court martial on October 24, 1967?
A. I do not recall. I do not remember except the summary court martial in 1968.
Q. Do you remember the offense you were charged with in that summary court martial?
A. I guess it was lateness to work without leave.
Q. You don’t remember being convicted in 1967 of making a — filing a false report, false statement with intent to deceive in violation of Uniform Code of Military Justice Article 7?
A. I do not remember.
Q. Do you remember being in court martial in 1972 just before you left service on February 18?
A. Yes. I remember maybe it was ‘71 or ‘72.
Q. So your answer to my first question then that you were never convicted of any offenses in the military is wrong?
A. I do not remember.
Asked later by his own counsel to explain the two convictions to which he had admitted, Luayasa said only (1) that it all happened because he had to stay home with his children because they were sick and (2) that a doctor and a minister had testified for him. It is most unlikely that this is the whole explanation for even one of the courts martial, muóh less for the two to which he eventually admitted or the third which he does not deny but "does not remember." Despite repeated questioning the court never even found out for sure what the charges were. Luavasa seemed determined not to admit anything that the Court or opposing *92counsel did not already know. Indeed, it is hard to explain his initial denials that he had ever been convicted as anything but outright lies under oath.
With respect to the Sotoa incident, Luavasa testified that under Samoan custom he had no choice but to recognize the person who had been installed according to the traditional formalities. (The Sotoa case was almost identical to the illegal Tauala installation in 1976, with the added dimension that the saofafi and fale‘ula in that case were on behalf of a candidate who had already sought the title in Court and lost to someone else.) The Court pointed out to Luavasa that during the court hearings resulting from the Sotoa incident, the illegal Sotoa claimant had testified that these formalities would never have been held but for an ultimatum from the village council. (The testimony was that the village council had given the family three weeks to come up with a new Sotoa or have the title excluded from the village.) Luavasa’s response to this question — as to other questions about his role in the exclusion of various chiefs from the village council and other conflicts within the village — was that there are many members of the village council. Why do people always assume, he asked, that Luavasa is the ringleader?
In the Sotoa trial his testimony was quite different. There, in support of the illegal claimant’s position that he had violated a Court order only because the village council had ordered him to do so, Luavasa testified that "I, myself was the spokesperson" who had proposed the ultimatum to the Sotoa family. Transcript of Proceedings held 8/19/86, Sotoa v. Sotoa, AP No. 20-86, pp. 68-69.
These were not the only false or devious answers given by Luavasa. Indeed, some of these falsehoods or evasions were totally pointless, since a truthful answer would have done Luavasa little or no harm. On his candidate questionnaire, asked to list all the holders of the Tauala title, he listed only his own father. At trial he testified concerning numerous other title holders. Asked to explain the inconsistency, he said his father was the only Tauala he had ever seen and he had not wanted to testify about things he did not see. (In fact it appears that he did not much care what he wrote down on his questionnaire. His original answer to two of the most important questions was that he would answer when he got to Court. The whole point to the questionnaire, of course, is to let the parties and judges know each party’s answers well before they get to Court.) His testimony at the contempt hearing in October was characterized by similarly far-fetched and self-serving rationalizations.
*93For all this, we do not believe that Luavasa is an altogether bad person or that he could never serve well as a matai. He is not only highly intelligent but also competent and industrious. At most times during his testimony he displayed a most pleasing disposition.
Nevertheless, the incidents we have discussed and his explanations of them reflect a deeply disturbing pattern: repeated disobedience to lawfully constituted authority; subsequent attempts to evade the consequences of his actions, often by saying he was only a humble servant doing the will of others; a certain arrogance and ruthlessness when challenged. And it seems the truth is just not in him.
Ta‘avasa, while not as dynamic as Luavasa, is not without talents and accomplishments. He served for many years as a schoolteacher and in various government positions, including a term in. the Fono. He has long been active in family affairs, and was also active in village affairs before being expelled from the village council after a dispute with Luavasa. He is, in the words of Laeli, "peaceful and he speaks honestly."
The one negative piece of evidence about Ta‘avasa is that for sixteen years or so he has been using an unregistered matai title, Foutu‘ua. As a former legislator he should be aware of A.S.C.A. § 1.0414, which makes it a crime for anyone to use a matai title without first having registered it according to law. There is no evidence, however, that his failure to offer the title for registration was part of a scheme to defeat the rights of other claimants or for any other reason than carelessness.
On the criterion of forcefulness, character, personality, and knowledge of Samoan custom, therefore, we find that Ta‘avasa prevails.
IV. Value to the Family, Village, and Country
As always, our analysis of the criterion of value to family, village, and country is informed by many of the factors that have gone into our findings on the first three criteria. The relative value of the two present candidates to the family, village, and country would depend heavily on circumstances. If the family, village, or country needed someone to lead them in battle, it would almost certainly want Luavasa; if the need were for a trustworthy administrator and a neighbor with whom to live in harmony, Ta‘avasa would be better.
*94The need at present is for a man of peace. The evidence establishes that the family and village are deeply divided and that Luavasa has been part of the problem. The likely result if Luavasa were selected would be more settling of old scores and the further alienation of potentially useful members of the family and village, all in the name of the finagalo or general will.
There is also a risk posed by a selection of Ta'avasa: the risk of a protracted conflict such as has characterized the Sotoa controversy, in which the matai lawfully selected in accordance with A.S.C.A. § 1.0409 is a different person than the one who has undergone the saofa‘i and fale‘ula. Since, however, this risk was occasioned by the acts of Luavasa, and since Luavasa and his supporters have it entirely within their power to avert such a conflict, it would be unjust to count it against Ta‘avasa.
Finally, we note that Ta‘avasa is ten years older than Luavasa, a factor traditionally taken into account in assessing a candidate’s value to the family, village, and country.
Accordingly, we find for Ta'avasa on this criterion.
V. Conclusion
For the reasons stated, we find that neither candidate prevails on the first or second criterion and that Ta'avasa prevails on the third and fourth criteria. Ta’avasa F. Falesigago Tauala has therefore shown a superior right to hold the title Tauala.
This is not to say that Luavasa has nothing to offer to his family and to Samoa. At the trial he promised to accept Ta’avasa as Tauala if the Court should so decide. By giving such acceptance generously and without reservation and thereby helping to effect a reconciliation within the family, Luavasa would provide powerful evidence that he has learned well from past mistakes. If he should also reconcile with his past adversaries within the village and get through a year or two without violating any court orders, it seems extremely likely that a man of Luavasa’s intelligence and diligence will be given other important opportunities to serve.
Judgment will issue ordering the registration of the name "Tauala" in the name of Ta’avasa Falesigago F. Tauala.
*95It is so ordered.
This case also involves the application of A.S.C.A. § 3.0241(b). That section provides that in the event of a difference of opinion among the Associate Judges in a matai case, the presiding justice shall abstain and the opinion of a majority of the Associate Judges shall prevail. Only in the event of a tie among the Associate Judges does the presiding Justice cast a vote.
In the present case the four Associate Judges, after extensive deliberations, were evenly divided with two votes for Luavasa and two for Ta'avasa. The presiding Justice then,proposed to send the matter back to the family for further deliberations. This proposal was defeated by a vote of 1 to 4, with all four Associate Judges voting in the negative. The presiding Justice then cast his vote as required by A.S.C.A. § 3.0241(b). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485922/ | On Application for Preliminary Injunction:
The applicants for a preliminary injunction are members of the Asuega family who also hold themselves out as representing the Asuega family. They seek an order to enjoin the senior matai, Asuega F. Lauvai, from continuing with the construction of a FEMA1 home on a certain piece of communal land which this Court had once before determined in Pine v. Ieremia, LT NO. 62-76 (1977) as the traditional site for the matai’s sleeping quarters (fale tofa). In so holding, the Court there rejected the claim that site could devolve to the use of the immediate kin of the previous matai. Rather, the site was reserved for the use of the family’s incumbent matai and not for the personal use of any one particular member or branch of the family.
On the other hand, the evidence here suggested nothing more than outright disagreement with the matai’s actions simply because other members of the family had also made known their contrary desires to utilize the site individually. Plaintiffs are, therefore, advocating the claim that only the family2 as a whole can determine what may be done with the site.
Conclusion
The applicants have sorely failed to establish "sufficient grounds" for the issuance of a preliminary injunction in accordance with the requirements of A.S.C.A. § 43.1301(j).3 In terms of merit, there *6was simply nothing in the evidence suggesting cause to interfere with the matai’s decision-making. We accept her testimony that she had undertaken construction as the Sa’o of the family on behalf of the family, and not for herself as an individual nor on behalf of her immediate side of the family. Indeed, her actions appear to be perfectly consistent with the Court’s conclusions regarding the use of the site in Pine v. Ieremia, supra. With regard to the issue of great or irreparable harm to applicants, we find none.
The application for a preliminary injunction is denied.
It is so Ordered.
The federal agency managing a federal disaster relief program for victims of Hurricane Ofa, which struck the territory in February 1990.
However that term might be defined — for instance, would the term "family" be limited to that inner circle of the family which Asuega alluded to on the stand as actively rendering service or tautua? See Fairholt v. Aulava, 1 A.S.R.2d 73 (1983).
This enactment requires the Court to consider: (1) whether there is substantial likelihood that the applicant will prevail at trial on the merits; and, (2) whether great or irreparable harm will result to the applicant before a full and final trial can be fairly held. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485923/ | On Motion to Dismiss:
Plaintiff has filed suit alleging a breach of a family trust by the defendant trustees. The trust was settled by plaintiff and her late husband. The defendants move to dismiss plaintiff’s complaint, without prejudice, for failure to state a claim for which relief may be granted, and/or alternatively direct the parties to proceed with defendants’ petition filed in "Probate Court" which has been docketed as In Re Beaver Family Trust, PR NO. 19-90.
That aspect of the motion based on Trial Court Rules of Civil Procedure, Rule 12(b)(6), rests on the argument that plaintiff is essentially bringing a shareholder’s derivative action and that her complaint has failed to comply with the special pleading requirements of Trial Court Rules of Civil Procedure, Rule 23.1.
Alternatively, dismissal is sought on the contention that plaintiff is estopped from filing an action, as she has done so here, because of a provision in the trust instrument which provides for the referral of any dispute regarding interpretation of the trust to the "Probate Court for instructions." Further, the defendants urge that it would be more economical and expedient to submit the singular issue — whether plaintiff has anything more in the trust than a beneficial interest— to the Probate Court for determination rather than exposing the trust to a far-ranging trial necessarily proposed by plaintiffs lawsuit. In other words, the defendants suggests that plaintiffs lawsuit should be suspended on a wait-and-see basis pending the Court’s prior determination of defendants’ "Petition [to the Probate Court] for Advice and Instructions." The thinking appears to be that the Probate Court’s determination of the above-stated issue would also be dispositive of any and all remaining disputes between the parties.
*8
Discussion
In determining a motion to dismiss for failure to state a claim, the complaint is to be liberally construed and viewed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974). At this stage with the pleadings, we cannot agree with the defendants’ characterization of plaintiffs suit as being a shareholder’s derivative action. The causes alleged in the complaint are hardly derivative but personal, and Trial Court Rules of Civil Procedure Rule 23.1 applies only where the action is a derivative action by a shareholder suing on behalf of the legal entity which is a corporation. 3B J. Moore & J. Kennedy, Moore’s Federal Practice ¶ 23.1.16 (2nd ed. 1985). The rule is not applicable to the situation where plaintiff is asserting a private injury for which personal redress is being sought. See Simcox v. San Juan Shipyard, Inc., 754 F.2d 430 (1st Cir. 1985). Plaintiff is here suing for herself. She is not seeking redress on behalf of the corporation; indeed, she is attempting to seek redress from the corporation by way of a claim for shares and insurance proceeds.
As to the alternative grounds for the motion to dismiss, we are not persuaded by the estoppel argument advanced by defendants as somehow establishing a contingent bar to, or an immunity from, suit. As noted above, the bottom line of the motion looks very much like a request to postpone plaintiffs lawsuit until the Court first rules on the defendants’ legal theories concerning the parties’ differences. This novel and piecemeal approach to sorting out and defining the issues between litigants is without merit or foundation.
For reasons given, the motion is denied. It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486483/ | Opinion and Order:
On January 9, 1997, plaintiff Leasau L.K. Eseroma ("Lesasau") brought this action for a declaration that he is the duly elected Senator from Ta'u County and an injunction enjoining defendants Paopao Faresa ("Paopao"), Lutu Fuimaono ("Fuimaono"), and Lefiti Fa'afetai ("Lefiti") from allowing Lefiti to serve as the Senator from Ta'u County. On February 11, 1997, this court, pursuant to T.C.R.C.P. 65(a)(2), consolidated the hearing on Leasau’s application for a temporary injunction with the trial on the merits. The trial began on February. 12 and was completed on February 18,1997.
FINDINGS OF FACT
Ta'u County is locatéd on the Island of Ta'u, American Samoa. The County encompasses the Village of Ta'u, which in turn includes the Villages of Luma and Si'ufaga and the Settlement of Amouli. Fitiuta *171County and Village and Faleasao County and Village are also located on Ta‘u Island.
Leasau and Lefiti are matai or "titled chiefs" from Ta‘u County and Village. On December 7, 1996, some but not all of the matai from Ta’u County and Village met in Ta'u Village to discuss the election of a senator from Ta’u County to the next Senate of the Legislature of American Samoa for the four-year term from 1997 to 2000. Ta'u County Chief Nua To’atolu (“Nua”) called the meeting. Lefiti and other high-ranking matai from Ta’u County and Village were not notified of the meeting, because Nua believed that the Ta’u County Council had “ousted” or “ostracized” these matai. Those matai invited to the December 7 meeting discussed at length the matter of the Senate election and ultimately agreed to support Leasau's candidacy.
On December 14, 1996, the County Councils of Fitiuta, Faleasao and Ta’u Counties met in Fitiuta to discuss the election of senators to represent the three counties. The Fitiuta to'oto'o or "Manu'a orators" presided at this meeting. Present were Ta’u County and Village matai who had voiced support for Leasau at the December 7 meeting, as well as Lefiti and other allegedly “ousted” Ta’u County and Village matai. At one juncture, a matai in attendance suggested that Lefiti should hold one of Senate seats. Nua objected, claiming that the “true” Ta’u County Council had selected Leasau at the December 7 meeting, and that Leasau must therefore be elected to the Senate seat traditionally reserved for Ta’u County. However, those present at the December 14 meeting continued to “share ideas” regarding the election of Senators. Toward the end of the meeting, to ‘oto ‘o Laapui from Fitiuta Village and County announced his perception that the three counties had decided to send Lefiti and Moaali'itele Tu'ufuli, a matai from Fitiuta County and Village, to the Senate. Nua, Leasau, and their supporters then left the meeting in protest over Lefiti's election. The remaining .council members discussed the matter further for a short period of time, and then Laapui reiterated his statement that the three counties favored Lefiti and Moali'itele as their Senators. Paopao, as the Fitiuta County Chief, was directed to certify to the Senate that Lefiti and Moali'itele had been elected by the three counties of Ta’u island. He was the only county chief who was present throughout the meeting.1
When Leasau later learned that Lefiti was preparing to take the Senate seat, Nua lodged objections with the Secretary of Samoan Affairs. Later, Leasau protested to Lutu, as the President of the Senate, and the members *172of the Senate, with Nua and the Faleasao County Chief declaring Leasau’s election as the Senator from Ta‘u County. Lutu, however, accepted Lefiti’s certification and placed Lefiti's name on the Senate roll.
On the opening day of the Senate, Leasau arrived to take the Senate seat that he believed he possessed, but the Senate did not allow him to assume the seat that Lefiti occupied. This action followed.
DISCUSSION
Article II, § 4 of the Revised Constitution of American Samoa (“Revised Constitution”) prescribes the manner in which individuals are to be elected to the Senate of the Legislature of American Samoa. This section puvides that “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: Fitiuta, Faleasao, and Ta’u, two senators;. . .” Though Article II, Section 22 of the Revised Constitution grants the Senate exclusive authority to determine the results of an election, this court has jurisdiction to determine whether an election occurred according to constitutional requirements. See Meredith v. Mola, 4 A.S.R. 773, 780 (Trial Div. 1973). Thus, we examine the narrow questions of (1) whether an election of senators was held on December 14, 1996, “by the county councils of the counties they are to represent,” and (2) “in accordance with Samoan custom.”
First, the Revised Constitution states that two senators shall represent the counties of Fitiuta, Faleasao, and Ta’u. The Revised Constitution does not allocate one senator to Ta’u County and another senator to Fitiuta and Faleasao Counties. Thus, for anyone from the Island of Ta’u to have a rightful claim to a Senate seat, the individual must be able to show that the Fitiuta, Faleasao and Ta\ County Councils — the three “county councils of the counties [the individual is] to represent”-had an opportunity to participate meaningfully in the election process. See Mauga v. Lutu, 10 A.S.R.2d 115, 120 (Trial Div. 1989), (rejecting the proposition that an electoral body can delegate election of a Senator to a sub-division); Meredith, 4 A.S.R. 773, 783 (Trial Div. 1973) (requiring that matai from all villages participate in the election of a senator by the larger electoral body). In the present case, the county councils of Fitiuta, Faleasao and Ta'u Counties met on only one occasion — on December 14, 1996, in Fitiuta, and reached a decision on the next senators to represent the three counties.2
*173Second, while the Revised Constitution does not specify those Samoan customs that govern the election of Senators, and the courts have been reticent to outline a single constitutionally permissible method for electing Senators, this Court has provided some guidelines for distinguishing methods that are consistent with Samoan custom from those methods that are inconsistent with Samoan custom. Permissible methods of electing Senators include, but are not limited to “voice vote, written ballot, computation of number of speakers for each candidate, and consensual agreement.” Meredith, 4 A.S.R. at 781. Impermissible methods of electing Senators include, but are not limited to appointment of the Senator by one powerful matai, id., and delegation of the decision to a subdivision of the deliberative body constitutionally assigned the responsibility of electing senators. Mauga, 10 A.S.R.2d at 120.
The preponderance of evidence at the trial indicated that at the December 14 meeting, many matai voiced their thoughts and opinions on the issue of who should represent the three counties in the Senate. Both parties agree that extensive “sharing of ideas” is a crucial component of the fa ’a Samoa. Furthermore, the evidence indicated that to' oto'o Laapui gleaned from the myriad of speeches the prevailing mood of the assembly, so that when he announced that the three counties had chosen Lefiti to be one of the Senators, he was expressing the collective will of the electoral body, not “inject[ing] his own selection as senator.” Meredith, 4 A.S.R. at 781. The fact that certain matai from Ta’u County left the meeting after registering an objection does not alter the court’s conclusion, for a decision “in accordance with Samoan custom” need not receive unanimous support.3
Therefore, we reject Leasau’s claims that the election on December 14 was unconstitutional, and instead conclude that the election resulted *174from a decision of the three county councils of Fitiuta, Faleasao and Ta’u Counties on the next senators to represent the three counties that was reached “in accordance with Samoan custom.” We further hold that Paopao, as the Fitiuta County Chief, simply carried out his ministerial duty of certifying the results of that election. Art. II, § 4 Rev. Const. Only the Senate, however, can judge the results of the election. Art. II, § 22 Rev. Const.; Meredith, 4 A.S.R. at 780.
In contrast, Leasau’s claim of .entitlement to a Senate seat relies on the proposition that the Ta’u County Council has a “customary” right to meet independent of the Fitiuta and Faleasao County Councils and to elect a senator to represent all three counties. First, we find as a factual matter that the Fitiuta and Faleasao County Councils never expressly or impliedly agreed to allocate indefinitely to the Ta’u County Council the authority to select one of the two senators from the Island of Ta’u. Moreover, the history of success of candidates from Ta’u County does not translate into a “Samoan custom” permitting Ta’u County to elect one of the two senators without discussing the matter with the County Councils of Fitiuta and Faleasao Counties. Even if the three counties of Ta’u Island had established and maintained a local practice that enabled the Ta’u County Council to elect its own senator, such a practice would be unconstitutional. In Mauga, the court held that
the contention . . . 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.
Id. at 117. We will not make a “mockery of the Constitution,” id., by suggesting that the Ta’u County Council alone can elect a senator to represent three counties, when the Revised Constitution says that senators shall be elected by the “counties they are to represent.” Leasau’s claim to the Senate seat is, therefore, without merit.
CONCLUSION AND ORDER
After careful review of the text of the Revised Constitution of American Samoa, relevant case law, and the evidence presented at trial, we declare that on December 14, 1996, the County Councils of Fitiuta County, Faleasao County, and Ta’u County held an election of the two senators to *175represent the three counties in accordance with Article II, § 4 of the Revised Constitution. We further declare that Paopao properly certified the results of that election. The Senate, however, is the exclusive and final judge of the results of that election.
Leasau’s prayer for declaratory and injunctive relief is denied.
It is so ordered.
The Faleasao County Chief did not attend the meeting. Nua left the meeting before it concluded.
Since both of the Ta’u county council factions had an opportunity to participate meaningfully in the December 14 meeting, we need not determine the membership of the “true” Ta’u County Council. *173Nevertheless, we feel compelled to note that the deep rift between the respective camps of matai is a profound tragedy, and a sad commentary on the current state of the fa’a Samoa in the greater Village of Ta‘u. We concur in the opinion expressed in Meredith, that Senate election disputes generally should “be settled by the county councils according to the prevailing custom without litigation” and that “[wjhen the Court is compelled to intervene, . . . county harmony is dashed and further disunity fueled.” 4 A.S.R. at 783.
In support of our assertion that Samoan custom does not demand universal approval, we note that in Meredith, the court authorized election by “voice vote, written ballot, [and] computation of number of speakers for each candidate” — methods of decision making that require the support of more than one but less than all. 4 A.S.R. at 781. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486484/ | Opinion and Order:
*176Introduction
On January 9, 1997, plaintiff Ivi S. Mulitauaopele ("Pele") filed a complaint against defendants Mata'utia P. Tuiafono ("Mata‘utia"), Savea Taufao ("Savea"), Lutu Fuimaono, and the Senate of the American Samoa Legislature. In his complaint, Pele alleges that defendants collectively conspired to commit civil and criminal fraud, and that Savea had assumed via unconstitutional means one of Sua County’s two Senate seats in the American Samoa Legislature. He further claims that he, not Savea, is a duly elected Senator for Sua County.
On January 31, 1997, we entertained Pele’s motion for a preliminary injunction to enjoin Savea from serving as Senator, and heard testimony from both parties. Despite clear instructions from the court in its show cause order as to the subject matter for the preliminary injunction hearing, Pele failed to address the grounds for granting a preliminary injunction. We denied the motion for a preliminary injunction, and ordered a trial on the merits of his claims. That order expressly stated that evidence at trial should not be duplicative, as the court had, pursuant to T.C.R.C.P. 65(a)(2), incorporated testimony from the preliminary injunction hearing in the record for the trial on the merits. Notwithstanding, we primarily listened to cumulative testimony at the trial on the merits held February 28, 1997. Now that the court is satisfied that all parties have had more than ample opportunity to make their respective cases, we issue the following opinion and order:
Jurisdiction
Under the Revised Constitution of American Samoa ("Revised Constitution"), the High Court does not have jurisdiction to resolve disputes concerning the outcome of a Senate election conducted according to the law, nor does the Court possess the authority to determine which of many candidates is the most qualified to represent a county in the Senate, art. II, § 22. However, the Court's jurisdiction does extend to review the question of whether a county council followed proper election procedure when electing its Senator. See Mauga v. Lutu, 10 A.S.R.2d 115, 118 (Trial Div. 1989) (citing Meredith v. Mola, 4 A.S.R. 773, 776-77 (1973)); see also Leasau v. Paopao, CA No. 5-97 at 4-5 (Trial Div. Feb. 27, 1997). Therefore, the question of whether Sua County had elected its second Senator according to Article II, § 4 of the Revised Constitution, is an issue on which the High Court may properly rule.
*177Relevant Facts
Sua County, or Senate District No. 5, includes the eastern district villages of Afono, Faga‘itua, Lauli'i, Amaua, Masefau, Masausi, and Sailele. Pele is a matai from Lauli'i, while Savea is a matai from Amaua. On December 11, 1996, the Sua County Council convened to elect its two Senate representatives. At the meeting, the Council followed its relatively recent practice, established by the late Paramount Chief Leiato Tupua, of allocating one of the senate seats to the matai of Fagaitua, Lauli'i, and Amaua ("Sua 1"), and the other to the matai of Afono, Masefau, Sailele, and Masausi ("Sua 2"). In effect, this meant that the matai of Sua 1 would pick one Senator from among its ranks, while the matai of Sua 2 would pick the other. In accordance with this understanding, Mata'utia’s name was promptly presented before the entire County Council for Sua 2’s allotted senate seat.1
On the other hand, the County Council did not arrive at a final decision with respect to the second senator from Sua 1. The three nominees involved from Sua 1, namely Pele, Savea, and Paleafei, were each unrelenting in their respective positions taken; while Paleafei was prepared to yield in favor of Savea, neither Savea nor Pele was prepared to yield to the other. After considerable discussion, Pele requested the Council for an opportunity for the three candidates to privately discuss the issue. The request was granted and the issue withdrawn from the entire County Council’s consideration. As time went by, and without the apparent prospect of a resolution from the candidates on that day, the County Chief, Uto‘ofili Vaimauga ("Uto‘ofili"), adjourned the Council meeting and directed Pele, Savea, and Paleafei to continue to meet and decide among themselves who would take the county’s second Senate seat. Uto ‘ofili further instructed them to have a decision by the week’s end.
As it turned out, the three candidates failed to reach agreement. After four days, following the County Council’s meeting, Savea and Paleafei reported to Uto‘ofili and informed him that they were resolute in their position that Savea should assume the Senate seat. On the basis of their 2-1 majority reasoning, they persuaded Uto‘ofili that Savea was the rightful second Senator. Uto‘ofili thereupon notified the then Secretary of Samoan Affairs, Mata‘utia, who sent Savea’s name to Senate.
Following his unsuccessful efforts to win over Savea and Paleafei, Pele secured the backing of a number of Lauli'i matai who signed a letter of *178support, endorsing the Pele for the Senate. This letter, which was prepared by Pele, also contained a signature block for the County Chief, which, if signed, would purport to certify Pele’s election to the Senate. As it happened, this document was. also signed by Uto’ofili, who explained his inconsistent actions, testifying that he had only signed the Pele certification at the direction of Sala Samiu, the Deputy Secretary Samoan Affairs. The latter in turn sent over Pele’s name to the Senate as well. The Senate, however, acted on the certification from Mata‘utia and accepted Savea.
Neither Savea nor Uto‘ofili presented the results of the three candidates’ private meetings to the entire Sua County Council for its review and ratification. At the same time, the action taken by the Lauli’i matai, resulting in their letter of support for Pele, was never presented to the County Council for its consideration and any action it might deem appropriate.
Legal Analysis
The Revised Constitution states that ."Senators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent.. .." art. II, § 4. Although there is no rigid "rule as to exactly how a county council must decide upon the person it selects to be a Senator," Mauga v. Lutu, 10 A.S.R.2d at 119-20 (quoting Faiivae v. Mola, 4 A.S.R. 834, 836 (1975)), the customary decision-making process referenced in the Revised Constitution does not involve complete delegation of the decision "to a mere sub-division of the county." Id. at 120; see also Leasau v. Paopao, Leasau v. Paopao, CA No. 5-97 at 4-5 (Trial Div. Feb. 27, 1997). Thus, in the case at hand, any lawful claim of right to a Senate seat from Sua County must stem from a final decision of the entire Sua County Council.
The process by which Savea was purportedly elected is patently unconstitutional. In Mauga, the court rejected the attempt of three village councils from a ten-village county to select a Senator outside the presence of the other seven villages; accordingly, we can not accept the attempt of three individuals from a political subdivision of a multiparty county council to select a Senator outside the presence of the other county council members. Defendants argue that the present case is distinguishable from Mauga because the Sua County Council "pre-approved" the delegation. However, in Mauga, the court's ruling was quite clearly based on the premise that the entire Maoputasi county council had ex ante agreed to’ the division of labor among the villages. Id. at 119 (describing the Maoputasi County delegation procedures as "recurring[]"). Thus, the fact that a county council pre-approves the results of a delegation does not make the delegation of decision-making power constitutional. A delegation of decision-making power to a *179subdivision of the county council is only harmless when the entire county council subsequently gives its "stamp of approval ... 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 County Council." Id. at 119. In the instant case, there is no evidence whatsoever that the whole Sua County Council reviewed, ratified, or finalized ex post the selection of Savea by a subdivision of a subdivision. Therefore, we must declare that Savea has not been elected according to the Revised Constitution.
At the same time, because the entire Sua County council did not elect Pele as their Senator2, we must also reject Pele’s claim that he was duly elected Senator according to the Revised Constitution.3
With respect to Pele’s other claims, we find no basis in law or in fact for criminal and civil conspiracy charges.
Conclusion and Order
On the foregoing, we conclude that neither Savea nor Pele has been elected to the Senate, Legislature of American Samoa, by Sua County, pursuant to Article II, § 4 of the Revised Constitution. Accordingly, the second Senate seat in the Legislature of American Samoa, for Sua County, District 5, heretofore assumed by Savea, is vacant, and we so declare.
The matter of the vacant senate seat in the Legislature of American Samoa, for the County of Sua, District 5, must be, and is hereby, remanded to the entire Sua County Council, for their election of a second representative to the Senate, Legislature of American Samoa, consistent with this opinion and the Revised Constituí'on.
*180It is so ordered.
The matai of Sua 2 were able to quickly decide on Mata‘utia, because the only other contender from among its ranks withdrew his candidacy and conceded in favor of Mata‘utia.
Pele's claim to the Senate Seat based on the letter of support from some of the Lauli'i matai is even more tenuous than Savea's, as the Laulfi matai had no claim whatsoever to any sort of mandate from the County Council.
All of the purported "certifications" from various individuals at the Office of Samoan Affairs are completely worthless. According to the Revised Constitution, only county chiefs may certify "[t]he decisions of the members of the county councils." art. II, § 4. Of course, in the instant case, there was no decision of the members of the Sua County Council with respect to the Senate seat Savea assumed, so even Sua County Chief Uto'ofili could not validly certify anyone to fill that vacancy. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486486/ | Order Denying Motion for Reconsideration or New Trial:
On January 13, 1997, this court issued an opinion and order declaring the respective rights and obligations of the parties under a lease agreement and related documents, and resolving counterclaims by defendant American Samoa Government ("ASG") of alleged violations of statutes and administrative rules. On January 22, plaintiffs Congregational *184Church of Jesus in Samoa ("CCJS") and Amerika Samoa Bank ("ASB") filed a motion for reconsideration or a new trial, and on February 10, 1997, the court heard oral arguments from all parties on the motion.
DISCUSSION
First, the CCJS and ASB submit that the lease in the instant case is not subject to A.S.C.A. § 37.2030 because the statute does not mention “options.” Additionally, the CCJS and ASB argue that approval by the Legislature of American Samoa is only required when the lease “by its terms” goes beyond 10 years. We disagree. We cannot allow form to override substance when an important issue of public policy is concerned. If we condone the lease in this dispute, in which the lessee is given five successive unilateral “options” to continue the lease in nine year fragments, we will establish a precedent that permits leases of government land without the Legislature's review for potentially unlimited duration — as long as the parties to the lease are clever enough to utilize unilateral options. We refuse to create such a precedent, and feel compelled to uphold the public policy concern that the Legislature established in A.S.C.A. § 37.2030.
Second, the CCJS and ASB claim that the court erred when it concluded that an “ineffective” lease under A.S.C.A. § 37.2030 merely created a periodic tenancy. However, the court’s position is supported by the Restatement (Second) of Property § 2.3 and case law. See American Samoa Gov’t v. South Pacific Island Airsystems, CA No. 13-94 at 7-8 (Trial Div., June 5, 1995). The CCJS and ASB offer no alternative definition for the term “ineffective” in § 37.2030 and cite no authority for their assertions. We affirm our analysis in the original opinion and order.
Third, the CCJS and ASB declare the court erred when it concluded that the lease only required a one month notice to terminate the lease. The CCJS and ASB insist that they were entitled to a 90 day notice under the Lessor’s Consent and Estoppel agreement, and were entitled to continue the lease as long as they corrected problems that the ASG raised. The CCJS and ASB overstate the protections of Section 2 of that document, which states that
[t]he Lessor will not terminate the Lease ... by reason of the bankruptcy or insolvency of the Lessee-Mortgagor or because of the occurance of any other default under the Lease, if the Mortgagee, within ninety (90) days after receipt of written notice from the Lessor of intention to terminate the Lease for any such cause, shall either remedy such default....
*185This provision, which deals only with termination of the lease “for cause,” assumes that the lease’s durational terms were valid; but the CCJS was merely a periodic tenant paying rent on a monthly basis. Thus, the ASG could terminate the lease for any reason or no reason, as long as the ASG gave the CCJS one month’s notice of the termination of the tenancy.
Fourth, the CCJS anmd ASB contend that the court erred in concluding that they were not entitled to due process. The CCJS and ASB do not even address the court’s conclusion that at-will relationships are not “liberty” or “property” interests within the meaning of constitutional due process. Furthermore, the CCJS and ASB do not identify the error in the court’s conclusion that the Governor of American Samoa, not the Parks and Recreation Commission, has the authority to extend periodic tenancies. We are not impressed with the CCJS's and ASB's argument and affirm our earlier due process analysis.
Fifth, the CCJS and ASB assert that the court erred in its factual findings regarding the Governor’s use of discretion and the CCJS’s actual knowledge of ASCMP rules. After again reviewing the evidence presented at trial, we hold that our factual findings on these issues are correct.
Sixth, the CCJS and ASB claim that the court’s eviction order constitutes an unlawful taking of private property without just compensation. Nothing in our original opinion and order can or should be construed to divest the CCJS of their title in the building on the land, or to grant the ASG unlimited access to the building. The ASG has not challenged the CCJS's and ASB's representations that the CCJS owns the building. However, since the ASG has terminated the periodic tenancy with respect to the land on which the building sits, the CCJS has no right to traverse across the ASG's land to enter the building, except to “remove machinery, equipment and personal property from the premises.”1
Seventh, the CCJS and ASB argue that the court failed to .apply the equitable defenses of laches and unclean hands to the ASG’s counterclaims for summary eviction. However, we found no evidence that the ASG committed fraud, deceit, misrepresentation or concealment, or that the ASG negotiated the lease in bad faith. Cf. Hardy v. Anderson, 9 A.S.R.2d 79, (Trial Div. 1988). Nor did we find evidence of “an unreasonable delay in the assertion of their rights by [the ASG] and undue prejudice to the [CCJS or ASB].” Jennings v. Jennings, 21- A.S.R. *1862d 40, 49 (Land & Tit. Div. 1992) (citing Siofele v. Shimasaki, 9 A.S.R.2d 3, 14 (1988)). Rather, the evidence indicated that both the CCJS’s assignor and ASG mistakenly believed that their legal creativity could help them evade the Legislature’s review of their lease. We find this case inappropriate for the application of laches and unclean hands. We will not, as the CCJS and ASB would have us do, continue a lease that violates important public policy on the grounds of mutual mistake.
CONCLUSION AND ORDER
Accordingly, the motion for reconsideration or a new trial is denied. It is so ordered.
Though the question is not before us, we note that there appears no obstacle to the CCJS selling the building back to the ASG or to the next lessee of the land. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485865/ | On Motion to Dismiss:
Plaintiffs are Philippine nationals who were hired in the Philippines to work on a fishing boat operating out of American Samoa. They allege that the person who hired them was an agent of the defendant company, and that another representative of the defendant company assigned them to a particular vessel. They further allege that they were subjected to various forms of abuse including being "routinely beaten." •
Defendant moves to dismiss on the ground that the action lacks "sufficient minimum contacts" with American Samoa to give the High Court jurisdiction, or in the alternative that American Samoa is not a convenient forum for the litigation. We disagree. Plaintiffs were flown *99to American Samoa, allegedly by the defendant, to begin their employment. The voyages on which the alleged atrocities took place both began and ended in American Samoa. Pago Pago is alleged to be the home port of the vessel in question. Contrary to a suggestion by defendants, it is by no means clear that systematic and intentional wrongdoing of the sort alleged in the complaint would not "involve the peace or dignity of the country, or the tranquility of the port"1 used by the wrongdoers as a base of operations.
Defendant also claims that it is the agent of plaintiffs’ employers rather than vice versa. This is a disputed question of fact that cannot form a basis for dismissal at this stage of the proceeding. Plaintiffs cannot be expected to know the precise relationships among the person with whom plaintiffs signed their contracts in the Philippines, the defendant company, and the owner(s) of the vessel until they have completed their discovery. (Plaintiffs’ motion for leave to amend their complaint when they do learn such details is premature and will presumably be renewed when and as necessary.)
The motion to dismiss is denied.
Lauritzen v. Larsen, 345 U.S. 571, 578 (1952) (quoting R. v. Jameson, [1896] 2 QB 425, 430). In Lauritzen, which concerned negligence rather than intentional misconduct, the Court did not dismiss the action but merely applied Danish rather than American law. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485866/ | On Motion to Dismiss:
Introduction
Plaintiff Luafatu Mataipule was injured on April 1, 1987. He seeks damages against a number of defendants including the American Samoa Government (hereinafter "A.S.G"). For tort actions against A.S.G., the Government Tort Liability Act provides for a two year statute of limitations. See A.S.C.A. § 43.1204. Almost two years after he was injured, plaintiff filed an administrative claim with the Attorney General on March 14, 1989, and then filed this action on March 31, 1989, obviously with the intention of initiating his claim before the applicable limitations period expired. The Attorney General did not deny the claim until May 2, 1989.
A.S.G. moves to dismiss contending that this Court lacks jurisdiction. As a prerequisite to jurisdiction, the American Samoan statutory scheme requires that a prerequisite administrative claim be made and either denied or ignored for three months, at which time it is deemed denied. A.S.C.A. § 43.1205(a), Faoato v. American Samoa Government, unreported, CA NO. 036-79 (1979); Gobrait v. Americana Hotels, Inc., unreported, CA NO. 012-78 (1978). The federal courts have likewise held under the similar Federal Tort Claims Act. Goulding v. U.S., 488 F. Supp. 755 (D. Ariz. 1980); Industrial Indemnity Co. v. U.S., 504 F. Supp. 394 (E.D. Ca. 1980).
Thus, unless plaintiff’s claim has either been denied or three months have elapsed since it was submitted, this Court is without jurisdiction to consider the matter. As this seems to be the case here, it would appear at first blush that the A.S.G. ’s motion to dismiss should be granted.
*102
Discussion
Jlowever, this poses rather than answers the real, question here: whether plaintiff may refile or whether he is barred by the applicable statute of limitations, A.S.C.A. § 43.1204. A.S.G. seeks to force plaintiff onto the horns of an impossible dilemma because of his having waited to file his administrative claim within three months before the statute of limitations lapsed. A.S.G.’s argument is as follows: because plaintiff was required, as a prerequisite to the Court’s jurisdiction, to file an administrative claim which must either be denied or not disposed of within three months, therefore subject matter jurisdiction would have been conferred on the Court if and only if A.S.G. chose to deny the claim before the statute of limitations expired. Otherwise, if the plaintiff filed his complaint before the statute of limitations expired (and without having had his claim denied), the Court would be without jurisdiction because the administrative remedies had not been exhausted. On the other hand, if the plaintiff waited until three months had passed since filing his administrative claim, the statute of limitations and his claim would have lapsed. As counsel for plaintiff points out, this effectively reduces the two year statute of limitations by three months. Because of this seemingly odd effect on the statute of limitations, further review is merited.
An analysis of the statute of limitations’ role in the current matter entails the examination of two questions. First, when did the statute begin to run? Second, if the statute of limitations began to run at the date of injury, did the plaintiff act in a manner sufficient to toll the statute?
A. Accrual of the Cause of Action
A.S.C.A. § 43.1204 reads H[a] tort action against the government shall be forever barred unless an action on it is begun within two years after the claim accrues." The question, then, is when did the cause of action accrue? The rule has been generally stated:
[wjhere a statute or rule of common law requires the presentation of a claim and prohibits the suit until a stated time after,.presentation, or until the claim has been rejected, it would logically follow that there is no cause of action and that the limitation period does not begin to run until the claim has been rejected or the period allowed for official action has expired.
*10351 Am. Jur. 2d Limitation of Actions § 115 (1970). See also Annotation, Limitation Period as Affected by Requirement of Notice of Presentation of Claim Against Government Body, 3 A.L.R. 2d 711, 716 (1949).1
Courts have applied this rule. For example, in City of Taylor v. Hodges, 186 S.W.2d 61, 63-64 (Tex. 1945), the city sued a county to recover certain fees which were paid over a two year period beginning July 1, 1941. Suit was filed in October 1943, and so at least part of the claim was arguably barred by the two year statute of limitations. The Supreme Court of Texas rejected this view and noted that under a pertinent statute suit could not be brought until the claim made to the county had been rejected. This claim was not rejected until 1943, a short time before the suit was filed. Id. at 63-64. "At that time the right of the City to sue accrued and limitation began to run from that date." Id. at 64. In this case no question of laches in the filing of the claim was presented. Similarly, in Bethke v. Stetson, 521 F. Supp. 488 (N.D. Ga. 1979), a former Air Force man who was discharged in 1964 brought five successive and unsuccessful actions seeking reinstatement and back pay. Each was denied, and this suit finally resulted. The second application was made and denied in 1967.2 The third application, which sought reconsideration of the second, was made and denied in 1969. The statute of limitations for this suit against the United States was six years. Id. at 489. Suit was filed in 1978. The defendant argued that the statute of limitation ran from the date of discharge. The plaintiff contended, and the Court agreed, that the statute of limitations began to run only after the plaintiff had exhausted his administrative remedies, as required. Id. at 490. The Court then found that the administrative remedies had been exhausted, and so the cause of action had accrued in either December *1041967 or February 1968. Because this was over six years prior to the filing of the suit, the action was barred. The Court’s selection of the date of accrual was influenced by when the plaintiff could have brought his action in court. The Court did not address and did not seem troubled by the fact that at least three years passed after the discharge before the statute of limitations even began to run.
In Crown Coat Front v. United States, 386 U.S. 503 (1967), a dispute arose out of a government contract which contained a disputes clause requiring certain procedures in this event. The government tested and rejected certain materials that the contractor was using, and the contract price was subsequently re-negotiated. Some three years later, the contractor was informed of the nature of the government’s tests, which effectively changed the contract specifications, and began pursuing the available administrative remedies. The first claim was filed within the six year statute of limitations provided by 28 U.S.C. § 2401(a).3 After denial of the claim, and more than six years after the contract performance, the contractor brought suit. At issue was when the right of action accrued. The Court held that the "right of action" of which § 2401(a) speaks is not the right to administrative action, but the right to file a civil action in court. Id. at 511. The Court noted that no recourse to the courts was available until the administrative procedures had been exhausted. Id. at 511-12. The Court held that the cause of action accrued when the administrative claim was denied and that the suit had been timely filed, although it had been filed more than six years after the performance of the contract.
The court in Wade v. Jackson County, 547 S.W.2d 371 (Tex. Civ. App. 1977), also followed this rule, noting that "under the general rule, limitations begins to run when the cause of action accrues, and by "cause of action" is meant the right to institute suit. The right to institute suit. . . does not accrue until the claim has been rejected . ..." Id. at 373-74 (citations omitted).
Two Supreme Court decisions reaching contrary results are distinguishable. McMahon v. United States, 342 U.S. 25 (1951), involved an action by an injured seaman against the United States for negligence and unseaworthiness. It was brought under the Suits In Admiralty Act, which required the action to be brought within two years *105after "the cause of action arises." In deciding whether this meant the date of injury or Che date of the disallowance of the claim, the Court held that it here meant the date of injury. The Court relied on the language of the Suits In Admiralty Act, which was enacted before suits on disallowed claims such as die one in issue were authorized, and on the fact that when the right to sue was broadened to include this type of claim, there was no indication of any change in the older Act’s limitation period. The Court also noted that statutes waiving immunity of the sovereign are strictly construed. The Court here retained its earlier interpretation of this language and did not freshly construe it in light of the new type of suits which could now be brought before it. There is no such previous interpretation here in American Samoa. In Soriano v. United States, 352 U.S. 270 (1957), the plaintiff was seeking just compensation for the requisitioning of certain material by Philippine guerilla forces during World War II. Plaintiffs claim would have been barred by the six year statute of limitations unless it began to run after the exhaustion of administrative remedies. The Court held the claim to be barred. The Court also held that the exhaustion of administrative remedies was not a prerequisite to jurisdiction and noted that at the time of this decision the Court of Claims had abandoned the rule that this type of claim should first be asserted against the appropriate administrative agency. Id. at 310 n.6. This case is thus very different from the one at bar, in which the exhaustion of administrative remedies is a jurisdictional prerequisite. .
An obvious concern with the general rule above is that it may sidestep the purpose of the statute of limitations and allow the prospective plaintiff to wait as long as he wishes before beginning to pursue his administrative claims. This concern must be answered by the doctrine of laches. As a general proposition, ”[i]f the only act necessary to perfect the plaintiff’s cause of action is one to be performed by the plaintiff, and he is under no restraint or disability in the performance of such act, he cannot indefinitely suspend the statute of limitations by delaying performance of that act. "51 Am. Jur. 2d Limitation of Actions § 111 (1970). The court in Wade v. Jackson County, 547 S.W.2d 371 (Tex. Civ. App. 1977), noted that in applying the doctrine of laches the limitation period is often applied by analogy. Id. at 375. In this case, because the claim was made within the two year limitation period, laches would not seem to bar the plaintiff’s action.
*106
B. Tolling of the Statute
This portion of the discussion assumes that the limitations period began running on the date of injury. The statute of limitations requires that a "tort action against the A.S.G. shall be forever barred unless an action on it is begun within two years after the claim accrues." A.S.C.A. § 43.1204 (emphasis added). Either of two events might have "begun" the action and so tolled the statute. While the filing of the complaint within the two year period would ordinarily be enough to commence the action and toll the statute of limitations under T.C.R.C.P. Rule 3, in this case that filing did not invoke the Court’s jurisdiction and thus may have been incapable of tolling the statute. Alternatively, the claim to the Attorney General may have done this, as in Walley v. United States, 366 F. Supp. 268 (E.D. Pa. 1973), where the plaintiff was involved in a collision with a post office vehicle. The court noted that under the Federal Tort Claims Act, the plaintiff could not sue in court until a claim had been presented to the appropriate federal agency and either denied or not disposed of within six months. The accident in this case occurred on June 30, 1971. Plaintiff filed a claim on February 6, 1973. Although no response from the post office had been obtained and the six months had not yet elapsed, the suit was filed on June 21, 1973, in order to prevent the claim from being barred by the statute of limitations. The two year statute of limitation specified in 28 U.S.C. § 2401(b)4 was applicable in this case. The court dismissed this case for lack of subject matter jurisdiction, noting that without a specific rejection of his claim, the plaintiff could not properly bring suit until August 6, 1973. The court avoided a potentially harsh result by holding that plaintiffs claim to the post office on February 6, 1973, was a claim sufficient to toll the statute of limitations, and so the plaintiff was free to refile his action. The court noted that the Tort Claims Act provided that a claim against the United States would be barred unless a claim was filed with the appropriate federal agency within two years of the tort. Thus the wording of the statute allowed the court to reach this result, since it specifically provided that filing with the appropriate agency would toll the statute.
*107
Conclusion
Granting A.S.G.’s motion to dismiss would place form above function. If the dismissal were granted, the plaintiff would be free to refile as soon as he could get the necessary papers to the clerk’s counter, because the court’s jurisdiction was perfected with the May 2, 1989, denial of the claim. While requiring a dismissal and refiling might be the technically correct response, it would be a needless and wasteful exercise. In McCormick v. Cooley, 458 F. Supp. 776 (1978), the United States made the same motion the A.S.G. makes here, because the requisite time period had not elapsed at the time the complaint was filed. However, at the time the court was considering this motion, the six months required by the statute had elapsed, and no final disposition of the claim had been made. The court ruled that although a jurisdictional defect had been present, that defect had been cured and there was no need for the plaintiffs to refile. See also Campbell v. United States, 534 F. Supp. 762 (D. Haw. 1982).
While a jurisdictional defect was present when this suit was originally filed, that defect was cured by the denial of the claim. As noted above, the limitations period did not begin to run until the date of this denial. Therefore the defendant A.S.G.’s motion to dismiss will be denied.
It is so Ordered.
As a general rule the statute of limitations does not begin to run until the claimant has a cause of action, and a claimant has no cause of action until he is free to bring suit on his claim. If, therefore, the law prevents one from bringing suit, the general rule is that his cause of action has not accrued, and that it will not accrue, and that the statute of limitations will not begin to run, until he can bring suit.
3 A.L.R.2d at 716.
The first is referred to as having been made on "January 22, 1975"; this is apparently a typographical error. The correct date must of course be pre-1967, and is probably 1965. This error is irrelevant to the court’s holding, which was based on the dates of the subsequent applications.
28 U.S.C. § 2401(a) reads "every civil action . . . shall be barred unless the complaint is filed within six years after the right of action first accrues."
28 U.S.C. § 2401(b) reads "a tort claim . . . shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing ... of notice of final denial of the claim.'' | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485867/ | LT No. 40-85
The plaintiffs are the senior matai of the respective Vaivao, Fuga, and Taito families of Pago Pago. They sue to enjoin the defendant, Douglas Craddick, from encroaching on a certain land area which they claim is a part of that communal land of their families known as "Fusi." They further petition to quiet title, and in addition they seek compensation for unspecified damage to the land.
Craddick, on the other hand, claims that the disputed area is freehold land,1 being a portion of the old Foster estate "Logopesega."2 The Territorial Registrar’s records reflect that in the late 1890s, title to the land Logopesega was vested by the Supreme Court of Samoa in one Jane Sophia Foster by Court Grant 852. The land is said to contain 2 acres and 5 perches and Court Grant 852 is recorded with the Territorial *110Registrar in Volume 1, Court Grants at pages 169-70.3 In 1981, Craddick purchased the Logopesega estate from the heirs of Jane Foster. See Craddick v. Manuma, LT Nos. 04-84 & 30-84 consolidated (1984). Martin Anderson has been permitted to intervene as Craddick’s assignee or successor in interest and accordingly when referencing Craddick herein we are also referring to Anderson.
Facts
This case concerns an area of land located in the village of Pago Pago immediately on the mauga side of the main government east-west highway opposite to what is now known as the Pago Pago Plaza — a shopping and office complex recently built by Craddick. The dispute before us today is the product of a number of factors with the most significant one being the passage of time. On the one hand, certain public records assure Craddick that the Foster estate contained some 2 acres of freehold land. However, just exactly where that 2 acres is situated has become unclear for a number of reasons. The original survey contained in Court Grant 852 references the monuments as being pins, at certain points on a stone wall long since forgotten, on a creek bank which could have changed over time, and at certain high water marks on an undoubtedly shifting shoreline. In addition, the Fosters have not recently shown a presence in the area consistent with ownership and the exercise of proprietary rights over an area of land of 2 acres and 5 perches. The gist, therefore, of Craddick’s case is that, given the probable location of the high water mark (at the time of the court grant), an estate with an area as described in Court Grant 852 must necessarily include land on the mauga side of the main east-west highway. While the argument appears appealing at first blush, there are additional complicating factors which cannot be ignored. The evidence was clear. The disputed area has been, at least within living memory, in the exclusive use and occupation of the plaintiff families. According to the matai, their families have occupied this land from as far as they could individually remember, and the Fosters in that time have never bothered them nor have they bothered the Fosters. High Talking Chief Tuaolo Lemoe’s testimony was in accord. He is 73 years of age and has lived all his life in the village of Pago Pago. He testified that the only people he has known to be in possession of the area in dispute have been members of the plaintiff families. The Fosters, he said, always kept to *111the sami side of the main road. Tuaolo further testified that the area was commonly known to the village as "Fusi," owing to its constantly water logged condition conducive to the growing of certain taro.
Discussion
The Court is faced with the task of somehow reconciling these factual inconsistencies although there was no attempt on the evidence to explain these apparent contradictions. For reasons given, we find for the plaintiffs.
Firstly, we cannot accept the surveyor’s reconstruction exercise as being persuasive given the paucity of data he had to work with and the number of assumptions he was accordingly required to make. In the end, the exercise clearly took on the appearance of a dire search for premises to sustain a foregone conclusion. For example, in the way of physical evidence, some stress was placed on the fact that a row of plaintiffs’ homes on one side of the stream was situated in a manner which happened to be consistent with one of the boundary lines as reconstructed. In the surveyor’s judgment, a row of homes which appeared to be carefully situated was, in accordance with sound survey practice, a very good indication that the owners had no claims beyond the line as retraced. This assumption holds little water when viewed against the fact that the survey also shows boundary lines running on the opposing side of the stream to include other existing structures belonging to plaintiffs. In any event, it appeared more credible on the actual testimony that the resulting alignment of the houses had a lot more to do with their being deliberately situated on dry ground (which in some places was the result of a built up embankment) to avoid the recurrent flooding in the area, rather than having anything to do with a considered deference to a boundary line with the Foster family. Also from the reconstruction of the Logopesega survey, the disputed land is now bisected by a stream. The estate’s original description and survey, however, showed the stream as actually being Logopesega’s northernmost boundary line. The surveyor simply takes the position that the stream’s banks have since changed.4
*112The Court was also told that a small part of the "stone wall" mentioned in Court Grant 852 was located and that this represented a significant clue to the reconstruction. When the Court viewed the disputed area, its attention was directed to a small digging which revealed what appeared to be an otherwise hidden or covered arrangement of large river rocks. The plaintiffs deified that the find was anything in the way of an ancient wall and claim that they in fact had actually, pointed out the rocks to the surveyor who was asking for the remnants of a stone wall. They gave the more plausible explanation for the hidden rock formation, which they said was erected by family members to elevate those homesites confronting the bend in the stream since they were prone to flooding from overflow during heavy rains. Flooding in the area was said to be quite common.
Quite apart from the difficulties with hard data, the resultant reconstruction survey must also have been influenced by those settlement, efforts between Craddick and the American Samoa Government concerning the seaward side of Logopesega. Since these settlement efforts entailed an exercise of give and take on the part of both parties, they do not necessarily reflect the estate’s original boundary lines. See Agreement for Negotiated Settlement, Craddick v. American Samoa Government, LT No. 20-85 (1986).
A telling factor against the reconstructed boundaries lines is simply that they could not be reconciled with the stark reality that a number of Pago Pago’s established families seemed well and truly settled in and about the disputed area, to the exclusion of the Fosters. Our examination of the evidence as a whole convinces us that the plaintiff families have had possession of the disputed area for a great number of years while exercising proprietary rights thereon. The evidence also clearly suggests that such possession has been had without any interruption whatsoever from the Fosters. Even if we assumed for the sake of argument that Court Grant 852 included this area occupied by the plaintiffs, the recent interruption by Craddick (successor to the Fosters) has come a little too late to prevent the operation of A.S.C.A. § 37.0120(a). This enactment provides that "[ajctual, open, notorious, hostile, exclusive and continuous occupancy of real estate for 30 years confers a title thereto by adverse possession which is sufficient against all." Plaintiffs’ possession of the disputed land area certainly qualifies to confer title on them.
Finally, an explanation for the Foster family’s absence from the mauga side of road is to be found in Foster v. Olotoa, 3 A.S.R. 76 *113(1952). This case points out that a part of Logopesega known as Heman Foster’s share of the estate had been lost through the adverse possession of one Teutusi.5 The significance of Heman Foster’s share of the estate is that it is said to comprise that part of Logopesega which is "inland" of the main road. The case spoke of Jane Sophia Foster’s will, wherein the testator devised a part of Logopesega to her grandson Heman in the following language, "I give, devise and bequeath to my grandson Heman that piece of my land on the inland side of the main road in Pago Pago extending from Wolbert’s leasehold to the little creek." Id. at 77-78 (emphasis added). The estate, however, to the seaward side of the road was bequeathed to the testator’s son Wesley. With regard to the property on the inland side of the main road, the Court found that:
Some years after Jane Sophia Foster’s death, Heman’s father, Fanene, apparently considering the land which had been devised to his son as his own, conveyed it to one Teutusi, who went into possession thereof and continued in such possession for more than 20 years, claiming the land conveyed as his individually owned property. In the case of Gaoteote Foster et al. v. George Fiaalii, No. 11-1952, the High Court held that this land devised to Heman became the property of Teutusi through adverse possession. Teutusi’s heirs let George Fiaalii (who is Olotoa and the defendant in this case) into possession of the part of Lotopesega which was devised to Heman.
Foster v. Olotoa, 3 A.S.R. at 78. It is trite observation that Craddick can only get from the Fosters that which they had to give. The foregoing case naturally raises the question as to what exactly Craddick purchased "on the inland side of the main road" if indeed the inland part of Logopesega had been lost by adverse possession to one Teutusi.
In view of the foregoing, we conclude that the plaintiffs’ claim to the disputed area on the mauga side of the main road is superior to that of defendant Craddick’s. Plaintiffs’ undisturbed and longstanding possession of the area speaks rather forcefully in favor of the plaintiff families. Craddick’s claim, on the other hand, is less tenable. For many, many years now the Fosters have not acted in a manner consistent *114with the ownership of land on the mauga side of the road, whereas plaintiffs undeniably have. Just what remains of the Foster estate and where it is exactly located are questions for which answers have become more obscure with the passage of time. Given present day realities, the dispute as to better entitlement must be resolved in favor of plaintiffs in possession.
However, the specific relief sought by plaintiffs will not be granted. There was absolutely no proof offered on the damages alleged, and with regard to the injunctive relief sought, none of the plaintiffs bothered to provide surveys delineating their exact interests requiring injunctive relief. Finally, the prayer for quiet title is meaningless without a survey and without first complying with those statutory requirements relating to the registration of title. A.S.C.A. §§ 37.0101 et seq.
LT No. 02-87
Court Grant 852 was originally bounded by the high water mark and this case involves the land on the sami side of the main road. Specifically, the dispute arose with plaintiff Anderson’s assignor, Craddick, laying claims as upland or "littoral" landowner entitled to a certain area of abutting filled land.6 This filled land was the result of an extensive reclamation project undertaken by the government in the Pago Pago harbor. At issue is whether the owner of Court Grant 852 or the government owns the reclaimed land.7 The immediate difficulty with plaintiffs claim is that it is based on the contention that he is the upland or littoral landowner. This contention, however, is entirely at odds with the holding in Lago v. Mageo, 4 A.S.R. 287 (1962), aff’d, 4 A.S.R. 874 *115(1963). This case was concerned with littoral claims to the property on the other side of the Vaipito stream and immediately next door, so to speak, to the area in dispute. The Lago court upheld the territorial government’s rights as the upland or littoral owner within the harbor area between Blunt’s Point and Breaker’s Point by virtue of certain condemnation proceedings pursuant to Ordinance No. 15 and Regulation No. 16 of the United States Naval Station, Tutuila, enacted September 3, 1900. Ordinance No. 15 and Regulation No. 16 were later codified by the Legislative Branch of the Government of American Samoa as § 1291 of the Code of American Samoa, 1949, and now appear on our statute book as A.S.C.A. § 37.2050.8
This statute clearly gives the government a uniform fifteen feet of land in from the shoreline. Anderson argues that only a road is needed, and not any shore, and that the statute should be narrowly construed to protect private property rights. The statute refers to the land as appropriated for "public uses," which would include a road and also power poles, telephone poles, and any necessary seawalls to check erosion. It would be rather difficult to otherwise construe this statute — "15 feet distant inland from the shore" is 15 feet whether broadly or narrowly construed. The case cited by plaintiff, Wilson v. State, 400 So.2d 740 (La. App. 1981), examines the limits on Louisiana’s general power of eminent domain.9 In that case, there was no statute as there is in the current situation. To sustain the contention advanced by plaintiff that the government merely acquired "legitimate title to the land where the road runs," while ignoring the clear language of the statute in the name of statutory construction, would surely be to interfere with the government’s exercise of its eminent domain power. In any event, a taking of 15 feet inland from the shoreline is hardly overbroad given the various public uses for which the condemned property may be put and, *116indeed, the very requirements of roading itself. With the increasing demands of modem day automobile traffic within the territory, there is logically no alternative available to the government for road improvements in the Pago Pago bay area but the possibility of going sami side. The taking of the shoreline is thus totally consistent with public roading purposes in the area.
Finally, the government’s defense of laches is worth noting. The taking (of littoral rights) which plaintiff is now protesting occurred 90 years ago. On the other hand, an action for the recovery of real property is barred if not brought within 20 years after such cause accrues. A.S.C.A. § 43.0120(6). The argument advanced by plaintiff that "the Fosters never had reason to believe that their property had been taken" is simply without merit. An ordinance or published law announced the taking of fifteen feet of shoreline from Blunt’s Point to Breaker’s Point. The language of the ordinance admits no exception.
We conclude that the reclaimed or filled land in question is the property of the American Samoa Government. Judgment accordingly.
It is so Ordered.
Freehold land is statutorily defined as "all those lands included in court grants prior to 1900." A.S.C.A. § 37.0201(b).
Also spelt elsewhere as "Lotopesega." See Foster v. Olotoa, 3 A.S.R. 76 (1953).
For a more detailed background to Court Grant 852, see Foster v. Olotoa, 3 A.S.R. 76 (1953), Craddick v. Manama, LT Nos. 04-84 & 30-84 consolidated (1984).
We note that the surveyor makes no allowance for the significant accretion thus resulting in favor of plaintiffs as a result of that change; however, he does take a position in the companion case with regard to adjusting rights to shore-front reclamation as coming within standard surveying practice.
Cf. Craddick v. Olotoa, LT Nos. 04-98 & 30-84 consolidated (1984). This case arrived at a totally conflicting conclusion.
This area presently serves as the parking lot for the Pago Plaza. In order to facilitate the building permit for the Pago Plaza structure, which required adequate parking facilities, among other things, a document dated 13th September, 1985, styled "Lease of Property and Agreement For Installation of Parking Lot" was entered into between Craddick and the government to allow the parking lot to be built pending final disposition of the parties’ dispute. Adequate parking was apparently a condition to the granting of a building permit for the Pago Plaza.
The survey submitted of plaintiffs claim again took on the unfortunate appearance of setting out a foregone conclusion, namely, the approximate layout of the existing car park. The surveyor alluded to a number of possibilities for extending lines to newly gotten land, and his conclusion was ultimately based on what he judged as being most fair to both parties given the present existing physical layout. Presuming that plaintiffs legal position prevails, the immediate problem with the surveyor’s conclusion of fairness is that it does not necessarily take into account the problems to be encountered with adjusting the rights of other remaining littoral owners.
A.S.C.A. § 37.2050 reads:
The public highway declared and proclaimed by Regulations No. 15 and No. 16, 1900, enacted 3 September 1900 by B.F. Tilley, U.S.N., Commandant, and amended by W. Evans, Captain, U.S.N., on 10 May 1921, extending from Blunt’s Point on the southern side of Pago Pago Harbor, toward Observatory Point and around the harbor to Breaker’s Point on the northern side of the harbor, along the shore at high water mark, of a uniform width of 15 feet distant inland from the shore, the land included in the description being condemned and appropriated for public uses, is recognized as a public highway, and the rights of the government and public thereto is asserted.
Cf. Atualevao v. American Samoa Government, 2 A.S.R.2d 66 (1985). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485868/ | The Court makes the following findings with regard to the criteria set forth in A.S.C.A. § 1.0409(c).
I. Hereditary Rights
The Court is satisfied that all of the candidates have hereditary rights to the title Iuli. There was no disagreement among the parties to this extent. If measured according to the method which the Court has traditionally used to calculate degrees of relationship to the title, Taumafai would prevail as he can show the shortest descent route to a past title holder. The objectors, however, have also submitted their *118measure of entitlement by tracing descent to the original titleholder as was done in the case In Re Matai Title Sotoa, MT No. 5-82. In this manner, Tela has argued that he is better entitled because Taumafai comes from an adopted side of the family descended from a Iuli Isaia. Whether adopted or not, it was clearly established in In Re Matai Title Iuli, MT No. 20-1956, that candidate Taumafai’s branch of the family is entitled, and indeed, candidate Taumafai’s maternal uncle Togi prevailed in that case.
II. Support of the Clans
There was simply no consensus among the parties on the question of the clans as customary in the Iuli family. Taumafai and Tela at least agreed on a working definition of clans, and that is, the grouping of family members in accordance with descent lines running from the issue of the original title holder. They were totally at odds, however, not only on the identity of the original titleholder but on the identities of the succeeding generation. Fa‘asefulu, on the other hand, was noticeably confused as to the basis of his claim for clans. In any event, the evidence sadly showed that the family simply refused to seriously attempt the selection of a matai. The family meetings, which considered the nominations of both Taumafai and Tela, concluded with the acknowledgement that the direction to the Courthouse was well known. Fa‘asefulu candidly admitted that he took this to mean a clear invitation from the family to let "the law" decide, even though he had also indicated at one of the family meetings that he favored Taumafai’s candidacy. We conclude that no one secured the wish of the majority or plurality of the clans.
III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom
On the third criterion, we rank Tela as the leading candidate. Tela is 63 years of age and for some 25 years he has held the comparably ranking title of "Tela" from the village of Afono. As such he has proven himself worthy and capable in his duties as the "matua" of Mata‘utia in Afono. His long tenure as matai has made him familiar with the requirements of Samoan custom. Taumafai, who is 36 years of age, and Fa‘asefulu, who is 49 years of age, have yet to serve as matai. Taumafai admitted in open Court that he has been holding himself out as *119a matai using the unregistered name "Siupapa" in violation of the law.1 However, he seeks the Court’s forgiveness for this "small error" on his part. In terms of ability to undertake the duties and responsibilities of the very important Iuli title (the Iuli is the matua of Salanoa in the village of Tula), Tela clearly has the superior proven experience. This experience was quite evident on the stand with Tela proving to be better at ease. In terms of formal education, Tela and Taumafai prevail. While they have each achieved similar levels of training as educators, Tela has had over 30 years of service as principal of various government elementary schools. Tela has superior administrative and leadership skills as a result of his more extensive experience. Fa’asefulu, nonetheless, has proven to be an enterprising and industrious person, being one of the territory’s leading businessmen; however, his character is not without blemish. He candidly admitted to misappropriating government property while in the employ of the government. He was 22 years old at the time and he puts this down to youthful indiscretion. On balance we find that Tela exhibits the personal qualities better suited to leading the family.
IV. Value to Family, Village, and Country
We are satisfied on the evidence that all of the candidates have in various ways rendered valuable service to the past matai and that they have faithfully participated in family affairs. They all live in the village, occupying and working family lands, and serving the family, church, and village. In terms of service, no one can be singled out as more deserving.
We have already concluded that Tela has shown the stronger personal characteristics, as well as the better track record and experience for leadership. It goes without saying that the dignity of the title will be best enhanced by the candidate who is intimately familiar with the demands of office. Tela’s longstanding tenure as a matai has certainly given him that familiarity. He not only has standing with his fellow matai but rapport as well, and he has credibility and seniority that comes with tenure and age. He continues in his long but dedicated career with the government and in this connection he has remained singularly committed to the educational needs of the community. We cannot deny *120that the other candidates are not without value to the government but what they lack in relation to Tela is experience and the opportunity to prove oneself.
From the evidence, it is clear that there is much dissension and ill feeling in the family. Among the family’s immediate needs is a peacemaker. Again, Tela best fits this bill with his experience as a matai and in this regard, Taumafai, and Fa‘asefulu to a lesser degree, concede age and experience to Tela. In addition, Fa‘asefulu himself is the object of a certain amount of ill will arising within the family. In 1987, certain family members saw him as having used his superior wealth to obtain favored land assignment from the past matai and thus petitioned the court accordingly in Tagoa'i v. Togia'i, LT No. 29-87. We conclude that Tela prevails with this criterion.
From the foregoing, we hold that Tela is qualified to hold the title Iuli. He prevails over the other two candidates on the third and fourth criteria. Since no one had the majority or plurality of the clans it is not necessary for us to confront the anomaly apparent with the issue of hereditary rights. Even if this criterion is given to Taumafai, he is still behind Tela on the other two important ones.
The Territorial Registrar is directed to register the title Iuli in candidate Tela upon his vacation of the title Tela consistent with the requirements of A.S.C.A. § 1.0402.
It is so Ordered.
A person who uses a matai name before the same has been registered according to law commits a Class B misdemeanor punishable by a term of imprisonment not to exceed 6 months. A.S.C.A. § 1.0414. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485869/ | On Motion for New Trial:
*2On March 6, 1990, the date scheduled for trial of this matai title case, only claimant Tupusemanuia appeared in Court. Tupusemanuia and his counsel informed the Court that a family meeting had been held the day before, at which Malele had announced that he would withdraw his objection. On the strength of this representation (and also because the record reflected that Malele knew about the trial, having been present in Court when the trial date was announced) the Court proceeded to hear the testimony of Tupusemanuia and to render judgment in his favor.
The Court’s opinion also noted, however, that Malele would have until 4:00 p.m. on March 19, 1990, to file a motion for reconsideration and/or new trial. This was in accordance with A.S.C.A. § 43.0802(a), which provides that a motion for new trial shall be filed within ten days after announcement of the judgment. The section also makes the timely filing of such a motion a prerequisite to any appeal.
On March 21, 1990, Malele filed a motion for new trial. He alleges that he never told anyone that he intended to withdraw his claim to the title, and that his failure to appear in Court on the trial date was due to illness.
At the outset we note that the motion for new trial was filed two days late. The statutory deadline for filing motions for reconsideration or new trial has been held to be jurisdictional; if no such motion is filed within the requisite ten days, the Court no longer has power to reconsider or amend its judgment and the losing party no longer has a right to appeal. Fai'ivae v. Aumavae, AP No. 2-76; see generally Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). A motion for relief from a judgment more than ten days old can be granted only under the very limited circumstances set forth in Rule 60(b) of the Trial Court Rules of Civil Procedure. See Amerika Samoa Bank v. Pritchard, 5 A.S.R.2d 106 (1987). Relief under Rule 60(b) is not available to a party who could have raised the same claims or defenses by motion for new trial but did not get around to it. See Wray v. Wray, 5 A.S.R.2d 34, 43-44 (1987).
The explanation proffered by Malele for the late filing of this motion is that he had consulted prior to trial with someone in the Office of the Public Defender and had been under the impression that the Public Defender was representing him. Upon receiving a copy of the judgment he attempted a further consultation with the Public Defender and learned that the Public Defender cannot represent him in this non-criminal matter. He consulted with his present counsel on March 18, when there *3was still one day left in which to file a motion for new trial. This counsel was willing to represent Malele on a motion for new trial, but told him — without bothering to look at the date of the judgment — to come back with some money for a "retainer." Malele apparently followed this instruction, and on March 21 his new counsel got ground to looking at the Court’s opinion. Noticing at last that the filing deadline had expired, counsel nevertheless immediately filed a motion for new trial and hoped for the best.
Needless to say, this is the sort of conduct that leads to disciplinary actioq and to malpractice liability. The attitude that an attorney or legal practitioner has no ethical obligations toward a client or prospective client until he has been paid some money is incorrect and dangerous.
An attorney-client relationship ordinarily rests on contract, but it is not necessary that the contract be express or that a retainer be requested or paid. The contract may be implied from conduct of the parties. . . . The relationship is created when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.
Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977) (citations omitted).
Although mere consultation with a prospective client does not always give rise to the full panoply of attorney-client obligations, it imposes at the very least a duty not to induce detrimental reliance on the part of the prospective client. A lawyer or legal practitioner who indicates his willingness to take a particular case if a retainer is paid, without even inquiring into the existence of any impending deadlines in the case, runs a great risk of inducing such reliance.
If the present motion were otherwise meritorious, we would have to decide whether the delay in filing it was due to "excusable neglect" within the meaning of Rule 60(b). If so, the judgment could be set aside; if not, Malele would be left to seek whateyer satisfaction he might derive from a malpractice suit against his counsel.
*4The circumstances surrounding Malele’s absence from the trial, however, are such that a motion for new trial would not have been granted even if it had been timely filed. At the hearing on this motion Malele testified that he knew about the trial but was too sick to appear in Court. He testified that he called his place of employment to say he would not be coming to work, but that he did not call the Court because he did not know the telephone number. He also testified, however, that he has a telephone directory at home. He further testified that many members of his family support his claim to the Muagututi’a title. It is inconceivable that a serious contender • for a matai title who was sufficiently lucid to call in sick from work would not also arrange for someone to appear in Court to explain his absence at the scheduled trial. Malele’s inability to explain why he neither made such arrangements nor even made a telephone call to the Court, to his opponent Tupusemanuia, or to some friend or relative in an effort to seek a postponement, lends strong support to the version of events originally offered by. Tupusexpanuia.
We conclude that Malele did agree, however grudgingly, to withdraw his objection; that he may or may not have been ill on the day of trial, but in any case did not care enough to appear in Court or to explain his absence; and that he later had a change of heart, perhaps upon receiving the Court’s opinion with its faint praise for Tupusemanuia and its reminder that he, Malele, could still seek a new trial. On these facts a motion for new trial should be denied even if timely filed.
In conclusion, the motion for new trial is untimely and the-Court therefore has no jurisdiction to consider it. Treating the motion as one for relief from judgment under Rule 60(b), it is denied for failure to state a meritorious claim.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485872/ | Facts
At all relevant times, defendant Fatima Galea‘i owned and operated a travel agency doing business as Paradise Travel, hereafter referred to as "Paradise". Part of the service which Paradise offered to its clientele included the earlier transfer of a customer’s luggage, and then his later transport as well, to the airport. Paradise had the defendant Ken Viliamu in its employ to provide this special pick up service. The parties’ written stipulation of facts contained the following description of Viliamu’s duties:
[t]he instructions given by Paradise Travel to the employee [Ken Viliamu] was [sic] to pick up the bags from the purse seiner in a vehicle provided by the company, [and] lock them up inside the trunk of the car while the employee is at home awaiting the time to check them in. When it [was] time to check in, the employee was to take the luggage to the airport and check them in with the airline.
At all relevant times, plaintiff Garcia was a fisherman with a vessel affiliated with one of the canneries which numbered among Paradise’s clients. He made plans to visit his family in Peru after his return from a certain fishing voyage and, as with his previous trips home, plaintiffs employer arranged his round trip airline tickets through Paradise. On the appointed day of travel, therefore, defendant Viliamu was sent to collect plaintiffs luggage. On this occasion Viliamu did not take the vehicle provided by his employer, but went in a pickup truck and was accompanied by four young men. He arrived at plaintiffs vessel around eight in the evening, whereupon the plaintiff hurriedly changed and packed away a pair of shorts he was earlier wearing and in which he was carrying certain funds to be taken on the trip. Plaintiff *16testified that this consisted of cash in the amount of $3,300.00 and traveller’s checks in the amount of $420.00. He realized only after Viliamu had left that he had packed away his money along with his shorts. He made a mental note to remove his money from his bag once he got to the airport.
The parties further stipulated that:
[f]rom the purse seiner, Ken Viliamu and the men went to the main dock to pick up a fish. After picking up the fish the men proceeded towards Nu’uuli. On their way they picked up one Kapeneta Leu at Utulei. From Utulei Ken and his men went to Nu‘uuli to drop off the fish. From Nu‘uuli the group went to Pava‘ia‘i to drop off Mr. Leu. Upon leaving Pava‘ia‘i they headed for Tafuna. At Tafuna the luggage was unloaded and taken into the house belonging to Ken’s family. At about 10:45 p.m., Ken took the luggage to the airport to be checked in.
When plaintiff arrived at the airport, he located Viliamu together with his luggage. Upon opening his bags, plaintiff discovered that the contents of his luggage had been tampered with; some of his clothing had been removed and all of his money was missing. After some exchange with Viliamu about the missing money, and after plaintiff made known his refusal to travel without his funds, Viliamu left momentarily but then returned with plaintiffs traveller’s checks. In the end, plaintiff did not get his cash nor did he travel that day; instead, he remained and filed a complaint with the Police Department. However, before the police had made any headway in their investigation of that complaint, Viliamu quietly managed to depart the territory and he is now thought to be living somewhere in New Zealand.
Discussion
Plaintiff sues Viliamu’s employer for the recovery of his missing funds arguing a breach of bailment and/or vicarious liability on the grounds of respondeat superior. For reasons given, plaintiff must prevail.
Firstly, we reject the notion harbored by the defense that Paradise could not have been a bailee because its luggage pick up service was gratis and "not a bargained-for exchange." To the contrary,
*17[a] bailment for mutual benefit arises whenever it appears that both of the parties receive a benefit from the transaction. It is not essential, to constitute a bailment for mutual benefit, that the bailee actually receive compensation in money or tangible property, so long as the bailment is an incident of the business in which the bailee makes a profit, or was accepted because of benefits expected to accrue.
Global Tank Trailer Sales v. Texitilana-Nease, Inc., 496 P.2d 1292, 1294-95 (Kan. 1972). In the matter before us, Paradise can hardly claim to be acting gratuitously with its pick up service. Its efforts in this regard are business related and revenue motivated — the attraction of clientele and the sale of airline passage. As Ms. Galea’i candidly explained, the pick up service was offered as an inducement for people to travel with Paradise. In these circumstances Paradise became a depositary of its customers’ property as an incident to its business (the bailment purpose being the attraction of patronage) and as such it is liable for the loss of that property as a bailee for hire, the relationship between the parties being one for mutual benefit. See also Berlow v. Sheraton Dallas Corporation, 629 S.W.2d 818 (Tex. App. 1982); Greer v. Los Angeles Athletic Club, 258 P. 155, (Cal. App. 1927), Hotels Statler Co. v. Safier, 134 N.E. 460 (Ohio 1921); See generally generally 8 C.J.S. Bailments § 8 (1962).
Since there was a bailment for mutual benefit, the next question is whether Paradise exercised the required due diligence in the care of plaintiffs luggage. See, e.g., Fraam v. Grand Rapids & I. Ry. Co., 126 N.W. 851 (Mich. 1910). That due diligence has been spoken of in terms of "ordinary care" which "ordinarily prudent men, as a class, would exercise in caring for their own property under the like circumstances." Id. at 853. See also 8 Am. Jur.2d Bailments § 222 (1980).
We are satisfied that there was a bailment, and that certain of the bailed property was never returned by the bailee to the bailor upon the latter’s demand. By the same token, however, we were told nothing about the funds except that they remained missing save for the returned traveller’s checks. There can hardly be any argument with the claim that Ken Viliamu simply did not take care of plaintiffs luggage while he had it in his possession. The evidence was very clear; Viliamu failed to take any security precautions whatsoever with regard to plaintiffs property. From the time he picked up the bags to the time of check in, Viliamu had exposed the luggage to numerous opportunities for tampering, and, *18indeed, it was tampered with. The bags were picked up in the hours of darkness; they were loaded into a pickup truck with a number of people and transported about for an extended period of time; during this time, third parties had access to the bags. Assuming that Viliamu himself was not responsible for the theft of plaintiffs funds, it logically follows, on the extent of the record before us, that plaintiffs loss arose through, or was proximately caused by, Viliamu’s failure to properly look after the luggage.1
This is a loss for which Paradise is vicariously liable. As a master is vicariously liable for the actionable wrongs of his servants committed within the scope and course of employment,2 so is the bailee employer answerable for loss or injury with respect to the thing bailed resulting from the negligence or wrongful acts or omissions of his employees in the execution of the bailment, within the course and scope of their employment. 8 Am. Jur.2d, supra at §§ 236-37. Certainly in the matter before us, the missing bailed property was stolen during the course of Viliamu’s employment; his duties were to pick up plaintiffs bags and look after them, however, the bags were interfered with while Viliamu was supposed to be looking after them.
*19We also find Paradise to be directly liable to plaintiff. We are told nothing about storage measures taken in connection with allowing an employee to take home a passenger’s luggage except that he is instructed to lock up the luggage in the trunk of a company provided vehicle. We agree with the doubts raised by plaintiff as to the security of this practice. Paradise as the bailee enterprise had the primary duty of care towards the security of plaintiff’s property. It seems, however, that Paradise shifted that responsibility to Viliamu by being content to rely entirely on the employee to secure a reasonably safe storage when allowing him to take a customer’s luggage home as opposed to a facility provided by Paradise specifically for this holding purpose. This entails reasonably foreseeable opportunities for tampering with a customer’s luggage. Furthermore, a bailee should not be able to escape liability for his employee’s failure merely because he had instructed the employee to exercise due care. In Metzger v. Downtown Garage Corp., 82 A.2d 507 (Pa. Super. 1951), it was held that a parking lot owner (the bailee) could not escape his contractual obligation towards the car owner simply by saying that he is not liable because his servant had stolen the owner’s vehicle. The court here reasoned that ”[t]he bailee cannot receive money for the performance of a duty, and at the same time shift responsibility to a servant, and thus be relieved from liability for the violation of the very duties attending the bailment." Id. at 508. This "contractual" basis of liability is direct as opposed to liability imputed under the doctrine of respondeat superior for employee wrongs committed "during the course of employment." See also Joseph v. Mutual Garage Co., Inc., 270 S.W.2d 137 (Kan. App. 1954); 8 Am. Jur.2d, supra at §§ 237-38.
For the foregoing reasons, plaintiff shall have judgment against defendant in the sum of $3,300.00.
The courts have in many instances held that a bailee’s failure to return bailed property upon demand by the bailor establishes a presumption or prima facie case of negligence against him. Accordingly, it has been determined that such a bailee must rebut the presumption or demonstrate that he did indeed use due care to safeguard the bailed property. See Am. Jur.2d Bailments §§ 329 - 338 (1980).
This principle of law, usually referred to by the label respondeat superior, and which in itself means nothing more than "look to the man higher up," is a rule of policy, a deliberate allocation of risk. Prosser and Keaton on Torts 500 (5th ed. 1984).
The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed on the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance to the public, and so to shift them to society, to the community at large.
Id. at 500-501. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485873/ | This is an action for eviction. The complaint invoked the provisions of A.S.C.A. §§ 43.1401 et seq., for a summary proceeding and also contained a prayer for such relief as should prove to be justified on the pleadings and the evidence.
The principal feature of the summary eviction procedure is that trial shall be held within ten days of service of the summons, "unless extended by the court." In the present case the ten-day period would have expired on a Sunday, so trial was set for the following day, March 5, 1990.
At the trial both plaintiff and defendants were represented by counsel. Counsel for defendant filed an answer. The answer alleged that defendants had in fact complied with all their obligations under the lease and also raised certain technical defenses (e.g., the plaintiff Archdiocese "has no capacity to sue."). The answer did not allege that plaintiff had failed to comply with the statutory prerequisites for summary eviction. Nor was this defense raised at trial until after both the plaintiff and the defendant had rested.
The evidence taken at trial showed that defendants had been seriously and chronically deficient in making rental payments; that in March and April of 1989 plaintiff had engaged an attorney to commence eviction proceedings; that upon being threatened with eviction the defendants had paid the entire amount of overdue rent; that about six months later, in October of 1989, the defendants had again failed to make a rental payment when due; and that the rent had been at least one month overdue at all times between October 1989 and March 5, 1990, the date of trial.
Defendant Jum (who is in physical possession of the premises and who is an officer of the other defendant, KMST) did not disagree with plaintiff about the amounts paid and the dates on which they were paid. Instead he testified about his financial and logistical difficulties; about a conversation with the Bishop from which he, Jum, had derived some hope of an eventual settlement; and about various improvements he had made to the building.
*22The principal defense urged by counsel for the defendant in his closing argument was that defendant should be entitled to a credit against rentals for three months at the beginning of the lease term during which the premises had been unfit for their intended use. The Court rejected this argument on the ground that the lease agreement clearly reflected the parties’ understanding that the building would need substantial repairs and improvements in order to make it fit for defendant’s intended use; and that the agreement had specifically provided that the defendant lessee would be responsible for fitting the building for its intended use and should pay rent during the time this was being done.
The Court also noted that defendants, when threatened with eviction in April of 1989, had paid the entire amount of overdue rent demanded by plaintiff, plus plaintiffs attorney fees. Their failure to suggest at that time that they were entitled to a three-month credit or abatement — which, if true, would have meant that they were ahead rather than behind on their rent — bolstered the Court’s impression that the parties did not understand the lease agreement to provide for such a credit.1
In his closing argument counsel for defendant also raised another issue: the failure of plaintiffs demand letter to comply strictly with the provision of A.S.C.A. § 43.1406 that "[a] demand for possession or payment" must state, inter alia, "the amount due at the time of the demand." Although the demand letter in this case did state that "your *23company KMST is now three months behind in payments of rentals to the Catholic Church," it did not state a dollar figure. Moreover, the letter did not contain "the address or a brief description of the premises," as also required by § 43.1406.
In its ruling from the bench, the Court observed that these deficiencies, had they been pointed out prior to trial, might have caused the Court to conclude that the summary eviction process was not available. The Court ruled, however, that the insufficiency of the demand letter was the sort of defense that should have been raised in defendants’ answer or at the beginning of the trial. By letting the trial proceed without objection, the defendants waived any such objection.
Defendants now urge us to reconsider this ruling. They characterize the statutory requirements for the demand letter as jurisdictional, and correctly observe that the Court can and should notice, the absence of jurisdiction at any time.
This argument fails for three reasons. In the first place, although defendants assert that the form and content of the demand letter are jurisdictional, they have advanced no reasons to support this assertion. The defense that a landlord did not notify tenants of the substance of his demand would seem to go to the merits of his claim for eviction rather than to the competence of the Court. Indeed, the defendants themselves argue that this defense was raised by their blanket allegation that "[t]he complaint fails to state a cause of action upon which relief can be granted." A defense of no cause of action has traditionally been regarded as a defense on the merits.
In any case, some prerequisites to the exercise of jurisdiction can be waived by the parties. The test is set forth in a recent decision of the Appellate Division:
A party can generally waive the benefit of a limitation on jurisdiction that is clearly designed only for his own protection .... 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. . . 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.
*24Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75, 81 (1989).
The rules pertaining to the demand letter, like those having to do with service of process or with the exhaustion of some types of administrative remedies, seem designed not to allocate decision making power among tribunals or to ensure the existence of a case or controversy, but to protect a particular party. If so, they are presumably waiveable by that party. Entry of an appearance by counsel, the raising of defenses on the merits without objection to the Court’s jurisdiction, and active participation in a trial on the merits would generally be regarded as a waiver of any waiveable jurisdictional defenses.
On a more fundamental level, defendant’s argument that the Court was without jurisdiction to conduct the trial misconstrues the nature of the remedy provided by the summary eviction statute and its relation to the jurisdiction of the High Court. In providing a new summary process and specifying that this process was to be available only in certain cases, §§ 43.1401 et seq. did not purport to deprive the Court of its pre-existing general jurisdiction to issue injunctions and declaratory judgments and to award damages. The Court’s exercise of this general jurisdiction, both before and after the enactment of the summary eviction statute in 1984, has frequently included orders that people wrongfully occupying premises should vacate such premises and/or pay damages grounded in tort or contract. See generally A.S.C.A. §§ 3.0101, 3.0208(a), 3.0208(b)(2), 43.1101 et seq., 43.1301 et seq.
The only important difference between a "summary" and a "non-summary" proceeding for eviction is that plaintiffs who qualify for the former sort of proceeding are ordinarily entitled to have trial within ten days.2 The provision of such an entitlement in some cases need not be *25construed as a prohibition against equally speedy trials in other cases, at least not when the Court and all parties are willing.
Assuming (but not deciding) that the requirements for a demand letter set forth in A.S.C.A. § 43.1406 are indeed jurisdictional, they can only deprive the Court of its jurisdiction to conduct a summary eviction proceeding under the terms of the statute. Further assuming that the demand letter in the case did not comply with the statute, it would appear that the Clerk of the High Court should not have set the present action for trial within the statutory ten-day period. Rather, he should have waited for defendants to answer and then for one of the parties to move for a trial date, or for the Court to assign the case for trial on its own motion.
It is important to notice, however, that the only respect in which the trial of the present action was "summary" — the only way in which it differed from the trial of an ordinary civil action — was that it was held sooner than would ordinarily have been the case. It is also important that shortly before the commencement of the trial (on March 5 at 9:00 a.m.), defendants filed their answer with the Clerk. At any time after the filing of the answer, with or without a request from either party, the Court was free to hold a trial without resort to the special statutory provision for summary proceedings. See Trial Court Rules of Civil Procedure, Rule 40.3 Even if the demand letter was so deficient as to deprive the Court of the special jurisdiction granted by A.S.C.A. §§ 43.1401, therefore, the March 5 trial was a valid exercise of the Court’s general jurisdiction.
*26We hasten to add that jurisdiction is not everything. Courts ought not to do many of the things they have jurisdiction to do. To hold a trial only a few minutes after the filing of the answer, over the objection of a party or under equivalent circumstances (e.g., an absent defendant or one who is unrepresented by counsel and unfamiliar with Court procedures), would be fundamentally unfair. Cf. Wray v. Wray, 5 A.S.R.2d 34 (1987).
In the present case, however, there is no evidence that holding the trial on March 5 rather than, say, April 5 resulted in any surprise or other procedural unfairness to the defendant. Not only was no objection raised by defendant Jum or his counsel, but both appeared to be reasonably well prepared for trial. Counsel has not suggested any evidence or argument that was unavailable to defendants on March 5 but that might have become available had the trial been held later. Defendant Jum did request a few extra days so that he could attempt another discussion with the Bishop; the Court effectively granted this request by staying execution of its judgment for two weeks or until the ruling on a motion for reconsideration, whichever should be later. (As it turns out, the pendency of the present motion has caused the stay to remain in effect for 56 days, which is longer than an eviction under the general non-summary process might have taken.)
Nor do the arguable deficiencies in the demand letter — the absence of a precise dollar figure and of a description of the premises — suggest, on the facts of the present case, that eviction would be substantively unfair to the defendants. Defendant Jum knew exactly what premises were referred to in the letter, knew what the monthly rental was, and knew how to multiply by three. If the defendants were correct in their argument that the Court would have no jurisdiction to decide the case unless the demand letter stated certain terms in certain ways, then it would of course be irrelevant whether the absence of such terms was in fact prejudicial. Insofar as the case was within the scope of the Court’s general jurisdiction, the demand letter is still important but for a different reason: it must be scrutinized to determine whether it gave defendants actual notice of what was being demanded and of the consequences of noncompliance. This it did.
In conclusion, the omission from the demand letter of a dollar figure and of a description of the premises may well have deprived plaintiff of its right to insist on a trial date within ten days of filing the complaint. It did not, however, deprive the Court of its general jurisdiction to decide cases concerning the right to possession of *27property. The Court was free to hear such a case on the day of its choosing, at least in the absence of objection by either party.
One possible objection to the above analysis is that all of us — the Court, the Clerk, the parties, their counsel — were operating under the impression that this was indeed a summary proceeding, at least until after the close of evidence when somebody noticed the problems with the demand letter. For this reason, we would be inclined to grant a new trial if there appeared to be the slightest possibility that such a trial would result in a different outcome. We would do this not because we did not have jurisdiction to hear the case on March 5, but because the interests of justice would not be served by allowing a result to stand which might be attributable to confusion or even to undue haste.4 The March 5 trial, however, was a fair one in which both parties thoroughly addressed the merits of the case. A new trial would appear certain to produce identical evidence, identical arguments, and an identical result.
Accordingly, the motion to reconsider is denied. The motion for a further stay of execution is also denied.
It is so ordered.
In any case, the April 1989 settlement appears to have been an accord and satisfaction which defendants were thenceforth estopped to contest. (Defendants, who are respectively a corporation engaged in extensive trans-national commerce and an apparently sophisticated businessman, have raised no suggestion that the April 1989 settlement was unconscionable or otherwise unenforceable.) By claiming a credit or abatement allegedly accruing in early 1988 as a defense to an action based on overdue rents for late 1989 and early 1990, defendants necessarily seek to undo the April 1989 settlement. In every month between that settlement and the onset of the present controversy — May through September of 1989 — defendants paid plaintiff exactly one month’s rent. Their contention that they did not fall behind when they stopped paying in October, because they had really been three months ahead all along, is not based on anything that happened during those post-settlement months. Rather, it entails arguments about the pre-settlement rights and obligations of the parties, which defendants were entitled to believe had been resolved by the settlement.
Even if the April 1989 agreement was for some reason not a binding accord and satisfaction, the defendants’ conduct in paying the monthly rentals between May and September provides further evidence that the alleged three-month abatement was no part of the parties’ original understanding, but was instead an afterthought designed to avoid the consequences of defendants’ recent non-payment. Tenants do not generally pay their rent three months in advance without saying something about it at the time.
Another difference is that A.S.C.A. § 43.1402 inexplicably gives jurisdiction over summary eviction proceedings to the Trial Division, whereas other actions for the possession of land are brought in the Land and Titles Division. The only practical difference is that the present action was therefore styled ”CA" for Civil Action, whereas a non-summary eviction proceeding would have been styled ”LT” for Land and Titles.
All Justices and Judges of the High Court are qualified to sit in both the Trial and Land and Titles Divisions. The present three-judge panel is fully qualified as a panel of either division. Cases are rather frequently styled "CA" that should have been styled ”LT" and vice versa; when this appears during the course of the litigation, the appropriate remedy is not to dismiss the case, but simply to give it a new number.
Since the only difference between a three-judge panel sitting as the Land and Titles Division and the same three judges sitting as the Trial Division is whether the case *25is styled "CA" or ”LT," a final decision by one division in a suit that should have been brought in another division is not subject to attack on jurisdictional grounds. Indeed, from time to time the Court hears cases in which some of the relief sought can only be granted by the Land and Titles Division and another part can only be granted by the Trial Division. This would appear to include eviction cases in which the plaintiff seeks both summary and non-summary remedies. See, e.g., American Samoa Government v. Samoa Aviation, Inc., 11 A.S.R.2d 144 (1989).
Because we conclude that the relief granted in the present case should properly have been treated as an exercise of our general jurisdiction over eases involving the right to possession of land, we have assigned the case an LT number in place of its original CA number.
Indeed, Rule 40 does not say in so many words that a case can be assigned for trial only after an answer has been filed. While it would be sloppy practice to proceed to trial in the absence of an answer, and to do so over the objection or without the knowledge of a party might deprive that party of due process of law, it is not clear that the outcome of such a trial would be subject to attack on jurisdictional grounds.
See, e.g., American Samoa Government v. Samoa Aviation, Inc., 11 A.S.R.2d 144, 154 (1989):
In 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 [sic] been more time. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485874/ | These petitions seek the termination of the rights of the natural parents so that the children can be legally adopted by their maternal grandparents. The children are nine and eleven years old, respectively. Until quite recently the children, their natural parents, and the prospective adopting parents lived together in the same household. This arrangement was in effect since the children were bom. The natural parents have now moved to an adjacent house also owned by the grandparents; the evidence does not reflect whether the two children reside primarily in the house with their natural parents or with their grandparents.
When asked why she wanted to give her children up for adoption, the natural mother responded that it was because her parents had no one around the house to do the chores. This is a frequent motivation for informal fa‘a Samoa adoptions. Such informal adoptions do not require the consent of the Court because they do not affect the legal rights and obligations of the parties. If the natural parents want to let their children live with the grandparents, and if the children want to live there, they are free to do so. A legal termination of parental rights - — in which the natural parents would have no right to reclaim the *29children, and would have no legal obligation to support them in the event of the death or incapacity of the adopting parents — is absolutely unnecessary.
A legal termination of parental rights can be granted only when it would be in the best interest of the children. In this case the natural parents are married, gainfully employed, and in their thirties. The grandfather is fifty-eight, retired, and receiving a disability pension. The grandmother is sixty and receives a small income from work she does in connection with the Territorial Administration On Aging. There has been no showing that the children will be better off if the legal rights and obligations of their parents are terminated.
The petitions are denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485875/ | On Motion for Stay:
Appellant is an Iranian national who came to American Samoa on a temporary visitor’s permit in 1987. The immigration authorities have apparently been attempting to deport him since mid-1988. Their failure to accomplish this objective appears to be attributable not to any particular merit in appellant’s claim of entitlement to remain in the Territory, but to a series of difficulties the Immigration Board and its legal counsel have had in understanding and following the laws governing the conduct of their own proceedings.
*31This case has been before the Appellate Division of the High Court once before. In Rakhshan v. Immigration Board, 13 A.S.R.2d 25 (1989), we granted a stay of the Board’s deportation order on two grounds: (1) the Board had not produced a complete record of its proceedings, as contemplated by A.S.C.A. § 41.0210, so that judicial review on the record was impossible; (2) although what there was of the record did suggest that the Board would have been legally authorized to deport appellant after he lost his employment in May of 1989, it was not clear that the Board would have deported petitioner on this ground in the absence of other charges that had not been proved.
We therefore granted a stay and remanded the case to the Board for further proceedings. The Board was free to deport petitioner on the ground of his loss of employment; to deport him because of the other charges, providing a record could be produced to support them; to consider further charges; or to allow petitioner to remain in the Territory.
The proceeding and order from which the present appeal is taken seem to reflect a fundamental misunderstanding of our decision in the previous appeal. The Board begins by deciding not to consider the "overstaying" charge resulting from defendant’s loss of employment status in 1989. Apparently this decision was based on the Board’s erroneous impression that the stay of proceedings in the earlier appeal had somehow immunized defendant from the underlying charge that he had remained in the Territory beyond the terms (i.e., length of stay and employment status) of his original permit.
The Board’s decision then proceeds to order appellant’s deportation on three other grounds: failing to report a change of address to the immigration authorities; making false statements in an immigration application; and being the object of a valid foreign arrest warrant.
Appellant’s defense to the charge of failing to report his change of address amounts to the assertion that this is a "technicality" on which the Board is placing undue emphasis. The Board takes the position that the failure to report change of address was part of a deliberate scheme on the part of Mr. Rakhshan to evade service of an arrest warrant by immigration officials:
[T]hey were unable to locate Mr. Rakshan [sic] for about 2 months and was later located on a mountain next to Canco Hill. Mr. Rakshan had a binocular with *32him when he was located and . . . was about to run away at the time of his location.
While purporting not to question appellant’s "intergrity," the Board notes that "Mr. Rakshan knew that arrest warrant were issued against him and, intergrity and all, purposesly [sic] hide [sic] himself on the mountain."
Appellant’s response is that his past experience with the immigration authorities had convinced him his rights would be violated if he allowed himself to be arrested. Asked by the Court why he secreted himself instead of consulting with a lawyer about his rights, appellant responded that he had lost confidence in his lawyer and that he was perhaps not thinking clearly at the time.
Regardless of the motives of appellant or of the immigration authorities, it does appear that appellant failed to report a change of address and that this failure was wilful rather than accidental. A.S.C.A. § 41.0312 defines such conduct as a ground for deportation.
The other stated grounds for deportation are more doubtful. The record does reflect that there is a valid Philippine arrest warrant issued against appellant. Since appellant is not a Philippine citizen, however, and since an arrest warrant is only a deportable offense when issued by the country of citizenship, the Board does not appear likely to prevail on this ground. See A.S.C.A. §§ 41.0615(23), 41.0616(17). Moreover, the Board charged this offense under A.S.C.A. § 41.0615 ("excludable" aliens) rather than under § 41.0616 ("deportable" aliens).
With respect to the charge of filing false statements, the Board made the following finding:
During hearing [sic], Dr. Laumoli testified that [certain statements about appellant’s job prospects and dental experience were] not true. That Mr. Rakshan had dictated to him what to write that he signed the letter mainly to help Mr. Rakshan and that all these falsification was not for employment but to help keep Mr. Rakshan here in American Samoa. Mr. Rakshan has countered this by calling Dr. Laumoli a liar. The fact remains that the Immigration Board had been made a fool by both Dr. Laumoli and Davoud Rakshan in submitting false information with intention to mislead the Board. The Board on its own motion, *33determines that alien Rakshan has violated ASCA 41.0313 as above.
It is probable, although not certain, that this finding satisfies the statutory standard that false statements in immigration documents be "known by [the applicant] to be false" in order to justify deportation. See A.S.C.A. § 41.0313. Although the apparent gravamen of the charge, making a fool of the Immigration Board, is not a statutory offense, and although the Board declines to decide whether it was appellant or the other witness who was lying, the finding that appellant submitted false information "with intention to mislead the Board" implies that appellant knew the information to be false.
In order to prevail on the merits of this appeal it is necessary only that the Board prevail on any one of the three grounds. Since it appears probable that the Board will prevail at least on the ground of wilful failure to report a change of address, it is unnecessary to decide whether the other two grounds also have merit. Appellant has not shown that he is likely to prevail on the merits of his appeal, and is therefore not entitled to a stay of execution pending the ultimate disposition of the appeal.1
Appellant has also asked for a stay pending the outcome of a civil action he has against the government. This is not a ground on which we can grant a stay of deportation. We have, however, already granted a temporary stay of deportation until 4:00 p.m. Thursday, May *3410. This should be sufficient time for appellant’s counsel to arrange to take his deposition. The deposition of a witness who is absent from the Territory is admissible as evidence in High Court proceedings provided (1) that the deposition was conducted in accordance with all applicable rules; (2) that the party offering the deposition has not been able to procure the attendance of the witness by process or other reasonable means; and (3) that the opposing party had an opportunity and motive to cross-examine the witness. See T.C.R.Ev. 804(a)(5) & (b)(1).
There is, however, one part of the Board’s order from which the record does compel us to grant relief. This is the designation of Iran as the country to which appellant will be deported. Although an Iranian citizen, appellant came here from the Republic of the Philippines. The evidence taken at the hearing is to the effect that he is eligible for readmission there. There are important differences between deportation to the Philippines and deportation to Iran. If further inquiry on the part of the Board should cast doubt on appellant’s eligibility to reenter the Philippines, we will hold a further hearing to determine the effects that deportation to Iran would have on appellant’s ability to prosecute this appeal.
We also state herein our reasons for ordering on April 19, 1990, that the appellant be released on bail in the form of a $7,000 surety bond. Counsel for the Board stated that he had refused to accept the surety bond in lieu of a cash bail not because it was feared that the appellant would not make required appearances, and not because appellant posed any danger to any person, but in the hope that some friend of the appellant would "be reasonable" and offer to put up the money it would otherwise cost the Government to pay appellant’s air fare to Iran. This is outrageous conduct, hard to characterize as anything but the official holding of a hostage for ransom. A denial of bail for such a reason to an accused burglar or child abuser would violate the constitutional rights of the accused. It is hardly appropriate that a person who is accused of failing to report a change of address should be incarcerated under circumstances in which the Government would not incarcerate one accused of a violent crime.
Finally, we note that an order of deportation has not been made by the Attorney General as required by A.S.C.A. § 41.0616. In many cases this may be regarded as a formality, since the Board is subordinate to the Attorney General and advised by a member of his staff. The allegations of vindictiveness and selective enforcement in this case, however, and the patent and repeated bungling by the Board and/or its *35legal counsel, suggest that the Attorney General himself should take a hard look to determine whether the order is an appropriate exercise of the discretion vested in the Government.
The stay previously granted is modified as follows: execution of the order of deportation is stayed until 4:00 p.m. on May 10, 1990, or until the order is personally reviewed and approved by the Attorney General, whichever is later, provided that deportation shall be to the Republic of the Philippines rather than to Iran. Deportation to Iran is stayed until further order of the Court.
It is so ordered.
We note further that the Board's misconstruction of our earlier opinion apparently caused it to discard its strongest ground for deportation. The record of this proceeding and of the prior one clearly reflect that appellant did stay in the Territory after he had lost the employment status which had been the basis of his original permit. If the Board had ever decided clearly and unequivocally that he should be deported on this ground, it would almost certainly have prevailed.
As we noted in our original opinion, A.S.C.A. § 41.0407 provides that a person who loses the status on which his permit was based "shall be deemed a person seeking to enter American Samoa from the date when he ceases to hold such status." He would then be presumed not to be entitled to remain in the Territory, and the presumption could only be rebutted by a showing that he satisfies each of the criteria set forth in § 41.0401 — that he is of good character, has no "excludable" offenses or characteristics, has a local sponsor, is not likely to be a financial burden on Samoa, and offers a skill or expertise needed and not readily available in American Samoa. A Board finding that appellant did not meet one or more of these criteria, while not unreviewable, would be sustained in the absence of clear error. In particular, the Court has traditionally been most reluctant to substitute its own judgment for that of the Immigration Board on the question of what skills and expertise are needed in American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485877/ | On Motion for Leave to Amend:
Plaintiffs, Jack and Joan Holland, filed action against the defendant, Haleck Island Motors, alleging the non-return of their vehicle, which was given over to defendant for repair work. They seek damages claiming a bailment and breach thereof as well as negligence on the part of defendant. At this time, plaintiffs seek leave to amend their complaint to add the Royal Insurance Company as a party defendant. The insurance company is said to be Haleck Island Motors’ liability insurer. In support of their motion to add or join, plaintiffs invoke the direct action statute, A.S.C.A. § 29.1537. The enactment reads:
On any policy of liability insurance, the injured person or his heirs or representatives has a right of direct action against the insurer within the terms and the limits of the policy, whether or not the policy of insurance sued upon was written or delivered in American Samoa, and whether or not the policy contains a provision forbidding direct action, provided that the cause of action arose in American Samoa. The action may be brought against the insurer alone, or against both the insured and insurer.
The Fono has further ensured that this direct action right applies irrespective of the insured’s bankruptcy. See A.S.C.A. § 29.1538.
On the other hand, the insurance company contends that the right of direct action provided under A.S.C.A. § 29.1537 is limited only to actions for "personal injuries or wrongful death," to the exclusion of actions for "property damage." The insurance company argues that the *46statute is so limited because it talks about "injured persons." It further claims that the definition of "liability insurance" as found in A.S.C.A. § 29.1505(b) references only personal injury or wrongful death. A.S.C.A. § 29.1505(b) reads:
(b) Liability insurance includes all insurance against loss or damage resulting from accident to, or injury, fatal or nonfatal, suffered by, any person, and for which the insurer is liable.
Thus, the company submits, "[f]or the right of direct action against an insurance carrier to arise, the plaintiffmust be injured, not the plaintiffs property." (Emphasis in original.) Defendant’s Memorandum of Points & Authorities at 2.
Discussion
For reasons given, we reject the insurance company’s reading of the enactments as being unnecessarily restrictive. Firstly, we note that A.S.C.A. § 29.1537 is a statement of territorial public policy. The enactment provides the right to sue an insurer on any policy of liability insurance "whether or not the policy contains a provision forbidding direct action."1 The statute must, therefore, be liberally construed so as to enhance its public policy purpose, namely, allowing direct actions on liability insurance policies. Furthermore, this statutory right of direct action is made available with respect to "any" policy of liability insurance. See A.S.C.A. § 29.1537. At the same time, we cannot agree with the insurance company’s suggestion that the language of A.S.C.A. § 29.1505(b) does not admit property insurance coverage. In any event, the enactment does not attempt a comprehensive definition of "liability insurance." The definition includes certain named losses, it does not necessarily exclude all other losses from coming within its ambit.
*47Finally, we simply cannot see any sensible basis for discriminating between personal injury causes and property damage causes in the context of direct actions against an insurer. What, for example, would be the social purpose achieved in requiring a plaintiff who has suffered both personal injuries and property damage in one accident to conduct two different law suits because he opts to invoke his rights under A.S.C.A. § 29.1537 or § 29.1538? There is none. In the context of compulsory automobile liability insurance — A.S.C.A. §§ 22.2001 et seq. — liability insurance encompasses both damages for personal injuries and property losses. See A.S.C.A. § 22.2003. The experience under this statutory scheme, which also provides a right of direct action, has yet to suggest any difficulty with allowing an insurer to be sued directly for both personal injury and property loss.
Motion granted. It is so Ordered.
Liability insurance policies customarily provide that no action shall lie against the company until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the company. The principal reason for inserting the "no action" clause in policy forms was to require an adjudication of the tort action against the insured without involving the insurer as a party and thereby incurring the disadvantage of jury prejudice against insurers. R. Keeton, Insurance Law 534 § 7.11 (1971). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485878/ | These consolidated cases concern a 24-acre tract referred to as "Malaeimi" or "part of Malaeimi." It is located on the western slopes overlooking the Malaeimi Valley, adjacent to the village of Faleniu. Opapo Afualo has offered it for registration as the individually owned land of "the children of Luteru Afualo."
This tract is immediately to the west of the 300-acre tract (also called "Malaeimi") long occupied by the Mormon Church and held in Reid v. Puailoa, 1 A.S.R.2d 85 (1983), to be the communal property of the Puailoa family of the village of Nu'uuli. It is also slightly to the east of an area called Mesepa or Mapusaga Tuai, a part of Faleniu belonging to Alai‘a and Moea‘i among other families of that village. Moea‘i v. Te‘o, 8 A.S.R.2d 85 (1988), aff’d sub nom. Moea'i v. Alai‘a, 12 A.S.R.2d 91 (1989).
The Puailoa, Moea‘i, and Alai‘a families have all objected to Afualo’s offer of registration. The fourth objector is Penirosa Fanene for the Fanene family of Nu'uuli.
In addition to the Afualo registration case (LT No. 7-88) we are presented with an injunctive action by Afualo against Puailoa and his son-in-law (LT No. 3-89). The two cases were consolidated for trial.
Finally, we note that all but about 7.6 acres of the land now in dispute is also included in a 153-acre tract which has been offered for registration by Puailoa. Moea‘i is the only objector to the Puailoa registration, which is presently pending before the Court as LT No. 7-88. Although that case was inadvertently not consolidated with the present cases, it is important to the present proceeding in at least two ways. First, a map of the 153-acre Puailoa survey and accompanying exhibits have been introduced as evidence of Puailoa’s claim. Second, Puailoa argues that because Afualo, Alai‘a, and Fanene failed to lodge timely objections to the 153-acre survey when it was offered for registration in 1986, they are barred from asserting claims to that tract or any part of it in any subsequent proceeding, including this one.
*50
I. Afualo’s Claim
Opapo Afualo bases his claim on individual occupation and cultivation. He claims that his father began occupying and cultivating the 24-acre tract in 1932 and that no one interfered with him until recently.
The evidence is overwhelming, however, that Afualo’s father came to Malaeimi in his capacity as an official or employee of the Church. It was the practice of the Church to let members and employees cultivate small plots for their own use within Church lands. Such cultivators, however, were acting as licensees of the Church rather than as putative owners. Activities on the land in pursuance of a license, no matter how extensive and no matter what the original state of the land, cannot give rise to a claim of ownership. See, e.g., Tuileata v. Talivaa, 3 A.S.R. 201 (1956); Satele v. Uiagalelei, 6 A.S.R.2d 143, 145 (1987) (licensee who occupied land for many years and established a large commercial farm did not thereby acquire title).
Counsel for Afualo relies heavily on the fact that the land claimed in the present case was outside the 300-acre tract then thought to belong to the Church. In the context of the circumstances surrounding the senior Afualo’s presence in Malaeimi, however, this is insufficient to prove that he acted on his own account under a claim of right in cultivating such lands. While it is theoretically possible that the same person could have cultivated lands inside the Church tract in his capacity as a Church employee while simultaneously cultivating immediately adjacent lands under a claim of ownership, in the present case there is no evidence (other than the bare assertion of Opapo Afualo) to support this hypothesis. On the contrary, the evidence is to the effect that in those days Church members did not know exactly where the boundary was. This is a far more plausible explanation than the dual-roles hypothesis for any Afualo cultivations that may have been outside the Church tract.
Moreover, the preponderance of the evidence (including that offered by Afualo’s own principal witness other than himself) was to the effect that Luteru Afualo’s plantings were primarily in an altogether different area than the one now in dispute. While he apparently did have some association with some plantings in the southeastern portion of the present 24-acre survey, these plantings appear to have been a Church project carried out by a group of schoolchildren of whom Luteru Afualo was the supervisor. (The evidence, including aerial photographs, is that the northern part of the 24-acre survey was not extensively cultivated by *51anyone until quite recently. This area is on a fairly steep hillside at elevations between 500 and 700 feet.)
The argument that Luteru was acting as owner of the land is further contradicted by the evidence that he and his family left the land when their Church service in Malaeimi ended. They were absent for many years until the fairly recent return of Opapo Afualo. At first Opapo worked at least primarily within the 300-acre Church tract. When Puailoa recovered this tract from the Church in 1983, Afualo made his peace with Puailoa and continued to work on the 300-acre tract. Although he may also have worked some adjacent lands, as did the Puailoas themselves during this period, Afualo never claimed individual ownership of any of the land he was cultivating until after Puailoa ordered him to leave in 1987.
Since we find that Afualo has not presented evidence sufficient to establish his claim of ownership, we need not decide whether he was barred from doing so by his failure to object to the 1986 Puailoa survey.
II. The Claims of Puailoa, Moea'i, and Alai‘a
Puailoa’s claim to the 24 acres — and to the whole 153 acres he offered for registration in 1986 — is based primarily on the idea that the owner of a valley has a right to the adjoining mountainsides as a sort of curtilage or natural frontier. Although this proposition has some support not only in Western political theory but also in Samoan tradition, it is demonstrably not a principle of universal application. While almost every Samoan land claimant believes that the true and original extent of his family’s holdings was "from the mountaintop to the ocean reef," the island of Tutuila has for some years had rather more families than mountains. Accommodation, itself important to Samoan tradition, has been necessary. A walk from the mountain to the shore more often than not traverses the lands of five or ten landholders, each perhaps believing the others to be ancient usurpers, each more or less resigned to the imperfect boundaries that have evolved over time.
In deciding between competing claims to ownership of communal land in Samoa, therefore, the Court must look primarily to the facts: to the record of occupation and cultivation rather than to claims based on family history. In the present case the Puailoas are strong on family history but weak on occupation and cultivation. Puailoa himself admits that his family was absent from the land presently in dispute from "after World War II" until about 1971. The best evidence is that the *52absence was of even longer duration. Indeed, it appears that the only people who worked on the slopes west of the 300-acre tract then occupied by the Church at any time between about 1900 and about 1979 were (a) Church members whose plantings extended beyond the boundaries of the Church tract, probably by inadvertence; and (b) families of the adjoining village of Faleniu, including the Moea'i and Alai‘a families.
This evidence would ordinarily lead to the conclusion that the family histories of the Faleniu claimants — in which the slopes belonged to them and to other Faleniu families, not to Puailoa — are the correct histories and that Moea‘i and Alai‘a ought to prevail. In the present case, however, it is necessary to take note of a plausible alternative explanation.
Perhaps the single undisputed fact about the Malaeimi Valley that emerges from the many cases litigated about it during the last hundred years is that it was once the site of a village that was later abandoned. Fanene and Puailoa, two chiefs of Malaeimi, moved to the village of Nu‘uuli. Other Malaeimi people, however, appear to have moved to Faleniu. (Faleniu is immediately adjacent to Malaeimi, whereas Nu'uuli is a larger and more distant village.) It was these immigrants to Faleniu who continued to visit Malaeimi, to gather timber, and to guard against encroachments by strangers during the years or centuries in which nobody lived there. See Puailoa v. Alo Taisi, 1 A.S.R. 196 (1909). In 1909, however, the Court concluded that these Faleniu caretakers were operating by appointment and authority of Puailoa. Id. at 196.
The 1909 case was between Puailoa and a chief of Fagasa, a village on the opposite side of Malaeimi from the land presently in dispute. It concerned a small tract within the 360 acres then leased to the Church, apparently at the Fagasa end of the valley. No one from Faleniu was a party to the case. Although at least one Faleniu chief was a witness for Puailoa, he was not an ancestor in title of either of the two present claimants. It would therefore be improper to treat the present Faleniu claims as barred either by res judicata or by collateral estoppel. On the other hand, we cannot ignore the possibility that the Faleniu occupation of the mountainsides during the Twentieth Century might have been subject to the general overlordship of Puailoa, as the 1909 Court found to be the case with Faleniu activities in the valley itself during the Nineteenth Century. Since no party to the present case has specifically *53addressed this question, for us to attempt a definitive resolution of it would both difficult and inappropriate.
Finally, a determination that the land in dispute belongs to the Faleniu claimants — the result most consistent with the evidence in the present case, leaving aside any inference from the 1909 decision — could not lead to a judgment in favor of either claimant. Neither Moea‘i nor Alai‘a put on any particular evidence of his family’s boundaries. Instead, the two agreed to join forces and to confine themselves to arguing for the proposition that the whole 24 acres belongs to the village of Faleniu. This may well be. With rare exceptions, however, land in Samoa is owned by families rather than villages. Olo v. Fuimaono, AP Nos. 27-81 & 28-81 (1982). The Faleniu claimants have not proved that this case is among the exceptions to this rule; on the contrary, it seems clear that Moea‘i believes his own family to own much of the land in dispute, notwithstanding his tactical alliance with Alai‘a.
We do note that the Alai‘a claim is not barred by the claimant’s failure to object to Puailoa’s survey in 1986. That survey was performed in 1980 under the auspices of the pulenu’u of the "Village of Malaeimi," ostensibly a subdivision of the Village of Nu‘uuli. To the exact extent that the Faleniu chiefs can prove their case on the merits — i.e., that the slopes to the west of the valley are part of Faleniu — the survey will have been shown to be facially inconsistent with the territorial statute on land registration, A.S.C.A. § 37.0101 et seq., since the notice required by the statute was not given to the chiefs of Faleniu. "Courts can and do disregard registrations ... in which the failure to afford the required notice affirmatively appears in the record of the registration itself." Ifopo v. Siatu'u, 12 A.S.R.2d 24, 28 (1989). See also Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). (The record reflects that the 24-acre survey in the present case, unlike Puailoa’s earlier 153-acre survey, was conducted with notice to the chiefs of Faleniu.)
With respect to the claims of Puailoa, Moea‘i, and Alai‘a, therefore, we can find facts but draw no legal conclusion. The best evidence of occupation and cultivation of this area, other than by Church members immediately adjacent to the Church boundary, was by various families of Faleniu. Whether this occupation and cultivation was under a claim of right (as we would ordinarily presume) or whether it was pursuant to a still-existing relationship between Puailoa and certain Faleniu people dating back to the ancient village of Malaeimi (as the 1909 case suggests but does not resolve) is a question we have insufficient evidence to decide.
*54
III. The Fanene Claim
Fanene, like Puailoa a chief of Nu‘uuli, is also reputed to have been a chief of the ancient village of Malaeimi. The Fanene family has been judicially acknowledged to be the owner of Malaeimi on the sea side of the main government road. See, e.g., Tu‘utau v. Fanene, No. 1-1931 (1932). The land presently in dispute is on the mountain side. Fanene contends, however, that he owns a certain tract within this land, at the edge of the mountain but not otherwise precisely identified, by right of original occupancy. He testified that he went on this land at some time during the 1970s and cultivated it for several years before abandoning it.
The timing and approximate location of the plantings now asserted by Fanene suggest that they may have been the very ones involved in Reid v. Fanene, LT No. 7-79, one of the consolidated cases decided in Reid v. Puailoa, supra. In that case it was held that "the Fanene family has no interest in or right to the subject land." Id., 1 A.S.R.2d at 86. Although the holding of Reid extended only to the 300-acre Church tract, the trial court’s conclusion with respect to the Fanene family appears to have been that they were on the wrong side of the road. See Reid v. Fanene, supra, slip opinion at 16 (summarily disposing of Fanene’s claim with a citation of Tu‘utau v. Fanene, supra). Fanene would therefore be collaterally estopped to assert his present claim.
This claim must also fail on the merits. For the reasons we have stated in our discussion of the Puailoa, Moea‘i, and Alai‘a claims, the Malaeimi valley and the surrounding mountains were not available in 1970 to be claimed by "original" occupation and cultivation. At least 300 acres, comprising the bulk of the valley and also including the lower part of the western slopes, was the communal land of the Puailoa family. The higher ground had long been occupied by Faleniu people, as had the valley itself prior to the coming of the Church shortly after 1900. Whether the occupation of the slopes was on the occupants’ own account or under the authority of Puailoa is a question to be settled or litigated among the parties in question, but it rendered the land insusceptible of new "original occupation." The land already had an owner or owners, who could be divested of title only by thirty years’ worth of adverse possession (or twenty years, if completed before the statute was amended in 1982). Fanene does not claim to have occupied any land on the mountain side of the road for twenty years. (This analysis also applies to the Afualo claim.)
*55Finally, Fanene’s claim may be barred by failure to object to the Puailoa survey even if it was not properly noticed, since the record reflects that he had actual notice of the survey. The record reflects that Fanene himself was the pulenu'u of the "Village of Malaeimi" who certified that notice had been given.
IV. Conclusion
The Afualo survey cannot be registered. The land in question appears to belong either to some family or families of Faleniu or to Puailoa. Judgment will issue denying the claim of Afualo.
Since Afualo does not own the land, the collateral relief requested in LT No. 7-88 will be denied. The preliminary injunction will remain in force for ninety days in order for Afualo to harvest any crops and remove any other property he may have on the land.
Our decision in this case is without prejudice to the right of Puailoa, Moea‘i, or Alai‘a to bring any subsequent action with regard to the land in question. If Puailoa wishes to press his claim to his 153-acre survey or to any part of it, however, he would be well advised to review the record and to cure any statutory deficiencies. (The 153-acre survey appears to include not only the western Malaeimi slopes up to an elevation of over 1000 feet, but also a substantial portion of the opposite slope overlooking Mesepa. If Puailoa is sure that the Court will hold these mountains to be part of Nu‘uuli rather than of Faleniu or some other village, he will presumably find no need to cure any deficiencies in the survey process.)
Judgment will issue denying the offer of registration and denying the requested collateral relief.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485880/ | On Motion to Reconsider or for New Trial:
We held that Ta‘avasa F. Falesigago Tauala was entitled to hold the Tauala title of the Village of Ta‘u, Manu‘a. The losing candidate, Luavasa Tauala, brings this motion for reconsideration or new trial. We address the grounds for Luavasa’s motion in the order in which they were raised.
I. Disqualification of Associate Judge
Luavasa argues that one of the four Associate Judges on the panel should have disqualified himself. This argument is based on a suggestion made during the trial that Luavasa had obstructed the installation of a chief who is a cousin of the judge’s wife. No motion to disqualify the judge was made during the trial; the issue is raised for the first time by way of the present motion.
A motion to disqualify would almost certainly have been denied even if it had been timely made. Although extended families are more important in Samoa than they are in most Western cultures, the relationship involved in this case was too attenuated and the incident in question too peripheral to require disqualification. If the judge’s wife were herself a member of the Tauala family, or even if her cousin were himself one of the contenders, disqualification would probably be appropriate to avoid the appearance of impropriety. If, however, a Samoan judge were required to disqualify himself whenever a party was alleged to have opposed or offended one of his wife’s cousins, it would frequently be impossible to assemble a quorum of the Court.
Such a rule would also work to the peculiar advantage of certain kinds of litigants: the more people’s cousins somebody had offended, the better his chances of trial by the judges of his choice.
The incident, moreover, was barely mentioned at trial; it was not specifically discussed in the Court’s opinion; and, contrary to the *67central assumption behind the present motion, it played no significant role in the Court’s deliberations. It was one in a string of instances in which Luavasa was alleged to have been inappropriately combative or high-handed. Several far more egregious instances of such conduct — principally Luavasa’s own repeated violations of statutes and court orders during the ongoing Tauala title controversy, and his role in the installation of an illegal claimant to the Sotoa title — did figure heavily in the Court’s decision. These instances alone would have compelled our conclusions about this aspect of Luavasa’s character. (Even these, however, were overshadowed by other character issues and by other issues altogether. Exclusions from the village council and similar incidents consumed only a few lines in a twenty-page opinion.)
Last but not least, it is highly improper to wait until after the trial and then move for disqualification of the judge. Counsel tries to get around this fundamental rule by suggesting that he and his client did not know before trial that this incident would be brought up. This is no excuse for failing to suggest disqualification after the incident was mentioned at trial. Counsel then suggests that he had no way of knowing that it would be significant to the Court’s decision. It was not; but even if it were, Luavasa would have waived his objection by waiting to see which issues would impress the Court (and, not incidentally, who would win and who would lose) before moving to disqualify the judge.
11. Support of the Clans — Factual Contentions
Counsel takes issue with our findings of fact relating to this criterion. We reiterate those findings, with the following additional observations:
a) The "Samoan Affairs letter" on which counsel relies was shown to have been written not as a result of any family decision made in the presence of the Samoan Affairs official who wrote the letter, but because the Samoan Affairs official was told by some unidentified person or persons that Ta'avasa had agreed to withdraw his candidacy. He denies having made such an agreement, and never did withdraw.
b) Although it is apparently true that Tunupopo Laeli is not a registered matai — and although we do not approve of his failure to register his title in accordance with law — we did not rely on him for any proposition on which registration would substantially enhance the probable accuracy of his opinion. It is undisputed that he was chosen by the family, with the support of Luavasa himself, for a position of great *68respect and authority within the family. His statement that many people in the family support Ta‘avasa is important evidence, as is his personal support of Ta'avasa.
c) The two recent family meetings on which counsel places his heaviest reliance were not shown to have been representative enough or deliberative enough to be indicative of "the support of a majority or plurality of the clans." The most recent meeting, the only one of which we were presented with detailed evidence, was called on the eve of trial by a prominent supporter of Luavasa and appeared to consist entirely of eight speeches.
d) We hope and trust that we did not "def[y] all logic" by suggesting that some of Luavasa’s support was generated by his having illegally undergone the formalities requisite to assumption of the Tauala title. As counsel well knows, many Samoans attach a quasi-sacramental importance to such ceremonies. As opposing counsel put it in 1976 in his application for an order to restrain Luavasa from participating in the pa 7 faleula, the person who underwent this ritual would be regarded as the Tauala "in the eyes of the family, the village and the whole Samoa" - -- no matter what the law said and no matter how many family members did not wish him to undergo the ceremony.
The Court order restraining Luavasa from undergoing the ceremony, and the subsequent orders restraining him from holding himself out as the Tauala, were issued partly in order to ensure a level playing field while each candidate sought to gather and demonstrate support within the family. Luavasa defied these orders. In so doing he gained some of the tactical advantages the orders (and the statutes on which they were based) were designed to deny him. We did not and do not say that no candidate who illegally assumes a title can ever prove that he has the support of the family. Nor, however, could we simply ignore this factor in our assessment of the candidates’ relative support. Its effect was to take a muddled situation and muddle it even more.
e) Finally, Luavasa makes the ironic claim that the Court ignored clear evidence of his overwhelming support by failing to give him credit for this person or that one who formerly supported him but who now supports Ta’avasa. This is irrelevant, if not positively harmful to Luavasa’s case. The Court must make its assessment of family support as of the time of trial. Assuming the truth of Luavasa’s assertion that Lefiti, Laeli, and others formerly supported Luavasa but later *69became angry with him and went over to Ta‘avasa, they still count as supporters of Ta'avasa.
III. Support of the Clans — Legal Contention
Even if we had found that Luavasa had the support of the plurality of the clans, it would have been a close decision. Under the circumstances of the present case, a relatively indecisive showing on this criterion would have been outweighed by our stronger findings for Ta‘avasa on the third and fourth criteria.
Counsel for Luavasa, however, seems to argue that a finding for one candidate on the second criterion outweighs findings for the other candidate on the third and fourth criteria, invariably and as a matter of law. He bases this argument on the statutory mandate that the Court "shall be guided by the [four statutory] considerations, in the priority listed." A.S.C.A. § 1.0409. The first of these considerations is blood relation to the title; the second is support of the clans; the third is "forceiulness, character and personality" and "knowledge of Samoan customs"; the fourth and final criterion is "value ... to the family, village and country." Id.
We read the statute to require only that we give more weight to each criterion than to each of those that follow it. This is not inconsistent with the idea that some consideration should also be given to the relative margins by which various candidates prevail on each of the four criteria. Thus a strong showing on the second criterion could outweigh a relatively weak one on the first criterion — so that, for instance, a candidate with strong family support and a "25 % relationship" to the title could prevail over a candidate with weak family support but a "50% relationship." Similarly, an Eagle Scout with abundant knowledge of Samoan custom and strong family support might prevail over an axe-murderer with no knowledge of Samoan custom but slightly stronger family support.
More to the point, a candidate might win by tying his opponent on blood relationship; making a creditable but not quite victorious showing on clan support; and prevailing hands down on character, knowledge of Samoan custom, value to the family, etc. This would be the situation in which Ta'avasa would find himself if we had found Luavasa to prevail on the clan support criterion.
*70We are acutely aware of the danger that giving excessive weight to "subjective" aspects of the matai selection statute could lead to the Court’s imposing its own values over against those of the family. We try to guard against this tendency; it is not going too far to say that we agonize over it. The statute, however, explicitly requires us to give some weight to each of the four criteria and to make written findings on all four. See A.S.C.A. § 1.0409(d).
The alternative interpretation of the statute suggested by counsel would seem inconsistent with these statutory requirements. If a finding for one candidate on the first or second criterion necessarily precluded a victory for another candidate who prevailed on subsequent criteria, then it would be superfluous to consider the subsequent criteria at all. A son of a former matai would have a "50% blood relationship" and would always prevail over a grandson, who would have only a ”25% relationship," regardless of their other qualifications. This has never, been the law.
TV. Character, Value to the Family, Etc.
Counsel for Luavasa primarily objects to the relative weight we attached to various undisputed facts respecting the third and fourth statutory criteria. We have considered the arguments of counsel and stand by our original opinion on these matters.
Counsel does, however, raise one factual contention that must be addressed. He asserts that the crimes Luavasa committed while in the military were "apparently minor AWOL charges." At the hearing on this motion the Court pointed out that the record was at least as consistent with serious crimes as with minor ones. The Court also observed that Luavasa’s testimony and demeanor when confronted with the charges did not seem consistent with the proposition that they were trivial infractions. In our original opinion we were not so much concerned with the crimes themselves as with the fact that he lied under oath when confronted with them. Since Luavasa himself seemed to be putting the seriousness of the offenses at issue, however, we offered his counsel an opportunity tor a supplemental evidentiary hearing on this issue. Counsel declined this offer.
We note also counsel’s positive assertion that there were only two courts martial. The record is at least as consistent with the proposition that there were three. Luavasa finally admitted to two, after initial denials and evasions. When asked a detailed and specific question *71about a third court martial (whether he was not also convicted "on October 24, 1967," of "making ... a false statement with intent to deceive”) he did not deny it but said he did not remember.
Accordingly, the motion is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485882/ | Plaintiff seeks damages for personal injuries sustained following a collision between a certain bus in which she was riding as a passenger, and another vehicle driven by the defendant Talagu Moliga. Galufuaina Moliga is joined principally because she is registered as joint owner with Talagu Moliga of the vehicle which the latter was driving. National Pacific Insurance is sued as the insurer of the vehicle under the Compulsory Insurance Act, A.S.C.A. §§ 22.2001 et seq.1 Through a series of pre-trial agreements developed immediately before trial in a rather untidy fashion, the following stipulations were presented to the Court: that the defendants Talagu Moliga and National Pacific Insurance conceded liability to the extent of coverage under the terms of the insurance policy, namely, $10,000.00; that the collision occurred on *78September 17, 1988, at approximately 1830 hours; and that defendant Galufuaina be dismissed from the case.
The parties did not agree on damages. Plaintiff contended that her actual damages were in excess of the policy limits while defendants submitted that $10,000.00 adequately represented damages. To this end, the Court heard testimony.
Subsequent to the accident, plaintiff was seen by Dr. Teariki No’ovao, of the Surgical Services Division, L.B.J. Tropical Medical Center. At the time, plaintiff was found to have suffered a broken arm (X-Rays confirmed a fractured left humerus). She had also sustained some minor cuts about her face and bruises to her chest, and her blood pressure was noted to be elevated. At the time of admission, she was conscious and lucid and her vital signs intact. Plaintiffs lacerations were treated and, according to Dr. No‘ovao, have healed nicely. For her broken arm, Dr. No'ovao opted for closed reduction and the application of a split cast. After a week’s admission plaintiff was discharged, and over the next few months, she made several visits to Dr. No'ovao on an outpatient basis. During this time, plaintiff endured much pain and discomfort. Follow-up X-rays revealed a slow mending process in the break, so much so that upon her visit to see Dr. No’ovao on December 5, 1988, he recommended to plaintiff the option of open surgery and internal fixation of a plate and screws to bind the break. Plaintiff declined and did not return for her next appointment. However, in the following month of March, 1989, plaintiff did undergo the operation suggested by Dr. No’ovao in Hawaii. Plaintiff was seen very recently by Dr. No'ovao regarding complaints with her knees; at the same time he had occasion to examine her arm. Dr. No’ovao testified that the arm had healed perfectly.
Plaintiffs proof of damages essentially related to pain and suffering and lost wages. For lost wages, plaintiff testified that for more than a year prior to the accident, she had been employed by Star-Kist as a fish cleaner earning an average weekly wage of $95.00. She further claims that she has not been able to work since returning from Hawaii.
• In assessing pain and suffering, we consider that period of time between Dr. No'ovao’s recommendation for open surgery and the date of actual surgery in Hawaii as a period of healing delay attributable to plaintiff. Internal fixation of a broken bone is an operation available at the L.B.J. Tropical Medical Center, and Dr. No'ovao himself has performed many such operations. We further note plaintiffs reluctance *79for medical follow-up on her operation after returning to the territory. She testified that she last saw her doctor in Hawaii at the end of June, 1989, and she acknowledged that he had advised physiotherapy. Although plaintiff returned to the territory some time in July, 1989, she has not seen a doctor on her arm nor sought guidance on physiotherapy requirements. Her claims to continuing pain to date do not impress.
With regard to loss in earnings we first reject counsel’s suggestion of permanent disability. In Dr. No'ovao’s opinion, plaintiffs arm had healed completely and that it was not her arm that prevented her from resuming work but a severe case of osteoarthritic knees. (Plaintiffs difficulty with ambulation were obvious to the Court when going to and from the witness stand. Furthermore we could not but notice plaintiffs obese condition which must certainly intensify her arthritic difficulties.) It seems that plaintiff, after returning to the territory, had simply resigned herself as being unfit to work again. Since returning from Hawaii, she has not sought the benefit of a medical opinion, nor had she considered the possibility of less strenuous work. Although she vaguely complained about her arm as not being able to pull weeds with the same effectiveness, she candidly admitted that her legs affected her ability to find work.
On the foregoing, and bearing in mind the plaintiffs duty to mitigate damages, we fix total damages in the sum of $10,000.00.
It is so Ordered.
A.S.C.A. § 22.2018 provides a right of direct action against the insurer. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485884/ | Petitioner and respondent were divorced in California in 1982. The California judgment provided, inter alia, that respondent "shall be awarded ... as her sole and separate property ... a proportionate interest in Petitioner’s retirement benefits with Ralston Purina Company." *84Respondent has filed this judgment with the High Court of American Samoa in accordance with A.S.C.A. § 43.1701 et seq., the Uniform Enforcement of Foreign Judgments Act, and now requests the Court to "allow execution or further process to issue."
The dispute between the parties concerns retirement benefits which Ralston Purina paid to petitioner between 1984 and 1989, apparently in ignorance of the divorce judgment awarding a portion of these benefits to respondent. The respondent claims that the share of these benefits belonging to her was $20,873.40. Petitioner does not dispute this amount, but argues that respondent is estopped from collecting it because she never notified Ralston Purina of the divorce judgment. Respondent further contends that this Court should decline to enforce the judgment because Ralston Purina is an indispensable party to the proceedings, and also because the California family court retained jurisdiction to enforce the judgment.
Counsel for respondent directs our attention to a recent case in which the California courts were faced with facts quite similar to those of the present case. In Farner v. Farner, 90 Daily Journal D.A.R. 45 (Cal. App. 1989), the appellate court held that when retirement benefits adjudicated to be the property of one spouse had been paid to the other spouse and the other spouse had converted such benefits to his own use, the spouse whose property had been thus converted should be treated as a creditor with a money judgment against the other spouse. The judgment debt was therefore properly subject to a writ of execution. The appellate court held, however, that it was within the trial court’s discretion to determine whether a writ of execution was appropriate in the circumstances, and remanded to the trial court for such a determination.
Although Farner involved domestic rather than foreign execution on a judgment, this distinction does not suggest a different outcome in the present case. The Uniform Enforcement of Foreign Judgments Act was designed to give a foreign judgment creditor the same right to enforce his judgment in this Territory that he would have in the State or Territory in which he obtained the judgment. Petitioner and respondent now both reside in American Samoa; this Court is manifestly the most convenient forum for adjudication of their respective rights under the judgment. Although respondent could undoubtedly move to enforce the judgment in the California court that issued it, nothing about that judgment suggests that the court retained jurisdiction in order to obstruct rather than facilitate enforcement.
*85Petitioner is, however, entitled to the same process here that he would receive had enforcement been sought in California. Under California law a person against whom an award has been made in a divorce decree is entitled to judicial consideration of his arguments against enforcement. See Farner, supra, at 46, and authorities cited therein. Moreover, the judgment in the present case, like that in Farner,
raise[s] a judicial question because the clerk could not, with any certainty, ascertain the amount to be paid either from the order itself or the record as it existed upon entry of the order. The order potentially [is] a candidate for enforcement by execution, but only after review and hearing in the trial court.
Id. at 46. Cf. Parisi v. Parisi, 10 A.S.R.2d 106, 107-08 (Foreign judgment was enforceable as rendered, but subsequent assignment of judgment was "a private contract which, unlike a judgment, is not entitled to full faith and credit.”) We therefore turn to the merits of petitioner’s contentions.
We conclude that the California judgment did not allocate the burden of notifying Ralston Purina to either petitioner or respondent. The respondent would obviously have been well advised to do so. The record suggests no explanation for her failure to do so. On the other hand, the petitioner was the one who worked for Ralston Purina; who knew exactly when he was going to retire and thereby make it necessary for someone to notify Ralston Purina about the division of benefits; who presumably did have some dealings with the benefits office immediately prior to his retirement in 1984; and who knew or should have known, once he began receiving benefits, that part of what he was receiving was the property of someone else.
These circumstances may not have imposed on petitioner an affirmative duty to notify Ralston Purina of the divorce decree; but they weigh heavily against petitioner’s defense that respondent is now estopped, on account of laches or otherwise, from retrieving her property. In order to sustain such a defense it would be necessary for petitioner to establish his own good faith or "clean hands.” In the present case this would require a showing that at all times between 1984 and 1989 he was under the impression Ralston Purina was paying him only his own share of the retirement benefits. No such showing has been attempted, and the record suggests it could not be made.
*86In any case, such a showing would probably prove only that it would be inequitable to force petitioner to pay the whole $20,000 to its rightful owner all at once, not that he should be allowed to evade payment altogether. As it happens, similar relief is available under A.S.C.A. § 43.1501 et seq., the Orders in Aid of Judgment statute, even without a showing of clean hands.
We do not believe that Ralston Purina is an indispensable party to this action. Indeed, we are not even sure it is a proper party, since it was not a party to the proceeding in which the foreign judgment was rendered. See Parisi, supra. Assuming that joinder were possible and that respondent were to prove that Ralston Purina owed her part of the money it sent to petitioner between 1984 and 1989, however, Ralston would appear entitled to indemnity from the petitioner himself. "As between the two parties who violated the order, the party who received and spent the money must indemnify the party who merely released it." Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100, 104 (1988).
Accordingly, a writ of execution shall issue against the petitioner in the amount of $20,873.40. This order is without prejudice to the right of respondent to petition the Court for a further writ of execution for an amount equal to interest at the legal rate on the various amounts belonging to her which were received by petitioner. It is also without prejudice to the right of petitioner to petition the Court for an Order in Aid of Judgment. (We urge the parties to agree on a schedule of payments so as to render such further proceedings unnecessary.)
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485886/ | This is a difficult decision among four well qualified candidates. The Court herewith announces its findings with respect to the four statutory criteria set forth in A.S.C.A. § 1.0409(c) for the resolution of disputes over the right to hold a matai title.
I. Best Hereditary Right
The Court finds that Tuise'e, Fue1, and FofogaoalFi are all the *91sons of former holders of the Tuiteleleapaga title. According to the method traditionally used by the Court for calculating blood relationship to a title, each therefore has a 50% or 1/2 relationship to the title. Fauatea is the great-great-grandson of a former Tuiteleleapaga and therefore has a 1/16 relationship to the title.
The Court gave some consideration to applying the alternate method of calculating blood relationship set forth in In re Matai Title Sotoa, MT No. 5-82, or some variant of this method. According to the "Sotoa rule," blood relationship is calculated not to the nearest titleholder in a candidate’s genealogy but to the original titleholder. One variant of the Sotoa rule would be to trace the ancestry of all candidates to the titleholder who was their nearest common ancestor.
The "Sotoa rule" has been criticized by the Appellate Division of the High Court and has not been applied for several years. See, e.g., In re Matai Title Le‘iato, 3 A.S.R. 133 (1986); In re Matai Title La'apui, 4 A.S.R.2d 7 (1987); In re Matai Title Tauaifaiva, 5 A.S.R.2d 13 (1987). It may nevertheless be appropriate in certain cases, as where it appears that a particular family’s tradition is to rotate the matai title among the different branches of the family; or where domination of the title by one branch of the family has resulted from previous Court decisions rather than from the family’s own consensus, such decisions having produced the unintended result that no person from any other branch has a close relationship to any recent titleholder.
In the present case candidate Fauatea pointed out that his branch •of the family has not had a titleholder for several generations and argued that this fact should weigh in his favor rather than against him. Even *92under the Sotoa rule or the nearest-common-ancestor variant, however, Fauatea would be somewhat more distantly related to the title than any of the other three candidates. This is because Fauatea is a member of a "younger" generation, in genealogical rather than chronological terms, than the other three candidates. He is a great-great-great-grandson of the candidates’ common ancestor Tuiteleleapaga Gatagiala, whereas Fue and Fofogaoali’i are great-great-grandsons and Tuise’e is a great-grandson.
The application of the Sotoa or nearest-common-ancestor rules, therefore, would benefit Tuise’e rather than Fauatea. Tuise'e, however, uses the traditional rule in calculating his own hereditary right, and willingly conceded during his testimony that Fue and Fofogaoali’i have the same blood relationship (50% or 1/2) as he does.
Since digression from the traditional rule would do nothing to address the issue raised by Fauatea, this does not seem an appropriate case for such digression.
We therefore apply the traditional rule and find that Tuise’e, Fue, and Fofogaoali'i are tied on the criterion of hereditary right, each having a 1/2 relationship to the title.
II. Wish of the Majority or Plurality of the Clans
This was one of those rare cases in which the candidates more or less agreed on what the "clans” of the family are. At least during the tenure of the late Tuiteleleapaga Napoleone II, the most recent titleholder, the family has been organized into five clans. •
It appears that one of these clans, Maualalo, consists entirely of people who are related to the progenitor of the clan not by blood but by adoption. The Maualalo people are, however, true members of the Tuiteleleapaga family, tracing their blood ancestry through other clans. It further appears that prior to the Napoleone period the family may have been divided into only two clans, one descended from Tuiteleleapaga Fue and the other from his sister Melesala. The five current clans have, however, participated as such in family affairs for some years, evidently without objection from anyone. We assess clan support accordingly.
All four candidates have some family support. Tuise’e appears to predominate within the Posu and Lusia clans and to have some support in other clans. Fue appears to predominate within the Napoleone I and Maualalo clans and to have some support in other clans. Fauatea appears *93to predominate within the Fue or Alosio clan. Fofogaoali‘i does not appear to predominate within any clan, although he does appear to have some support within several clans.
We find that Tuise'e and Fue are tied on the criterion of clan support, each having shown wide support including predominant support within two clans.
III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom
All four candidates are well qualified with respect to this criterion. Each has different strengths.
Tuise'e has lived in the Tuiteleleapaga family for twenty years and has served the family with diligence and devotion; he appears to be an honest, devout, and extraordinarily good-natured man who is well loved within the family.
Fue retired from the United States Marine Corps after thirty years, numerous important assignments, and an impressive number of commendations and decorations. He has since served in a number of important positions within the American Samoa Government and is also quite active in Church activities. He is the most materially successful of the candidates; his success outside the fa‘a Samoa, however, does not seem to have been accompanied by any diminution in his respect for traditional virtues or in his devotion to the family.
Fofogaoali‘i served for some years as pulenu‘u of Leone, has served for many years as a matai, is active in Church affairs, and appears to have the dignity, knowledge, and sense of responsibility that befit such activities.
Fauatea, although he only recently begun living within the family in Leone and has not been as active as the other candidates in family, village, or public affairs, appears nevertheless to be an intelligent and agreeable person who is genuinely devoted to the family.
All the candidates have distinguished military records, are active churchgoers, and acquitted themselves well in response to questions designed to test their knowledge of Samoan custom.
*94The judges have determined that the accomplishments of Fue stand out in this distinguished field, and therefore find that Fue prevails on this criterion.
IV. Value to Family, Village, and Country
For the reasons stated in the discussion of the third criterion, all four candidates would be of value to the family, village, and country. Again, however, the many accomplishments of Fue, his energy and diligence, and the status he has already attained within the community cause him to prevail on this criterion.
It was suggested by some opposing counsel that Fue might be insufficiently flexible and conciliatory to accomplish the most important task of a matai, which is to bring and keep the family together. There is great truth in the observation that authority is always most effectively exercised with humility: Despite some friction during the recent contest, however, relations within the family and among the candidates appear generally to be characterized by affection and respect. We are confident that Fue will direct his energies and his leadership qualities toward uniting rather than dividing the family, and that in so doing he will have the help of Tuise'e, Fofogaoali‘i, and Fauatea.
V. Conclusion
Fue, having prevailed along with Tuise‘e and Fofogaoali on the first criterion and with Tuise‘e on the second, and having prevailed outright on the third and fourth criteria, has the right to hold the title Tuiteleleapaga. Judgment will enter accordingly.
It is so ordered.
Objector Fue I. Tuiteleleapaga is also a holder of the matai title "Peseta" in Western Samoa. On cross-examination he revealed that he has registered this title in *91Western Samoa but that he is not a citizen of Western Samoa. Opposing counsel laid great stress on this apparent violation of that nation’s "Samoan Status Act," which makes it a crime for anyone but a Western Samoan citizen with some Samoan blood to hold a matai title. See Tuika v. Chief Election Officer, 9 A.S.R.2d 57 (1988). The candidate testified, however, that he was unaware of the provisions of that Act and had never been required to take an oath of allegiance to Western Samoa. The apparent violation of Western Samoan law, therefore, does not reflect on the candidate’s character or on any other qualification to hold the Tuiteleleapaga title.
On cross-examination of candidates Tuise'e and Fauatea it developed that these candidates are the holders of unregistered matai titles in apparent violation of A.S.C.A. § 1.0414. In neither case, however, does the failure to register appear to have been motivated by a desire to defeat the rights of any other claimant to the title. Without conferring our approval on the use of unregistered matai titles in violation of A.S.C.A. § 1.0414, but in the interest of convenience and clarity, we refer to each candidate by the name he used in filing his claim or objection in the present case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485888/ | Tui Poiali‘i, a resident of American Samoa, died in San Francisco in the early morning hours of May 6, 1973. About three years later a son by decedent’s first marriage, Manuma Tui Poiali‘i, offered a will for probate. The will was dated May 3, 1973. It named Manuma as executor and left all the decedent’s property to his children by the first marriage.
The probate action then languished for about twelve years. In 1988 the Court reviewed its old files and ordered Manuma to file an accounting. Apparently as a result of some activity generated by this order, the Court was then presented with a second will. This one was filed by Manu‘a Peau Poiali'i, who had been the third and final wife of the deceased. It distributed the decedent’s property to Manu‘a herself, except for two conveyances (or "confirmations" of "assignments") of *112interests in real property which, we have learned, may or may not have been the decedent’s to convey. This will was dated March 21, 1973.
An evidentiary hearing was held with respect to the validity of the two wills. The principal witness on behalf of the March 21 will was the widow, MamTa; the principal witness for the May 3 will was the son, Manuma. MamTa also presented a deposition from one of the two subscribing witnesses to the March 21 will. Manuma did not present the testimony or affidavit of any of the witnesses whose names appear on the May 6 will.
A.S.C.A. § 40.0102 provides in pertinent part that "the signature of the testator . . . must be witnessed by 2 competent persons who shall sign their names thereto as attesting witnesses." This provision incorporates a rule which has long been in effect throughout the Anglo-American legal world, with variations from jurisdiction to jurisdiction.
Rule 11 of the Territorial Court Rules of Probate Procedure provides that "the valid execution of a will, the capacity of the testator to execute the will and the voluntariness of the execution" must be proved by the testimony or affidavit of one of the attesting witnesses to the will. Rule 11 further provides that "[i]f both attesting witnesses are dead or unlocatable, the Court may accept whatever extrinsic evidence as to the validity of the will as the Court deems appropriate." This provision also restates the general rule in most jurisdictions.
The deposition testimony of Sapele Tai to was to the effect that during March of 1973 she signed a "document concerning Tui PoialTi." She said she did not know what the document was or what it meant. She further testified that she signed the document inside PoialTi’s house in Pago Pago. She identified her own signature on the will and that of the other subscribing witness, who has passed away. She did not recognize the signature of Tui PoialTi himself, because he did not sign in her presence. She did say that Tui, as well as his wife MamTa, were there when she and the other witness signed the document and that Tui did not appear to be ill. This was the extent of her testimony.
This testimony is insufficient to prove that Tui PoialTi executed the March 21 will. The requirement of A.S.C.A. § 40.0102 that "the testator’s signature . . . must be witnessed" is not fulfilled when the "witness” has no idea whether the signature is that of the testator or not. Such knowledge can be obtained either by the witness’s observation of the testator in the act of signing or by the testator’s later acknowledgment *113of the signature. Estate of McKellar, 380 So.2d 1273 (1980); Manners v. Manners, 66 A. 583 (N.J. Eq. 1907); Atkinson on Wills § 66 (2d ed. 1953). Some courts have held that the testator must specifically acknowledge not just the document but the signature itself. Argo v. Geise, 134 S.E.2d 134 (1968). Others have required only that the testator make it clear to the witnesses that the document was intended to be his will. Estate of Cunningham, 487 A.2d 777, 778 (N.J. App. 1984); Luper v. Werts, 23 P. 850 (Or. 1890). "However, the bare presence of the testator when the witnesses sign is not an acknowledgment. There must be something more than simple passivity." Atkinson on Wills § 66 at 325 (citations omitted). Here there was evidence of the testator’s bare presence and nothing more.
The proof of the May 3 will was even less satisfactory. None of the witnesses testified and no affidavit from any of them was offered. Manuma testified that the three witnesses were friends of a friend of his, brought to the hospital in which Tui Poiali'i lay dying for the express purpose of witnessing the will. He said he had never seen any of them before, never saw any of them again, and had no idea how to get in touch with any of them. All he could remember was that they were all about twenty-one years old in 1973. (It seems that the friend had initially procured some younger witnesses, but had then been informed that twenty-one-year-olds would be necessary.)
Provisions such as that of our Rule 11, to the effect that wills may be proved by other evidence when the subscribing witnesses are unavailable, have been uniformly interpreted to require a showing that the witnesses could not have been located by the exercise of due diligence. Gillis v. Gillis, 23 S.E. 107 (Ga. 1895); Tackett v. Tackett, 265 S.W. 336 (Ky. 1924); Helms v. Sheek, 77 So.2d 820 (Miss. 1917). It follows a fortiori that the evidence should be sufficient to convince the Court that the subscribing witnesses actually did exist.
Atkinson on Wills provides the following suggestion on the choice of witnesses to a will:
In the case of a testator in the prime of life, of undoubted mental competency, and not subject to undue influence .... it would not be objectionable if the witnesses had no previous acquaintance with the testator. Such witnesses should be introduced to the testator by a common acquaintance, however, and the parties should be permitted to talk together for a few *114moments in order that the witnesses can throw some light upon the mental state of the testator. Of course one should not select a legatee or devisee or anyone who might be considered financially interested .... Naturally, the witnesses should be sufficiently mature so that no question might arise on this score. . . . They should be permanent residents of the locality so that they can be reached readily when needed. A witness who is deceased presents less of a problem upon probate than one who cannot be located. . . .
When the testator is old and infirm, or if there are any possible circumstances upon which his competency might be questioned, it is advisable to choose the attesting witnesses from among the testator’s closest acquaintances.
Id. § 74 at 351-52. Manuma, whose own testimony made it clear that he was the principal organizer of the May 3 will, violated every rule in the book. The testator was about to die; his medical records raise serious questions about his testamentary capacity in the days before his death; his signature on the will, assuming it to be his signature, was so faint that somebody later found it necessary to trace over the signature with a darker pen; the will specifically disinherits a widow and three young children; and Manuma chose witnesses who were virtually guaranteed to be unavailable to testify and whose evidence about the identity and capacity of the testator would in any event have been next to useless. He offered no explanation of why the (unidentified) attorney who prepared the will did not also attest it, or why attending medical personnel or family friends were not asked to be witnesses. Indeed, it is hard to understand why it was necessary for Manuma’s friend to go out and find three twenty-one-year-olds rather than serve as a witness himself. The trier of fact is told, in effect, that the will was obtained from an honest-looking fellow in a bar who said he found it when it fell off a truck.
Under these circumstances we do not "deem appropriate" the interested testimony of Manuma himself as sufficient extrinsic evidence of the validity of the May 3 will.
Accordingly, we find that Tui Poiali’i died intestate. A.S.C.A. § 40.0305 provides that his widow, Manuma, has the statutory right to serve as administratrix. She has already applied and is therefore *115appointed. She shall provide an inventory of the property in the estate within three months. (We understand that a further hearing may be necessary to determine, inter alia, whether the house occupied by the parents of Manu‘a and a property called "Nuumau" apparently now in the possession of Manuma are property of the estate. We urge once again that all parties attempt to reach a reasonable settlement in lieu of further litigation.)
Manu‘a will be issued letters of administration upon submission of such letters by her counsel along with proof that she has taken the requisite oath.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485890/ | The facts of this case, except as noted below, are found at 5 A.S.R.2d 162 (1987). In that reported opinion we rendered summary judgment in favor of defendant Star-Kist. The summary judgment was reversed by the Appellate Division on the basis that material facts remained in dispute between the parties. 9 A.S.R.2d 35 (1988).
*121The allegations in plaintiff’s verified complaint which the Appellate Division found to contain his version of the material facts in dispute were 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.
Id. at 37. Other material allegations in the verified complaint, not reproduced by the Appellate Division, were as follows:
6) On October 9th, 1986, plaintiff was working as a supervisor of one of many tables where baskets of fish were cleaned by fish cleaners.
7) Plaintiffs job was to ensure that the flow of fish to each fish cleaner was uninterrupted and to account for the number of fish cleaned by each person at his table.
8) Star Kist rules provided that each basket of fish delivered to each cleaner contained eight fish. Because the size of each fish varied, employees in plaintiff’s position were given the /sic] some discretionary authority to reduce or increase the expected number fish per basket if circumstances warrented [sic].
The verified complaint further alleges that plaintiff was summarily suspended and later fired without benefit of certain "progressive discipline" procedures outlined in an employee handbook.
*122Defendant’s answer was to the effect that plaintiff was "given an immediate written warning when discovered to have been falsifying the fish cleaners’ production punch cards"; that plaintiff refused to sign an acknowledgement that he had received this warning; and that he had thereupon been suspended and subsequently terminated. Defendant specifically denied plaintiffs allegation that he had any discretionary authority to reduce or increase the number of fish each cleaner was expected to clean before receiving a punch.
In granting summary judgment we pointed out that the employee handbook specifically excluded certain offenses from the coverage of the "progressive discipline" proceedings. These offenses included "[gjiving or receiving free punches or wrong punches for fish being cleaned" and also "[insubordination or willful disobedience to an order, assignment or instruction." We held that plaintiff and defendant did not materially disagree on the facts: that defendant admitted he had disobeyed the order of a superior with regard to how many punches to give, taking issue only with defendant’s characterization of the undisputed fact. We therefore found that on the undisputed facts plaintiff been fired either for "insubordination" or for "overpunching," and that he was accordingly not entitled to the progressive discipline procedures set forth in the handbook.
In reversing, the Appellate Division observed that "defendant denies in its answer that plaintiff was terminated for insubordination and plaintiff denies ‘over-punching. ’" Id. at 39. The case was remanded for trial.
Our reading of the Appellate Division’s holding is that the material facts in dispute were whether plaintiff had in fact committed either "insubordination" or "overpunching." Since the verified complaint did admit that plaintiff had been "expected by his supervisor to increase his table’s production" but chose nevertheless to "maintain[] the normal routine to avoid overloading the cleaners," the dispute boils down to plaintiffs contention that he had "discretionary authority." If he did have such authority, his decision to countermand his supervisor’s judgment on how many fish could "be reasonably handled by the cleaners" would amount neither to overpunching nor to insubordination. This is what we expected the trial to be about.
In his testimony at trial, however, plaintiff told an altogether different story than the one set forth in his verified petition. He denied that his supervisor had ordered him to increase the pace of production; *123indeed, he testified that the day he was suspended was an ordinary day in which fish cleaning was proceeding at its usual pace. He said he was therefore very surprised when someone named Tino brought him a written warning.
Significantly, in his trial testimony plaintiff also denied that he had any discretion about how many fish should be cleaned by each cleaner before a punch was given. He said he was to give one punch per basket of fish; that the speed with which baskets were given to fish cleaners was in somebody else’s control; and that he had faithfully followed instructions and had given no free punches.
Defendant Star-Kist put on no direct testimonial evidence of what happened on the fish cleaning floor the day plaintiff was suspended. Defendant did present the written warning itself, which states: "This is to warn you for giving free punches for the cleaners without dumping fish." There is also a place on the warning for the employee to acknowledge receipt of the warning; on this line someone has written, "Refused to Sign." Star-Kist also presented plaintiffs supervisor, Henry Bernard, whose recollection of the event was hazy but who did recall that the charge of "free punches" had involved punches given not just to one or two fish cleaners but to a whole tableful.
From this evidence it appears beyond dispute that plaintiff was in fact charged with "overpunching" rather than with some offense for which progressive disciplinary procedures were applicable. It further appears, according to plaintiffs own admissions in his verified complaint and on the witness stand, that he was actually guilty of overpunching. In his complaint he stated that he had had a disagreement with his supervisor over how many fish the cleaners should be required to clean, and had exercised his "discretionary authority" to require a different pace than the one his supervisor expected. At trial, however, he admitted that he had no such discretion.
Instead of relying on his previously asserted discretion, plaintiff presented a new, different, and inconsistent story: that there had never been any disagreement at all about how many fish should be cleaned. Defendant Star-Kist, however, was entitled to come to trial prepared to defend only against the allegations in the verified complaint, not against a new and different set of allegations. Paragraphs 9 through 11 of the verified complaint, acknowledging that plaintiff did authorize a different number of fish to be cleaned than his supervisor expected of him, were judicial admissions and as such were binding on plaintiff. (Indeed, they *124were specifically quoted by the Appellate Division as the allegations on which plaintiff was entitled to go to trial.)
In view of plaintiffs admission in the pleadings that he did substitute his own judgment for that of his supervisor about how many fish should be cleaned per basket, and of his admission at trial that he had no discretionary authority to do so, we conclude that he was guilty of "giving free punches or wrong punches," an offense specifically excluded from the progressive disciplinary procedures set forth in the employee handbook. (Defendant’s theory in its pleadings —that giving free punches amounted to "falsification of company records," another offense for which employees can be fired without progressive discipline - -- was also sustained by the evidence. It further appears that by refusing to sign the acknowledgment of receipt of the warning when asked to do so by his supervisor, he was guilty of "willful disobedience to an order, assignment, or instruction," yet another such offense.) He has therefore, failed to sustain his burden of proving that he was wrongfully discharged.
Finally, however, plaintiff argues that even if he was charged with a "termination" offense rather than a "progressive discipline" offense, he was entitled to an investigation which should include his side of the story. He testified that he never got a chance to tell his story; rather, the personnel director told him each week only to come back the next week, until he was eventually told he had been fired.
At trial defendant Star-Kist did not produce the personnel director — who was the company’s representative in dealing with plaintiff Palelei at all times between the initial warning and the eventual firing, whose affidavit was the principal evidence for its motion for summary judgment, and who now works in Texas for Star-Kist Samoa’s parent company. The only evidence presented at trial with respect to the disciplinary investigation, other than the testimony of plaintiff himself, was that of defendant’s present personnel director. She testified that company procedure is always to get an employee’s side of the story as part of a disciplinary investigation; that this was also company procedure at the time of defendant’s termination; and that she has never heard of a case in which this was not done.
Failing to present the testimony of the only person who had direct personal knowledge of the Palelei investigation impresses us as an extremely poor strategic decision. Against a plaintiff who was able to present a reasonably credible and internally consistent account of his allegedly arbitrary firing, it would probably have been fatal to the *125defendant’s case. As it happens, however, the plaintiff did not present such an account. The dramatic changes in plaintiffs story with regard to what happened in the fish room leave us with no confidence in his story about what happened later between him and the personnel director. He had the burden of proof on this as on other questions; although the testimony of defendant’s present personnel director amounted only to circumstantial evidence with respect to what probably happened in the Palelei investigation, the totality of the evidence leaves us unconvinced of plaintiffs allegation that he never had a chance to tell his version of events.
Nor, in any event, is it at all clear that any particular disciplinary procedure would be required in the case of an employee who from the outset had signalled his refusal to co-operate in such a procedure by refusing to acknowledge receipt of the written warning which the handbook specifies as its first step.
It is, moreover, difficult to imagine what remedy we could give plaintiff if we were to determine that (a) he had been fired without a hearing, but that (b) after a plenary hearing before the Court, the substantive grounds for his firing had been proved. For Star-Kist to give plaintiff a chance to tell his side of the story at this stage would be superfluous; in its capacity as defendant in the present case, it has already heard two different versions of that story. There is no reason to suspect that such a hearing might have a different result than the judicial hearing that has already been held. Plaintiff has had at least as much process as is due.
Accordingly, the complaint is dismissed and judgment is rendered for the defendant.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485891/ | On Motion to Suppress:
Defendant is charged with possession of a controlled substance, marijuana. He has filed a motion to suppress evidence under the following circumstances: On the evening of March 6, 1990, two officers, who were on patrol on the main east-west highway, encountered an oncoming vehicle in the vicinity of Fatumafuti which appeared to them to be driven at a high rate of speed. The officers gave chase and finally ended up at the emergency entrance of the L.B.J. Tropical Medical Center. When the officers arrived at the hospital, they found the defendant’s vehicle parked and unoccupied. One officer went into the emergency clinic where he located the defendant, while the other officer went and looked inside the parked vehicle. In a preliminary examination proceeding before the District Court, the latter testified that his purpose *127for checking the defendant’s vehicle was "just to look inside if the keys were in there," and that while looking inside he "observed an ashtray, something that looked like —like a butt, like a cigarette butt. So I left it there and informed Officer Maifea that that was probably marijuana. It doesn’t have, you know, like a filter."1 A radio call was then placed to the station for a narcotics officer who later attended with field test equipment. The butts tested positive.
A week later, and armed with these results, the testing officer sought a warrant for the defendant’s arrest charging him with possession of an unlawful substance. The affidavit in support of the warrant contained in pertinent part the following: "Affiant responded to a call from the police station and, upon arrival, was informed by PSO L. MAIFEA that, during a routine vehicle search, he observed what appeared to be two marijuana cigarettes in the ash tray of the pickup driven by NAPOLEONE LOIA following his arrest for drunk driving; That Affiant seized the cigarettes and performed a field test, the results of which were positive for marijuana. ..." An arrest warrant issued.
Upon execution of the warrant on March 16, 1990, the defendant was immediately taken to the Tafuna Correctional Facilities. During the attendant booking process at the correctional facilities, a quantity of alleged marijuana was found on the defendant’s person and, accordingly, another charge of possession was filed.
On March 26, 1990, the preliminary examination on the first charge of possession came before the District Court. Departing from past practice and citing A.S.G. v. Samana, 8 A.S.R.2d 1 (1988),2 the District Court judge felt that he was bound to entertain a defense motion to suppress. From the evidence adduced at this hearing, the judge was not satisfied that the search of the defendant’s vehicle was in fact the routine search following arrest for drunken driving as alleged in the supporting affidavit. Dismissing the government’s arguments about *128"plain view," the judge went on to find that the marijuana butts taken from the defendant’s vehicle were seized pursuant to an unlawful search and, therefore, inadmissible as evidence. Lacking the physical evidence, the complaint was dismissed for insufficient showing of probable cause.3
The second possession charge is the basis of the proceedings now before us. The motion to suppress alluded to at the outset is premised on the contention that the marijuana seized, together with any inculpatory statements made by the defendant, at the correctional facilities, were "fruits" of an unlawful arrest and attendant search and, therefore, inadmissible evidence under Wong Sun v. United States, 371 U.S. 471 (1963).
Defendant’s "fruits of the poisonous tree" claim is, however, dependent on the contention that the District Court’s conclusion of an unlawful search and seizure on March 6, 1990, is somehow conclusive, in the proceedings before us. Defendant argues that the government is estopped from further reviving the issue of whether the search calumniating in the first possession charge was lawful. Defendant argues that if the government is permitted to reopen the issue, this would have the practical effect of allowing the back door appeal of an issue which the government was entitled to appeal and which it did not. The concern stated is that if the High Court views the evidence differently, then the District Court’s decision in A. S. G. v. Lola, DCR NO. 21-90, will have been effectively overruled, and, therefore, the government could conceivably refile the first possession charge. Defendant submits that this peculiar effect singularly arises in the territory because of its distinctive constitutional exclusionary rule and the fact that in American Samoa, unlike other jurisdictions, a felony complaint may only be filed in the High Court consequent to a preliminary examination.
The argument for estoppel is not persuasive. That the government has a right to appeal does not mean that the government has the duty to do so. We are unwilling to give such unnecessary effect to the relevant statute, A.S.C.A. § 46.2405. Secondly, whether the government may or may not refile the first possession charge is matter governed by the provisions of High Court of Rules of Criminal *129Procedure, Rule 5.1(b),4 and not on how we view, in these entirely separate proceedings, the legality of the March 6, 1990, seizure. Thirdly, our concern in this case is the question of guilt or innocence, which in turn is dependent on the competency and quality of the evidence to be presented by the government. It is the duty of this court to determine all questions as to the competency of the evidence; we see no reason to here depart from that duty. Finally, the curious situation in which the District Court Judge found himself in A.S.G. v. Loia, DCR NO 21-90, is not the inevitable consequence of the territory’s uncommon constitutional exclusionary rule. A constitutional mandate extending the exclusionary rule to preliminary examination proceedings would also be served by the referral of such suppression motions for disposition by the High Court. A simple amendment to that effect to T.C.R.Cr.P. 5.1 would not be inconsistent with the mandate.
We conclude that the government is not estopped from arguing the legality of the seizure of March 6, 1990. It is thus unnecessary, at least at this point in the record, to consider the teaching of Wong Sun. The issue of whether or not the March 6, 1990, seizure was valid is an issue for this Court’s determination and should therefore be briefed and addressed by the parties accordingly. This matter will be set for further hearing upon the motion of either party.
It is so Ordered.
A.S.G. v. Loia, DCR NO. 21-90, Reporter’s Transcript of Proceedings held March 26, 1990, page 5.
This case held that the exclusionary rule in American Samoa, a constitutional rule, applied also to probation revocation proceedings. Rev’d. Const. Am. Samoa art I, § 5. This provision tracks the language of the Fourteenth Amendment relating to unreasonable searches and seizures; however, unlike its federal counterpart, art. I, § 5 also provides: "Evidence obtained in violation of this section shall not be admitted in any court." (emphasis added).
A.S.G. v. Loia, DCR NO. 21-90, Reporter’s Transcript of Proceedings held March 26, 1990, pages 7-20.
T.C.R.Cr.P. Rule 5.1(b) provides as follows:
(b) Discharge of Defendant. If from the evidence [at the preliminary examination] it appears that there is not probable cause to believe that an offense has been committed or that the defendant committed it, the district court judge shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the government from instituting a subsequent prosecutionfor the same offense.
Id. (Emphasis added). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485892/ | This is an action to set aside an order of the Workmen’s Compensation Commission. Claimant Enesi Fuimaono was an employee of the American Samoa Government’s marine railway from 1967 until 1985, when the facility was transferred (whether by sale, lease, or otherwise does not appear in the record) to Southwest Marine. Fuimaono continued as an employee of Southwest Marine until November 20, 1987, when he was pronounced totally disabled by mesothelioma, a type of lung cancer caused by exposure to asbestos. He was then placed on disability leave and his employment later terminated due to the disability.
During the time relevant to. this action, Fuimaono’s two successive employers were insured by at least three and possibly four workmen’s compensation carriers. The American Samoa Government (hereinafter ASG) was self-insured until 1973. It was alleged before the Commission, although not proved to the Commission’s satisfaction, that ASG was insured by Hartford Fire Insurance, Inc., between 1973 and 1976. Continental Insurance Company, the plaintiff in this action, was the workmen’s compensation insurer for ASG from July 1, 1976 until April 30, 1985, when the facility was sold to Southwest Marine. American International Underwriters (hereinafter AIU) was the insurer of Southwest Marine at all times between May 1, 1985, and November 30, 1987. At the time of his disability claimant Fuimaono was making $10.10 per hour. The Commission therefore found that "[h]is then average weekly wage was $404." Workmen’s Compensation Commission Finding of Fact No. 12.
The Commission further found that the claimant was exposed to asbestos while employed by ASG; that he was exposed to sandblasting *132and painting while employed by both the ASG and Southwest Marine, but there was no evidence of any deleterious effects from these activities; that the use of asbestos products was "immediately terminated" when Southwest Marine took over the marine railway in 1985; and that the inventory of asbestos products was "immediately removed" at the same time. See Workmen’s Compensation Commission Findings of Fact Nos. 5-7. The Commission therefore concluded that the disease arose out of and in the course of the claimant’s employment by the ASG. Workmen’s Compensation Commission Conclusion of Law 2. The Commission therefore ordered ASG and its insurer Continental to pay disability compensation.
Plaintiff Continental puts forth five principal arguments. First, it disputes the Commission’s finding that claimant’s employment at Southwest Marine did not contribute to his disability. Second, plaintiff argues that since it insured ASG during only part of the time the claimant was exposed to asbestos in the course of his employment by ASG, it should not be required to pay the entire compensation award. Third, it contends the Commission had insufficient evidence from which to conclude that claimant’s weekly wage was $404. Fourth, it contends that the medical and travel expenses were incorrectly ruled compensable. Finally, it argues that the Commission failed to comply with certain statutory procedures.
At the outset we observe that the question whether occupational diseases are "injuries" within the American Samoa workmen’s compensation statute is technically one of first impression. Unlike some statutes,1 ours does not specifically include occupational diseases within the definition of the term "injury." Rather, this term is generally defined by A.S.C.A. § 32.0502(i) to include "any harmful change in the human organism arising out of and in the course of employment . . . ." Although occupational diseases differ from "typical" injuries in that they generally do not have a discrete and readily identifiable instant of occurrence, and although this may give rise to difficulties in the proof of causation, it nevertheless seems clear that such diseases are injuries within both the letter and the spirit of our statute.
*133We also observe that our task is not to substitute our own judgment for that of the Commission, but to set aside the order only if it is "not in accordance with law." A.S.C.A. § 32.0652(a). With respect to findings of fact and inferences therefrom, this standard requires the Commission’s holdings to be upheld if supported "by substantial evidence." Continental Insurance Co. v. Workmen’s Compensation Commissioner, 8 A.S.R.2d 152 (1988). This standard, in turn, is met if "‘a reasoning mind reasonably could have reached the factual conclusion the agency reached.”' Id. at 155, quoting Dickinson-Tidewater, Inc., v. Supervisor of Assessments, 329 A.2d 18, 25 (1974).
I. Liability of Southwest Marine and AIU
Plaintiff contends that Southwest Marine should rightfully be held liable for the claimant’s benefits. The specific questions before us are whether the Commission’s finding that the Southwest Marine employment was not a substantial contributing cause of the injury was supported by substantial evidence, and whether the consequent conclusion that no liability attached to Southwest Marine was in accordance with law.
There is substantial evidence in the record to support the Commission’s finding that Southwest Marine was not a substantial contributing cause of the claimant’s disease. This evidence includes medical testimony that this disease usually requires three to five years to develop; since claimant was with Southwest Marine only between 1985 and 1987, it would arguably have been impossible for a record compiled in 1989 to reflect any deleterious effects of this employment. See Halvorsen v. Larrivy Plumbing & Heating Co., 322 N.W.2d 203 (Minn. 1982); Basse v. Quality Insulation Co., 322 N.W.2d 206 (Minn. 1982). This theory, although widely accepted, seems problematic insofar as it may imply that a trier of fact could not find recent exposure to asbestos to have aggravated a prior condition. The Commission, however, seems to have based its conclusion primarily on the far more important and persuasive evidence that Southwest Marine had removed and disposed of all asbestos products "immediately" upon taking over the marine railway. The record therefore contained no evidence that the Southwest Marine employment could have caused or aggravated claimant’s asbestos-induced mesothelioma.
Plaintiff points out that the claimant did perform tasks including painting and sandblasting while he worked for Southwest Marine. Although mesothelioma is caused by asbestos and not by painting or *134sandblasting, there was some evidence in the Commission’s record that the claimant may have suffered from other lung diseases as well. The Commission apparently did not regard these other diseases as disabling, however, for it concluded that there was no evidence of deleterious effects from the painting or sandblasting and that the disability was caused by asbestos-related mesothelioma. These conclusions were not unsupported by the evidence; the worst that can be said about them is that a different conclusion might also have been supported by the evidence. This, however, is insufficient to warrant reversal.
Finally, plaintiff argues that ASG and Southwest Marine should be treated as a single employer rather than as two separate employers. Claimant did not resign from one job and go to another; rather, his work place was sold (or otherwise transferred) and the new owner retained most of the old employees. There is no evidence, however, that Southwest Marine assumed ownership or control of anything but the physical plant, or otherwise agreed to assume liabilities of ASG arising out of its prior operation of the marine railway. In the absence of such evidence, the operative facts are (1) that Southwest Marine and ASG are distinct entities; (2) that claimant’s employment by one of these entities was shown to have been a cause of his injury; and (3) that his employment by the other entity was not shown to have contributed to the injury.
Finally, plaintiff suggests that the Commission erroneously absolved Southwest Marine of liability on the ground that Southwest was not "at fault." This is not what the Commission decided. Although, as plaintiff observes, the workmen’s compensation statute does allow recovery against employers "without regard to fault as to cause of the injury," it does not permit such recovery "without regard to cause" of the injury. See A.S.C.A. § 32.0520. Indeed, the statute specifically limits compensation to injuries "arising out of and in the course of" claimant’s employment. Id. In stressing that Southwest Marine removed the asbestos from the marine railway immediately upon assuming control, the Commission was not rewarding Southwest Marine for being a careful employer; rather, it was drawing a logical inference about whether the injury had anything to do with claimant’s employment by Southwest Marine.2
*135
II. Liability of ASG as Self-Insurer
Continental also argues for a proportional allocation of the compensation award among the various insurers who carried workmen’s compensation insurance for the claimant’s employer(s) during the period to which his disease was attributable. As we have upheld the Commission’s conclusion that the disease was in no way attributable to the Southwest Marine employment, such apportionment would be among the three insurers who are alleged to have covered ASG during the eighteen years it employed claimant Fuimaono. These are: (1) ASG itself, which was a self-insurer between 1967 and 1973; (2) Hartford Insurance Company, which the parties seem generally to acknowledge as ASG’s insurer between 1973 and 1976, but whose status as insurer the Commission found not to have been proved; and (3) plaintiff Continental, the insurer between 1976 and 1985.
A leading authority on workmen’s compensation law has said that such apportionment "would be the ideal theory in a perfect world." 4 A. Larson, The Law of Workmen’s Compensation § 95.12 at 17-111. However, the perceived difficulty of administration and of precise allocation (particularly in occupational disease cases) have caused most courts to reject this approach in favor of the "last injurious exposure" rule. This rule "places full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability." Id. § 95.20 at 17-112.
The last injurious exposure rule is "particularly useful for allocating liability in occupational disease situations, which often involve a number of insurers." Id. § 95.24 at 17-148, It has been applied in two different situations: those involving multiple employers, and those involving a single employer who has had several insurance carriers. See, e.g. Osteen v. A.C.& S., Inc., 307 N.W.2d 514 (Nebr. 1981) (multiple employers); Pacific Employers Ins. Co. v. Industrial Comm’n., 157 P.2d 800 (Utah 1945) (one employer with multiple carriers). Some courts *136depart from the rule in the one employer/multiple carriers situation, imposing the whole burden on the last insurer whether or not there was injurious exposure during the insurance period. See, e.g. Flowers v. Consolidated Container Corp., 336 N.W.2d 255 (Minn. 1983).3
It is unnecessary, however, for us to decide whether the "last injurious exposure" rule applies in American Samoa as a matter of law. This is because the rule has plainly been adopted as a matter of private contract between ASG and its most recent insurer, plaintiff Continental. The policy provides in pertinent part:
This policy applies only to injury ... by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease occur during the policy period.
This provision imposes responsibility on Continental for the ASG’s liability even if some injury occurred during the self-insurance period (1973 or earlier), as long as the disease was at least aggravated during Continental’s policy period (1976 to 1985).
Even if we should be persuaded to reject the last injurious exposure rule in favor of proportional allocation among insurers, the rule thus adopted would be suppletive rather than imperative; that is, employers and insurers would be free to derogate from it by contract. If we were to assess part of the award in the present case against ASG *137as self-insurer, another part against Hartford, and another part against Continental, ASG would still be liable as principal obligor on the entire assessment. Because the record clearly establishes that claimant’s disease was at least aggravated during the period of Continental’s coverage, Continental would be liable under its contract for any assessment against ASG.4
We have no evidence in the record to consider whether Hartford might also be contractually liable under the terms of a policy with ASG, or even that there ever was such a policy. On its face, however, the Continental policy makes it responsible for injuries during the Hartford period, if any, provided they were at least aggravated during the Continental period. Because the policy covers the entire award in the present case, the possible existence of another policy that might also cover the award is not a ground for overturning the Commission’s assessment against Continental.
We offer no opinion with respect to whether avenues remain open by which Continental might seek contribution from Hartford, either on a proportional allocation theory or by reference to provisions of the two policies.
III. Amount of Compensation
The only evidence at the hearing with respect to claimant’s wages was his testimony that his wage at the time of his disability was $10.10 per hour. The Commission concluded (apparently as a result of multiplying by forty) that his average weekly wage was $404. The plaintiff contends that the statutory formula for determining the "average weekly wage," A.S.C.A. § 32.0621(d)(1)5 was not complied with.
*138The Commission’s finding complies with the statute if and only if the Commission was within its authority in assuming (1) that the claimant was a full-time rather than a part-time employee for at least thirteen weeks before the injury; and (2) that his $10.10 hourly wage had remained the same for at least thirteen weeks before the injury. In the absence of any record evidence to the contrary, we cannot say that the Commission erred in making these assumptions. From a record indicating that a person’s hourly wage was $10.10 and containing no suggestion that he was other than a full-time employee, a "reasoning mind might reasonably conclude" that his average weekly wage during the last thirteen weeks was $404.
Plaintiff also contends that A.S.C.A. § 32.0621 requires the use of the date of "injury" in calculating the wage, and not the date of disability, which the Commission used. In occupational disease cases, however, the best estimate of the "date of injury” will ordinarily be the date on which the progress of the disease made it impossible for the claimant to continue working. See IB Larson’s Workmen’s Compensation Law Section 41.84 at 7-546; Osteen v. A.C. & S., Inc., supra, 307 N.W.2d at 517.
The plaintiff finally alleges that it was contradictory for the Commission to hold that for compensation purposes the "injury” date was the 1987 disability, while for liability purposes the "injury" ceased in 1985. This is not what the Commission found; it found only that claimant’s employment between 1985 and 1987 was not a substantial contributing cause of the injury (i.e., the occupational disease), not that the injury/disease "ceased" in 1985.
For these reasons we decline to overturn the Commission’s finding of a weekly wage of $404.00 as unsupported by substantial evidence or not in accordance with law.
IV. Medical and Travel Expenses
This issue was not raised below, and so technically cannot be raised here. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 184 (1980).
*139In any event, we note that the Commission was clearly correct in finding that the claimant "has incurred and will incur medical expenses and related travel expenses as a result of his disease of mesothelioma." Finding of Fact 13. The Commission concluded that the claimant was entitled to payment of his medical and travel expenses, in accordance with A.S.C.A. § 32.0619. Conclusion of Law 7. The Commission has wide latitude in making this award in the interest of justice, and it did not exceed this discretion.6 The Commission’s findings on medical and travel expenses comply with A.S.C.A. § 32.0619.
Plaintiff will presumably have the opportunity to submit any dispute over the amount of any future medical or travel expense claim to the Commission. Any order of the Commission would then be subject to judicial review. The only question addressed thus far by the Commission with respect to medical or travel expenses is the question of liability for such expenses. We find no error in the Commission’s conclusion or order.
V. The Commission’s Compliance with Statutory Procedures
The plaintiff complains of several alleged violations of statutory procedures by the Commission.
First, plaintiff claims that adequate notice of the hearing was not given. Ten days notice is required. A.S.C.A. § 32.0628. Plaintiff does not specify how much notice was received, describing it as "none until a few days before",7 or as having been given in "June, 1989".8 The hearing was scheduled for June 28, 1989, but was continued for one week. According to Continental’s counsel, Oxford Pacific is the agency through which Continental conducts its business in the territory, although it is not itself a carrier. Service on Oxford was made on June 22, 1989; the actual hearing date was July 5, 1989. The Commission found that *140sufficient notice of the claim was given in Conclusion of Law 1, and this is supported by substantial evidence. The notice substantially complied with the statute.
Second, the plaintiff complains that there was no medical officer on the Commission. This is true; the medical officer was removed on the plaintiff’s own motion and in accordance with A.S.C.A. § 32.0505(e), because the physician was an ASG employee, and the ASG was a party to the proceedings. However, because the only hospital in American Samoa is government operated, all practicing physicians in the territory are government employees. The ASG is a large employer in American Samoa, and so this situation must recur. The only alternative to simply doing without the medical officer would be to fly in off-island physicians to sit on each Commission considering claims to which the ASG is a party. It is an established principle of Anglo-Saxon jurisprudence that non-expert judges may, with the help of expert testimony, resolve scientific or medical matters. The Commission substantially complied with A.S.C.A. § 32.0505, governing the makeup of the Commission. (In any case, plaintiff made no objection below to going forward without a medical member of the Commission. It cannot raise this issue for the first time on judicial review.)
Third, plaintiff contends that the Commission failed to order a medical examination as required under A.S.C.A. § 32.0638. This section provides that an "injured employee . . . shall submit to such physical examination ... as the commissioner may require." This provision does not require the Commission to order an examination, but instead requires the claimant to submit to any examination which the Commission does order.
Fourth, the plaintiff seeks to invoke A.S.C.A. § 32.0613, which addresses injuries increasing existing impairments. This section is inapplicable unless the employer has shown with written records knowledge of the impairment when the claimant was hired. A.S.C.A. § 32.0913(d). Also, the provision is of dubious applicability in this case because the injury and impairment are one and the same. There is no injury which increased an impairment, but rather only the progression of one debilitating disease. Moreover, the disease almost certainly did not exist at the time claimant Fuimaono was employed by plaintiffs principal, ASG.
Lastly, plaintiff levels the general complaint that the Commission failed to "best ascertain the rights of the parties," under A.S.C. A. § *14132.0640. A.S.C.A. § 32.0640 reads, "[i]n . . . conducting a hearing, the commissioner . . . may . . . conduct such hearing in such a manner as to best ascertain the rights of the parties." Upon review of the Commission’s procedures, it appears that the Commission satisfied the requirements of A.S.C.A. § 32.0640.
V7. Conclusion
In summary, the Commission’s findings are supported by substantial evidence and its order was in accordance with the law. The petition to set aside the order must therefore be dismissed.
It is so ordered.
For instance, the federal Longshoreman’s and Harbor Worker’s Compensation Act, on which the American Samoa workmen’s compensation statute is generally patterned, specifically includes occupational diseases within the definition of injuries. See 33 U.S.C. § 902(2) (1980).
Plaintiff puts its argument in yet another way by saying that Southwest Marine had produced insufficient evidence to rebut the "presumption of compensability" embodied in A.S.C.A. § 32.0642. We note in passing that this presumption appears intended to embody a pro-claimant bias; it is not a presumption that all employers are liable, and its *135citation by an insurer intending to escape liability reflects a certain wrenching from context. In this case, moreover, there was evidence sufficient to rebut any presumption that claimant’s mesothelioma was caused by his employment with Southwest Marine. Not only was there a showing that Southwest Marine used no asbestos in its operations, but the record also suggested a far more obvious explanation for the disease: plaintiffs eighteen years of employment with ASG, which did use asbestos. Once rebutted, the presumption drops out of the case. See Whitmore v. AFIA Worldwide Insurance, 837 F.2d 513 (D.C. Cir. 1988).
The Flowers rule relies on the law of averages to fairly distribute the loss among insurers of the same employer. It may be criticized for abandoning a search for truth in favor of simplicity and ease of administration. Moreover, if imprecision is the reason to reject proportional allocation, it seems awkward to substitute a rule that attempts to ensure fairness through randomness. However, ease of administration and application is a great strength in a system whose overriding purpose is to minimize the obstacles to compensation for injured workers.
It is important to note that the "last insurer" rule (as opposed to the "last injurious exposure" rule) has been applied only in cases where several insurers covered the same employer. The single-employer situation is very different from the case of multiple employers, in that workmen’s compensation statutes firmly insist upon causation as an element in the proof of employer liability but have far less to say about the contract between the employer and its insurer(s). Where there was no injurious exposure'during the tenure of the last employer, the "requisite causation" for the imposition of liability does not exist. Bertrand v. API, Inc., 365 N.W.2d 222, 224 (Minn. 1985). When there has been only one employer, each new insurance carrier may assess its risk (by, inter alia, reviewing working conditions over previous years) as it assumes an employer’s coverage.
Continental also offers the suggestion that the entire award be assessed against ASG as self-insurer, on the ground that claimant already had mesothelioma by 1972. This is not what the record reflected or what the Commission found. Claimant was found "possibly" to have displayed early symptoms of mesothelioma in 1972, but not "probably” to have contracted the disease until about 1984. For the reasons stated in the text, moreover, Continental’s policy would make it liable for any assessment against ASG even if the claimant did have the disease by 1972, since it was at least aggravated by his exposure to asbestos between 1976 and 1985.
The text of A.S.C.A. § 32.0621(d)(1) reads: "If at the time of the injury the wages are fixed by the day or hour, or by the output of the employee, the average weekly wage shall be the wage most favorable to the employee, computed by dividing by 13 the wages (not including overtime or premium pay) of the employee earned in the employ of *138the employer in the first, second, third or fourth period of 13 consecutive calendar weeks in the 52 weeks immediately preceding the injury."
A.S.C.A. § 32.0619 requires a report within 20 days of the first treatment, but the "commissioner may excuse the failure to furnish such report within 20 days if he finds it to be in the interest of justice to do so, and he may, upon application by a party in interest, make an award for the reasonable value of such medical or surgical treatment so obtained by the employee."
Petitioner’s Opening Brief at 12.
Petitioner’s Closing Brief 19. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485893/ | This case is a sequel to Satele v. Uiagalelei, LT No. 17-86, 6 A.S.R.2d 143 (1988), aff’d sub nom. Satele v. Fai'ai, 9 A.S.R.2d 19 (1989). The facts of this case, except as hereinafter discussed, are set forth in that opinion [hereinafter "the 1988 case"] at 6 A.S.R.2d 144-46.
The decision in the 1988 case involved most of the land contained in the survey now offered for registration; three of the four parties to that case — the Satele and Uiagalelei families and Fale Fai'ai for herself and the descendants of Fa'ailoilo Fauolo — are also parties to the present case. All questions explicitly or necessarily decided in the 1988 case are, of course, res judicata among those parties.
The 1988 case held a tract comprising most of the area now offered for registration to be the individual property of the heirs of Fa'ailoilo. It also held an area to the north of the Fa'ailoilo tract to be Uiagalelei communal land and delineated the boundary between the two tracts. The case further held that a strip comprising roughly one acre in between the Fa'ailoilo and Uiagalelei tracts had been purchased from Uiagalelei by Mariota Tuiasosopo on behalf of himself, his brother, and sister, as part of a settlement approved by the Court in a previous land dispute, and therefore belonged to them.
What is left for us to decide in this case concerns certain "pockets" within the Satele survey at its extreme northern, eastern, southern, and western boundaries. We also must adjudicate the rights of Namu and Ulufale, objectors to the present survey who were not parties to LT No. 17-86; since their claims are almost entirely within the aforementioned "pockets," we will discuss their claims together with those of the other parties.1
In discussing the various pockets of land presently at issue, we refer frequently to a composite map admitted into evidence as Exhibit 4. *143This map, prepared by a surveyor at the request of objectors Fai‘ai and Namu, illustrates the claims of all parties except Uiagalelei. The surveyor informed the Court he could not put the Uiagalelei claim on the map due to certain technical defects in the 1972 registered survey on which the claim is based. For the purposes of the present litigation, however, and without prejudice to the rights of non-parties, the Court is satisfied that a 1987 retrace of the 1972 survey (Exhibit 16, designating the 1972 tract as "Saumolia I") and a 1987 composite drawing (Exhibit 13) adequately locate the Uiagalelei claim with reference to the claims of other parties.
I. The Northern Pocket
The area to the north of the Fale Fai‘ai/Fa‘ailoilo resurvey (the red line on Exhibit 4, hereinafter "Fai‘ai survey") and to the northwest of the land claimed by Namu (the black line on Exhibit 4, hereinafter "Namu claim") is the property of the Uiagalelei family, with the exception of a small section at the western edge of this pocket which is the property of the Satele family. The section which is the property of the Satele survey is the area within the Satele survey that is to the north of the Fai‘ai survey and to the southwest of Saumolia I.
Satele claims the whole northern pocket. Although almost all of this area is within the 1972 Uiagalelei registered survey ("Saumolia I"), Satele raises objections to the validity of that survey. He did not, however, raise these objections in the 1988 trial, and the decision in that case held that this part of Saumolia I was the communal property of the Uiagalelei family. Conclusion of Law No. 4, 6 A.S.R.2d at 146.
The objections raised by Satele to the Uiagalelei survey are, moreover, without merit. First, he observes that the land was registered as individual property of the late Uiagalelei Sinapati, whereas it is now claimed as communal land of the Uiagalelei family. The current Uiagalelei titleholder, however, testified that he and the other individual heirs of Uiagalelei had met and agreed that the land should belong to the whole family as communal land. Our law regards communal land as an institution to be sedulously fostered and specifically permits freehold land to revert to communal status "at the request of the owner." A.S.C.A. § 37.0201(b). It would seem to follow a fortiori that the same process is possible for individual land. While an individual heir of the late Uiagalelei would have standing to prove that the owners have not in fact agreed that the land should be communal, we cannot see why a rival land claimant from outside the family would have such standing.
*144Satele also points out that the "affidavit of posting" in the 1972 registration was not notarized. As we have had frequent occasion to observe, however, the "affidavit of posting" is an administrative convenience (albeit a salutary one) rather than a statutory requirement, and such self-described "affidavits" were frequently not notarized in those days.
With respect to the area of this pocket that is outside Saumolia I, however, Satele made the best claim. This general area (the northwestern part of the Satele survey, to the west of the area presently leased by the American Samoa Government for a landfill) is one of two areas within which there was solid evidence of long-time Satele occupation and cultivation.
Aside from the dispute between Satele and Uiagalelei in the area discussed above, there is one other dispute in the North. This has to do. with the claim of Uiagalelei that the 1988 case incorrectly held part of Saumolia I to be the property of the Fa‘ailoilo heirs. Uiagalelei relies on Ifopo v. Siatu'u, AP No. 12-89, holding that a valid land registration conveys title good against the world. Since some of the land held to belong to the Fa‘ailoilo heirs in 1988 had already been registered by Uiagalelei, he urges that we restore it to him.
Again, the ownership of the parcel of land to which this argument refers was adjudicated in 1988, twice appealed by Uiagalelei, and twice upheld by the Appellate Division. It is res judicata. In any case, our holding with respect to the southern boundary of Saumolia I was based on a stipulated judgment to which Uiagalelei was a party. When Uiagalelei judicially acknowledged his southern boundary with Tuiasosopo (a relative of Fa'ailoilo who was then occupying the tract belonging to her) he implicitly acknowledged this boundary as against the true owner of the tract then occupied by Tuiasosopo as licensee. Even if the ownership of this area were not res judicata, we would uphold the 1988 result. There is no inconsistency with Ifopo; an owner with title good against the world can alienate his land in any number of ways, including stipulated judgment.
II. The Eastern Pocket
The "eastern pocket" is defined as the area within Namu’s claim. We hold that this area belongs to Namu, except for the portion at the north which is part of the 1972 registered survey ("Saumolia I") *145belonging to Uiagalelei, and the portion at the south which is within the Ulufale claim.
Namu raises some excellent arguments to the effect that Uiagalelei’s 1972 survey may have been conducted in violation of the statutory requirements and therefore did not convey title good against the world. See Ifopo, supra, slip opinion at 4; Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). Nor, unlike other parties to this case, is Namu barred by res judicata from relitigating the result of the 1988 case; he was not a party to that case.
Namu was, however, a witness in the 1988 case. He testified for Uiagalelei, and he testified under oath that the very land he now disputes with Uiagalelei is Uiagalelei land. The evidence is otherwise in equipoise as between the claims of these two parties; each presented evidence that he has claimed this land at various fairly recent times, and each claimed that his family has claimed it from time immemorial. The balance is tilted by Namu’s sworn testimony two years ago that the land he now claims is actually Uiagalelei land.
With respect to Namu’s dispute with Ulufale in the South, the evidence is that this area has been occupied by Ulufale at least since the 1950s and probably much longer. A trial transcript from the early part of this century, introduced by Namu to show that Ulufale may have derived his claim from an ‘Upolu chief called Te‘o Seva’aetasi, had the more important effect of providing reasonably objective evidence that Ulufale has long occupied land in this area. This evidence is inconsistent with the claim of Namu that he owns all the land on both sides of the road all the way from the land presently in dispute to the sea. Moreover, Namu’s own testimony corroborated the claim by Ulufale that his family (including his brother Fuimaono, named by Namu as the person who deprived him of his land about thirty years ago) occupied the land for at least twenty years during a time when twenty years was the requisite period for adverse possession. Their occupation of this area was actual, open, notorious, exclusive, continuous, and certainly hostile to the claim of Namu.2
*146
111. The Southern Pocket
The Southern pocket is defined as everything within the Satele survey and south of a line defined by (a) the northern boundary of the Ulufale survey up to the point where it intersects the Fai‘ai survey; and (b) the southern boundary of the Fai‘ai survey from that point until it intersects the southern boundary of the Satele survey. (The Ulufale and Fai‘ai surveys are the green and red lines, respectively, on Exhibit 4.)
For the reasons already discussed in part II above, Ulufale is the owner of the eastern portion of this area. This pocket includes a small portion of the Fai‘ai survey; since Ulufale was not a party to the 1988 case, he was free to relitigate the questions decided therein. Tuiasosopo, the principal occupant of the Fai‘ai tract for many years, testified that the Ulufale people were his neighbors to the south and also testified to their boundary. This evidence was far more specific than what we had to go on in the 1988 case, and it establishes the boundary claimed by Ulufale with Fai‘ai.
The dispute between Ulufale and Satele in the southwest is more difficult. Most of this land is outside the Ulufale fence. The Ulufale witnesses testified that the fence was just to keep cattle from running loose and did not represent the extent of the land occupied by Ulufale from time immemorial. On the other hand, it appears that the Satele family has long had a claim in this area. The Satele claim arises not from any historic claim to Fasamea, but from historic occupation of an area to the south of Fasamea called Lagoe'e. In the first recorded dispute between Ulufale people and Satele people in this area, during the early 1980s, the Satele people referred to the area just west of the Ulufale fence not as part of Fasamea but as part of Lagoe‘e.
Lagoe‘e is a tract of about forty-four acres beginning at a ridge above the sea and extending northward to land that was labelled the property of "Fauolo" on a 1929 registered survey of Lagoe'e. This land was held to be the property of Satele in Satele v. Afoa, LT No. 10-1932, and has been registered as Satele land for over fifty years. It is clearly Satele land, and it is almost as clearly the basis for the Satele claim in the southern part of the area now in dispute. Unfortunately, the 1929 survey is not calculated according to co-ordinates, so we cannot tell exactly where its northern boundary is with respect to the land now in dispute. This would, however, be relatively easy for a surveyor to locate, since the southern boundary is the top of a ridge overlooking the ocean and the northern boundary is a specified distance therefrom.
*147At present we have insufficient evidence to determine the boundary between Satele and Fuimaono; indeed, neither side offered particularly impressive evidence of historic occupation in this boundary area. Accordingly, we hold as follows with respect to the "southern pocket": Ulufale is the owner of that part of his survey which is also within the Fai‘ai survey. Satele is the owner of that part of his survey which is outside the Ulufale survey and also outside the Fai‘ai survey. With respect to the area within both the Ulufale and Satele surveys, but outside the Fai‘ai survey, neither party presented sufficient evidence to sustain a registration of this area. Satele is the owner of that part, if any, which is within the registered survey of Lagoe’e. Adjudication of title to the remaining part of this area, assuming the parties cannot amicably resolve their boundary, will have to be decided in some other case. (We note that Ulufale has surveyed a large area, mostly outside the boundaries of the land now in dispute, apparently with the intention of offering it for registration.)
IV. The Western Pocket
There is a small area to the west of the Satele survey which is outside the Fai‘ai survey. Only Satele claims this land, and there is some evidence of historic Satele occupation in this area. This land is therefore held to be the property of Satele.
V. Conclusion
Accordingly, we hold that Satele, Uiagalelei, Namu, and Ulufale are entitled to register the land described in parts I-IV above as belonging to them, provided that such land is also within the Satele survey offered for registration in the present case. (The land held to belong to Uiagalelei is already registered, but in view of the arguable deficiencies in .the 1972 registration it might not be a bad idea to register these portions again.) Such land is to be registered as the communal property of the parties’ respective families.
It is so ordered.
Meleisea Samuelu, another objector to the Satele survey, did not appear in this action despite repeated notices to do so. He therefore did not prove his claim to any part of the land within the survey.
Because the area in dispute between Ulufale and Namu is outside the Satele survey offered for registration herein, this portion of our decision is not binding on third parties. The decision does not, therefore, permit Ulufale to register this part of the land. Both Namu and Ulufale, however, chose this case as a forum in which to litigate their competing claims in this area, and the decision herein is binding on them and on the other parties to the present case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485894/ | On Motion to Suppress:
Background
While on patrol on the evening of March 6, 1990, police officers Maifea and Letuli encountered an oncoming vehicle which appeared to be speeding at a curve in Fatumafuti. Officer Maifea noticed through his rear view mirror that the passing vehicle had no tail lights and, after seeking a suitable area in the highway permitting a U-turn, gave chase. The officers eventually found the vehicle they were pursuing in Faga‘alu at the L.B.J. Tropical Medical Center, parked and unoccupied next to the emergency clinic entrance. Officer Maifea went immediately into the emergency clinic to look for the driver, while at the same time calling out to his partner, Officer Letuli, to check whether the keys were still in the vehicle. Officer Maifea testified that his concern for the keys was the need to remove thé vehicle from the emergency clinic’s entrance. Officer Letuli, with the aid of a flashlight, saw that the keys were left in the vehicle. However, he also noticed, in the vehicle’s ashtray, paper currency on top of which lay the remains of two hand rolled cigarette butts. The ends of the butts were twisted and they looked like marijuana joints to the officer. He waited at the vehicle until officer Maifea returned and told him about the butts. The latter — who in the meantime had found the defendant, Napoleone Loia, who admitted driving the vehicle — also viewed the butts and a decision was made to call for a narcotics agent. Officer Maiava subsequently responded from the narcotics division. He testified that he also viewed the butts, or "roaches," as they were found in the vehicle’s astray, removed them, and performed a certain chemical field test. The butts tested positive as marijuana and were seized as incriminating evidence.
The defendant contests the validity of this warrantless seizure as being in violation of his rights against unreasonable search and seizure under article 1, section 5 of the Revised Constitution of American Samoa, arid the Fourth and Fourteenth Amendment to the United States *3Constitution.1 The government, on the other hand, relies on the "plain-view" doctrine under Coolidge v. New Hampshire, 403 U.S.443 (1971), as justifying the warrantless seizure of the butts.
Discussion
Under Coolidge, "plain-view" provides grounds for the warrantless seizure of private property when three requirements have been satisfied:
First, the police officer must lawfully make an "initial intrusion" or otherwise properly be in a position from which he can view a particular area. Id. at 465-468. Second, the officer must discover incriminating evidence "inadvertently," which is to say, he may not "know in advance the location of [certain] evidence and intend to seize it," relying on the plain-view doctrine only as a pretext. Id. at 470. Finally, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Id. at 466.
Texas v. Brown, 460 U.S. 730, 737 (1983) (plurality opinion).
Applying these requirements to the facts, we conclude the following: there can be no argument that officers Letuli and Maifea (and for that matter officer Maiava as well) were legitimately in a position from which they viewed the butts. The butts were within plain-view notwithstanding the fact that officers Letuli and Maifea had used flashlights to illuminate the vehicle’s interior. As stated by the Supreme Court in Texas v. Brown, "the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection." Id. at 740. Further, the Court stated *4that in relation to automobiles "[t]here is no legitimate expectation of privacy, shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passerby or diligent police officers." Id. (citations omitted). Thus, and we so hold accordingly, the viewing of the butts by officers Letuli and Maifea was not a search within the meaning of the Fourth Amendment and, hence, our counterpart Rev’d. Const. Am. Samoa art. 1, § 5.
On the evidence, we are further satisfied that officers Letuli and Maifea had come across the butts inadvertently. There was nothing in the evidence to suggest that the officers knew in advance that they would find marijuana butts, or roaches, which they intended to seize without a warrant; neither was there anything to suggest that they were using the traffic laws to stop the defendant’s vehicle while relying on the "plain-view” doctrine as a pretext for a drug search.
The third of the Coolidge requirements is whether it was "immediately apparent" to the officers that the butts may be marijuana roaches. The Supreme Court also clarified in Texas v. Brown, that despite the unhappy choice of words in the phrase "immediately apparent," the Coolidge court did not mean that a police officer must "know" the incriminating nature of the evidence. To permit a warrantless seizure, the Fourth Amendment only requires that the officer must have "probable cause" to believe that the item found in plain view is incriminating. Id. at 741. In reviewing probable cause, the Court cautioned that
[tjhe process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
Id. at 741 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
In the present matter, defendant argues that two butts in a vehicle’s ashtray, which is designed to store cigarette butts, are insufficient circumstances to permit a conclusion of probable cause that the butts are other than tobacco. The defense further argues that a ruling *5in favor of the government would encourage the police to stop anyone who is seen in public with a butt. To demonstrate his point, the defendant produced a number of tobacco butts which the officers acknowledged on the stand as looking something like the butts they saw on the evening of March 6, 1990.
The defense’s demonstration misses the mark altogether. It clinically demonstrates possibilities rather than "practical, nontechnical" probabilities, spoken of in Brinegar v. United States, 338 U.S. 160, 176 (1949). For instance, the concerns raised about harassment of the smoking public is more fancied than real. In terms of probabilities, those people who smoke in public are more likely to be tobacco users rather than marijuana users. Why? Because there is a law against the possession of marijuana which discourages its public use; not so in the case of tobacco. Further, the defense’s in court demonstration simply fails to account for the requirement that an assessment of probable cause must be based upon "all the circumstances." United States v. Cortez, supra at 418. The significance, therefore, of a rolled butt’s twisted ends, which according to officer Maiava is a relevant identification factor, is a consideration in assessing probable cause. Twisted ends generally means preservation for further use and, in our opinion, when viewed in light of the fact that marijuana is not as readily available as tobacco — there is a law against the possession of marijuana — the officers were certainly presented grounds to conclude that it was more probable than not that the butts, twisted at the ends, were marijuana rather than tobacco. Further, and in the light of the fact that tobacco is more readily available than marijuana, tobacco butts in a vehicle’s ashtray would be more consistent with circumstances of disposal rather than of preservation — people do not preserve tobacco butts. However, what the officers actually viewed in the ashtray can hardly be said to be consistent with disposal. Besides the butts, there was currency, hardly the sort of thing one would expect to find in a vessel which is used to extinguish and discard burning tobacco butts as well as cigarette ash. Notwithstanding the purpose for which an ashtray is designed (a feature heavily relied upon by the defense as discounting probable cause), the ashtray in question appeared at all relevant times to be used for storage; a use not inconsistent with the preservation of such things as marijuana roaches. Finally, a reviewing court must not be unmindful of the officers’ police training and experience which allows them to draw and make from all sorts of available data, such "inferences and deductions that might well elude an untrained person." United States v. Cortez, supra, at 418. Their collective knowledge as well is a factor for regard in the equation. *6U.S. v. Wiley, 673 F.Supp. 1405, 1409 (E.D. Va. 1987).2 Here the effect of officer Letuli’s testimony was that he was not new to marijuana cigarettes. He had seen many such cigarettes as a policeman and during his college days. At the same time, officer Maifea testified that when he had encountered the defendant, he was very evasive and generally acted as if he something to hide, while officer Maiava informed the Court that his office has had the defendant under surveillance for some months. The latter at least had the "generalized expectation" spoken of in Texas v. Brown, supra at 744, and albeit a factor hardly significant in and of itself, it is nonetheless a building block in the total picture. Additionally, officer Maiava was very much influenced by the appearance of the butts, the manner in which they were rolled, the twisted ends, and the way they were set aside.
We conclude on the experience of the officers, together with the appearance and location of the butts, that probable cause existed for warrantless seizure of incriminating evidence. The motion is denied.
It is so Ordered.
Our reference to the Fourth and Fourteenth Amendment of the United States Constitution is merely to reiterate defendant’s argument. We intimate no views on the Fourteenth Amendment’s application, if any, to the territory of American Samoa. Cf. Ngiraingas v. Sanchez, 495 U.S. 182, 109 L.Ed 2d 163 (1990). In the context of 42 USC § 1983 — originally enacted as § 1 of the Civil Rights Act of 1871 to enforce the provisions of the Fourteenth Amendment — "Territories are not ’States’ within the meaning of the Fourteenth Amendment." 109 L.Ed 2d at 172 (quoting District of Columbia v. Carter, 409 U.S. 418, 424 (1973)). See also Banks v. American Samoa Government, 4 A.S.R.2d 113, 128 n.7 (1987); Ferstle v. American Samoa Government, 4 A.S.R.2d 160 (1987).
The facts of this case are very similar to the matter at bar. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485896/ | On Petition for Relinquishment:
The natural parents petition to relinquish their natural rights to their minor child in anticipation of adoption by the child’s maternal grandparents. The principal reason given for the petition is that grandparents have primarily taken care of the child since birth.
We are required, among other things, to consider the best interests and welfare of the child. However, after evaluating the evidence, we are left with much uncertainty regarding the child’s future. The difference in age between the grandparents and the minor looms large as a factor of uncertainty. See, e.g., In re a Minor Child, 4 A.S.R.2d 181 (1987); In re a Minor Child, 6 A.S.R.2d 123 (1987); In re a Minor Child, 7 A.S.R.2d 115 (1988). At the same time, the breadwinner in the grandparents’ household is a 68 year old grandfather whose source of income is social security, military retirement, and disability benefits. Certain of this present income will no longer be available upon grandfather’s death — disability benefits will terminate and retirement benefits will translate to survivor’s benefits. On the other hand, the minor has perfectly capable and healthy young parents to whom he can look to secure his minority after his grandparents’ time. We are unable to grant the petition.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485897/ | *12On Motion for Reconsideration:
Opapo Afualo moves for reconsideration of our decision that he does not own the land included within his survey. He relies on the principle that "the person in possession of land is the owner of the land as against anybody except the legal owner." Mageo v. Government of American Samoa, 4 A.S.R. 874, 880 (1963).
It is true that Afualo has been in possession (although not for long enough to establish a claim by adverse possession) of at least part of the land he has offered for registration. It is also true that the Court did not decide which of the other parties is the true owner of the land. Rather, we found that the best evidence of historic occupation and cultivation was by the chiefs of Faleniu, of whom Moea'i and Alai‘a were parties to the present case. We also found, however, that this occupation and cultivation may or may not have been under a license from Puailoa, also a party to the case. We held that the present record was insufficient to decide whether the land is owned by Puailoa or by one or more chiefs of Faleniu.
On these facts, Afualo’s claim that he should be allowed to register the land is without merit. To allow registration by someone who has been shown not to be the owner of the land would contravene the letter and purpose of the registration statutes. Nevertheless, the common law rule recognized in the Mageo case would appear to entitle Afualo to continue in his present possession of the land until ousted by someone who can prove he is the true owner.
Because it has been established that the land is owned either by Puailoa or by one or more of the Faleniu parties, these parties collectively might be entitled to evict Afualo if they were united in demanding eviction. At the hearing on the present motion, however, counsel for the Faleniu parties informed the Court that his clients are willing to let Afualo remain for the time being. In light of this information the Mageo rule, or a corollary of it, does appear applicable. If the Faleniu parties themselves were presently in possession, Puailoa would not be entitled to evict them without proving a better title. He has no greater rights against a possessor who has the permission of the Faleniu parties to remain on the land. Afualo can remain on the land as the licensee of the Faleniu parties until ousted by someone who can prove a better title than theirs.
*13Counsel for Puailoa points out, however, that Afualo formerly occupied the land by permission of Puailoa. He argues that a licensee should not be heard to set up an imperfection in his licensor’s title as a defense against eviction by the licensor. This argument would be most persuasive outside the special circumstances of this case. Afualo’s parents came on the land not by permission of Puailoa but because of their connection with the Church that was the former occupant of an adjacent tract. Later, when this adjacent tract was held to be the property of Puailoa, Afualo made an accommodation with Puailoa. His right to reach a similar accommodation with the Faleniu parties — who have actively contested Puailoa’s claim to the land in dispute, and whose claim, on the evidence now before us, would appear at least as strong as that of Puailoa — is not defeated by his former arrangement with Puailoa.
To put it another way, a jilted licensee cannot ordinarily attack his licensor’s title because legal title is none of the licensee’s business. In the present controversy, however, the ownership of the tract now occupied by Afualo is very much the business of the Faleniu parties, just as it is of Puailoa. Until one side proves a better title than the other, neither can disturb the peaceable possession of the other or of persons occupying by permission of the other. That such an occupant once had permission of Puailoa does not vitiate the right of the Faleniu parties to grant a similar permission pending resolution of the question of ownership.
Finally, we note that if Puailoa is the true owner of this land he need not be inconvenienced for long by Afualo’s presence. Another case now pending before the Court, LT No. 8-87, presents the question of Puailoa’s claim to the western slopes of the Malaeimi valley including almost all the land involved in the present case. Puailoa and Moea‘i are parties to LT No. 8-87; for reasons discussed in our previous opinion, Alai‘a and other chiefs of Faleniu may be entitled to intervene. Should Puailoa prevail over the Faleniu parties in LT No. 8-87, he will be free to evict them and their licensees, including Afualo.
Our judgment is modified as follows: Afualo’s offer of registration is denied. Puailoa is enjoined from interference with Afualo’s use of or access to the land within the Afualo survey. All parties are enjoined from planting crops in areas within the Afualo survey not currently occupied by their crops, and from building new structures on the land within the Afualo survey. This judgment is without prejudice to the rights of Puailoa and the Faleniu parties to press their claims to *14ownership of the land in LT No. 8-87 or other subsequent litigation and to exercise all the rights of ownership over such land as they should be held to own in such subsequent litigation.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485954/ | This is an interlocutory appeal from the denial by the District Court of a court-appointed Korean interpreter for appellant’s trial on the charge of driving under the influence of alcohol. The appellant concedes that he is not indigent. There is no evidence in the record before us, with the possible exception of the fact that appellant’s counsel requested the appointment of an interpreter, of the extent of appellant’s ability or inability to speak or understand English or Samoan.
I. Jurisdiction
The appellee argues that we are without jurisdiction over this appeal because there has been no "final decision" of the District Court. See A.S.C.A. § 3.0309.
*195In general, 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. Such orders, even though they may be "fully consummated decisions" with respect to the issue., 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. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949); see Deaver v. United States, 483 U.S. 1301 (1987).
An interlocutory order is, however, final and therefore appealable if it falls within the "collateral order exception." 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 cause itself to require that appellate considerations be deferred until the whole case is adjudicated." Cohen, supra, 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. Van Cauwenberghe v. Biard, 486 U.S. 517 (1988); Coopers & Lybrand v. Livesay, 458 U.S. 263 (1978).
There is no question that the instant order is "collateral" in the sense that it resolves a question that is separate and distinct from the merits of the action. No question raised by this appeal or by the decision below has any bearing on the merits of the criminal action itself, which have to do with whether appellant is guilty of driving under the influence of alcohol. The District Court’s ruling on the question of an interpreter was also conclusive: the trial was about to go forward without an interpreter when appellant moved for a stay to accommodate the present appeal.
There is a serious question about whether this order would be effectively unreviewable upon final judgment in the criminal case. If the trial had taken place without an interpreter and had resulted in a conviction, an appeal from the conviction might have been taken on the same grounds asserted in the present appeal. An acquittal would have rendered appeal unnecessary, at least insofar as the harm appellant sought to avoid was limited to the possibility of conviction and punishment.
*196Collateral orders are, however, generally regarded as "effectively unreviewable" and therefore final — notwithstanding the possible availability of a later appeal from an adverse judgment in the principal action — when "substantial rights would be lost, if appeal were delayed until the main stream of the litigation is terminated." Kowalski v. Holden, 276 F.2d 359 (6th Cir. 1960). This principle has been applied, at least until recently, to the denial of court-appointed counsel in criminal cases. See United States v. Harris, 707 F.2d 653 (2d Cir.), cert. denied, 464 U.S. 997 (1983); United States v. Deutsch, 599 F.2d 46 (5th Cir.), cert. denied, 444 U.S. 935 (1979). Such treatment has been based partly on the risk that uncounseled defendants would unwittingly surrender substantive and procedural rights in ways that would tend to evade later appellate review, and partly on the idea that "the unedifying spectacle of a trial of a lawyerless defendant" is a harm separate from that represented by any conviction and sentence that might result. Harris, supra, 707 F.2d at 657; see Deutsch, supra, 599 U.S. at 47-48. In this respect, the right to counsel may resemble the right not to be "placed in jeopardy" twice for the same offense or the right of a legislator not to "be questioned" with respect to an official speech or debate. See Abney v. United States, 431 U.S. 651 (1977) (denial of pretrial motion to dismiss on double jeopardy grounds is an immediately appealable collateral order); Helstoski v. Meanor, 442 U.S. 500 (1979) (denial of motion to dismiss grounded in the Speech or Debate Clause is immediately appealable). See also Segni v. Commercial Office of Spain, 816 F.2d 344, 345 (7th Cir. 1987):
Where the right asserted by way of defense to a lawsuit is (or includes) a right not to bear the burden of the suit itself, regardless of outcome, the denial of that right, as by denying a motion to dismiss the suit, is appealable immediately by virtue of the collateral order doctrine. An appeal after judgment would come too late to protect the right.
A fairly recent United States Supreme Court case on a related question raises serious doubts about whether the federal courts will continue to regard denials of appointed counsel as immediately appealable. In Flanagan v. United States, 465 U.S. 259 (1984), the Court ordered the dismissal for lack of jurisdiction of an interlocutory appeal from a pre-trial order disqualifying defendants’ counsel for conflict of interest. The Court observed that defendants were not asserting "a right not to be tried," but merely "a right not to be convicted in certain circumstances." Id. at 267. A successful appeal from an order *197disqualifying a particular counsel would not result in dismissal of the prosecution, but only in a delayed trial; allowing immediate appeal from such an order "thus would severely undermine the policies behind the final judgment rule." Id. at 270. Moreover, "postconviction review is concededly effective" to the extent that the asserted right to representation by a particular lawyer "is like the Sixth Amendment rights violated when a trial court denies appointment of counsel altogether . . . ." Id. at 268. "No showing of prejudice need be made to obtain reversal" when a court has improperly refused to appoint counsel, "because prejudice to the defense is presumed." Id.
The only federal court of appeals to consider the question since Flanagan has held that denials of appointed counsel are no longer immediately appealable, because the earlier contrary cases "do not survive the rationale" of Flanagan. United States v. Celani, 748 F.2d 363, 365 (7th Cir. 1984). The Celani court placed special emphasis on the point that an improper denial of counsel would entitle defendant to a reversal on appeal even if he could not show that it caused any actual prejudice to his defense. "The ‘effective reviewability’ of an order on appeal depends on whether a showing of prejudice to the defense is required to obtain a reversal." Id. (citing Flanagan). Since no such showing is required, "immediate appealability is not necessary to protect the defendant’s rights regarding appointment of counsel prior to trial." 748 F.2d at 365.
The constitutional and statutory right to an interpreter asserted in the present appeal is closely related to the right of an indigent person to appointed counsel. To require someone to undergo a criminal trial without a court-appointed interpreter in circumstances where such appointment was required by law -- if, for instance, the defendant were penniless and understood not a word of the proceedings against him — might well occasion palpable injury beyond the possibility of conviction and sentence. "Trying a defendant in a language he does not understand has a Kafka-like quality," and it is at least in part to avoid forcing people to undergo such an ordeal that courts have sometimes recognized a constitutional right to a court-appointed interpreter. United States v. Desist, 384 F.2d 889, 902 (2d Cir. 1967); see United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970).
In this respect the denial of an interpreter is unlike the denial of the "right" to a particular lawyer with which the Court was confronted in Flanagan. A person required to undergo a trial with the assistance of competent counsel other than the one he most prefers may not enjoy the *198proceeding, but an acquittal or a reversal on appeal will do much to help him get over his disappointment. The same cannot be said for someone who has been forced, in violation of his constitutional or legal rights, to endure a "Kafka-like" experience such as that described in Resist. Moreover, there is a significant chance that a defendant unable to understand anything the judge, the witnesses, or his own counsel was saying would enter a guilty plea that would be uninformed, effectively uncounseled, and yet most unlikely ever to be reviewed on appeal. Cf. Deutsch, supra, 599 F.2d at 48.
We note further that the denial of an interpreter, unlike the denial of appointed counsel, has not generally been held to justify reversal on appeal in the absence of a showing of actual prejudice to the defense. See, e.g., Cervantes v. Cox, 350 F.2d 855 (10th Cir. 1965). Appellant in the present case asserts a broad constitutional and statutory right to appointment of an interpreter upon request. This right, as asserted by appellant, is absolute; it does not depend on a finding that an interpreter is necessary to guarantee a fair trial, and it is available even to a defendant who speaks some English or Samoan and who therefore might manage to survive a trial without demonstrable prejudice. In such a case the denial of an interpreter (assuming that there really was an absolute right to one) would constitute a violation of an independent substantive right, and yet reversal on appeal would not be an appropriate remedy. In this respect the right being asserted in the present case differs importantly from the right to appointed counsel. See Celani, supra, at 365-66; cf. Flanagan, supra, 465 U.S. at 268.
Despite doubts occasioned by the Court’s opinion in Flanagan - - and despite our strong agreement with the sentiments expressed in that opinion to the effect that criminal litigation should be expeditious and not piecemeal — we conclude that the right being asserted in the present appeal is not merely a right not to be convicted under certain circumstances, but a right not to be tried under such circumstances. We further conclude that at least some violations of the asserted right would not be remediable by reversal on appeal, or even by acquittal. We therefore hold that the District Court’s order denying the appointment of an interpreter is within the small class of pre-judgment orders that are "final decisions" immediately appealable under A.S.C.A. § 3.0309.
II. The Right to An Interpreter
Neither the due process clause of the Fifth Amendment to the United States Constitution nor the right to a fair trial guaranteed by the *199Sixth Amendment confers upon a non-indigent defendant the right to a court-appointed and government-financed interpreter. United States v. Martinez, 616 F.2d 185 (5th Cir. 1980); Desist, supra. Even an indigent defendant is entitled to a court-appointed interpreter only insofar ar such appointment is necessary to enable him to understand the proceedings and to communicate with his counsel; the trial judge has wide discretion in deciding whether to appoint an interpreter and need not accept as dispositive the defendant’s assertion that he needs one. Cervantes v. Cox, supra; see Valladares v. United States, 871 F.2d 1564 (11th Cir. 1989). "The trial court must balance the defendant’s rights to confrontation and effective assistance against the public’s interest in the economical administration of criminal law, and the court’s balancing is reversible only on a showing of abuse." Valladares, 871 F.2d at 1566.
The American Samoa Constitution contains a due process clause identical to its federal counterpart, as well as a fair trial guarantee substantially similar to that provided by the Sixth Amendment. See Rev. Const. Am. Samoa art. I § § 2, 6 ("In all criminal prosecutions, the accused shall have the right ... to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense."). We know of no evidence that those who ratified and promulgated the territorial constitution in 1967 meant these provisions to derogate from the settled interpretations of the sources upon which they drew. Moreover, we find the federal jurisprudence most persuasive. Notwithstanding the strong policy against trying any defendant in a language he does not understand, a defendant’s ability to remedy the situation by providing his own interpreter "dissipates substantially — perhaps completely — any feeling of unease." Desist, supra, 384 F.2d at 902.
[I]f the real point is guarantee of a fair trial, . . . [and if the defendant] denied himself the interpreter and stands on his own right to do so, does not the issue become solely who should have paid for one? . . . [W]e doubt that [the] claimed absolute constitutional right to an interpreter is stronger than the absolute right to a court-appointed counsel; the latter is held only by the indigent ....
Id. We hold that the American Samoa Constitution guarantees a court-appointed interpreter only to an indigent defendant who will otherwise be unable to understand the proceedings against him or to communicate with his counsel.
*200Appellant also suggests that the employment by the Court of Samoan-English interpreters but not of Korean-English ones is a "racially based classification" which deprives appellant of equal protection f the laws. On the contrary, the practice simply reflects the cultural and juridical history of American Samoa. Court proceedings are conducted primarily in English for a number of practical reasons having to do with the Territory’s relationship to the United States, but Samoan is the principal language of over ninety percent of the population. For the same reasons that a court or other official institution in the United States does not deprive anyone of equal protection by doing business in only one language, such an institution in Samoa does not deprive anyone of his constitutional rights by providing its basic services in two languages (with supplemental interpretation for those who genuinely need and cannot afford it) rather than in seven or seventeen.1
Finally, appellant contends that his right to a court-appointed interpreter is guaranteed by A.S.C.A. § 3.0205, a territorial statute entitled "Appointment of clerk and other officers." This section provides that the High Court "shall have a clerk, interpreters, who may also be deputy clerks," and various other employees who shall be appointed by the Chief Justice and shall have salaries fixed by him. Assuming for the sake of argument that this statute requires the Chief Justice to appoint interpreters not only for the High Court but also for the District Court,2 it must be read in its context.
A.S.C.A. § 3.0205 deals with the method of appointment of permanent court employees; those with "fixed" salaries, who are *201appointed by the Chief Justice and are "subject to removal" by him. The reference to "interpreters, who may also be deputy clerks" is obviously also a reference to regular Court employees. Moreover, at the time of the enactment of this law in 1962, the Court had been in existence for over sixty years; it had always employed Samoan-E iglish interpreters and had never employed any other kind. The language of section 3.0205 is hardly the sort of language a legislature would use to impose on the Court a new and important obligation to find, employ, and compensate special ad hoc officers whenever a litigant should demand them. Nor has this been the practical construction of the law during the thirty years since its enactment; neither the Fono nor the United States Department of the Interior has ever appropriated money to pay such ad hoc officials, and the Court has never appointed them except in cases involving indigents, where such appointment was compelled by the constitutional guarantees of due process and a fair trial.
Accordingly, the order of the District Court is AFFIRMED.
The above analysis assumes that the federal equal protection clause has some application to the question at hand. It should be noted that "the extent to which the equal protection clause of the Fourteenth Amendment applies in the territory is unclear." Macomber v. American Samoa Government, 12 A.S.R.2d 29, 30 (1989). See generally Banks v. American Samoa Government, 4 A.S.R.2d 113, 123-28 (1987) (discussing the extent to which federal equal protection doctrine applies in American Samoa under the doctrine of The Insular Cases').
The Revised Constitution of American Samoa, promulgated in 1967 under the authority of the Secretary of the Interior, contains no equal protection clause.
A.S.C.A. § 3.0205 applies on its face only to the High Court. A.S.C.A. § 3.0307, the section regulating the appointment of officers of the district court, provides that the Chief Justice "may" assign High Court employees to work part-time or lull-time for the district court, and that he may also appoint such other district court officers as he "may consider necessary." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485898/ | On Motion for Preliminary Injunction:
For more than 10 years, plaintiff has had a home located on a certain portion of Uli family lands in the village of Aua. The home was originally built with the permission of the late Uli Solomona, whom plaintiff claims was her natural father. As a result of hurricane Ofa, *15plaintiffs home was partially destroyed and she is attempting to repair the damage. Plaintiffs efforts, however, at attempting any sort of repairs have been consistently frustrated by her neighbor, the defendant Pa‘u Talaeai. (Among the interim assistance afforded victims of hurricane Ofa were F.E.M.A. supplied tarpaulin covers for homes with damaged roofing. Pa‘u turned away an Army crew who attempted to render plaintiff such provisional shelter relief.) Defendant Talaeai claims that she is the granddaughter of a Uli Fa‘ate‘a and that the true owner of the Uli lands is Uli Fa‘ate‘a (and therefore his heirs) to the exclusion of Uli Solomona and his heirs. Defendant not only claims that the former Uli Solomona was not blood heir of the Uli title but that Uli Solomona was not plaintiffs father. Plaintiff seeks a preliminary injunction to enjoin the defendant from further interference with her repair efforts.
We grant the preliminary injunction satisfied on the evidence that "sufficient grounds" — pursuant to the requirements of A.S.C.A. § 43.1301(g) and A.S.C.A § 43.1301(j) — have been established. The plaintiffs claim of entitlement to family lands is supported by matai permission and ten years of family acquiescence in her use and occupation of her homesite, while defendant’s claim to superior entitlement rests on the troublesome notion of exclusive ownership of communal land by her immediate family. As a result, defendant’s various attempts at interfering with plaintiffs repair work have approached being misguided attempts at usurping "pule."
It is ORDERED that defendant, Pa‘u Talaeai, together with her agents, servants, and those in active concert with her, is hereby enjoined, until further order of court, from any interference whatsoever with the plaintiff, Ana Uli’s, attempts to repair the hurricane damage to her home located in the village of Aua on Uli family lands. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485901/ | When this matter came on for trial, after delayed trial setting and a previous continuance, objector/counter-claimants Faleulu Puletasi and Utaga Niuatoa were the only parties present and ready for trial. Trial therefore proceeded without the claimant, Fa'amaoni Vaita, who is reportedly living in Guam, and without objector Lusi P. Tivao, who seems to have lost interest in the matter, having failed to comply with the *26Clerk’s notice to file answers to the questionnaires made and provided for in these cases.
At the conclusion of the evidence, Faleulu moved to disqualify Utaga on the basis that Utaga did not meet the residency requirement of A.S.C.A. § 1.0404. This enactment states in pertinent part:- "[N]o one is eligible to claim or object to the succession to a matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of the claim or objection." The evidence clearly shows Utaga to be ineligible. He actually resides with his family in San Francisco where he concedes he has owned a home for the last ten years and where he has been in the employment of private industry since his retirement in 1980 from the United States Air Force. He occasionally visits the territory. In his defense, Utaga claims to be an American Samoan resident because he is a matai and a registered voter. This argument begs the question. The right to vote in American Samoa also entails, not surprisingly, a residency criterion. See Rev. Const. Am. Samoa art. II, § 7. It is residency, among other things, that determines the right to vote and not vice versa.1 We accordingly hold that Utaga M. Niuatoa is currently ineligible to claim succession to the title Niuatoa.
On the other hand, the evidence also shows that candidate Faleulu does meet the basic qualifications and is eligible to claim succession to the title Niuatoa. Accordingly, Faleulu Aneterea Puletasi shall be registered as the successor to the matai title Niuatoa attached to the village of Olosega. Certification to the Territorial Registrar pursuant to A.S.C.A. § 1.0409 shall be made accordingly.
It is so Ordered.
Cf. A.S.C.A. § 1.0412 (a): "Any matai absent from American Samoa for more than one year may be removed from his title upon petition filed in the High Court by any member of the family of the absent matai." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485902/ | Plaintiff American Samoa Government (hereinafter "ASG") brought these actions for injunctive relief and assessment of penalties against defendants for violations of the American Samoa Environmental Quality Act, A.S.C.A. §§ 24.0101 et seq. (hereinafter "the Act"), and the Water Quality Standards promulgated pursuant to the Act, A.S.A.C. § 24.0201 et seq.
*28Two days after the complaints were filed, ASG and each of the two defendants submitted consent decrees for Court approval. Under the proposed consent decrees, the defendants would neither admit nor deny past violations of the Act or the Water Quality Standards. Each defendant would, however, agree to pay civil penalties (amounting to $100,000 for defendant Samoa Packing and $150,000 for defendant StarKist) in settlement of ASG’s claim for past violations. The consent decrees also stipulate a schedule for eventual compliance with the Water Quality Standards and specify penalties for failure to meet the schedule.
The Court requested a hearing in an effort to resolve certain questions raised by the decrees. Specifically, the references in the proposed compliance schedules to quantities of nitrogen and phosphorous were stated in terms of "pounds per day"; it is not possible to tell from the face of the decrees whether the specified quantities exceed the permissible "micrograms per liter" set forth in the Water Quality Standards, and/or the standards set forth in the defendants’ National Pollutant Discharge Elimination System (NPDES) permits and incorporated by reference in the proposed decrees. It was also not clear to the Court whether the consent decrees, insofar as they should prove to be more permissive than the Water Quality Standards or the NPDES permits, would amount to judicial authorization of future violations of the laws of the Territory and/or the United States.
Counsel for ASG and both defendants appeared at the hearing and presented arguments and documentary evidence (including the current NPDES permits, which had originally not been submitted) which have helped the Court to reach an understanding of the meaning and probable effects of the proposed consent decrees. We have reached the conclusion that the decrees should be approved, subject to certain understandings and modifications:
7. Understandings
a) The Court understands that the consent decrees apply only to such violations of the Act and the Water Quality Standards as consist of excess discharge of phosphorous and nitrogen into the waters of Pago Pago Harbor. They do not affect the rights of the parties with respect to the discharge, if any, of suspended solids, oil and grease, or other effluent that may violate the NPDES permits or otherwise cause water quality to fall below the standards prescribed in A.S.A.C. § 24.0206(a). (This provision, set forth in the Appendix to the present opinion and order, provides in pertinent part that territorial waters shall be *29substantially free from materials that will produce color, odor, or taste; from grease, oil, scum, foam, or other visible floating material; from materials that will produce visible turbidity or settle to form deposits; and from substances and conditions that may be toxic to humans, other animals, plants, and aquatic life.)
b) The decrees are binding only on the parties thereto. They do not define or restrict the rights of the United States or of any private party, either with respect to the right to bring any action arising out of the alleged excess discharges or to the merits of such action, and the Court expresses no opinion on whether any such rights or causes of action exist.
c) The principal effect of the decrees, with respect to future enforcement of the Act and the Water Quality Standards, is that ASG agrees not to seek penalties for any failure to comply with the nitrogen and phosphorous limitations set forth in the defendants’ current NPDES permits which should occur between March 8, 1991, and March 6, 1992. Rather, enforcement during this period would be limited to violations of a set of interim standards, similar (although not identical) to those set forth in the NPDES permits for the period March 8, 1988, through March 7, 1991. In effect, the defendants would have an extra year in which to bring their operations into compliance with permanent Water Quality Standards before ASG would seek penalties for non-compliance.
d) It is not altogether clear, however, exactly what permanent standards the defendants would have to comply with by March 1992. ("Interim" standards, in the consent decrees and also in the current permits, are stated in terms of the number of pounds per day of the regulated substance which each defendant may discharge into the water during a specified period. "Permanent" standards, as we use the term in this opinion, are stated in terms of micrograms of the regulated substance per liter of water.)
The consent decrees clearly require "compliance with American Samoa Water Quality Standards" by March 6, 1992. The decrees further provide, however, that "compliance with American Samoa Water Quality Standards" shall be defined as "compliance with the nitrogen and phosphorus limitations contained within defendant’s [NPDES] permit." The defendants’ NPDES permits, in turn, will expire on March 7, 1992, which is exactly one day after the consent decree would require defendants to comply with them. Arguably, there would then be nothing *30left to comply with until and unless a new standard should be set in a subsequent federal permit proceeding.
Because the parties apparently intend the present agreement to be more specific than one for compliance with an unspecified standard to be set in the future — the provisions of the consent decrees requiring engineering feasibility studies with respect to alternatives for compliance with the Water Quality Standards, for instance, appear to assume a defined rather than an undefined set of standards — and because they clearly intend compliance after March 6, 1992, to last for longer than one day, the Court construes the provisions discussed above to mean that defendants agree to achieve compliance no later than March 6, 1992, with the permanent (micrograms-per-liter) standards with which, according to their current NPDES permits, they are required to comply no later than March 8, 1991. (These standards are set forth on page 4 of each of the current NPDES permits.) Compliance with these standards should then continue indefinitely, subject only to the provisions of the consent decree for modification or termination.
e) There is yet another important unresolved question. The Court understands that the parties are in serious disagreement over the locations in which measurements should be taken to determine compliance with permanent (micrograms-per-liter) water quality standards. This question is frequently defined in terms of the size of the "zone of mixing." A zone of mixing is a relatively small area in which regulated substances may exceed more general water quality standards without posing an unreasonable risk of harm to water quality outside the zone. At least one study conducted by environmental experts on behalf of ASG apparently takes the position that the zone of mixing for nitrogen and phosphorous in Pago Pago Harbor should be practically nonexistent, requiring effluent to comply with water quality standards immediately upon entering the waters of the harbor. Counsel for defendants, on the other hand, argue for a much larger zone of mixing, perhaps consisting of the entire Inner Harbor.
We note that the defendants’ NPDES permits, with which they agree to comply no later than March 6, 1992, appear to leave the definition of the zone of mixing in the sole discretion of ASG. We note further that the ASG’s discretion in defining the zone of mixing should be informed by the detailed provisions of A.S.A.C. § 24.0205, which provides procedures and standards for such definition, and should be designed to ensure that water quality in the harbor generally complies *31with the substantive criteria set forth in A.S.A.C. § 24.0206, subsections (a) and (d).
Finally, we note that the definition of the zone of mixing must be accomplished fairly soon in order to make it possible for defendants to comply with the requirement that they complete engineering feasibility studies no later than March 31, 1991. (If any party anticipates that it will be impossible for these studies to be completed on time, on the basis of a zone of mixing actually set by ASG pursuant to the consent decree rather than on the assumption that ASG will adopt some suggested zone of mixing, this should be reported to the Court at the party’s earliest convenience.)
II. Modifications
We also find it necessary to condition our approval of the consent decree on three modifications:
a) The Court neither approves nor disapproves of Section III, paragraph D of the consent agreement. In this paragraph ASG agrees not to seek any penalties for violations of "any permit," except insofar as such violations should happen also to violate the compliance schedule set forth in the decree. Read in conjunction with the provisions that set a different compliance schedule from that set forth in the defendants’ NPDES permits, this paragraph effectively immunizes defendants from prosecution by ASG for certain future violations of existing law. While we recognize that there are often good reasons for the executive branch of government to exercise its discretion not to prosecute violations of the law — and possibly even, in certain circumstances, to agree in advance to exercise such discretion — courts are not vested with prosecutorial discretion. Although we can and do approve the provision limiting the defendants’ liability to ASG for past violations to the stipulated amounts, we believe it inappropriate for a Court to enter an order prohibiting the prosecution of future violations of law.
Our reluctance to enter an order including this part of the agreement between the parties should not vitiate the agreements. The decrees, even in the absence of ASG’s undertaking not to prosecute future violations of existing law, contain important undertakings by both sides. Paragraph D, moreover, presumably retains whatever force it might have as part of a private agreement; its omission from our order merely deprives it of whatever additional force it would obtain from a judge’s signature.
*32b) Paragraph F of Section III of the decrees would appear to limit defendants’ liability for violations of the Water Quality Standards after March 6, 1992, to $500 per day, no matter how long the defendants remained in violation of the standards. This would appear to deprive ASG of the option of seeking criminal fines according to the provision of A.S.C.A. §§ 46.2103(6), in amounts up to twice the gain derived from the offense. This option is an extremely important one in environmental cases, since in its absence it might be more profitable for a polluter to pay $500 per day forever than to bring its operations into compliance with the law.
In making this observation we hasten to add that we have no evidence that defendants are acting otherwise than in good faith. On the contrary, counsel for the defendants — who, like counsel for ASG, have been honest and forthcoming in their conduct of this difficult and complex matter — are most emphatic in assuring the Court that their clients are determined to bring their operations into compliance with the law. Our hesitancy with respect to the $500 penalty cap has to do with its apparently open-ended duration. Accordingly, we approve this paragraph on condition that its duration be limited to the period March 7 through April 7, 1992. After that time ASG would have the option of proceeding under any applicable provision of law. (This modification is limited to Section V, paragraph F, and is not intended to affect the rights of any parties under any other provision of the consent decrees.)
c) In order to make possible the intelligent exercise of the continuing judicial supervision provided by Section XIII, the decrees should also be modified to provide for periodic reports to the Court on the status of compliance. Such reports should be made by counsel for ASG on or before October 31, 1990, and on or before the last day of every third month thereafter for the duration of the decrees, and at such other times as counsel deems appropriate. Counsel for defendants should file their responses, if any, to such reports within 15 days.
Subject to the understandings and modifications set forth herein, the consent decrees are approved and shall be entered as judgments of the Court.
It is so ordered.
*33
APPENDIX
American Samoa Administrative Code (A.S.A.C.) § 24.0206:
Standards of Water Quality
(a) Waters Generally. The following standards apply to all fresh surface waters, embayments, open coastal waters, and oceanic waters of the territory; paragraphs (3), (4), and (7) through (13) of this subsection apply as a minimum within the zone of mixing:
(1)They shall be substantially free from materials attributable to sewage, industrial wastes, or other acfiyities>of man that will produce color, odor, or taste, either of itself or in combinations, or in the biota.
(2) They shall be substantially free from visible floating materials, grease, oil, scum, foam, and other floating material attributable to sewage, industrial wastes, or other activities of man.
(3) They shall be substantially free from materials attributable to sewage, industrial wastes, or other activities of man that -will produce visible turbidity or settle to form deposits.
(4) They shall be free,from substances and conditions or combinations thereof attributable to sewage, industrial wastes, or other activities of man which may be toxic to humans, other animals, plants, and aquatic life. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485903/ | These consolidated actions concern the ownership of over 400 acres of land on and around Mount Olotele, comprising the village of A‘oloau Fou and its environs.
In 1986 an injunctive action (LT No. 29-86) was brought against Atualevao Sosene Asifoa and Lefotu Tuilesu, two chiefs of A‘oloau, by Lualemana, the principal chief of the neighboring village of A'asu. Lualemana claimed that Atualevao and Lefotu had begun cultivating portions of A‘asu lands called Tuaolo and Faleselau. Fuimaono and the *36Village Council of A‘oloau intervened, asserting that the disputed land was part of A'oloau and not A‘asu.
Shortly thereafter Fuimaono and the Village Council offered for registration as "a communal land of the Village of A‘oloau" two parcels comprising about 420 acres. Objections were filed by Lualemana on behalf of his family and the village of A‘asu and by Tuitele on behalf of the village of Leone. The registration case was referred to the High Court and designated LT No. 41-86.
In November of 1986 several chiefs of Pava‘ia‘i, another neighboripg village, moved to intervene "for themselves and the village of Pava‘ia‘i" in the injunctive action, LT No. 29-86. If any party had contested thi? motion it would probably have been denied, since it is now clear that the Pava‘ia‘i chiefs had no interest in the area that was being disputed in LT No. 29-86. Rather, their objection was to certain parts of the A‘aloau survey offered for registration in the other case, LT No. 41-86. These areas were at the opposite end of the 420-acre survey from the area being disputed with Lualemana in the injunctive action. The Pava‘ia‘i chiefs had, however, missed the statutory 60-day deadline for filing objections to the survey, perhaps because it was posted only in A'oloau and not in Pava‘ia‘i. Rather than state this lack of notice as a ground for allowing an otherwise untimely objection in the registration action, they sought admission through the side door represented by the Lualemana injunctive action. Hearing no objection, and thus far unaware that the intervenors planned to assert no interest in the subject matter of the pction in which they sought to intervene, the Court granted the motion.
The third and last of the cases now before us, LT No. 12-87, was filed early in 1987. In this case Fpijnaono and the A‘oloau Village Coupcil sought ap injunction against Toluao Fetalaiga of the village of Ppva‘ia‘i. They alleged that he had recently begun occupying and cultivating part of the land recently offered for registration by the village of A‘oloaü and ha(j thereby destroyed crops belonging to various A‘oloau families.
The cases were consolidated for trial. After consolidation yet anpther set of parties, the "Aiga Aitulagi," moved to intervene. The motion was granted without objection. The Utu family of A'oloau also intervened. After several postponements, the consolidated cases were tried on May 16-18, 1990. The record was held open for certain post-*37trial submissions, and the case was then taken under advisement. We address herein the claims asserted by each of the parties.
I. The A ‘oloau Survey
The evidence establishes that the two parcels included within the A‘oloau survey represent, with certain limited exceptions discussed below, lands that have been occupied and cultivated from virgin bush at various times since 1943 by various families of A‘oloau and that are the property of those families. In 1946, when the village completed its move up the mountain from its former location on the North Shore, a boundary was settled with A‘asu which by then had begun a similar migration. See Lualemana v. Brown, 3 A.S.R. 348, 350 (1958). The survey now offered for registration generally respects that boundary and the pattern of settlement of the two villages over the ensuing 44 years. In one place, however, it transgresses the traditional boundary and also encroaches on a tract of land already registered as the property of the Lualemana Family of the village of A‘asu. This encroachment is reflected on the composite map designated Exhibit 13, in the overlap between "Parcel B-Two" of "A'oloaufou" and the 85.66 acre registered survey of "Tuaolo & Faleselau." Not only has the latter survey been registered in accordance with law for over 20 years, it also more nearly reflects the pattern of settlement than does the A'oloau survey. The boundary line drawn by the Lualemana/A‘asu survey heads northward from the main road at a point corresponding to the intersection with an old road to A‘as’u Tuai. Witnesses for all parties acknowledge this intersection to be a turning point in the boundary between the two villages. Ttys A‘oloau survey, in contrast, turns northward from the main road at an apparently random point and includes houses along the main road belonging to A‘asu people whose right to live there has pot previously been disputed. Indeed, the principal A‘oloau witness seemed surprised to find that his village’s survey included these houses.
A small portion along the southern boundary of the A‘oloau survey is also contested by Tuitele on behalf of the village of Leone. The evidence reflects that a settlement of this boundary was reached between Fuimaono and Tuitele in or around 1988, in which Fuimaono on behalf of the Village Council conceded the disputed portions (reflected in Tuitele Exhibit 2, Drawing RPS2-5-30-88) to the Leone claimants. Ithougb, for reasons we shall discuss, it is not clear that this agreement is binding qn any particular A'oloau family that may claim to own the land, it is sufficient to support the only relief requested by Tuitele in the *38present action, i.e., the denial of the offer of registration of thé disputed portions as property of the Village Council of A‘oloau.
The Pava‘ia‘i intervenors object to a somewhat larger area in the southern and eastern portions of the A‘oloau survey. They have introduced their own survey of the area they call "Lago," said to belong to the "Ali‘i and Families of Pava‘ia‘i." Their witnesses testified that this survey reflects the traditional boundary between the county (a term now used to describe a traditional grouping of villages) to which Pava‘ia‘i belongs and that to which A‘oloau and A‘asu belong. One Pava‘ia‘i witness also testified that his father had once cultivated a plantation somewhere in Lago.
We are not convinced that Pava‘ia‘i people ever cultivated or occupied Lago. If they ever did, they seem to have abandoned it long before the A’oloau people arrived. The Pava‘ia‘i witnesses’ objection to this part of the A'oloau survey appears to be grounded primarily in their conviction that the survey transgresses an ancient political boundary. The principal A’oloau witness, on the other hand, places the traditional boundary at the bottom of the mountain near what is now the center of Pava‘ia‘i. Perhaps both are right: the ancient history of this part of Tutuilá seems to be one of domination first by one powerful chief and then by another, and it is only natural that the successors of each should cherish the memory of an age in which the men were stronger and the boundaries further. See Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383 (1963). The evidence establishes, however, that most of the cultivations in the'Lago area are those of A’oloau people who came there'at some time after 1946 but well before the 1980s when Pava‘ia‘i began to assert or reassert its claim. Nor is there any evidence that the A'oloau people displaced people from Pava‘ia‘i or anywhere else when they came to Lago; its traditional use by Pava‘ia‘i, if any, was as a place to gather and prepare for frontier skirmishes, presumably before the coming of the present government in 1900.
In assessing a similar claim by Pava‘ia‘i to traditional ownership of land even further up the mountain toward the center of A’oloau and A‘asu Fou, the Court observed that "[i]f prior to the war a Pava‘ia‘i chief and his family had cleared from the bush the land . . . and put in plantations on it ... it would have been that family’s communal property, but such was not the case. There was no occupancy or possession by the Pava‘ia‘i people but only an occasional visit to the bush there . . . ." Lualemana v. Brown, supra, at 352-53. Such use was insufficient to defeat the claim of people who came later to clear the *39area, make plantations, and occupy it continuously. Id. We reach the same conclusion with respect to almost all the land within the A’oloau survey that is also within the Pava‘ia‘i survey.
An exception is a small strip along the eastern boundary of the A‘oloau survey, appearing on the topographical map designated Atualevao Exhibit 12 as the eastern slope of an 1183-foot peak. This land does not appear to be cultivated by anyone, and it is just uphill from a cinder pit long used by Tuana'itau and Toluao of Pava‘ia‘i and held in Leomiti v. Toluao, 11 A.S.R.2d 49 (1989), to be the communal property of those two families. This area is also quite close to a tract held in the same case to be the property of the Leomiti family of Pava‘ia‘i and to another tract which, although outside the A‘oloau survey, has long been occupied and cultivated by Lefotu of A'oloau and was held to be that family’s communal property in Leomiti, supra. We have not been presented with composite survey maps enabling us to determine the overlap, if any, between the surveys by the Villages of A'oloau and Pava‘ia‘i and the various tracts already registered as the land of Toluao, Tuanaitau, Leomiti, Lefotu, or other families of the two villages.
As our discussion of this area on the eastern border indicates, the evidence in the present case is insufficient to enable the Court to draw a precise boundary between these two villages. Nor is it necessary or even appropriate for the Court to draw such village boundaries in the context of a land registration case. For, as the Court held in Olo v. Fuimaono, AP No. 27-81 (April 18, 1982), land can only be registered by its owner, and its owner is almost always a family rather than a village. In Olo v. Fuimaono the Appellate Division reversed a Land and Titles Division decision to the effect that certain land belonged jointly to the villages of Leone and A'oloau. The Appellate Division observed that "[rjarely has there been a situation where a village itself owned property in its own name." Id., slip opinion at 4. With one limited exception, not applicable to that case or the present one, "the concept of village ownership of land proposed in this case is contrary to Samoan custom and tradition." Id.
It is clear that at least some families of A‘oloau regard their lands within the A'oloau survey as their own property, not the property of the village, and no evidence has been offered to rebut the presumption that the land is held in accordance with the usual Samoan customs governing land ownership. Accordingly, the village survey cannot be registered. If particular families of A'oloau wish to offer their lands within the survey for registration, they are of course free to do so.
*40We do not mean to imply that the drawing of village boundaries is of no use whatever. Indeed, the settlement of such a boundary between A‘oloau and Pava‘ia‘i, along the lines of actual cultivation and occupation by families of the two villages during the last forty years or so, might help to avert future controversies. But the law requires registration of any tracts on either side of such boundaries to be by the owners, not the villages. A.S.C.A. §§ 37.0101 et seq.; Olo v. Fuimaono, supra.
11. The Lualemana Injunctive Action
In the action that precipitated these cases, Lualemana sought an injunction against the plantations of two A‘oloau families within the Lualemana family’s registered survey. It is worth noting that this survey comprises most if not all of A‘asu Fou. Such a registration was possible only because of the unusual fact that every family in A‘asu stipulated that it was part of the Lualemana family and that its lands in A‘asu Fou were held in its capacity as part of that family. Asu Village Chiefs v. Village of Asu, CA No. 40-1961 (August 10, 1961).
A valid registration effected in accordance with statutory procedures establishes a title good against the world. See A.S.C.A. §§ 37.0101 et seq.; Ifopo v. Siatu'u, 10 A.S.R.2d 66 (1989). As counsel for Atualevao and Lefotu points out, however, a registration which appears on the face of its own record not to have been conducted in accordance with the statutory procedures conveys no title. Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). One such facial defect is failure to post notices and announce the survey in the village where the land is actually located. Afualo v. Fanene, 15 A.S.R.2d 48 (1990).
In the present case the witnesses for Atualevao and Lefotu say they never saw any notices of the 1961 Lualemana survey posted in A'oloau, nor did they hear any announcements. The Court file contains a certificate of public oral notice in A‘asu but not in any other village. However, the file also contains a letter from the Clerk of the High Court to thepulenu‘us of A‘asu, Pava‘ia‘i, Faleniu, and A‘oloau requesting that notices be posted in each of these villages. This letter is unusual if not unique, and indicates that the Court or an officer thereof foresaw exactly the problem now raised by these defendants.
From the record we cannot tell whether the Clerk’s request was honored in other villages than A‘asu. It does appear, however, that at least some notice was given in A‘oloau: the posting place for A‘asu is a *41telephone pole on the main road that separates that village from A'oloau, and a notice visible in one village would be equally visible in the other. Moreover, the transcript of the 1961 Court hearing indicates that Fuimaono, the principal matai of A‘oloau, was actually present at the hearing. Indeed, he seems to have acted as a mediator between Lualemana and the objectors to the survey.
In any event, in order to prove the registration invalid the defendants would have to establish that the land in question is part of A‘oloau rather than A‘asu. This they have not done. The land in dispute between them and Lualemana is located along a road between A‘asu Fou and A‘asu Tuai, at some distance from the point where that road diverges with the old road to A'oloau Tuai. Although one of the defendants testified that a Lualemana made a boundary settlement favorable to the defendant at some time during the 1970s, this sheds little or no light on where the boundary was in 1961. The presence of Fuimaono at the hearing and his failure to object suggests a consensus that this land was part of A‘asu rather than A‘oloau. Notice in A‘asu would therefore have been sufficient.
Finally, however, there is a world of difference between a Court’s noting the facial invalidity of documents filed in the office of the Territorial Registrar, as we did in Faleafine, and declaring that a prior judicial decision is null and void, as counsel for these defendants would have us do here. The Court in 1961 had the whole record before it, including the certificate of notice and the letter from the Clerk of Court to the four pulenu'us — and perhaps also including other documents that have since gone missing as so many Court documents unfortunately do. The Court then was in a far better position than we are to determine to which village the land was generally regarded as belonging, the circumstances under which constructive and/or actual notice was given, and the other issues material to determining whether the land should be registered. The Court concluded, after some deliberation, that the land was the property of the Lualemana family and should be registered as such. To ignore or nullify such a decision thirty years later, when witnesses have died and memories have faded, even if it would not exceed our power, would be imprudent and unjust.
Atualevao and Lefotu also claim that they occupied the land for twenty years after 1961, thereby obtaining ownership under the adverse possession statute then in force. The evidence fails to establish, however, that defendants’ occupation of land within the Lualemana survey was open, notorious, continuous, or exclusive for the full twenty *42years. Indeed, it is not at all clear when defendants extended their plantations into the Lualemana survey; and the record affirmatively suggests some discontinuity in the maintenance of defendants’ plantations.
We are also unpersuaded by the testimony of one of the defendants to the effect that a former Lualemana re-settled the village boundary along the old road now claimed by the defendants as their boundary. It is undisputed that Lualemana only pointed to this road as the boundary at the place where it intersects the government road. This is more or less consistent with the boundary reflected in the Lualemana survey. Defendants would have us infer that Lualemana also meant to designate the old road as the boundary all the way to where defendants’ plantations are, although by that point it digresses from the boundary of the registered Lualemana survey and although there is no evidence that Lualemana said anything one way or the other about how far the road extended as a boundary. We decline to draw such an inference.
Accordingly, the Lualemana family is entitled to an order enjoining defendants from further occupation or cultivation within its registered survey.
III. The Injunctive Action Against Toluao
Although the A'oloau Village Council did not prove its right to register its survey, it did prove that the lands in the "Lago" area, with the exception discussed in Part I of this opinion, have been occupied and cultivated by families of A'oloau. In this action, although not in the registration action, the interests of the Village Council were identical to those of the various A‘oloau families whose plantations were displaced when Toluao began occupying this area in the mid-1980s, and no party has objected to the Village Council’s standing to act as an agent for these families. Accordingly, an order will issue enjoining Toluao from further occupation or cultivation of land within the A'oloau survey, with the exception of the area along the eastern boundary described in part I of this opinion.
The A'oloau parties also request damages for crops destroyed by Toluao, but did not prove the amount of any such damages. Such relief will therefore be denied.
IV. The Utu Intervention
*43The Utu family of A‘oloau intervened to protect its rights to a small parcel in the Lago area that is within both the A'oloau and the Pava‘ia‘i surveys, and which Toluao had begun to occupy and cultivate. All parties have stipulated that this parcel is the communal land of the Utu family, with the exception of Lefotu who claims that the Utu survey encroaches on his registered survey of land called Lagomau (an altogether different land than the one involved in the dispute between Lefotu and Lualemana). Counsel for Lefotu and Utu requested that the Court not adjudicate this conflict. As we have determined that the A‘oloau Village Council survey cannot be registered, and that Toluao should be enjoined from further occupation of Lago, there would be nothing left for us to adjudicate even in the absence of the stipulations. (There was never any question of registration of the Pava‘ia‘i survey, which was offered only as an exhibit; and the Utu family’s request for crop damages from Toluao has presumably been waived by the stipulation between counsel for these two parties, which does not mention such damages.)
V. The "Aiga Aitulagi" Intervention
The ancestors of the Aiga Aitulagi appear once to have exercised political authority and military power over a large area of western Tutuila including much or all of the area now in dispute. See Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383 (1963). In the present case, however, the Aiga Aitulagi presented no evidence of occupation or cultivation. Actual occupation with a claim of ownership — not the exercise of power over the actual occupants at some time in the distant past, nor even present political authority over a village, county, or district — is the best evidence of land ownership under the laws of American Samoa. See id. at 402; Seva'aetasi v. Fanene, 9 A.S.R.2d 118 (1988).
The claim of the Aiga Aitulagi to ownership of A’oloau Fou is barred in any event by collateral estoppel. The identical claim was raised and rejected in Tuilefano v. Government of American Samoa, 4 A.S.R. 594 (1964). Although that case concerned the ownership only of a small parcel deeded by the chiefs of A’oloau to the government for a school building, the issues and contentions in the case were identical to those now raised herein by Aiga Aitulagi. The Court’s resolution of those issues and contentions is therefore binding on the parties to the case, including Fuimaono, the Village Council of Aoloau, and the Aiga Aitulagi.
VI. Conclusion and Order
*44Judgment shall issue accordingly, denying registration of the A'oloau survey; enjoining Atualevao and Lefotu, their aigas, assigns, and those acting in concert with them, from further activities within the Lualemana survey; enjoining Toluao from further activities within the A‘oloau survey, with the exception of those parts described in Part I of this opinion; declaring the land within the Utu survey (Drawing No. 32-15-89) to be the communal property of the Utu family, with the exception of such areas as may encroach on any registered survey, and with the understanding that this declaratory judgment is binding only on the parties to these consolidated actions; and denying all other relief requested by any party.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485904/ | On July 23, 1990, the Court held a hearing pursuant to A.S.C.A. § 46.1301 et seq. to determine whether the defendant is mentally competent to stand trial.
Counsel for the defendant presented the testimony of a psychiatrist who had examined the defendant on several occasions. His testimony was to the effect that defendant is almost certainly afflicted by a mental disorder called "dementia," probably caused by one or more mild strokes and/or a chronic deficiency of the blood supply to the brain, and characterized by symptoms including serious gaps in memory and cognitive functions.
The testimony of this witness was that defendant’s mental problems were related to and aggravated by serious physical illnesses. He testified that defendant had a long history of heart disease, had probably suffered at least one mild stroke, had recently experienced convulsions which were probably associated with epileptic seizures, and that during a recent medical examination the defendant had undergone a "cardiac crisis" in which his blood pressure rose to an extraordinary level which presented not only an imminent threat to defendant’s life but also a severe obstruction to the exercise of cognitive and other mental functions. The psychiatrist testified that defendant generally had a good memory of the events surrounding the incident in which he is charged, but was unable to understand the pending criminal proceedings or to effectively assist in his own defense.
The defense also presented the testimony of the Assistant Public Defender and of an interpreter employed by the Public Defender’s office concerning the difficulties they had experienced in communicating with the defendant. They testified that these difficulties were unique in their experience and were not adequately explained by intercultural problems or deficiencies in education or intelligence. All witnesses testified that they were convinced the defendant was not malingering; on the contrary, they all testified to their conviction that he earnestly wishes to assist in his own defense but suffers from mental disorders that make it impossible for him to do so.
*46The Government presented a report from a psychologist who had examined the defendant. Through no fault of counsel for the Government, the psychologist did not appear at the hearing. The psychologist’s written report concludes that defendant is competent to stand trial. The basis for this conclusion is said to be interviews conducted with the defendant and with others who know the defendant, and also certain psychological tests specially designed to measure the various components of mental competence to stand trial. Unfortunately, the psychologist’s report tells us nothing whatever about defendant’s performance on these tests. The report’s conclusions appear to be related exclusively to the psychologist’s observation that defendant remembers and understands the events surrounding the incident with which he is charged, and also has an understanding of such things as the functions of judge, jury, and prosecutor. These observations concern matters that were never seriously in doubt and do not address the questions raised by the defense evidence. It also appears that defendant failed to answer a single question on at least one of the tests, although the psychologist’s report gives no hint of this. Moreover, one of the persons said to have been interviewed by the psychologist testified that he has no recollection of such an interview.
Despite the serious deficiencies in the psychologist’s report, the question of mental competence is not free from doubt. Defendant does seem to be a reasonably intelligent individual; among the actions, opinions, fears, and fixations cited by the psychiatrist as evidence of dementia were several that do not strike the Court as unusual or even particularly unreasonable. Even if defendant’s current physical and mental state is such that he could not presently assist in his own defense, it is not at all clear that this condition is a permanent one.
The preponderance of the evidence presented at the hearing, however, is to the effect that defendant is presently incompetent. A.S.C.A. § 46.1305 requires that a mentally incompetent defendant shall be ordered confined in the Correctional Facility or such other place as the Court shall designate, for a period not to exceed 120 days. Within 120 days a further hearing shall be held to determine whether the defendant has become competent to stand trial and, if not, whether there is a substantial probability that he will attain competency within one year or the maximum term of imprisonment that may be imposed for the crime charged.
The Court therefore orders that the defendant be confined in the Tafuna Correctional Facility pending a further hearing on his *47competency, which is hereby scheduled for Wednesday, December 5, 1990. At this hearing the Court anticipates that the Government shall present the testimony of at least one expert witness who has examined the defendant. The Court may also order its own examination as provided by A.S.C.A. § 46.1303.
During his confinement the defendant is to receive regular medical treatment for his heart condition; he should also undergo diagnosis and treatment, where indicated, for any other physical or mental disorders. The Government may provide this treatment in the Tafuna Correctional Facility or, if warranted in the best judgment of the appropriate officials of the Department of Public Safety and the LBJ Tropical Medical Center, may transport the defendant between the Correctional Facility and the Medical Center for medical diagnosis and treatment on an outpatient basis, or confine him in a secure area within the Medical Center for inpatient diagnosis and treatment.
If the defendant is adjudged competent at the December 5 hearing, or at any subsequent time within the period prescribed by A.S.C.A. § 46.1305, he will stand trial for the serious crime with which he has been charged. If he remains incompetent, and if the Government believes that his mental disorder renders him a danger to himself or to others, resort may be had to civil commitment procedures.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485906/ | On Motion for Reconsideration:
Introduction
We granted summary judgment holding defendant Amerika Samoa Bank ("ASB'') liable on its $300,000 irrevocable standby letter of credit issued to plaintiff Pacific Reliant Industries, Inc. ("PACREL"). ASB moved for reconsideration contending, among other things, that damages was an issue of fact properly before the Court which precluded the grant of summary judgment. After the hearing on the motion, we allowed further argument and briefing on the question of damages only, and otherwise rejected ASB’s remaining contentions summarily. We here consider the argument on damages.
ASB’s argument centers on the provisions of § 5-115(1) of the Uniform Commercial Code (UCC). This provision reads:
*59When an issuer wrongfully dishonors a draft or demand for payment presented under a credit the person entitled to honor has with respect to any documents the rights of a person in the position of a seller (Section 2-707) and may recover from the issuer the face amount of the draft or demand together with incidental damages under Section 2-710 on seller’s incidental damages and interest but less any amount realized by resale or other use or disposition of the subject matter of the transaction. In the event no resale or other utilization is made the documents, goods or other subject matter involved in the transaction must be turned over to the issuer on payment of judgment.
UCC § 5-115(1) (emphasis added).
Discussion
1. Applicability of the UCC
An assumption fundamental to ASB’s position is that the UCC applies in American Samoa. The immediate difficultly with this position, however, is that the Fono has failed to adopt the UCC, and obviously it is not for the Court to attempt by judicial fiat that which the legislature has declined to do. ASB’s assertion that this Court has held the UCC applicable in this case is not correct. We merely noted the rule of other jurisdictions dealing with a situation where the Uniform Customs and Practice for Documentary Credits (UCP) was silent or ambiguous; that is, analogous UCC provisions may be utilized if consistent with the UCP. See Bank of Cochin Ltd v. Manufacturers Hanover Trust, 612 F.Supp. 1533, 1542 (D.C.N.Y. 1985). As this Court recently noted in Security Pacific National Bank v. M.V. Conquest, 4 A.S.R.2d 59, 71 (1987),
[t]here is abundant precedent for the judicial practice of adopting as judge-made law the substance of statutes that are not binding on the court. For instance, the Uniform Commercial Code does not apply to contracts for the sale of real estate, but some state courts have adopted provisions of the UCC by analogy as rules of property law. Similarly, many state legislatures have adopted comparative negligence statutes; in some other jurisdictions the courts, regarding this new development *60as a desirable one, have modified the old judge-made law to incorporate comparative negligence.
While the UCC does not of its own force apply in American Samoa, that is not to say that certain rules embodied in widely adopted uniform codes, such as the UCC, may not otherwise be applicable in the territory when they evince or restate generally accepted principles of law.1 Thus, we were indeed able to look to analogous provisions of the UCC for guidance on the question of what was "reasonable time." Here, however, we are not faced with a similar gap in the UCP which requires filling in through analogous reasoning. Although the UCP is not explicit on damages as remedial relief for wrongful dishonor, a letter of credit by its very nature and purpose clearly implies that liability will be for the face amount of the letter of credit. In contrast, there is no obvious number of days that constitutes a "reasonable time," and hence our earlier recourse to the UCC, given available precedent. On the other hand, resort to the UCC is not, in our view, equally compelling here. The resale portion of UCC § 5-115 is hardly an apparent rule of general law. No cases applying this rule (or, for that matter, rejecting it) were cited to the Court by counsel, nor were any such cases found by the Court’s own research. The cases construing UCC § 5-115 tend to increase the damages awarded above the letter of credit amount as a result of the inclusion of "incidental damages." See, e.g., cases collected in Annotation, Damages Recoverable for Wrongful Dishonor of Letter of Credit Under UCC § 5-115, 2 A.L.R. 4th 665 (1980).2
Additionally, the logic of the resale provision in a letter of credit context is not perhaps free of question. While increasing a damage award above the letter of credit’s face amount preserves the sanctity of this important commercial device and does not increase the risk of wrongful refusals to pay, adopting a rule that would call into question the exact amount available on a given letter of credit is far more repugnant to the purpose and utility of the letter of credit, and would make possible *61spurious claims of resale in order to thwart legitimate collection efforts. In a similar vein, the district court in Toyota Industrial Trucks v. Citizens National Bank, 611 F.2d 465 (3d Cir. 1979), refused to impose a duty to mitigate on a letter of credit beneficiary under § 5-115(1) because this "would negate the essential purpose of the UCC concept of the letter of credit by relieving the issuer of its primary and sole responsibility on the letter." Id. at 470. The resale provision in effect applies a rule of common law contracts to letters of credit.3
It is well established that the letter of credit exists independently of the obligations of the underlying contracts;4 the letter of credit must be paid when the documents required by the letter of credit are presented, regardless of the events transpiring between the buyer and seller. This avoids litigation of the underlying facts and assures prompt payment in most letter of credit situations. The portion of UCC § 5-115 reducing the award on a letter of credit by the amount garnered by the resale of the items in question mitigates the utility of the letter of credit device by contaminating the proceeding with extraneous facts whose proof may be difficult and contested. The independence of the letter of credit from the underlying transactions reflects the policy decision that such disputes should not be resolved prior to the payment of the letter of credit but afterward, when the fall-out of the underlying contracts is being litigated. This preserves the utility of the letter of credit.
We are not convinced that UCC § 5-115 reflects a generally applied rule of law, and in view of the reservations we have expressed *62concerning this provision’s application to the letter of credit situation, we are disposed to reject ASB’s contention.
II. Requirements of UCC § 5-115(1)
Even if applicable, the current facts do not come within the UCC § 5-115 framework. The rule of § 5-115 applies to sale of goods situations, but not to "pure" credit situations such as guaranty letters of credit. See, e.g., East Girard Savings Association v. Citizens National Bank and Trust Company of Baytown, 593 F.2d 598, 603 (5th Cir. 1979); Housing Security, Inc. v. Maine National Bank, 391 A.2d 311 (Maine. 1978). While the situation here seems closer to a sale of goods situation than to a pure credit situation, it still may not qualify for the application of § 5-115. As the court in East Girard Savings Association explained, the independence of the letter of credit from the underlying contracts is in no way inconsistent with the UCC § 5-115 resale provisions, because the letter of credit itself will identify the exact goods which are resold, and so the court need not look to the underlying contracts to identify the goods. The letter of credit here in question may not have sufficiently identified the goods in question to enable the court to follow their resale5 without resorting to the actual underlying contracts; it required only a "Beneficiary’s signed statement" and a "Notice of default of invoice . . . ." While a notice of default on an invoice might well have a copy of the invoice attached, the letter of credit itself does not require this, and so the exact goods might not be identified in the letter of credit, especially in this case where the $300,000 letter of credit was used to guarantee payment for several sequential shipments of materials — with a total value of roughly $1 million — and not one specific single shipment.
For reasons given the motion is denied.
It is so Ordered.
A.S.C.A. § 1.0201(4) declares so much of the common law of England as is suitable to conditions in American Samoa to be effective law in American Samoa. In Tung v. Ah Sam, 4 A.S.R. 764 (1971), the common law of England was clarified to mean "that body of jurisprudence as applied and modified by the courts of the United States at the time the statute was adopted and as since construed.” Id. at 768.
This is somewhat surprising in the light of the number of jurisdictions which have adopted a version of UCC § 5-115. See 3 R. Anderson, Uniform Commercial Code § 5-115:2 (2d ed. 1971).
In Breathless Associates v. First Savings & Loan Association of Burkburnett, 654 F. Supp 832 (N.D. Tex. 1986), a court considering the same UCP provisions considered in our decision granting summary judgment, held that the UCC permitted other sources of law where the UCC itself is silent as to the remedy, and therefore applied the common law of contracts to hold that the beneficiary could recover only the actual damages caused by the bank’s breach. Id. at 838. In Breathless Associates, the UCC opened the door to the common law; in American Samoa, the inapplicability of the UCC in general leaves that avenue doubtful. Furthermore, it has been held in letter of credit situations that the "measure of damages used in ordinary contract cases is inapplicable because a letter of credit simply is not an ordinary contract." East Girard Savings Association v. Citizens National Bank and Trust Company of Baytown, 593 F.2d 598, 603 (5th Cir. 1979).
Three separate contracts exist in letter of credit transactions: one between the issuing bank and its customer (agreeing to issue the letter of credit), another between the bank’s customer and the beneficiary (agreeing to use a letter of credit), and a third between the issuing bank and the beneficiary (evincing the bank’s promise to pay conforming drafts against the letter of credit). Venizelos S.A. v. Chase Manhattan Bank, 425 F.2d 461, 464-65 (2d Cir. 1970).
The exact fate of the goods remains mysterious, and may well become another dark tale of the South Pacific. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485910/ | Afoa submitted for registration a survey of 3.43 acres more or less, comprising land he calls Paepaetele in the village of Taputimu. Representatives of the Asi, Meleisea, Si‘i, and Tulifua families objected on the ground that parts of this tract belong to their respective families.
Another objection appears to have been motivated entirely by the objector’s dissatisfaction with the name given to the land. Although no evidence was given by this objector, several witnesses for the other objectors said that Afoa should not have called the land "Paepaetele" (this being the name of some other land belonging to another family) but should have called it "Pagota." Afoa acknowledges that he has land called Pagota but says this land is not part of it. We make no finding with respect to the traditional name of the land; any party who is held to own part of the tract in dispute is free to call it whatever he likes.
1. The Asi Objection
The most substantial objection in terms of acreage was that of Asi, who claimed about 1.572 of the 3.43 acres claimed by Afoa. Asi submitted a composite map (Exhibit 3) showing the overlap between his claim and that of Afoa. We have used this exhibit as a basis for our own composite map, attached hereto as Appendix A, to illustrate the boundaries to which we refer in our written opinion. There are two principal areas of overlap between the Asi and Afoa claims.
The first area of overlap is a strip about 300 feet long and varying in width between 50 and 100 feet, on the south and west sides of the Taputimu Loop Road and just to the south of a house belonging to an Asi family member. Part of this strip appears to be a small back yard appurtenant to the Asi house; the rest consists of heavy growth not apparently used or cultivated by anyone. Resolving this dispute amounts to an exercise in boundary drawing between the area occupied by Asi to the north and that occupied by Afoa to the south. Asi has drawn the *92boundary along a line of trees in the middle of the underbrush between the two occupied areas. Afoa, on the other hand, has drawn a line that encompasses the whole intervening bush and comes within a few feet of the Asi house. Neither side presented a particularly compelling case, but the preponderance with respect to this disputed strip favors Asi.
The other area in dispute between these two parties is on the opposite (north and east) side of the Taputimu Loop Road. It comprises about an acre and surrounds an abandoned chicken coop operated by Afoa some years ago. Asi’s story is that he gave Afoa permission to build the chicken coop on his land; that Afoa originally wanted to build it on some other piece of Asi land; Asi denied permission to build it there, but instead gave Afoa permission to build it in the area now disputed.
Afoa’s story is similar in some respects. He says he tried to build the chicken coop on another site, but Asi objected, saying the proposed site was on Asi land. Asi told Afoa to go build his chicken coop on his own land, and the two men agreed on an alternate location which Asi acknowledged to be on Afoa land. Afoa built the coop at the alternate location, which is the area now in dispute.
With respect to this portion of the disputed area, Afoa prevails. Although stranger things have happened, it does not impress us as very likely that Asi would have allowed another matai with plenty of his own land to build a chicken coop on Asi land, particularly since it is clear that Asi had already begun to regard Afoa as something of a troublemaker in land matters and had recently denied permission with respect to another site. The Afoa version of this story rings truer. Afoa also presented the testimony of a witness who testified credibly that he had a plantation in this area for some years, after the demise of the chicken coop and under the authority of Afoa, with no objection from Asi people.
II. The Meleisea Objection
The objection of Meleisea principally concerns a portion of the Afoa survey on the far side (west or Leone direction) of the Taputimu-Vailoa paved road. There is evidence of both recent and traditional Meleisea habitation and cultivation in this area, and Meleisea prevails with respect to it.
Meleisea also claims that Afoa’s western boundary does not even extend as far as the paved road, but that the traditional boundary between *93adjoining landowners in this area was an old road a few feet to the east of the present road. This claim is seconded by witnesses for Asi and Si‘i, and is buttressed by a document showing that a right-of-way for the road was granted in 1973 by a number of chiefs including Asi and Si‘i but not Afoa. (The Meleisea and Si‘i families are closely connected, and the present Meleisea was then holding the Si‘i title.)
Neither Meleisea nor Si‘i has submitted a survey, however, from which we might determine exactly where they would draw the line between the Meleisea or Si‘i land to the west and that of Afoa to the east. It also appears that Afoa has been occupying the land up to the edge of the road in the portion of his survey not disputed with Asi (i.e., the area in front of his present house and of a tulaga fale that was formerly the site of another Afoa house) and no evidence was presented of any conflicting occupation during the memory of man. Afoa therefore prevails with respect to this area, as far northwest as the southeastern edge of the government right-of-way and as far north as the southern boundary of the land held to belong to Asi. The land to the west and northwest of this area appears to belong to Meleisea and/or Si‘i.
III. The Si 7 Objection
Si‘i objects to the western boundary claimed by Afoa, and also to the western part of the southern boundary. He has presented no survey, but makes three principal arguments: (1) any land possessed by Afoa in this area is because of a connection to Si‘i and Meleisea and by permission of these families; (2) the boundaries drawn by Afoa encompass a communal graveyard of the three families (Si‘i, Meleisea, and Afoa) which includes the grave of the deceased mother of Si‘i, who was also the mother of Meleisea; (3) the southern boundary drawn by Afoa comes quite close to a Si‘i residence, and actually includes part of the paepae, a small area of gravel immediately surrounding the house.
The evidence does not support either of the first two contentions. Whatever relationship the Afoa title (a very high one) has to Meleisea and Si‘i, it is not one of vassalage. After trial the Court viewed the land, principally in order to examine the claim of Si‘i that his mother’s grave is within the Afoa survey. It is not. The grave of the mother of Si‘i and Meleisea (pointed out by them and also by Afoa) is in a small graveyard separate and distinct from the one inside the Afoa survey, and not even adjoining it. The only specific evidence we have concerning the older graveyard within the Afoa survey is that the last three Afoas are buried there.
*94We also attempted to determine whether the southern boundary drawn by Afoa crosses the paepae of the Si‘i house. Although we cannot be certain, it does appear to encompass a small comer of the Si‘i paepae. This does not, of course, conclusively establish that this small area is not Afoa land; but the best evidence we have of ownership in this area is the pattern of settlement, and the evidence is to the effect that this Si‘i house was built some years ago without objection from Afoa.
The southern Afoa boundary, although quite close to the Si‘i house, is also quite close to the present and former Afoa houses. The Si‘i objection is therefore unpersuasive except insofar as the Afoa boundary may include part of the paepae of the Si‘i house or otherwise come so close as to encroach on what the parties must have reasonably regarded over the years as the curtilage of this house. As it will be necessary for Afoa to revise his survey in several respects before registering it, we direct that he include a further revision, if necessary, so that his southern boundary will not come any closer than fifteen feet to the Si‘i house. (This revision, to the extent it may be necessary, is illustrated by the dotted line in Appendix A. Neither this dotted line nor the other boundaries drawn by the Court in Appendix A is intended to be precisely to scale.)
IV. The Tulifua Objection
Pupi Lam Yuen testified that the southern boundary drawn by Afoa encompasses a few feet of an area traditionally regarded by the Tulifua family as part of their land. This witness, although evidently honest and sincere, testified from family history recounted to him by others and from a vague memory of a Samoan house that once belonged to an uncle of his. The boundary, according to what this witness said he was told by older members of his family, should be along a line of kapok trees. He testified that there had once been several such trees but that now only one is left standing, the second-to-last having fallen during the recent hurricane. A line drawn between these two trees, however, would put part of Afoa’s house on Tulifua land. This house has been there for some time, without any evident objection from the Tulifua family. The witness admitted, moreover, that there have been no Tulifua houses or cultivations within this tiny disputed area for some time. Afoa prevails with respect to this objection.
*95V. Conclusion and Order
Accordingly, we hold that Afoa may register a tract described by the following boundaries, and illustrated in Exhibit A: (1) beginning at the southwestern comer of the Afoa survey (Drawing # 53-15-89), northward along the western boundary of this survey to the southern boundary of the government right-of-way for the paved Taputimu-Vailoa road (i.e., to a point 15 feet south/southeast of the center line of this road); (2) thence northeastward along a line 15 feet from the center line of the paved road (i.e., the southeastern boundary of the government right-of-way) to the intersection of the Taputimu Loop Road; (3) thence northeastward along the southern edge of the Taputimu Loop Road to a point due west of the westernmost point of the Asi claim as depicted in Exhibit 3; (4) thence due east to the westernmost point of the Asi claim as depicted in Exhibit 3; (5) thence south/southeast along the various courses comprising the southwestern and southern boundaries of the Asi claim as depicted in Exhibit 3, to the intersection with the Taputimu Loop Road; (6) thence northwest along the center line of the Taputimu Loop Road to the intersection with the northern boundary of the Asi claim as depicted in Exhibit 3; (7) thence east, southeast, and west along the exterior (northern, eastern, and southern) boundaries of the Asi claim as depicted in Exhibit 3, to another intersection with the Taputimu Loop Road, which is also an intersection with the undisputed portion of the Afoa survey; (8) thence west and northwest along the southern and southwestern boundaries of the Afoa survey, to the aforementioned southwestern comer, with such adjustments as may be necessary to come no closer than fifteen feet to the existing Si‘i house.
Asi may register the portion of his claim, as depicted in Exhibit 3, that is to the west of the Taputimu Loop Road. This area is also illustrated in Appendix A.
Although Meleisea and/or Si‘i prevailed with respect to part of the land described in their objections, they did not submit surveys. We are also unsure whether the area in the vicinity of the Taputimu-Vailoa road, other than that held to belong to Afoa, belongs to Meleisea or Si‘i. Meleisea brought the objection in this area, but it was the Si‘i family, in the person of its then senior matai who is the present Meleisea, that authorized the government right-of-way. If either of these families wishes to register its land, therefore, a survey and offer of registration in accordance with A.S.C.A. § 37.0101 will be necessary.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485911/ | On Motion to Dismiss:
Defendant University Industries Inc. (hereafter "University") had earlier moved under T.C.R.C.P. 12(b)(2) to dismiss the complaint against it for of lack of in personam jurisdiction. Plaintiff, on the other hand, moved to continue the motion in order to allow him the opportunity for discovery to meet the factual issues raised by affidavits filed in support of University’s motion. The continuance was granted. After the conclusion of certain depositions, University moved to reset its motion to dismiss, and the matter was duly put on calendar for hearing.1
University’s first argument concerns the scope of the single tort provision in the territory’s long arm statute2 as a predicate for personal jurisdiction. Defendant argues that this provision applies only in cases where the tortious conduct was committed "within" American Samoa and that the acts relied upon by plaintiff as constituting actionable wrong— namely, the defective design and manufacture of a piece of machinery— had taken place in California. The contention here is that the statute predicates jurisdiction only upon the commission of a tortious act within *98American Samoa, whereas it does not encompass a cause of action stemming solely from an on-island injury which resulted from an off-island wrong.3
Secondly, University argues that it nonetheless lacks the necessary "minimum contacts" with American Samoa to support the exercise of in personam jurisdiction consistent with the requirements of due process.
Facts
At all relevant times, University, a California corporation with home offices in San Diego, undertook business as mechanical contractors involved with the design, fabrication, and installation of heating, ventilating and air-conditioning systems, plumbing and piping systems in all types of structures. As such, University was subcontracted in 1984 to install, among other things, certain piping for a conveyor system which was being installed for a Ralston Purina fish canning plant located in San Diego, California. The conveyor system essentially comprised a huge rubber-like belt on rollers designed to carry cooked tuna between a line of workers involved with separating the cooked tuna meat from the bones. University had nothing to do with the design of the conveyor system nor its fabrication, save to the extent of installing the pertinent *99piping. This work was done according to certain plans and specifications provided to University by or for Ralston Purina. The piping provided compressed air and hydraulic fluid to the conveyor as well as certain liquids used in the canning process. Except for some subsequent adjustments to the piping, University heard no more of the conveyor system until sometime in 1988 when it found itself involved with a claim filed in San Diego alleging, among other things, someone’s injury in American Samoa as a result of the conveyor system’s faulty design and manufacture. University was neither aware of, nor had anything to do with, the removal of the conveyor system to a cannery in American Samoan. At the same time, University has neither done nor sought business in the territory.
Discussion
The cases have said that in order to properly assert personal jurisdiction over a nonresident, two conditions must be met: the forum’s, long-arm statute must permit the exercise of jurisdiction under the particular facts of the case, and that the exercise of jurisdiction must be consistent with the demands of due process. See Wyatt v. Kaplan, 686 F.2d 276 (5th Cir. 1982); Greenspun v. Del E. Webb Corporation, 634 F.2d 1204 (9th Cir. 1980); Luckett v. Bethlehem Steel Corp., 818 F.2d 1373 (10th Cir. 1980); see abo 2 J. Moore, Moore’s Federal Practice, ¶ 4.41-1[3] at 4-443 et seq. (2d. ed. 1985). Even if we rejected University’s first argument and concluded that the facts here brought the case within the ambit of the territory’s long-arm statute, we think that the assertion of jurisdiction in the present matter would not be consistent with the demands of due process. For reasons indicated below we grant the motion.
In order to subject a nonresident defendant to a judgment in personam, due process requires that he have "certain minimum contacts [with the forum] such that the maintenance of the suit does not offend ’traditional notions of fair play and substantial justice.’" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). In denying a Florida court’s assertion of jurisdiction over a Delaware trust account, the Supreme Court in Hanson v. Denckla, 357 U.S. 235 (1958), stated that:
... it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum *100State, thus invoking the benefits and protection of its laws.
Id. at 253. The Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), spoke of this "purposeful availment" as ensuring that a defendant will not be hauled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts, or of the "unilateral activity of another party or a third person." Id. at 475. (citations omitted). The Court further explained that "[¡jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum state." Id. (quoting McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957) (emphasis in original)). Most recently, in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), the Court further elaborated that the "substantial connection" required by Burger King and McGee, "between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defetuiant purposefully directed toward the forum State." Id. at 112. (emphasis in original).
Applying these guidelines to the relevant facts here, the contacts between the defendant and the territory are at best tenuous, if not outright imaginary, from a due process stance. We reject any suggestion to the effect that the installation of piping to a conveyor system for a cannery in San Diego constituted an act whereby University "purposefully avails itself of the privilege of conducting activities within . . . [American Samoa], thus invoking the benefits and protection of its laws." International Shoe Co., supra. As noted above, the conveyor system was neither designed nor manufactured by University. This defendant’s sole involvement with the conveyor system was the installation of piping in accordance with plans produced by a third party specifying the particular needs of a cannery in San Diego. From University’s point of view, the conveyor system’s presence in American Samoa is tantamount to nothing more than that sort of "random," "fortuitous," or "attenuated" contact resulting from the "unilateral activity of a . . . third party," which due process disallows as being a sufficient basis to hale a defendant before a foreign jurisdiction. Burger King, supra. Furthermore, the conveyor system hardly qualifies as a product of University, and its involvement with the installation of piping in accordance with some third parties’ specifications is hardly "an action of the defendant purposefully directed towards . . . [American Samoa]." Asahi Metal Industry Co., supra.
*101
Conclusion
The complaint against University Industries, Inc., is dismissed for want of personal jurisdiction.
It is so Ordered.
Although the Order to continue had anticipated an evidentiary hearing (thus putting plaintiff to proving jurisdiction by a preponderance of the evidence) we opted to proceed with the motion on the basis of the written materials submitted since plaintiff had also filed a detailed written response to the factual matters raised by the motion. The court has the discretion to proceed on a T.C.R.C.P. 12(b)(2) motion either on the basis of affidavits alone or through a full evidentiary hearing on the merits. Marine Midland Bank N.A. v. Miller, 664 F.2d 899 (2d Cir. 1981).
A.S.C.A. § 3.0103(b)(2) provides:
Any person, firm or corporation, whether or not a citizen or resident of this territory, who, in person or through an agent, takes any of the following actions, thereby submits, and if a corporation, submits its personal representative, to the jurisdiction of the courts of this territory, as to any cause of action, suit or proceeding arising out of . . . the commission of a tortious act within this territory.
This was the construction given by the courts of New York to a like tort provision in that State’s long arm statute. See Longines-Wittnauer W. Company v. Barnes & Reinecke, Inc., 209 N.E.2d 68 (1965 N.Y.), cert. denied 382 U.S. 905. ”[T]he mere occurrence of injury in the State . . . cannot serve to transmute an out-of-state tortious act into one committed here within the sense of the statutory wording." Id. at 77. The literal reading has not gone without criticism, and it is to be noted that the rule in Longines-Witmauer was repudiated the following year by an amendment to the New York Civil Practice Law and Rules, effective September 1, 1966. See Annotation, Products Liability - —Jurisdiction, 19 A.L.R.3d 13, § 8(b) (1968). Although the pre-1966 New York provision was taken verbatim from Illinois’ influential long arm statute — 111. Rev. Stat., c. 110, § 17 (1963) — see Longines-Witmauer, supra, at 84 (Desmond C.J., concurring), the New York Court of Appeals nonetheless declined to adopt Illinois’ construction of the provision. The Illinois Supreme Court had earlier held in Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761, (Ill. 1961) that a tortious act within the meaning of the statute was committed in Illinois even though the only contact the defendant manufacturer had with Illinois was the occurrence of the injury there. Rejecting the manufacturer’s argument that the legislature, by employing the term "tortious act," rather than the term "tort," referred only to the act or conduct, separate and apart from any consequences thereof, the Court said that to be tortious, an act must cause injury and that the concept of injury was an inseparable part of that phrase; and that the legislative intent should be determined less from technicalities of definition than from considerations of general purpose and effect. Id. at 763. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485982/ | KLEINFELD, J.:
This appeal involves a dispute a century old. We affirm the decision below. This decision should end the dispute over who owns the disputed 60 acres of Malaeimi, the Puailoa family or the heirs and assigns of Lagafuaina Laisene. The Lagafuaina Laisene heirs and assigns own it.
The Land and Titles Division published an opinion at 11 A.S.R.2d 54 (1989), and a decision on a motion for reconsideration at 12 A.S.R.2d 84 (1989). These decisions are masterpieces of lucidity and precision. We adopt the statements of fact in those decisions and the analysis of law, except for the legal analysis on the two issues we do not find it necessary to reach, adverse possession and laches. Since we affirm on the main ground of the decision below, res judicata, we do not reach these alternative grounds of the decision below. The summary of facts and law herein is designed only to facilitate easy reference, and the reader needing a more complete explanation should read the decisions of the Land and Titles Division.
*42In 1895 Fanene of Nu’uuli defeated W. McArthur & Company in the Supreme Court of Samoa, when the Company attempted to register a mortgage on land called Malaeimi in the village of Faleniu. In 1906 Puailoa Vaiuli, who had developed the land and had assisted Fanene of Nu’uuli in defeating the McArthur claim, leased 360 acres within Malaeimi to the Church of Jesus Christ of Latter Day Saints. The rent was paid by the Church to Puailoa Vaiuli until he died in 1929. After his death, his widow, Salataima, received the rent.
The critical determination of ownership in this case arose out of a dispute in 1931 between matais of the Puailoa family and Puailoa Vaiuli’s widow, Salataima, over who was entitled to the rent. If Puailoa Vaiuli had owned the land individually, then his widow was entitled to the rent, but if it had been communal land of the Puailoa family, then the Puailoa family, through its matais, would be entitled to the rent. Salataima, the widow, was not a member of the Puailoa family, and having no children by Puailoa Vaiuli, she had no right to remain on the land if it was Puailoa family land.
The High Court decided in the 1931 case, Nouata v. Pasene, LT No. 18-1930, that the widow was entitled to the rent, not the Puailoa family. Here is the critical language of the 1931 Nouata decision:
[Tjhat 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.
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.
Puailoa matais approached Chief Justice Wood, Governor Lincoln, and United States Senator Hiram Bingham in their political and legal attempts to have this decision overturned, but it was not reopened. The judgment stood.
In 1953 Salataima sold the Church 300 of the 360 acres. She died in 1956 and left her brother Lagafuaina, whose estate is the lead defendant in the case at bar, the remaining 60 acres of Malaeimi. She had not made a written, witnessed statement that the Puailoa family *43should receive the rent after her death, as the court had suggested in 1931. The defendants in this case, in addition to Lagafuaina’s estate, include a number of individuals to whom he sold portions of the 60 acres, his granddaughter, who built a house on the land, and other persons taking interests through Lagafuaina. Lagafuaina and those taking interests under him have invested in improvements of a value exceeding a million dollars since the late 1950s.
The Puailoa family never accepted its 1931 defeat. In 1978, 47 years after the judgment, Puailoa Tavete moved for a new trial in the 1931 case. The motion, filed in Nouata v. Pasene, LT No. 18-1930, was denied. Appeal was taken, and the appellate division upheld the denial in a decision written by Acting Associate Justice Kennedy, now Justice Kennedy of the United States Supreme Court:
[T]he predecessor in interest of the party making this motion 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, 1 A.S.R.2d 25, 31-33 (1980). The Nouata 1980 decision did not construe the language of the 1931 decision, but it did decide with finality that the decision should not be reopened, on account of lack of jurisdiction, to decide who had title to the 360 acres and that the decision was binding as to the Puailoa family: "We intimate no views *44as 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." Id. at 35.
The Puailoa family, though, still did not accept the result. The family began moving people onto the 300-acre portion of Malaeimi which Salataima had sold to the Church. The Church sued them for trespass and lost in Reid v. Aipopo, LT Nos. 007-79, 041-79. The trial court construed the 1931 decision to give the widow only "the rent from the church lease." The court then construed the 1931 decision to establish that Malaeimi was communal land of the Puailoa family, so the widow’s conveyance of 300 acres was void. The appellate division affirmed as to the 300 acres Salataima had sold the church, on the ground that this construction amounted to a finding of fact and was not clearly erroneous. Reid v. Puailoa, AP No. 14-82 (March 30, 1983) (the reported opinion at 1 A.S.R.2d 85 does not include the full slip sheet opinion).
It is quite important to note, as the trial division in the case at bar did, that the trial division’s decision in Reid was reversed, insofar as it had any bearing on Lagafuaina’s 60 acres. The appellate decision says:
The judgment of the trial court purported not only to affect the status of the land claimed by the Mormon Church, but also the status of an additional 60 acres to which the Church had no connection, and, as well, addressed the rights and liabilities of several persons who were not parties to the action. The trial court eventually terminated the property rights of several individuals without their knowledge and without granting them an opportunity to defend their interests.
Elementary concepts of due process require notice and a hearing prior to the deprivation of property rights. . . . One is not bound by a judgment resulting from litigation in which he is not designated as a party and to which he has not been made a party by service of process. . . .
Those portions of the decision of the trial court attempting to dispose of property not claimed by the Mormons, and affect[ing] the rights of individuals who were not parties to the litigation were erroneous and are reversed.
*45Reid v. Puailoa Tavete, AP Nos. 014-82, 015-82, 016-82, slip op. at 16-17.
In the same year as his success on appeal regarding the 300 acres, Puailoa Tavete filed the present lawsuit regarding the 60 acres. The theory of the lawsuit is that the 1979 decision’s construction of the 1931 decision on the 300 acres should also be applied to the 60 acres, so that the Puailoa family, rather than the various individuals taking under Lagafuaina, will be deemed to have title. The trial court held that the 1931 decision was res judicata and construed the decision to establish that the entire 360 acres was individually owned by Salataima and not communally owned by the Puailoa family. The trial court found that the parties with interests in the 60 acres were not bound by the 1979 judgment, because they were not parties or in privity with parties which participated in that litigation. We think that this is exactly right.
The long and complex history makes the issues seem more complicated than they are. The chain of title for Malaeimi divided into two when Salataima sold 300 acres to the church and left 60 acres to her brother Lagafuaina. The 300 hundred acres and the 60 acres have been the subject of separate litigation. If A conveys Blackacre to B and Whiteacre to C, and then D, claiming title superior to A’s to both parcels, successfully sues B for title to Blackacre, C’s title to Whiteacre is unaffected by the judgment. C was not a party to D’s litigation against B, so he cannot be precluded from re-litigating the issue which D litigated against B.
Puailoa Tavete is in privity with the matais of the Puailoa family who litigated in 1931, because he takes whatever interest he holds on behalf of the family from the matais who claimed to hold an interest in the 360 acres in 1931. The defendants in this case who took their interests from Lagafuaina are in privity with Lagafuaina, because they took from him, and their title can be no better than his. The estate of Lagafuaina is in privity with Salataima because Lagafuaina inherited from her, and his estate’s title can be no better than hers. The estate of Lagafuaina, though, is not in privity with the Mormon Church and so is not bound by the Church’s defeat in the Reid case, because Lagafuaina took from Salataima, not from the Church. His title is not dependent on the Church’s title, because the chain of title split into two branches when Salataima sold 300 acres to the Church and devised 60 acres to her brother, Lagafuaina.
*46Of course we consider the persuasive force of the Reid case, even though it is not binding upon the Lagafuaina interests. The doctrine of stare decisis is inapplicable, because it applies only to questions of law, not questions of fact or applications of principles of law to particular facts. 20 Am. Jur. 2d Courts § 185 (1965). Lagafuaina and his heirs did not take title from the Mormon Church and were not parties to Reid., so to give any more force to Reid would be res judicata through the back door. As to the Lagafuaina 60 acres, the Lagafuaina interests were not "parties," and the Reid judgment was reversed on appeal, so the trial court decision was not "final. Since res judicata applies only to a "final” judgment between the "parties" or those in privity with them, Restatement (Second) of Judgments § 17 (1988), the doctrine cannot apply.
The Nouata court in 1931 quite plainly decided whether Malaeimi was individually owned or communally owned. The court described the widow’s contention as being that the Puailoa family lands "belonged to the holder of the name Puailoa except that land which was leased by Puailoa to the Mormons and that belongs to her on his death. She also says that this land leased to the Mormons came to Puailoa under the name Vaiuli and not under the name Puailoa." We see no room for doubt that the court meant to decide in that case whether the land was individually or communally owned. Since the Puailoa family were "parties" to that decision, and the decision is "final" under Nouata v. Pasene, 1 A.S.R.2d at 35, it does have res judicata effect. Restatement (Second) of Judgments § 17. That means that we cannot properly reexamine whether, as between the widow’s heirs and assigns and the Puailoa family, the land is individually or communally owned. 46 Am. Jur. 2d Judgments § 415 (1969).
The trial court decision in Reid may be meant as an interpretation of what Nouata means and not a reexamination of Nouata on the merits. We have given it respectful consideration, but we find the trial court’s interpretation in the case at bar more persuasive. In plain English, Nouata decided that the 360 acres was "the property of the widow." This was an answer to the question of whether Malaeimi was her property or Puailoa communal property. What the court called a suggestion to the widow, that she prepare a will stating who should receive the Church rents after her death, is best construed to be exactly what that court said it was~"only a suggestion." We just do not see ambiguity in the language saying that the land was "the property of the widow" or the phrase "only a suggestion." The phrase "she should have during her lifetime the rents" is better interpreted as a concrete answer *47to the Mormon Church’s question, "To whom should we pay the rent?" than words qualifying the widow’s title. The Church’s question precipitated the dispute, so the court answered it. In 1931, as the trial court in the case at bar pointed out, land was plentiful, but cash was scarce, so the court’s attention would naturally be drawn to the issue of specifying who should receive the cash. We do not decide whether the 1931 decision was right or wrong, only that it decided the question of whether the 360 acres was the individual property of Salataima or the communal property of the Puailoa family. Even if erroneous, the 1931 decision is binding. Restatement (Second) of Judgments § 17 comment d.
We adopt the statement of facts in section I of the trial division’s decision and affirm it on the basis of the res judicata effect of the 1931 decision, which is section II of the trial division’s decision, and the effect of Reid v. Puailoa, at section IV of the trial division’s decision. We do not reach the issue of adverse possession. We intimate no view on whether section III of the trial division’s decision regarding adverse possession is correct, because it is unnecessary for us to reach that issue. Likewise, it is not necessary for us to decide whether laches would apply against the Puailoa family, as section V of the trial division finds.
A century of litigation over title to one parcel of land is more than enough. As the 1980 decision in Nouata v. Pasene noted, ”[T]here must be an end to litigation someday." Nouata, 1 A.S.R.2d at 35 (quoting Ackermann v. United States, 340 U.S. 193, 198 (1950)). After 60 years, this is the end. The past must now be past. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485983/ | Upon joint motion of the parties, trial herein was bifurcated on the separate issues of liability and damages. We earlier found the defendant negligent and that his negligence was the proximate cause of certain injuries sustained by plaintiff. We held that the defendant was accordingly liable to the plaintiff for damages and subsequently heard further evidence.
After the accident, plaintiff was admitted to the L.B.J. Tropical Medical Center at Faga’alu. He had minor lacerations and extensive bruising, but he also complained of severe pains especially to his back, neck, and right hip-joint area, together with numbness in his legs. While x-rays failed to reveal any evidence of fracture or spinal injury, plaintiff became progressively weak in his legs and was shortly thereafter virtually bound to a wheelchair. To compound the difficulty with the diagnostic efforts, plaintiff was also known to have an extended history of "Bechterew’s disease" (ankylosing spondylitis) — a condition which *49produces degenerative changes in the spine and spinous processes with ossification of tendons and soft tissue; the spine becomes fused and rigid with the result that flexion thereby naturally becomes curtailed; this, in turn, affects a certain range of body movements.1 At the same time, it became increasingly evident that plaintiff was also showing signs of spinal cord damage, and therefore the admitting physician, Dr. No’ovao, recommended off-island spinal testing and treatment which could not be facilitated locally. Plaintiff was eventually referred to Straub Clinic in Honolulu, Hawaii.2
*50On November 29, 1988, plaintiff was admitted to Straub and was immediately referred to a number of specialists. Examinations not only confirmed a significant degree of ankylosing spondylitis, they also revealed a fracture to the T5 or T6 vertebra. The examining doctors also discovered an accumulation of debris made up of "bony fragments and disc material as well as hematoma" against the spinal cord (mid-thoracic area), which was causing a build-up of pressure. On December 10, 1988, plaintiff had to undergo a thoracic laminectomy to remove the mentioned debris. Post-operatively, plaintiff appeared at first to be doing well, but he subsequently began feeling weak again in his lower extremities. Another exam revealed more hematoma build-up in the same area of the spine, and plaintiff had to undergo another laminectomy two days later. Following the latter operation, plaintiff was observed as beginning to improve in his "function and strength." According to Dr. John B. McCully of the L.B.J. Tropical Medical Center, surgical division, the recovery process thereafter, albeit slow and painful, was basically a matter of physical therapy assisted by certain medication to assist in rehabilitating muscle damage. Over many months plaintiff gradually regained his mobility.
In terms of measuring recovery from injuries resulting from the accident, Dr. McCully explained on the witness stand that this was difficult to do in the case of plaintiff, since recovery is usually measured by comparison with a prior, healthy body. Plaintiffs current complaints and debilitating condition were also consistent with ankylosing spondylitis throughout his entire spine. On balance, Dr. McCully opined that plaintiff had probably recovered completely from the injuries he sustained as a result of the accident.
At the time of the accident, plaintiff was 36 years old. He testified that he has been a resident of California since 1960; however, he also says that he has been in Samoa off-and-on since 1985 helping to manage his father’s estate, for which he basically received bed and board. Plaintiff also alluded to having been in the trucking business in California, which he gave up for reasons unknown. The trucking business, however, varied in explanation from that of a self-employed truck driver to that of an autonomous operation run by five employees. We find that plaintiffs relationship with his father’s household more accurately depicts his economic situation at the time of the accident. On the foregoing, we fix general damages in the sum of $35,000.00.
Plaintiff also seeks judgment for his medical bills incurred with Straub, which we have already alluded to in footnote 2, supra. It is trite *51law that a plaintiff seeking damages for personal injuries is entitled to recover the reasonable value of medical services rendered to him because of the injury. See 22 Am. Jur. 2d Damages § 197 (1988).3 The question that follows is "what is reasonable?" The evidence shows that plaintiffs admitting physician, Dr. No’ovao, felt that off-island examination was necessary. There was no evidence to the contrary. Also in evidence is a copy of an itemized invoice from Straub Clinic relating to services presumably rendered to plaintiff. Apart from a number of unexplained items under the notation "phone call," the billings do reflect the course of treatment otherwise explained in the medical evidence. The invoice presents a total figure, inclusive of state taxes, in the amount of $58,656.00, of which $220.00 represents unexplained phone calls for which defendant may not be held liable. We hold that the foregoing constitutes a prima facie showing of reasonable value of medical expenses and accordingly fix special damages in the sum of $58,400.00.
Less the sum of $10,000.00 paid by defendant’s insurer for compulsory third-party liability (see note 2, supra), we conclude that plaintiff, Tepatasi Puailoa, shall have judgment against the defendant, Kennison Barber, in the sum of $83,400.00.
It is so ordered.
In a letter to plaintiffs attorney, dated September 20, 1990, Dr. John B. McCully of the L.B.J. Surgical Division summarized his findings following his examination of plaintiff. Among other things, Dr. McCully noted that plaintiffs lower or lumbar spine was notably flat-he had a stoop and walked slowly; while able to bend forward to touch his knees, plaintiff had no extension and virtually no lateral flexion to either side; rotation, or ability to twist from side to side, was limited at 20 to 30 degrees. His head and neck movements were also significantly reduced-lie had no upward gaze ability (extension) other than eye movement; forward flexion was at 50%; lateral flexion, right and left side, was 10 degrees at most; and rotation was also 10 degrees. The hips have also become significantly deformed because of a certain degree of fusion; x-rays show that the sacroiliac joints have been obliterated; this has also reduced flexion and hence movement. Finally, x-rays also revealed degenerative changes with both knee-joints, with a loss of lateral joint space.
There was a six-week delay in off-island evacuation because of money problems. Dr. No’ovao’s notes on file suggest that while plaintiffs case was referred to the hospital’s off-island referral committee, the committee did not seem to regard plaintiff as eligible for off-island treatment at government expense and insisted that plaintiff pursue such insurance claims as may be available to him. Eventually, the defendant’s insurer for compulsory third-party liability insurance under A.S.C.A. §§ 22.2001 et seq. settled with plaintiff and paid out policy limits in the amount of $10,000.00. According to plaintiff, half of this sum was deposited with Straub Clinic, while the remainder was used for his airfares and other incidental expenses. As a result of extended hospitalization in Honolulu, plaintiff apparently owed Straub Clinic some $58,000.00. This debt has been reduced to final judgment. See Straub Clinic v. Puailoa, CA No. 100-89 (1990).
This element of damages is rarely at issue in this jurisdiction. Statutorily, "medical attention shall be provided free by the government" to American Samoans and qualified residents. A.S.C.A. § 13.0601. In turn, the government can, under the equitable principle of subrogation, look to the tortfeasor for reimbursement. See A. I. U. v. American Samoa Government, 3 A.S.R.2d 115 (1986).
Whether plaintiff could have looked to the government for his medical bills is not an issue before us. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485915/ | This is a petition for relinquishment of parental rights in anticipation of adoption of the parties’ 6 year old minor child by his paternal grandmother. The primary ground for the petition is that the child has been reared by grandmother who is now 66 years of age, a recent widow, and whose source of income is social security benefits and certain rentals. The natural parents are in their mid-thirties and have both been gainfully employed. We are informed by the home study concluded by the Child Protective Services, Department of Human Resources, that all parties concerned are living together and that the child is aware of her natural parents. The natural father candidly admitted that he and his wife would naturally take over the child’s care should grandmother become incapacitated.
The termination of parental rights also means the termination of a parent’s legal obligations of support towards the child. The vital concern, therefore, in these matters is whether the child’s best interests will be served by granting the petition. We are unable to conclude herein that termination of the parents’ legal rights and duties would be in the child’s best interests. The child’s remaining period of minority is significant; he should be able to look to his relatively younger and able parents to provide for his future. The petition is denied.
*109It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485916/ | On Motion to Modify Decree:
The plaintiff herein, now known as Carolyn Kirschman, (hereafter "Kirschman") was granted a decree of divorce from the defendant James J. Mahoney (hereafter "Mahoney") on April 22, 1981. The decree provides for the custody and support of the parties’ minor children and also incorporates a property settlement agreement. The property settlement agreement is dated April 22, 1981, and appears to have been signed by both parties and their respective counsel. Clause 4 of this agreement reads as follows: "Defendant shall pay Plaintiff the further cash sum of $6,100.00 within 30 days of the sale of the Sea Ray (boat), but no later than approximately six months from today."
The parties and their remaining minor child have long since removed from American Samoa — Kirschman is now domiciled in Missouri while Mahoney has been living in California. Notwithstanding, Mahoney has specifically returned to this jurisdiction to seek a modification of the decree with respect to his obligations under clause 4 of the property settlement agreement, and with respect to continuing child support. He asserts mistake and changed circumstances as grounds for relief. Mahoney has subsequently added a prayer to his petition seeking an amended custody order on the grounds that the minor now desires to live with him. Kirschman, on the other hand, has appeared through counsel opposing the petition on the grounds of forum non conveniens.
On the issue of custody and child support, we decline to exercise jurisdiction. Absent some showing of special need, it should appear fairly obvious that the best interests and welfare of the parties’ 16 year old child demands more than an attempt at long distance evaluation. The courts of domicile or residence have a more substantial interest in the welfare of the child, and they would also be more effective at dealing with the child’s best interests and welfare from the standpoint of enforcement. Accordingly, the petition is dismissed to the extent that it seeks to modify the provisions of the decree pertaining to custody and child support.
As to the property issue, we assert jurisdiction since the boat, the subject of clause 4, is still located in American Samoa. As we noted above, Mahoney asserts mistake as a ground for modification of clause *1114. He testified that the boat was in a damaged condition at the time of settlement, however, for purposes of resolving the division of the marital asset, they agreed to assign the boat a resale value of $25,000.00. Since there was at the time an outstanding $12,000.00 mortgage interest against the boat, Mahoney asserted that the figure of $6,100.00 payable to Kirschman, represented an equal division of the sale proceeds less the mortgage interest (which he had agreed to discharge). According to him, the boat could not be readily be sold, as it had actually sustained more damage than they had suspected, and on-island repair services proved inadequate.
Mahoney stated that he was eventually relocated by his employer; however, prior to his leaving the territory, he managed to conclude a certain "Bill of Sale and Sales Agreement" with a Mr. Crispin and a Mr. Jamieson. Under this agreement, Mahoney transferred all his interest in the boat to Crispin and Jamieson. In return, the latter agreed: to pay Mahoney $10,000 within a year; to put the boat into seaworthy condition and sell the same on open market; and, after deducting the sum of $10,000 paid to Mahoney together with out of pocket expenses incurred by them, the sale proceeds would be divided equally among the three of them. Mahoney duly received the recited $10,000 from Crispin and Jamieson, which money he applied against the mortgaged debt — now fully discharged. As to the boat, it has yet to be made seaworthy, although Kirschman is still seeking to collect the $6,100.00 payable to her under clause 4.
Mahoney seeks to be relieved of the requirements of clause 4, and in lieu thereof, he proposes to offer plaintiff the entire one-third share of the proceeds he would otherwise be entitled to under the agreement with Crispin and Jamieson. He has further suggested that the boat be sold under Court supervision.
We decline the invitation to be involved with supervising the sale of marital property, and for reasons set out below, we deny the petition to modify clause 4. In the first place, the claim to mistake rings hollow when viewed in the context of give and take, compromise and settlement. Had the facts turned out differently and the boat actually attracted a sizable profit beyond the parties’ anticipation, could Kirschman have similarly asserted mistake and claimed more money than the agreed $6,100.00? We think not. Quite clearly, the language of clause 4 does not, as Mahoney’s claim to mistake seems to presume, condition the payment of the $6,100.00 on a successful and profitable sale of the boat. Rather, Clause 4 of the property settlement agreement simply stipulates *112that a further payment of $6,100.00 shall be made by Mahoney to Kirschman within a determinate period; that is, "within 30 days of the sale of the boat but no later than approximately six months from today." (Emphasis added.) If the parties had, indeed, intended some aleatory feature with the provision, they could have easily employed more exact expression. As things stand, there is no ambiguity with the wording of clause 4. Furthermore, this provision has been incorporated as part of a final decree that has, for many years now, settled property rights between two people.
Additionally, while alimony orders have been held to be modifiable (as the parties’ circumstances change) and enforceable by contempt proceedings, property orders are not so regarded. Warren v. Warren, 361 P.2d 525 (Wyo. 1961); Annotation, Alimony as affected by wife’s remarriage in absence of controlling specific statute, 48 A.L.R.2d 270, 302 (1956). Clause 4, as incorporated and made a part of the decree, orders the payment of $6,100.00 by Mahoney to Kirschman as a means of carrying out a division of a marital asset — the boat — as distinct from ordering the payment of periodic alimony. As a provision, therefore, pertaining to the division of property, clause 4 may not thus be modified judicially. See also Pierson v. Pierson, 88 N.W.2d 500 (Mich. 1958); Nelson v. Nelson, 182 P.2d 416 (Or. 1947); Austad v. Austad, 269 P.2d 284 (Utah 1954).
The petition is, accordingly, denied. It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485917/ | On Motion for Preliminary Injunction:
This matter came on regularly for hearing the 11th day of September, 1990, upon plaintiffs motion for a preliminary injunction to enjoin the defendants from constructing a FEMA hurricane relief home on a site adjacent to the graveyard situated towards the rear of the respective existing guest houses of the Utu family and Paolo family, in the village of Amouli.
The Court finds sufficient grounds for the issuance of a preliminary injunction. The evidence preponderates in favor of plaintiffs in terms of the likelihood of prevailing on the merits at trial, and after weighing the equities between the parties, it appears likely that great injury will result to the applicant before a full and final trial can he had on the merits. A.S.C.A. § 43.1301(j).
*114Accordingly, and pending the final disposition of this matter or further order of this Court,
The defendants and each of them, and those in concert with the defendants, are hereby enjoined from continuing the construction of a FEMA home on that site adjacent to the graveyard situated towards the rear of the respective existing guest houses of the Utu family and Paolo family, in the village of Amouli.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485918/ | On Motion for Summary Judgment:
Plaintiff Ernest Thompson is the owner of a pick up truck which was damaged in a single vehicle collision. At all relevant times, the truck was insured by defendant National Pacific Insurance and driven by plaintiffs brother Bert, who was then visiting the island and had taken the vehicle without specifically notifying or asking plaintiff. As a result of the collision, Bert was cited and convicted of the following traffic violations: operating a vehicle without a valid driver’s license and operating a vehicle while under the influence of alcohol.
When plaintiff made a claim on his motor vehicle policy for damage to the pickup truck as a result of the collision, defendant denied the claim. The basis for the denial is an exclusionary clause in the policy which, the defendant contends, does not extend coverage to damages occasioned to the truck while it is being operated by a person under the influence of intoxicating liquor, or by a person who is not validly licensed to drive in the territory. In its motion for summary judgment, the defendant cites clause 4 (a) and (e) in the policy, which in pertinent part reads as follows:
THIS POLICY DOES NOT COVER —
4. Loss damage liability and/or compensation for damage . . . caused whilst the Motor Vehicle—
(a) is being driven by . . . any person under the influence of intoxicating liquor or of any drug provided that this exclusion shall not apply to indemnity and/or insurance provided on behalf of any other person or party if such other person or party proves that he did not consent to the Motor Vehicle being driven by or being in charge of the person when such person was under the influence of intoxicating liquor or of any drug.
*116(e) is being driven by . . . any person with the consent of the Insured if the driver was not duly authorised under all relevant Laws By-Laws and Regulations to be driving such vehicle for the purpose for which it is being used.
Discussion
The parties agree that the case is an appropriate one for summary judgment; however, they have differing views on the correct construction of the exclusionary clause. The defendant contends that the policy does not cover damages to the pickup truck arising while the vehicle was being driven by a person under the influence of intoxicating liquor. Plaintiff, on the other hand, reads the proviso attached to clause 4 (a) as having the effect of maintaining coverage in circumstances where an insured can prove that he did not consent to the use of the vehicle by the driver.
On this point, we have to agree with the defendant. The proviso clearly refers only to "indemnity and/or insurance provided on behalf of any other person or party" (emphasis added), whereas in contradistinction, plaintiff is referred throughout the insurance contract as the "insured." The proviso’s reference to "any other party" is plainly a reference to third party beneficiaries, not the insured, and thus in the circumstances before us the question of consent or absence of consent has no bearing at all on whether the exclusionary clause 4 (a) applies or does not apply.
We conclude that the damages here claimed are excluded from coverage under the terms of policy. Defendant’s motion for summary judgment is granted.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485919/ | The Court has received a letter from the daughter of the named appellant (who appears to have passed away several months ago) requesting "adequate time to seek new counsel wherein the transcripts can be corrected and certified." The letter was addressed to the Chief Justice, who served as trial judge in the case. Since the requested extension has to do with the pending appeal, the letter has been referred by the Chief Justice to the Appellate Division.
*118A request for enlargement of the time provided for any of the actions required to perfect an appeal should be made in the form of a motion, with copies served on adverse parties. See Appellate Court Rules 25(b), 26(b). This has not been done in the present case.
There is, moreover, a far more important problem with the request now before us. Appellate Court Rule 10(b)(1) requires in pertinent part that
[w]ithin 10 days after receiving the reporter’s or clerk’s estimate the appellant 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.
Rule 10(b)(4) further requires that "at the time of ordering, a party must deposit an amount of cash equal to the estimated cost with the reporters" and that "[c]ounsel must file a copy of the reporter’s receipt with the clerk of court."
The reporter’s certificate of the estimated transcript cost in the present case was filed on January 16, 1990. Appellant’s order for transcript, deposit, and filing for the record of a copy of the reporter’s receipt were therefore due by January 26. Neither the named appellant nor the present petitioner — whom the trial court found to have replaced her father as the real party in interest by the time of trial, and who therefore should have been named as appellant — filed the required order, deposit, or copy of receipt by January 26. Nor, indeed, has any of these acts been done up to the present time. Aside from a recent request from her counsel to withdraw from further representation, the letter we have just received is the first official or quasi-official communication the Court has received from the appellant since notice of appeal was filed over eight months ago.
If appellant had followed the rules, the transcript would have been filed by February 25, and appellant’s brief would have been due in mid-April. The appeal would therefore have been ready to be heard at the next regular session of the Appellate Division, now tentatively scheduled for the week of October 29, 1990.
*119Since appellant did not follow the rules and therefore has not perfected her appeal, the appeal is subject to dismissal at the discretion of the Appellate Division. See Appellate Court Rule 10(b)(5). The usual practice in the High Court has been to dismiss overdue unperfected appeals at the next regular session of the Appellate Division.
The situation is complicated, however, by the fact that appellant appears recently to have made her own private, off-the-record arrangement with a court reporter for the production of a transcript. According to information provided to the Court by the court reporter in question, this request was made about a month ago, which is about seven months after the expiration of the deadline. No motion for an extension of the January 26 deadline was made to the Court, either before or after its expiration, as would have been necessary in order to allow the production of a transcript as part of the official record on appeal. See Appellate Court Rules 10(b)(1), 11(a), 26(b). Nor was any written request for a transcript made to the court reporter, as required by Rule 10(b)(1). The verbal request was made directly to the court reporter by appellant herself, although appellant was then represented by counsel. The reporter, without consulting the court rules and without thinking to consult a judge or the Clerk of the High Court, agreed to produce the requested transcript. It was finished last Thursday, September 20. It is this unofficial transcript which appellant now alleges to contain many errors.
Although it might be within the Court’s power to construe the present letter as a retroactive motion for extension of the time in which to request a transcript and to grant such an extension, it is not at all clear that this would serve the interests of justice. If appellant had requested an extension on or around the January 26 deadline, she might well have been given an extension of a month or two, but an extension of eight months or longer would almost certainly have been deemed unfair to the other parties. This is especially true since the effect of such an extension would be to delay the hearing of the appeal until the 1991 session of the Appellate Division, which will probably be held almost two years after the trial. Although appellant appeals to the Court by reference to family tragedies and attendant financial difficulties, we are not told why her counsel did not request an extension on these grounds in January.
The entire file in the present appeal, including the appellant’s recent letter, will be referred to the full Appellate Division at its upcoming session. The Appellate Division can then consider whether to dismiss the appeal, to grant the appellant an extension, or to make such *120other order as it may deem appropriate. Counsel for each of the appellees is directed to file any response with the Court (and to serve copies on all other parties) no later than October 15, 1990. Appellant or her new counsel, if any, may also file any further pleadings with reference to this matter (and serve copies on all other parties) no later than October 15.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485921/ | Filifili M. Alai’asa filed a petition pursuant to A.S.C.A. § 1.0412,1 for himself and on behalf of the Seigafo family of Faleniu village, seeking the removal of Seigafo Edward Scanlan from the title "Seigafo,” on the grounds that the respondent has been absent from the territory for a period in excess of one (1) year. The petition is joined by a number of signatories purporting to be members of the Seigafo family.
The petition and summons was served upon the respondent by registered mail with return receipt acknowledged by the respondent all in accordance with the requirements of A.S.C.A. §§ 43.0504, 1.0412, and *41.0411(b). Respondent, on the other hand, has failed to plead or otherwise respond and is found to be in default. We note jurisdiction.
We find on the evidence that petitioner, Filifili Ali’asa, is a member of the Seigafo family, and that the respondent is a resident of the State of Hawaii and has been absent from the territory for a period of six years. Having also considered the wishes of the family as expressed in the testimony, the Court concludes that the petition should be granted.
It is Ordered, Adjudged, and Decreed, that the respondent Seigafo Edward Scanlan is hereby removed of the title "Seigafo," pertaining to the village of Faleniu. The Territorial Registrar is directed to amend the matai registry accordingly.
1.0412 (a) provides: "Any matai absent from American Samoa for more than 1 year may be removed of his title upon petition filed in the High Court by any member of the family of the absent matai. Upon presentation of such petition and satisfactory proof of such absence, the court may, but need not, remove such title. The court may consider the reasons for such absence and the wishes of the family actively serving the matai." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485924/ | On Motion to Dismiss:
The above-named trustees have filed a pleading styled "Petition for Advice and Instructions," and they have addressed their petition to the "Probate Division"1 of the High Court of American Samoa. The surviving settlor of the referenced family trust, Mrs. Lefaga Beaver, has entered an appearance2 by filing a Trial Court Rules of Civil Procedure, *10Rule 12(b)(6) motion to dismiss the trustees’ petition for failure to state a claim for which relief may be granted. Mrs Beaver contends that the trustees are seeking an advisory opinion from the Court as to their duties and that there is no case or controversy presented.
We disagree. In the light of the requirements of Trial Court Rules of Civil Procedure, Rule 8 (a)(1), we conclude that the complaint sufficiently states a claim for declaratory relief pursuant to A.S.C. A. §§ 43.1101 et seq., notwithstanding the odd characterization of the complaint as a petition to the probate division for instructions. The motion to dismiss is denied.
It is so Ordered.
The High Court of American Samoa consists of an appellate division, a trial division, and a land and titles division. A.S.C.A. § 3.0207(a). Once upon a time, the High Court did have a separate "probate" division. See 5 A.S.C. § 408. This enactment, however, was amended in 1979 by Public Law 16-28, §13, which deleted reference to "probate division." The petitioners’ insistence, nonetheless, in addressing their petition to a non-existent probate division of the High Court, is puzzling.
The file does not reveal whether any summonses have been issued and served upon all parties interested in the trust, as required by Trial Court Rule of Civil Procedure, *10Rule 4. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485925/ | On Motion for Stay of Execution:
On August 6, 1990, the trial court rendered judgment for plaintiff/appellee Lualemana, providing in pertinent part that defendant/appellants Asifoa (Atualevao) and Lefotu were permanently enjoined from further activities within a tract of land registered in 1961 as the property of Lualemana. See Lualemana v. Atualevao, 16 A.S.R.2d 34 (1990).
On August 10, 1990, upon motion by defendant/appellants, the Court amended its judgment to allow defendant/appellants thirty days in which to harvest any crops belonging to them within the Lualemana tract.
Defendant/appellants subsequently moved for reconsideration of the trial court judgment and for a further stay of execution upon the judgment. On September 4, 1990, the Court denied the motion to *12reconsider, but did grant an additional thirty-day stay of execution so as to allow defendant/appellants to move in the Appellate Division for a stay of judgment pending appeal.
Defendant/appellants then filed a notice of appeal and subsequently filed the present motion for a stay pending a decision on the appeal. Chief Justice Kruse, as the Justice of the High Court who did not sit on the case at the trial court level, would ordinarily have heard the motion. The Chief Justice, however, disqualified himself from participation in the case. In the absence of a resident Justice qualified to sit as a member of the Appellate Division, the motion was therefore referred to the judge who presided at trial. See Appellate Court Rule 27(c), as amended.
This is, therefore, the third time the writer of the present opinion has had to consider whether to grant or extend a stay of execution in favor of the present appellants. At the hearing on this motion the Court suggested to counsel for appellants and appellee that the best course would be to deny the motion for a stay pending appeal, for the same reasons it was denied when presented to the trial court; to write an opinion setting forth those reasons; and to grant a brief additional stay so as to allow for review of this decision by the Appellate Division at its forthcoming regular session.
The trial court’s reasons for denying a stay pending appeal are as follows:
A court should not grant a stay of judgment pending appeal automatically or casually. To do so would encourage losing litigants to file appeals in which they had no serious hope of prevailing, simply in order to postpone the effective date of judgment. The court’s discretion to grant a stay should therefore be exercised only "for cause shown." A.S.C.A. § 43.0803; see also Trial Court Rule of Civil Procedure (T.C.R.C.P.) 62(a) (c), Appellate Court Rule 8. Such cause must presumably amount to more than just that the appellants, should they eventually prevail in their appeal, will have been inconvenienced by having had to comply in the meantime with the trial court’s judgment.
When a judgment is for money alone, the costs imposed on the prevailing party by a delay in execution can be minimized by requiring a supersedeas bond and by awarding post-judgment interest in an amount equivalent to the value of the use of the money. See T.C.R.C.P. 62(d). Injunctive actions do not lend themselves to this sort of solution; rather, *13the decision to grant or deny a stay pending appeal is similar to that on a preliminary injunction, depending partly on the "balance of equities" and partly on the likelihood that the appeal will be successful. See T.C.R.C.P. 62(a),(c); cf. Belcher v. Birmingham Trust Nat’l Bank, 395 F.2d 685 (5th Cir. 1968); 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice ¶ 62.05 (2d ed. 1985).
An injunction will be stayed when it appears to the trial or appellate court that there is a strong chance the judgment will be vacated on appeal (e.g., when the correctness of the trial court decision depends on a question of law that can fairly be characterized as a close one); that compliance with the judgment during the pendency of the appeal would so change the status quo as to amount to an effective denial of the right to appeal, or would otherwise work extraordinary hardship on the appellant; that little or no hardship would be imposed on adverse parties by appellant’s noncompliance; or that some combination of these conditions overcomes the presumption in favor of allowing each party the present enjoyment of what has been held to be his lawful rights. Cf. Belcher, supra; Moore’s Federal Practice, supra, and authorities cited therein.
The judgment in the present case was to put a tract of agricultural land into the possession of the person held to be its owner. It is unlikely that the appeal can be heard and decided until late next year. Either appellants or appellee, whichever should ultimately prevail, will have suffered palpable damage should they be deprived of the use of the land for the next year. From a logistical standpoint it is clear that appellants, who would have to vacate the land and then move back on again in the event they should ultimately prevail, would be more substantially injured than would the appellee by having to wait one more year to be put back into possession. The Court has not, however, been presented with sufficient evidence from which to assess this difference in monetary terms; specifically, it does not appear whether the transaction costs of moving from one planting area to another would exceed the market value of a year’s rental on this land. It does not appear that the injunction would require appellants to move any houses or other substantial structures, or that appellee threatens to destroy perennial crops (if any) on the land.
In assessing the "balance of equities," moreover, it must be noted that the parties’ differing logistical circumstances stem largely from differences in their own behavior. The trial record reflects that the dispute over the tract now in question has been a fairly active one for *14about twenty years. During this time appellee and his two predecessors in title have tended to assert their claims in court, whereas appellants have expanded their plantations despite having long been on notice that these plantations were on land that had been registered as the property of the appellee. Appellants have acted vigorously on, and profited handsomely from, the adage that possession is nine-tenths of the law. It may be time for some other principle to come to the fore.
This leads to the question of the likelihood of success on appeal. Although a trial judge will tend to assess every appellant’s chances at something less than fifty-fifty, it remains possible to make some distinctions. "In cases in which the court has moved into uncharted areas, it may be doubtful enough about the substantive correctness of its decision to stay an injunctive order." Moore’s Federal Practice ¶ 62.05, n.16. Indeed, even a decision that presents no particularly new or mysterious questions of law may yet present difficult ones on which reasonable people can differ.
The present appeal, however, appears to rest squarely on a quarrel with the trial court’s view of the facts. The memorandum accompanying the present motion makes it clear that the error of law alleged by appellants — that the Court should have found appellee’s registration of the land invalid because it was posted in the wrong village — depends entirely on appellants’ contention that "the trial court was clearly erroneous in finding that this land was part of Aasu." If the land was indeed part of Aasu, then the notice was properly posted and the registration is valid even if appellants’ legal arguments are otherwise correct. Appellants may sincerely disagree with this finding. For the reasons set forth in the trial court opinion, however, they will be hard pressed to show on appeal that it was without substantial support in the record. Accordingly, their chances of prevailing on appeal must be assessed as slight.
The principal effects of granting a stay of the injunction pending appeal, therefore, would be (1) to allocate next year’s profits from the use of the land to parties who are extremely unlikely to be held to own it; and (2) to encourage the present litigants and others to prosecute appeals to no likely effect other than delay. Accordingly, the stay pending appeal is denied.
In accordance with Appellate Court Rule 27(c), this opinion will be referred for review by the Appellate Division at its regular session to be held next week. To allow for such review, an additional stay will be *15granted until November 15, 1990. This brings the time during which the judgment has been stayed to over 100 days. Appellants should be prepared to vacate promptly in the event this opinion is not reversed by the Appellate Division.
Should appellants wish to present arguments to the Appellate Division beyond those already presented in their memorandum, they should do so no later than 4:00 p.m. on October 26, 1990. Should appellee wish to file a response to any such additional arguments, he should do so no later than 4:00 p.m. on October 30. Should the Appellate Division wish to hear oral argument on this motion, counsel will be notified by October 30, and argument will be set for November 1.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485927/ | *19On October 15, 1990, the Court held a hearing to determine whether defendants were entitled to compensation for improvements they built on the disputed property.
Defendants built a house on the land which we have held to belong to plaintiff. When they built this house the defendants appear to have believed in good faith that the land belonged to them.
The misunderstanding appears to have arisen as a result of the actions of Vincent Ah San, from whom defendants acquired their property (or, technically, with whom they signed an Agreement of Sale). The late Mr. Ah San, who was related by marriage to the plaintiff, had asked and received her permission for a Chinese man who was occupying his land to use part of her adjoining tract as well. The Chinese man grew some crops on plaintiffs tract and also had a small shack there. In 1984 or 1985 the plaintiff noticed that the Chinese man was gone and that a more substantial house was being built near where his shack had been. She found out that defendants were the ones who now occupied the land in question, and told them they were occupying her land. Defendant Muamua Semeatu insists, however, that he only occupied the land within the boundaries pointed out to him by Mr. Ah San.
Had plaintiff specifically told defendants that her claim included the spot where they were building their house, defendants would have been on notice of her claim and would not have been "good faith improvers" with respect to expenditures made after they were put on notice. See generally Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988). The plaintiff herself testified, however, that at first she did not believe that the house itself encroached on her property. Rather, she was more concerned about another structure also built by the defendants, referred to by all parties as a "garage" but actually used as a residence. Only when she had her land resurveyed in 1986, well after the defendants’ house now in question had been completed, did she learn that it was on her land. Accordingly, we find that the earlier notice to defendants that they might be occupying part of plaintiffs land did not prevent them from being good faith improvers with respect to the particular house for which they now seek compensation.
Defendants are entitled to reimbursement for their actual expenses in improving the property or to the amount by which the improvements enhanced the value of the property, whichever is less. See Roberts, supra, and authorities cited therein. Defendants have submitted receipts showing that they spent $7,014.10 on materials. Defendant *20Muamua Semeatu also testified that he spent $3,900 on labor, including the cost of food and transportation for the carpenters, and $715 for renting a backhoe to dig two septic tanks. Although not supported by receipts, it is difficult to imagine how the defendants could possibly have gotten the work done for less. The Court therefore finds that the defendants spent $11,629.10 in improving the property.
This amount must be reduced, however, by the amount which defendants have received from the Federal Emergency Management Agency (FEMA) and or the Territorial Emergency Management Coordinating Office (TEMCO) on account of damage to the house by Hurricane Ofa early this year. Defendant Semeatu testified that he received only about $2,000 for damage to the house, although he had received about $8,000 for damage to the "garage." The Court required him to make a post-trial submission of all documents pertinent to his disaster relief payments.
Defendants appear to have received four disaster relief grants. Two of these — $8,009 from FEMA for repairs to an unspecified house, and $4,110 from TEMCO for household furnishings and other personal property — are in the name of defendant Muamua Semeatu. The other two checks are to defendant Sala Semeatu. One of these is a $5,739 FEMA grant for damage to a house, and the other is a $2,985 TEMCO grant for "repairing and/or rebuilding your home and/or repairing or buying personal property and furnishings." Although this evidence is sketchy and not altogether consistent with defendant’s testimony, the best we can make of it is that Muamua applied for FEMA and TEMCO grants as the owner of one house and that his wife Sala applied for such grants as the owner of another. If, as Muamua testified, the check to him for roughly $8,000 was for the "garage,” then the two checks to his wife for a total of $8,734 must have been for the house with which we are now concerned.
Defendant Semeatu testified that he has postponed any repairs on the house pending the outcome of the present case. Accordingly, we find that the net cost to defendants of their improvement to plaintiffs property has been $11,629 - $8,734, or $2,895.1 Although we have no *21direct evidence of the amount by which the house has enhanced the value of plaintiffs property, we take judicial notice that a tract of land with a substantial house on it is worth at least $2,895 more than a vacant lot. Even if, as plaintiff contends, the enhanced value must be assessed s»s of the date of the present hearing — rather than at the time plaintiff ¡riled suit or at the time of judgment on the merits, both of which occurred prior to the recent hurricane damage — the evidence reflects that the value of plaintiffs property has been substantially enhanced by the presence of a foundation, two septic tanks, and a large and substantially intact residential structure. We therefore hold that defendants are entitled to compensation in the amount of $2,985.
In all other respects we reaffirm our original opinion and deny defendants’ motion for reconsideration.
It is so ordered.
Both the FEMA and the TEMCO grant letters speak in terms of using the grant money either for "repairs” to the damaged structure or for "rebuilding" (TEMCO) or "other essential housing needs” (FEMA). From this language we assume, although we are not certain, that plaintiffs will be permitted by FEMA and TEMCO to apply the grant money toward the building of another home. If defendants can show that they will have to return *21the money to the granting agencies in the event they do not use it to repair the house, they are free to do so by timely motion to amend the present order. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485929/ | Per REES, J.:
This case arose from an offer of registration of land in Amouli called "Oloie." The trial court found that the designated land claimants, "Alaimalo Pepine Henry Porter and his heirs," did not own the land. See Sivia v. Alaimalo, 13 A.S.R.2d 95 (1989). The Court further rejected an alternate theory offered at trial by claimant Henry Porter and his daughter, to the effect that the land was communal property of the matai title "Alaimalo." Rather, the court noted that Oloie had been held to be communal property of the Utu and Paolo families in the case of Utu v. *27Fonoti, 1 A.S.R. 208 (1907). Noting further that the Porter claimants were members of the Utu family who claimed their right to the land through an assignment by a former Utu title holder, the trial court held:
The claim to an outright assignment, or surrender by Utu of his family’s title to ‘Oloie’ ... is not only inconsistent with law but also custom. Firstly, a matai assignment or designation of family land for the use of a particular family member does not divest the matai of his authority or "pule" over the land. . . . Moreover, a family member’s continued right to use and occupy communal land holdings is conditional upon his providing tautua to the matai. . . . Finally, claimant’s theory of assignment (of communal land) cannot be reconciled with legislative prohibition against matai alienation of land without compliance with certain statutory procedures, including the approval of the Governor of American Samoa.
Sivia, 13 A.S.R.2d at 98. The Court therefore rejected claimant’s offer of registration. (The court expressed no opinion as to the exact extent of Utu family holdings in Oloie as against those of Paolo.)
Claimants’ counsel filed a timely motion for reconsideration or new trial, which was denied by the Court on January 9, 1990.
On January 11, 1990, claimants’ counsel filed a timely notice of appeal and request for an estimate of the transcript. The court reporter provided the requested estimate on January 16, 1990. The record then reflects that claimant/appellants neither ordered the transcript nor gave notice of intention to proceed without a transcript within the ten days required by Appellate Court Rule 10(b).
Nor did claimant/appellants file a brief. Rather, they simply abandoned the appeal until on or about September 24, 1990, when the Court received a letter from "Alaimalo, Tumuaiali'i J. Porter Woo." Ms. Woo is the daughter of the named principal claimant, Henry Porter. During the pendency of this proceeding she has acted as principal spokesperson for the claimants ("Alaimalo Henry Pepine Porter and His Heirs"), and in 1989 she replaced Henry Porter as the registered holder of the Alaimalo title. From her letter and from other recent entries in the Court’s file, it appears that appellant Alaimalo Woo has discharged her counsel and has made an off-the-record arrangement with the court *28reporter for production of a transcript. According to appellant’s letter, however, this transcript is not an accurate one. It is in any case not an official one, not having been ordered within ten days with notice to the Court and to appellees as required by Appellate Court Rule 10(b)(i).
This appeal is subject to dismissal at the discretion of the Appellate Division under two distinct provisions of the Appellate Court Rules. First, since appellants did not comply with the provisions of Rule 10(b), the appeal may be dismissed in accordance with Rule 10(b)(5). Second, since appellant did not order a transcript of the proceedings within the requisite ten days, the entire record on appeal consisted of the pleadings and other papers filed in the court below, the clerk’s docket entries, and the opinion of the trial court. See Appellate Court Rule 10(a). These documents having been deposited by the Clerk into the file of the present appeal on or about the day the notice of appeal was filed, appellant’s brief became due forty days thereafter, on or about February 20, 1990. Appellate Court Rule 31(a). No brief having been filed, the appeal is subject to dismissal under Appellate Court Rule 31(c).
The September 24 letter from Alaimalo Woo recounts circumstances, including the death of Alaimalo Henry Porter in March of this year, which would have almost certainly have justified one or more brief extensions of the time for ordering a transcript and filing her brief if she had made a timely motion for such extensions. Even had such a timely motion been made, however, the Court would only have granted such extensions as would not have resulted in prejudice to the appellees. In recent years the Court has been especially careful not to grant extensions that would cause the hearing of an appeal to be delayed from one annual appellate session to the next.
By simply ignoring the deadlines rather than making motions to extend them, and by waiting over eight months before letting the Court know that she still wishes to prosecute her appeal, the appellant has presented the Court with a stark choice: either to dismiss the appeal or to force appellees to spend yet another year in litigation. (Appellant’s neglect of her appeal has already made it impossible for the appeal to be heard at the 1990 appellate session. If the Court were to allow appellant even more time than she has already taken to secure an acceptable transcript and to file a brief, the appeal would probably not be heard until late 1991, about two years after the trial court held appellees to be the lawful owners of the disputed land.)
*29Under these circumstances we must deny appellant’s motion. We are influenced not only by the length of the delay and the consequent prejudice to appellees, but also by the extremely slight possibility that the appeal would succeed on the merits. The argument raised in appellant’s Motion to Reconsider, which is therefore the only argument she could raise on appeal, does not take issue with the trial court’s finding that Henry Porter and his heirs are all members of the Utu family and that the Alaimalo/Porters were given the right to live on Oloie land by a former Utu title holder. Moreover, a formal "Motion to Grant Appellant Extension" recently filed by appellant Alaimalo Woo acknowledges that "Alaimalo Faimafili [Henry Porter’s father] came onto the land, OLOIE through his uncle, Utu Aunnuua, who had become his guardian father." Appellant contends, however, that the trial court should have regarded Utu’s assignment of the land to Alaimalo (then an untitled member of the Utu family) as equivalent to an outright surrender of the Utu family’s property rights. For the reasons stated by the trial court, this contention is contrary to law and to Samoan custom.
As the trial court made clear in denying the motion to reconsider, a denial of appellant’s offer to register the land does not mean that the Alaimalo/Porter people cannot continue to live on the land; it means only that their right to live on it derives from their membership in the Utu family and carries with it an obligation of service to Utu. Insofar as it would have the Appellate Division construe Utu’s assignment of the land to Alaimalo Faimafili and the subsequent occupation of the land by members of his immediate family as giving rise to greater or different rights, the appeal would almost certainly fail. The only effect of a further extension, therefore, would be to inconvenience the appellees.
Accordingly, the motion is denied and the appeal is dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485930/ | Per Curiam:
Appellee Puailoa Tavete moved for a dismissal of the appeal upon the ground that appellant had failed to comply with the requirements of Appellate Court Rule 10(b), — relating to the timely manner for ordering a transcript of the proceedings on appeal. The Chief Justice, sitting as a single justice of the appellate division, set the *31motion, as he must under Appellate Court Rule 27(c), for hearing before the full appellate division at its next regular session, commencing October 29, 1990.
Appellant had also filed a motion for an extension of time to comply with the various requirements of Rule 10(b). As a motion for an enlargement of time is one which may be handled by a single justice of the appellate division, see Appellate Court Rule 26(b), the Chief Justice considered the motion and, apparently satisfied that there was no significant prejudice to appellee, granted appellant the relief sought.
For reasons given we deny the motion to dismiss and affirm the order granting an extension of time for compliance with Rule 10(b). The rule is not jurisdictional. The resultant delay with the filing of the transcript, because of non-compliance with the rule, is less than 30 days. Even if there had been compliance, the appeal would not have been in any case perfected in time for hearing at this appellate session. In these circumstances there is no real prejudice suffered by the appellee, and in the interest of justice, the motion to dismiss should be denied.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485931/ | The natural parents of a six year old minor have separately petitioned to voluntarily relinquish their respective parental rights to their child in order that she be made available for adoption by the child’s paternal grandmother. The grandmother herself also filed a petition to terminate the rights of the parents to the child, alleging abandonment and neglect.
Facts
The child was bom out of wedlock, although the natural parents were living together with the father’s family prior to the birth of the child. Sometime after the child was bom, the natural parents parted company. The father departed the territory and has been absent to this date. The mother subsequently went back to her own family while leaving the minor to the care of the maternal grandmother. The mother is now married with another young child. At the hearing, the natural mother explained her agreement to the adoption because she feels love for the grandmother who has been solely responsible for rearing the child. In response to questions by the Court, the mother, however, admits that she is able to take care of the child without any difficulty. She was also questioned whether there would be any complications with her raising the child, given her present status, and she replied that there would be none.
Of the natural father’s present circumstances, we did not learn very much except that he has been with the United States Armed Forces and that he is reportedly now married and also raising a family. The natural father did sign his petition as well as a document styled "consent and waiver of appearance."
From the home study supplied by the Child Protective Services, Department of Human Resources, the Court is advised of the following: Grandmother is 67 years of age and a widow. She receives a very modest monthly income of $160.00 in the way of social security benefits and a stipend from the Territorial Administration on Aging (T.A.O.A.). She shares a home with another one of her sons, together with his wife and children. To a large extent, the grandmother and the minor are *33dependent on this son’s assistance. The case worker doing the home study also reports that the natural mother "does not anticipate any mistreatment as long as the child resides with grandmother."
Conclusions
For reasons given, each of the petitions are denied. We harbor no doubts about grandmother’s present fitness and suitability to care and provide for the child. Nor do we have any doubts that the child’s best interest and welfare are being served while she remains under the care of her grandmother. Indeed, a guardianship/custody order, under the Court’s continuing jurisdiction, in favor of the grandmother would most certainly be warranted under the facts presented if such relief was being sought. Such a conclusion, however, only highlights the reality that the child’s situation with her grandmother can only be a provisional arrangement. Here lies the problem with each of the petitions: none realistically addresses the child’s future. Yet the termination of parental rights also has the effect of terminating a child’s right to look to her parents for support, as well as the right to inherit. In the circumstances, it would be in the child’s best interests and welfare that we leave her the option of looking to her parents in the future. The petitions are hereby denied.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485932/ | Per REES, J.:
The trial court judgment in this case was entered on August 25, 1989. Judgment was for defendant/appellee Patea. Plaintiff/appellant Taulaga did not move for reconsideration or new trial, but filed a notice of appeal on September 6, 1989.
The territorial statute governing appeals from High Court decisions provides that "[bjefore filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence." A.S.C. A. § 43.0802(a). The requirement of a motion for new trial or reconsideration of judgment is jurisdictional. See, e.g., Fai'ivae v. Aumavae, AP 2-76 (decided December 9, 1977); Government of American Samoa v. King, AP No. 19-1970; Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). The motion for new trial must set forth "with particularity" the grounds on which the trial court decision should be reversed. Trial Court Rules of Civil Procedure, Rule 7(b)(1). The purpose of this requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made. See King, supra, slip opinion at 3.
If no timely motion for reconsideration or new trial conforming to the "particularity" requirement of Rule 7(b)(1) is filed within the statutory ten-day deadline, then "the Appellate Division . . . has no jurisdiction to entertain an appeal in such a case — regardless of any arguments, equitable or otherwise, to the contrary." Judicial Memorandum, supra, 4 A.S.R.2d at 174 (citing Fai'ivae, supra). No such motion was filed in the present case. We therefore have no jurisdiction to hear the appeal.
We note also the provision of A.S.C.A. .§ 43.0802(b) that "[a] notice of appeal shall be filed within 10 days after the denial of a motion for a new trial." This requirement has also been held to be jurisdictional. Taufua v. Steffany, AP No. 2-77 (decided April 5, 1977); see Appellate Court Rule 26(b). As previously noted, no motion for a new trial or for reconsideration or amendment of judgment was filed in the present case. September 4, 1989, the tenth day after the entry of judgment, was a legal holiday. September 5, the eleventh day, was not a holiday. The notice of appeal was therefore due on September 5. See *36Appellate Court Rule 26(a). Instead, it was filed on September 6. Even if we could somehow dispense with the requirement of a motion for reconsideration and instead count the time in which to appeal from the date of judgment, and even though the appeal would then have been filed only one day late, this late filing would still deprive us of jurisdiction.
Appellants have also violated several non-jurisdictional rules of appellate procedure, including the requirements that an estimate of the cost of a transcript be ordered within five days of the notice of appeal, that the transcript itself be ordered within ten days of receipt of the court reporter’s estimate, and that appellant’s brief be filed within forty days of the filing of the record. See Appellate Court Rules 3, 10, and 31. Any of these procedural defects might have resulted in dismissal of the appeal. In the case of such non-jurisdictional defects, however, the appellate court has discretion, in the interest of justice, to impose some lesser sanction than dismissal. See Alaimalo v. Sivia, 17 A.S.R.2d 25 (1990); Opapo v. Puailoa, 17 A.S.R.2d 30 (1990). As the mandatory provisions of A.S.C.A. § 43.0802 leave us no choice but to dismiss the present appeal for lack of jurisdiction, we need not reach the question of what to do about the various non-jurisdictional defects.
Even if we were to reach the merits of this appeal, we would be constrained to uphold the trial court’s judgment. This is the second attempt by Taulaga to relitigate a 1966 High Court decision holding that the land in question belongs to Patea. See Patea v. Taulaga, 4 A.S.R. 337 (1966); Taulaga v. Patea, 4 A.S.R.2d 186 (1987); Taulaga v. Patea, 12 A.S.R.2d 6 (1989). As was explained by the trial court in 1987 and again in 1989, the 1966 decision was res judicata, binding on the parties and on the Court.
Appellant contends that the 1966 case does not bind him because he did not assume the Taulaga title until 1984. It is well settled, however, that Samoan communal land belongs to families rather than individuals, and a judgment against the family is binding on the family, regardless of the comings and goings of matai title holders.
Appellant’s related contention that the 1966 court erred in trying the case after the death of the Taulaga titleholder who had objected to Patea’s offer of registration, and before any new Taulaga had been selected, is likewise without merit. The trial court would have had discretion to continue the trial for a few months pending the selection of a new Taulaga, but the court also had discretion to decide that delay would be unfair to the opposing party. The 1966 court noted that the *37interest of the Taulaga family was represented at trial by none other than the very Maresala who eventually became the next Taulaga titleholder. (and who, perhaps even moré importantly, is the appellant now before us.) Maresala’s formal assumption of the title, however, did not take place until eighteen years after the trial. It would have been most inappropriate to require the Patea family to wait that long for a resolution of their claim.
Finally, appellant has submitted affidavits to the effect that the 1966 court’s opinion contains an inaccurate statement of what happened at the trial. These affidavits were not presented to the court below and are therefore not part of the record of the present appeal. Appellant further contends that the Court has denied him due process of law by allowing the destruction of the court reporter’s shorthand notes of the 1966 trial at some time during the twenty years between the decision in that case and his first attempt to relitigate it. This contention is also without merit. Had Maresala chosen to order a transcript within a reasonable time after the 1966 trial, either pursuant to an appeal on behalf of the Taulaga family or for any other reason, a transcript would have been prepared. After a few years, neither Maresala nor any one else having ordered a transcript, the shorthand notes were apparently discarded. No one having appealed the 1966 decision, it had become final and binding on all parties, and there was no reason to believe that a transcript would ever be necessary. The Court was under no obligation to keep the shorthand notes around forever.
The appeal is dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485933/ | *41This opinion concerns the second part of a bifurcated trial regarding land called "Lega'oa” in the Village of Leone. The facts and procedural history of the case are stated in the opinion rendered by the Court after the first part of the bifurcated trial, Willis v. Fa'ivae, 10 A.S.R.2d 121 (1989) [hereinafter Willis I], aff’d, 12 A.S.R.2d 37 (1989).
The second hearing was held July 23-27, 1990. At this hearing the parties presented evidence with respect to the following issues:
1) The precise boundaries of "the flat land" in Lega'oa, within the meaning of To'omata v. People of Leone, 1 A.S.R. 142 (1906), and as further defined in our opinion in Willis I.
2) The dividing line between the inward half of the flat land (awarded in the 1906 decision to To'omata, Tali, and Va) and the seaward half (awarded to the chiefs of Leone).
3) The boundaries of land belonging to each of the various Leone families within the seaward half of the flat land.
4) The boundaries of such other tracts claimed by any party which, although not within the flat land of Lega'oa, are within the much larger survey offered for registration in 1982 by Tony Willis and Dora Asuega on behalf of the heirs of Va. (A number of the present parties objected to this offer of registration, and the dispute gave rise to LT No. 45-82, one of the consolidated cases now before us.)
5) Claims by any party to have acquired, by adverse possession or otherwise, an interest in land awarded to another party in the 1906 case.
7. Boundaries of "the Flat Land"
The Willis/Va plaintiffs submitted a-1990 survey of what they believe to be the flat land within Lega'oa. This survey is Drawing No. P-36-90, and is depicted by a solid black line in Plaintiffs’ Exhibit No. 1, a large composite map. To'omata, a cotenant of the plaintiffs under the 1906 decision, also submitted a map depicting the extent of his claim.
We find that the Willis survey more accurately depicts the boundaries of the flat land than does the To'omata survey. In most places in this valley the land slopes almost imperceptibly up to the foot *42of a fairly steep slope. Along the east and west sides of the valley, this steep slope generally begins at about the 25-foot contour line. Toward the narrow northern tip of the valley, the abrupt rise does not begin until a point near the 75-foot contour line. The plaintiffs’ survey follows closely, although perhaps not perfectly, the bottom edge of this abrupt rise. The To'omata survey, on the other hand, appears to reflect the present To’omata’s understanding of the boundaries he has worked out with his neighbors rather than an attempt to track the boundary of the flat land. Although evidence of such negotiated boundaries may be most helpful in determining claims based on adverse possession and related contentions, it is of little use in determining the starting point of our analysis: what is to be considered "flat."
Accordingly, we find the 1990 Willis survey to be the best evidence of the boundaries of the flat land. (Two slight exceptions are noted in Part IV of this opinion.)
II. The Boundary Between the Inland and Seaward Portions
Plaintiffs’ 1990 resurvey also draws a line attempting to demarcate the boundary between the inward half of the flat land, held to belong to Va and her cotenants, and the seaward half, held to belong to the various families of Leone who had been occupying Lega’oa before 1906. This line is drawn so as to create two precisely equal parcels of 27.875 acres each. The line runs about fifty feet to the south of a common boundary recognized by plaintiffs’ cotenant To’omata and his southern neighbors, the Fai'ivae and Le‘alaialoa/Avegalio/Aigamaua families. This relatively close correspondence, together with the recognition of even a slight margin of error in calculating the land designated "flat," suggests that the traditional boundary is the best evidence of the dividing line. (The Fai’ivae survey, one of the three that recognizes this boundary, appears to be an accurate retracing of a survey prepared in 1915, a few years after the 1906 decision whose mandate we are interpreting.) Accordingly, we accept the To‘omata/Fai‘ivae/ Le'alaialoa/Avegalio/Aigamaua boundary as the dividing line between the two halves of Lega’oa. (A slight discrepancy between the boundary defined by To’omata and that defined by Fai’ivae is discussed in connection with the Taeleifi/To'omata/Willis conflict, Part IV(A) infra.)
*43
III. Boundaries Within the Seaward Portion of Lega ‘oa
The 1906 High Court decision ordered the families of Leone who were held to be the owners of the seaward or southern portion of Leone to divide it among themselves. It appears that this was done; a number of interlocking survey maps made in 1915 present a reasonably coherent picture of how the land seems to have been divided at that time. As is perhaps inevitable with the passage of eighty years or so, however, several minor and one or two major boundary disputes exist. We discuss first the pattern of land occupation that appears to have existed in 1915. We then discuss conflicts in the present surveys, arising in most cases from subsequent changes in that pattern.
A. The Pattern of Settlement in 1915
A number of parties presented claims within the seaward half of the flat land comprising Lega‘oa. We list them in order, more or less, from south to north: Puletu, on behalf of the Puletu family and also on behalf of the heirs of Mrs. Thomas Meredith; Suafo‘a; Tuiteleleapaga; Uo; the (Roman Catholic) Diocese of Samoa-Pago Pago; Su‘a; the Heirs of Sekio Avegalio; Le’alaialoa/Avegalio/Aigamaua; Fai‘ivae; the Estate of Edward Ripley; Le‘oso; Iuli; Taeleifi.
The Diocese and the Heirs of Sekio rely on freehold land grants approved by the Land Commission of Samoa, which operated in Apia under the supervision of the then-Supreme Court of Samoa prior to the coming of the present government. (The Diocese relies on a grant to the "French Roman Catholic Mission"; the land in question was generally known as the "Sisters’ Land.") This court is bound by statute and treaty to recognize Land Commission freehold grants, and lands subject to such grants were specifically excluded from the 1906 decree dividing Lega’oa. The Ripley estate, the Meredith heirs, and the Uo family rely on surveys made in August 1915 and registered shortly thereafter in the Register of Native Land Titles. All of the remaining parties are chiefs of families of the Village of Leone, as are Uo and the current successors of Meredith and Ripley.
The five parties who are relying on long-registered land titles have submitted old survey maps depicting the extent of their holdings. Of these, all but the Heirs of Sekio have submitted recent retraces of the old surveys. Fai’ivae has also submitted an August 1915 map, made by the same surveyor who prepared the other maps but apparently never registered. The remaining parties have not submitted old maps, but all *44of these parties without exception are listed on at least one of the other parties’ old maps as having then occupied the same general area they now occupy. All things considered, the six old surveys fit together quite well, the parties have generally been able to trace them with what appears to be reasonable accuracy, and there are remarkably few conflicts.
Three composite maps submitted to the Court depict reasonably well the relationship among these ancient surveys. Plaintiffs’ Exhibit 1 unfortunately omits the Fai’ivae resurvey. It also places the Uo survey as depicted in theUo family’s recent resurvey (i.e., where the Uo family has decided it belongs) rather than in the apparent relation of the 1915 Uo survey to the other old surveys. Two other composite maps, Fai'ivae Exhibits 21 and 23, include the Fai’ivae survey but omit the Uo survey. None of the three composite maps depicts the Sekio survey (based on a grant to a person named Krause, later purchased by "Captain Allen" and then by Sekio Avegalio), because the heirs of Sekio unfortunately did not resurvey it as part of their preparation for this case.
We have found it convenient to use Exhibit 21 as a basis for our analysis of this area. It appears to be in agreement with Exhibits 1 and 23 in all important particulars. The Court has made notations on Exhibit 21 to indicate where we think the Uo and Krause/Allen/Sekio tracts were located in relation to the others already depicted in the exhibit.
We find that the Meredith, Ripley, Fai’ivae, and Diocese resurveys retrace as nearly as possible the original boundaries of the surveys on which they were based.
In particular, we note (1) that the northwestern comer of the Diocese survey was a sharp comer at the intersection of two streams, and that this feature is still present; (2) that the western boundary of the Diocese survey was the meandering course of a stream, and that the courses in that survey substantially follow the course of the present stream at the location of the western boundary of the resurvey; (3) that the northern boundary of the Ripley survey is marked by a large hole in the ground ("to") which is still present; (4) that the lower 442 feet of the eastern Fai’ivae boundary is identical to the western Ripley boundary; and (5) that the southernmost boundary of the Meredith survey appears to coincide closely with the traditional southern boundary of Lega’oa. The Diocese, Fai'ivae, and Ripley surveys each take note of common boundaries with the others, and the recent retraces of these surveys fit together (with a space in the middle for the Heirs of Sekio tract) almost *45as well as the parcels themselves evidently did in 1915. The Meredith survey begins about fifty feet to the north of the spring or pool called "Punaloa," which has long been a prominent landmark in this area. Punaloa appears to have been part of a tract of land of the same i:, ame, registered by the Land Commission of Samoa as the land of Matthew Hunkin and defined by Talamaivao in 1906 as the southern boundary of Lega'oa.
We further find that each of these ancient surveys depicted a tract of which the present claimant was then (ca. 1906-1918) generally reputed to be the owner; and that each of the claimants has occupied its tract, albeit in some cases intermittently, down to the present day. With such minor exceptions as are noted below, we hold these parties to be the owners of their resurveyed tracts.
We find, however, that the Uo resurvey does not accurately reflect the location of the Uo tract ("Leifi”) originally surveyed in 1915. The original survey denotes "Fai‘ivae" and "Leoso" as the neighbors to the north, and the northern boundary of the 1915 Uo tract appears to have corresponded, with some variations, to the southern boundary of the Fai'ivae and Ripley surveys. (Edward Ripley was a foreigner married to a member of the Le‘oso family.) The Uo retrace, instead of following the southern boundary of these tracts, instead overlaps substantially with them, taking up roughly the southern half of the Ripley tract and the southern third of the Fai‘ivae tract. As we have noted, the location of the to at the north of the Ripley tract and of the streams bounding the Diocese tract strongly suggest that the Ripley, Diocese, and Fai‘ivae retraces are where they ought to be. If this is correct, then the Uo tract should be about 200 feet further to the south.
Moreover, the western boundary of the 1915 Uo survey almost entirely bordered land occupied by Suafo'a. At the extreme northwest of the survey, about twenty feet south of the northwest comer, the map depicts what appears to be a fence jutting off to the west. To the north of this fence, and to the northwest of the Uo survey, were the "Marist Sisters." The recent Uo resurvey, however, would so situate the tract that its whole western boundary would be parallel to the Sisters’ land, and there would be no boundary at all with Su‘afoa. This is shown on Plaintiffs’ Exhibit 1, and can also be seen from examining the locations of Suafo'a, the Sisters’ land, Fai‘ivae, and Ripley on Exhibits 21 and 23.
An exhibit prepared by surveyor S.T. Taua‘i and submitted by Uo, purporting to show relative locations of the Uo, Suafo’a, and Sisters’ *46tracts and certain present-day monuments, is flatly wrong. This map (Uo Exhibit 37) would have the present paved road going across a comer of the Suafo‘a survey and through the middle of the Sisters’ land, whereas in fact the road does not touch either of these tracts and runs parallel to, not across, their eastern boundaries. Nor does either the Sisters’ land or the Suafo’a survey come anywhere near the Fai’ivae houses depicted on this map. A larger composite map also submitted by Uo, Exhibit 35, while inconsistent in certain minor respects with the other composite maps submitted to the Court, would also be inconsistent with Uo Exhibit 37 if the Sisters’ land and the Suafo'a surveys had been placed upon it in anything like their actual locations. Indeed, it appears that the Uo surveyor did trace the outline of the Suafo’a survey on Exhibit 35, just west of the Puletu survey where it belongs, but then thought better of it; possibly this was because the tracing on Uo Exhibit 35 depicts the Suafo’a land in a dramatically different place (relative to the Uo survey) than it appears on Uo Exhibit 37. Either Uo is wrong, or Fai’ivae, Ripley, Suafo’a, and the Diocese are all wrong.
Nor is the location of the Uo retrace itself based on any enduring monuments; as we shall discuss, it appears to have been chosen because the Uo family member who ordered the retrace preferred to contend with Fai'ivae and Ripley than with her neighbors to the south.
The dotted and solid red lines inserted by the Court on Exhibit 21 depict what we believe to have been the most probable location of the original Uo survey of "Leifi." Its boundaries with Suafo’a, the Sisters, Fai’ivae, Le'oso (including the Ripley tract), the "steep hillside," Tuiteleleapaga, and "Pule" (Puletu/Meredith) are all approximately the same distances, and in most cases approximately the same angles, as those depicted in the original. This is also quite close to the location estimated by plaintiffs’ surveyor at the 1988 hearing. (See Plaintiffs’ Exhibit 29, 1988 Hearing.)
We have also inserted on Exhibit 21 what appears to have been the most probable location of the Krause/Allen/Sekio tract. A 1901 conveyance of this property (F. Avegalio Exhibit 60) denotes a common boundary with Fai’ivae on the east and with the Sisters’ land on the west. Save for a slight variation on the western boundary, the tract is exactly the same size and shape as that depicted in the original registration and in subsequent conveyances.
The other parties claiming land in this area — Suafo’a, Tuiteleleapaga, Le'alaialoa/Avegalio/Aigamaua, Su‘a, Iuli, Le'oso, and *47Taeleifi — did not submit old surveys. Each of these families, however, was denoted on the maps of other parties as occupying land circa 1906-1918 in approximately the same location it now claims, and each appears over the years to have occupied at least some of the land it now claims.
B. Suafo'a/Diocese Conflict
Suafo‘a, now as in 1915, occupies a tract to the west of the Puletu/Meredith and Uo tracts and to the south of the Sisters’ land. The survey submitted by Suafo'a contains a small overlap with the Diocese survey. Because the Diocese tract is already legally registered as freehold land, the only way Suafo’a could prevail with respect to this overlapping section would be by adverse possession. Suafo’a testified that he has long occupied the whole area within his survey, but counsel for the Diocese introduced photographs of the overlap area which show no signs of recent occupation in the northwest comer of the Suafo'a survey. This area is on the far (northwest) side of a stream that roughly divides the survey of Suafo'a from that of the Diocese. Accordingly, we hold that the Diocese prevails on the portion of the disputed area on the northwest side of the stream.
With respect to a comer of the Diocese survey that crosses over onto the southeast bank of the stream, there is no direct evidence of whether this area was ever occupied by the Sisters. In general, the evidence is to the effect that the Sisters’ land was used for plantations until the mid-1960s by students at the Sisters’ school in the village proper. We find it unlikely that the Sisters or their students would have taken the trouble to cross the stream in order to cultivate this small strip of land. Accordingly, Suafo’a prevails with respect to this portion.
The far western portion of the Suafo’a survey appears to be outside the traditional boundaries of Lega’oa, and within the aforementioned Hunkin survey of land called Punaloa. This can be seen on Exhibits 1 and 23. We express no opinion on this conflict.
With the aforementioned exceptions, we find that Suafo’a owns the land within the Suafo’a survey.
C. Su ‘a/Diocese and Su ‘a/Willis Conflicts
Su‘a has no conflicts with anyone except a small conflict along the stream that forms his eastern boundary with the Diocese. At trial it appeared that Su‘a and the Diocese agreed that the center line of the *48stream should be the boundary. This is consistent with the best documentary evidence, the Land Commission grant to the Roman Catholic Mission.
Part of the Su‘a survey is outside the flat land of Lega'oa, on the western slopes of the valley. At the recent hearing plaintiff Tony Willis testified that his relatives (heirs of Amelia Va) had planted and cultivated these slopes even after the 1906 decision had excluded them from the land awarded to Va and her cotenants as part of Lega'oa. We find the testimony of Su'a, to the effect that members of his family have long cultivated this area, to be credible. We note that Su'a is listed as an occupant of this area in the original 1906 To'omata survey. Any cultivation by the heirs of Va was therefore neither "exclusive" nor "continuous" and did not give rise to acquisition of title by adverse possession. (For the reasons stated here and in footnote 1 infra, we also reject the Willis/Va claim to acquisition of the mountain slopes by adverse possession against other families in the eastern and western slopes of the valley. A dispute concerning the mountainous area near the northern tip of the valley is discussed in Part IV(D) infra.)
Accordingly, we hold that Su'a is the owner of the land within Su'a survey map No. 582-8-90, except insofar as it may cross the eastern stream into land belonging to the Diocese. (It appears from the two maps that the Su'a survey does follow the stream and that only the Diocese survey will need to be adjusted.)
D. Le ‘alaialoa/Diocese/Fai ‘ivae/Galea ‘i/Sekio Conflicts
The Le'alaialoa/Avegalio/Aigamaua survey (the three families are closely related and have joined as one party in the present litigation) also has a small overlap with the registered freehold survey of the Diocese. The only direct testimony with respect to occupation of this area (other than acknowledgment by various parties that it has long been occupied by "Lealailoa Felise") was the testimony of Avegalio. He said he and his family and the girls from the Sisters’ school cultivated this area side by side during the 1950s. Relations were friendly, and the boundary reflected in the Avegalio survey was the one observed by both sides. (The boundary drawn in the Avegalio survey was a straight line. The boundary reflected by the Diocese survey is a meandering one.) Avegalio went off island in 1957 and returned in 1968; by then the Sisters’ school had closed down and there were no more girls working the adjacent tract; and the Avegalio/Aigamaua/Le'alaialoa family had *49built houses on their tract, although not in the small area that overlaps the Diocese survey. The 1971 aerial photograph and the Court’s viewing of the land confirm that the line drawn by Avegalio reflects the actual boundary of Le‘alaialoa/Avegalio/Aigamaua occupation, at least d ring the last twenty years. (A 1963 aerial photograph cited by the Diocese as evidence of a different boundary is very difficult to read and provides no support for either side.) Although it is possible that the Le’alaialoa/Avegalio/Aigamaua people did not occupy the area now in dispute until after the Sisters left during the 1960s — and that their occupation would be just short of that necessary to have acquired title by adverse possession1 — the contrary testimony of Avegalio is credible, as well as uncontradicted. We therefore find that the Le’alaialoa/Avegalio/ Aigamaua families own the land within their survey, with the exception of a small area to the north discussed in connection with the To’omata and Willis/Va surveys, Part IV(E) infra.
There is also a small overlap between the Fai’ivae survey and the Diocese survey within the southeast panhandle of the latter. This small overlap (a strip about ten feet wide and fifty feet long) is also *50within a survey registered in 1979 as the individual land of Pat Galea‘i, a member of the Fai‘ivae family who was represented by Fai‘ivae during the trial of these cases. As a matter of law, an earlier survey registered in accordance with law prevails over a later one. As there is no evidence of twenty or thirty years’ adverse possession of this area by Fai‘ivae or Pat Galea‘i, the Diocese prevails with respect to this strip of land.
For the same reasons, the Diocese prevails with respect to the larger portion of the Pat Galea‘i survey which overlaps the Sisters’ land. A house constructed by Pat Galea‘i during the 1980s is only partly within the Pat Galea‘i survey, entirely outside the Fai'ivae survey, and entirely within the registered Diocese survey. The land on which this house was built belongs to the Diocese. Another portion of the Pat Galea‘i survey, to the north of the house and mostly outside the rock wall that surrounds it, overlaps the previously registered Krause/Allen/ Sekio survey. This land belongs to the heirs of Sekio.
Just to the north of the narrow strip that overlaps the Diocese, there is a long triangular piece of land included within both the Fai‘ivae and the Pat Galea‘i surveys. Because the Pat Galea'i survey has been registered according to law and the Fai‘ivae survey has not, we are bound by the land registration statute, A.S.C.A. § 37.0101 et seq., to recognize this land as the individual property of Pat Galea* i. (The law is in this respect unaccommodating to Fai‘ivae’s position that the individual registration by Pat was just a convenience and the land was supposed to remain family land. If Pat wishes to deed the land back to the family, he is, of course, free to do so.)
In the area of the Diocese, Fai‘ivae, Le‘alaialoa, Pat Galea‘i, and Sekio surveys there are also three small areas claimed by no one. These areas, marked by the Court on Exhibit 21 as Parcels 1 through 3, were included within another Fai'ivae survey which Fai‘ivae withdrew during the trial. That survey also included substantial portions of the Diocese, Sekio, Le‘alaialoa, To'omata, and Willis/Va surveys; its withdrawal was an act not only of admirable statesmanship but also of plain good sense. However, Parcels 1 and 2 within this area are closely appurtenant to lands occupied by Fai‘ivae, and are held to be property of the Fai‘ivae family in the absence of better evidence of title by any other party. Parcel 3 is more nearly appurtenant to the Le‘alaialoa/Avegalio/Aigamaua tract, and is held to belong to those families.
*51
E. Puletu/Uo/Tuiteleleapaga Conflicts
Perhaps the greatest disparity between the pattern of occupation documented in the 1915 maps and the pattern of claims among the present parties is in the southernmost portion of Lega‘oa. The parties with claims in this area are Puletu/Meredith, Uo, and Tuiteleleapaga. The dispute in question also spills over into the southern portions of the Fai'ivae, Ripley, and Le‘oso surveys.
We have already discussed the 1915 Uo and Meredith surveys. As noted, a recent retrace of the Meredith survey places this tract where it appears to belong: at the southernmost extreme of the central portion of Lega‘oa, just above Punaloa to the south, along an agreed boundary with Suafo‘a to the west, and identical in metes and bounds to the 1915 map. This resurvey (Ripley Exhibit 24) was prepared in 1987 at the request of Lafine Meredith and with the apparent co-operation of Puletu Meredith, son of the late Mrs. Thomas Meredith and also the matai of the Puletu family of Leone. (Mrs. Meredith was herself the daughter of a Puletu title holder and appears to have acquired her land from Puletu.) In the present litigation, however, Puletu Meredith has not limited his claim to the 1987 retrace of the 1915 Meredith map; rather, he claims a larger tract described by a 1990 survey, Uo Exhibit 36. This survey includes almost the entire Meredith retrace, as well as additional areas to the south, to the southeast and, most importantly, to the north.
The 1990 Puletu/Meredith survey extends about 200 feet north of the 1915 Meredith survey. This is almost exactly the north-south dimension of the 1915 Uo survey. Indeed, the northern portion of the 1990 Puletu/Meredith survey appears to occupy roughly the western third of the area which we have determined to have been the most probable location of the 1915 Uo survey. (This can be seen on Exhibit 21.)
The recent history of the Uo tract made it a likely prospect for anyone in the neighborhood who felt he needed more land. In 1928 it was leased by Uo to the Diocese for a term of forty years, to be used by the girls at the Sisters’ school for the purpose of "gardening." (The lease, registered and approved by the Governor, is Diocese Exhibit 48.) Several witnesses did remember seeing the Sisters’ students on this land during the 1940s and 1950s. After the school closed down in the early 1960s, the land appears to have been ignored by the Uo family —with the crucial exceptions of some planting by one elderly member of the Uo family during the mid-1960s (according to the testimony of Fai‘ivae) and perhaps some clearing by another such person on the other side of the *52road at about the same time (according to witness Pio Sagote). With these exceptions, the Uo tract appears to have been vacant between the early 1960s (when the Sisters’ school closed) and the late 1970s (when Tuiteleleapaga people began moving into it from the south).
Puletu himself did not present any evidence that Puletu or Meredith people ever occupied the area north of the original Meredith survey; the present house in this area, built in the late 1970s or 1980s, belongs to a member of the Tuiteleleapaga family. The situation was similar on the other side of the road: witness Tuise'e for the Tuiteleleapaga family remembered that in the early days, "we all worked together on the seaward portion of the land" now claimed by Tuiteleleapaga (emphasis added). Tuise’e said that Tuiteleleapaga people did not begin occupying the inland portion of their current claim (i.e., the area corresponding to the eastern part of the old Uo tract as depicted by the Court on Exhibit 21) until the mid-1970s when Faletoi and Uila began working there. The Tuiteleleapaga people did not move to the west side of the road until even later, when the land was "given to us," apparently by Puletu.
The situation was complicated in 1982 by the return to the Territory of Lucy Uo Ah Ching. A granddaughter of the Uo who had registered this land in 1915 and leased it to the Diocese in 1928, Mrs. Ah Ching returned after an absence of about thirty years and determined to relocate and repossess her family land. She and other members of her family had some difficulty in deciding upon the exact location of the land, but finally settled upon a spot agreed upon by their neighbors to the South. Their neighbor to the North, Fai'ivae, was a strong dissenter from this consensus. Their other northern neighbors, Ripley and Leoso, were not consulted, although a former Leoso titleholder was apparently present at the Uo survey in his capacity as paramount chief of the County. The presence of several southern neighbors and only one northern one may account for the decision to locate this survey about 200 feet to the north of the apparent location of the 1915 which it purported to retrace.
For the reasons we have discussed, we believe the Fai’ivae and Ripley surveys accurately portray the locations of these families’ land and that the correct location of the Uo property registered in 1915 is to the south of these surveys and just to the north of the original Meredith plot, as depicted in Exhibit 21. Although the Uo family has ignored this land for so long that they have forgotten exactly where it is, they have not quite lost it to adverse possession. This is because the Sisters’ students *53used the land at least until the late 1950s, and there was some Uo use of it in the mid-1960s. Moreover, there is no persuasive evidence that anyone else occupied the land until the 1970s. (The red dotted line on Exhibit 21 designates the Court’s judgment with respect to the ori ginal northern and western boundaries of the Uo tract. In order to rationalize the neighboring boundaries, however, and in the absence of persuasive claims by other parties, the small strips of land between the dotted line and the recent Suafo'a and Fai’ivae survey boundaries are also awarded to Uo. A minor adjustment in the Uo/Ripley boundary is also necessary to compensate for a slight discrepancy between the two 1915 registered surveys.)
We find that the 1987 retrace of the Meredith survey accurately retraces the 1915 registered survey of Mrs. Thomas Meredith and is the property of her heirs. We further find that a strip of land about 111 feet long and 20 feet wide, north of the original Meredith survey and south of the Uo tract, designated P-2 on Exhibit 21, is the property of Puletu. Puletu Meredith has at least recently begun authorizing people to occupy this area (as he has within the larger area to the north designated P-1 and held to be the property of Uo); it is within the 1990 Puletu survey, and it is claimed by no other party. Another area within the Puletu survey, immediately to the east of the southern part of the original Meredith survey and designated P-3 on Exhibit 21, is also Puletu property. Puletu presented persuasive evidence that this area has in fact been traditionally occupied by Puletu family members. A further portion of the Puletu survey, to the south of the original Meredith tract, appears to be mostly or entirely outside the traditional boundaries of Lega’oa and therefore outside the scope of this litigation.
The area to the east of the Puletu and Meredith surveys and to the south of the area marked "To Uo" on Exhibit 21, and contained within the plaintiffs’ resurvey of the flat land of Lega’oa (the solid line on Exhibit 1, approximately retraced by the Court in blue on Exhibit 21) is entirely within the Tuiteleleapaga survey of land designated "Punaloa" and is held to be the property of Tuiteleleapaga. The Tuiteleleapaga survey also encompasses a large area on the steep slopes to the east. Although these slopes may well be the property of the Tuiteleleapaga family, they are neither within the flat land of Lega’oa nor within the survey offered for registration in LT No. 45-82 and are therefore outside the scope of this litigation.
*54
F. Ripley/Le ‘oso/Iuli/Taeleifi
The Ripley resurvey, as we have stated, is an accurate retrace of the 1915 registered Edward Ripley survey. The only disputes in the present litigation are the dispute with Uo already discussed, and a claim by Tuiteleleapaga to a small section of the Ripley survey in the south. Because there was no persuasive evidence of Tuiteleleapaga occupation of the northern portion of the present Tuiteleleapaga claim prior to the 1970s, we hold that this area has not been acquired by adverse possession from Ripley. The Estate of Edward Ripley is the owner of the tract described by the Ripley resurvey. (Similarly, there is no evidence of historic, or even recent, Tuiteleleapaga occupation of a small area in the southwest comer of the Fai'ivae survey also claimed by Tuiteleleapaga. Fai'ivae is the owner of this area.)
The Le'oso family finds itself in an awkward posture with respect to any litigation concerning Lega'oa. On the one hand, the 1906 decision specifically excluded Le'oso from the list of Leone chiefs entitled to have a share in the seaward half of Lega'oa. (In Le'oso v. Ripley, LT No. 18-1920, the Court rebuffed an attempt by Le'oso to relitigate this issue with the observation, "Case thrown out of court." The opposing litigant was Edward Ripley, a Le'oso in-law who, it would appear from the old maps, almost certainly had acquired his property from Le'oso in the first place.) On the other hand, Le'oso was clearly present in this area in 1906 and appears still to have been present in 1915. He seems to have lost the 1906 case because he withdrew his objection to the massive To'omata survey in a misconceived effort to make a separate peace with To'omata. Counsel in the present case, moreover, has presented persuasive evidence that the area immediately to the east of the Ripley tract (designated as belonging to "Le'oso" in two of the 1915 maps) has been occupied by Le'oso people (principally Sagote and his immediate family) at least since the early 1950s. As this land is outside the "flat land" and therefore outside the 1906 court’s definition of Lega'oa (see Exhibit 1), a holding that this area belongs to Le'oso is not inconsistent with the 1906 or 1918 decisions. In any event, the Le'oso occupation of this area appears to have been open, notorious, exclusive, continuous since the 1950s, and hostile to any other claim on the land. We therefore find that Le'oso is the owner of the land due east of the Ripley tract and within the Willis survey offered in LT No. 45-82 that defines the scope of this litigation. (We express no opinion on the more steeply mountainous area further to the east, which, although within the recent Le'oso survey, is outside the scope of these consolidated cases.)
*55The Le‘oso claim also extends to the north of the Ripley survey and to the east of the Fai'ivae survey. On the 1915 Fai'ivae map the land in this area is designated as belonging to Iuli and Taeleifi. The 1915 Ripley map also identifies Iuli as the neighbor to the north.
We are convinced that the Sagote family, acting as members of the Le‘oso extended family, has long had plantations in the area designated on the old maps as belonging to Iuli and Taeleifi. Indeed, the Sagote people have even built a house on the hillside in an area that may once have belonged to Iuli and may formerly have had a small Samoan working house squarely within the 1915 Iuli tract. We have also been presented, however, with persuasive testimony that the two areas identified in the 1915 maps as belonging to Iuli and Taeleifi were in fact traditionally regarded as lands of those families and that both families have made at least such use of these lands as would have prevented Sagote or anyone else from having "exclusive" or "continuous" possession for twenty years. Specifically, Leota Toloa testified credibly that he and other members of the Iuli family, including a matai named Atina, worked this area for many years and that he himself only stopped going there in 1979. This testimony was confirmed by other witnesses and was partly confirmed even by Pio Sagote, who explained Atina’s presence on the land by reference to a connection with the Le‘oso family.
There was abundant testimony as to the presence of Taeleifi people in the overlap between Taeleifi and Le'oso. Indeed, at the present time Taeleifi people and Le‘oso people seem to be more or less working around each other in the overlap between the two surveys. This tends to confirm what would in any case have been an obvious hypothesis: that the Le‘oso/Sagote plantations began within the area belonging to Le‘oso, gradually extended northward into the Iuli area, and began more recently to encroach on the Taeleifi tract.
The one thing that is impossible to tell with precision from the 1915 maps is the depth of the Iuli and Taeleifi tracts: how far they extended toward the mountain. From the maps we can tell only that these tracts were reputed to extend at least 200 feet or so east of the Fai'ivae boundary. The Taeleifi survey, however, extends 369 feet east from this boundary (up to about the 100-foot contour) and the Iuli survey extends 500 feet east (to the 200-foot contour).
We find that the Iuli family has presented persuasive evidence of traditional ownership of the area immediately adjacent to the Fai‘ivae and Ripley surveys, and of at least such occupation of this area as would *56prevent its acquisition by adverse possession, but has presented no evidence of such ownership or occupation further east than 200 feet from the Fai‘ivae boundary. (We further find that the northern boundary of the Iuli tract should be modified very slightly to correspond with the southern boundary of the Taeleifi survey of "Lalolelata," which more accurately reflects the 1915 Fai‘ivae map. The eastern boundary should be calculated by reference to a line perpendicular to the southern boundary of the Taeleifi survey, extending to the southern boundary of the Iuli survey.)
The best evidence of ownership of the area within the Iuli survey which is more than 200 feet east of the boundary is the occupation of this area by Pio Sagote and his family. Although we have no direct evidence of when this occupation began, in the absence of direct evidence of any prior occupation, this fact works for rather than against the Le‘oso claim. Accordingly, we find this area (insofar as it is also within the survey offered in LT No. 45-82 and therefore within the scope of this litigation) to be the property of Le‘oso.
In the case of the Taeleifi survey there is convincing evidence not only of historic ownership but also of more recent and more intensive occupation than in the case of the Iuli tract. We also have direct evidence of the eastern extent of the Taeleifi land: Taeleifi testified that until the recent hurricane there was a Taeleifi house on the slope near the southeastemmost boundary of the "Lalolelata" survey. Although Pio Sagote also has plantings within this survey, they are insufficient to acquire ownership by adverse possession. Accordingly, we find that Taeleifi is the owner of the land within the Taeleifi survey of "Lalolelata," insofar as it is also no further north than the northern boundary of the Fai‘ivae survey. (Parts of the Taeleifi claim that are north of this line are disputed with the Willis/Va plaintiffs and with To'omata. We discuss these disputes in Part IV, infra.)
IV. Boundaries Within the Inland Half of Lega ‘oa and the Surrounding Slopes
Property rights within the inland portion of Lega‘oa are somewhat less difficult to analyze than those in the seaward portion. The starting point is the holding of the 1906 and 1918 decisions: that the inland half of the flat land belonged to Tuitele To'omata, Tali, and Amelia Va as tenants in common. Other parties claiming land in this area would have to prove either that their lands were subject to freehold grants from the former Land Commission or that they had acquired title *57by adverse possession since 1906. The slopes surrounding the flat land belong to whoever owned them before 1906 or to whoever has acquired them since by original occupation or adverse possession.
A. Willis /To ‘omata/Taeleifl Conflict
The major conflict with respect to the inland portion of the flat land has to do with the boundaries in the southern and eastern section. The contestants in this area are the Willis/Va plaintiffs, To'omata, and Taeleifi. (As previously noted, Le‘oso also claims some of the land within the Taeleifi survey of "Lalolelata." For the reasons already stated, we reject this claim.) The dispute among these parties partakes partly of a boundary dispute — with Taeleifi placing the boundary of the seaward portion of Lega'oa somewhat further to the North than other parties have placed it — and partly of a dispute over original occupancy or adverse possession. Willis claims his relatives have long occupied not only the flat land awarded to them in 1906 but also the surrounding slopes that were excluded from the decision. Taeleifi claims his people have long occupied the section of the flat land that is within the Taeleifi survey of "Lalolelata," even if it is above the inland/seaward boundary mandated by the 1906 decision.
The situation is complicated by the fact that the To'omata, Willis/Va, and Taeleifi families are all related to each other. Each party can therefore plausibly explain the presence of the others on "his" land by reference to family relationship. For instance, during the 1970s there seems to have been an agreement among the Fai'ivae, Taeleifi, To'omata, and Willis/Va families that a certain hibiscus hedge would be the northern boundary of land occupied by Pepa Taeleifi. Taeleifi seems to regard this either as a recognition that this was always the boundary or a gift of title to the land. To'omata and Willis, however, regard the agreement as a license for Pepa to live on To‘omata/Va land; they point to the fact that Pepa was a first cousin of So'oto, the Va heir who agreed that Pepa should be allowed to live in the area south of the hibiscus hedge.
Similarly, So‘oto appeared in this litigation as a Va heir, and appears to have been the principal Va representative in this area before Tony Willis returned to the Territory in the late 1970s. So‘oto lives in a house on the slopes overlooking the inland portion of the flat land, and the Willis/Va plaintiffs rely on this as important evidence of occupation of these slopes by Va people. Taeleifi, however, points out that So‘oto is a member of the Taeleifi family and that "So'oto" is a matai title *58closely connected to that family. Taeleifi contends that the father and mother of the present So'oto began living in this area, long reputed to be a part of Taeleifi land called "Tiafau," because of the connection of his father So‘oto Saka to the Taeleifi family. But So‘oto says the important connection was through his mother, a Va heir.
We find as follows: first, the boundary between the seaward and inland portions of this land is an eastward extension of the line that marks the northern border of the Fai‘ivae tract. The boundary between Taeleifi and "Tuitele" (i.e., To‘omata) is so marked on the 1915 Faifivae map; this boundary is still recognized by To‘omata and Fai‘ivae as their boundary and by To'omata and the Le‘alaialoa\Avegalio\Aigamaua family further to the west; and it comes quite close to achieving a mathematically precise division of Lega'oa into two equal portions, as ordered by the 1906 court. Taeleifi‘s argument that the boundary is further north, and To‘omata’s contention that it jogs to the south in this area, seem principally designed to bolster their arguments about who gave permission to whom.
We further find that no party has acquired land by adverse possession in this area. Even if So‘oto was acting at all times as a Va heir and not as a member of the Taeleifi family, he could not have possessed land adversely to a family of which he was a member. Similarly, the parties to the hibiscus-hedge incident may or may not have reflected on whether they were giving a license, giving away land, or recognizing a pre-existing property right; had they so reflected, the various parties might well have had different understandings about what was going on. If, however, the land was To‘omata/Va land to begin with, then the Taeleifi family cannot hold the To‘omata/Va heirs to any agreement by which a Taeleifi family member gave away To‘omata/Va property to his own first cousin. (The cousin might well prove, however, that in building his house in this area he reasonably relied on a license given by the Va heir who seemed to be in charge at the time.)
Applying these findings to the claims-of the parties, we find that Taeleifi is the owner of the land on the slopes within his survey of "Lalolelata" (i.e., east of the Willis/Va retrace of the "flat land”) and to the north of the inland/seaward boundary (as defined by an eastward extension of the Fa‘ivae/ To‘omata/Le‘alaialoa boundary to the west). Taeleifi is also the owner of his survey of "Tiafau," which is on the northeastern slopes and which is regarded by all non-Va neighbors as Taeleifi property. The flat land within the Taeleifi survey of "Lalolelata" *59(i.e., inside plaintiffs’ retrace), and north of the inland/seaward boundary as defined above, belongs to the heirs of To‘omata, Tali, and Va.
B. Willis/To ‘omata/Iuli Conflict
Iuli has submitted a survey of land in the northeastern portion of the inland area, just south of the Táeleifi land called Tiafau. This Iuli survey is partly on the slopes and partly on the flat land. Iuli witnesses testified that they have long occupied the whole tract. There is strong evidence to the effect that a Iuli family member, Willie Ah Kuoi (Kuoy), had one of the first houses in this area, on the sloping portion of the present Iuli survey; that members of his immediate family have lived in the area for thirty years or so; and that other Iuli people may have occupied at least some of this land even earlier.
The Iuli people believe that they were "given" their land by Tuitele long ago. It appears that Iuli may have been one of the persons to whom Tuitele To'omata sold land prior to 1918, giving rise to the Court’s holding in Falesau v. Tuitele, 1 A.S.R. 298 (1918), that he was only a co-tenant and was not entitled to sell land within Lega'oa. This holding would not, however, have applied to land outside the "flat land" which was the Court’s definition of Lega'oa. As it happens, the evidence of historic Iuli occupation is far stronger on the slopes than within the flat land. The only Iuli houses built before 1980 were on the slopes; the two small houses on the flat land appear to have been built during the pendency of the present litigation. A member of the Ah Kuoi family testified that his family has had crops in the flat land, but there is also strong evidence that So‘oto and perhaps other Va people have had crops in this area. The burden would be on Iuli to prove at least twenty years (beginning in or before 1962) of uninterrupted and exclusive possession of the flat land in order to acquire any of it. This he has not done. Accordingly, we conclude that Iuli owns the portion of his survey that is on the slopes but that the portion within the flat land (again, defined by plaintiffs’ retrace) belongs to the heirs of To‘omata, Tali, and Va.
C. Willis/To ‘omcita/Sekio Conflict
The Heirs of Sekio Avegalio also claim land within the eastern portion of this area. They rely on a freehold grant from the Land Commission for lands called "Lefuafua and Legoa." The Willis/Va plaintiffs acknowledge the validity of this grant but contend that the land is not within Lega'oa and must be somewhere else. We conclude, *60however, that the grant is within Lega‘oa and that the resurvey submitted by the Heirs of Sekio is the best evidence of its exact location.
The physical description of the land in the freehold grant, although varying in some respects from the current appearance of this land, is strikingly similar in other respects. There is a steep hill just where the survey says "hill." A small stream crosses the road exactly where it ought to. Disinterested witnesses testified that there used to be a swamp about where the survey indicates a swamp should be. The absence of another stream listed on the survey may be explicable by reference to some bulldozing done by So'oto during the mid-1970s, which is said to have changed the course of the main stream in this area. (This bulldozing, which appears to have involved a major portion of Lega'oa, figured heavily in several parties’ evidence. To So‘oto it was evidence of his suzerainty over the area. A Iuli witness was angry because he said he had paid for the bulldozer to level some land for his house and that So’oto — who, it develops, is or was employed as a bulldozer operator for the Government — was doing his own bulldozing on Iuli time. A witness for the Taeleifi family, however, testified that she was the one who paid for the bulldozer. The bulldozing led to a lawsuit with the Heirs of Sekio and perhaps to another with To'omata.)
Failautusi Avegalio, the principal witness for the Heirs of Sekio, appeared to be somewhat confused about this land. He insisted, for instance, that the Marine rifle range had passed directly over the land, whereas the great weight of the evidence shows that it did not. Despite the doubts raised by this testimony, however, we find that the Sekio people have made at least such use of their land over the years as would prevent its acquisition by adverse possession. Almost all the neighboring land occupants testified that they had seen Sekio Avegalio people on the land at various times. Most recently, the 1975 lawsuit (Avegalio v. So‘oto, LT No. 1526-75) in which a permanent injunction was issued against further encroachment on this land by So‘oto, tends to locate the land as part of that bulldozed by So’oto and also to indicate that the heirs of Sekio were still taking an active interest in the land. The result in the bulldozing injunction case may not preclude relitigation of title in the present case; it was a judgment by default after So‘oto failed to appear, and in any case might not bind So‘oto’s cotenants. At the very least, however, the injunction is sufficient to interrupt any acquisitive prescription by So‘oto on behalf of himself and his cotenants. That the suit was brought at all, moreover, bolsters the other evidence that this is the location of the Sekio grant and that the Heirs of Sekio were making *61some use of it. We also note that Lefuafua was identified several times in the pleadings and testimony of the 1906 case as land within Lega‘oa.
We conclude that the location of the freehold grant to "Lefuafua and Legoa” belonging to the Heirs of Sekio Avegalio is where it appears on Exhibit 1 (marked "Se") and Exhibit 23 (marked "Failautusi.")
D. Willis/Tuiteleleapaga/Avegalio Conflict
The remaining substantial conflict in this area has to do with the northern slopes. Tuiteleleapaga has submitted a survey of land the family calls "Tiafau." It is entirely within the mountainous area and just to the north of the Taeleifi survey of the same name. Avegalio has submitted a survey of land just to the west of the Tuiteleleapaga survey. This land is also primarily in the mountainous area, although the southern portion of it is within plaintiffs’ retrace of the "flat land" and appears to the Court to be reasonably flat. The Willis/Va plaintiffs claim this entire area (as, indeed, they also claim the eastern and western slopes) by reason of original occupation and/or adverse possession. Tony Willis testified that his relatives have long occupied this area.
We believe this land to be the traditional communal land of the Tuiteleleapaga and Avegalio families. We note the 1906 testimony of Fai’ivae Alfred Hunkin, apparently a disinterested witness with respect to this section of the land, that the northern border of Lega‘oa is "with land named Tiafau over which Taeleifi Avegalio and Tuiteleleapaga had the pule." (1906 transcript, as translated by the Court interpreter for the 1988 trial, at p. 9.) These are the same three families who claim the land today. Moreover, we heard extensive testimony at the recent hearing with respect to Tuiteleleapaga and Avegalio activities on their respective claims in this area during the middle part of this century. (Such activities, which consisted mainly or exclusively of plantings, appear to have diminished after the 1966 hurricane.)
In the mid-1970s Tony Willis returned after many years in the United States and began to assert his authority in this area. This quickly led to two lawsuits; one against the Tuiteleleapaga people, in about 1976, of which we have no specific details and which Mr. Willis says "just vanished" during the 1970s, and another against the individual heirs of Ese'ese Avegalio, one of the Avegalio people who had been working in this area.
*62The latter case went to trial. It concerned the land in the immediate vicinity of the area where Tony Willis was then building his house. Willis contended that this land was part of Lega‘oa and as such had been deeded to his grandmother, Amelia Va, and held to be her property in the 1906 case. The Court rejected this contention, finding that: (1) the land was not "flat" and therefore was not part of Lega‘oa within the meaning of the 1906 case; (2) at least some parts of the land had been cleared and cultivated by Ese'ese Avegalio during the 1940s, 1950s, and 1960s; (3) after the 1966 hurricane destroyed his crops, Ese'ese had abandoned the land, although some other people continued to plant a few crops there with his permission; (4) some of the crops that had been planted with the permission of Ese‘ese were destroyed by Willis when he began building his house in the late 1970s. The Court concluded that the land was not part of the Va land called Lega‘oa, but was not the property of the heirs of Ese‘ese because he had "abandoned" it and therefore could not lay claim to individual ownership. The latter holding had to do with certain distinctions made by the Court between the nature of individual and communal ownership of land in Samoa. Leuma v. Willis, 1 A.S.R.2d 48 (1980).
We conclude that the land within the Tuiteleleapaga survey of Tiafau is communal land of the Tuiteleleapaga family. We also conclude that the land within the Avegalio survey, with the exception of that below the 75-foot contour line, is the communal property of the Avegalio family. Mr. Willis is estopped to deny that the land is not flat, that it is not part of Lega‘oa, that it was cultivated by Ese‘ese Avegalio, and that he destroyed crops planted with the permission of Ese‘ese when he laid the foundation for his present house. The testimony at the recent hearing convinces us that the activities by Ese‘ese and other members of the Avegalio family on this land were pursuant to the traditional status of this land as Avegalio communal land.
We conclude that the portion of the Avegalio survey below the 75-foot contour land, which includes another Willis house, is "flat land" belonging to the heirs of To‘omata, Tali, and Va. (The 75-foot contour line is slightly below plaintiffs’ retrace of the fiat land. This adjustment is necessary to conform to the Court’s holding in Leuma — which appeared to involve the area around the inland Willis house, but to make no finding with respect to the land around the seaward house — and to our observation of the land in this area.)
*63
E. Willis ÍLe ‘alaialoa/Olo/Avegalio/Su ‘(Conflicts
There is also a slight conflict between the Willis/Va plaintiffs and several other parties with respect to the western boundary of Lega'oa. The Willis retrace draws the line at approximately the fifty-foot contour line; the other parties draw a slightly different line at a stream that meanders along the lower part of the western slope, between the 25-foot and 75-foot contour lines.
This is one of those instances in which mathematical boundaries appear to have given way to natural ones. The difference between the boundary depicted in plaintiffs’ retrace and that afforded by the stream is a narrow strip which in most places is no more than 20 to 30 feet wide. Despite some contrary testimony by Va witnesses Willis and So‘oto, we are convinced that the Va/To‘omata neighbors to the west have long occupied the land up to the stream. To‘omata, the co-tenant of the Willis/Va plaintiffs, recognizes the stream as his western boundary. Moreover, the boundary appears to have been a traditional one: Fai’ivae testified in 1906 that the western boundary of Lega‘oa is "the contributory of the large stream." (1906 transcript at p. 9.) This appears to be the same stream recognized today by all parties but the Willis/Va plaintiffs. Moreover, the only convincing evidence of any occupation of this strip by Va people concerns a brief incursion by So‘oto during the rogue-bulldozer episode in 1975. Olo testified that he confronted So‘oto, who then asked his permission to plant crops on the land. Olo said So‘oto could plant taros (an annual crop) but not bananas or coconuts (which might be later construed as evidence of ownership). The crops and structures presently on this land all belong to the western landowners. We conclude that the western boundary of the land belonging to the heirs of To'omata, Tali, and Va is the stream near the bottom of the western slopes.
It appears from the To'omata survey (Drawing No. 54-15-90, not marked as an exhibit but admitted without objection and incorporated into Exhibits 1 and 23) that the Le‘alaialoa/Avegalio/Aigamaua survey of "Leui" to the south may include a small area on the east side of the stream. Because this land is part of the inland half of Lega‘oa, and because little or no evidence was presented to support a finding of adverse possession by Le‘alaialoa et al., we find that this land is the property of the heirs of To‘omata, Tali, and Va. We hold that the remaining land within the northwestern surveys of Le'alaialoa et al., Olo, Avegalio, and Su‘a, insofar as they are also within the survey offered for *64registration in LT No. 45-82, to be the property of the respective claimants.
F. Willis/Va Claims on Northeast Slope
We find that two areas outside plaintiffs’ retrace of the flat land do belong to plaintiffs and their cotenants. The northernmost of these areas is just to the east of the northernmost area of the flat land. It is bounded by the Avegalio survey on the north, the Tuiteleleapaga survey of "Tiafau" on the east, and the plaintiffs’ retrace of the flat land on the west. This area is in the vicinity of the southernmost Willis house. In the absence of strong evidence of prior occupation by any party, this proximity and Willis’s general testimony of his family’s occupation of all the slopes is the best evidence of ownership.
The second area is just to the south of the first. It is a gently sloping area bounded on the east by the Taeleifi survey of "Tiafau,” on the south by the Iuli survey, and on the west by plaintiffs’ retrace of the flat land. So‘oto testified that he and his family have long had crops in this area, and that the crops were under the authority of his mother, a Va heir. In the absence of a strong claim by any other party — in particular, we note that the area is outside the Taeleifi survey that includes the present house of So‘oto — we accept this testimony as the best evidence of ownership.
These two areas are held to be the property of the heirs of To’omata, Tali, and Va.
V. Conclusion
The inward half of the "flat land" of Lega'oa is the property of the heirs of To’omata, Tali, and Va as tenants in common. This land is defined as that land which is within the following boundaries: (1) on the south, a line defined by the northern boundary of the Le’alaialoa and Fai’ivae surveys and by an eastward extension of this boundary through the Taeleifi survey of "Lalolelata"; (2) on the east, the easternmost boundary of the Willis/Va plaintiffs’ 1990 retrace of the flat land within Lega‘oa; (3) on the north, the 75-foot contour line from its eastern intersection with plaintiffs’ retrace of the flat land to its western intersection with a stream near the western boundary of the Avegalio survey; (4) on the west, the stream that forms the eastern boundary of the Su‘a, Avegalio, and Olo surveys.
*65The heirs of To‘omata, Tali, and Va are also the owners of two parcels just to the east of the above-described flat lands, on the northeastern slopes above Lega’oa, as more fully described in Part IV(F) of this opinion.
The families of Leone who have made claims within the seaward portion of Lega’oa are the respective owners of the parcels described in Part III of this opinion.
Certain families of Leone are also the owners of land along the slopes surrounding the inland portion of Lega‘oa, as further described in Part IV of this opinion.
The Diocese of Samoa-Pago Pago is the owner of the tract described in Part III of this opinion and illustrated by the Court on Exhibit 21.
The Estate of Edward Ripley and the heirs of Mrs. Thomas Meredith are the owners of the land within their respective surveys, as further described in Parts 111(E) and 111(F), respectively.
The heirs of Sekio Avegalio are the owners of a freehold parcel within the seaward part of Lega‘oa, as further described in Parts III(A) and III(D) of this opinion, and of another freehold tract within the inland part of Lega'oa, as further described in Part IV(C) of this opinion.
We express no opinion on the ownership of any land other than that described above. We also express no opinion on the ownership of any land which is both outside the survey that was offered for registration in LT 45-82 (one of the cases consolidated herein) and outside the plaintiffs’ 1990 retrace of the flat land of Lega’oa.
We express no opinion on the validity of a mortgage alleged by plaintiff Levi, who seems to have dropped out of the case after the first hearing.
Finally, we note that none of the lawsuits giving rise to these consolidated cases was an action for eviction. Several people have houses on land which has been held to belong to other people. Some of these people appear to be licensees of the true owners; others may be entitled, if eviction is sought, to compensation for improvements made in good faith. We have every expectation that such issues can be resolved by negotiation rather than by further litigation.
*66Judgment will issue in accordance with these findings and conclusions. It is so ordered.
A.S.C.A. § 37.0120, the adverse possession statute, was amended in 1962 to change the prescriptive period from twenty years to thirty years. Land could be acquired by twenty years of actual, open, notorious, hostile, exclusive, and continuous occupancy provided that such occupancy began in 1962 or earlier. Occupancy beginning later than the effective date of the 1962 amendment — or which, at any time since 1962, has been interrupted or has not been exclusive — cannot yet have resulted in acquisition of title by adverse possession, because thirty years have not yet passed since 1962. Thus the only parties to the present litigation who have acquired land by adverse possession are those whose possession began in 1962 or earlier and has been exclusive, hostile, etc., since that time.
Prior to the 1966 hurricane, Lega'oa was used almost exclusively for plantations and contained few residential houses. Nor do the plantations appear to have been the sort that would have necessitated clear-cutting of forest trees; although a number of old coconut trees are still in existence, most of the plantations seem to have been bananas and taros interspersed among the pre-existing features of the landscape, as is still fairly common. It should also be noted that for several years during World War II the Marines maintained a rifle range in Lega'oa and the whole area seems to have been vacated.
Subject to these constraints on the type of "occupancy" that prevailed until recently in Lega'oa, all parties to the present litigation were shown to have made some use of their own land in the years between 1906 and 1962. Although such use was in some cases intermittent, no party abandoned its land for the applicable prescriptive period (twenty years beginning in or before 1962, or thirty years thereafter). Any occupation by other parties was therefore not "exclusive." The only exceptions, in which adverse possession claims have been proved, have to do with minor boundary disputes in which one party presented the best evidence of what the boundary was circa 1906, but another party persuaded the Court that a slightly different and more "natural" or "obvious" boundary — e.g., a straight line or a stream — had been recognized by all parties over the years. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485934/ | On Motion to Set Interest on Judgment:
This case arose in January of 1985 when plaintiff filed a pleading entitled "Complaint on Open Book for Building Supplies." It alleged that, between April 1983 and June 1984, plaintiff had sold defendant some building materials but that defendant had not paid for these materials. The "amount due and owing" was said to be $7,877.77. It was not stated whether this was the purchase price of the building materials or whether additional amounts for interest, attorney fees, etc., were included.
In June of 1986 the plaintiff amended its complaint to state that the "current balance which includes interest which Defendant agreed to pay" was $9,366.45.
In July of 1986 the plaintiff secured an entry of default and also requested "default judgment by clerk." The Court, which earlier in 1986 had abolished the practice by which judgments could be entered by the clerk without judicial scrutiny of the claim, ordered that the motion for default judgment be set for a hearing.
*68In August of 1986 counsel for plaintiff filed a "Stipulation for Judgment and Order” signed by himself and by the defendant. It stipulated to the entry of a judgment in the amount of "$9700 inclusive of interest, costs and attorney’s fees." The stipulation added that the defendant would "pay said judgment at the rate of 10% per annum in thirty six (36) installments of $313 per month . . . until paid in full." The Court signed the stipulated order.
It appears that defendant did not meet the payment schedule but that plaintiff garnished defendant’s wages and collected $9700 by mid-1990. The present motion seeks to add an additional amount of $2585.20 to the judgment as interest.
Defendant appeared pro se and stated that when he had signed the agreement he had understood that he would be paying a total amount of $9700 and that he "did not know where this ten percent comes from. ”
The Court determined that post-judgment interest should be set at the rate of six per cent specified by A.S.C.A. § 28.1501(a) as the maximum enforceable rate on unwritten contracts. The Court observed that the judgment did not explicitly provide for post-judgment interest. Indeed, the stipulation explicitly states that the stipulated amount of $9700 is "inclusive of interest." Although the phrase "shall pay this judgment at the rate of 10% per annum" (contained in a subsequent paragraph having to do with a payment schedule) would probably convey to most lawyers and business people the idea that post-judgment interest would be charged notwithstanding the earlier "$9700 inclusive of interest" language, this would by no means be clear to a layman of ordinary intelligence and sophistication. (The present defendant, moreover, appears to be only somewhat fluent in English and even less so in Latin.)
At the hearing on the present motion, defendant objected to paying even six per cent interest. The Court observed, however, that the law would allow plaintiff to collect six per cent post-judgment interest even if defendant had signed no stipulation. The Court then announced that if plaintiff recalculated the post-judgment interest to reflect the legal rate of six per cent, the Court would grant a motion to add this amount to the judgment.
On reflection, we believe that we erred by accepting uncritically the $9700 stipulated judgment amount as the base figure for calculating post-judgment interest. Assuming that the correct interpretation of the *69judgment was "$9700 plus interest" rather than "$9700 inclusive of interest," we should have taken defendant’s objection to paying interest as a motion for relief from the judgment.
Had the defendant explicitly moved for relief from judgment under T.C.R.C.P. Rule 60(b), we would have granted the motion. The circumstances surrounding the judgment — that the case was not actually litigated, that the stipulation resulted from dealings between an attorney and an unrepresented party, that the unrepresented party may have believed himself to be stipulating only to pay $9700 "inclusive of interest," and that such an interpretation was not altogether unreasonable under the circumstances — constitute "other reasonfs] justifying relief from the operation of the judgment" within the meaning of Rule 60(b)(6). Where judgment has resulted from confession or default, a motion for relief from the judgment is made within a reasonable time, and there is even a minimal showing that a trial might have produced a different outcome, there is a strong presumption that the judgment should be set aside "so that cases may be decided on their merits. ” Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969); see also Tozer v. Charles A. Krause Milling Co., 189 F.2d 242 (3d Cir. 1951); Federal Deposit Insurance Corp. v. Barness, 484 F. Supp. 1134 (E.D. Pa. 1980); Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106 (1987); Wray v. Wray, 5 A.S.R.2d 34 (1987).1
*70An examination of the pleadings in this case reveals that a trial, or even a default hearing at which plaintiff would have been required to produce evidence to support its claim, would almost certainly not have led to a judgment as high as $9700. Plaintiffs original complaint in January 1985 stated that the amount due was $7877. The amended complaint in June 1986 stated that the debt had grown to $9366. This indicates either that interest was being charged at the rate of at least 15 % or that other unspecified items, such as attorney fees, had been added to the "amount due" between 1985 and 1986. Additional interest and attorney fees were included in the $9700 stipulated judgment.
If, as would appear from the present record, the contract sued upon was an unwritten one affording no contractual or legal basis for variation from the rule that each party pays his own attorney fees, then plaintiff was entitled to recover only the principal amount plus six per cent pre-judgment interest. Post-judgment interest would also have accrued at the statutory rate of six per cent. If, as we deduce from the rate of growth in the "amount due" between 1985 and 1986, the price defendant agreed to pay for the goods he purchased during 1983 and 1984 was no more than $7000, then plaintiff could have recovered no more than $9575 (including principal, pre-judgment interest, post-judgment interest through 1990, and $55 in court costs) had its claim been submitted to judicial scrutiny. Plaintiff has already collected more than this amount.
*71Accordingly, we construe defendant’s statement that he should be required to pay only $9700 as a motion for relief from judgment in any greater amount. For the reasons stated, we grant the motion. The judgment will be revised to reflect an amount of $9700 inclusive of all interest including post-judgment interest. As such, the judgment has been satisfied.
It is so ordered.
The "confession" situation must be distinguished from settlement and compromise in which each party makes a deliberate decision that the costs and risks of litigation exceed the possible advantages to be gained by it. Although a confession of judgment can always be dressed up to look like a settlement, it should not be so treated when the circumstances suggest that there was neither genuine negotiation nor compromise. As we noted in Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 110 (1987), a settlement will not ordinarily be enforced 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. See also Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177 (1988), citing the Ilalio standards in rejecting a "consent judgment" much like the one in the present case.
*70Counsel for plaintiff suggests that the stipulation for judgment in this case was a genuine compromise because plaintiff agreed to a payment schedule and would otherwise have had the right to seize the whole amount immediately. This ignores the effect of the "order in aid of judgment" statute, A.S.C.A. § 43.1501, which requires the Court, upon application from a judgment debtor, to order a payment schedule which ”shall allow the debtor to retain such property and such portion of his income as may be necessary to provide the reasonable living requirements of the debtor and his dependents," specifically including traditional Samoan family obligations such as those cited by the present defendant as his reason for not having met the stipulated payment schedule. (Emphasis added.) Typically, therefore, a creditor in American Samoa gives up nothing by agreeing to a reasonable payment schedule. Unless there are some pretty startling facts outside the present record — which plaintiff may bring to the Court’s attention by affidavit should it move for reconsideration of this opinion and order — the stipulation here was as lopsided as they come.
This case differs from some of the more egregious instances in which settlements have been held unenforceable, in that plaintiffs counsel says he recommended to defendant at one point that he retain a lawyer. Although commendable, such a recommendation cannot singlehandedly insulate from judicial scrutiny a stipulated judgment from which relief should otherwise be granted. Cf. Pardikouris v. The S/S Olympos, 185 F. Supp. 140 (S.D.N.Y. 1960). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485935/ | On Motion to Direct Registration of Matai Title and Motion for Stay of Execution:
Objector F. Konelio Mulitauaopele, who has been held entitled to hold the matai title "Mulitauaopele" in the Village of Lauli'i, now moves for an order directing the Territorial Registrar to register the title in his name. Objector I.S. Mulitauaopele, on whose motion for new trial we had not yet ruled at the time the present motion was made, counter-moves for a stay of execution of the Court’s judgment that Konelio should hold the title.
Konelio’s motion appears to have been made necessary by a policy in the Office of the Territorial Registrar against the formal registration of matai titles, even when the Court has held one candidate entitled to the title, pending resolution of post-trial motions and appeals. Despite the excellent motives that obviously underlie this policy and the excellent sense it makes in most cases, the Registrar’s refusal in this instance may technically violate the Court’s order. Ordinarily a judgment of the High Court is automatically stayed for ten days in order to allow the losing party or parties opportunity to move for new trial. T.C.R.C.P. Rule 62(a). A party who wishes a further stay pending consideration of his motion for new trial or pending appeal should so move, and the Court may in its discretion grant such motions. See T.C.R.C.P. Rule 62(b), (d). In this case the opinion was rendered on August 8, 1990, and no stay was requested until October 16, 1990. It *73would appear that at any time after August 18, no stay having been granted or applied for beyond the automatic 10-day stay, Konelio was entitled to register the title.
Having denied the motion for a new trial, we proceed to decide whether a stay should be granted pending appeal, if any. Such a decision entails three inquiries: (1) whether the losing party, should he prevail on appeal, will have suffered great or irreparable harm in the meantime if a stay should not be granted; (2) the harm, if any, that a stay would impose on the party who prevailed at trial; and (3) the likelihood of success on appeal. The first two criteria are commonly referred to as the "balance of hardships."
In most matai title cases the balance of hardships will militate strongly in favor of granting a stay pending appeal. The only hardship on the prevailing party is that he must wait a year or so to register the title. This is about how long it takes in any event to bring a family together after judicial resolution of a matai title controversy, and it is never a good idea to proceed with formal installation of a matai until such consensus has been achieved. On the other hand, should the party who prevailed at trial quickly register the title and proceed to hold the traditional ceremonies requisite to the installation of a matai, only to have hip right to hold the title reversed on appeal, the consequences for the whole family could be disastrous. Many people inside and outside the family may regard the traditional formalities as having "vested" the new matai in a metaphysical sense, regardless of what the appellate court might have held. The ultimate winners, for their part, might justly regard the interim matai as a usurper who had committed a sort of sacrilege. It might take years to restore peace within the family. Should he wish to do so, and perhaps even if he should not so wish, the "pretender" could remain a source of uncertainty and conflict for the rest of his days.
Even though the possibility of reversal in any given matai title case must be regarded as quite low — for the Appellate Division has rarely, if indeed ever, reversed a judgment of the Land and Titles Division in such a case — the "balance of hardships" will generally weigh so heavily in favor of a stay as to be decisive.
The present case, however, is different from the run of the mill in several respects.
*74First, the only party who moved for new trial (and who, it would appear, plans to appeal the decision) was not a losing contender for the title but a person from outside the family. This party, Mulitauaopele Ivi, maintains that the family headed by him is the only true Mulitauaopele (Pele) family and that the unrelated family headed by the late Pele Tamotu had no right to exist and that its registered matai title should have no further holders. The usual dangers of not granting a stay, having to do with the difficulties of restoring harmony within the family in the event of a reversal, are not present. (The losing candidate who was a family member, Leaana Fuata, did not move for new trial and has told the Court through counsel that he has no objection to registration of the title by Konelio.) Should Pele Ivi prevail on appeal, he will have suffered only the indignity, if indignity it is, of not having been the only Mulitauaopele recognized by law during the interim. We cannot see that this will be any more undignified than having not been the only Mulitauaopele during the many years that the late Pele Tamotu held the title. It should, moreover, be fully cured by a court judgment such as the one Pele Ivi seeks, to the effect that he and his ancestors in title have always, been the only legal Peles, and that he and his successors shall from that day forward be the only Peles in fact as well as law.
There is also an important difference between Konelio’s circumstances and those of the typical prevailing matai candidate. It is undisputed that he was recently diagnosed as having a terminal illness and only a few months to live. If we stay the effects of our judgment pending appeal (and on the assumption that the appellate court will ultimately uphold the right of the Mulitauaopele/Leaana family to exist and to have a registered title holder), then Konelio will almost certainly be denied forever the satisfaction of having attained what he may justly regard as among the great accomplishments of his life.
Finally, we note that the trial court decision in this case is even less likely than most matai cases to be reversed on appeal. Of the five grounds stated in Pele Ivi’s motion for new trial, three alleged no particular error and therefore can afford no basis for appeal. A fourth ground was an objection to a ruling to which the movant appears not to have objected at the time it was made. The fifth ground — the only one which could sustain an exercise of appellate jurisdiction — consists of allegations of judicial bias "against our Motion to Dismiss" said to have been manifested in questions asked by one of the judges after the Motion to Dismiss had already been denied.
*75In light of what would appear to be the extremely slight chance that the decision will be overturned on appeal, the great and irreparable harm that almost certainly will be suffered by Konelio if a stay is granted, and the relatively slight and curable harm that will be suffered by Pele Ivi if a stay is granted, we decline to grant a stay pending appeal.
We do, however, grant a stay until 4:00 p.m. on Tuesday, November 20, 1990, to allow the moving party to make a motion before the Appellate Division or a judge thereof for a stay notwithstanding our decision on this motion. If no further stay has been granted by then, Konelio will have the right to register the title.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485936/ | On Motion for New Trial:
This action concerns the selection of a successor to the late Mulitauaopele Tamotu of the Village of Lauli‘i.
I. Facts and Procedural History
This case began as most matai title cases do, with an offer by one family member to register the title in his own name and an objection by another member of the family who contended that he and not the claimant should hold the title. In this case the claimant was Leaana Lui Fuata (hereinafter "Leaana") and the objector was F. Konelio Mulitauaopele (hereinafter "Konelio"). There was, however, one extraordinary development: another objector appeared, not to claim the title for himself, but to argue that neither of the other contenders was entitled to it.
This objector was I.S. Mulitauaopele (hereinafter "Ivi" or "Pele Ivi"), who stated his argument in a motion to dismiss this action. This argument, succinctly stated, was that there is only one genuine Mulitauaopele or Pele family in Lauli‘i and that it is the family headed by Pele Ivi himself, rather than the one headed by the late Mulitauaopele Tamotu. The registration of the Mulitauaopele title by Tamotu in 1938 and by Tamotu’s father Pataua in 1927, in apparent conformity with the territorial statute governing registration of matai titles — and the recognition of Tamotu and his predecessors by the traditional institutions of the village, county, district, and Territory at various times during the last century — were explained as temporary irregularities to which the Court must put an end. It is central to objector Ivi’s argument that most members of the family headed by the late Mulitauaopele Tamotu (including Tamotu himself as well as claimant Leaana) are not members of the Mulitauaopele family at all.
*78After hearing lengthy argument and testimony by Pele Ivi in support of his motion to dismiss, the Court denied the motion.
The Court acknowledged the undisputed facts that there are two distinct families in Lauli‘i calling themselves "Mulitauaopele" or "Pele" and that the two families are not related by blood except insofar as some people happen to be the descendants of intermarriages between members of the two families. (The undisputed fact that such intermarriages have taken place is itself perhaps the strongest evidence that the two families are separate and distinct families, as marriage is strictly forbidden between even distantly related members of the same Samoan communal family.) The Court did not, however, draw from these facts the conclusion urged by Pele Ivi.
Rather, the Court also took note of the equally undisputed facts that the two unrelated Mulitauaopele families came into being after the original line of direct descendants from the first Mulitauaopele title holder died out; that one of the present families is related to the original line of title holders by collateral descent; and that the other is related by marriage, by adoption, and perhaps also by some traditional method of conferring a title such as igagato or matu'upalapala. The Court concluded that neither law nor Samoan custom forbids the continued existence of both families. In re Matai Title Mulitauaopele, 16 A.S.R.2d 63 (1990).
The Court went on to decide that objector Konelio was better qualified to hold the title than claimant Leaana. Id. at 71.
Pele Ivi now moves for a new trial. His motion assigns five errors to our decision.
II. "Errors of Law and Fa ‘a-Samoa"
Three of the assignments of error, quoted here in their entirety, are as follows:
1. The Trial Court erred in its decision as "clearly erroneous" as a matter of fa‘a-Samoa;
2. The Trial Court erred in its decision as "clearly erroneous" as a matter of law;
*795. The Court cannot judicially legislate, it must follow the statutory guidelines, not create its own law and its own brand new sets of matai.
A. Jurisdiction
The three assignments quoted above do not even begin to conform with the requirement of T.C.R.C.P. Rule 7 that a motion "shall state with particularity the grounds therefor." Indeed, they are not assignments of error at all, but simply three different ways of saying that the movant believes the Court to have gotten the case wrong.
This Court has repeatedly warned the Bar (of which objector Pele Ivi, who represented himself in this action, was a member for some years) that motions for new trial must clearly apprise the trial court of the specific errors being alleged. See, e.g., Taulaga v. Patea, 17 A.S.R.2d 34 (1990); Government of American Samoa v. King, AP No. 19-1970, Opinion and Order at 3 (1970); Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). A general statement that the Court erred as a matter of fact, law, custom, etc., obviously does not fulfil this requirement. (An accusation that the Court has "judicially legislated," without further detail, adds to such general suggestions of error only the additional suggestion that the error was a grave and perhaps a deliberate one.)
Moreover, the requirement of a motion for new trial conforming to the "particularity" requirement of Rule 7, filed within the statutory ten-day deadline, is a mandatory prerequisite to the exercise of jurisdiction by the Appellate Division. A.S.C.A. § 43.0802(a); see Taulaga, supra; King, supra; Fai'ivae v. Aumavae, AP 2-76 (1976); Judicial Memorandum, supra, 4 A.S.R.2d at 174. As assignments of error Nos. 1, 2, and 5 are not assignments of particular errors to the opinion, we cannot consider them as such.
Pele Ivi’s motion for new trial did contain a statement to the effect that it would be supplemented by a supporting memorandum. Had such a memorandum been filed within the statutory deadline, and had it stated specific grounds of error, it would have cured the deficiency in the original motion. No memorandum was ever filed, however, either before or after the deadline. At oral argument on the motion, Pele Ivi made a statement reiterating almost everything he had said during his testimony and argument on the day of trial. This statement came well *80after the statutory deadline for stating particular grounds of error and therefore cannot be construed as an amendment to the motion for a new trial. It is, accordingly, insufficient to confer jurisdiction for purposes of A.S.C.A. § 43.0802.
Out of an abundance of caution, however, and in order to avoid giving a litigant the impression that he has lost his case only because of a jurisdictional "technicality," we briefly address the gist of what he said at oral argument.
B. Hereditary Right
Objector Pele Ivi agreed with the other parties that the original title holder, Mulitauaopele Leatisua, had no direct descendants after Manuleavi, the third title holder. He claimed, however, that he himself has "Mulitauaopele blood" by virtue of descent from a line of Pele title holders tracing its ancestry to a sister of the original title holder. The Court accepted Ivi’s version of his own genealogy, but observed that such collateral descent gives no greater hereditary right than does the other Pele family’s descent from an equally long and ancient line of Pele title holders which, like Ivi’s line, first came into being by other means than direct descent.
In the many years that this Court has been construing the customary and statutory requirement of "hereditary right" to matai titles, two formulas have generally been employed to calculate such right: direct descent from the original title holder and direct descent from the nearest title holder. The history and application of these two formulas are discussed in In re Matai Title Tauaifaiva, 5 A.S.R.2d 13, 13-15 (1987), and In re Matai Title Fano, 4 A.S.R.2d 148 (1987). For early applications of the two competing formulas, compare Taofi v. Foster, 1 A.S.R. 464 (1932) (descent from first title holder) with Seuega v. Laisene, 2 A.S.R. 82 (1939) (descent from nearest title holder). In both formulas a person’s blood relation to each of his parents is 1/2, to each of his grandparents 1/4, to each of his great-grandparents 1/8, and so forth. In neither formula is there any such fractional statement for a relationship to a brother, sister, aunt, uncle, or cousin; only direct ancestors count.
As we observed in our original opinion, Pele Ivi is correct in his contention that the ostensible title holders in the Pele Tamotu (Leaana) line would fail to meet the more rigorous test of blood descent from the original title holder. They can state their fractional relationships back to *81Pele Taliloa, Pele Esera, or perhaps Pele Ta‘ita‘i, but can state no such relationship at all to Pele Leatisua. We also observed, however, that the title holders in Pele Ivi’s own line (Tialavea) would also fail this test. They can trace their relationship back perhaps as far as Pele Talaiva or Pele Savea, but can state no fractional relationship to any earlier Pele.
By the more flexible test of blood relationship to the nearest title holder, both lines are legitimate. Pele Ivi himself, for instance, had a blood right to the title by virtue of his 1/2 relationship to his father Pele Suiava. The late Pele Tamotu, from the competing Leaana line, had a 1/2 relationship to his own father Pele Pataua. The two candidates in the present case, Konelio and Leaana, have relationships of 1/2 and 1/8 to Pele Pataua and Pele Esera respectively.
C. Res Judicata
Our holding is not in conflict with the Court’s holding in Titi v. Suiava, 2 A.S.R.2d 160 (1945), that Pele Ivi’s father Pele Suiava had a hereditary right to the Pele title. Our holding is not that neither of the current Pele lines is legitimate, but that under the circumstances — the original line of direct blood descendants having died out over a hundred years ago and two distinct families having existed since then — both mpst be regarded as legitimate. Neither the Suiava case nor that on which it relied, Lavatai v. Savea, 2 A.S.R. 76 (1939), contradicts this holding. Those cases involved internecine disputes within Pele Ivi’s own (Tialavea) family; both seem to recognize that within that family, descent from the line of Peles tracing its ancestry to Pele Leatisua’s sister is precisely what is meant by "hereditary right." We reaffirm those holdings, and add that within the distinct family headed by the late Pele Tamotu, descent from the Peles in the Leaana line is the test of hereditary right.
The Suiava and Lavatai cases did not, as Pele Ivi seems to contend, purport to establish a rule of law that the only test of hereditary right for anyone claiming to be a "Mulitauaopele" is descent from the original title holder’s sister; they spoke only to the rights of members of Pele Ivi’s own (Pele/Tialavea) family and did not say anything at all about what constituted a hereditary right within the separate (Pele/Leaana) family of Pele Tamotu. Had they made any such statement, it would not have had the effect of res judicata or any effect at all, because the question was not before the Court and because neither Pele Tamotu (the legally registered holder of the title "Mulitauaopele" and head of the Pele/Leaana family at the time Suiava and Lavatai were *82decided) nor any member of his family was a party to either of the two cases.
The case now before us is the first in which the Court has ever been confronted with the question of hereditary right to the Mulitauaopele title held by Tamotu and his predecessors. Leaana and Konelio proved their hereditary right to that title in the only way a member of the family could possibly do: through descent from other Mulitauaopele title holders in the Leaana line. It ill behooves Pele Ivi to urge the imposition on the Pele/Leaana family of a standard of hereditary right so rigorous that it would wipe out the family altogether, while relying on the flexible standard adopted by the Court in Suiava and Lavatai to insulate his own line from similar scrutiny.
D. Blood and Adoption
Nor, contrary to another assertion made by Pele Ivi in oral argument, does our holding suggest that adoption itself confers a hereditary right to a matai title. In tracing a candidate’s ancestry to the nearest title holder — the formula applied in the vast majority of cases over the years to determine hereditary right — only blood relationships count. Thus the natural son of a previous title holder has a 1/2 relationship to the title, the natural grandson a 1/4 relationship, whereas the adopted son or grandson has no fractional relationship at all. Nothing in our holding contradicts or changes this. Both the present candidates, Konelio and Leaana, are natural descendants of previous Mulitauaopele title holders: Konelio is a natural son of Pele Pataua, Leaana a natural son of a natural daughter of a natural daughter of Esera. Both proved their descent from the title by blood, not adoption.
The contention urged by Pele Ivi is a very different one: that whenever it appears that a matai obtained his title for a reason other that blood descent, even if this happened a hundred (or presumably a thousand) years ago, and even if his descendants have held the title ever since, the line is illegitimate and must be extinguished by the Court at the request of the "true" descendants (including not only direct descendants but also great-nephews many times removed) of the title. No holding of this Court stands for that Draconian proposition, and we decline to find it entailed by the "best hereditary right" criterion of A.S.C.A. § 1.0409.
The traditions of ancient Samoa abound with stories of matai who obtained their titles for reasons other than blood descent from a previous title holder. Although such cases were always the exception *83rather than the rule, it seems clear that such customary institutions as igagato (conferral as a reward) and matu ‘upalapala ("commission" to avoid the extinction of the line) did exist. Since the adoption of the "hereditary right" criterion by statute in the early part of this century, the Court is not free to recognize such reasons for awarding a disputed matai title to a person who is not descended from a previous title holder. So far as we can tell, however, no one has suggested before now that the matai title statute gives the court the duty, or even the power, to right ancient wrongs by retroactive application of the four statutory criteria to events that happened hundreds or thousands of years ago.1
E. The "Joint Title Holders" Cases
We also reiterate our original observation that cases involving "joint" or "split" holding of the same title by more than one member of the same family are inapposite to the case before us. The Pele/Tialavea and Pele/Leaana families are unrelated by blood and own separate lands; if either family’s title were to be abolished, its members would not have the option, as those in the "joint" and "split” cases did, of participating in affairs of the other family and eventually contending for its title. (In addition to these and the other indicia of separateness cited in our original opinion, In re Matai Title Mulitauaopele, 16 A.S.R.2d at 67-68, we note that on several occasions Pele Ivi and the late Pele Tamotu were selected by the traditional institutions of the county of Su‘a and Vaifanua to serve as the two Senators for that county, each, of course, occupying a separate Senate seat.)
*84
F. Samoan Logic
Finally, we note the contention to which Pele Ivi gave principal emphasis at oral argument, to the effect that our decision was "unSamoan," did not use "Samoan logic," and would destroy or radically change Samoan custom. The most appropriate response is that the original decision to deny the motion to dismiss was made by the Samoan Associate Judges, who have the principal authority in matai cases, the presiding Justice concurring but not voting; that the written opinion, although composed by the presiding Justice, reflects the thoughts of the Associate Judges and was written after lengthy consultation with them; that they did not sign their names to it lightly; and that they all continue to believe it to be fully consistent with Samoan custom.
III. Judicial Bias
The two remaining assignments of error are reasonably specific. One of them urges that an Associate Judge asked certain questions of one party/witness which reflected "obvious bias against our Motion to Dismiss."
We note that the questions to which this assignment alludes were asked after the Motion to Dismiss had already been denied. Even accepting the rest of the argument — that "the Samoan Judges are in fact jury," that questions by one of their peers might therefore improperly sway the "jury" against a litigant, and that questions by a judge reflecting an opinion on the evidence rather than a personal animus against a litigant should be regarded as impermissible "bias" — these particular questions could not possibly have had any role in bringing about a decision that had already been made and announced. The only matter before the Court at the time these questions were asked was which of the two candidates, Konelio or Leaana, should be selected to hold the title. The only litigant who could possibly have been prejudiced by any questioning at this point was the losing candidate, Leaana. He has not moved for a new trial.
IV. "Premature Ruling"
Finally, objector Pele Ivi argues that the Court erred "in that it prematuredly ruled on our Motion to Dismiss before all of the evidence was in; the Court’s sudden change of procedure at the morning of the 1st day of trial was unfair to Movant."
*85The Court’s recollection of this incident is that after opening statements from all parties and the presentation of evidence by Pele Ivi on behalf of his motion to dismiss (consisting of his statement from the witness stand about his version of the history of the Mulitauaopele itle and his understanding of Samoan custom), we announced that the Court would recess.
The specific purpose of this recess, clearly announced in open court, was to decide whether we should rule on the motion to dismiss or wait until the other parties had presented their evidence. There was no objection. At the conclusion of the recess, we announced that the motion would be denied and stated our reasons for the denial. Again there was no objection to the procedure we had followed in considering the motion. The movant did observe that he disagreed with our ruling on the merits, and we discussed his rights to a move for reconsideration and to appeal. (We also extended objector Pele Ivi the courtesy, over the objection of counsel for Leaana, of being permitted to question the two other parties during their presentation of evidence on the remaining issue before the Court, in order that he might bring out any facts he should regard as helpful to any subsequent motions he might wish to make.)
Because there was no objection to our ruling on the motion to dismiss, either when we announced we were about to decide whether we could rule on it or a few minutes later when we actually did rule on it, any such objection must be regarded as waived. It would in any event be denied on its merits. See Willis v. Fai'ivae, 12 A.S.R.2d 37, 39 (1989) ("There was no reason why the trial court was required to hear more evidence when [a litigant’s] case in chief was insufficient to make out his claim. There was no unfairness and no error.")
V. Order
Accordingly, the motion for new trial is denied.
It is so ordered.
Indeed, the matai title statute appears explicitly to forbid such application. A.S.C.A. § 1.0413 provides that "[t]his chapter [the matai title statute] may not have the effect of divesting any person of a title registered before 1 November 1932." Although this language might be read as merely forbidding the divestiture of a title from a particular holder who obtained a title illegally before 1932, while permitting the judicial extinguishment of the title itself after the death of that particular holder, we are aware of no such instance. Many titles in American Samoa were-created or conferred long ago in ways which, had the present statute been then in force, would have been illegal, and yet these titles and all their holders are now recognized as legitimate. See, e.g., Moea'i v. Te'o, 9 A.S.R.2d 107 (1988), in which we held that a matai title long registered in accordance with law and recognized by the village council must be regarded as a matai, notwithstanding the tradition that the office of bearer of the ava cup is not a matai title.
At the very worst, either the Pele/Leaana or the Pele/Tialavea family was guilty of establishing a "new” matai title for itself at some time during the Nineteenth Century. This was not illegal, however, until 1969 when the matai title registry was closed. See A.S.C.A. § 1.0401(b). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485937/ | The child who is the subject of this case appears to have a strong relationship with her natural parents and with her natural brothers and sisters as well as with the prospective adopting parents. The prospective adopting father is the sponsor for immigration purposes of the natural parents, who live on property belonging to the prospective adopting parents.
It seems clear that the prospective adopting parents love the child and could provide more than adequate financial support for her. The child appears already to have been informally adopted according to the customs of the respective homelands (Tuvalu and Samoa) of the natural and adopting parents. We conclude, however, that a legal termination of parental rights — in which the natural parents would have no right to reclaim the child, not even if they should leave Samoa, and not even if the child should wish to leave with them — would not be in the best interest of the child.
The petition for relinquishment of the legal rights and obligations of the natural parents is denied. The child may, however, continue to live with her "adopted" family so long as this is her wish and the wish of her natural parents.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485938/ | The child lives with her natural parents as well as the prospective adopting parent (her 64-year-old grandfather). The grandfather, who proposes to adopt the child, is a widower who will be almost eighty years of age by the time the child reaches the age of majority. It would not be in the best interest of the child to terminate the legal obligations of her thirty-year-old parents.
The petition for relinquishment is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485939/ | Samuelu Aoelua, a member of the Aoelua family of Afono village, filed a petition to remove the defendant, Aoelua Saofetalai, from the matai title "Aoelua." A number of people, both on-island and off-island, claiming to be members of the Aoelua family are also signatories to petition. The main ground asserted for relief is that the defendant lives outside the territory and that he has been derelict of his duties as the matai.
*89
Facts
In 1985 the land and titles division of the High Court awarded the title "Aoelua" to the defendant, then known as Pulouoleola S. Tagoa’i, in Aoelua v. Tagoa’i, MT No. 1-85 (1985), aff’d Aoelua v. Tagoa’i, AP No. 20-85 (1986). However, after prevailing in court, the defendant then went through a title investiture ceremony whereby he and another, Manu Lealai, were presented to the village council as joint titleholders; an action thoroughly bewildering, to say the least.1 Some time in 1987, the defendant removed to the United States where he currently resides and works in Tacoma, Washington. The defendant testified that he had left the territory in pursuit of his wife’s desires to further attend school and qualify as a registered nurse. Such a course of instruction, according to the defendant, would take between two and four years; however, the defendant also admitted that his wife’s educational plans were still in abeyance until they had earned sufficient funds necessary for tuition.
Discussion
In matters of matai removal, we look to the provisions of A.S.C.A. §§ 1.0411-1.0412. While the former enactment provides a procedure of removal for cause, the latter deals with those situations of extended matai absence from the territory. A.S.C.A. §1.0412(a) provides as follows:
Any matai absent from American Samoa for more than 1 year may be removed of his title upon petition filed in the High Court by any member of the family of the absent matai. Upon presentation of such petition and satisfactory proof of such absence, the court may, but need not, remove such title. The court in its discretion may consider the reasons for such absence and the wishes of the family actively serving the matai.
On the evidence presented, we are satisfied for purposes of A.S.C.A. §1.0412(a) that the petitioner herein, Samuelu Aoelua, is a member of the Aoelua family, and that the defendant matai, Aoelua *90Saofetalai, has been absent from the territory for more than one year.2 On this evidence alone, the defendant may be removed from his title. See A.S.C.A. §1.0412(a).
The Court, however, may in its sound discretion reject the petition after considering the reasons for the defendant’s absence, together with the wishes of the family actively serving the matai. See A.S.C.A. §1.0412(a). We thus look to the reasons for the defendant’s absence from the territory — his wife’s further education. The immediate difficulty we have in this regard is that the defendant has now been absent from the territory, and hence from his aiga (extended family), for some three years and yet his wife has still to commence schooling. Additionally, it certainly appears from the testimony that defendant’s plans call for a continuing and extended absence from the territory. Quite obviously, these reasons, even if factual, hardly impress when viewed against the defendant’s responsibilities to the Aoelua family. The Fono’s enactment of A.S.C.A. § 1.0412(a) merely highlights the self-evident truth that a matai’s place is with his family and that the meaningful exercise of his duties demands his continuing presence in the territory. Here, the defendant matai’s plans to be indefinitely absent from the territory simply cannot be reconciled with the very clear policy embodied in the enactment.
With regard to views of the family, we are also satisfied on the evidence that there is considerable family support in favor of the petition. We are further satisfied that the petitioner and a substantial number of on-island signatories to the petition are actively participating in family affairs, notwithstanding the absence of leadership from the matai.3
*91Finally, a very telling factor weighing against our exercising discretion in favor of the defendant is that his absence necessarily continues to encourage a pretender’s unlawful usurpation of the Aoelua family’s title, as well as its dignity.
The petition should be granted and the family should be allowed to select a new matai. The defendant Aoelua Saofetalai shall be removed from the title "Aoelua," pertaining to the village of Afono, and the Territorial Registrar is directed to amend the matai registry accordingly.
It is so Ordered.
Having been selected as the sole and legitimate title-holder, the defendant then publicly holds himself out as merely a co-holder of the title in a manner thoroughly repugnant to that very legal process which made him the matai. See A.S.C.A. § 1.0401.
The defendant attempted to argue compliance with the statute by attempting to show that he was still a bona fide resident of the territory for voting purposes; he was apparently permitted to vote in the last election as an absentee voter. This argument, however, is without merit. Absence from the territory for more than one year for purposes of A.S.C.A. § 1.0412(a) is quite a different question than whether one is a resident of the territory for purposes of the voting statute.
The defendant testified that none of the petitioners were actively serving him and he thus attempted to build a case around the enactment’s requirement that the Court take only into account the wishes of those family members ''actively serving the matai." We find this argument to be spurious. A matai cannot realistically expect traditional service (tautua) while he is effectively residing outside the territory and thousands of miles from the village. (Counsel’s suggestion of $20.00 bills in the mail is, at best, facetious.) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485940/ | This case arose from a dispute among members of a family (and an unrelated storekeeper allied with one of the two factions within the family) over use of family land.
The land in question is a fairly small tract on both sides of the main road in Nu‘uli, in an area that has seen intense commercial development within the last ten years. It is undisputed that the land, called "Papa," belongs to the Fagasoaia family. All parties are related to the family by blood or marriage except Tumema Kim and Dong Ik Kim.
The primary occupant of the land on one side of the road, until the events giving rise to this action, was plaintiff Valu Fagasoaia. At a much earlier time the land was occupied by Valu’s parents and siblings, including defendant Puailoa, but Valu was for many years the only occupant. In 1978 defendant Tuitogamaatoe Fanene (hereinafter "Tu‘i") came to Valu, her uncle, to ask permission to build a residential house on part of the land in the area he had been occupying. He gave his permission. Tu‘i then secured a Separation Agreement allowing the construction of this dwelling and providing that the dwelling itself would be her personal property although the land would continue to belong to the Fagasoaia family.1
Although Tu‘i testified that she had originally intended the house she built pursuant to the 1978 separation agreement to be a dwelling and that she and her husband occasionally slept there at first, although they had another house nearby, it is clear that almost from the beginning this house was used for business purposes. The first tenants, during the early 1980s, were some air conditioning repairmen. In 1985 the house was *93leased to defendant Dong Ik Kim for $250 per month. Although the lease did not specify for what purposes the house was to be used, provisions allowing the lessee to build. an "extension" clearly contemplated the present commercial use. In 1986 a new agreemen. was signed between Tu‘i and the Kims; the gist of this document was that in respect of some $27,727 spent by the Kims for building an extension, they would pay no rent at all until July 1990 and would thereafter pay $550 per month through 1996.
Neither of these leases — nor the transformation of the dwelling house into a much larger store building with a parking lot, all on Fagasoaia land — was made with permission of Fagasoaia. Nor was Valu, who still lived on the land and still regarded himself as being somehow "in charge," especially happy about the changes. When he saw some old coconut trees being cut down for the parking lot, he confronted the workmen and told them to stop. They did so, but returned to complete the task on the instructions of Siufaga Fanene, husband of Tu‘i. At one point Valu seems to have taken the law into his own hands by throwing rocks at the store windows. Tu‘i then arranged for her tenant Kim to pay Valu a small periodic stipend; she testified that this was an act of pure love on her part, but pragmatic considerations may also have figured in the decision. In 1989 Tu‘i ordered the stipend stopped. Tu‘i says love was again her only motive, as she did not wish to fuel her uncle’s drinking problem. It also appears, however, that at about this time Uncle Valu had been consorting with plaintiff Maina, a person from another branch of the Fagasoaia family who had recently returned from off-island and had been expressing curiosity about the commercial complex that had gone up on family land.
Meanwhile, the principal occupants on the other side of the road had been the immediate family of defendant Puao Sione. It is undisputed that these people built dwelling houses on this part of the land at various times during the 1960s and 1970s, always with the permission of the senior matai Fagasoaia. In 1989, apparently through the good offices of Tu‘i, Puao and her husband leased an existing dwelling house on their side of the road to Mr. Kim for ten years. The rent was to be $700 per month for the first five years and $900 per month thereafter. At about this time Mr. Kim also began building an "extension" to this dwelling house, in the form of a warehouse about three times as large as the dwelling itself. According to the testimony of defendants Kim and Puao, the arrangement is that Mr. Kim will be able to deduct the entire cost of building the warehouse from his $700 monthly rent until such time as he has been compensated for all his expenses. This will take about ten *94years, the entire term of the lease. Mr. Kim will then have the option to renew the lease — of the warehouse as well as the dwelling — for an additional ten years, apparently at the rate of $900 per month.
In 1989 and 1990 at least three other buildings have been built or started on this land. These include a generator building behind the store on the Tu‘i/Valu side of the road, a new dwelling house on the Puao side of the road under the auspices of Puao’s husband, and a dwelling on the Valu side of the road under the auspices of Valu. On documents appertaining to some of the more recent construction, defendant T.M. Puailoa, the brother of Valu and father of Tu‘i, has begun signing his name as "landowner."
Fagasoaia Leasialagi (Lio), the sa‘o of the family, died in or around 1987. He was still alive at the time Mr. Kim added the extension to the Tu‘i house and began operating his store there, but had died by the time arrangements were made for the warehouse on the Puao side of the road. The family has recently selected a new sa‘o, who will be installed in a few months after the prerequisite formalities have been completed.
We conclude that the only thing defendant Dong Ik Kim has leased from Tu‘i for $550 per month is the right to use her original dwelling house. Similarly, the $700 lease covers the dwelling house of Puao. (These rental prices do not differ markedly from prices for similar structures in this area.)
The parking lot, the generator building, and the two "extensions" (the storefront area and the warehouse), as well as the property on which they were built, are the property of the Fagasoaia family. No lease exists with respect to any of these properties. The people who signed documents purporting to create various contract and/or property rights in these buildings had no authority to do so. This was especially true prior to the death of Fagasoaia, who had sole authority to authorize such construction and whose permission was not asked. Thereafter, during the vacancy of the family’s matai title, no one family member or faction had the power to effect a radical transformation of family property without a clear consensus of the entire family.
The new Fagasoaia will be the person with whom Kim should negotiate should he wish to continue as lessee of the family properties. Pending any agreement between Fagasoaia and Kim, we take judicial notice of such negotiated commercial rents as have come to the Court’s attention in other recent cases in order to fashion the relief to which the *95family appears entitled in exchange for defendant Kim’s continued use and occupation of its property. We estimate the rental value of the store, generator building, and parking lot to be $1000 per month, over and above the $550 per month payable to Tu‘i for her original dwelling house. We estimate the rental value of the warehouse space to be $1500 per month, apart from rental on the attached dwelling house of Puao.
Because Kim has already been fully compensated for the cost of building the store by his retention of the rent over several years, he should pay the family $1000 per month (in addition to the $550 he pays Tu‘i) should he wish to retain possession of the store pending the installation of the new Fagasoaia. Because he has not yet been fully compensated for his expenses in building the warehouse — and because it would be unfair to Puao to withhold such expenses from future rentals of her dwelling house insofar as she is not the owner of the warehouse and will not receive rentals from it after Mr. Kim has deducted his expenses — he may deduct $500 per month from the $1500 monthly warehouse rental until such time as his expenses have been fully compensated. This credit for expenses is in lieu of the present deduction of $700 per month against rentals due on the dwelling house of Puao, and will be allowed on the condition that defendant Kim submit within ten days a full accounting of such expenses. The family will be allowed an $18,000 offset against the total amount of such credits to compensate it for the rental value of the warehouse during the year it has already been in use.
The $2000 monthly rent for the family properties for the current month is due immediately, and for succeeding months will be due on the first day of each month.
$200 of this monthly amount is payable directly to plaintiff Valu as compensation for the use of land formerly occupied by him. Although any right Valu had to make decisions about this land is and always has been subject to the ultimate authority of the sa‘o, of all the family members in this case he appears to have been the most inconvenienced and the least compensated. Pending a comprehensive decision about the long-term use of this land by the new sa‘o, which would presumably include some compensation to displaced family members, Valu has the same right as Puao (and a better right than Tu‘i) to a share in the income from this land.
The remaining $1800 per month should be placed in a trust account in the name of the family, from which no withdrawals should be *96made without Court approval, pending the installation of the new Fagasoaia. Pending the submission by counsel and approval by the Court of documents establishing such a trust, the funds may be deposited in the registry of the Court.
All parties will be permanently enjoined from authorizing further construction on this land, except that Valu may complete the single small residential dwelling which he had already begun to construct at the time of trial.
It is so ordered.
The signature on this Separation Agreement is "Fagasoaia Lio"; plaintiffs have introduced signatures of the then senior matai of the Fagasoaia family to show that he usually signed his name "Fagasoaia I. Leasialagi" and in a somewhat different hand from the one on this document. We need not decide whether the signature on the 1978 separation agreement was or was not that of the then Fagasoaia, because no issue presently before us depends on such a determination. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485941/ | This appeal concerns a land dispute among an old man, his brother, and the brother’s son.
A tract of land in Ili’ili called Moso‘oi was offered for registration in 1983 as the individually owned property of Sipili Atualevao. His brother, Pefu Fania, objected to the registration on the ground that he and not Sipili had cleared and worked the land. Pefu later withdrew his objection to the registration; the trial court found that this was because Pefu had been assured by Atoa Sipili, the son of Sipili Atualevao, that the registration would be amended to reflect joint ownership of the land by Pefu, Sipili, and Atoa. Sipili did later direct the registrar to add Atoa’s name, but not that of Pefu, as a co-owner of the land. In 1989, after Sipili had ordered Pefu to remove his house from the land and Atoa had begun selling parts of it, Pefu sued to compel execution of the agreement for joint ownership of the land. The trial court imposed a constructive trust in favor of plaintiff/appellee Pefu on the land and on the proceeds from the parts that had been sold.
Appellants Sipili and Atoa do not assign error to the trial court’s holding that a constructive trust should be imposed as a matter of law on the facts as found. Rather, appellants urge that two findings of fact were clearly erroneous.
One of the two findings to which appellants take exception was that the testimony of two neighbors tended to support the testimony of Pefu that he began working the land in about 1954 and that his brother Sipili came on the land some years later with his (Pefu’s) permission. Appellants argue that the testimony of one of these witnesses can be reconciled with the presence of appellants on the land at an early date, *98and point to circumstances suggesting that the other witness could not have seen Pefu on the land in the 1950s.
Appellants’ arguments on this point would require this appellate court to engage in various conjectures — having to do with such things as what one witness meant when she admitted to having seen appellants "on the area that’s more to the back," whether certain old roads or trails were passable by automobile, and whether any crops could have been planted if there were no automobiles to haul the crops away — at least as extreme as those of which they accuse the trial court. In any event, the trial court would have been free to believe Pefu’s testimony, and to disbelieve that of Atoa and Sipili, even if the former had not been corroborated. We find no clear error in the trial court’s finding that Pefu first began clearing the land "at least as early as the year 1956" and that Sipili and his family came on the land with Pefu’s permission "much later in time." (Opinion and Order issued March 13, 1990, at 3-4.)
The other assignment of error presents both a closer and a more important question. Appellants argue that even if Atoa did fraudulently induce Pefu to withdraw his objection to Sipili’s pending registration by promising that the land would be jointly registered in all three names, this fraud was not attributable to Sipili. Accordingly, they argue that a constructive trust against Sipili was inappropriate.
There is no direct evidence that Sipili had knowledge of the 1983 conversation between Atoa and Pefu that induced the latter to withdraw his registration. Atoa denies that he ever promised Pefu anything, and Sipili denies even having known about Pefu’s objection to his registration. There was, on the other hand, a wealth of circumstantial evidence from which the trial court might justifiably have inferred complicity by Sipili:
1) There was strong evidence of a "consensus or understanding of co-entitlement to the land" dating from the resolution of a previous dispute in 1979. The mediator at the Office of Samoan Affairs certified at the time that "a survey would be redrawn to reflect a division of the land between Pefu, Sipili, and Atoa." Opinion and Order at 8.
2) The facts with respect to Pefu’s original occupation of the land being as the trial court found them to be, Sipili knew that any subsequent attempt to register the land as his own property would probably be unsuccessful unless Pefu could be induced to acquiesce.
*993) Although Pefu (an old man whose memory was clearly fading by the time of trial) did not testify one way or the other about whether Atoa explicitly told him that the 1983 promise that induced the withdrawal of his objection had been specifically authorized by Sipili, the court could justifiably have inferred such a representation from the documentary evidence that Pefu thereafter withdrew his objection on the ground that "[t]his matter has been settled by the two of us, Pefu Fania and Sipili Atualevao." (Exhibit 10.)
4) The court could also have inferred that Atoa was acting as Sipili’s agent in making this promise from the relationship of the two men as father and son, from the fact that Sipili was the only immediate beneficiary of the result sought and achieved by the promise, and from Sipili’s subsequent assignment to Atoa of a half-interest in the fruits of the enterprise in which he had thus assisted.
5) Finally, the court could and evidently did conclude (from the documentary evidence of previous machinations by Sipili and Atoa with respect to registration of this land and from their unsatisfactory attempts to explain these machinations away at trial) that the ruse upon Pefu in 1983 was a sort of signature offense, fully consistent with the character of both appellants and bearing the marks of participation by both.
Although this circumstantial evidence would not have compelled the trial court’s finding that Sipili was implicated in Atoa’s 1983 promise to Pefu, it provides more than adequate support for such a finding. There was no clear error.
Finally, appellants’ argument appears to rest on the assumption that in the event of a finding of fraud by Atoa alone, his father and co-owner Sipili would be allowed to profit from such fraud at the expense of the innocent Pefu. This assumption is dubious. Even if Sipili had had no knowledge of Atoa’s activities, his resulting enrichment and the corresponding impoverishment of the innocent Pefu would appear most unjust.1 We need not decide, however, whether a constructive trust *100would have been warranted on such facts, because the record adequately supports the even stronger facts found by the trial court.
The trial court judgment is AFFIRMED.
Cf. Restatement of Restitution § 167:
Where the owner of property transfers it to another, being induced by fraud, duress or undue influence of a third person, the transferee holds the property upon a constructive trust for the transferor, unless before notice of the fraud, duress or undue influence the transferee has given or promised to give value. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485943/ | The principal parties in these consolidated matters are the respective senior matai of the Utu family, the Gogo family, and the Fuata family, all of the village of Amouli, Eastern District. They each lay claims on behalf of their respective families to an area of land in the village of Amouli, known as "Mataava." The case docketed LT No. 09-89 commenced with the application of Fuata Pepa to enjoin a member of the Utu family, Livingstone Utu, from making repairs to his house which is located on a certain part of "Mataava." The matter docketed LT No. 19-89 arose upon Gogo’s objection to a separation agreement, relative to the same land area, between Fuata and Pasa Turituri, which Fuata had sought to have registered. Subsequently, Fuata surveyed his communal claim to "Mataava," which he then offered for registration pursuant to A.S.C.A. §§ 37.0101 et seq. The registration application attracted the objections of the Utu and Gogo families resulting in the matter docketed LT No. 04-90.
*106Historically, "Mataava," according to the "fa’alupega"1 books,2 is not only the traditional site of Utu’s "maota" (guest house), but also the site of the Amouli village "malae" (the village green or open space used for assembly and various village gatherings). A good part of the testimony, therefore, centered on family and village history, albeit contradictory, conflicting, and, in certain areas, even noticeably confused. (The only consensus about the land was the origin or explanation of its name, "Mataava," — the opening through the reef — because of its location directly opposite a passage through the reef.) The testimony, however, took on the unmistakable purpose of asserting competing claims to historical prominence as a basis for claiming original settlement and occupation of this rather central and important area of village realty. It thus became painfully clear that there was another underlying controversy presented for resolution with these land matters, namely, a quarrel about the identity of the original settlor or founding father of the village — an issue which has in turn bred intense rivalry about social importance and rank, as well as the relationship between one matai and the other.3
Another common purpose associated with each party’s assertion of historical prominence is that it also provided a basis for claiming that *107the other sides’ rights to "Mataava" were derived through claimant’s forebears. Therefore, an adverse party’s undisputed presence on the land today was readily explained away as stemming from "permission" given in bygone days by claimant’s illustrious (and invariably generous) ancestor.4
Ancestral permission may be a very relevant and material issue where the evidence suggests a traditional relationship of subservience between one party and another and that "tautua" (traditional service) has been habitually rendered by one to that other. Obviously, in a situation where there is permission coupled with tautua, there is an appointment to the use of land with customary strings attached; a scenario which is the antithesis of an absolute donative intent. Here, however, there was no credible evidence of such a subservient relationship existing between any of the parties, although Utu did attempt to argue that the people of Amouli were all one family, namely, the Utu family, of which he is the senior matai. Thus, as head of this one family village, Utu maintains that he holds "pule" to all village lands. The immediate difficulty with this claim is that it is singularly held by Utu and certainly not endorsed by Chief Gogo nor Orator Fuata, who are leading matai in their own right. (We also noted a similar rejection of Utu’s claim by Faleafaga, another matai of Amouli, in the answer he filed in the pending matter, Utu v. Ben Faleafaga, LT No. 24-87.) Secondly, and at least for purposes of landholding, the Court has necessarily rejected this "one" family thesis: 1) when it upheld Chief Faleafaga’s claim, on behalf of the Faleafaga family, to communal land holdings in the village of Amouli in Faleafaga v. Talaetau, LT No. 23-84 (1984), aff’d Talaetau v. Faleafaga, AP No. 23-84 (1985); and 2) when it rejected a petition by the Utu family to permanently enjoin the Paolo family from building on a part of "Mataava” in Lavea’i Utu v. Paolo, LT No. 1391-74 (1975). Similarly, the Paolo family of Amouli have also been recognized as landowners in Utu and Paolo v. Fonoti, 1 A.S.R. 208 (1910).
*108The Court learned very little from the testimony on family/village history and tradition. We looked to the other evidence. Gogo, although he did not submit a survey, claimed a substantial area of land being the northern part of the tract surveyed by Fuata together with certain portions on and about the location of the road to Aoa. However, we find his claim to be the least believable. It was essentially founded either on ancestral permission or upon the alternative claim that the occupants of the land were descendants of a former Gogo. Gogo failed to, and indeed could not, provide any adequate corroborating proof of possession at any time. He appeared to be primarily concerned with what he perceived as insurgency on the part of the village orators, Fuata and Manaea, who were seen as stepping out of line and not knowing their places. As opposed to the presentation of a defined claim for registration in metes and bounds, Gogo was content to simply seek a denial of Fuata’s registration application. We conclude that Gogo’s objection to the registration of that separation agreement between Fuata and Pasa Turituri, being the subject matter of Gogo v. Fuata, LT No. 19-89, is without merit.
Utu as the other counter-claimant did provide a survey of his claim to "Mataava." His survey varied only slightly from the Fuata’s. With regard to this claim, we are satisfied on the evidence that the disputed land area contains Utu’s traditional maota site, as well as the village malae. We further accept Utu’s testimony that his traditional maota site was yielded for the use of the village church (Congregational Christian Church in American Samoa). In addition, the evidence was clear regarding an established presence by the Utu family on the eastern part of Mataava. This presence is significantly evident with the location of tombs of former Utu titleholders adjacent to the church building, together with the continuing occupancy of the eastern part of the land by a number of Utu family structures to the notable exclusion of the Fuata and Gogo people. This eastern part of Mataava is also the location of Livingstone Utu’s home, the subject matter of Fuata v. Utu, Livingstone Poasa Utu, LT No. 9-89. We see no basis to Fuata’s claim in derogation of Livingstone’s right, as a member of the Utu family, to continuing possession and enjoyment of his residential situs.
However, while the evidence clearly demonstrated the Utu family’s exclusive presence on the eastern part of Mataava, the evidence was equally clear that western part of Mataava has been in the occupation of the Fuata family to the exclusion of the Utu family. Fuata has a guest house located on this western side of "Mataava," together with a number of Fuata family structures. Additionally, the signing of separation *109agreements for homes to be built by family members on communal land is legally the function of the matai. A.S.C.A. § 37.1503(a). The more reliable documentary evidence5 submitted by the parties corroborates Fuata’s exercise of pule on the western portions of the land (just as it also corroborated Utu’s exercise of pule on the eastern side) when he executed separation agreements on behalf of the Fuata family for a number of structures found on western side of "Mataava." On the other hand, Utu’s assertion that lesser matai in his family were in the habit of signing separation agreements on the family’s behalf is hardly a convincing explanation for his family’s recurring failure to object to what otherwise would be an unwarranted usurpation of Utu’s pule by Fuata. This is yet another aspect of the "permission" theory presented to explain an adverse fact which is really beyond contention.
On the foregoing, we conclude that the evidence preponderates in favor of Utu with regard to the eastern part of "Mataava," but in favor of Fuata with regard to " Mataava’s" western area. Both of these parties have failed to prove entitlement to the full extent of their respective claims as surveyed and, therefore, registration shall not only be denied to the applicant Fuata but also to counter-claimant Utu. Judgment will enter accordingly; however, Utu and Fuata are encouraged to draw that dividing line consistent with their respective interests to the land in accordance with the findings above. Such a line was roughly suggested in Utu’s survey, exhibit "18."
It is so Ordered.
A Samoan village or "nu’u" is generally comprised of a number of extended family groups or households each headed by a matai. The social structure of the village is conveniently found in its "fa’alupega," or village salutation — the ceremonial greeting of its principal matai in accordance with established social ranking and status. Thus the fa’alupega conveniently summarizes the constitution of a village’s fono (council of matai). It also provides the village with its identity and signifies its autonomy. The orators take great pride in being able to commit to memory the fa’alupega of the different villages which is recited at all formal gatherings prior to speech making.
Village fa’alupega were early collected by the London Missionary Society, now the Congregational Christian Church in Samoa, in a publication called "O Le Tusi Fa’alupega.” A recent edition is "O Le Fa’avae O Samoa Anamua," (Malua Printing and Publishing 1985). Another early recording of fa’alupega may be found in Augustin Kramer, Die Samoa-Inseln. 2 vols (Stuttgart 1902-1903). See also "O Le Tusi Fa’alupega O Samoa Atoa," (Methodist Printing Press in Samoa 1985).
This aspect of the dispute — social standing, rank, and inter-relationship as leading matai — is difficult to fathom. These can hardly be issues of contention. The fa’alupega must have been intoned or formally recited a countless number of times at village gatherings before; the Utu and Gogo on the one hand, and the Fuata and Manaea on the other, must have taken their respective appointed positions in the meeting house a countless number of times before; the parties and their respective predecessors must have experienced the appointed order for the serving of kava at countless ’ava ceremonies previously held.
Ancestral "permission" is a submission frequently heard from land claimants to explain an opposing party’s actual possession of disputed land. It is a submission which counters opposing claims to adverse possession. At the same time, case law development has generally taught that mere "permission" to use land only yields to the grantee a personal license revocable at will by the grantor. See, e.g., Magalei v. Tago, 3 A.S.R. 185 (1955). Consequently, the Court is often confronted with the petition which prays for the application of common law licensing concepts to a land grant of yore based on ancestral "permission" that pre-dated the establishment of government and the adoption of the common law.
A few of the documentary exhibits of more recent origin looked very much like attempts at self-aggrandizement. These documents were quite obviously prepared, and even altered, in anticipation of an impending lawsuit. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485944/ | *111
Facts
I. Lealaimatafao’s Claim "Lepuapua"
On June 6, 1978, plaintiff, the late Lealaimatafao Mase, senior matai of the Lealaimatafao family of Iliili, offered for registration with the Territorial Registrar’s office, pursuant to A.S.C.A. § 37.0101 et seq., his family’s communal claim to a certain portion of land he refers to as "Lepuapua." The claim comprises 3.614 acres, more or less, and is more particularly described in plaintiffs survey R.P.S. No. 70-8-77. The offer was duly posted by the Territorial Registrar from June 9, 1978 for the requisite 60-day statutory period. See A.S.C.A. § 37.0103.1 However, the claim attracted the timely objection of a Filimaua L. Ofoia, a member of plaintiffs family, and under memorandum dated August 29, 1978, the Territorial Registrar referred the matter to the Office of Samoan Affairs for mediation in accordance with the requirements A.S.C.A. § 43.0302. The parties met at the Office of Samoan Affairs on August 29, 1978, and on March 20, 1979. The result of the meetings was a consensus by the parties to attempt an extra-judicial resolution to their differences. Eventually, Filimaua Ofoia sent written notice, dated June 20, 1985, to the Territorial Registrar, advising the withdrawal of her objection. Consequently, the plaintiffs land claim was finally registered by the Territorial Registrar on May 5, 1986.
II. Misiaita luta’s Claim "Gaoa"
On October 25, 1983, Misiaita luta offered for registration his individually owned claim to a certain tract of land he calls "Gaoa," containing some 1.32 acres, more or less, as more particularly described in his survey R.P.S. No. 13-13-83. The claim was duly posted for the 60-day statutory period; however, this claim was free from objection. *112The Territorial Registrar then accepted the offer for the registration of "Gaoa."
III. The Dispute
2
Mr. L.P. French, a registered surveyor, certified that "Lepuapua" and "Gaoa" actually overlapped in area which he approximated as slightly under a half-acre. The issue presented is who owns the overlap. The Lealaimatafao family contends that the subsequent registration of the overlap by Misiaita was void, given his family’s pending registration application with "Lepuapua." Plaintiff further points out that Misiaita had failed to make a timely objection to his family’s prior offer for registration, as required by A.S.C.A. § 37.0103, and that he was estopped from further asserting a claim inconsistent to that of plaintiffs.
Misiaita, on the other hand, argues that his completed registration could not be defeated by Lealaimatafao, who did not file an objection to his offer to register and (although not affirmatively pleaded as a defense) that plaintiffs registration application did not comply with the statute’s procedural requirements for affording notice. Misiaita claims that he has not seen any notices of plaintiffs registration offer posted in the village.
Conclusions
We conclude in favor of Lealaimatafao and hold that title to the overlap area could not be registered in favor of Misiaita while it remained the subject of a pending registration application by Lealaimatafao.
Misiaita’s attempt at attacking the validity of Lealaimatafao’s registration process by arguing non-compliance with notice requirements, is entirely without merit. Just because Misiaita may not have noticed the posting of plaintiffs claim within the vicinity, does not necessarily mean that there was no posting. This very reasoning was recently addressed and tersely rejected by the Appellate Division in Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989). The Court there noted, "Nor can the [trial] court conclude that no notice was given simply because a number of witnesses *113testified that they never saw notices." Id. at 28. The plain and simple fact here is that Misiaita did not timely object to Lealaimatafao’s offer for registration and he is, therefore, precluded by A.S.C.A. § 37.0103 from asserting any claims to the overlap. See Puluti v Muliufi, 4 A.S.R. 672 (1965). He cannot subsequently circumvent and frustrate the enactment by a back door opening in the way of a subsequent offer for, and registration of, title. In addition, A.S.C.A. § 37.0101(b) directs that "[n]o title to land shall be registered unless the registrar is satisfied that there is no conflicting claim thereto. ..." (Emphasis added.) The record before us facially discloses a mistake on the part of the Territorial Registrar. If the Registrar had, at the time, the benefit of the facts as they are now known to us, he would have had no discretion whatsoever but to deny Misiaita’s registration offer in view of the mandatory language of A.S.C.A. § 37.0101(b). Furthermore, the Court, in our opinion, correctly gave effect to this enactment when it stated in Lutu v. Penitusi, LT No. 28-77 (1978), that A.S.C.A. § 37.0101(b)
[i]n essence, forbids the registration of land where there are unlitigated or unresolved conflicting claims, including pending lawsuits regarding the registration of the same property. Any registration made contra to this section is void.
(Slip Opinion at 9.) In these circumstances, the Court went on to hold that a void registration may be ordered cancelled. Id. at 10.
On the foregoing, it is the judgment of the Court that the registration of title to Misiaita Iuta of so much of those parts of the land "Lepuapua," being the communal land of the Lealaimatafao family as recorded in 2 Native Land Titles at 326, is void and shall be cancelled. The Territorial Registrar is directed to amend the registry accordingly.
It is so Ordered.
A.S.C.A. § 37.0103 provides:
(a) Notice of the proposed registration shall be posted for 60 days on the bulletin board at the courthouse in Fagatogo and at 2 public places in the village in which or nearest to which the land is located.
(b) During such 60 day period anyone claiming an interest in the land adverse to that of the applicant or applicants for registration may file notice of adverse claim with the territorial registrar.
(c) If no notice of adverse claim is filed within the 60 day period, and all requirements of this chapter having been complied with, the territorial registrar shall register the title to such land in the name or names of the applicant or applicants.
The Letuligasenoa family, through counsel Tauese Sunia, conceded Lealaimatafao’s claim early in these proceedings. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485945/ | On Motion for Reconsideration of Sentence:
/. Facts and Procedural History
On August 9, 1989, Falefatu Fa'amaoni pled guilty to a single count of Sexual Abuse in the First Degree, a felony punishable by imprisonment of up to five years. The guilty plea was pursuant to an agreement whereby the Government reduced the charge from Rape, a felony punishable by imprisonment of up to fifteen years.
The Court accepted defendant’s guilty plea to the lesser charge and ordered a pre-sentence investigation. The facts contained in the presentence report, which defendant did not contest either prior to sentencing or in connection with the present motion, reveal a sexual assault on a thirteen-year-old girl by Mr. Fa’amaoni (hereinafter "defendant") and two other adult males. Defendant, who was then twenty years old, appears to have been the ringleader. The probation officer who conducted the pre-sentence investigation noted that the victim
*118suffered both physically and mentally. . . .She sustained bruises and scratches on her body. She reported having nightmares and is seeing a psychiatrist for therapy. She expressed fear for herself and wants the court to keep Defendants as far away from her as possible.
The pre-sentence investigator added that "[t]here is also concern for Defendant[’]s welfare because of victim’s father and family who have vowed revenge." He noted that defendant Fa‘amaoni has been in trouble before, has a serious alcohol problem, and currently lives with his alcoholic father and generally absent mother in a situation that seems calculated to exacerbate these problems. The probation officer concluded that defendant "definitely needs help" and that ''[t]he problem is again his home and the lack of authority it exerts." He also recommended that sentence be calculated to give the victim and her family a "lengthy separation" from defendant.
The sentence recommended by the probation officer was substantially identical to that subsequently pronounced by the Court. Defendant was sentenced to serve five years in the Correctional Facility, with execution of sentence suspended and the defendant placed on probation for five years on condition that the defendant:
(1) actually serve a twenty-month period of detention in the correctional facility, not to be released during this time for any reason other than medical emergencies;
(2) upon the conclusion of the detention period, depart American Samoa for the remainder of the five-year probationary period;
(3) participate in alcohol counseling programs;
(4) consume no alcoholic beverages;
(5) have no contact with the victim or her family; and
(6) be a law abiding citizen.
Defendant now moves for reconsideration of his sentence. The motion for reconsideration was made some 99 days after the announcement of sentence. Although A.S.C.A. § 46.2402(a) provides that "a motion for new trial shall be filed within 10 days after the announcement of judgment or sentence,” defendant relies on the provision of Rule 35 of the Trial Court Rules of Criminal Procedure to the effect that "[t]he Court may correct an illegal sentence at any time."
*119Defendant argues that the first two conditions of his probation are illegal. These are the conditions that he serve twenty months of probationary detention with no release except for medical emergencies and that he then depart the Territory for the remainder of the probationary period.
With respect to the condition that defendant depart the Territory for the latter part of his probationary period, the following facts are relevant: Defendant is a citizen of Western Samoa. He was bom in the village of Lepa on the island of Upolu, Western Samoa, and both of his parents are Western Samoans. Defendant came to the Territory in 1974 or 1975 when his parents moved here, apparently for the purpose of employment. In 1988 defendant was detained by the police in connection with an alleged disturbance of the peace and an ensuing fight. No charges were filed, however, because defendant instead returned to Western Samoa at the request of the sa‘o of the extended family with whom defendant and his family had been living in American Samoa. A few months later, however, he returned to American Samoa. Shortly thereafter he committed the crime that gave rise to the present case.
II. Jurisdiction
At the outset, we note an apparent conflict between A.S.C.A. § 46.2402 and T.C.R.Cr.P. Rule 35.
The former provision, governing prerequisites to appeal in criminal cases, requires in pertinent part that "a motion for a new trial shall be filed within 10 days after the announcement of judgment or sentence." A.S.C.A. § 46.2402(a) (emphasis added). The ten-day time limit set forth in this section and in its civil counterpart, A.S.C.A. § 43.0802, is mandatory and jurisdictional; errors of law not raised within ten days of judgment or sentence are waived, at least insofar as concerns the right to appeal. See, e.g., Taulaga v. Patea, AP No. 19-89 (Opinion and Order issued November 2, 1990); Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146 (1988); Government of American Samoa v. King, AP No. 19-1970; Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). The formal style of the motion — for new trial, reconsideration, amendment of judgment, arrest of judgment, vacation of sentence, etc. — has never been held essential to fulfilment of the statutory requirement. Nor is it essential that the motion specifically request a new trial rather than some lesser or different form of relief from the judgment or sentence, provided that the errors asserted by the motion are susceptible of such relief. What is essential is that some motion be filed within the statutory period *120which fully apprises the Court of the asserted errors in the judgment or sentence, so that the trial court may consider for itself whether any such errors occurred and make appropriate corrections, thereby obviating unnecessary appeals. See, e.g., Taulaga v. Patea, supra; Kim v. Star-Kist Samoa, Inc., supra, 8 A.S.R.2d at 146-47; Government of American Samoa v. King, supra; Judicial Memorandum No. 2-87, supra.
Insofar as the cited provision of Rule 35 purports to extend or abolish the mandatory deadline for alleging errors of law in a criminal sentence, it is in direct conflict with the statute. In cases of such conflict the statute, enacted pursuant to the power of the Fono to define and reasonably restrict the jurisdiction of the High Court, must prevail over the judge-made rule. Cf. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983 (1975); Fanene v. Government of American Samoa, 4 A.S.R. 957 (1968).1
Rule 35 was imported almost verbatim from the Federal Rules of Criminal Procedure. This is one of a number of instances in which it appears that the committee that compiled the American Samoa rules did not notice a difference between the federal and territorial statutory schemes which may render such verbatim importation inappropriate or impossible. The federal equivalent of Rule 35 is appropriate in the federal system because the federal courts are not subject to the jurisdictional limitation imposed on the High Court of American Samoa by A.S.C.A. § 46.2402(a). There is no federal statutory requirement that a motion to reconsider a sentence be made within a certain number of days; rather, the federal rule itself, having been approved by Congress, defines the jurisdiction of the federal district courts with respect to reconsideration of sentences. In contrast, the American Samoa rules were promulgated on the sole authority of the Court and must therefore give way to territorial statutes defining the Court’s jurisdiction unless the statutes themselves can be shown to be unconstitutional. See *121generally American Samoa Government v. Tile, 8 A.S.R.2d 120 (1988).
In some cases — as when an illegal sentence was pronounced on a defendant unrepresented by counsel, or when the circumstances surrounding an error of law were such as to have made it impossible for counsel to call it to the Court’s attention within ten days — a requirement such as that imposed by A.S.C.A. § 46.2402(a) might amount to an unconstitutional denial of liberty without due process of law. No such special circumstances have been shown or alleged in the present case.
This Court does, however, have continuing jurisdiction to terminate or modify the conditions of probation throughout the entire term of the probation. A.S.C.A. § 46.2205. The matters raised by the present motion, although no longer ripe for reconsideration under A.S.C.A. § 46.2402 insofar as they allege defects in the original sentence, might well inform the Court’s discretion with respect to whether conditions of probation should be terminated or modified. We therefore construe the present motion as one addressed to our discretion under A.S.C.A. § 46.2205 to terminate the two conditions of probation to which the defendant objects.
III. Detention as a Condition of Probation
Defendant’s objection to the condition that he actually serve twenty months in the Correctional Facility, with no release except for medical emergencies, raises exactly the same arguments that were fully considered and rejected by the Appellate Division in the recent case of Atuatasi v. American Samoa Government, 9 A.S.R.2d 67 (1988).
In Atuatasi the Court held that the 1987 amendment to A.S.C.A. § 46.2206, permitting the Court to impose detention as a condition of probation for a period equivalent to one-third of the maximum sentence of imprisonment authorized by law for the crime in question, "has given the probation statute an entirely different purpose" than that reflected in the older and more general statements of statutory purpose on which defendant now relies. 9 A.S.R.2d at 78. Defendant argues, as did the unsuccessful appellant in Atuatasi: (1) that probation can only be imposed where institutional confinement is not necessary for the protection of the public, and (2) that each condition of probation must be "rehabilitative" rather than "retributive.” However, Atuatasi upheld a sentence of detention as a condition of probation which had been imposed "precisely because the trial court determined that [the defendant] posed too great a *122danger to the community if he were eligible for work release or similar early release programs." Id. at 77.
The whole purpose of the 1987 amendment, as recounted at some length by the trial court in Atuatasi, was to ratify and extend judicial power to use probationary detention in order
to prevent prisoners deemed especially dangerous by the sentencing judge from being released almost immediately on furloughs, work releases, unsupervised and open-ended ‘work details,’ and other euphemistic devices by which convictions and sentences could be effectively cancelled.
Atuatasi v. Moaali'itele, 8 A.S.R. 53, 57, aff’d sub. nom. Atuatasi v. American Samoa Government, 9 A.S.R.2d 67 (1988). Yet this is the very complaint the present defendant makes about his sentence: that it denies him access to "rehabilitative programs" by which he would be allowed "unsupervised release from the correctional facility." (Memorandum in Support of Motion for Reconsideration, p. 4.) It was precisely such forms of "rehabilitation" that the legislature gave the Court the power to control in 1987. To argue otherwise "entirely ignores the history of this enactment." Atuatasi v. American Samoa Government, 9 A.S.R.2d at 78.2
Defendant’s argument also appears to rest on the erroneous assumption that no punishment which is "retributive" can also be "rehabilitative." On the contrary, we believe that allowing this defendant to come and go freely from the correctional facility — as still appears to happen even with the most violent criminals when the conditions of their *123confinement are left in the sole discretion of prison officials3 — would neither punish nor rehabilitate. While this defendant clearly needs help, much of the help he needs is to be taught that human actions have consequences. In our judgment, imposing a moderately serious punishment (one year and eight months of actual detention) for a most serious crime is more likely to bring about a genuine change of heart in this defendant than allowing him a chance to secure early release by "playing the system." Moreover, it is especially important in our judgment that defendant have no contact during the next few years with his victim or with her family. All these goals will be better served, in our judgment, by the sentence we imposed than by a "straight" sentence of five years with no conditions.4
*124Finally, defendant notes that Atuatasi "did not address the constitutional issues raised by the [probationary detention] statute." He does not, however, go on to tell us what these issues might be.
The only trace of a constitutional attack on A.S.C.A. § 46.2206 in defendant’s motion or supporting memorandum is a closing observation to the effect that "[i]n the end it is impossible for an individual defendant to determine from the written law what the punishment for crime will be and what rehabilitative help he will be able to receive." This observation has very little to do with the particular statutory provision to which defendant takes exception; rather, it applies as well or nearly as well to almost any modem statutory scheme providing for the punishment of crimes. The laws of American Samoa, without A.S.C.A. § 46.2206, provide not only for imprisonment and fines but also for parole and probation, which may be subject to a variety of conditions, some specified in the statute, some not. The law also provides for pardons at the entire discretion of the Governor. There is no way that a person who is thinking about committing a crime can know in advance exactly which combination of these punishments and exceptions to punishments he may receive.
What everyone can know, and is entitled to know, is that if he is convicted of a class D felony he can be sentenced to serve no more than five years in jail and to pay no more than a $5000 fine. Whether a particular person will actually serve or pay less than these maximum amounts is subject in varying degrees to the discretion of the Court, of the Governor, of the parole board, and of the people who happen to be running the prison at the time the person is sent there. The "unpredictability factor" posed by the additional discretion given the Court by A.S.C.A. § 46.2206 is certainly no greater than that inherent *125in the pardon power, in the institution of parole, or in probation itself. Defendant had exactly the same notice at the time he committed his crime that he might receive probationary detention as that he might be sentenced to pay a fine or that he might become eligible for parole and yet not be paroled. That he could not know for sure about any of these things does not render the statutes governing them unconstitutional.5
IV. Departure from the Territory as a Condition of Probation
At the conclusion of his twenty months of detention in the correctional facility, defendant is to serve the remainder of his probationary period (about three years and six months) outside the Territory. Defendant now raises a host of objections to this condition.
Many of these objections find some support in cases decided by United States courts, which have generally held that it is beyond the power of a sentencing court to order that the defendant leave the jurisdiction.6 Such orders, however, have been a regular feature of *126criminal sentences in American Samoa for many years.7 There are no reported judicial opinions explaining why American Samoa does not follow the majority rule in the United States; this is because the local practice does not appear to have been challenged until quite recently.8
We must therefore canvass the reasons adduced for the majority rule in order to decide whether these reasons are persuasive in light of the laws and social conditions in force in American Samoa.
*127
A. Cruel and Unusual Punishment
One case, and only one, has held that a condition requiring a defendant to leave the United States is unconstitutional as "either a ‘cruel and unusual’ punishment or a denial of due process of law. ” Dear Wing Jung v. U.S., 312 F.2d 73, 76 (9th Cir. 1962). The court stated that the condition was "equivalent to a ‘banishment’ from this country and from [appellant’s] wife and children, who will presumably remain here." Id. The holding was announced without further analysis and without citation of precedent or of any other source tending to shed light on whether such "banishment" was forbidden by the Eighth Amendment to the United States Constitution. The Court appears to have regarded it as self-evident that the treatment afforded the appellant, apparently an alien of Chinese extraction who had been convicted of making a false statement in an immigration hearing, was outrageous and therefore unconstitutional.
As has been noted by later courts and commentators, the "cruel and unusual" part of the Dear Wing Jung holding is without precedent and is difficult to reconcile with the historical bases of the Eighth Amendment. See, e.g., U.S. v. Martin, 467 F.2d 1366, 1368 (7th Cir. 1972) (citing Gordon & Rosenfeld, Immigration Law and Procedure, at § 9.22); 21 Am.Jur.2d, Criminal Law §§ 624, 627. Indeed, far from being considered cruel and unusual at common law, "banishment and deportation to criminal colonies was a common method of punishment in England." People v. Baum, 231 N.W. 95, 96 (Mich. 1930); see Annot., 70 A.L.R. 100. Moreover, "[d]eportation of the nationals of foreign countries is a popular method of punishing undesirable aliens who commit crimes against the United States." Baum, supra, 231 N.W. at 96.
This last observation by the Baum court is important. If it were truly "cruel and unusual" to send someone back to his home country because he had committed a crime, then such a requirement should be no less unconstitutional if imposed by an executive or administrative agency than if by a court. Yet the United States Immigration and Naturalization Service regularly deports people because they have been convicted of crimes. See 8 U.S.C. § 1251(a)(5), (11), (14), (15), (16). So does the Attorney General of American Samoa upon the recommendation of the territorial Immigration Board. See A.S.C.A. § 41.0616(4), (6), (9), (10), (11), (16). Although there are, as we shall discuss, persuasive arguments that judicial "banishment" of a criminal may be importantly different than "deportation" of the same criminal by an immigration board, these arguments have more to do with the sources and limitations *128of institutional authority than with the nature of the punishment itself. The mere fact that a person who has committed a serious crime should be required on that account to return to his own country is not, absent extraordinary circumstances, either cruel or unusual.
B. Other Constitutional Arguments
Much the same can be said for defendant’s contention that requiring him to spend part of his probationary period outside the Territory violates his "due process rights, travel rights, and .... equal protection rights." Defendant provides neither analysis nor authority for these assertions; deportation of convicted criminals under the immigration laws has consistently withstood challenges on all of the grounds now raised.
Equal Protection
Under the law of the United States, "the alien in several respects stands on an equal footing with citizens, but in others has never been conceded legal parity with the citizen." Harisiades v. Shaughnessy, 342 U.S. 580, 586 (1952) (footnotes omitted). Matters having to do with entering, remaining in, and leaving the country are perhaps the most important area of inequality; unlike the citizen, the alien finds himself in an "ambiguous status within the country, ” the continuation of which "is not his right but is a matter of permission and tolerance." Id. at 586-87. Thus, it is well settled that the federal government can deport an alien for committing a crime or engaging in other undesirable conduct, although a citizen who did exactly the same thing would be allowed to remain in the country. See, e. g., Harisiades, supra; LeTourneur v. Immigration and Naturalization Service, 538 F.2d 1368 (9th Cir. 1976); Van Dijk v. Immigration and Naturalization Service, 440 F.2d 798 (9th Cir. 1971). Indeed, it is now generally recognized that judicial invalidation of certain state laws discriminating against aliens has more to do with "the paramount federal power over immigration and naturalization" than with equal protection proper. Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976); see Toll v. Moreno, 458 U.S.1 (1982); Foley v. Connelie, 435 U.S. 291 (1978).
American Samoa, unlike the fifty states and the other territories of the United States, is specifically excluded from the scope of the federal immigration laws and has, pursuant to authority delegated by Congress, enacted its own such laws. See 8 U.S.C. § 1101(13), (29), (36), (38); A.S.C.A., Title 41. Unlike a state government, which is *129precluded by "the paramount power over immigration and naturalization" from having its own immigration laws, the government of American Samoa has the same authority — leaving aside for the moment the question of which branch or branches of government may exercise such authority — to discriminate between citizens and aliens as is possessed by the government of the United States. With respect to deportation for crime, the territorial government has long exercised such authority; the present deportation statute and its predecessors are similar in form and substance to the federal statute. See A.S.C.A. §§ 41.0616-17; 9 A.S.C. § 377 (1973 ed.); XXIV Code Amer. Samoa, 1961 ed., § 24.0247, enacted by P.L. No. 12-50 (1972); XXIV Code Amer. Samoa, 1961 ed., § 24.0117 (repealed 1972).
Assuming but not deciding that the federal equal protection clause is susceptible of any application at all to the immigration laws of American Samoa,9 neither that provision nor any paramount interest of the federal government is offended by treating aliens differently from citizens with respect to the right to remain in the Territory after committing a crime.10
*130
Due Process
For the same reasons that requiring an alien to leave the country does not deny him the equal protection of the laws, "there is no substantive due process right not to be deported." Linnas v. Immigration and Naturalization Service, 790 F.2d 1024, 1031 (2d Cir. 1986); see Harisiades, supra, 342 U.S. at 590-91. Defendant does, of course, have the right not to have his liberty denied or abridged without procedural due process, but he has not suggested any defects in the procedure by which he was sentenced. Nor can we think of any. Defendant was represented at all stages of this criminal proceeding by competent counsel. He was provided with notice and an opportunity to be heard: the pre-sentence report recommended that defendant be required to serve part of his probation outside the Territory and gave specific reasons for this recommendation. Counsel had access to the pre-sentence report before the hearing and did in fact address some aspects of the report. By means of the present motion, moreover, defendant has been afforded a second opportunity to have the Court consider de novo all his objections to the sentence. Due process has been satisfied.
*131
Right to Travel
It is undeniable that the defendant’s sentence restricts his freedom to travel, as criminal sentences tend to do. What has been called the "right to travel," however, has generally been grounded in the Privileges and Immunity Clause of the United States Constitution (art. IV, § 2) or in other provisions having to do with the peculiar inappropriateness of barriers to free passage of goods and people within a federal union. See generally Zobel v. Williams, 457 U.S. 55, 71-81 (1982) (O’Connor, J., concurring); Lutz v. City of York, 899 F.2d 255, 258-66 (3d Cir. 1990), and authorities cited therein. Perhaps the central feature of the "unorganized and unincorporated" status of American Samoa, however, is that the Territory is not part of the federal system and is not intended for incorporation therein.11 This Territory has its own immigration laws, its own customs authorities, even its own tariffs on products imported from the United States. If the constitutional provisions giving rise to the "right to travel" applied in American Samoa and meant the same things here that they do in New York or Minnesota, all these laws would be unconstitutional.
Moreover, the United States Supreme Court "has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel." Califano v. Aznavorian, 439 U.S. 170, 176 (1978) (emphasis added). The right to travel among the several states is a substantive constitutional right and is "virtually unqualified," but ”[b]y contrast, the ‘right’ of international travel has been considered to be no more than an aspect of the ‘liberty’ protected by the Due Process Clause." International travel can therefore "be regulated within the bounds of due process." Id. (quoting Califano v. Torres, 435 U.S. 1, 4 n.6 (1978)). Insofar as we can determine, the only cases in which restrictions on international travel have been found to deny due process have involved restrictions apparently designed to restrict disfavored speech or political association. See Aptheker v. Secretary of State, 378 U.S. 500 (1964); Kent v. Dulles, 357 U.S. 116 (1958). No such values are implicated here.
*132Finally and most importantly, the freedom to travel is perhaps the most obvious of the freedoms a person is liable to lose when he is convicted of committing a crime. It would not be an unconstitutional abridgement of a convict’s right to travel if he should be sentenced to serve five years in a penitentiary that happened to be outside the Territory. Olim v. Wakinekona, 461 U.S. 238 (1983). Nor, as we have observed, would it violate such a right if the immigration authorities were to deport him immediately upon his release from prison and forbid him ever to return. Harisiades, supra. A fortiori, a requirement that a convict spend part or all of his probation outside the Territory does not unconstitutionally abridge any such right. Cf. Bagley v. Harvey, 718 F.2d 921, 924-25 (9th Cir. 1983):
There can be no doubt that [defendant’s] right to interstate travel was extinguished upon his valid convictions and imprisonment. . . . Since parole in a foreign state is clearly less punitive than imprisonment in a foreign state, it cannot be deemed unconstitutional.
See also People v. Ison, 346 N.W.2d 894, 896 (Mich. App. 1984) (citations omitted):
A criminal conviction constitutionally deprives the defendant of much of his liberty; convicts retain some constitutional rights, but those rights are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. . . .A probationer retains only those rights which are consistent with his probationary status. . . .A condition of probation restricting the probationer’s right to travel may therefore be imposed without violation of the constitution.
In sum, the problem with "judicial banishment" is clearly not that it violates an individual right of the convict to remain in the jurisdiction where he committed his crime. Rather, the problems found by United States courts have had to do with federalism and with the allocation of powers among the co-ordinate branches of government.
*133
C. Federalism, Separation of Powers, and Statutory Interpretation
State courts are agencies of state governments, which have no power to regulate interstate or international immigration. Neither a state court nor any other state agency can require people to leave the country, because the Constitution commits exclusive power over international relations to the federal government. Nor can such an agency require people to leave the state, because open interstate borders are deemed an essential element of the federal union ordained by the Constitution:
The American states are not supreme, independent, sovereign states in relation to those things delegated by the people to the federal government, though the states are all in the Union on the basis of equality of political rights. Independent national states have a right to protect their political institutions, their people, and their independent existence by excluding legally and forcibly undesirable foreigners. This is the basis of the laws of the United States restricting immigration. To permit one state to dump its convict criminals into another would entitle the state believing itself injured thereby to exercise its police and military power, in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissention, provoke retaliation, and disturb that fundamental equality of political rights among the several States which is the basis of the Union itself.
Baum, supra, 231 N.W. at 96.
Although American Samoa is not supreme, independent, or sovereign, it does bear a different relation to the federal union than do the several states of that union. Some aspects of this relationship would appear disadvantageous: for instance, American Samoans have no voice in the election of the President or of voting members of Congress, cannot generally travel to the United States without passports, and may be required to pay United States customs duties on goods they bring into the United States. In other respects this unique relationship permits governmental institutions in American Samoa to do things that cannot be done by equivalent institutions of state government. Thus, for example, the High Court of American Samoa, like the federal courts of the United States but unlike any state court, has admiralty jurisdiction; the territorial *134Senate is a council of chiefs selected by traditional processes rather than by direct popular election; and, as we have already observed, the territorial government can and does regulate immigration and travel, not only between American Samoa and the United States but also between American Samoa and foreign nations.
With respect to questions having to do with travel in and out of the jurisdiction, therefore, the High Court of American Samoa is not in the position of a state court. This Court is an agency of a government which does have the power to "exclud[e] legally and forcibly undesirable foreigners." Baum, supra, 231 N.W. at 96. In this respect the High Court is analogous to a federal court.
There appears to be no constitutional obstacle to an order by a federal court that probation be served outside the jurisdiction in which the crime was committed, and federal statutes clearly contemplate such orders.12 In Bagley, supra, a federal parolee was required to move from Washington to Iowa, apparently because he had threatened his former wife and the witnesses at his trial. In United States v. Cothran, 855 F.2d 749 (11th Cir. 1988), the court of appeals held that a federal district court had not abused its discretion by requiring a probationer who had ”frequent[ed] many high crime areas" in his home county to remain outside the county for two years unless permitted by his probation officer to return.13
Federal court orders that a probationer remain outside the United States during the term of probation, however, have been held to be outside the scope of judicial authority. United States v. Jalilian, 896 *135F.2d 447 (10th Cir. 1990); United States v. Abushaar, 761 F.2d 954 (3d Cir. 1985); United States v. Hernandez, 588 F.2d 346 (2d Cir. 1978); United States v. Castillo-Burgos, 501 F.2d 217 (9th Cir. 1974). This is because "Congress has enacted a detailed scheme for the admission and deportation of aliens" and has "placed the Attorney General in charge." Hernandez, supra, at 351; see Jalilian, supra, at 448-49; Castillo-Burgos, supra, at 219-20.
The federal immigration law charges the Attorney General with the administration and enforcement of the chapter of the United States Code pertaining to immigration and also of all other laws "relating to the immigration and naturalization of aliens." Hernandez, supra, at 351, quoting 8 U.S.C. § 1103(a). Significantly, the federal statute also provides:
In any case in which an alien is ordered deported from the United States under the provisions of this chapter, or of any other law or treaty, the decision of the Attorney General shall be final.
8 U.S.C. § 1252 (emphasis added). This final authority of the Attorney General would appear to apply even when someone has been ordered to leave the country under an "other law or treaty" not specifically pertaining to immigration or naturalization. If, therefore, a federal court order that a probationer leave the country should be regarded as a lawful exercise of judicial authority under the probation statute, the order might then be subject to review and possible veto by the Attorney General under 8 U.S.C. § 1252. This scenario "raises difficult questions about possible conflicts between judicial independence and the Attorney General’s final authority under section 1252" and therefore "suggests that the probation statute . . . should not be read to authorize de facto deportation orders." Jalilian, supra, at 448-49.
It is important to notice that the exclusive power of the Attorney General over admission and deportation of aliens, although sometimes described in terms of "separation of powers," is a matter of statutory interpretation rather than constitutional command. The federal cases do not stand for the proposition that there is anything inherently "executive" rather than "judicial" about ordering a convicted criminal to leave the country. On the contrary, "Congress might have given the courts a role in determining deportability" but "chose not to." Hernandez, supra, at 351.
*136The federal decisions, with the exception of Dear Wing Jung, also seem to recognize that in the absence of a pre-emptive commitment of exclusive power to another branch, an order that a probationer move from the scene of his crime to the place of his birth and citizenship would at least sometimes be within the general authority of courts to grant probation "upon such terms and conditions as the court deems best." 18 U.S.C. § 3651, quoted in United States v. Martin, 467 F.2d 1366, 1368 n.4 (7th Cir. 1972); see also Hernandez, supra, at 351-52.14 Indeed, federal appellate courts have sometimes upheld conditions of probation that required the probationer to leave the country "voluntarily" in exchange for a suspension of part or all of the sentence, provided that the probationer is not barred from re-entering the country during the probation period with the permission of the immigration authorities. Martin, supra; United States v. Janko, 865 F.2d 1246 (11th Cir. 1989); see United States v. Mercedes-Mercedes, 851 F.2d 529 (1st Cir. 1988) (court could forbid alien probationer who had left the country from reentering without permission of the "pertinent legal authorities" but could not give the probation officer a veto power over such re-entry). Moreover, the judicial power over probation has generally been found broad enough to validate conditions that were quite onerous and quite restrictive of what would otherwise have been the probationer’s rights under other laws, provided that such conditions were reasonably calculated either to rehabilitate the defendant or to protect the public. See, e.g., United States v. Tonry, 605 F.2d 144 (5th Cir. 1979) (probationer barred from being a candidate for public office); United States v. Tolla, 781 F.2d 29 (2d Cir. 1986) (probationer barred from teaching religion to young people).
The decisions holding that this otherwise broad power stops at the water’s edge have relied not only on the explicit language of the federal immigration statutes, but also on a long and unbroken tradition that the power to expel aliens is "a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control." Jalilian, supra, at 448 (quoting Fiallo v. Bell, *137430 U.S. 787, 792 (1977)); see Hernandez, supra, at 351. This tradition, in turn, has to do with the relationship of immigration policy to "our foreign relations and the national security." Galvan v. Press, 347 U.S. 522, 530 (1954). Indeed,
any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.
Harisiades, supra, 342 U.S. at 588-89.
The situation of American Samoa differs from that of the United States in two important respects. In the first place, there is no equivalent in our immigration statutes to 8 U.S.C. § 1252, the provision giving the Attorney General power to review deportation orders even when they arise under "other laws and treaties" not directly concerning immigration or naturalization. The territorial immigration statute does give the Attorney General power to "enforce and administer" those laws that do pertain to immigration and to the status of aliens, and also provides that the procedures set forth therein shall be the exclusive method for "determining the deportability of any person under this chapter." A.S.C.A. §§ 41.0103(a), 41.0614 (emphasis added). The territorial statute is altogether silent about whether anyone might ever be required to leave the Territory as a result of a procedure authorized implicitly or explicitly by some other statute. It is far from clear that the Attorney General’s power to administer those laws pertaining directly to immigration should be read to limit any power the courts would otherwise have to grant probation subject to reasonable conditions as authorized by A.S.C.A. § 46.2205.
Moreover, the tradition here with respect to judicial involvement in immigration matters is quite different than the tradition in the United States. The High Court of American Samoa has frequently imposed residence outside the Territory as a condition of probation or suspension of sentence at least since 1964 — before the enactment of the present *138immigration code or its immediate predecessor and before the promulgation of the territorial constitution.15
This difference between the historic allocation of authority among the co-ordinate branches of government in American Samoa -aid among their counterpart institutions in the United States may reflect a recognition that the territorial immigration laws have far more to do with domestic policy than with international relations. The concerns that gave rise to the tradition of exclusive control by the political branches in the United States, having to do with treaties and wars and insurrections, do not weigh heavily here; although the Territory has its own customs and immigration laws, its foreign relations generally are conducted by the government of the United States.
The sole stated purpose of the territorial immigration statute is to preserve the "limited land resources, water, sewage facilities, and educational and economic opportunities" on the seventy-six square miles that comprise American Samoa. A.S.C.A. § 41.0201. Whether the admission, exclusion, or deportation of a particular person would suit this purpose is a policy judgment left in large measure to the discretion of the executive branch. Court orders with respect to probation are designed to realize a different and substantially unrelated set of policies: the protection of the public and the rehabilitation of offenders. The Court has neither competence nor interest in second-guessing the judgment of the immigration authorities on whether the presence of a particular person represents an efficient allocation of economic resources. The sentencing judge is, however, uniquely well-situated to know whether a particular offender needs to be insulated from his past environment, his associates, his victim, or those who assisted in his prosecution and how, under the particular circumstances of his case, best to assure such insulation.
The executive power to deport "undesirables" and the judicial authority over probationers differ markedly not only in purpose but also in scope. Persons deemed deportable under the immigration statute are almost invariably deemed excludable from readmission. See A.S.C.A. §§ 41.0615-41.0616. Such persons may, however, in many *139circumstances be readmitted at the discretion of the Immigration Board and the Attorney General. See, e.g., A.S.C.A. §§ 41.0613, 41.0617. The practical result is that the Attorney General often has discretion to deport someone and keep him out for life. The Court’s power over probationers, in contrast, is strictly limited to the term of the probation, which may not exceed five years. A.S.C.A. § 46.2204. At the end of this time the probationer may be readmitted by the Immigration Board and the Attorney General whether or not the Court considers readmission to be a good idea.
There is, in other words, no necessary conflict between the two statutory schemes relating to probation and to immigration, although they may sometimes generate similar results. The very worst that can be said is that some probation orders might seek to reform an offender or to protect his victims at the expense of what would otherwise be considered an optimal allocation of water, sewage facilities, or educational opportunity; or that some administrative deportation orders might seek to conserve such resources by ridding the Territory of convicts who, from the standpoint of rehabilitation and public protection, might just as well be allowed to stay. These risks are a far cry from the spectre of interference with "foreign relations, the war power, and the maintenance of the republican form of government." Harisiades, supra, 342 U.S. at 588.
In any event, the judiciary has exercised this facet of the probation power for a period spanning at least ten Chief Justices, even more Attorneys General, and any number of Legislatures. Its exercise has had but little quantitative effect on immigration policy taken as a whole, but has figured importantly in the administration of justice. In American Samoa, as in the United States, "the slate is not clean." Galvan v. Press, supra, 347 U.S. at 531.
Since 1964 the Fono has substantially revised and/or recodified the immigration statutes on at least eight occasions. Act of 10 Jan 1972, P.L. No. 12-50; Immigration Act of 1984, P.L. No. 18-52; P.L. No. 10-65 (1968); P.L. No. 11-58 (1969); American Samoa Criminal Justice Act of 1979, P.L. No. 16-43 § 2 (1979); P.L. No. 18-16 § 1 (1983); P.L. No. 20-15 § 1 (1987); P.L. No. 20-56 (1988). It would be fatuous to suppose that the members of the Fono have been unaware during all this time of the frequent and open resort by the judiciary to conditions of probation such as the one to which defendant now objects. Had the Fono disapproved of this long-standing judicial application of the probation statute (or of the equally obvious practical construction of the *140immigration statute as imposing no restriction on judicial power to prescribe the conditions of probation), it had the power to abolish the practice by statute. On the contrary, however, the only legislative actions that can be construed as expressing legislative approval or disapproval of judicial policy with respect to probation were the 1983 and 1987 amendments to A.S.C.A. § 46.2206. These amendments sought explicitly to increase the flexibility afforded the judiciary with respect to probation, and implicitly abolished any previous requirement that terms of probation be designed exclusively to rehabilitate. See Atuatasi, supra, 9 A.S.R.2d at 78.
Legislative inaction in such circumstances strongly suggests agreement with, or at least acquiescence in, the judicial interpretation of the laws in question. See Bob Jones University v. United States, 461 U.S. 574, 600-01 (1983). When the legislature re-enacts a statute or adopts amendments to it "without a suggestion of disagreement" with a prior judicial construction, there is an even stronger presumption that the legislature has adopted the prior construction. Union Electric Co. v. Illinois Commerce Commission, 396 N.E.2d 510, 518 (Ill. 1979); see Merrill Lynch Pierce Fenner & Smith v. Curran, 456 U.S. 353, 382 n.66 (1982), and authorities cited therein; 2A Sutherland Statutory Const. §§ 49.03-05, 49.09-10 (4th ed. 1984).
The practical construction long placed on the American Samoa probation and immigration statutes,16 together with the Fono’s conspicuous failure for least a quarter of a century to restrain the Court from imposing conditions like the one now at issue, convince us that such conditions encroach neither upon the legislative power to prescribe punishment nor upon the powers delegated to the executive branch by the immigration statute.
D. Public Policy
Having determined that the disputed condition of defendant’s probation is neither unconstitutional nor prohibited by law, we are left to decide whether such a condition is a reasonable exercise of our probation power.
*141The reported opinions rejecting "judicial banishment" as a sentencing option seem to have been motivated not so much by the specific constitutional and statutory arguments raised therein as by related questions of public policy. Some courts have gone so far as to lay 'town a rule that it is always contrary to public policy for one jurisdiction to "dump" a convict on another. See, e.g., State v. Doughtie, 74 S.E.2d 922 (N.C. 1953); Johnson v. State, 672 S.W.2d 621 (Tex. App. 1984). The forcefulness with which this rule is stated tends to vary inversely with the analysis offered in its support; in most cases the court simply invokes a term such as "dumping" or "banishment" and considers the point won; See, e.g., Dear Wong Jung, supra; Johnson, supra. In other cases, however, the anti-dumping rule has been explained by reference to three main arguments:
1)That requiring a person to leave or stay out of the state is inconsistent with federalism. This concern was best articulated by the Michigan court in Baum, supra, discussed in Part IV(C) of the present opinion.
2) That such a condition cannot be consistent with rehabilitation, since the Court cannot supervise the probationer once he is outside the Court’s jurisdiction, and cannot be consistent with public protection, since the probationer is no less likely to commit crimes in one jurisdiction than in another. See Abushaar, supra, at 761 F.2d at 959-60, and authorities cited therein.
3) That "banishment," although perhaps not a cruel and unusual punishment within the meaning of the Constitution, is nevertheless a harsh one. "Through the ages the lot of the exile has been hard." Doughtie, supra, 74 S.E.2d at 924; see Abushaar, supra, 761 F.2d at 959.
For reasons we have discussed, federalism is not a major concern in American Samoa. It is not a concern at all in the present case, since the defendant would appear ineligible for admission into the United States {see 8 U.S.C. § 1182(a)(9)) and will presumably return to his native Western Samoa.
The remaining arguments are not without force, but they state only one side of the case and they depend heavily on the circumstances.
One of the most important circumstances of the present case is that the defendant chose to commit his crime in a tiny jurisdiction in *142which, if neither incarcerated nor "banished," he is virtually certain to have frequent chance encounters with his terrified fourteen-year-old victim and with members of her family. The condition that defendant leave the Territory was imposed by the Court primarily in the belief that the young victim of this crime is entitled to a longer respite from contact with the defendant than can be afforded by the twenty-month detention period. This concern is manifestly related to public protection, at least in light of the pre-sentence investigator’s findings about the victim’s mental state. Although it is always possible that the defendant could commit another crime no matter where he might be, our primary concern at the time of sentencing was that the defendant would do further harm to his victim in American Samba, whether or not he should commit another crime.
Nor is it always true that a condition can have no rehabilitative effect simply because it will not be administered by a probation officer. In this case it was deemed important for the defendant’s own good to insulate him from contact with the victim’s family and with his companions in crime.
Finally, the Court was of the opinion that a sojourn in his native village in Western Samoa might expose the defendant to a system of values more wholesome, and of social controls more effective, than those at work in his previous environment. Western Samoa is a more traditional country than American Samoa; it is more difficult there for a young man to avoid the demands of the extended family, church, and matai system, as the present defendant has been able to do thus far. His home life in the village of Fagatogo prior to his incarceration was almost certainly a major contributing factor to his alcoholism and to his related criminal conduct. We infer from the pre-sentence report that there are several extended families, if not in his native village of Lepa then elsewhere in Western Samoa, with whom defendant has a traditional right to live in exchange for service, obedience, and good conduct. We can do far more good for him by maximizing the likelihood that he will be exposed to a system that inculcates these virtues than by letting him resume his former life in Fagatogo subject to the requirement that he meet with a probation officer once a month.
Recent cases have recognized that rehabilitation may sometimes be served by keeping a person away from the environment that contributed to his crime — and that putting some distance between the criminal and his victim may be justified as reasonably related to public protection. Thus, in Cothran, supra, a probationer was required to stay *143out of his home county, which includes Atlanta, because his presence in certain criminal haunts in that city had contributed to his criminal behavior. In Bagley, supra, the court upheld a decision by parole authorities to require a parolee who had threatened his former wife and certain witnesses against him to move from Washington to Iowa. In Cobb v. State, 437 So. 2d 1218 (Miss. 1983), the probationer was required to stay 125 miles away from his home county for a period of five years; the defendant had been convicted of an aggravated assault upon a relative who lived three-eighths of a mile away from him, and the court found this proximity to be a likely source of further trouble among the relatives. See also State v. Collett, 208 S.E.2d 472 (Ga. 1974) (probationer required to remain'outside seven-county area); Parrish v. State, 355 S.E.2d 682, 684 (Ga. App. 1987) (banishment of probationer from the judicial circuit upheld as "prompted by a rational concern for the safety of others in the community and for defendant’s own safety"). The 1984 amendment to the federal probation statute, 18 U.S.C. § 3563(b)(14), also specifically recognizes that such conditions can be reasonably related to the purposes of probation.
A requirement that a probationer live outside American Samoa is equivalent in many ways to a requirement that he live outside a particular township or a very small county in the United States. The practical effect of the order in the present case is that the defendant will almost certainly reside sixty miles away on his native island of Upolu. Although there is an international border between Upolu and the adjacent island of Tutuila, the two islands share a common language, history, and culture. Our order that the defendant move from the relatively large, modem, and quasi-urban village of Fagatogo to Lepa or some other village in Western Samoa is calculated to achieve roughly the same effects as the requirement that the defendant in Cothran move from Atlanta to a neighboring rural or suburban county.17
*144Nor (although this would not necessarily be dispositive) can we discern that the condition will bring about any important changes in defendant’s immigration status. He would presently appear to be deportable under A.S.C.A. § 41.0617(4) as a person who has been "convicted of a crime involving moral turpitude committed within 5 years after any entry," and if he were out of the Territory he would be excludable as a convicted felon under A.S.C.A. §41.0615(8). In either event the Attorney General may have discretion to allow him to return and/or remain. See A.S.C.A. § 41.0617. Any other practical effects on defendant’s life are likely to be wholly salutary.
We conclude that the condition that defendant reside outside the Territory during part of his probation is not unduly harsh and is reasonably related to the purposes of probation. We therefore decline to revoke the condition.
V. Conclusion and Order
Insofar as the motion is intended as a motion for new trial under A.S.C.A. § 46.2402(a) or is intended to be in lieu of such a motion, it is denied for want of jurisdiction.
Insofar as the motion is addressed to our discretion under A.S.C.A. § 46.2205 to revoke or modify the conditions of probation at any time during the period of probation, it is denied on the merits.
It is so ordered.
In Fanene the defendant argued that he had the right to appeal an allegedly unlawful sentence some six months after it had been announced, on the ground that under the Revised Constitution of American Samoa "the legislature had no power to enact C.A.S. 3.0502 [the then-applicable thirty-day time limit for appeals] or any laws governing the jurisdiction, operations or procedures of the Judiciary." 4 A.S.R. at 961. The Appellate Division rejected this contention and held that the sentence could only have been appealed within thirty days of the time it was announced. Id. at 964. The Appellate Division cited the ten-day motion for new trial statute, now codified as A.S.C.A. § 43.0802(a), as a further legislative restriction on the right to appeal, but found it inapplicable because it had been enacted subsequent to the date on which the judgment and sentence in the case then before the Court had been announced. Id. at 962-63.
In rejecting the contention that detention under A.S.C.A. § 46.2206 must be "rehabilitative” rather than "retributive," the appellate opinion in Atuatasi referred to the legislative history of the statute "as detailed by the court below." 9 A.S.R.2d at 78. That account of the legislative history is reported in the trial court opinion at 8 A.S.R.2d at 60-61. It includes the observation that prior to 1987
[a] convict’s access to various forms of early release depended more on having a personal relationship with some government official inside or outside the prison — for a time it seemed that almost any official would do, and that almost every prisoner had some such relationship — than with any formal criteria.
Id. at 60. The use of probationary detention in the present case, in order to deny a serious sex offender the possibility of such early and unsupervised release from incarceration, was squarely within the legislative mandate found by the trial and appellate courts in Atuatasi.
See, e.g., In re A Juvenile, UTC 103186 (partial transcript of Initial Appearance, November 28, 1990), in which the following exchange took place between the Chief Justice and a man who had accompanied his minor child to a traffic appearance:
THE COURT: Sir, what’s your name?
MR. TALAMOA: Paulo Talamoa.
THE COURT: Aren’t you supposed to be serving a court sentence at this time?
MR. TALAMOA: Yes, Your Honr. I’ve been released on work release, Your Honor.
THE COURT: Who released you on work release?
MR. TALAMOA: I do not have an understanding of that, but I think it’s from the Commissioner and also from the Correctional Facility.
THE COURT: How long have you been on work release?
MR. TALAMOA: It’s not a year now.
About eighteen months before, the Chief Justice had sentenced Mr. Talamoa to serve forty years in the Correctional Facility for two counts of Murder in the Second Degree. American Samoa Government v. Talamoa, CR No. 80-88.
Defendant’s argument that no condition of probation is valid unless it will help to rehabilitate the probationer relies heavily on the fact that our probation statute, A.S.C.A. § 46.2201 et seq., is modeled after the recently repealed federal probation statute. Contrary to defendant’s position, however, the federal circuit courts were unanimous in recognizing that a condition was valid under the former statute if it served the purpose of rehabilitation or public protection. See, e.g., United States v. Stine, 646 F.2d 839, 843 n.7 (3d Cir. 1981); United States v. Tonry, 605 F.2d 144, 148 (5th Cir. 1980); United States v. Torrez-Flores, 624 F.2d 776, 783-84 (7th Cir. 1980); United States v. Consuelo-Gonzalez, 521 F.2d 259, 263-64 (9th Cir. 1975). "Public protection" includes the protection of particular people from the probationer as well as the deterrence of future misconduct by the probationer himself ("specific deterrence"). See Tonry, supra, 605 F.2d at 148; United States v. Abushaar, 761 F.2d 954, 959 (3d Cir. 1985).
The only substantial disagreement among the circuits has been about whether a condition can be upheld on the sole ground that it is a form of punishment, or that it will deter others from committing offenses such as that of the defendant ("general deterrence"). Compare Tonry, supra, 605 F.2d at 148 with Abushaar, supra, 761 F.2d at 959. Some *124Ninth Circuit cases suggest a somewhat different test: that particular conditions can be designed primarily for public protection or even for general deterrence so long as all the conditions construed together should contribute to rehabilitation. See, e.g., Consuelo-Gonzalez, supra, at 266-67. Even the Ninth Circuit has recognized that provisions designed to rehabilitate and/or to protect the public may have an incidental punitive effect. Higdon v. United States, 627 F.2d 893, 898 (9th Cir. 1980).
Even prior to the 1987 amendment, therefore, conditions of probation were valid under A.S.C.A. § 46.2205 provided that they were reasonably related either to rehabilitation or to public protection, at least if the entire sentence considered as a whole was reasonably calculated to achieve both of these purposes. Since the 1987 amendment, moreover, sentencing judges are free to impose probation "precisely the opposite reasons" than the rehabilitation-related recitals contained in A.S.C.A. § 46.2203 and in the parallel provision of the former federal law. Atuatasi, supra, at 79.
To answer a constitutional argument hinted at even more obliquely by the defendant, there is no constitutional right to rehabilitation at public expense. Marshall v. Parker, 470 F.2d 34, 38 (9th Cir. 1972), aff'd 414 U.S. 417 (1974). Nor does the enactment of statutes authorizing the creation of particular rehabilitative programs — or, more to the present point, of opportunities for early release — give any particular criminal a constitutionally protected "liberty interest” in being allowed to participate in them. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979). Even if there were such a statutory liberty interest, it would be subject to the grant of judicial discretion contained in A.S.C.A. § 46.2205 and would entitle a convict at most to fair notice, a hearing, and perhaps a statement of the Court’s reasons for sentencing him under a regime denying access to such programs. See Greenholtz, supra, at 15-16. The Court observed all these procedures in sentencing the present defendant.
See, e.g., Dear Wing Jung v. United States, 312 F.2d 73 (9th Cir. 1962); United States v. Abushaar, 761 F.2d 954 (3d Cir. 1985); United States v. Hernandez, 588 F.2d 346 (2d Cir. 1978); Dear Wing Jung v. United States, 312 F.2d 73 (9th Cir. 1962); People v. Baum, 231 N.W. 95 (Mich. 1930), 70 A.L.R. 99 (1931); State v. Doughtie, 74 S.E.2d 922 (N.C. 1953); Johnson v. State, 672 S.W.2d 621 (Tex. App. 1984). But see United States v. Cothran, 855 F.2d 749 (11th Cir. 1988); United States v. Martin, 467 F.2d 1366 (7th Cir. 1972); State v. Collett, 208 S.E.2d 472 (Ga. 1974); Parrish v. State, 355 S.E.2d 682 (Ga. App. 1987); Cobb v. State, 437 So. 2d 1218 (Miss. 1983). See also 18 U.S.C. § 3563(b)(14) (1984 provision giving federal courts the power to impose a condition of probation that the defendant "reside in a specified place or area, or refrain from residing in a specified place or area.")
See, e.g., Government of American Samoa v. Aonga, CR No. 93-1964 (leave Territory and not return); Government of American Samoa v. Vaoga, CR No. 91-1964 (leave Territory and not return); Government of American Samoa v. Patu, CR No. 48-1966 (leave and never enter illegally again); Government of American Samoa v. Mamoe, CR No. 1001-74 (three years outside Territory); Government of American Samoa v. Moamoa, CR No. 928-73 (five years outside Territory); Government of American Samoa v. Vatuia, CR No. 157-75 (never return to Territory except to change planes or ships); Government of American Samoa v. Pauli, CR No. 138-75 (leave Territory forever); Government of American Samoa v. Wootton, CR No. 119-75 (one year outside Territory); Government of American Samoa v. Ieremia, CR No. 1081-74 (leave Territory for unstated term); Government of American Samoa v. Leilua, CR No. 51-81 (eighteen months outside Territory); Government of American Samoa v. Tunu, CR No. 39-81 (five years outside Territory); Government of American Samoa v. Fuimaono, CR No. 35-81 (two years outside Territory); American Samoa v. Uiliata, CR No. 2-86 (fifty weeks in detention, leave Territory for the remainder of five-year probation); American Samoa Government v. Haro, CR No. 8-87 (four years outside Territory); American Samoa Government v. Lloyd, CR No. 10-87 (leave the Territory after serving three years of detention and not re-enter for balance of twenty-five year sentence); American Samoa Government v. Wong, CR No. 86-88 (ninety days detention, depart American Samoa and not return during the remainder of five years probation); American Samoa Government v. Tualevao, CR No. 93-88 (two years detention, remainder of five-year probationary period outside Territory); American Samoa Government v. Fa'atiga, CR No. 29-89 (six months confinement, leave Territory for remainder of five-year probation); American Samoa Government v. Lia, CR No. 67-89 (twenty months incarceration, remainder of five year probation outside Territory). See also Government of American Samoa v. Mata'afa, CR No. 13-82 (reside with uncle on the island of Ta‘u during three year probation period, not return to island of Tutuila without permission of Court). This list is illustrative and includes only a fraction of the cases in which such a condition has been imposed.
In American Government v. Meleisea, CR No. 84-89, the Court sentenced the defendant to serve two years of probation outside the Territory. The defendant moved for a new trial on the ground that this part of the sentence was illegal. The Court then modified the sentence so as to eliminate the condition, basing its decision solely on the grounds that: (1) although originally charged with a felony, the defendant had been convicted only of a Class C misdemeanor for which the maximum jail term was fifteen days; and (2) defendant had already been incarcerated for more than fifteen days before posting bail. The Court stated from the bench, however, that conditions requiring probationers to spend some time outside the Territory were frequently imposed and were appropriate in some circumstances. Id., Hearing on Motion for New Trial, June 14, 1989.
American Samoa is an unorganized, unincorporated Territory not designated by Congress for eventual incorporation into the United States proper. Accordingly, the federal Constitution applies here only insofar as its tenets restate "those fundamental limitations in favor of personal rights" that are "the basis of all free government," or which have been specifically made applicable by Act of Congress. Dorr v. United States, 195 U.S. 138, 146 (1922); see Macomber v. American Samoa Government, 12 A.S.R.2d 29, 30 (1989) ("The extent to which the equal protection clause of the Fourteenth Amendment applies in the territory is unclear[.]"); Banks v. American Samoa Government, 4 A.S.R.2d 113, 123-28 (1987) (discussing the extent to which federal equal protection doctrine applies in American Samoa under the doctrine of Dorr and the other Insular Cases).
The Revised Constitution of American Samoa, promulgated in 1967 under the authority of the Secretary of the Interior, contains no equal protection clause.
In any event, the premise of defendant’s equal protection argument — that requiring probation to be spent outside the Territory "is merely a punitive measure" which "is only used against foreign nationals" — is incorrect. Although the imposition of such a condition on a citizen presents somewhat different constitutional, philosophical, and practical problems than in the case of an alien, this is an extraordinarily small island, and the Court has occasionally ordered a particularly troublesome or troubled convict to leave it for a while even though he was not only a resident but also a citizen.
Thus, in American Samoa Government v. Haro, CR No. 8-87, an American Samoan who had been raised in California and who had committed manslaughter shortly after returning to Samoa was required to spend a year of his probation in detention and the remaining four years outside the Territory; the record reflects that the Court expected him to reside with his grandmother in the United States.
*130In American Samoa Government v. Satele, CR No. 8-81, the defendant was found to have committed two homicides but to have been not guilty of murder by reason of insanity. The court accepted psychiatric testimony offered by defendant to the effect that temporary insanity had been triggered by the strains of living on a small island and by pressures imposed by the matai system. Among other conditions of defendant’s release from a psychiatric hospital was that he "reside with his wife in Los Angeles, California, unless granted permission to reside elsewhere."
In American Samoa Government v. Mata'afa, CR No. 12-82, a young first offender who had been born on the island of Tutuila and resided there was sentenced to serve his probation with a relative on Tau, an even smaller island about sixty miles away. Although Tau is within American Samoa, it contains only a few hundred people, few modern conveniences, and almost no opportunities for employment. A condition that a probationer reside on the far larger and more cosmopolitan island of Upolu in Western Samoa would be considered far less burdensome by most Samoans.
We express no opinion on the constitutionality of the "banishments" in Haro, Satele, and Mata ‘afa other than to observe that they suggest the Court has not traditionally viewed such conditions as punishment or as a back-door way of deporting undesirable aliens. Rather, the conditions appear to have been imposed for the same reasons we imposed a similar condition on the present defendant: for the protection of the public, with particular reference to the victim and others who may have assisted in the prosecution, and to remove the defendant from an environment found to have contributed to his criminal behavior.
See note 9, supra, and authorities cited therein. Cf. Barnard v. Thorsten, 489 U.S. 546, 552 (1989), holding the Privileges and Immunities Clause applicable to the Virgin Islands not because it applies of its own force in territories and possessions of the United States, but because "Congress has made [the clause] applicable to the Virgin Islands in the Revised Organic Act." American Samoa has no organic act.
See 18 U.$.C. § 3563(b)(14) (court may require a probationer to "reside in a specified place or area, or refrain from residing in a specified place or area"); id. § 3605 ("A court, after imposing a sentence, may transfer jurisdiction over a probationer ... to the district court for any other district to which the person is required to proceed as a condition of his probation or release . . . ."). Cf. 28 C.F.R. § 2.33(b) (a parolee should be released to the place of his residence "unless . . . another place of residence will serve the public interest more effectively or will improve the probability of the applicant’s readjustment.").
See also Alonzo v. Rozanski, 808 F.2d 637 (7lh Cir. 1986), upholdingthe refusal of a probation officer to let a paroled drug offender move to a house he had bought in Florida, where there were already too many drug offenders for probation officers to supervise. "Alonzo’s control of abode was extinguished, for the entire term of his sentence, by the judgment of conviction." Id. at 638. In Rizzo v. Terenzi, 619 F.Supp. 1186 (E.D.N.Y. 1985) (upholding the refusal by another probation officer to allow another convicted drug importer to visit his family home in Florida).
18 U.S.C. § 3651 has recently been repealed and replaced by 18 U.S.C. § 3563, quoted in note 12 supra, which explicitly gives courts the power to require probationers to reside in or outside of particular places. However, in Jalilian, supra, the Tenth Circuit held that even this language should not be read as a grant of power to require a probationer to leave the country. As discussed in the text supra, this holding rested not on the language of the new probation statute itself, but on the possibility that "de facto deportation orders” might be reviewable by the Attorney General and thus raise questions about the independence of the judiciary. Id. at 448-49.
We do not know just when the practice began, because the records of our criminal cases before the mid-1960s are practically nonexistent. The presiding judge in the two 1964 cases was Chief Justice Morrow, who had held that office since 1937; to say that a practice or procedure in the High Court of American Samoa dates back to Morrow is to say that the memory of man runs not to the contrary.
It is a measure of the breadth of the consensus behind this construction that the Attorney General, whose power the defendant says we are usurping, has frequently recommended that the Court require convicts to spend part or all of their probationary period outside the Territory.
Although it was and is our intention that defendant should go to live with his extended family in Lepa or in some similar village, our order does not strictly require this. Rather, the defendant is effectively given the run of Western Samoa, which includes over three-fourths of the population and nine-tenths of the land area of Samoa. It is even theoretically possible, although most unlikely, that he could find some other country willing to permit residency by a non-citizen recently convicted of a felony. In this respect our order is similar to the one in Cothran, which excluded the defendant from the county that included Atlanta but not from every other place in which he might find similar criminal opportunities. As the Eleventh Circuit observed in Cothran, the mere possibility that the defendant might replicate in another place the kind of life he had in the place from which the probation order excludes him does not render the order invalid. Rather, ''such remarks merely invite the court to question whether [the] present sentence is too lenient." Cothran, *144855 F.2d at 753. We would consider modifying our order to require residence in a particular village should either the Government or the defendant so move. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485946/ | On Motion to Suppress and Dismiss:
The defendant filed a series of pre-trial motions.
I. Suggestive Showup
. The defendant is charged with a number of sexual and related offenses. Among other things, he complains that he was identified by the complainant witness on a one-on-one confrontation at the police station, in circumstances which were unnecessarily suggestive and so unfair as to deny him of rights to due process. He moves to suppress this identification as inadmissible evidence, as well as any subsequent identification by the complainant witness.
Due process mandates that eyewitness identification evidence is not reliable and must be suppressed "if suggestive identification procedures have led to a very substantial likelihood of irreparable misidentification." Kirby v. Illinois, 406 U.S. 682, 691 (1972); see also Simmons v. United States, 390 U.S. 377, 384 (1968). However, even an impermissibly suggestive identification procedure does not render an identification inadmissible if, in the totality of the circumstances, the identification was nonetheless reliable. Manson v. Braithwaite, 432 U.S. *14798 (1977). The Supreme Court here concluded that "reliability is the linchpin in determining admissibility of identification testimony." Id. at 114. In this connection, the factors to be considered include
the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainly demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Id.
Although, as defendant points out, a one-on-one showup has been said to be suggestive, Stovall v. Denno, 388 U.S. 293 at 302 (1967), under the totality of the circumstances of the matter before us, we are satisfied that the identification of the defendant by the complainant was not so suggestive as to constitute a violation of due process. The evidence clearly demonstrated reliability. According to Officer Leota, he took the complainant to a room where the defendant was waiting and without his prompting or saying anything to her, she identified the defendant as her assailant. In addition, it was equally clear on the evidence that the complainant knew exactly who she was looking for even before she went into the identification room. At the vicinity of the crime, she described her attacker to Officer Leota as having black hair, a black moustache, worn blue shorts, and certain scratch marks on his body. She also related to the officer that she had even seen her assailant before the crime occurred, at a time when he tried to accost her while she sought refuge in a small shack to avoid a stone throwing melee she earlier encountered while trying to get home from work. She further disclosed that a third party, which she actually pointed out to officer Leota at the scene, was there also at the shack thwarting the defendant’s attempts to get to the complainant. That third party, Vine Sauiluma, was able to give Officer Leota a name and a lead to the defendant’s home. This information was given to the officers immediately after she was found running naked towards a police unit calling for help and complaining of rape.
We find that the defendant’s claim about suffering an unduly suggestive or unfair showup not to be meritorious and, accordingly, deny his motion.
*148
II. Unlawful Seizure
Defendant also moves to suppress a certain written statement which he made at the police station and certain photographs taken of him that evening by the police. The motion is based upon the assertion that defendant was illegally under arrest when taken into custody without a warrant, and that, therefore, the fruits of that unlawful seizure are excludable.
For reasons given, this motion is also denied. The evidence shows that the defendant had voluntarily accompanied the officers to the police station on the morning in question. When the defendant left home with the police officers, it was with his father’s knowledge. Indeed, it was his father who woke the defendant, together with another relative who was'also sought by the officers for questioning. The ride to the station was in a light-hearted mood of jest; the defendant and his relative were laughing and joking on the way; they asked the officers to stop for cigarettes and the officers accommodated their request.
The evidence also shows that the statement sought to be suppressed was voluntarily given by the defendant. The defendant was, at the time, a college student. He was asked by Officer Leota whether he wished to make a statement, and he agreed. However, prior to his making a statement, Officer Leota gave the defendant the Miranda warnings and he supplied a written statement notwithstanding. Unless accompanying an officer to the station is per se a custodial situation, we saw nothing in the evidence suggesting overbearance on the part of the police.
The exclusionary rule came about as a prophylactic measure against police excessiveness. See Mapp v. Ohio, 367 U.S. 643, 656 (1961).1 The rule has not, however, evolved into some sort of predisposition against anything involving police action and we refuse to draw inferences where there are none to be drawn. The defendant’s argument that the police could have done better — they could have undertaken a rule book line-up — is hardly a failing of constitutional proportions. On the other hand, arresting Officer Leota impressed us very much as someone who was earnestly attempting to do a methodical *149job. We conclude on the facts that the defendant had every opportunity to freely make up his own mind.
The next question is whether the defendant was wron:: fully arrested without a warrant. The evidence revealed that after he was identified and photographed and after making his statement, the defendant was advised by Officer Leota that he was under arrest. We need not examine the validity of this arrest for purposes of this suppression motion since (assuming arguendo that the arrest was invalid) there is no causal relationship between the subsequent arrest (the poisoned tree) and the "prior" identification, photographs, and statement.
III. Dismissal for Vagueness
The information filed in this matter charges the defendant with Assault III, a class A misdemeanor; False Imprisonment, a class A misdemeanor; Rape, a class B felony; Sodomy, a class B felony; and Sexual Abuse I, a class D felony. The defendant sought more factual information on the charges and filed a bill of particulars on October 10, 1990. The Court granted the request on the condition that the government could oppose any of the requests made if notice to that effect was filed within 10 days. On October 19, 1990, the government responded by a bill which essentially told the defendant that he had as much information as the government had on the case. Alternatively, the government took the position that the information sought was readily accessible to the defendant vide, the evidence given at the preliminary examination, the police report supplied, the supporting affidavit for the warrant of arrest, together with anything else discoverable on the part of the government. The defendant then secured a transcript of the evidence given in the preliminary examination and subsequently filed a motion to dismiss Counts I (Assault III), II (False Imprisonment), IV (Sodomy), and V (Sexual Abuse I). He contends a violation of his rights, under Revised Const. Am. Samoa art. I, §6, to be apprised of the accusations against him, to enable him to prepare his defense and to ensure against double jeopardy from a second prosecution. The defendant further challenges the information as failing to comport with the requirements of Trial Court Rule of Criminal Procedure 7(c) — that an information must be a plain, concise and definite written statement of the essential facts constituting the offense charged — because it merely recites the statutory language of each alleged offense.
That a criminal charge is couched in the language of the statute, is not, of itself, grounds for the dismissal of an information. It is settled *150law that an information using only statutory language is quite permissible as long as the statute sets forth "fully, directly and expressly, without any uncertainty or ambiguity, . . .all the elements necessary to constitute the offence intended to be punished." Hamling v. United States, 418 U.S. 87, 117-18 (1974). Furthermore, Rule 7(c) "does not mean that the indictment must set forth facts and evidentiary details necessary to establish each of the elements of the charged offense." United States v. Williams, 679 F.2d 504, 508 (1982), cert. denied 459 U.S. 1111. There is a distinction between "a defendant’s constitutional right to know what offense he is charged with and his desire to know the evidentiary details of the prosecution’s case." Id. at 509. See also United States v. Crow, 824 F.2d 761 (1987).2
After reviewing the information in this matter, we conclude sufficiency. The information does inform the defendant of the nature of the charges against him to enable him to prepare his defense and, indeed, to invoke the double jeopardy clause. Necessarily, we are not impressed with the defense’s double jeopardy argument with regard to the two counts alleging sexual, offenses. It is argued that the preliminary examination record alludes to a number of ways in which the defendant could conceivably be found guilty of sodomy, since an element of this offense, namely, "deviate sexual intercourse," is defined by statute as "any sexual act involving the genitals of one person and the mouth, tongue, hand, or anus of another person." See A.S.C.A. § 46.3601(a). Defendant seems to think that unless the government is pinned down to exactly the conduct charged, for example, genitals/mouth, or genitals/tongue, or geni tal s/hand, or genitals/anus, his client could be subject to further prosecution. This thinking is unfounded. It is also settled law that entire record of the proceedings, and not just the information alone, may be referred to if there is a claim of double jeopardy with a subsequent prosecution. Woodring v. United States, 376 F.2d 619 (10th Cir. 1967), cert. denied 389 U.S. 885. Clearly, what the defense seeks here is the evidentiary details of the prosecution’s case.
For the foregoing reasons, the motions are denied.
*151It is so Ordered.
Only last year the Court itself recognized that the purpose of the exclusionary rule ‘ is to deter — to compel respect for the constitutional guaranty in the only effective available way — by removing the incentive to disregard it.’ Elkins v. United States, 364 U.S. 206, 217."
The information here tracked the language of a regulation which made penal "[a]ny conduct. . . .which impedes or disrupts the performance of official duties by Government employees." The Court here found that the essential element of the charge was conduct producing a prohibited result and that the defendant was charged with that conduct. While the charge lacked particulars, the defendant was found to be placed on notice of the conduct made penal; the details of the conduct would have added nothing save unnecessary evidentiary matter going to the proof of that conduct. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485947/ | On Motion for Reconsideration or Relief From Judgment:
This motion for reconsideration was filed thirty-five days after the entry of judgment, which is twenty-five days later than the statutory deadline. A.S.C.A. § 43.0802(a) provides that the filing of a motion for *153new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal. Such a motion may be styled a motion for "reconsideration" rather than for new trial so long as it is filed within the ten-day deadline and clearly apprises the trial court of the particular errors assigned to its decision.
An untimely motion for reconsideration or new trial should ordinarily be denied for want of jurisdiction. Because the present movant, Toluao Fetalaiga, maintained that he had not been represented by counsel at trial and had therefore not been notified of the judgment against him, we construed it as a motion for relief from judgment under T.C.R.C.P. Rule 60(b) and set it for hearing as such.
At the hearing we heard Toluao’s testimony. The record also contains documentary evidence concerning Toluao’s representation by counsel. The facts are as follows:
1) Toluao is a matai of the village of Pava‘ia‘i. He originally entered these consolidated cases in 1986, as an intervenor in LT No. 29-86. This was an action brought by Lualemana, the principal chief of the neighboring village of A‘asu, against certain residents of yet another neighboring village, called A'oloau, whom Lualemana said were occupying his land.
2) Toluao’s intervention in LT No. 29-86 was not motivated by any dispute with either Lualemana or the named defendants in the case. Rather, it was part of an effort to litigate an altogether different dispute with A.U. Fuimaono, principal matai of A’oloau. Fuimaono had previously intervened in LT No. 29-86 as a defendant "for himself and on behalf of the village of A’oloau," to assert the proposition that there was a well-settled boundary between the two villages and that Lualemana, not the A'oloau defendants, was on the wrong side of the line.
3)Fuimaono and the various matai composing the Village Council of A'oloau had also offered a survey for registration in the office of the Territorial Registrar, purporting to encompass the boundaries of the village and to be "communal land of the village of A'oloau." Several people had objected to this survey within the statutory sixty-day time limit for such objections, and the dispute had been referred to the High Court where it was designated LT No. 41-86. Neither Toluao nor anyone from the village of Pava‘ia‘i had objected. Pava‘ia‘i did, however, regard some of the land within the A’oloau survey (an area *154called "Lago") as really being in Pava‘ia‘i, and Toluao had begun to plant crops on part of this land. (The other parties maintained that Toluao had only recently moved into the area, and at trial we found this to be the case.) It was in order to litigate this disagreement (the registration by A'oloau including "Lago") that Toluao and two other Pava‘ia‘i chiefs sought to intervene in LT No. 29-86 (the injunctive action having nothing to do with "Lago"). They appeared "for themselves and the village of Pava‘ia‘i."
4) Toluao and his two co-applicants for intervention were represented by counsel Albert Mailo. The motion to intervene was granted without objection by any party.
5) In 1987 Fuimaono brought a separate injunctive action against Toluao. Fuimaono again appeared "for himself and on behalf of the village and people of Aoloau." The complaint alleged that Toluao had recently begun occupying land belonging to various A‘oloau people within the area called "Lago" and destroying their crops. This dispute was precisely the one that had caused Toluao and the other two Pava‘ia‘i chiefs to intervene in LT No. 29-86. Toluao was again represented by counsel Mailo, who filed an answer and appeared at various pre-trial hearings. This new case was designated LT No. 12-87.
6) In January 1988 the three cases were consolidated and set for trial.
7) Various other parties were subsequently allowed to intervene. The only one that matters for the purpose of this motion is the Utu family of A‘oloau. They alleged that they owned land in the "Lago” area; that these lands were within the survey offered by the Village of A‘oloau but in fact belonged to the Utu family rather than to the entire village; and that Toluao had recently begun going on their land and destroying their crops.
8) The trial was continued several times. In pleadings having to do with these continuations and other pre-trial matters, counsel Mailo sometimes referred to himself as "counsel for . . . Tuana'itau Tuia, Ava, [and] Toluao” (the three named Pava‘ia‘i chiefs) and sometimes simply as "counsel for Pava‘ia‘i." This apparently reflected an agreement among Toluao, his two co-intervenors, and the rest of the Pava‘ia‘i Village Council that they would litigate the case "as a village." It is clear from Toluao’s testimony at the recent hearing that he agreed to this arrangement, although he appears to have been the only Pava‘ia‘i party *155who actually occupied any land in the disputed area. According to the arrangement, the party through whom "the village" communicated with its counsel was Tuana‘itau Tuia.
9) In 1989 counsel Mailo moved to withdraw as counsel for the Pava‘ia‘i parties and for some other parties he had been representing. He appended a consent form signed by several clients, including Toluao, and certified that he had "contacted his clients about it and they will retain new counsel." The Court granted the motion, contingent on the parties’ actually retaining new counsel.
10) Later in 1989 counsel 1 an'esc P. Sunia entered an appearance on behalf of "Tuia and the Village of Pava‘ia‘i." Toluao testified that this was also pursuant to the arrangement whereby the various Pava‘ia‘i parties would litigate "as a village" and that Tuia would be the one actually handling the litigation.
11) The case was finally tried in May 1989. The Pava‘ia‘i parties put on two witnesses, Tuana‘itau Tuia and an elderly chief of Pava‘ia‘i. These witnesses testified to the effect that "Lago" had long been part of Pava‘ia‘i and that parts of it hail long been occupied by Toluao and other Pava‘ia‘i people. Witnesses for other parties testified that Toluao had only recently begun moving into the area.
12) At the recent hearing Toluao testified that he had been present throughout the trial of the consolidated cases. He said he had wanted to testify at the trial and had talked to Tuana’itau Tuia and counsel Tau’ese about it, but that they had insisted it would be better just to present the testimony of Tuana‘itau (the "sa‘o of the village" and also the Speaker of the territorial House of Representatives) and the elderly chief Pagofie. Toluao acquiesced in this decision.
13) During the trial the Pava‘ia‘i parties made a stipulation with the Utu family. It was signed by Toluao, by Tuana’itau, and by counsel Tau'ese as "Attorney for Tuana’itau F. Tuia, Toluao Fetalaiga and all the Pava‘ia‘i Village Claimants." At the hearing on the present motion Toluao stated that he had not really agreed with the stipulation and had had no idea how much land it conceded to the Utu family, but had signed at the request of Tuana’itau.
14) The Court allowed counsel three weeks for post-trial submissions and then took the case under advisement. A decision was rendered on August 6, 1990. The Court held that the area called "Lago" *156had been occupied by various families of A'oloau for about forty years and that Pava‘ia‘i had only recently begun to assert or reassert its claim. Specifically, the Court held that Toluao had only begun to occupy this area in the mid-1980s and had thereby displaced the plantado} ' of various A‘oloau families. Toluao was enjoined from further activities in the area.
15) The Clerk of Court immediately gave copies of the decision to all counsel, including counsel Tau'ese. Counsel Tau‘ese then consulted with Tuana’itau Tuia. It appears that Tuana'itau did not notify Toluao, who was then on an off-island trip. It is not clear whether Tuana‘itau consulted with other members of the Village Council. In any event, after his consultation with Tuana‘itau about the decision, counsel Tau‘ese did not file a motion to reconsider on behalf of the Pava‘ia‘i parties.
16) We do not know exactly when Toluao did find out about the decision. About a month after the decision was rendered, a person who had been occupying land in the area by permission of Toluao wrote a long letter to one of the attorneys in the case complaining about the decision and asking if there was anything he could do about it. A few days later the present "Motion to Reconsider" was filed by yet another counsel, who said he had not talked to Toluao about it but had talked to members of his family.
It appears from this evidence that Toluao is asking the Court to relieve him not of the consequences of mistake, inadvertence, or excusable neglect, but of a deliberate strategic decision he made early in the course of this litigation. This was the decision to litigate "as a village" and to let Tuana‘itau consult with counsel and make the decisions.
The perceived advantages of this arrangement were presumably that Toluao would not have to retain his own counsel; that since A‘oloau was litigating "as a village" on behalf of Toluao’s rival claimants in the area, it might be strategically wise to make it clear that the whole village council of Pava‘ia‘i was behind Toluao’s claim; and that, under the circumstances, it might be wise to bolster Toluao’s claim based on occupation (which everyone else in the neighborhood insisted had begun only recently) by subsuming it within a broader historical claim by Pava‘ia‘i.
*157Toluao may also have believed that Tuanaritau was a man experienced in these matters who could handle the litigation more effectively than Toluao himself would be able to do. Toluao had made at least one similar decision in another recent land dispute, represe ' iing to the Court that the Toluao family and the Tuana‘itau family were "part of the same family" and that Tuana‘itau was the sa‘o of the whole family; the purpose of this representation was to enable Tuana‘itau to represent the interests of both families "pro se." The Court was told at that time that Toluao could not find an affordable lawyer (counsel Mailo having withdrawn in that case as in this one) and did not wish to represent himself. See Leomiti v. Toluao, LT No. 35-82.
Nor is it at all clear that Tuana‘itau committed "neglect" by not consulting with Toluao about his decision not to move for reconsideration. Although prudence would ordinarily dictate such consultation, Toluao does not allege that it was any part of the Pava‘ia‘i parties’ prior arrangement. Indeed, it appears that Tuana’itau had consulted with Toluao during the course of the litigation only when he needed Toluao’s signature on something; yet Toluao had not sought to terminate the arrangement — as he was free to do at any time during the litigation by retaining independent counsel or by notifying the Court that he wished to proceed pro se — and had even gone along with Tuana’itau’s decisions that he, Toluao, should not testify and that he should sign the Utu stipulation. Toluao evidently knew that counsel Tau’ese would consult only with Tuana’itau when the Court issued its decision. He does not allege in support of the present motion that he told Tuana’itau he wished to be consulted about whether to move for reconsideration, or even that he left Tuana‘itau or counsel Tau'ese any information about how to get in touch with him while he was off-island.
A motion for reconsideration under Rule 60(b) cannot to be used as a substitute for appeal by one who has missed the deadline for appeal. Although courts have made exceptions to this rule when the party did not learn of the judgment prior to the appeal deadline through some fault of the clerk or another court official, it is an abuse of discretion for the court to use relief from judgment to allow an appeal where the party missed the deadline through his own fault or through the fault of his lawyer. Spika v. Village of Lombard, 763 F.2d 282, 285 (7th Cir. 1985), and authorities cited therein.
Nor can a Rule 60(b) motion "be employed simply to rescue a litigant from strategic choices that later turn out to be improvident." *158Good Luck Nursing Home, Inc., v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980).
We conclude that Toluao was represented by counsel at all ' mes during the litigation, but voluntarily entered into an arrangement whereby a single counsel would represent all the named Pava‘iasi parties and would deal only with Tuana‘itau. Having chosen thus to subsume his claim within that of the village and to leave its fate in the hands of the village’s principal spokesman, Toluao now seeks relief from a decision made by this agent. Such relief cannot be granted.
Accordingly, the motion is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485948/ | Appellant-plaintiff appealed the trial court’s decision that the gravesite of appellee-defendant’s father and mother is located on land belonging to appellee. Appellant contended at trial that the land on which the gravesite is located belongs to appellant-plaintiff.
In 1931, appellee’s father, Fuimaono Safiie, passed away and was buried in the gravesite now in dispute. In 1964, appellee’s mother passed away, and she was buried at the same gravesite as her husband. A rock "tia" was placed at the gravesite.
In 1984 or 1985, appellee Ulufale Saíne started improving the gravesite by replacing the rocks with marble. Appellant Uiagalelei Iona objected, claiming that the land on which the grave was located belongs to his family. When Ulufale Safue refused to discontinue improving the gravesite, Uiagalelei Iona brought a lawsuit for a determination of the ownership of the land on which the gravesite is located.
*160Uiagalelei Iona claims that Ulufale Safue’s father, Fuimaono Safue, was buried on Uiagalelei (Ui) family land called "Tiapepe" with the permission of appellant’s grandfather, Uiagalelei Faagaoi. According to appellant, the reopening of the grave to bury appellee’s mothe- was also done with the permission of appellant’s father.
Uiagalelei Iona explains that his family’s land (a.k.a. Uiagalelei land) is bounded on the west by land belonging to High Chief Namu and on the east by land belonging to the Sa Lemeana’i family. Appellant also contends that the eastern boundary is marked by a stream bed that comes down from the mountain and passes by a Congregational Christian Church building. According to plaintiff, the Uiagalelei family gifted to appellee’s father, Fuimaono Safue, the easternmost portion of the Uiagalelei land from the church to the eastern boundary marked by the Sa Lemeana’i family’s land. After gifting this land to appellee’s family, the Uiagalelei land’s eastern boundary was marked by two coconut trees across from the church. See Appellant’s Opening Brief at 2. Apparently, the gravesite is located on land that is either on Tiapepe or Uiagalelei land or on the land that was gifted to the Ulufale family.
Defendant Ulufale Safue claims that the land on which the gravesite is located belongs to the Ulufale family. Appellee was present at the burial of his father on this land and no one objected. He was also present at the reopening of the grave for the burial of his mother and no one objected. More importantly, adjacent to the gravesite are buildings belonging to the Ulufale family and other graves of Ulufale family members.
Appellant has appealed on two grounds the trial court’s decision that the land on which the gravesite is located belongs to the Ulufale family. First, appellant has argued that the trial court’s decision is unsupported by the record. Second, appellant has argued that the Samoan judges should have recused themselves because of obvious bias and prejudice.
This court can set aside findings of the trial court only if they are clearly erroneous. Malaga v. Mase, 3 A.S.R. 518 (1957); Tiumalu v. Tiumale, 3 A.S.R. 502 (1956).
According to the trial court, the grave is located on the "malae" in Futiga. The Uiagalelei family and the Ulufale family own adjoining tracts of land on the malae. The instant dispute revolves around the question whether the boundary dividing the Uigalelei land from the *161Ulufale land lies a few feet to the east of the grave, as Uigalelei contends, or a few feet to the west of the grave, as Ulufale contends. See Trial Court’s Opinion and Order at pp. 1-2 attached as Exhibit A to Appellant’s Brief.
Both sides argued family history to show that the land on which the gravesite is located belongs to their respective families. Uiagalelei Iona has claimed that the gravesite is located on land that was his family’s traditional burial ground. The trial court, however, found no evidence of the existence of any Uiagalelei graves on the land in question.
There is sufficient evidence in the record to support the trial court’s finding that the subject gravesite is located on land belonging to Ulufale Safue’s family. First, the trial court noted that it is unlikely that a chief of one family would be buried on land of another family. Generally, the custom is to place family graves on family land, to tend to them carefully, and to rely on them as evidence of land ownership.
Second, the only existing monument on the land in question is the grave of Appellee’s father. This fact suggests that the land belongs to the Ulufale family.
Third, the trial court noted that it was implausible that appellee’s family would have buried their father on appellant’s land, given the fact that there was land indisputably belonging to appellee’s family only a few feet away from the gravesite that could have just as easily been used for this purpose.
Fourth, the trial court relied on the presumption of ownership that comes with possession of real property. Piluti v. Muliufi, 4 A.S.R. 672, 674 (1965). Where the question of ownership of land is in dispute and there is no written record or document showing positive title, the best evidence of ownership is found in the person who has been using the land under a claim of right and without objection from other parties. Satele v. Afoa, 1 A.S.R. 424, 425 (date unknown). Continuous use and possession of real property is better evidence of title than family history and tradition. Tupuola v. Moaali‘itele, 1 A.S.R.2d 80 (1983). Indeed, the person in possession of land is considered the true owner as against anyone but the legal owner. Mageo v. Government, 4 A.S.R. 874, 880 (1963).
*162In this case, the Ulufale family had been in possession of the land in question since 1931, when appellee’s father was buried there. This continuous use and possession of the land is better evidence of ownership than appellant’s reliance on family history. Therefor- the trial court had substantial grounds upon which to base its finding that the land in question was owned by appellee rather than appellant.
As to appellant’s claim of bias, it was argued that the Honorable TauanuVs questions were unfair and prejudicial. Appellant has alleged that Judge TauamTu asked questions about unwritten family history, knowing that Samoan history is not written. Appellant has further alleged that Judge Tauanu‘u asked questions inferring that the cause of problems between the Uiagalelei and Ulufale families were instigated by the Uiagalelei. Appellant has also argued that Judge Mata’utia Tuiafono was biased and prejudiced against appellant because Judge Tuiafono is related to the McKenzies who serve the Ulufale.
Appellant has argued that this court should reject appellant’s claims of bias because these claims were not raised on a timely fashion prior to trial.
Regardless of when these claims of bias were raised, there is no evidence to support such claims that the two Samoan judges were prejudiced or biased against appellant. A judge often asks counsel questions on points on which the judge is concerned. The mere fact that a judge’s questions point out the flaws in counsel’s position does not mean that the judge is biased or prejudiced against a particular party. Additionally, appellant has not produced any evidence that Judge Tuiafono’s relation to the McKenzie family adversely impacted on this trial. The McKenzie family is not a party to this lawsuit, and there is no evidence, aside from such bald assertions, that the McKenzie family serves the Ulufale family.
Accordingly, having reviewed appellants arguments in support of their appeal and finding none compelling, the trial court’s decision is hereby AFFIRMED. | 01-04-2023 | 11-18-2022 |
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