url stringlengths 56 59 | text stringlengths 3 913k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8485949/ | Plaintiffs-appellants appeal the Land and Titles Division of the High Court’s ruling in favor of defendants-appellees that certain land in dispute is part of Asosama, land belonging to defendants-appellees’ family.
In September 1988, the Congregational Christian Church of Alofau started building a parish hall minister’s house on the land in dispute. Appellants, on behalf of the Tuato'o family, claim that the land is called Fale Sa and is part of Faleteine, land belonging to the Tuato'o family. Appellees, the Faumuina family and others, claim that the land is part of Asosama which is land belonging to appellees’ family.
Appellants filed the instant lawsuit to enjoin the church and the Faumuina family from building on the land in question. The Land and Titles Division of the High Court ruled in favor of appellees that the land in dispute is part of Asosama, land belonging to the Faumuina family. Appellants appeal that ruling.
Appellants make three arguments in support of their appeal. First, they argue that the lower court’s decision is clearly erroneous and contrary to the weight of the evidence. Second, appellants argue that the lower court erred in placing undue emphasis on the testimony of one witness. Finally, appellants argue that the lower court erred in not affording them sufficient opportunity for rebuttal, and thereby denied them of due process.
*165According to appellants, the trial court erroneously based its conclusion that the land in question was not Fale Sa as appellants claimed, but rather was part of Asosama and therefore belonged to appellees, on the following four factors:
1. A 1904 lease of Fale Sa stated that a creek bounded the western edge of Fale Sa. No such creek is located on the western edge of the land in question, whereas two creeks are located in Faleteine which is east of the land in dispute, suggesting that Falew Sa is actually east of the subject land.
2. The fact that Fale Sa had been leased to a Moors in 1904 and later to a Partridge in 1905, and court’s assumption that it was unlikely that a renter would wish to lease a small piece of land with an active church on it. The land in dispute was not large and had an active church on it.
3. The fact that the defendant Faumuina family has for several years exercised actual control over the land in dispute. For example, in 1977, Faumuina was given a permit to build a church residence on the property in dispute, and plaintiff Tuato'o did not object.
4. The case upon which plaintiffs rely to show ownership of Fale Sa, Tia v. Faumuina, 1 A.S.R. 201 (1909) (vesting title to the land Faleteine in plaintiffs, including the Tuato’o family, and vesting title to the land Asosama in defendants, the Faumuina family), did not hold that the Tuato’o family was the sole owner of Faleteine and Fale Sa since there were many plaintiffs other than the Tuato'o family in that case.
First, with respect to the placement of the creek, appellants claim that the creek was located on the east side of Fale Sa, not on the west side of Fale Sa as the court found. They state that the descriptions of Fale Sa in the leases of 1904 and 1905 place the creek on the east or Tula side of Fale Sa, and refer the court to exhibits 2 and 3. Appellants further argue that the testimony of Mr. French, their surveyor, placed the creek on the south easterly side of Fale Sa, referring to the transcript at page 23, lines 3-6.
*166With respect to the court’s observation that it is unlikely that the Moors and Partridges would lease a small tract of land with an active church on it, such as the land in dispute, appellants argue that there is no evidence to support the trial court’s conclusion. According to appel’int, the only reference to this point was made by appellees’ counsel during the final argument, and no evidence was brought out during the trial to support the court’s assumption. Transcript at 155:8-11.
The trial court correctly noted the undisputed fact that an active church was and is located on the land in dispute. Based on this fact, the court drew the conclusion that it was unlikely that someone would lease the land in dispute, given the presence of an active church on the land, and that it was more likely that someone would lease land on which there was an abandoned church. In support of this conclusion, the trial court pointed out that the lease of Fale Sa to Moors refers to an "old church" which suggest a church that is no longer in use. There is no error in the trial court’s reasoning. Moreover, this was not the only factor that the trial court relied upon to support its decision.
With respect to the court’s observation that the land in dispute has been under the actual control of the Faumuina family for many years, appellants argue that Tuato’o did not object to the Faumuina family building on the land because of his desire to preserve harmony between the Tuato‘o and Faumuina families. See Appellants’ Brief at 6.
Possession of real property carries with it a presumption of ownership. Puluti v. Muliufi, 4 A.S.R. 672, 674 (1965). Where the question of ownership of land is in dispute, the best evidence of ownership is found in the person who has been using the land under a claim of right without objection from other parties. Satele v. Afoa, 1 A.S.R. 424, 425 (date unknown). Given the fact that the Faumuina family had actual possession and control of the land in question, and the undisputed fact that the Tuato’o family did not object to this possession and use of the land, it is difficult to conclude that the trial court’s finding was clearly erroneous.
Finally, with respect to the trial court’s observation that under the 1909 decision, Tia v. Faumuina, 1 A.S.R. 201 (1909), Tuato’o is not the sole owner of Faleteine and Fale Sa, appellants argue that originally, the 1909 case had eight plaintiffs, but by the time the case went to trial, only four plaintiffs remained (Tuato’o, Tia, Salavea, and Tavea). Appellants claim that all four of these plaintiffs were members of the Tuato'o family.
*167The trial court’s observation that Tuato’o was not deemed the sole owner of Faleteine and Fale Sa does not materially affect its decision that appellant failed to meet their burden of showing that the land in question belonged to the Tuato’o family. From the facts produced at trial, the trial court concluded that it was more likely than not that the land in dispute was not Fale Sa land, but was part of Asosama land based on the descriptions of Fale Sa in the leases of Fale Sa to Moors and Partridge and based on the actual possession and use of the land in question for several years by the Faumuina family without objection from the Tuato’o family. This court believes that the evidence supports the trial court’s findings and conclusions. Therefore, this court cannot find that the trial court’s ruling was clearly erroneous.
Appellants next argue that the trial court placed undue emphasis on the testimony of one witness, Tago Sevaaetasi. This court has reviewed the opinion and order of the trial court, and finds that the trial court’s ruling did not place undue emphasis on Tago’s testimony. Admittedly, the trial court relied heavily on Tago’s testimony, but its decision rested on several factors, including the description of Fale Sa in two leases and the Faumuina’s actual possession and control of the land in question.
Moreover, the witness Tago is related to Tuato'o. One could infer that Tago would be biased in favor of appellants given the fact that he is related to appellants. Accordingly, the court finds no basis to overturn the lower court’s ruling based on its reliance on the testimony of Tago Sevaaetasi.
Finally, appellants argue that the trial court erred in not affording them sufficient time for rebuttal, thereby denying them due process. The only evidence in support of this contention is the fact that the trial court admonished appellants’ counsel that the purpose of rebuttal is to address issues raised by the defense, not to repeat arguments that were raised before.
The court has reviewed the record, and finds no evidence that appellants were unfairly deprived of due process in the way the trial court handled the rebuttal stage of trial.
Accordingly, the court AFFIRMS the trial court’s opinion and order.
IT IS SO ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485950/ | Appellants Seigafolava R. Pene (H/C) and Carmencita Pene (hereinafter the Penes) appeal the trial court’s order granting summary judgment in favor of appellee-plaintiff Bank of Hawaii.
On December 22,1982, plaintiff-appellee Bank of Hawaii loaned appellants, the Penes, $5,000.00 to finance a "promotional trip." See Appellants’ Exhibit A (copy of Note and Security Agreement executed on December 22, 1982); see also Trial Court’s Opinion and Order filed July 18, 1988, at 1. The entire principal amount, plus a finance charge of $270.41, was to have been paid by March 26, 1983, approximately ninety days after the date of the loan. Id.
It is undisputed that appellants did not repay the loan when it came due on March 26, 1983. On February 25, 1985, Mrs. Pene responded to a bank collection letter with a handwritten note acknowledging the debt and asking that the bank allow the Penes to make $100 monthly payments until she and her husband could find employment. See Trial Court’s Order at 3-4. Four payments totalling $250.00 were made to the Bank of Hawaii between March and August of 1985. Id. at 4.
On March 28, 1988, plaintiff Bank of Hawaii filed a complaint against the Penes, alleging that the Penes had defaulted on the loan. The Penes filed an answer on May 23, 1988. Thereafter, plaintiff Bank of Hawaii filed a motion for summary judgment, for which a hearing was held on June 27, 1988. On July 18, 1988, the trial court issued an *170opinion and order granting plaintiff Bank of Hawaii’s motion for summary judgment.
The Penes filed the instant appeal on July 31, 1989, arguing that the trial court erred in failing to dismiss plaintiff-appellee Bank of Hawaii’s complaint for failure to state a claim upon which relief could be granted.
This court must decide whether the Note and Security Agreement executed by the Penes on December 22, 1982 is a "written" or an "unwritten" contract.
Appellants-defendants, the Penes, have argued that the Note and Security Agreement is an "unwritten" contract, and consequently the 3-year statute of limitations found in A.S.C.A. § 43.0120(3) precludes the instant lawsuit. Appellants have argued that since the Bank of Hawaii never executed the agreement by written acceptance, the Note and Security Agreement is null and void. In the alternative, appellants have argued that A.S.C.A. § 43.0120 is unconstitutionally vague and therefore violates appellant’s right to due process.
Appellants have cited no case authority supporting their argument that the written Note and Security Agreement is, in reality, an unwritten contract. Appellants have argued that the intent of the Fono in drafting A.S.C.A. § 43.0120(5), which provides for a 10-year statute of limitation for written contracts, was to require a writing with the full terms, provisions and conditions of the contract fully set forth, the parties to the agreement ascertainable on the face of the instrument, and execution of the instrument by both parties. See Appellants’ Reply Brief at 2. Appellants, however, have cited no authority supporting their argument that both parties must execute the instrument.1
Appellee-plaintiff Bank of Hawaii has argued that the Note and Security Agreement is a "written" contract and, therefore, the 10-year statute of limitations found in A.S.C.A. § 43.0120(5) applies. Appellee contended that since the cause of action arose when the Penes defaulted on the loan on March 26, 1983, and the instant lawsuit was filed on *171March 28, 1988, the complaint was timely filed within the ten-year statute of limitations period.
As a general rule, where an instrument containing all the f '-ms of a completed contract between the two parties is executed by one of the parties and accepted or adopted by the other, the instrument constitutes a contract in writing within the meaning of the applicable statute of limitation, notwithstanding the fact that the instrument may not have been signed by the latter party. 3 A.L.R.2d 809, 819 (1949).
This general rule was restated in Mills v. McGaffee, 254 S.W.2d 716 (Ky. 1953):
A written contract is one which is all in writing, so that all its terms and provisions can be ascertained from the instrument itself.
Id. at 717.
Appellants have argued that Bank of Hawaii’s reliance on the above authority is misplaced because "[f]ederal statues and related components do not apply to proceedings in the High Court of American Samoa.” See Appellants’ Reply Brief at 1 (citing Security Pacific National Bank v. the M/V Conquest, 4 A.S.R.2d 59 (1987)).
Appellants’ argument itself is misplaced. First, Bank of Hawaii has not cited any federal authority to support its position. A.L.R. (American Law Reports) is a treatise, and the Mills case is a state appellate decision. Second, although the High Court of American Samoa Trial Division did hold in Security Pacific National Bank v. the M/V Conquest, 4 A.S.R.2d 59 (1987), that a federal statute does not apply to proceedings in the High Court of American Samoa, the court also held that the passage of a federal statute by Congress should be considered in determining whether changed circumstances warrant the application of rules announced in nineteenth-century precedents.
In the present case, it is beyond dispute that the Note and Security Agreement is an instrument in writing, that all of its terms, provisions and conditions are fully set forth in writing, and the parties to the agreement are ascertainable on the face of the agreement. Although Bank of Hawaii did not sign the agreement, it is clear that bank of Hawaii accepted or adopted the agreement and relied on its validity as a promissory note to repay the $5,000.00 loan. These facts support a *172finding that the Note and Security Agreement is a written contract and that the 10-year statute of limitations applies.
Appellants have cited no case authority in support of their position that the Note and Security Agreement constitutes an unwritten contract. Appellee Bank of Hawaii, on the other hand, has cited case authority, albeit old and not Samoan, that supports its position that the Note and Security Agreement constitutes a written contract. Accordingly, the court finds that the Note and Security Agreement is a written contract, and therefore, Bank of Hawaii's action was filed within the requisite 10-year statute of limitations period.
Appellants’ alternative argument, that A.S.C.A. § 43.0120 is unconstitutionally vague and violates appellants’ right to due process, is also unmeritorious. Section 43.0120 reads:
43.0120 Limitations periods. Actions may be brought within the following times after their causes accrue, and not afterward, except where otherwise especially declared:
*****
(3) actions founded on unwritten contracts, or brought for injuries to property, within 3 years; *****
(5) actions founded on written contracts, or a judgment of a court of record, within 10 years.
The statute clearly expresses that a 3-year statute of limitations period applies to actions founded on unwritten contracts, and a 10-year statute of limitations period applies to actions founded on written contracts. The fact that the statute does not define what constitutes an unwritten as opposed to a written contract does not make the statute unconstitutionally vague. Parties can rely on case law and other legal authority to determine what is meant by an unwritten as opposed to a written contract. Any argument that the statute’s failure to define these terms violated due process is totally frivolous. The court finds that the statute in question is not unconstitutionally vague and that due process has not been violated.
Accordingly, having reviewed appellants’ arguments in support of their appeal and finding none compelling, the decision of the trial *173court isi grantisiig plaintiffs motion for summary judgment is hereby AFFIRMED
Appellants cite cases which explain and define implied contracts, but these cases do not involve the question of how to determine whether a writing constitutes a written contract or an unwritten contract for purposes of determining which statute of limitations applies. See London v. Kansas City Gas Co., 10 F.2d 263 (8th Cir. 1926); Caldwell v. Missouri State Life Ins. Co., 230 S.W. 566 (Ark. 1921). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485952/ | *182On Motions for New Trial, Reconsideration, Clarification, and/or Amendment of Judgment:
Six parties moved for new trial, reconsideration, clarification, and/or amendment of the judgment in these consolidated cases. The Tuiteleleapaga motion was heard on November 29, 1990. The Willis/Va, Diocese, Taeleifi, and Iuli motions were heard on December 5, 1990. The hearing on the Le‘oso motion was postponed, by stipulation among the three parties affected by that motion, until an unspecified date in January 1991.
The assignments of error have overwhelmingly to do with our findings of fact. We reiterate these findings for the reasons stated in our original opinion and for such additional reasons as were stated from the bench in the November 29 and December 5 hearings, with the following exceptions:
1) The small section of the old registered survey of Mrs. Thomas Meredith, which is east of the present road and outside the recent Puletu survey, belongs to Tuiteleleapaga. Although we are bound by law to find that this section did belong to Mrs. Thomas Meredith at the time it was registered, it was not claimed by Puletu Meredith, and no other heir of Mrs. Thomas Meredith appeared to present evidence of occupation by Meredith heirs. There was, however, credible evidence of continuous occupation under a claim of right by Tuiteleleapaga family members since before 1962, the applicable date for adverse possession. (This section has been marked in red as "P-5" on the copy of Exhibit 21 on display in the Clerk’s office.)
2) Edward Ripley was not "a foreigner married to a member of the Leoso family," as we stated on page 10 of our original opinion. He was part Samoan, the son of a papalagi man and a Samoan woman, and according to counsel for the Ripley and Le‘oso families, Edward himself was a blood member of the Le‘oso family through his mother. (This correction tends to strengthen the inference we drew from the relationship of Ripley to the Le‘oso family, which is that the designation "Le‘oso" as the northern neighbor on the 1915 Uo survey can be read to apply to the tract later registered as individual property of Edward Ripley as well as to the adjoining tract claimed by the Le‘oso family.)
We also offer the following "clarifications" or additional observations:
*1831) Counsel for the Willis/Va plaintiffs suggests that all the land within the massive survey offered for registration by Tony Willis in LT No. 45-82, and not proved to be the property of any other party, must be registered as the land of the heirs of Va. Contrary to plainf'ffs’ argument, this has never been held to be required by the registration statute. Although it is true that an offer of registration to which no one objects is automatically registered as the property of the claimant, the situation changes dramatically when there are objections and these objections give rise to a court case. The court listens to the evidence from all parties and gives judgment in accordance with the evidence. In general, each party presents at least some credible evidence to support its claim and the Court decides in favor of the party whose evidence is most convincing. If, however, no party meets even this minimal burden, "the action should be dismissed without prejudice to the rights of either party." Tuia v. Salave'a, 3 A.S.R.2d 1, 3 (1986).
Because plaintiffs press this point, we find it necessary to state explicitly what we said between the lines in our original opinion: the testimony that the Va heirs, after being awarded only a one-third interest in the back half of "the flat land" within this valley in 1906 and 1918, nevertheless proceeded to occupy and cultivate the extensive slopes surrounding the valley on the east, west, and north, was not credible. There was, on the other hand, credible evidence of historic occupation of areas within these slopes by Taeleifi, Tuiteleleapaga, Avegalio, and other families, including most of the families whose names are inscribed in these areas on the original 1906 Talamaivao survey. For the most part, however, these families did not survey their claims on the slopes, except those immediately adjoining the flat land. We therefore find the evidence insufficient to support a judgment that particular areas on the surrounding slopes belong to particular parties, except as detailed in our original opinion. The evidence offered by the various objectors and intervenors was, however, more than sufficient to defeat any claim by the Willis/Va plaintiffs with respect to the surrounding slopes.
2) As the Willis/Va plaintiffs point out, there is only one western tributary stream within this valley. The testimony of the witness Fai‘ivae in the 1906 case, whom we found to have been apparently disinterested with respect to this area, was that this western stream formed the western boundary of the "flat land" comprising Legaoa. For most of its course the stream is in fact within a few feet one way or the other of the western edge of the flat land. It has long been recognized as the western boundary by all parties other than the Va heirs, including the Va heirs’ cotenant, To‘omata, who seems to have been the principal *184occupant of fee area just to fee east of fee stream. In any event, the best evidence is that fee area west of fee stream has been occupied by its present occupants since well before 1962, fee applicable date for adverse possession.
Oddly, plaintiffs do seem to recognize fee western stream as their western boundary in fee mountainous area to the north — the area still claimed by plaintiffs despite the contrary findings and conclusions in Leuma v. Willis, 1 A.S.R.2d 43 (1980), which they are collaterally estopped to deny — bat cease to recognize fee stream as a boundary once it descends into fee fiat land. This is exactly fee opposite of what fee quoted 1906 testimony said and of what the evidence of occupation tends to show.
3) Both Sa‘a and fee Diocese recognize feat fee boundary between them is fee center line of a stream. The court reaffirms this understanding. Each party should check its survey to malee sure that it conforms exactly to this boundary.
4) As has been frequently observed by Taeleifi Mane, who is representing fee Taeleifi family pro se in this proceeding, fee land "Tiafau" held to be the property of fee Tuiteleleapaga family is not all the land called "Tiafau" in this area. Taeleifi also owns land called Tiafau. (It appears that in 1906 Avegalio may also have claimed some land called Tiafau; this land may or may not be fee same as the land the Avegalio family now calls "Laloafu" ("below fee waterfall").
5) The parties who were held to own land within fee survey offered for registration in LT No. 45-82 and who were either claimants or objectors in feat case will be entitled to have these lands registered when this judgment becomes final. Hie LT No. 45-82 survey includes all fee land adjudicated to be fee property of fee various parties in these cases, with the following exceptions: (1) fee Tuiteleleapaga land called "Punaloa"; (2) fee small strips of land adjacent to fee Meredith survey held to be fee land of Puleta; (3) all but fee northernmost tip of fee land held to belong to Suafo‘a; and (4) some areas along fee southern and eastern boundaries of fee southern Su‘a survey ("Solo"). See "Court’s Illustration of Decision," fee composite map we composed from a copy of Plaintiffs’ Exhibit 1.
Although fee four areas outside fee survey feat was offered for registration in LT No. 45-82 may not be registered until their owners have complied wife fee statutory requirements set forth in A.S.C.A. § *18537.0101 et seq., our decision with respect to ownership of these four parcels is binding on all parties to these consolidated cases. All parties to these cases are therefore estopped from objecting to an offer of registration of any of these four tracts by the party held to be its owner. Because everyone in the neighborhood seems to be a party to these cases, registration should be a relatively simple matter.
The Meredith, Uo, Ripley, and Diocese tracts are also wholly or partly outside the original survey that was offered for registration in LT No. 45-82. Because these tracts have already been legally registered, however, there is no need for their owners to re-register them. Resurveys consistent with this opinion may, of course, be added to the appropriate files in the Territorial Registrar’s Office consistent with the rules governing that office. The Court is willing to certify such resurveys as complying with the Court’s decision, upon proper showing made pursuant to a post-trial motion.
6) Finally, the Court reiterates its warning to Iuli, Tuiteleleapaga, Avegalio, Su‘a, and Olo that their surveys are apparently in need of minor correction to eliminate unintended overlaps with neighboring landowners. The northern Iuli survey map seems to place the tract about 200 feet south of its actual location on the ground. The Avegalio, Tuiteleleapaga, Su‘a, and Olo surveys, all in the northern part of the land involved in this case, show far smaller overlaps with neighboring surveys. These problems apparently have nothing to do with the pins, etc., actually placed in the ground by the surveyors, which appear to be where the neighboring landowners have agreed that they should be. Rather, slight errors appear to have been made in the calculation of the point of beginning (P.O.B.) co-ordinates or in one or more of the bounds or angles copied onto the survey maps. These surveys should not be registered until the problems have been corrected. Again, the Court will certify compliance with its decision upon a proper showing.
Conclusion
The motions for reconsideration, new trial, clarification, and/or amendment of judgment (except the motion by Le‘oso) are in all other respects denied. The parties whose motions have been denied, in whole or in part, have ten days from today to file any notice of appeal. See A.S.C.A. § 43.0802(b).
*186The judgment originally entered in these consolidated cases will be modified by the addition of parcel "P-5", as described above, to the land awarded to Tuiteleleapaga.
The judgment may be further amended at a later date insofar as is consistent with our decision on the pending motion for new trial by Le‘oso.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485953/ | This appeal is from the denial by the Project Notification and Review System (PNRS) of appellee American Samoa Government (ASG) of a permit to build a house. The permit was denied on the ground that the house was to be constructed on an illegal landfill within a tidal wetland.
In or around 1985 appellant began filling in an area of the mangrove swamp (pala) at the mouth of the Leafu Stream in Leone. In 1987 he attempted to apply for a Consolidated Land Use Permit to conduct "overpass and fill work." Only a few lines of the multi-page application were filled in, and it was never acted upon by any agency of ASG. It appears that substantial work had already been done on the landfill and the "overpass" (a bridge connecting the filled area with the mainland) by the time of this application.
*188In or around 1988 appellant and his wife offered for registration as their individually owned land a parcel described as "a portion of land ‘Siulagi.’" This parcel comprised about .716 acres and appears to have consisted of the landfill within the pala. Although the appellant te \’fied at the hearing below that several neighboring families had originally objected to his landfill activities, any formal objections were evidently withdrawn and the land was registered on September 13, 1988.
In February of 1989 the appellant applied for a permit to build a two-story house and a septic tank on the filled area.
On April 13,1989, appellant was notified by the ASG Economic Development Planning Office (DPO) that his application had been denied. The notice of denial stated that the application had been "reviewed and evaluated" by "the Review Agencies of the Project Notification and Review System" (PNRS) and that it was being denied because of a government policy that "[ujnique areas, including wetlands [and] mangrove swamps . . . shall be protected against significant disruption of their physical, chemical, and biological characteristics and values. Only uses dependent on such areas shall be permitted." (Emphasis in original.)
The PNRS is a sort of interdisciplinary consortium of all the ASG agencies which have anything to do with land use. It was created to implement the "coastal management program" established by Executive Orders 03-80 and 07-88, codified as A.S.A.C. §§ 26.0201 et seq. This program, in turn, was issued in response to the enactment of the federal Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451 et seq. The federal act provides, inter alia, for federal assistance to states and territories "in developing land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance."
The coastal zone regulations define the "coastal zone management area" as including the entire island of Tutuila, along with all the other islands comprising American Samoa and all coastal waters and submerged lands for a distance of three nautical miles seaward. A.S.A.C. § 26.0207. Consequently, anyone who wishes to undertake any sort of construction anywhere in Tutuila must apply to the DPO for approval or disapproval. The regulations require DPO to grant land use permits only after the applicant has applied for and received the "necessary permits" from "permit-letting agencies" within ASG. *189A.S.A.C. § 26.0211. (Depending on the type of construction contemplated, these permit-letting agencies can include the Office of the Governor, the Office of the Attorney General, the Economic Development Planning Office, the Territorial Planning Commission the Zoning Board, the Department of Public Works, the Environmental Quality Commission, the Environmental Protection Agency, the Department of Marine and Wildlife, the Department of Parks and Recreation, and/or the Department of Health.) The regulations further provide that "a . . . permit and project notification and review system shall be instituted." A.S.A.C. § 26.0209.
The PNRS is the system established pursuant to these two sections. Instead of applying to several agencies for approval of various aspects of a proposed project, the applicant applies only to DPO. All of the permit-letting agencies then study the application and send representatives to the PNRS and collectively decide either to approve or to disapprove it. "The goal is to provide ‘one-stop shopping’ to those needing governmental permission to construct almost anything anywhere in the territory." Decision of the Administrative Appeals Panel in the case of Meki Solomona, September 27, 1989 [hereinafter "Appeals Panel Decision”], at 1.
In 1990, during the pendency of this appeal and after the events and proceedings that gave rise to it, the Fono enacted and the Governor signed the American Samoa Coastal Management Act of 1990, PL No. 21-35, which substantially restated many of the provisions of the regulations discussed above and which also provided that those regulations should remain in force until certain others are promulgated. See A.S.C.A. § 24.0506(b).
After the PNRS denied appellant’s application to build the house and septic tank, he appealed to an Administrative Appeals Panel. The appeals panel held a hearing at which both the appellant and a representative of the appellee(s) testified. The panel later made a visit to the construction site and then took further evidence from appellant.
On September 27, 1989, the appeals panel affirmed the denial of the land use permit. The panel found that the proposed building site was in "the heart of the pala lagoon mangrove swamp area." Appeals Panel Decision at 9. The panel found that ”[t]idal levels and action are clearly evident” and that, were it not for the retaining wall built by the appellant to enclose the filled area, "the area would most likely be inundated by high stream flows and/or high tides." Id. at 8-9. See also *190id. Appendix §2, Document 1, p. 13 ("Site Plan for Fill Area," apparently submitted by the appellant along with his permit application, showing the entire fill area to be within the lagoon.) The panel correctly observed that tidal lands in American Samoa belong to the government. Id. at 15-16.
The panel further concluded that various agencies of the government would have authority (presumably even if the land did not belong to the government) to deny construction permits, water quality permits, and a health permit for the septic tank, and that "the technical and regulatory findings of the PNRS and other agencies in this case are correct." Id. at 15-16.
Appellant now petitions for judicial review of these findings in accordance with the Administrative Procedures Act. See A.S.C.A. §§ 4.1040-41. He raises two important and complex questions.
First, the appellant contends that the establishment of the PNRS by executive order was unconstitutional in the absence of enabling legislation. He contends that an executive regulation must be designed to execute or enforce laws, not to enact or change them. He further contends that the establishment of the coastal zone management program had the effect of altering the legal rights, duties, and relations of persons, and must therefore be characterized as inherently legislative rather than executive. Appellee ASG responds that the Revised Constitution of American Samoa, Article IV § 6, permits the Governor to issue executive regulations "not in conflict with the . . . laws of American Samoa," whether or not they are designed to execute particular laws. The government further cites a number of territorial statutes pertaining to zoning, health, water quality, environmental protection and so forth, which, it is maintained, would authorize ASG agencies to deny land use permits for any of the reasons the PNRS might do so. Finally, ASG argues that the Fono has "ratified" the coastal zone management rules by the 1990 enactment of the Coastal Zone Management Act, and that such ratification applies retrospectively.
Appellant also maintains that the denial of a land use permit in this case is a "taking" of his property for which ASG must provide just compensation. See U.S. Const. Amend. V; Rev. Const. Am. Samoa art. I, § 2. A land use regulation may effect a constitutional taking if it either fails to "substantially advance legitimate state interests" or "denies an owner economically viable use of his land." Agins v. Tiburon, 447 U.S. 255, 260 (1980); see Nollan v. California Coastal Commission, 483 *191U.S. 825, 834 (1987); United States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985). Although the coastal zone management regulations are fairly brimming with legitimate state interests, and although the preservation and/or restoration of the Leone Pala Lrgoon area as one of the few remaining natural habitats for the ducks, turtles, fishes, and other creatures mentioned in the decisions below might well justify strict regulation and even prohibition of construction in this area, such regulation might nevertheless effect a taking (and thus require compensation to the landowner) if it effectively prohibited any "economically viable" use of private property. See Nollan, supra, 483 U.S. at 834; Riverside Bayview Homes, supra, 474 U.S. at 127; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316-17 (1987).1 The statement made by the PNRS in denying appellant’s permit strongly suggests, although nothing in the record below absolutely states, that no economically productive private use of this tract will be permitted. Remand for an answer to this question might well be appropriate were it not for our resolution of a threshold question.
No taking of private property has occurred in this case because the land was not private property to begin with. It is well settled that submerged and tidal lands in American Samoa — those which are permanently or periodically covered by tidal waters — belong to the territorial government. Prior to 1974 such land belonged to the United States. Lago v. Mageo, 4 A.S.R. 287 (1962), aff’d sub nom. Mageo v. Government, 4 A.S.R. 874 (1963); Foster v. Olotoa, 3 A.S.R. 77 (1953). In 1974 this title was conveyed to the American Samoa Government. Submerged and Tidal Lands Act of 1974, P.L. No. 93-435, codified at 48 U.S.C. § 1705(a).
The conveyance from the United States to the territorial government specifically included "artificially made, filled in, or *192reclaimed lands which were formerly permanently or periodically covered by tidal waters . . . ." Id. Even in the absence of this explicit statutory language, the appellant could not have converted public land into his own private property by unilaterally and artificially changing its character. Nor could he have acquired title by offering the filled land for registration, since the attempted registration was of a class of property legally insusceptible of private ownership. Foster, supra, 3 A.S.R. at 79-80, and authorities cited therein; cf. Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (1988) (”[T]he registration violated the statutes and was null and void.").
Because he does not own the land for which this permit was denied, appellant has no standing to raise the question whether special enabling legislation was necessary to allow the Governor to promulgate the coastal zone management regulations, insofar as they affect the rights of private property owners. The executive branch does have statutory authority to preserve and administer government lands. See A.S.C.A. § § 18.0204(a) (parks and recreation department shall inventory all properties belonging to the government and with the Governor’s approval determine which are included in the park system), 18.0205 (certain submerged and tidal lands are included within the park system and are subject to the administration of the director of parks and recreation), 18.0208(a) (criminal penalties for injury or damage to property within the park system). The Parks and Recreation Department is one of the review agencies comprising the PNRS, and the record below reflects that the reviewing agencies voted unanimously to deny the application.
Accordingly, the decision of the Administrative Appeals Panel is AFFIRMED.
The Government seems to argue that the requirement of compensation for regulatory takings has been effectively read out of the Constitution by Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987). The holding of that case, to the effect that no taking occurs "when the State merely restrains uses of property that are tantamount to public nuisances," id. at 491, must be read together with other recent cases suggesting the survival of a robust regulatory takings doctrine. See, e.g., Nollan, supra; First English Evangelical Lutheran Church, supra; Kaiser Aetna v. United States, 444 U.S. 164 (1979). Although the "tantamount to nuisance" exception might well cover the prohibition of a landfill (at least a landfill with a septic tank) even in a privately owned stream, we do not take it to mean that the government will never have to pay compensation for any regulatory taking now that all of American Samoa has been declared a coastal zone. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485956/ | *207On Motion for Rehearing:
We dismissed this appeal for lack of jurisdiction. Appellants now petition for rehearing. The petition does not appear to disagree with our holding that we had no jurisdiction. Rather, counsel for appellants states that he "would like again, to extend . . . deep apologies" for "the unintentional jurisdictional and non-jurisdictional defects" in the appeal.
The petition is devoted largely to a discussion of the merits of the Rule 60(b) motion for relief from judgment, from whose denial the appeal had been taken. The principal contention is that appellant did not learn until 1984 about the 1966 judgment from which relief was sought below, and that this was because his former counsel had failed to communicate with him.
The allegations against former counsel, if true, might or might not give rise to a cause of action for malpractice. They cannot, however, supply this court with jurisdiction it does not have. Our jurisdiction is defined by statute. The statute, A.S.C.A. § 43.0802, provides that the Appellate Division can hear an appeal only if a motion for new trial has been made within ten days of judgment, and only if a notice of appeal has been filed within ten days of the denial of a motion for new trial. Unlike violations of non-jurisdictional rules, for which the Court has the power to impose sanctions other than dismissal if the interests of justice would thereby be served, a would-be appellant’s failure to comply with the mandatory steps necessary to give the Court jurisdiction leaves the Court powerless to grant any relief at all. An order issued by a court without jurisdiction is null and void.
Both the 1966 judgment awarding the disputed land to appellee Patea and the decision below denying relief from this judgment are final. The appellant has exhausted the available remedies. The point beyond which further attempts at relitigation can amount to nothing but harassment was passed some time ago.
The petition for rehearing is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485957/ | On Request for Transcript:
On December 21, 1990, appellant timely filed a notice of appeal and a request for an estimate of the cost of preparing a transcript. On December 24, 1990, the court reporter filed the requested estimate, with a certificate of service on appellant’s counsel.
Appellant then had ten days to file an order for a transcript, to deposit with the reporter an amount of cash equal to the estimated cost of the transcript, and to file with the Clerk of the High Court the receipt for such deposit. Appellate Court Rule 10(b)(1), (4). An order for a *2transcript must be in writing, must be filed with the Clerk, and must be served on the appellee. Appellate Court Rule 10(b)(1).
The ten-day deadline for compliance with the provisions of Rule 0(b) expired on January 4, 1991. Appellant appears not to have done any of the things necessary to comply with the rule. Instead, on January 16, appellant’s counsel’s secretary gave an envelope containing cash in the amount of the required deposit to a colleague of the court reporter who had provided the estimate. No written order for a transcript has been filed with the clerk or served on appellee.
The only way to secure an extension of time in which to order a transcript is to file a motion with notice to the opposing parties. See Opapo v. Puailoa, 17 A.S.R.2d 30 (1990); Alaimalo v. Sivia, 17 A.S.R.2d 25 (1990). Appellant is still free to file such a motion, although he must now bear the heavy burden of explaining why the motion was not filed before the expiration of the deadline he sought to extend. The cash given to the court reporter has been deposited with the Clerk. It will be returned to appellant should he so request. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485958/ | Plaintiffs, Jack and Joan Holland, owned a certain motor vehicle which they had left with the defendant Haleck’s Island Motors (hereafter "Haleck’s") for servicing. Haleck’s is an American'Samoan corporation registered under the name Island Nissan Subaru, Inc., and it carrys on business in Pavaia’i as a dealer and repairer of automobiles. While the subject vehicle remained in Haleck’s possession, it was destroyed by a fire which completely consumed the building in which Haleck’s was located.
Plaintiffs seek recovery from Haleck’s and its insurer, Royal *4Insurance Company,1 for the value of the lost vehicle. They assert a bailment contract and further submit that Haleck’s failure to return the bailed property, after demand had been made for its return, constituted a prima facie case of actionable breach of bailment. "Alternatively,” plaintiffs allege "that [Haleck] was negligent in the performance of it [sic] obligations to Plaintiff under the [bailment] contract." (Amended complaint, paragraph 4).
There is no dispute that the facts here depict a bailment for mutual purposes between plaintiffs and Haleck’s. At the same time, the parties also acknowledge the well-settled rule of law that an ordinary bailee is not an insurer of bailed property absent statute or express agreement. A bailee, however, is liable only for loss resulting from his negligence in caring for and protecting the property bailed.2 Garcia v. Galea’i, 15 A.S.R.2d 14, 17 (1990). In the case of a mutual bailment, it has been said that a bailee, in relation to the property bailed, is held to a duty of "ordinary care," that is, "that degree of care, attention, or exertion which, under the actual circumstances, a man of reasonable prudence and discretion would use in reference to the particular thing if it was his own property, and failure to do so would render him liable." Rice Oil Co. v. Atlas Assurance Co., 102 F.2d 561, 574 (9th Cir. 1939). It is that measure of care which "ordinarily prudent men, as a class, would exercise in caring for their own property under the like circumstances." Garcia v. Galea’i, supra at 17. See also 8 C.J.S., Bailments § 27; 8 Am. Jur.2d, Bailments § 221-222.
Whether the action here is viewed as one based on negligence or on breach of contract, the courts have held in many instances that a prima facie case of negligence or breach of contract will have been established against the bailee where a bailor has shown: 1) a bailment, 2) delivery of property to the bailee, and 3) failure of the bailee to redeliver the property undamaged. See Am. Jur.2d, Bailments § 329, at 1066; 8 C.J.S. Bailments, § 50(2), at 518; Annotation, 65 A.L.R.2d *51228, 1233. The underlying policy reasons here have been explained as follows:
[T]he law takes into account the relative opportunity of the pf v'des to know the fact in issue and to account for the loss which it is alleged is due to the breach. Since the bailee in general is in better position than the bailor to know the cause of the loss and to show that it was one not involving the bailee’s liability, the law lays on him the duty to come forward with the information available to him.
Commercial Corporation v. N.Y. Barge Corporation, 314 U.S. 104, 111 (1941) (citations omitted). It therefore follows that the bailee, in order to avoid liability under either theory, must provide a lawful excuse for non-return of the property or otherwise explain that damage to the property was not owing to his want of due care. Otherwise, as the Supreme Court further noted,
the trier of fact [is free] to draw an inference unfavorable to [the bailee] upon the bailor’s establishing the unexplained failure to deliver the goods safely. Whether we label this permissible inference with the equivocal term "presumption” or consider merely that it is a rational inference from the facts proven, it does no more than require the bailee, if he would avoid the inference, to go forward with evidence sufficient to persuade that the non-existence of the fact, which would otherwise be inferred, is as probable as its existence.
Id. (citations omitted). See also Am. Jur.2d, Bailments §§ 323, 326, 327.
In the matter before us, there being no suggestion in the evidence of misdelivery or conversion, the prima facie case to be met by Haleck’s, whether under plaintiffs contract theory or negligence theory, is culpable negligence or absence of ordinary care.3 Having said as *6much, this is not to say, however, that the law thereby requires "that the bailee must affirmatively prove a negative to the effect that he was not guilty of negligence." McKeever v. Kramer, 218 S.W. 403, 405 (Mo. App. 1920). "Under such circumstances it is the duty of the defendant to account for the loss of the goods, and to show that the loss was occasioned by some act such as theft, fire, etc., in which event prima facie this is an exoneration, and it is not his duty to further prove affirmatively that he is guilty of no negligence." Id. Thus, a bailee should either go forward with exculpatory evidence accounting for the property, or with evidence which exonerates him of fault. See also Am. Jur.2d, Bailments § 333 at 1074. This "does not cause the burden of proof to shift, and if the bailee does go forward to raise doubts as to the validity of the inference, which the trier of fact is unable to resolve, the bailor does not sustain the burden of persuasion which upon the whole evidence remains upon him, where it rested at the start." Commercial Corporation v. N.Y. Barge Corporation, supra 314 U.S. at 111.
In the instant matter, the defense argues that no inference of undue care on the part of Haleck’s may be drawn from the facts surrounding the occurrence of the fire.4 The evidence shows that the fire broke out in the early hours of the morning, at a time when the premises are normally left unoccupied. Mr Dave Haleck, Vice President for Haleck’s, testified that he was alerted to the fire by a telephone operator who had called him at about one o’clock in the morning to advise that the supermarket building was on fire. He stated' that when he arrived at the scene, there were fire trucks already there engaging the *7fire. By that time, the fire, according to Mr. Haleck, was very intense as he could feel the heat from across the road where he had stopped his car, and he noted that the fire was progressing from the building’s western end, where Haleck’s showroom was located, towards its eastern end. He also went to the back to check on the other side of the buildings, where he found one of the resident employees hosing down the adjoining supermarket building.
Notwithstanding the efforts of the Fire Division, the consequence of the fire was the total destruction of the entire building.5 Significantly, those efforts were undoubtedly hampered because the fire hydrants located directly opposite the burning structure were hopelessly lacking in water. This calamitous state of affairs, in turn, necessitated a time loss with the pick-up of water from other and distant locations.
An adjuster, a Mr. Stanley Chung of Honolulu, employed by the insurance company to investigate the fire, had earlier deposed that he ruled out electrical fault as being the cause of the fire. As he had found that all the circuit breakers for the building were still in the "on" position, this led him to believe that none of the wiring in the building had short-circuited. He further concluded after sifting through the various levels of bum debris that the fire had originated on the second floor of the building in a room above Haleck’s premises. Mr. Chung, however, could find no evidence pinpointing the actual cause of the fire.
At the time of the fire, plaintiffs’ vehicle was stored at the rear of the building where the automobile repair shop was located. The automobile repair shop was actually a lean-to against the main building; however, it was secured at nights by fencing and adjacent buildings. As might be expected of any similar business, Haleck’s kept its premises reasonably secured and locked at nights, and the area was also well lighted both to the rear and front of the building. Although Haleck’s did not employ a night watchman, Mr. Otto Haleck did have certain employees quartered in two residential homes within his property and adjacent to his various business enterprises.
In our view, the evidence presented in this matter was not inconsistent with due care on the part of Haleck’s. At all relevant times, plaintiffs’ vehicle was secured in a locked, fenced, and well-lighted area. *8Unfortunately, a fire of unknown causes broke out late at night and totally destroyed Haleck’s premises and contents. The efforts of fire fighters were significantly curtailed because fire hydrants in the area lacked water. We conclude that these are circumstances more consistent with exoneration rather than fault.
Plaintiffs also submit that the absence of such things such as a night watchman, fire detection devices and alarms, sprinklers and more extensive fire fighting equipment constituted negligence on the part of Haleck’s. We disagree. Whether the presence of such things could have mitigated or prevented plaintiffs’ loss is at best a matter of speculation. The fire was intense and spread very rapidly, and there was realistically very little to be done in way of containing it, given the hydrants’ lack of water. Secondly, negligence presumes a duty of care, and, as we noted at the outset, the duty of care which the law imposes upon a bailee (in the context of a bailment for mutual purposes) is that degree of care which ordinarily prudent men would exercise in caring for their own property. We hold, bearing in mind that a bailee for mutual purposes is not an insurer, that Haleck’s failure to have the sort of fire detection devices and alarms advocated by plaintiffs did not amount to negligence on the part of Haleck’s. To find otherwise would be tantamount to imposing a very high degree of care, approaching that of requiring a bailee for mutual purposes to employ every precaution available for the protection of bailed property.
Finally, plaintiffs also contend that Haleck’s had a duty to insure for their benefit. The argument here curiously appears to be based on the fact that Mr. Dave Haleck had thought that such insurance coverage had been procured. As it turns out, this belief was not only mistaken but entirely without foundation. Mr. Haleck also acknowledged that he had nothing to do with the negotiation and procurement of insurance, and that the matter of insurances for the various Haleck-affiliated businesses was actually handled by another corporate official, the controller.6 In any event, the submission is at odds with the law. Unless plaintiffs can point to a governing statute, to an agreement to insure, to some custom or usage of trade, or to a course of dealings between the parties which *9manifests an understanding that insurance would be provided, Haleck’s, as a bailee for mutual purposes, was under no legal obligation to insure. Annotation, 44 A.L.R.3d 513.
For reasons given, judgment will be in favor of the defendants.
It is so Ordered.
The insurance company was joined under A.S.C.A. § 29.1537 which permits plaintiff a right of direct action. See Holland v. Haleck’s Island Motors, 15 A.S.R.2d 44 (1990).
Unless he has either agreed to assume a greater liability or he is one of those special bailees, such as common carriers and innkeepers, upon whom the law has imposed a strict rule of liability on grounds of public policy. 8 Am Jur 2d, Bailments § 215, at 941.
Some cases have also suggested a distinction between pleading under, a contract theory and pleading under a negligence theory. That distinction is said to be the difference between proving an affirmative *6defense for failure to redeliver the bailed article and the rebuttal of an evidentiary presumption of negligence. In a contract case, the burden is said to remain with the bailee to prove that the bailed article was destroyed without his fault; however, where negligence is alleged, the burden is on the bailor. See Am. Jur.2d, Bailments § 327; Annotation, 65 A.L.R.2d, 1228, 1242; 44 A.L.R.3d 171, 201.
The immediate criticism with this rule, of course, is that the ultimate burden of persuasion is made dependent on the niceties of pleading.
Although a great number of cases have held that proof of destruction by fire is sufficient to rebut a presumption of undue care, the courts have in some other cases taken the view that proof of fire is not in itself sufficient rebuttal and that the bailee had to go forward with further evidence to overcome the presumption of negligence raised by non-return. See Annotation, 44 A.L.R.3d 171, 184.
The building belonged to Mr. Otto Haleck and housed other business tenants as well.
We also noted the following disclaimer on Haleck’s standard "Repair Order" form which seems to embody a policy contradicting Mr. Dave Haleck’s belief: "It is understood that the company assumes no responsibility for loss or damage by theft or fire to the vehicle placed with them for storage, sale, repair or road testing." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485959/ | *10This case is a sequel to Avegalio v. Leatumauga, 9 A.S.R.2d 96 (1988), referred to hereinafter as "the 1988 case." In that case the present objector (hereinafter "Failautusi") sued to enjoin the family of the present claimant (Leatumauga) from occupying land legally registered as property of Failautusi and his brothers and sisters.
Failautusi’s 1978 resurvey of the 3-acre tract called Vaosa, which he and his siblings had registered in 1946, showed a Leatumauga tract called Talifia‘ai immediately adjoining Vaosa on the seaward side. This resurvey also showed an overlap with a 1974 Leatumauga survey of Talifia‘ai, which had been prepared in connection with previous litigation between the same parties.
In the 1988 case Failautusi claimed that the Leatumauga family had recently begun occupying a part of Vaosa, roughly corresponding to the overlap between the 1974 Leatumauga survey and the 1978 Failautusi survey. The Leatumauga family admitted occupying the area in question but denied that Failautusi and his siblings owned this land — or, indeed, any land at all to the mountain side of Talifia‘ai. They contended that the 1978 Failautusi resurvey must be in an entirely different place than the land described in the original 1946 survey.
The court held that the 1978 resurvey was, in fact, an accurate retrace of the 1946 survey and that Failautusi and his brothers and sisters owned the land in question. The court therefore enjoined the Leatumauga family from occupying any land within the area covered by the resurvey. 9 A.S.R.2d at 99.
The present dispute is about three small parcels just outside the boundaries of the 1946 and 1978 surveys of Vaosa. Failautusi claims that he and his brothers and sisters have occupied this land since the 1930s, perhaps because they misunderstood the precise boundaries of the tract their father had purchased. Leatumauga maintains that his family has always owned and occupied these parcels, which adjoin a larger area that is undisputedly the communal land of the Leatumauga family. He contends that his neighbor to the mountain side is the Paogofie family and that the boundary he has drawn reflects the settled understanding of the Leatumauga and Paogofie families. (There are indeed two houses within the registered survey of Vaosa which belong to some people called Nelesoni who are said to be members of the Paogofie family; neither Paogofie nor any member of his family, however, has filed an objection to the Leatumauga survey.)
*11Failautusi stresses that the three parcels disputed in the present case are outside the 1974 Leatumauga survey of Talifia'ai. He urges that this disproves Leatumauga’s contention that his family has long claimed ( luch less occupied) the areas in question. Although this argura at is not without f ;rce, it does not preclude Leatumauga from presenting whatever eviaence he may have in support of his present claim. Whether Leatumauga can prevail in spite of the disparities between the 1974 survey (ordered by a former Leatumauga who is now deceased) and the more recent one depends partly on the strength of his own evidence and partly on the strength or weakness of Failautusi’s opposing case.
In this connection it must be observed that Failautusi’s position in the present case is far weaker, and Leatumauga’s correspondingly stronger, than in the 1988 case. In that case Failautusi sought only to regain possession of land that had long been registered as the property of his family. The 1946 registration procedure had the effect of precluding later judicial inquiry into the validity of the title registered therein. See Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989). Failautusi had only to prove that the land in dispute was the same land he had registered in 1946; the burden then shifted to Leatumauga, who could have prevailed only by showing that his family had subsequently acquired the land by deed from the record owners or by twenty or thirty years’ adverse possession.
In the present litigation Failautusi relies not on a deed or recorded title but on a claim of occupation. Because he claims the land as individual property of himself and his siblings rather than as communal property of an extended family, he must overcome the presumption that land in American Samoa is communally owned. Moreover, the land now in dispute appears to be surrounded by land belonging to (or purchased from) communal families of Pava‘ia‘i and Faleniu. Even if Failautusi and his siblings did occupy parts of it at times since the 1930s, they were almost certainly moving onto land formerly occupied by someone else rather than settling "virgin bush” that had never belonged to anyone. Failautusi can therefore prevail only by showing twenty years of "actual, open, notorious, hostile, exclusive and continuous occupancy" — or thirty years if such possession commenced after 1961. See A.S.C.A. § 37.0120 (as amended in 1982 by P.L. 17-31); id. (prior to 1982 amendment).
Leatumauga, by contrast, is the matai of a communal family of Pava‘ia‘i which is the undisputed historic owner and occupant of land immediately adjoining the three smaller parcels now in dispute. He has also offered his claim (including these three small parcels) for registration *12in compliance with the procedures set forth in A.S.C.A. § 37.0101 et seq. There has been no objection from anyone other than Failautusi. If, therefore, Leatumauga can present even a minimally plausible claim that his family’s historic occupation has included the three disputed parcels and if Failautu ii cannot prove a title by adverse possession, Leatumauga must prevail.
One of the three parcels in dispute is a triangular area at the extreme west-northwest of the Leatumauga survey. It adjoins Failautusi’s registered survey of Vaosa on the south-southwest. Failautusi concedes that Leatumauga is the only one with crops in this area but claims that he and his family formerly had crops there and that Leatumauga did not move in until after the 1988 case. Leatumauga claims that he and his family have long occupied the land and that Failautusi and his family never have.
The judges viewed the land. There are taro and banana plants in this area, apparently extending from Leatumauga’s plantations to the southeast. Although taro and bananas are annual plants whose appearance is not helpful in determining how long an area has been planted, the adjoining settlements of Failautusi and his family to the north (on Vaosa) and to the southwest (on another parcel called Ulutolu) are quite evident. These settlements appear to have clear and well-established lines of demarcation. The disputed triangle is separated from Ulutolu to the southwest by a stone wall, which the parties acknowledge to be an ancient one. To the north, the neatly kept area surrounding some houses of Failautusi’s family is on a slightly elevated plateau that drops off sharply to a sort of no-man’s land some distance to the north of the disputed parcel. It thus appears quite unlikely that either of these two settled areas formerly extended into the disputed triangle. The plantings within this triangle are, on the other hand, immediately adjacent to and indistinguishable from other plantings in the heart of Leatumauga’s property, with no apparent natural or man-made boundaries in between. Nor did Failautusi contend that Leatumauga’s people had ever physically ousted him or his family; if Failautusi’s family ever did occupy this land, they had apparently abandoned it by 1988. Both the testimonial evidence and the physical appearance of the land are far more consistent with Leatumauga’s claim to historic (although perhaps intermittent) occupation than with Failautusi’s claim that he and his siblings had exclusive and continuous occupancy long enough to acquire it by adverse possession. We therefore conclude that this parcel belongs to Leatumauga.
The second parcel is an even smaller rectangular area. It is on *13the Leatumauga side of a straight line that Leatumauga identified as defining most of his boundary with the Paogofie family. This line is also the boundary of the 1946 registered survey of Vaosa. This parcel is adjacent to an area in which there are Leatumauga houses and to another area in which there are houses belonging to the Nelesoni people. It does not appear to be near any areas occupied by Failautusi or his relatives. The evidence preponderates in favor of Leatumauga’s claim to this parcel.
The northwestern (that is, inland) portion of the third parcel is the location of a house belonging to a Mr. and Mrs. Pele. Mrs. Pele is a relative of Failautusi. She testified that she and her husband got permission from Failautusi’s father to build a house on this location, have been occupying the present house and its predecessor since 1945, and have never been disturbed in their possession by any Leatumauga people. Leatumauga does not contest the Peles’ long presence on the land but contends that they were there by permission of his grandmother, who was then the Leatumauga. Mrs. Pele denies this. The Peles have neither rendered tautua to the Leatumauga family nor otherwise acknowledged any property rights of that family in the land they possess. In these circumstances Mrs. Pele’s testimony that she was on the land by permission of her relative Sekio Avegalio and not of an unrelated matai has the ring of truth. We therefore conclude that the heirs of Sekio (i.e., Failautusi and his siblings) acquired ownership of the area surrounding this house in or about 1965 as the result of twenty years’ actual, open, notorious, hostile, exclusive and continuous occupancy by Mr. and Mrs. Pele.1
Mrs. Pele also testified that she and her family had cultivated the land to the southeastern (seaward) side of her house. She acknowledged, however, that the Leatumauga people had also cultivated this area at various times. All parties acknowledge that the area surrounding the Peles’ house is separated from this seaward area by a stone wall. Mrs. Pele says the wall was built by members of her family in 1945; Leatumauga says it is an ancient wall. In either case it appears to be a boundary of long standing. With respect to the area on the seaward side of the Peles’ stone wall, Failautusi has not presented evidence sufficient *14to establish a title by adverse possession.
Accordingly, we hold that all the land within the 1989 Leatumauga survey of Talifia‘ai should be registered as the communal property of the Leatumauga family, with the exception of the area in the northwestern comer of the survey, to the northwest of the stone wall in front of the Pele house.
It is so ordered.
We note that the Peles own ánother house, a short distance to the east of this one, which is on a tract of land the Peles purchased from a matai of Faleniu. It is outside the Leatumauga survey and is in no way involved in the present case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485960/ | This appeal was from a denial of permit to build a home on filled land within the Leone Pala Lagoon. We held that the land in question was "tidal or submerged" land belonging to the Government, which therefore had the authority to deny private persons permission to build on the land.
Appellant now urges that we misapprehended the facts of the case. We noted that the administrative panel below found that "tidal levels and action are clearly evident" and that "the area would most likely be inundated" had it not been for appellant’s prior unpermitted filling of the area. Appellant argues that this finding was "inconclusive" and "unclear at best," stressing the panel’s use of the term "most likely." He also suggests that it was improper for the Court to take notice of a "site plan,” contained in the record of the proceeding below, which shows the entire proposed building site to be within the lagoon, because the map "was never stipulated to be an exact topographical drawing." Finally, appellant points to other language in the opinion below, to the effect that" [a]t least two-thirds of the land, perhaps more," is tidal land. He argues that this language compels the conclusion that one-third of the land (about a quarter of an acre) "is now and always has been dry land subject to private ownership."
The panel’s use of the term "most likely" provides no support for appellant’s argument. In an administrative proceeding such as the *16one below, as in most judicial proceedings, a fact need not be proved beyond a reasonable doubt or even by clear and compelling evidence in order to be proved conclusively. Rather, it is sufficient that the fact appear from the evidence to be more probably true than not. The panel’s language, although somewhat colloquial, restates this standard.
Appellant’s objection to the Court’s use of the site plan is also without merit. The plan was part of the record below. It clearly shows the entire building site to be within the lagoon. If appellant had any objection to the accuracy of this depiction, he should have made it in the proceeding below. No such objection appears on the record, and appellant does not now indicate that he ever made one. Rather, he suggests that the plan should not be regarded as evidence in the absence of an affirmative stipulation with respect to its accuracy. The law of evidence is to the contrary.
A far more substantial basis for appellant’s objection to our original opinion is afforded by the panel’s reference to "at least two thirds of the land, perhaps more," as submerged or tidal land. This language does cast doubt on our interpretation of the panel’s more general statement that "the area would most likely be inundated" as including the entire area in dispute.
These two statements of the location of the building site vis-a-vis the lagoon are among several in the panel’s opinion. The panel also described the site as "in the midst of the mangrove swamp in the pala lagoon"; as "bounded all around by a cement wall sunk into the lagoon area"; and as "mostly, if not entirely, man-made fill." Two of these five references, taken in isolation, would suggest that a small part of the site might have been dry land before appellant began his illegal fill activities some years ago. The other three references place the entire site squarely within the lagoon.
It must be borne in mind that the determination of what an area would have looked like if someone had not dumped many tons of rocks and dirt on it entails a certain measure of speculation. Our reading of the panel’s treatment of this issue in its totality is that the great preponderance of the land was certainly, and the entirety of it was more probably than not, submerged or tidal before the filling began.
This reading is borne out by the evidence in the record. Not only the site plan, but every single recorded reference to the building site at any stage of the proceedings below, places it within the lagoon and *17designates it as the "landfill" or the "fill area." Though appellant’s proposed reading of the administrative decision is not semantically impossible, we believe our original reading to be a fairer one in the context of the entire decision and of the evidence received by the administrative panel.
Finally, even if Mr. Solomona did own a quarter acre island within the lagoon, constituting a portion of the land on which he proposes to build, we would still not reach the larger questions posed by his appeal. The American Samoa Government would be entitled to deny a permit for a house with a septic tank on a small island in a lagoon, at the mouth of a stream, even without the coastal-management regulations. See generally A.S.C.A. §§ 25.0101 et seq., 25.1501 et seq., 25.3001 et seq. As we observed in our original opinion, no compensation is due for what would otherwise be a regulatory taking when the government "‘merely restrains uses of property that are tantamount to public nuisances. Solomona v. Governor of American Samoa, 17 A.S.R.2d 186, 191 (1990) (quoting Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 491 (1987)).
Accordingly, the petition for rehearing is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485961/ | Petitioner, an alien who is being held in connection with deportation proceedings, sued for a writ of habeas corpus. A writ was issued, ordering respondents to produce the petitioner in Court. The respondents appeared as ordered, produced the petitioner, and stated their position that his continued detention was authorized by the immigration statutes and by the Court’s orders in the ongoing immigration case, Rakhshan v. American Samoa Government, AP 7-90. The Court continued the hearing, appointed counsel for the petitioner, and ordered the parties to submit briefs with respect to the issues raised by the petition and by the respondents’ answers.
Shortly before the new hearing date the Court received a handwritten letter from the petitioner, alleging that another inmate at the *19Correctional Facility, one Afoa Mata‘itusi, had threatened that "he is going to kill me because I am sueing [sic] the warden of C.F." The letter further alleged that Afoa has a spear with which he hunts dogs and cats and that petitioner had reported the threats to the warden but that .¿othing had been done.
At the continued hearing the Court ruled that the matters in the original petition, having to do with the lawfulness of petitioner’s detention itself, had been addressed and resolved in the immigration case and could not now be raised by habeas corpus. The Court continued the hearing yet again, however, so that both parties might address the issues raised by petitioner’s letter having to do with the conditions of his confinement.
At the second continued hearing we heard testimony from petitioner himself, from inmate Afoa, and from two other witnesses to Afoa’s threats against the petitioner. We find the facts to be as follows:
1) Inmate Afoa Mata’itusi is serving sixty years’ worth of consecutive sentences for rape and murder. He raped his step-daughter in 1978 and then murdered a fellow prisoner with a bush knife later the same year.
2) Prior to his two 1978 convictions, Afoa had "a lengthy record . . . with the criminal justice system in Western Samoa." American Samoa Government v. Agasiva, 6 A.S.R.2d 32, 37 (1987). The presentence report in the rape case recommended that Afoa not be released for any purpose during his term of confinement, and that he be segregated from the rest of the inmates, "[t]o safeguard the lives of others in the Community as well as inmates." Id. The Court that sentenced him for murder required that he be confined in a state or federal institution in the United States (as was then done with especially dangerous offenders) pending construction of a new prison facility "that would allow a suitable accommodation for felons of this type." Judgment and Sentence, American Samoa Government v. Mata ‘itusi, CR No. 45-78 (issued July 6, 1978). The sentence also forbade access to any "work release" programs.
3) Contrary to the Court’s order, Afoa Mata’itusi was not sent to an off-island prison. Although he may once have been segregated from other inmates in the territorial correctional facility, by 1987 this was no longer the case. See Agasiva, supra. Indeed, the Court found in 1987 — in a case with facts quite similar to those now before us — *20the Court found that the prison authorities had designated Afoa an informal "matai" with extraordinary quasi-official power over his fellow inmates. Id. at 37-40.
4) In the Agasiva case the Government maintained that Afoa had been thoroughly rehabilitated and was no longer a threat to other inmates. The warden even "presented himself as a character witness for inmate Afoa." Id. at 38. The Court rejected the Government’s contention in the strongest possible terms:
[I]nmate Afoa presents a real danger to the defendant . . . from a "physiological and psychological perspective." We find defendant’s fears to be objectively demonstrated and they give rise to the situation whereby his term of imprisonment is made more burdensome than the law allows. Inmate Afoa is not only a dangerous felon, but he actively trades on his reputation in order to instill fear and to manipulate a following with certain of the inmate population. His potential for violence is exacerbated and perhaps encouraged with the ostensible imprint of official sanction ....
Id. at 39. Specifically, the Court found that Afoa was an "institutional bully" who had recently struck one inmate on the face with a two-by-four, pummelled another with a rock, and "openly threatened to cut up another prisoner." Id. The Court further noted that "[t]he instrument used in the killing for which Afoa was convicted was a bush knife, and testimony had it that Afoa has ready access to such knives." Id.
5) The Court therefore ordered that Afoa be segregated from the complaining inmate, and that the complaining inmate "shall not as a result thereof be segregated from the remainder of the inmate population." Id. at 41. In other words, the required insulation of the complainant from Afoa could not be achieved by locking the complainant up in some out-of-the-way place while allowing Afoa to run loose.
6) At the recent hearing, the Government conceded that inmate Afoa, although nominally in "maximum security," in fact is allowed the run of the correctional facility. It also appears that he is frequently allowed to leave the correctional facility for various purposes.
7) Inmate Afoa did in fact threaten the life of petitioner *21Rakhshan on at least one occasion. He told some visitors from the Seventh Day Adventist Church that they had better dissuade Rakhshan from suing a certain friend of his, or he, Afoa, would "chop him up."
8) Afoa did make himself a spear, which the Warden has since taken away. However, it appears that Afoa still has access to bush knives.
9) It appears that the prison authorities — including the Warden, who was relieved of his duties for a time after the 1987 "matai system" incident but has since been reinstated — may still regard Afoa as an eccentric but useful fellow who has been unfairly maligned by certain troublesome inmates and by their pesky judicial protectors. Afoa himself testified at the recent hearing. He still regards himself as a matai (an apparent reference to his role within prison society rather than to a formally invested, legally registered matai title) and states that the other prisoners regard him as their leader and that he is the one who teaches them about Samoan customs. He says the prison authorities like him because he always follows the rules. He denies threatening Rakhshan and also denies the rape for which he was originally sent to jail, but freely admits killing another inmate because that inmate was planning to kill him and the Warden. (One of the alleged death threats against Rakhshan has to do with a lawsuit Rakhshan has brought against the Warden.)
The position now taken by the Government on Rakhshan’s petition echoes the position the Warden took (and the Court rejected) in the 1987 Agasiva case: that Afoa is thoroughly rehabilitated, a gentle soul who is no threat to anyone except perhaps the occasional dog or cat, and that the real problem in the correctional facility is troublemakers like Rakhshan. Counsel argued that Afoa’s recent threat to "chop up" Rakhshan must be understood as a way of "expressing his feelings" rather than as anything to worry about.
This is dangerous nonsense. We agree with the assessment of Chief Justice Miyamoto in 1978, and of Chief Justice Kruse in 1987, that Afoa presents a clear danger to those of his fellow inmates who will not acknowledge his "leadership" or whom he perceives as inconvenient to his friends, who appear to include the prison authorities. We further agree with Chief Justice Kruse’s holding in Agasiva that the Government’s right to hold a prisoner gives rise to "a correlative duty to protect that prisoner against assault and injury." 6 A.S.R.2d at 39. This is especially true in the case of petitioner Rakhshan, an immigration *22detainee who has been convicted of no crime.1
We conclude that Rakhshan is entitled, as was the petitioner in Agasiva, to relief from conditions of confinement that include exposure to Afoa or to any other inmate of proven vicious temperament. The Government may afford this relief in any of several ways:
1) It may choose to house immigration detainees in a separate facility from convicts;
2) It may transfer inmate Afoa to a genuinely secure facility in the United States, as required by his sentence, and make similar arrangements for other dangerous inmates;
3) It may release petitioner Rakhshan pending further deportation proceedings, notwithstanding his earlier bail violation; or
4) It may devise a system by which non-dangerous inmates such as Rakhshan will be protected from dangerous ones such as Afoa. Such a system, as noted by the Court in Agasiva, must operate by restricting the freedom of the dangerous inmates rather than the non-dangerous ones. This would necessitate dramatic changes in the current hotel-like arrangement by which almost all inmates, including recent rapists and murderers, are allowed not only to roam free within the prison grounds but also to come and go on "work release," "home release," or just to run personal errands. It would seem, however, to be the obvious solution to this case and to others like it.
*23The Government shall report to the Court no later than Thursday, February 7 which of these arrangements it has chosen to make. In the meantime, the Court’s interim order that inmate Afoa not be allowed within fifty feet of petitioner Rakhshan remains in force.
It is so ordered.
This is not to say that Rakhshan has not brought many of his troubles on himself. His continued presence in the correctional facility is due partly to his having run afoul of the immigration laws, partly to his having violated the terms of a bail that was granted by the Court, and partly to his having asked to be sent to a country whose immigration laws would allow him to apply for asylum and then having rejected a proposed stipulation by which he would be transported to Honolulu in order to present his asylum claim to United States immigration authorities. He also seems to have a real talent for alienating people. None of this, however, can justify conditions of detention which include threats that he will be "chopped up” by someone who has demonstrated the ability and disposition to chop people up. The petitioner in Agasiva had killed a man, and yet the Court held that it was unconstitutional to punish him by exposure to Afoa. 6 A.S.R.2d at 39-40. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485962/ | *24This case amounts to a relitigation of Talili v. Satele, 4 A.S.R.2d 23 (1987), involving substantially the same land, the same parties, and the same issues.
In Talili v. Satele (hereinafter referred to as "the 1987 case") we held that certain land within a larger tract called Tornea, belonging to the Satele family, had long been assigned to the descendants of a Satele family member called Talili. Satele Uoka Momosea, a defendant in the 1987 case as in this one and then, as now, the sa‘o of the Satele family, proposed to build a house for his sister on land that had previously been occupied by the Talilis. We held that the sa‘o of a family does have a right, in some circumstances, to take land previously assigned to one family member when the land is needed for important family purposes, but that this right is circumscribed by legal and traditional prerequisites of consultation and compensation which had not been observed in the case at hand. 4 A.S.R.2d at 27-28.
Both Satele and the Talilis subsequently notified the Court through counsel that they had settled their remaining differences in accordance with the Court’s decision. The Talili people had agreed to withdraw their objection to the construction of a house for Satele’s sister, thereby giving up any traditional and legal rights they may have had to the land on which this house was being built. In return, Satele had designated the boundaries of an area of Tornea which all parties agreed would thereafter constitute the area assigned to the Talilis.
The present case arose less than two years later when defendant Faga Williams, a Satele family member who is closely related to defendant Satele Momosea but not to the Talilis, was assigned by defendant Satele to live and work on part of the land then occupied by Talili plantations.
The plaintiffTalilis urge that the assignment to Faga contravenes the Court’s 1987 order and the settlement entered into pursuant to that order. Defendants Satele and Faga deny that the land assigned to Faga in 1989 is within the boundaries of the land assigned to the Talilis. Defendants also contend that even if the land is within the 1987 Talili boundaries, Satele retains the power as sa‘o of the family to reassign family land as and when he pleases. They maintain that as the population of the island of Tutuila increases, it follows naturally that some family members will have to give up some of their assigned land to other family members, and that the courts should not interfere with decisions by a sa‘o about which family members should be required to make such *25sacrifices.
It is clear that the land assigned to Faga is within the area long occupied by the Talilis. Defendants maintain, however, that the 1987 settlement excluded from the Talili-assigned area some Talili-occupied land in addition to the area that was taken for Satele’s sister’s house. Plaintiffs vigorously deny this, saying that they agreed to give up some of their previously assigned land only in exchange for a solemn commitment that there would be no farther encroachments.
All parties agree about the northern, southern, and western boundaries of the area designated for the Talilis in 1987. These are, respectively, the main road, a gully, and a line extending at a right angle from the road at a point just to the east of Satele’s sister’s new house. The disagreement is about the eastern boundary. The Talili witnesses, including their counsel who was present when the boundaries were pointed out, testified that Satele specifically designated the well-settled boundary with the village of Futiga as the eastern boundary of the Talili assigned area. The Satele witnesses, including their then-counsel who was also present, testified that Satele never walked over to the eastern side of the land occupied by the Talilis, apparently because the dispute in question was about the western part of the Talili area and not the eastern part. One of defendants’ witnesses, however, testified that Satele did point toward the easternmost Talili house, thus designating all the land east of that house as outside the Talili area. (The present dispute concerns land between this easternmost house and the Futiga border.)
Whether or not Satele actually walked over to the eastern part of the Talili holdings to point out a boundary, we find for plaintiffs on this issue. If the parties felt no need to designate an eastern boundary, it was precisely because there was no dispute about what this boundary should be. The long-standing eastern boundary of the Talili portion of Tornea was the Futiga line. If the parties to the 1987 case had meant to change this boundary — and thereby to cancel a long-standing traditional assignment of land to family members whose crops even then were growing on the land — they would have done so by clearly identifying a boundary, as they did in the west.
We note, moreover, that even the Talilis’ version of the 1987 settlement was somewhat more favorable to Satele and his immediate relatives than was required or suggested by the Court’s opinion. See Talili v. Satele, supra, 4 A.S.R.2d at 28 ("At the conclusion of such negotiations, the plaintiffs should have the right to cultivate *26approximately the same amount of land as they were cultivating immediately prior to the bulldozing."). The defendants’ version of the settlement — that plaintiffs not only gave up the part of their assigned land which had been the subject of the 1987 case, without insisting on the customary compensation for which they had just fought and won in court, but also gave up an altogether separate portion of their assigned land which had not theretofore been in dispute — is inconsistent with everything else the litigants have said and done during the course of the two recent lawsuits.
Defendants are also wrong about the law and custom with respect to assigned land, for reasons we have stated at length in our 1987 decision and in our opinion granting a preliminary injunction in the present case. While it was undoubtedly true before the coming of the present government that some matais, on some occasions, wielded the power to dispossess family members at will of lands they had long occupied and cultivated, their authority to do so was strictly limited by customary law. The High Court’s decisions over the last ninety years or so have attempted to restate and reinforce those customary rules. See, e.g., Mailo v. Fanene, 1 A.S.R. 191 (1907); American Samoa v. Iose, 2 A.S.R. 638, 640 (1939) ("[Ujnder the Samoan custom .... the plantation and the fruits thereof are the property of the man putting in the plantation subject to the duty of service to the matai."); Malaea v. Fiapapalagi, 2 A.S.R. 651 (1951); Vaotuua Family v. Puletele, 3 A.S.R. 145 (1955); Tago v. Faleulu, 3 A.S.R. 370 (1958); Tali v. Tupeona, 4 A.S.R. 199 (1961); Leapaga v. Masalosalo, 4 A.S.R. 868 (1962); Ifopo v. Vaiao, 2 A.S.R. 472 (1949); Tiumalu v. Lio, 3 A.S.R. 176 (1955).
The tradition that certain lands are reserved for the use of certain family members is at its strongest where the family is a large and prestigious one containing clearly identifiable sub-groups. In smaller families the sa‘o stands in relation to members of the family as a father to his children; the handful of large families headed by "paramount chiefs" are more like European principalities in which the relation of the prince to his subjects was an essentially political one, carried on through various mediating layers of well-defined rights and obligations. Satele is an outstanding example of such a family. The Satele family consists of several large clans, each of which has various sub-groups and could just as easily be regarded as a family unto itself, and Satele lands tend to be clearly identified with one or another of these clans or sub-groups.
Tornea has long been held to be reserved for the exclusive use of "those members of the Satele family who are the descendants of Satele *27Pili and the members of the Satele family who were under the mataiship of Satele Pili, and their descendants." Satele v. Faga, 2 A.S.R. 26, 28 (1938) (emphasis added). Defendant Satele Momosea Uoka and his immediate relatives, including defendant Faga Williams, are direct descendants of Satele Pili. As such they belong to one of the two groups who hold a beneficial interest in Tornea. The Talili plaintiffs belong to the other group: Satele family members who were "under the mataiship of Satele Pili" — that is, who supported Pili against his rival Satele Uga during a time when there was a split in the family.
What is really going on in this case has little or nothing to do with theories about the absolute versus limited power of the sa‘o; indeed, Momosea himself once successfully argued in Court (prior to becoming the Satele) that the Satele titleholder does not have the authority he now asserts to assign land within Tornea to any family member he pleases. Satele v. Naea, Momosea & Sisters, LT No. 1544-75 (Decision issued November 26, 1976). Nor is this case really about the diminishing amount of land per person in Tutuila; the Satele family has many lands, and the record affirmatively discloses that there is a large vacant area immediately behind the new house of Satele’s sister, formerly occupied by Talili crops but already given up by the Talilis as part of the 1987 settlement. What is going on here, as in five of the other six lawsuits concerning Tornea during the last twenty years,1 is that some of the immediate relatives of the present Satele have read the 1938 Satele v. Faga case as reserving Tornea for the exclusive use only of descendants of Pili, and therefore believe they have a right to expel those long-time occupants of Tornea who were "under the mataiship" of Pili, although *28not descended from him. This contention is flatly inconsistent with the language of the 1938 opinion and has been rejected by the Court on at least two occasions before now. See Momosea v. Talili, LT No. 19-84 (Opinion and Order issued July 8, 1985); Satele v. Talili, supra, 4 A.S.R.2d at 27.
Tornea in its entirety, as depicted m a 1930 survey map by defendants’ ancestor Faga, appears to consist of about ten acres. See Defendant’s Exhibit 2. Interestingly, this 1930 map was a retrace of a 1907 survey which had designated all Tornea as the property of "Satele and Talili." See Satele v. Afoa, LT No. 19-1930 (1907 survey map by J.W. Jewett). See also id. (testimony of Satele Moso‘oi, March 4, 1932): "In 1907 . . . Satele then make his appointment and told .... Talili I designate the land Tornea for you to use."). The Talilis now occupy only a fraction of this land. They have been occupying it, along with the portion recently given up for the house of Satele’s sister, for many years. The 1987 settlement reaffirmed their traditional right to occupy this part of Tornea and should have put an end to further contention.
We hold that the eastern portion of Tornea, from the Futiga boundary to the line drawn by the parties in 1987 near the house of Satele’s sister, is Satele communal land reserved for the exclusive use of descendants of Talili. Although they must continue to render tautua to Satele (as they have been doing through their branch of the family in Vailoa) and may not build structures requiring building permits or separation agreements without permission of Satele, the descendants of Talili may not be disturbed in their exclusive possession of this land.
The preliminary injunction issued on April 19, 1990, will be made permanent, and defendant Faga Williams will be further directed to remove his crops and structures from the land within sixty days. Any crops or structures remaining on the land after that time will be deemed to have been surrendered to the plaintiffs.
It is so ordered.
See Momosea v. Talili, LT No. 29-77 (dismissed without prejudice June 15, 1977); Talili v. Foma 'i, LT No. 72-79 (dismissed without prejudice June 17, 1980); Lavata‘i v. Foma'i, LT No. 96-79 (dismissed without prejudice June 17, 1980); Momosea v. Talili, LT 19-84 (Order issued July, 8, 1985); Talili v. Satele, 4 A.S.R.2d 23 (1987). All of these cases involved Momosea (now Satele Momosea) or members of his immediate family on one side, and Talilis on the other. The only case in which Momosea squarely prevailed was not against the Talilis but against an attempt by the then-Satele to assign land in Tornea to a member of the Uga side of the family. This case concerned land outside of the part of Tornea occupied by the Talilis, apparently in an area traditionally reserved for descendants of Pili. See Satele v. Naea, Momosea & Sisters, LT No. 1544-75 (Decision issued November 26, 1976). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485963/ | *30Plaintiff alleges defendant’s breach of lease agreement and sues for the following damages: lost profits, lost value of leasehold interest, personal property converted, and unretumed security deposit. Plaintiff also seeks exemplary damages, alleging that defendants’ actions were "willful and wanton." The referenced leasehold is embodied in a written "Lease Agreement" entered into by the parties on September 1, 1986, for a stated term of three (3) years. The lease’s expiry date is given as September 1, 1989; however, the instrument further provides for:
[an] option to renew for two (2) years, provided that no violations have occurred during the original term of the lease. Parties hereto may re-negotiate [sic] for renewal of this lease should such desire be expressed by Lessee to Lessor in writing within the last 30 days of this lease.
It is the meaning of this provision which is basically the source of the dispute between the parties. The immediate issue is whether or not the lease was renewed — plaintiff claims that it was, whereas the defendants say that it was not.
7. Renewal
The quoted provision starts out looking like a familiar conditional "option" to renew. However, the immediately succeeding sentence also looks contradictory; it arguably suggests that renewal is subject to the lessors’ discretionary cooperation (the parties "may" renegotiate renewal). Indeed, this is defendants’ argument. Defendants submit that the option is not really an option and that the lease agreement merely contemplates a renewal if in fact the lessors agree. Defendant Tuika Tuika denied agreeing to a renewal of the lease and explains his acceptance of rent after the expiration of the original term in terms of a holdover tenancy on a month to month basis.
We disagree with defendants’ reading of the lease. Although somewhat awkwardly expressed in the instrument,1 we are satisfied that an option to renew was given to the lessee. The rental clause also contains the following language:
*31Lessee agrees to pay without demand, to Lessor, as rental for the demised premises the sum of Five Hundred Dollars ($500.00) per month for the first six months, and Seven Hundred and Fifty ($750.00) thereafter until the expiration of five years should Lessee exercise and Lessor accepts the Option. (Emphasis added).
What is quite clear from the above is that both the renewed term (two years) and rent ($750.00 a month) were unambiguously fixed by the parties from the outset. Thus, the provision relating to re-negotiation refers only to those other terms and conditions of the lease, excepting term and rent. Furthermore, the option is not at all contradicted by the language, "the parties may re-negotiate for renewal," because this phrase can only sensibly mean that the parties may either go with the old terms of the lease, or they may re-negotiate where appropriate.
We are also satisfied that the lessor had accepted renewal of the lease. After being informed of the lessee’s desire to renew, the lessor continued to accept rent while the lessee continued to remain in possession. Significantly, the rental sum being paid and received was exactly that rental figure stipulated as being payable throughout the renewed period. Having, therefore, accepted from the lessee that very performance envisaged by the renewal option while at the same time acquiescing in the lessee’s continuing possession of the demised premises, the lessors cannot now be heard to deny the exercise of the option. Moreover, the inference is compelling; acceptance by the lessors of the lessee’s performance also constituted a waiver by the lessors of their right to refuse renewal of the lease by reason of lessee’s breach or non-performance.
II. Breach
After expiration of the lease’s original term, on September 1, 1989, "at midnight," the lessee duly made the rent payments for the next three months. In January 1990, however, the lessee could only tender the lessors a partial payment on the rent with the explanation that business had been slow over the passing holiday period. In fact, this turned out to be the last payment of rent by the lessee. Hurricane "Ofa" struck in the following month of February, and its high winds tore off some roofing to the demised premises, resulting in extensive water damage to the interior of the premises and much of its contents. The *32premises remained in that condition for several months thereafter. In the interim, plaintiff was out of business while the defendants were out of rents.
This situation appeared to be fostered in part by the fact that neither party had any clear idea as to each’s rights and obligations under the lease. Among other things, the instrument was completely silent on the contingency of ruinous storm damage. In addition, the evidence was also clear that plaintiffs financial circumstances were such that he was not in a position to undertake any sort of repairs himself. Rather, he could only take a "wait and see" approach as to whether the lessors would repair the roof. The lessors, on the other hand, were similarly looking to the lessee to do the repairs, and when it became apparent that such repairs were unlikely, the lessors began to be more concerned with the likelihood that the lease was coming to an end. This became evident following Tuika Tuika’s confronting plaintiff sometime in March about his intentions to recover the premises. Plaintiff told Tuika that he did not have the money to do any repairs. He also informed Tuika about his unsuccessful attempts to find an investor or partner and, indeed, he also solicited Tuika’s assistance in this regard. Thus, when plaintiff was seen shortly thereafter to be removing things from the premises, the defendants (again without any clear idea'as to rights under the agreement) asserted claims to the furnishings and equipment in the premises as if the lease had concluded.2
An argument ensued as to who owned what in the building, and the defendants thwarted any attempts by plaintiff to take anything out of the premises. This triggered plaintiffs filing of suit in which he also sought provisional relief to enjoin the defendants from interfering with his removal of property which he considered was his. Fortunately, with the assistance of counsel, the parties did manage to sort out much of who-owned-what in the premises. Plaintiff, however, is minus two electric organs, two air conditioners, and miscellaneous bar stock which he claims to have been converted by the defendants.
*33On the foregoing, we conclude that the lease had, for all intents and purposes, come to an end following the destruction of the premises. As noted above, the lease did not provide for the sort of contingency which materialized with hurricane "Ofa." Neither party had any obligation to restore the premises which for all practical purposes was substantially damaged.3 From plaintiffs financial point of view, the premises may just as well have been totally destroyed as he was in no position whatsoever to take any remedial action. Until restoration of the premises, plaintiff could not get back into business, let alone think about paying up the reserved rent which, incidentally, was payable "without demand."4 Therefore, as neither party did anything to reinstate the premises, we infer mutual cancellation or rescission in the circumstances.
III. Relief
There being no breach of the lease, plaintiff has no claim for which damages may be granted for lost profits and lost value of leasehold interest. Additionally, we see no basis for exemplary damages. We hold, however, that defendants are liable for plaintiffs missing property. When they took possession of the premises and its contents to the exclusion of plaintiff, a bailment situation arose. Thus as bailee, the lessors owed lessee a duty to look after his property while it remained in their custody. Garcia v. Galea'i, 15 A.S.R.2d 14, 17 (1990). At the same time, the cases have consistently held that a bailee’s failure to return the bailor’s property upon the latter’s demand constituted a prima facie case of culpable negligence. See Annotation, 65 A.L.R.2d 1228, 1233. In the instant matter, there was no satisfactory explanation or accounting given by defendants for the missing bailed items and the inference, therefore, arises that the defendants had failed to take due care *34of plaintiffs missing property. See Commercial Corp. v. N. Y. Barge Corporation, 314 U.S. 104 (1941). Accordingly, we hold that the defendants are liable in damages to plaintiff for the latter’s lost property, to wit; two electric organs (storm exposed), two air-conditioners purchased in 1987 (18,000 btu), and miscellaneous bar stock. We fix damages for the value of these items as follows: the organs, $950.00; the air conditioners, $650.00; and the bar stock, $1,000.00.
We also conclude that plaintiff is entitled to a full refund of the security deposit of $1,000 which he made with the lessors at the outset of the lease. As noted above, the lessee’s covenant to repair is limited to damage arising through his use and occupation of the premise excepting damage arising out of "an act of God," from "normal wear and tear," or "reasonable use and wear . . . and damages by elements." See Lease Agreement, clauses 1, 12, and 13. The "wear and tear" exception must be read in context with the lease’s underlying purpose — that the demised premise would be used as a "restaurant and bar." In this regard, the public health directives pointed to by defendants as demonstrating pre-hurricane damage hardly revealed anything beyond the sort of wear and tear normally expected from bar patrons. In any event, the extensive damage evident with the demised premises at the time the lessors took over was that occasioned by hurricane "Ofa." This is damage for which plaintiff is not responsible and, thus, defendants’ counter-claim for damage to the premises is without foundation. Fair wear and tear to the premises generated by bar patrons was something which the defendants had bargained for in return for rent. On the other hand, hurricane damage was not an obligation bargained for by the lessee.
Plaintiff shall have judgment against the defendants for the sum of $3,600.00 plus court costs. The defendants shall take nothing on the counter-claim.
It is so Ordered.
The document looks very much homemade; it obviously reflects a number of different lease precedent forms inartfully put together without too much concern for coherency.
Clause 7 of the lease states that "improvement [sic] and repair [sic] permanently attached to the leased premises shall become part of said premises." Similarly, clause 19 provides that "fixtures and attachments" become part of the premises "including bar counter and all parts attached to it, the booths and tables remain with leased premises at the termination of the lease agreement."
Lessee’s covenant to repair was limited to damage attributed to his use and occupation excepting damage arising out of an "act of God," see clause 12, and fair, wear, and tear, see clause 1. On the other hand, absent agreement or statute, the unyielding rule at common law is that the lessor is under no obligation to rebuild or restore premises destroyed without his fault. See 49 Am. Jur.2d, Landlord and Tenant § 774, at 715.
Plaintiff appeared to harbor the misconception that he gained some grace period with late payment of rent when the landlord failed to timely show up and collect the rent. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485964/ | "Laie" is a to‘oto‘o or high talking chief in the village of Fitiuta on the island of Ta‘u, Manu’a.
*36Tafua M. Seumanutafa offered the title for registration in his own name. There were six objectors, and the matter was referred by the Registrar to the Office of Samoan Affairs and thence to the High Court. Two of the objectors failed to appear despite notice, and a third withdrew shortly before the day set for trial. The candidates who appeared at trial were claimant Tafua and objectors Tafaoa, Tuiveta, and Kereti.
/. Motions to Disqualify
Counsel for candidate Kereti moved to disqualify the other three candidates on the ground that none of their petitions contained the signatures of twenty-five blood members of the family who reside in American Samoa, as required by statute. See A.S.C.A. §§ 1.0405(b), 1.0406(b). Counsel for candidate Tafaoa pointed out that this requirement does not apply "[i]n the event the family does not have a sufficient number of members qualified as herein required to support the claim." A.S.C.A. § 1.0405(b); see A.S.C.A. § 1.0405(d),
The difficulty with this argument is that candidate Kereti was able to obtain 158 signatures, all of them apparently valid. The paucity of signatures on the other candidates* lists (at least in the case of Tafaoa and Tuiveta) would appear to be due not to an insufficiency of family members living in American Samoa, but to an insufficiency of family members living in American Samoa who support the candidates in question. This is an important distinction, going to the heart of what the twenty-five signature requirement and the exception to it seem to be about. Also, no candidate submitted an affidavit with his petition attesting to the insufficiency of qualified family members, as is required in order to invoke the statutory exception.
Counsel for candidate Tafua had a somewhat different defense to the twenty-five signature rule: he offered to prove that his candidate had in fact obtained twenty-five signatures but had inadvertently turned in only twenty-three to the Registrar. Counsel showed the Court a document which did contain twenty-five signatures and which he said was Taftia’s original petition. For some unexplained reason, the circulators of the petition did not turn in this original but decided to circulate a new one to the same people who had signed the old one. Possibly because two of the signatures on the new petition are so large as to take up two lines apiece, the circulators turned it in to the Registrar with two fewer signatures than were necessary. Counsel requested that we take judicial notice of the two additional names on Taiua’s original petition.
*37Because the motion to disqualify these three candidates was not made until the day of trial, we consolidated our consideration of it with the merits of the case. Because our decision on the merits renders a formal ruling on the motion unnecessary, we make no such ruling. Candidates for matai titles should be advised, however, not to treat the twenty-five signature rule lightly. Its language appears to be mandatory; similar requirements have been held to be jurisdictional. The Court may yet find itself in the unfortunate position of having to disqualify a candidate who would otherwise be held best qualified to hold a matai title.
Counsel for candidate Kereti also made a motion to disqualify candidate Tafua on the ground that he was not bom in American Samoa and does not fall within any of the statutory exceptions to the requirement of American Samoan birth. See A.S.C.A. § 1.0403. Apropos of this motion the Court was presented with two birth certificates, one from Western Samoa and one from American Samoa, appearing to attest the birth of a baby with the same name to the same parents on the same day but on different islands. Counsel for Kereti also presented what purported to be a copy of a 1982 letter from the Chief Immigration Officer of American Samoa to his counterpart in Western Samoa, to the effect that Tafua had renounced his American Samoa citizenship and turned in his passport for cancellation. Tafua, however, produced an apparently valid American Samoa passport, bearing his name and picture with a different number than the one mentioned in the letter. Our decision on the merits obviates further inquiry into the various questions raised by these documents, but we thank the candidates for an interesting afternoon.
II. Best Hereditary Right
As with all matai title cases during the last few years, the Court had to decide whether to calculate hereditary right according to the traditional rule — calculating each candidate’s descent to the nearest titleholder — or to the "Sotoa rule" by which all candidates’ descent is traced from the original titleholder or from a common ancestor of all candidates. The advantage of the latter rule is that it avoids discrimination against clans which have not held the title for several generations but whose members, according to the tradition in many families, remain entitled to a fair chance at each new vacancy and perhaps even to some affirmative credit on the theory that each clan should have its turn at the title. Unfortunately, the candidates often *38vigorously disagree about the facts that would be necessary to calculate descent from the original titleholder or any other such ancient ancestor. In the present case it seems clear that the first titleholder was called either Laie Alalaie, Laie Fiatau, or both, and that he was alive in about 1830. No two candidates agree, however, on who this Laie’s children were.
There is closer agreement, although not unanimity, on who has held the title since Alalaie or Fiatau. The candidates agree, with scattered exceptions, that the Laie titleholders through whom the other candidates claim were real people who did hold the title. This militates in favor of the application of the traditional formula.
Tafua claims descent from Laie Fiatau. He traces his ancestry to a great-great-great-great-grandmother called Fesolata’i, whom he says was a daughter of the first Laie. There are no other Laie titleholders in his genealogy. This would give Tafua a 1/128 right to the title under either the traditional formula or the Sotoa formula.
Tafaoa claims that his mother’s mother’s father was Laie Sione or Tai, who is recognized by all candidates except Tuiveta as having been the second titleholder and the son of Laie Fiatau/Alalaie. Counsel for other candidates suggested that this number of generations (only four since the early 1800s) seems quite small. Assuming that his genealogy is correct, however, Tafaoa would have a 1/8 connection to the nearest titleholder. He would also have a 1/16 connection to the first titleholder.
Tuiveta Misa is son of Laie Misa. It is clear that Laie Misa held the title briefly about sixty or seventy years ago, just before Laie Aniva. He never registered the title as required by law, for no apparent reason other than that he never got around to it during the three or four years he was holding the title. Registration of matai titles was a fairly new practice, and transportation between Manu'a and Tutuila was difficult and irregular. There is no suggestion that the whole family did not recognize Misa as the Laie during this time, or that there was any other legal obstacle to his registering of the title had he chosen to do so. In these circumstances, and for the limited purpose of calculating Tuiveta’s blood relationship to the title, we hold that Misa should be counted as a titleholder. This gives Tuiveta a 1/2 hereditary right to the title according to the traditional formula. (Tuiveta also claims that Laie Misa was one of four children of Faioa, whom he also claims was the only child of Laie Alalaie. The other candidates disagree. If correct, this genealogy would give Tuiveta a 1/8 relationship to the first *39titleholder.)
Kereti is the son of a daughter of Laie Aniva, whom all candidates recognize as having held the title. This means that his right to the title according to the traditional formula is 1/4. (Kereti also claims that his grandfather Aniva was the great-great-grandson of Faioa, the daughter of Laie Fiatau. This would give him a 1/128 relationship to the first titleholder.)
We find that Tuiveta prevails on the issue of hereditary right, with a 1/2 relationship to Laie Misa. Kereti is second, with a 1/4 relationship to Laie Aniva. It is more difficult to evaluate the evidence presented by Tafaoa and Tafua, but Tafaoa appears to rank third and Tafua fourth.
III. Support of the Clans
The second statutory criterion is the support of the majority or plurality of the customary clans within the family. The candidates are in hopeless disagreement about how many clans there are in the family, what they are called, and from whence they derived. One reason for this is that Laie Taulago, the most recent titleholder, paid no particular attention to clans in family gatherings and fa ‘alavelave. This may also have been true under the previous titleholder, Laie Aniva. It is therefore arguable that a custom has evolved within the family whereby the whole family operates as one clan.
It also appears, however, that during the five family meetings held in an effort to choose a successor to Laie Taulago, there were certain recognized hereditary groups or "sides" within the family. Two clear instances of such groups were the descendants of Laie Misa (whose spokesman was Tuiveta) and the descendants of Aniva (whom at least one other candidate referred to as constituting candidate Kereti’s "side"). It appears that candidate Tafaoa and an elderly chief named Te‘i Lanu also represent distinct groups within the family. Tafaoa identifies himself as being from the Sione or Tai clan, and Te‘i is identified by candidate Kereti as a member of the Fiatau clan.
Candidate Kereti presented the most comprehensive theory of the operation of customary clans within the Laie family. In his theory there are eight clans, each composed of the descendants of a particular Laie titleholder. Those family members who are descended from more than *40one titleholder are members only of the clan associated with their most recent ancestor. There is no clan associated with the most recent holder, Taulago, apparently because during his lifetime his children chose to remain active in the clan of his father Aniva. The judges are aware of other families in which clans are derived according to this system or a similar one. We note, moreover, that Kereti’s list of clans is virtually identical to that given by Taulago, the victorious candidate in the last Laie title case, MT No. 25-63.
Whether the number of clans is one, three, four, five, or eight, Kereti prevails on the question of clan support. It is clear both from the petitions and from the various accounts of the family meetings that the overwhelming majority of the family supports Kereti. According to a list compiled by Kereti and not effectively contradicted by any other candidate, the 158 signatures on his petition include substantial numbers from each of eight clans. Even if there are fewer than eight clans, and even giving each other candidate the benefit of the doubt with respect to majority support within his own clan — and this includes giving Tafua the benefit of the doubt with respect to the existence of the Fesolata’i clan, which is denied by the other three candidates — Kereti is the only candidate who can demonstrate substantial strength outside his own clan. His support includes, at the very least, the Aniva clan and also the group whose spokesman is Te‘i and whom Kereti identifies as the Fiatau clan. These two groups account for thirty-four of Kereti’s signatures. No matter how the remaining 124 are divided, it would be difficult for Kereti not to prevail over the other candidates’ twenty-three, twenty-two, and fifteen supporters. It is also clear that an overwhelming consensus at most of the family meetings supported Kereti.
We conclude that Kereti prevails on the issue of family support and that the other three candidates are tied for a distant second.
IV. Forcefulness, Character, and Knowledge of Samoan Custom
All the candidates had strong and weak points with respect to the statutory criterion of forcefulness, character, and knowledge of Samoan custom.
Tuiveta is seventy-four years old and presumably has many of the virtues that tend to develop with age. These virtues have unfortunately not been manifested in the family context. Although Tuiveta says he is standing for the title only in order to unite the family, *41he does not recognize any of the other three candidates (or, by strong implication, either of the last two Laie titleholders) as blood members of the family. His attitude on this and many other questions, moreover, is a vehement one that does not seem to admit the possibility of compromise.
Tafaoa gave long and loyal service to Laie Taulago. The Tafaoa title has an ancient and important relationship to the Laie title, and in this Tafaoa appears to have performed his duties well. His actions have demonstrated his good character more clearly than any words could do. His familiarity with the finer points of Samoan custom and chiefly language, however, is not as well developed as that of the other candidates.
Tafua, notwithstanding any lingering doubts about the matter of his two birth certificates, more than adequately demonstrated his forcefulness and knowledge of Samoan custom. He is perhaps the best speaker among the candidates, has attended college, and has held a number of important positions in the government and in the private sector.
Kereti is also an impressive candidate. Although his illegal use of an unregistered matai title (Tua‘au) stands against him, it may be said in mitigation that this was apparently done out of ignorance rather than malice and that there has been no apparent objection to his use of the title until now. This does not appear to have been a situation in which one candidate for a title has deliberately defied the law in order to gain a strategic advantage over his rivals. In general, Kereti is an intelligent and educated man whose character and forcefulness have been demonstrated by success in business and in government service, as well as by his many services to the Laie family.
It is the consensus of the judges that Tafua and Kereti prevail on the issue of forcefulness, character, and knowledge of Samoan custom, followed by Tafaoa and Tuiveta.
V. Value to the Family, Village, and Countiy
The judges find that Kereti prevails on the fourth criterion, value to the family, village, and country. The factors that entered into consideration of the criterion of forcefulness, character, and knowledge of Samoan custom also figure heavily in the calculation of a candidate’s *42value to the family, village, and country. In addition, Kereti’s strong support within the family is a factor that must be considered in estimating his potential value as the Laie.
VI. Conclusion
Kereti prevails over Tuiveta on the second, third, and fourth criteria. Kereti prevails over Tafua on the first, second, and fourth criteria and is tied with him on the third criterion. Kereti prevails over Tafaoa on the first, second, third, and fourth criteria.
We therefore hold that Kereti L. Mata'utia is entitled to hold the Laie title.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485965/ | On August 7, 1990, after a hearing to determine the defendant’s competency to stand trial pursuant to A.S.C.A. §§ 46.1301 et seq., we held that the evidence preponderated against a finding of present competency. We made it clear that the question was a close one and that our finding was partly due to the government’s presentation of practically no evidence. (This was apparently due not to prosecutorial negligence but to last-minute difficulties in arrangements with the expert witness who had been scheduled to testify.) Although we had serious doubts about the conclusion of the expert witness presented by the defense, to the effect that defendant suffers from a mental disorder called dementia which makes it impossible for him to understand the proceedings against him or to assist in his own defense, we found this conclusion to be supported by the preponderance of the evidence presented at the hearing.
We ordered, pursuant to A.S.C.A. § 46.1305, that defendant be confined pending a further hearing to be held within 120 days to determine whether defendant was then-competent to stand trial or, if not, was substantially likely to become competent within a year. The second competency hearing was held on December 7 and 10, 1990.
We now find the defendant competent to stand trial. The evidence taken at the second hearing, even when taken together with the evidence at the first hearing, preponderates against a finding that defendant suffers from dementia or any other severe mental disorder.
Although not of particularly high intelligence, defendant is not mentally retarded. He appears to have at least a rudimentary ability to think abstractly and to discuss concepts, including legal concepts. He is eager to assist in his own defense and gets along well with his attorney.
It does appear that there have been certain gaps or obstacles in defendant’s ability to communicate with counsel about legal strategy. One such problem, defendant’s apparent belief that he would be sentenced to death if convicted (despite counsel’s assurance that American Samoa has no constitutionally enforceable death penalty statute), has been solved since the first hearing. Defendant no longer *44believes he will get the death penalty.
Defendant still may have problems discussing certain other questions, particularly the insanity defense and the question of how and why a weapon that was involved in the case was transported to American Samoa. The evidence suggests, however, that these problems stem neither from any comprehensive mental disability nor (as the Government’s expert suggested) from any defects in defense counsel, who appears to be doing an excellent job. Rather, the descriptions we have heard of defendant’s statements on these issues impress us as having to do with emotional reactions such as many an otherwise reasonable person would have in contemplating the possibility of his own insanity or in discussing half-forgotten private thoughts and actions which may seem in retrospect to have been vague, confusing, or shameful. Even if defense counsel should have no success in his continuing effort to persuade defendant to adopt a more open and flexible attitude toward these issues, we could not say on that account alone that the defendant does not have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" or "a rational as well as factual understanding of the proceedings against him. ” Dusky v. United States, 362 U.S. 402, 402 (1960).
Defendant does have a heart condition and other physical problems that could render him too ill for trial at any given time. If this appears to be the case on the day scheduled for trial, or becomes the case during the course of the trial, a continuance or even a mistrial might be necessary. We do not believe, however, that defendant’s medical problems render him incompetent to stand trial. During the several days of the two competency hearings he appeared attentive and alert. Indeed, the defendant gave every outward appearance of understanding what was being said.
One incident, in which the defendant was for a few minutes unable to remember his counsel’s name, does not fit easily into the above analysis. This may have been related to a "cardiac crisis" such as the defendant may have had on another occasion while being examined by the defense expert, or to a mild epileptic episode, or just to the fact that defendant had recently awakened and was momentarily disoriented. It could also be symptomatic of deeper problems. At present, however, it is the only incident of its kind of which we have been made aware. Perhaps the one fact on which the parties agree is that defendant generally has quite a good memory. Nor does the incident we have described suggest that the defendant is generally unable to work with his *45counsel.
The expert witnesses for the two parties took quite different approaches to the evaluation of competency, and each made it clear that he did not think much of the methodology employed by the other. Although the Court adopts the conclusion advanced by the Government’s expert, this is not to be taken as implicit acceptance of his criticism of the defense expert — nor, indeed, of outright rejection of all the defense’s criticisms of the approach taken by the Government expert. In particular, the "Competency to Stand Trial Assessment Instrument" impressed us as simplistic and circular in theory and as highly susceptible to idiosyncracies and errors in application. Several other tests administered by the Government’s expert, however, appear to be reliable in assessing general intelligence and the ability to think abstractly and in identifying symptoms of mental disorders that might interfere with such thinking. Although none of these tests appears to have been specifically "validated" for Samoans or Pacific islanders as a group, the literature supplied by both experts suggests that the risk run in giving the test to a member of a group for whom it has not been validated is that he will seem less intelligent or more psychotic than he really is, not the other way around. There does not seem to be any risk that such testing will generate a false impression of intelligence or of the absence of mental disorders.
The Court also questioned both experts at length about the data they considered in reaching their conclusions and has attempted, as far as possible, to make an independent evaluation of this data in light of the significance the experts suggested it ought to have and the Court’s own understanding of the legal standards to be applied. The Court has also considered the information supplied by the other witnesses at the two hearings and in the affidavits of defense counsel and has listened to taped conversations with the defendant. Our conclusion is that the defendant, while undoubtedly quite far from being the perfect communicator or the perfect legal strategist, is capable of understanding the things he needs to understand in order to have a fair trial.
We hold that the defendant is competent to proceed. The case will be set for trial upon motion of either party. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485968/ | The hearing on this motion by Le’oso for new trial or amendment of our judgment was continued several times so as to allow the parties to attempt a settlement.
At the most recent hearing, counsel for Le’oso and counsel for Iuli informed the Court that these parties had reached a settlement. The terms of this settlement appear to be that Iuli will cede to Le’oso a portion of the land held to be his family’s property but presently occupied by members of the Le’oso family, and Le’oso will agree to the dismissal of his motion for new trial or amendment of the judgment with respect to the remainder of this land. We have been promised a written stipulation, which we expect to receive momentarily and which will be entered as an amendment to our judgment.
The remainder of the Le’oso motion had to do with land held to be the property of Taeleifi. At the recent hearing we were also informed that Le’oso and Taeleifi had not reached a settlement. Each of these two *64parties agreed that the motion (insofar as it relates to land held to be Taeleifi property) would be submitted to the Court on the previous post-trial submissions, along with any additional written submissions the parties should submit by February 8. We have, however, received a "supplemental memorandum" (filed February 8) from Taeleifi, to the effect that some sort of settlement has in fact been reached between him and Le’oso. The terms of this settlement, according to Taeleifi, are that Taeleifi will "designate a portion of said disputed land awarded to the Sa Taeleifi family, for the use and occupation by Le‘oso family members." It appears, however, that the details are yet to be worked out and that the parties have agreed "for counsel Ripley’s appeal [on behalf of Le’oso] to proceed" while the parties negotiate such details.
The court has received no additional submission from counsel for Le’oso and therefore assumes that Taeleifi’s memorandum represents the understanding of all parties.
Accordingly, the motion by Le‘oso for new trial, reconsideration, or amendment of judgment is denied for the reasons stated in Part III(F) of our original opinion. We note, however, one apparent factual error in that opinion. A Taeleifi house which we identified as being "near the southeastemmost boundary" of the Taeleifi survey, although marked in that location on one of the exhibits, appears in fact to have been the same house which (prior to its substantial destruction by the 1990 hurricane) belonged to the children of Pepa Taeleifi and was adjacent to Pepa’s house in the central, not the southeastern, portion of the Taeleifi survey. Although this change in our findings of fact tends to help Le‘oso, we are not convinced that it should change our conclusion that there was sufficient Taeleifi activity in the area to prevent the Le‘oso occupation from being exclusive for the requisite twenty-year period.
Accordingly, the motion is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485999/ | Since the early 1970s, plaintiffs and defendant Tauiliili have been adjacent landowners. Their respective lots were a part of a subdivision developed by Chief A.P. Lutali near the northwest comer of Tafuna Airport.- The lots purchased by the parties roughly formed an inverted "L" which encompassed a vacant lot comprising 0.60 acres, more or less. It is this vacant lot which has given rise to this suit.
Tauiliili early proposed to plaintiffs that they should both utilize the vacant lot on the misguided presumption that the lot was landlocked and that, therefore, it was of no practical value to anyone else. Without first seeking Lutali’s views on the matter, the parties did indeed make use of the vacant lot over the years. For Tauiliili’s part, he planted various crops, put in a pig pen, and subsequently erected a small house, which he eventually made available for the use of defendant Sina Kaisano. He has maintained these uses to date; however, the small house was levelled by hurricane Ofa, and it has now been replaced by a FEMA structure1 of a more permanent nature.2 Defendant’s use, on the other hand, had been more sporadic and apparently a lot less evident to Lutali, who was critical only of Tauiliili’s self-help.
In 1987, plaintiffs approached Lutali to sell them the vacant lot. According to plaintiffs, they were told by Lutali to survey the lot, which they did after giving notice to the neighbors. Lutali corroborated this testimony.
Tauiliili, who was also present at the survey, admitted that he was told by the surveyor and others that the survey was being undertaken in view of a sale to plaintiffs. He further testified that he then went and *124saw Lutali to express his own interest in purchasing the land, since he had a home built on the lot; that Chief Lutali had told him that nothing had been finalized with the plaintiffs; and that Lutali had advised that he would get back to him.
In fact, Lutali concluded a sale agreement with plaintiffs, who at the outset deposited the sum of $16,000.00 towards the agreed selling price of $19,000.00. Although the remaining balance was informally agreed upon to be payable in the future by way of installments, Lutali did issue a deed immediately to plaintiffs. Consequently, the Territorial Registrar registered title in plaintiffs’ name.
Notwithstanding, the vacant lot remained in Tauiliili’s use and occupation. Plaintiffs apparently acquiesced in this continuing use and occupation until sometime in June 1990, when defendant Mua Faleatua discovered that Tauiliili had prepared boxing for the foundation of some new structure on the lot.3 Mrs. Faleatua testified that after making this discovery, she went to the Office of Samoan Affairs the following day seeking to put a stop to Tauiliili’s construction. She put the date at June 24, 1990, as she departed the island that very evening to attend a family fa’alavelave in Honolulu. As the result of her visit, the Office of Samoan Affairs, by letter dated June 26, 1990, notified both parties that a meeting at the Office of Samoan Affairs had been set for July 11, 1990. The letter also requested Tauiliili to cease construction in the meantime.
As it turned out, the meeting did not take place, as it was postponed owing to a conflict with the scheduling of a church conference in Apia to which both Tauiliili and Mrs. Faleatua were delegates. At the same time, the construction, as Mrs. Faleatua discovered while on the return flight from the church conference, had never abated in the interim. From the air, she noticed that the construction project, which she had assumed had been stopped, appeared to be roofed and nearly completed. She testified that she was surprised at seeing this and that she again visited the Office of Samoan Affairs the following day and there produced her deed to the disputed land. She stated that she also confronted Tauiliili with a copy of the deed immediately before filing *125suit, but apparently to no avail. She and her husband Pa’u Faleatua then filed suit seeking, among other things, defendants’ eviction.
The defendants do not contest plaintiffs’ ownership of the lot. However, Tauiliili counterclaims for equitable relief, contending that he is entitled to be compensated by plaintiffs for the value of improvements he has made to land. Such relief, however, is available only to an occupant who has made improvements in "good faith," Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987); Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988), and whose possession must have been under some color or claim of title. See 42 C.J.S. Improvements § 7(a), at 432 (1944 & supp. 1985). In support of his claim, Tauiliili testified that he had always believed that the vacant lot belonged to Lutali and that he had built the FEMA home after first securing Lutali’s permission to build. Additionally, he claims that the Faleatuas had never told him about their purchase of the land and that Lutali had led him to believe that the lot was still available for sale, since the Faleatuas had. not completely paid off the balance of the purchase monies.
The counterclaim is fraught with a number of factual contradictions against any claim to possession under color or claim of title. First, Lutali emphatically denied offering Tauiliili anything in the way of permission; the land was simply not his to give to Tauiliili. Second, the sale of the vacant lot to the Faleatuas was concluded in the year 1987, however, hurricane Ofa, the causal reason for FEMA assistance, did not occur until February 1990. In these circumstances, the alleged permission from Lutali to build a FEMA house on property which Lutali had three years earlier conveyed to a third party is highly suspect. Third, and perhaps more telling, is the fact that Tauiliili had (mis)represented in his application for FEMA assistance that he, not Chief Lutali, was owner of the building site. This fact is altogether inconsistent with his claim to Lutali’s ownership and, hence, permission.
Finally, Tauiliili was put on notice a number of times as to the existence of a competing claim to the vacant lot, although he nonetheless took it upon himself to build upon it, knowing full well that he had no right to such use and occupation. Ordinarily, an improver’s knowledge of an adverse claim vitiates a claim to "good faith" for the purposes of receiving compensation. Tulisua v. Olo, 8 A.S.R.2d 169 (1988). In addition, an improver may be charged with actual notice
where there is brought home to him notice of some fact or circumstance that would put a man of ordinary *126prudence to such an inquiry as would, if honestly followed, lead to the knowledge of the adverse title.
42 C.J.S. Improvements § 7(b)(4)(b)(aa), at 436. Here, Tauiliili was put on notice of plaintiffs’ adverse claim at the time of survey in 1987. He was put on notice when contacted by the Office of Samoan Affairs on or about June 22, 1991. He was put on notice when Mrs. Faleatua confronted him with her deed immediately before filing suit. He was put on notice when suit was filed. Yet the exhibits presented by plaintiff to substantiate the value of his investment showed receipts for building supplies acquired between the months of June and October 1990. In these circumstances, Tauiliili can hardly be said to be a "good-faith" improver for purposes of equitable relief. The counterclaim is dismissed. The petition for eviction is granted.
Tauiliili may, however, remove his improvements. Since this must inevitably involve economic waste in regard to the FEMA house, the Court strongly urges the parties to seriously attempt to negotiate a sale agreement of the said house. If such an agreement cannot be achieved, then Tauiliili shall remove the house and any other property of his on the land within 60 days or suffer such property to become a part of the realty.
Judgment accordingly. It is so ordered.
A hurricane-relief home financed by the Federal Assistance Management Agency (FEMA).
Tauiliili attempted to justify his unilateral decision to use the vacant lot by stating that the structures which he placed on the land, the pig pen and small house, were easily removable and not of a permanent nature. Chief Lutali also testified that when he confronted Tauiliili about his unauthorized use of the vacant lot, the latter responded that his use of the lot was merely provisional in nature.
After hurricane Ofa had destroyed what we have referred to as the "small house," Tauiliili successfully applied to FEMA for hurricane disaster relief. He was awarded a grant of $7,400.00 to rebuild. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485969/ | Appellants Seigafolava R. Pene (H/C) and Carmencita Pene (hereinafter the Penes) petition this court for rehearing and/or reconsideration of the Opinion and Order filed by this court on December 11, 1990, affirming the trial court’s order granting summary judgment in favor of appellee-plaintiff Bank of Hawaii.
Appellants first cite both an article entitled Fa’asamoa vs. U.S. Constitution, Samoa J. & Advertiser, Aug. 1, 1985, and a speech given *66by the acting Governor of American Samoa, Faleomavaega Eni Hunkin, on August 25, 1986, for the proposition that this court must follow traditional Samoan law and should therefore dismiss the instant complaint. Neither citation is binding upon this court, nor are they even persuasive, as neither represents a recitation of legal authority.
Appellants attempt to argue that the court has no jurisdiction over the instant suit. However, A.S.C.A. 3.0103, cited by appellants, clearly states that a court may exercise personal jurisdiction in civil cases over persons residing or found in American Samoa. Appellants have been residents of American Samoa for more than five years and therefore are subject to personal jurisdiction of this court.
In the petition for rehearing and/or reconsideration, appellants merely restate their previous position that the customary law of Samoa supports their previous position that the customary law of Samoa supports their contention that the Note and Security Agreement executed by the Penes on December 22, 1982, is an "unwritten" contract rather than a "written contract" for the purposes of determining the appropriate statute of limitations. As the court stated in its original Opinion and Order, appellants have not produced adequate evidence to support their claim that the cases cited by appellees are inapplicable, nor have they produced adequate evidence to support their own interpretation of customary law. Appellants’ present attempts to persuade the court by attaching their own schematic diagrams of their views of the current state of Samoan customary law are equally unpersuasive upon this court.
Finally, appellants’ assertion that Mr. Pene was not fully apprised of the transactions in this matter carries no weight, as the alleged strife between Mr. Pene and his wife has no effect upon the "unwritten" or "written" status of the Note and Security Agreement at issue in this case.
Accordingly, having reviewed appellants’ arguments in support of their petition for rehearing and finding none compelling, appellant’s petition for rehearing and/or reconsideration of the court’s Opinion and Order of December 11, 1990, is hereby DENIED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485970/ | This case concerns some of the same parties as our recent opinion in Shantilal Brothers, Ltd. v. KMST Wholesale, Inc., 15 A.S.R.2d 115 (1990). It also presents a slightly different aspect of the same issue: the priority of liens among (1) the named mortgagee in a recorded document purporting to create a mortgage on all or essentially all the property owned by the mortgagor, but not describing any particular thing subject to the mortgage; (2) a judgment creditor of the named mortgagor, who had levied an execution upon certain property of the mortgagor/judgment debtor and caused it to be sold at a marshal’s sale; and (3) another judgment creditor who had not levied an execution upon the subject property, but whose judgment was of earlier date than that of the creditor who had executed.
Intervenor Nelson & Robertson, the purported mortgagee, repeats the position we rejected in Shantilal, supra: that a reference in a mortgage to all a mortgagor’s property within a certain class amounts to a description of each item within the class. For reasons we discussed at length in Shantilal, we reject this proposition. The common-law courts were sharply divided on this question. See Shantilal Brothers, Ltd. v. KMST Wholesale, Inc., 16 A.S.R.2d 103, 104 (1990), and authorities cited therein. The Uniform Commercial Code resolved the question in other jurisdictions by providing that "any description ... is sufficient whether or not it is specific if it reasonably identifies what is described." U.C.C. § 9-110 (emphasis added). Our Fono chose not to adopt the Uniform Commercial Code but instead to resolve the question just as decisively the other way. The second article of American Samoa’s brief Commercial Code provides that a mortgage or other security device, in order to be effective against the world upon recordation, must ”contain[] a description of the specific article, articles, or land . . . mortgaged." A.S.C.A. § 43.1510. The mortgage in this case, which was the same one involved in Shantilal, contains, no such description.
This case is different from Shantilal, however, in one important respect: the record in that case contained no indication that the levying *69judgment creditor knew anything about the intervenors’ mortgage until after it had secured its writ of execution. In the present case we judicially notice that the levying judgment creditor in this case, the Diocese of Samoa Pago Pago, acquired knowledge of the existence of the mortgage before it secured its writ. We know this because the Diocese was represented in the various hearings having to do with the post-execution motions in Shantilal, at which the present Intervenor’s mortgage was the guest of honor. Neither the Diocese nor Shantilal (also an intervenor in the present case) appears to have had any knowledge of intervenor Nelson & Robertson’s mortgage before judgment, however.
Because our statute provides only that certain conditions (including the description of specific items) must be met in order for a mortgage to be valid "as to persons who do not have actual knowledge thereof," intervenor Nelson & Robertson argues that this case is distinguishable from Shantilal. Intervenor argues that its mortgage became binding on the Diocese as soon as it acquired actual knowledge of the document, notwithstanding that the description of mortgaged goods was insufficient to bind a person without actual knowledge.
Intervenor Nelson & Robertson appears to be correct in its argument that there was no such thing aá a judgment lien at common law, and that a judgment creditor who acquired knowledge of an unrecorded mortgage at any time before executing upon specific property of the debtor would therefore have been bound by the mortgage unless he were lucky enough to live in a jurisdiction with statutory judgment liens. See generally 46 Am. Jur. 2d, Judgments §§ 237-45. American Samoa has no statutory judgment lien; instead, our statute on execution of judgments strongly implies that a judgment creditor’s lien attaches at the moment he gives his writ of execution, duly issued and describing specific property, to the marshal or other officer who will enforce it. A.S.C. A. § 43.1523. Inasmuch as (1) the holder of an unrecorded or deficiently recorded mortgage could acquire a lien superior to any right of prior unsecured creditors of the mortgagee by properly recording his mortgage, (2) a judgment creditor would appear to be an unsecured creditor until the moment he gives his writ of execution to the marshal, and (3) our statute clearly seems designed to make "actual knowledge" a complete substitute for the constructive knowledge provided by recordation, we conclude that intervenor’s mortgage would have become binding on the Diocese the moment it found out there was such a mortgage — if the deficiency in the mortgage had arisen from nonrecordation or improper recordation.
The problem with this mortgage, however, was not that it was *70deficiently recorded. The problem was that it was not a mortgage at all; it did not purport to create a security interest in any particular thing, but in everything. Such documents were never treated as deficiently recorded; rather, they were treated by some courts as perfectly valid and by others as deficient in themselves. Where the problem with a mortgage has to do with the process by which the world is supposed to receive constructive notice of it, it makes sense that actual knowledge should serve as a complete substitute for such constructive notice. When the problem has to do with the inadequacy of the mortgage itself, as is the case with insufficiencies of description, no amount of knowledge that the deficient document exists can cure the deficiency. See, e.g., Arro Oil & Refining Co. v. Montana Dakota Grain Co., 286 P. 1115 (Mont. 1930); Strong City Gin Co. v. Herring & Young, 79 P.2d 582 (Okla. 1938).
The language of our statute, it is true, can be read to contain a negative, pregnant inference that actual knowledge cures any deficiency at all. Because the statute says deficient (or deficiently recorded) mortgages are not binding on persons without actual knowledge, the argument goes, the statute must mean that they are binding on persons with actual knowledge. But such a reading wrenches the language from its purpose. Some of the requisites provided by the statute have to do with the manner of recordation, and we have no doubt that actual knowledge is a substitute for deficiencies in these respects. Others, such as the requirement that the mortgage be in writing, be signed by the mortgagor, and include a description of the specific article or articles mortgaged, go to the essence of the document.
To argue that any problem in a purported mortgage, not just problems in recordation, can be cured by actual knowledge leads to absurd results. According to this argument, a selectively binding mortgage would be created when a debtor should say to one of his creditors, "Bill, as far as I am concerned your debt is secured by everything I own. I want you to take ahead of everyone else." Assuming that the debtor subsequently refused to put this statement in writing or to sign a writing incorporating its terms, the "mortgage" could never be recorded, for several excellent reasons. To those creditors unfortunate enough to have been within earshot, however, or to be told about the conversation years later just as they were about to hand the marshal their writs of execution, it would be dispositive. The statute, after all, only says that a mortgage must be written and signed in order to be valid as to persons "without actual knowledge."
*71We reject this approach in favor of one that reads the "actual knowledge" language in light of its purpose. There is no question that the judgment creditors in this case had constructive knowledge of intervenor’s mortgage from the moment it was recorded. For the reasons we have set forth in Shantilal, this constructive knowledge made no difference because it was knowledge of a mortgage that did not apply to any particular thing. For the same reasons, the actual knowledge the judgment creditors acquired after they had secured their judgments did not affect their right to execute upon specific property of the debtor.
We hold that the Diocese acquired a lien on the subject property when it gave its writ of execution to the marshal. Shantilal’s prior judgment did not give it a lien superior to that of the creditor who levied upon the property first. See A.S.C. A. § 43.1523. Nor did the deficient mortgage or the Diocese’s knowledge of it create a prior lien. The Diocese is therefore entitled to the proceeds of the marshal’s sale, the total amount of which is smaller than the amount of its judgment against K.M.S.T. The stay of distribution will be denied.
This order is stayed for ten days or until the disposition of any timely filed motion for reconsideration or new trial, whichever comes last.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485972/ | On Application for Costs:
Appellee Bank of Hawaii has filed an application for costs to be added to the court’s mandate of December 11, 1990, affirming the trial court’s decision. Appellee states that pursuant to the terms of appellants’ promissory note, appellants are obligated to pay for reasonable attorney fees up to 25 % of the unpaid amounts.
The trial court’s amended judgment of February 3, 1989, affirmed by this court on December 11, 1990, found that the appellants’ obligation to appellee, including the outstanding principal and interest, totaled $8,858.21. Appellee states that attorney’s fees and cost now total $1,956.50, which is less then 25 % of the judgment against the appellants and is therefore authorized under the terms of the note.
Appellee brings this motion pursuant to Appellate Court Rule 39(d) and/or (e). However, Rule 39(d) requires that a party who desires costs to be taxed shall state them in an itemized and verified bill of costs which shall be filed with the clerk, with .proof of service, within 14 days after the entry of judgment. No such itemized bill was submitted to the court, and the application for costs itself was filed on January 14, 1991, while the opinion and judgment of this court was filed on December 11, 1990.
Accordingly, as appellee has not yet submitted a properly itemized bill of costs and has not yet explained its apparently overdue filing time, the court hereby DENIES appellee’s application for costs to *77be added to the mandate. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485973/ | Plaintiff Rakhshan claims damages against defendant Fuimaono for an alleged breach of a services contract.
I. Factual Background
By way of background, plaintiff is an Iranian national whom the American Samoan immigration authorities have been attempting, for some time now, to deport from the territory. In mid-1989, Rakhshan was ordered by the Immigration Board to depart the territory following the board’s denial of his application for a work permit.1 Until recently, Rakhshan has been assisted with his immigration matter by defendant Fuimaono, who is a practicing attorney. Fuimaono’s assistance has entailed appearances both before the Immigration Board and the Appellate Division of the High Court,2 as well as arranging alternative counsel when he was himself temporarily unable to practice. The parties were lately personal friends who initially became acquainted through church meetings. As Rakhshan’s immigration problems unfolded, Fuimaono inevitably extended his hand of friendship by offering his professional assistance. For all intents and purposes, Fuimaono labored for his then-friend on a pro bono basis.
II. The Dispute
Fuimaono had also filed, however, on Rakhshan’s behalf, a collateral civil suit against the government. This suit seeks damages in the amount of $1 million from the government for what is alleged was *79Rakhshan’s unlawful seizure and detention by certain immigration officers. See Complaint in Rakhshan v. American Samoa Government, CA No. 20-90. According to Fuimaono, the civil suit was filed primarily as a tactical manoeuvre in the hope of gaining some bargaining leeway with the government’s unyielding view on the deportation issue - — however, he thought the merits of the suit were dubious. Nevertheless, Fuimaono did not overlook the routine of having Rakhshan the client, execute a "contingency services agreement." It is this contingency agreement which is the basis of the dispute before us.
On August 28, 1990, the complaint in CA No. 20-90 was dismissed by the Court for failure to state a claim, although plaintiff was given the opportunity to file an amended complaint within 10 days. The amended complaint as contemplated by the order was never in fact filed; however, on October 26, 1990, the Court was next alerted to the file by way of a pro se motion from Rakhshan requesting an extension of time to file the amended complaint on the ground that his lawyer had abandoned him. Rakhshan’s motion was granted on November 23, 1990, over the government’s objection, and he was afforded a further ten-day period to file his amended complaint. On November 28, 1990, Rakhshan filed his amended complaint — albeit a reproduction (with the aid of a copying machine) of the earlier one dismissed.
At the same time, Rakhshan also prepared the pro se complaint now before us, which he filed on October 25, 1990. Here, his complaint is that Fuimaono had failed to honor the contingency agreement by failing to refile the amended complaint and omitting to notify him of the that failure.
In his defense, Fuimaono denies withholding information from Rakhshan regarding the non-filing of an amended complaint. He testified that he had met with his client on at least two occasions within the ten-day limitations period, to discuss the merits of the suit. He testified that after the dismissal of the complaint, he immediately undertook further research on the merits of the case and then specifically confronted Rakhshan with his conclusions. In Fuimaono’s opinion, neither the law nor the facts were favorable to Rakhshan’s case, and he reiterated that the suit was essentially filed as a matter of strategy for employment with the deportation case. He also testified that the complaint in CA No. 20-90 was largely premised upon information given to him by Rakhshan, but after interviewing witnesses in preparation for trial, he said that he found little support for his client’s version of the facts. Defendant also said that he had further told his client that he was unable to do anything with the *80case, which he considered a "dead horse," and he also urged his client to seek a second opinion on the matter while offering to move, in the meantime, for an extension of time to refile an amended complaint. Fuimaono added that Rakhshan, on the other hand, manifested less concern for strategy and was insisting that he wanted to go forward with the matter. Rakhshan has apparently not only declined the invitation to seek another lawyer but also declined the invitation to drop the case.
III. Breach of Contract
In terms of a lawyer’s contractual obligations to his client, it is generally said that an attorney who undertakes to conduct a legal proceeding promises, among other things, to see the matter through to its conclusion, and he may not withdraw from the suit without the client’s consent or without justifiable cause. See 7A C.J.S., Attorney & Client § 221.3 Further, a lawyer who abandons the conducting of a legal proceeding without justifiable cause or the client’s consent is generally liable to the client for damages. 7A C.J.S., Attorney & Client § 235.
Notwithstanding Fuimaono’s argument — that the suit, being of doubtful merit, was merely filed as part and parcel of the strategy employed in the immigration case — we conclude that he had undertaken to prosecute Rakhshan’s civil suit to its conclusion, as evidenced by the contingency agreement. When Fuimaono signed the complaint in CA No. 20-90, he thereby certified to the Court, pursuant to Trial Court Rules of Civil Procedure, Rule 11, that he had not only read the pleading, "but [also] that to the best of his knowledge, information, and belief, there is good ground to support it.” Id. (emphasis added). Indeed, "[f]or a willful violation of this rule an attorney may be subjected to appropriate disciplinary action." Id. Furthermore, the very fact that the contingency agreement was not overlooked contradicts this argument. At the same time, the agreement has no bearing whatsoever to the immigration matter.
None having been shown, we also conclude on the evidence that Fuimaono abandoned the conducting of a legal proceeding without *81reasonable or justifiable cause. Counsel’s manner here in simply walking away was exceedingly risky from the client’s point of view. Conceivably, the dismissal could very well have become one "with prejudice" had the other side, for example, made a case of plaintiffs non-compliance with the Court’s ten-day time limitation period. Even where non-consensual withdrawal might be appropriate under the Model Code of Professional Conduct, Fuimaono nonetheless owed it to his client to take "all reasonable steps" to secure his client’s case from "forseeable prejudice" before withdrawing. See ABA (1983) Model Code of Prof. Responsibility, DR 210(A)(2). Such steps include "giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitiled, and complying with applicable laws and rules." Id. See also Kirsch v. Duryea, 578 P.2d 935 (Cal. App. 1978).
We agree with plaintiff that Fuimaono breached the contingency agreement and is liable to him for any damages thereby arising.
IV. Damages
Damages, however, have not been proven nor are they apparent on the evidence. The potential harm with a prejudicial dismissal stemming from Fuimaono’s failure to refile the amended complaint is now non-existent. Rahkshan is in exactly the same situation he was in prior to dismissal, while his suit is undoubtedly still open to prosecution to its logical conclusion. That is, Fuimaono’s conduct has not cost plaintiff anything in terms of the viability of his suit. Thus, no damages are evident in this regard.
A case, however, might be made for damages premised on the argument that the viability of plaintiffs suit today, as compared to its viability prior to Fuimaono’s unjustifiable withdrawal, is the difference between prosecution pro se, on the one hand, and prosecution by a trained professional, on the other. This argument, however, also presupposes that there are either no other lawyers available in the community to take up plaintiffs case or that there has been no time to arrange for such alternative professional assistance. The evidence points in the other direction. Several months have now passed since plaintiff filed his amended complaint in CA No. 20-90 on November 28, 1990, and we note from that file that a trial setting for March 20, 1991, was ordered at Rakhshan’s request. It seems quite clear, therefore, that Rakhshan has had more than ample time to arrange substituted counsel. *82At the same time, there has been no attempt by Rakhshan to contact other counsel, while his reasons given for not seeking other counsel are that he trusts no other lawyers. These reasons are not only inconsistent with damages but also with the duty to mitigate damages — if damages are in fact available hereunder.
We fail to find damages, and, therefore, enter judgment accordingly.
It is so Ordered.
See Rakhshan v. Immigration Board, 13 A.S.R.2d 25 (1989).
See Rakhshan v. Immigration Board, 15 A.S.R.2d 29 (1990).
Cf. ABA (1983) Model Rules of Professional Conduct. Rule 1.16(b) suggests that a lawyer has the "option" to seek a non-consensual withdraw if it can be accomplished without "material adverse affect upon a client’s interests." See Comment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485974/ | *83Plaintiffs claim that they had agreed with the defendant Ioelu Pen to the formation of a three-way partnership in connection with a certain contract with the Christian Congregational Church in American Samoa (CCCAS) for the construction of certain buildings, and that as a partnership they had also secured another contract with the Government of American Samoa to build certain classrooms for the Lupelele Elementary School. Notwithstanding a regular, weekly wage which each had received during the construction period, plaintiffs are claiming, in addition, an equal entitlement to share in any partnership profits for the construction ventures.
Defendant Pen, on the other hand, denies the formation of a partnership; he claims that plaintiffs were at all relevant times under the employ of his family’s business, d.b.a. John’s General Construction, and licensed under the name of his wife, Mrs. Emma F.C. Pen. In actuality, the parties had worked together over the course of a year on the two different projects under the banner of John’s General Construction while also utilizing the pertinent trade licenses that were issued defendant Pen. Finally, Pen also counters that the plaintiffs were adequately compensated for their respective services.
DISCUSSION
I. A Part tier ship
The partnership claim, even if factually correct, is unenforceable. It was candidly conceded in the testimony for plaintiffs that pending the completion of all the partnership formalities — which included, among other things, the completion of a written partnership agreement and the finalization of a license to do business pursuant to the licensing laws, A.S.C.A. §§ 27.0201 et seq. (hereinafter the "licensing Act") — the parties had agreed to commence the CCCAS contract under Mrs. Pen’s business license because of the time delay involved with setting up a duly-licensed business partnership.
But this sort of an agreement would, in effect, be an agreement to disobey the very clear requirements of the licensing Act. Specifically, A.S.C.A. §§ 27.0219 provides that:
(a) No person may engage in business in American Samoa without a [business] license. . . .
*84(b) Any person who is required * * * to obtain a license * * * and refuses or fails to obtain the license * * * shall be guilty of a class B misdemeanor.
In addition A.S.C.A. § 27.0212 states that:
Every license [to do business in American Samoa] issued under [the licensing Act] is personal * * * and may not in any circumstances be transferred to any other person. . . .
(emphasis added). Clearly, an agreement between the parties, as a partnership, to start to work under the guise of Mrs. Pen’s business license would clearly be a breach of the licensing Act, which not only criminally prohibits anyone from engaging in business without a license but also deems a license to be personal and non-assignable.
Here, the Court is asked to enforce claimed partnership gains derived while in violation of the licensing Act. Such demands are, however, unenforceable, since an agreement to violate or inhibit licensing laws is clearly illegal and contrary to public policy. See 6A Corbin on Contracts § 1510. Fortunately, we need not here confront the "unruly horse"1 criticism of "public policy," as no clearer statement of territorial public policy can be found regarding the licensing Act than that contained in A.S.C.A. § 27.0201. This enactment reads:
The purpose of this chapter is to provide for the licensing of businesses in the Territory of American Samoa in order that all the necessary and reasonable control and regulation thereof may be practiced by the government for the protection of the health, welfare, safety and morals of the people of American Samoa.
(emphasis added). Furthermore, in the context of licensing statutes, the Restatement of Contracts (Second) § 181 provides that:
*85If a party is prohibited from doing an act because of his failure to comply with a licensing * * * requirement, a promise in consideration of his doing that act or of his promise to do it is unenforceable on the grounds of public policy if
(a) the requirement has a regulatory purpose, and
(b) the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement.
(emphasis added). The licensing Act’s legislative scheme is unmistakably regulatory. As may be noted above from A.S.C.A. § 27.0201, the licensing Act has an overall regulatory purpose relating to the general "health, welfare, safety and morals of the people of American Samoa." This regulatory purpose is also clearly evident in A.S.C.A. § 27.0208, which sets out certain standards relevant to the issuance of business licenses in general, while A.S.C.A. § 27.0207 sets out more specific guidelines relevant in terms of regulating the influx of foreign business ventures. Thus, to enforce the sort of claims asserted by plaintiffs is not only to undermine the licensing Act itself but also those very clear public purposes behind the Act. The crucial significance of these purposes are not difficult to imagine when viewed in the context of a small island territory’s social and economic development needs. See A.S.C.A. § 27.0208(3). At the same time, the licensing Act demands vigilance against allowing business needs to overwhelm the territory’s ability to maintain comparable infrastructure. See A.S.C.A. § 27.0207.
Thus, an agreement by the parties which induces a breach of the licensing Act is unenforceable under either criterion supplied by the Restatement. The licensing Act is not only regulatory in design, but also its underlying public purpose is clearly pervasive and of significant social impact.
We conclude on the foregoing that in a situation of partnership among the parties, any related claims to gain would be unenforceable since the parties were content to undertake business in violation of the licensing Act and the very clear public policy embodied thereunder.
II. An Employment
We also conclude on balance that the evidence preponderates in favor of defendant Pen’s version of the facts; that is, his relationship to plaintiffs was that of employer. The evidence had it that Mr. Papali’i’s *86principal duties in relation to the contract jobs was the arranging of immigration clearances for a certain number of labors from Western Samoa as seasonal workers under the sponsorship of John’s General Construction. At the same time, plaintiff also claimed that he attended to the transport needs of these particular laborers, to and from the site on a daily basis, with his own personal vehicle.2 In turn, Mr. Papali’i was paid a weekly wage of $320.00 or $8.00 per hour until his services were terminated by Mrs. Pen in a letter dated April 13, 1987.
The evidence also preponderates in favor of defendant Pen’s claim that Papali’i was paid all that was due to him. As an hourly wage earner, Papali’i was regularly paid 40 hours a week. Such work hours, however, would only accumulate after Mr. Papali’i’s regular work day with the American Samoa Government, who was then his full-time employer.
With regard to plaintiff Fuimaono, it was more clear than not on the evidence that Mr. Fuimaono was paid less than what he was entitled to be paid under the laws of American Samoa. The evidence showed, first of all, that Mr. Fuimaono was a master carpenter of noted repute throughout Samoa. Indeed, it was also suggested on the evidence that Mr. Fuimaono’s reported affiliation with John’s General Construction had a lot to do with the latter’s success in getting the CCCAS contract award. For his labors, however, Mr. Fuimaono was paid the weekly wage of $400.00, representing an hourly rate of $10.00.
Contrary to Mr. Pen’s testimony, Mr. Fuimaono testified that he regularly worked hours in excess of 8 hours a day, but he was never compensated for overtime.3 We accept Mr. Fuimaono’s version of the facts. While defendant Pen presented certain work schedules which purported to consistently show regular 8 hour days, the Court was also confronted with testimony regarding a delay in the timely completion of *87the CCCAS project in accordance with contract requirements. Indeed, there was period of time where the parties had to accelerate work effort after the CCCAS had reluctantly agreed to grant an extension of time for completion, rather than insisting on liquidated damages. Moreover, after the Lupelele project had started, the parties were in fact involved with undertaking two jobs simultaneously. Fuimaono, as the master carpenter, directed and supervised the work on both projects, and this necessitated his literally having to do shift work. The two projects were concurrently worked on for a period of about five months.
We are satisfied that Fuimaono had worked a number of hours in excess of ordinary or regular working hours. Although Fuimaono estimated uncompensated time to be about 1000 hours, we find those excess hours (compensable pursuant to A.S.C.A. § 32.0323 at the rate of one and a half times the regular rate) to be more closer to a total of 800 hours. Accordingly, $12,000.00 is payable to Fuimaono for uncompensated overtime hours; however, $5,850.00 shall be allowed as offset for the monies advanced to Fuimaono over and above the weekly check he had regularly received.
Judgment will accordingly enter in favor of plaintiff Fuimaono against Ioelu Pen and Emma Pen d.b.a. John’s General Construction, in the sum of $6,150.00. Plaintiff Papali’i shall take nothing by his complaint.
It is so Ordered.
A nineteenth century English judge spoke of "public policy" as "a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail." Burrough, J., in Richardson v. Mellish, 2 Bing. 229, 252, 130 Eng. Rep. 294, 303 (1824).
This is hardly persuasive evidence for equal sharing if the performance of these duties represented entirely Mr. Papali’i’s partnership share in lieu of capital contribution.
A.S.C.A. § 32.0323 states that "[n]o employer may employ and employee in excess of 40 hours per week unless such employee receives compensation for employment in excess of such weekly hours, at a rate not less than one and a half times the regular hourly rate at which he is employed." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485975/ | The senior matai and other members of the Vaimaona family appeal a decision which dismissed a challenge to registration of land to Fa‘amamafa Tuitasi.
The trial court’s findings of fact, except as to notice, are not at issue in this appeal. In December of 1977 Vaimaona Foloi, the senior matai of the Vaimaona family of the village of Lauli’i, executed a warranty deed to a portion of the land known as Mulipa, to Fa‘amamafa Tuitasi, a member of the Vaimaona family. Tuitasi tried to register the tract as her individual land. Arieta Vaimaona complained to various government officials. The title was not registered, and the original copy of the warranty deed was destroyed or lost.
Ten years later, in September of 1987, Vaimaona Foloi appeared personally before the Land Commission, seeking its approval of his conveyance to Tuitasi. Members of the commission asked him if he had consulted with his family about the transaction. He replied that he had not. Commission members then recommended that he not alienate the land without consulting with his family and suggested a separation agreement rather than a conveyance. Vaimaona Foloi subsequently returned and reiterated his request. At this second appearance, the Commission approved, and the Governor signed his approval a few days later.
Tuitasi had, prior to these approvals, filed a photocopy of the deed with the Territorial Registrar. The Registrar treated the filing as a request for Land Commission approval and also as a request for *90registration. After the notice period had elapsed, which was after the approvals by the Land Commission and the Governor, the Registrar issued a certificate of registration, certifying that the "Warranty Deed, 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 Vaimaona family filed a complaint the following year, when Tuitasi built a wall on the land. They alleged fraud in the factum, that is, that Tuitasi obtained Vaimaona’s signature by deceiving him into thinking he was signing something other than a deed, and prayed for a decree setting aside the registration. The trial court dismissed the claims, finding no fraud in the factum, and denied a motion for new trial based on alleged inadequacies in notice. We affirm on the issue of fraud and remand for additional findings of fact regarding notice.
At trial, the focus of the proceedings was on the issue of fraud, not notice. The trial judge found that there was no fraud in the factum, because the proceedings before the Land Commission plainly demonstrated that Vaimaona understood that the document was a conveyance to Tuitasi. The trial court found that the forcefulness of Tuitasi’s personality did not nullify the' otherwise lawful actions of the sa‘o, the land commission, the governor, and the territorial registrar. These findings are not challenged on appeal and are plainly not "clearly erroneous." A.S.C.A. § 43.0801(b).
I. Family Consultation and Approval
The central issue on appeal is whether a matai can convey communal lands without family approval. Both sides agree, and the trial court found, that "the members of the family . . . should, in accordance with Samoan custom, have been consulted before any family land was alienated," and that the sa‘o did not comply with this custom. They disagree on whether this requires or permits the court to set aside a conveyance.
Vaimaona correctly notes the constitutional command that the policy of all branches of the government must be "to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life." Rev. Const. Am. Samoa, Art. I §3. He also correctly notes the statutory requirement as to the role of custom, which is among the many statutory provisions implementing the constitutional requirement:
*91The customs of the Samoan people not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved.
A.S.C.A. § 1.0202. Appellant is also correct in noting this court’s characterization of Samoan custom regarding the matai system and communal tenure:
The twin cornerstones of the Samoan way life are communal tenure and the matai system. Each is essential to the other. Without the matai system to administer it, the communal land system becomes anarchy. Without the communal land system, there is no reason for a matai.
In American Samoa, the family owns the land. A matai, selected by, and subject to removal by the family, allots the land to family members who pay a type of compensation comparable to rent in the way of service to the matai-actually, to the family. In return the matai undertakes the protection and well-being of family members. Such is the basic Samoan custom and tradition.
Tavai v. Silao, 2 A.S.R.2d 1, 2 (1983).
Appellant errs, though, in arguing that because custom requires family consultation before the sa‘o conveys communal land, courts must implement that custom. The argument falters because of the statutory phrase, "not in conflict with the laws of American Samoa." The statute provides for judicial preservation of customs "not in conflict" but not for those customs which are "in conflict." This provision authorizes the Fono, not the High Court, to set aside custom by statutes to the contrary.
In this case, the Fono has provided by law for conveyances without an absolute requirement of family consultation, so the custom upon which appellants rely is "in conflict." A serious policy argument can be made for revision of the statutes to require family consultation, or family consultation and approval. See Judge Vaivao’s concurrence in the trial court. Such an argument, though, as Judge Vaivao’s opinion explains, must be addressed to the Fono; our role is limited to applying the law which the Fono has made.
*92The Fono has codified the system for alienation of land, at chapter 2 of title 37, in sufficiently comprehensive form so that the courts cannot add an additional substantive requirement such as the one urged by appellants. Under the statutory scheme, a matai generally cannot alienate communal family lands (1) without the written approval of the governor and (2) to any person of less than one-half native blood. A.S.C.A. § 37.0204(a)(b).
Nor does the statute allow a written approval by the governor without an additional hurdle. An instrument accomplishing such a conveyance must be filed with the secretary of the land commission "for study and recommendations thereon by the commission" before becoming effective. A.S.C.A. § 37.0203(a). In performing its duty of study and recommendation, the commission must "endeavor to prevent . . . improvident alienations of communal lands by those charged with the management and control thereof." A.S.C.A. § 37.0203(c).
By providing that a conveyance requires these three things, the Fono has excluded the possibility of a fourth so substantial and significant as family consultation and approval. Had the Fono meant to impose this as a fourth requirement, it would have said so.
Under this statutory scheme, instead of the High Court applying a rule requiring family consultation and approval, the land commission applies a more general purpose of preventing "improvident alienation." This standard may, in the discretion of the commission, embrace failure by the matai to consult with his family, but the commission is not required by law to withhold approval for failure to consult, where it has not found the conveyance to be "improvident." That word is usually defined to mean lacking in foresight, not providing for the future, thriftless, or rash. American Heritage Dictionary (2d College ed.); Websters New International Dictionary (2d ed. unabridged). Vaimaona had stuck to his expressed intention to convey communal land to Tuitasi for ten years and stuck to it through two hearings of the commission. The Fono structured the commission as an appropriate body to exercise discretion; it consists of a chairman experienced in real estate transactions appointed by the Governor, the territorial registrar, and the three district governors, A.S.C.A. § 37.0202, so is certainly an appropriate repository of broad discretion. In this case, the Commission carried out its duty by asking Vaimaona if he had consulted with his family, recommending against alienation without such consultation, and rejecting his first attempt to alienate the land without seeking family approval. The statute says, regarding the Land Commission’s duty, "endeavor to prevent" and not *93merely "prevent." Addition of the words "endeavor to" limit the word "prevent," making it less absolute. The commission endeavored to induce Vaimaona to comply with custom.
Vaimaona has not argued, before the trial court or this court, that the Commission failed to discharge its duty. Our discussion of its duty may therefore be dicta. We comment upon the commission’s duty because the commission’s and the Governor’s discretion to disapprove are as far as the Fono has enabled public authorities to go in preventing a matai from conveying to a native Samoan without appropriate consultation with and approval from his family.
Vaimaona argues that Sione v. Tiualii, 3 A.S.R. 66 (1953) (Trial Division), requires a contrary conclusion. The case does indeed contain language contrary to the result we reach. The language may be dictum, because the basis for the decision appears to be adverse possession. In any event, the alienation statutes were comprehensively recodified in 1962, so the Sione decision, issued before the 1962 statutory revisions, lacks compelling force.
II. Notice
This issue appears to have been something of an afterthought in the case, but we think it is important. It was not fully developed by the litigants at trial, which focused upon the issue of family consultation and approval, so the trial record is sketchy, and the issue seems to have been developed mainly on a motion for new trial. We conclude that additional fact-finding is needed.
American Samoa has a subtle and complex system for developing and preserving public records of land ownership. The Samoan system blends a Torrens registration system, a recording system, and special Samoan provisions to protect communal ownership and the Samoan way of life.
Most American jurisdictions rely on a recording system. In such a system, many kinds of instruments affecting title to land may be recorded. The government record does not certify ownership. Instead, proof that an instrument was recorded establishes only that persons subsequently acquiring interests in the land had notice of the public record and provides evidence of the terms of the documents filed. In case of title disputes, quiet-title suits in the nature of ejectment are used to determine who owns what interests. A purchaser of land may hire a *94title company or attorney to search the public records and render an opinion, perhaps backed by insurance, regarding the title. Because of the difficulty of searching each chain of title through grantor and grantee indices back to the initial government patent or other first acquisition, specialized attorneys and title companies develop "title plants," maintained by parcel, so that old chains of title need only be updated for new conveyances.
Sir Robert Torrens developed an alternative to the recording system, called a registration system, based on the system prevalent for registering title to merchant ships. The Torrens system of land registration, first implemented in South Australia, is prevalent in the British Commonwealth. This kind of registration system is also now typically used for motor vehicles and airplanes in American jurisdictions.
In a Torrens registration system, an owner of land registers the land, and obtains a certificate of registration. The certificate establishes title, so a buyer can rely on it, and does not have to obtain evidence of the owner’s chain of title. The registration certificate is not merely notice that someone filed an instrument, as a certified copy of a recorded instrument would be in a recording system, but is instead government certification that the registered owner does indeed own what the certificate says he owns. The certificates are subject to being set aside only in very limited circumstances. Because the certificate wipes out alternative claims to interests in the land, Torrens systems generally require surveys to establish the boundaries of the land, and notice, to assure that competing claimants will have an opportunity to dispute issuance of the certificate. The certificate has the same function as a decree in a quiet title suit, so "meticulous attention to the proper manner for service of process" is "absolutely essential to assure certainty to persons who wish to rely on the conclusiveness of the certificate." 6A R. Powell, The Law of Real Property ¶ 908[3][a], at 83-8 (Rohan ed. 1991). See generally 66 Am. Jur.2d, Registration of Land Titles; W. Burby, Real Property 332-34 (3d ed. 1965); J. Cribbet, W. Fritz, C. Johnson, Cases and Materials on Property 855-64 (2d ed. 1966).
As the system is implemented in American Samoa, a registration system exists alongside a recording system. The registration system is established in chapter 1 of title 37. A recording system appears to have evolved under chapter 2 of title 37,
The registration system is a fairly traditional Torrens system. An owner of unregistered land may register his title with or without the *95precipitating event of a conveyance. A.S.C.A. § 37.0101(a). No title can be registered unless the Registrar "is satisfied that there is no conflicting claim thereto." A.S.C.A. § 37.0101(b). The central device for determining whether there are conflicting claims is the notice provision. Notice of a proposed registration must 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." A.S.C.A. § 37.0103(a). During the 60-day notice period, anyone claiming an interest in the land adverse to the applicant’s claimed interest may file notice of his claim with the Territorial Registrar, but if no such notice is filed and the other statutory requirements are complied with, the Territorial Registrar is required to register the title to the land in the name of the applicant. A.S.C.A. § 37.0103(b),(c). If adverse claims are filed, then the Territorial Registrar refers the matter to the High Court of American Samoa for adjudication. A.S.C.A. § 37.0104(a).
The trial court correctly noted the problems in the evidence regarding notice of proposed registration of title. Notice has to be posted of a proposed registration "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." A.S.C.A. § 37.0103(a). In this case, the affidavit of posting may be insufficient evidence that the statutory posting requirement was met. It alleges posting from August 6 to September 8, which is only about 33 days, not 60. The affidavit says that it was subscribed August 6, before the posting took place, so it was evidently prepared without personal knowledge of whether the notices really were posted through September 8. It does not show a signature of the person qualified to take oaths, so it may not be under oath. It says that the notice was posted in the village of Lauli’i, and the certificate of registration says that the land is in Lauli‘i; but the deed says that the land is in the village of Aumi, and so does the survey.
This is not to say that the posting was inadequate. It may be that the posting satisfied A.S.C.A. § 37.0103(c), but that the affidavit does not fully set forth the notice which was given. Testimony might fill in the gaps. Nevertheless, an evidentiary hearing and findings of fact are needed on the question. Vaimaona’s actual knowledge of the proposed conveyance does not vitiate the importance of notice, because other interested persons might have had some objection to registration of title in Tuitasi’s name. On the record before us, the evidence of procedural irregularity in the notice of proposed registration is sufficiently compelling to overcome the strong presumption of the validity of certificates of registration and put the matter at issue.
*96Notice is an especially salient issue in this case, because the substantive dispute was about whether Vaimaona consulted with and obtained consent from his family. Though we have agreed with the trial court that the statutes do not make that a necessary condition of a valid conveyance by a matai of communal land, nevertheless a matai seeking to convey against what he knew to be the preferences of part of his family might have an interest in slipping the conveyance past them so that they would not find out about it. Details like posting in a non-obvious place or in an adjacent village, posting for too short a period, incorrect statements of posting, not including the oath which would subject the maker to penalties of perjury, or even illegible photocopies in the places of posting, could be used to prevent the members of the family who disapproved of the conveyance from finding out about it in time to object to the registrar or, if the deed was not yet approved, to the land commission or the governor.
The recording system seems to have evolved under a statute in chapter 2 limiting the effectiveness of unrecorded conveyances. Under A.S.C.A. § 37.0210, a deed cannot "pass the title to any land or any interest therein . . . until such instrument has been duly registered with the Territorial Registrar."
(a) No instrument shall be effectual to pass the title to any land or any interest therein, or to render such land liable as security for the payment of any debt or obligation until such instrument has been duly registered with the territorial registrar.
(b) Due registration of an instrument relating to land or an interest therein shall be notice of the contents of such instrument to all persons thereafter dealing with such land or interest therein.
A.S.C.A. § 37.0210.
This chapter 2 provision provides for registering the instrument, as compared with the chapter 1 provision for registering the title. Though registration of the instrument is a necessary condition of the effectiveness of the instrument to pass title, it may not in all cases be sufficient. Registration of the instrument gives notice to people dealing with the land "thereafter" but does not necessarily affect the interests of persons who dealt with the land before. Unlike the chapter 1 registration of title provision, the chapter 2 registration of instruments provision *97contains no requirement of notice prior to registration of the instrument. This is consistent with most recording statutes, because the instrument generally cannot affect preexisting interests of those not signatories to or otherwise bound by the instrument itself.
Even assuming that Tuitasi duly recorded Vaimaona’s deed, this recording provision in chapter 2 does not entitle Tuitasi to prevail. The judgment below leaves her with a certificate of title, not just a recorded deed. The Vaimaona family sued to have the certificate set aside. The trial court noted probable defects in notice but did not set it aside. The practical effect of the trial court decision is to quiet title in Tuitasi. But Tuitasi did not sue to quiet title and has not proved an entitlement to have title quieted in her. All she proved was that the Vaimaona and members of his family were not entitled to have the title vacated because of lack of family consultation and approval. There may be other defects in Tuitasi’s title, perhaps capable of assertion by other interested persons not plaintiffs in this lawsuit. It may be that the appropriate relief, as determined after an evidentiary hearing and findings on notice, would be to set aside the registration certificate but otherwise leave the parties as they are or to determine that the registration certificate was properly issued and that notice was adequate even though not adequately proved in the first trial. We cannot say on the'present record which is correct.
Another reason not to quiet title in Tuitasi is that she may not have a duly registered deed. The words in A.S.C.A. § 37.0210(a) limit effectiveness of deeds to those which are "duly registered":
No instrument shall be effectual to pass the title to any land or any interest therein, or to render such land liable as security for the payment of any debt or obligation until such instrument has been duly registered with the Territorial Registrar.
A.S.C.A. § 37.0210 (emphasis added). As the trial court noted, this case was a bit unusual in that the Registrar did not testify. The record does not show whether Tuitasi "duly registered" the instrument. The trial court found that the registrar treated her filing as being for registration of title and approval of the conveyance by the land commission. The deed must have been "duly" registered to convey Vaimaona’s interest to Tuitasi. When it was presented to the registrar, the instrument was apparently a photocopy of a ten-year-old deed, which had not been approved by the governor. Was the deed presented to the registrar for chapter 2 registration of the instrument, and not only for *98chapter 1 registration of the title? Was such an instrument recordable? Was it presented for recording? If the answer to any of these questions turns out to be "no" after evidence is taken, then the instrument may turn out not to have been "effectual to pass the title" under A.S.C.A. § 37.0210(a). Cf. 66 Am. Jur.2d, Records and Recording Laws §§ 124, 127, 128, 134, 138. If Tuitasi does not prevail on her registration certificate, then findings of fact on whether the deed was "duly registered" will be necessary.
AFFIRMED IN PART, REMANDED IN PART. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485976/ | The American Samoa Government brought this action in interpleader to determine entitlement to certain rental payments (presently amounting to about $105,000) held in a bank account pending resolution of a dispute over the ownership of the land on which the territorial garbage dump is located. The ownership of this land has been adjudicated in Satele v. Uiagalelei, 6 A.S.R.2d 143 (1987), aff’d sub nom. Uiagalelei v. Fai'ai, 9 A.S.R.2d 19 (1988), and in Fauolo v. Satele, 15 A.S.R.2d 141 (1990). See also Uiagalelei v. Tuiasosopo, LT No. 64-76, CA No. 3086-75 (Stipulated Judgment entered December 30, 1976; "Motion for Reconsideration and/or to Vacate Judgement" denied February 8, 1991).
Defendants Fai'ai and Namu move for partial summary judgment. Each of these two parties has submitted an affidavit from a surveyor, calculating the portion of the dump site that is within his or her property as described in the judgments in Satele v. Uiagalelei and Fauolo v. Satele. No other party has submitted an opposing affidavit, so technically the entire record before us consists of the evidence submitted by Fai'ai and Namu. This evidence being to the effect that the moving parties own respectively 44.823% and 2.13% of the disputed land and are therefore entitled to the same percentages of the accrued rents, and no other party having set forth by affidavit or otherwise specific evidentiary facts showing that there remain any genuine issues for trial, the moving parties are entitled to summary judgment. See T.C.R.C.P. Rule 56(e).
We have, moreover, carefully reviewed the calculations in the surveyor’s affidavits and are satisfied that they do reflect the location of the land which was held in Satele and Namu to belong to the two moving parties. The surveyor’s calculations reflect precisely the situation of the various parties’ land as depicted in the maps designated Uiagalelei Exhibits D and G in Satele v. Uiagalelei, supra, the two exhibits on which we principally relied in drawing the Uiagalelei/Tuiasosopo/ Fa'ailioilo boundaries in the dump area. See 6 A.S.R.2d at 146.
We held in Satele that the Fa'ailoilo heirs owned the land below the "old boundary" in Exhibit G (Drawing 1531-A), the map of the dump lease site, which according to that exhibit would amount to about 2.6 acres; that Uiagalelei owned everything north of the "new boundary," *100depicted as amounting to about 2.25 acres; and that Tuiasosopo and his siblings owned the acre, more or less, in between the two boundaries. The Fa‘ailoilo surveyor’s affidavit, submitted in connection with the present motion, claims exactly 2.606 acres.
Contrary to a suggestion made by counsel for Uiagalelei during argument on the present motions, it is also clear from an examination of Exhibits D and G and of our 1990 opinion in Namu that the tip of the southeastern panhandle of the dump lease site extends into land held to belong to Namu. Exhibit D, a "super-imposition drawing" also introduced as Uiagalelei Exhibit 13 in LT No. 39-87, clearly shows that the easternmost boundary of the Uiagalelei property known as Saumolia I is along the Utuloa/Futiga paved road, and that the southeastern comer of this property is about 100 feet south of the fork leading into the dump area. Exhibit G, the dump lease site map, clearly shows that the southeastern panhandle of the leased land extends about 300 feet south/southeast of this same fork. This land is within the "eastern pocket" claimed by Namu in LT No. 39-87, which we held to belong to him, with the exception of those portions within the registered survey of Saumolia I in the north and the Ulufale survey in the south. Because the parcel described in the Namu surveyor’s affidavit, a strip of land about 200 feet long by 30 feet wide, is within neither Saumolia I nor the Ulufale survey, it is within the land adjudicated to be the property of Namu. (We note, moreover, that this strip is well to the south of the "new boundary" in Exhibit G, which was held in the 1987 Satele case to be the southernmost boundary of Uiagalelei’s property in the dump area. The location of this panhandle, well to the southeast of the Uiagalelei/ Fa’ailoilo boundary, also appears clearly from a composite map of "Fasamea" and Drawing No. 1531-A, designated Plaintiffs Exhibit 1 in the 1975 trial of LT No. 64-76, and reintroduced as Exhibit 6 by Uiagalelei at the hearing on his recent motion to vacate the judgment in that case.)
Because the record before us in the present case, consisting solely of the affidavits and other documents submitted by Namu and Fai‘ai, leaves no dispute about any fact material to their ownership of the two parcels in question — and also because any factual or legal issue that might have been raised by any party has been resolved by our holdings in Satele and Namu and in the recent denial of Uiagalelei’s motion to vacate the judgment in CA No. 3086-75 — the moving parties are entitled to partial summary judgment as follows:
The Fa’ailoilo heirs own 2.606 acres within the dump lease site. *101This is 44.823 % of the 5.814 acres comprising the leased land. They are entitled to 44.823% of the accrued funds in the account (representing rentals since 1979) and to the same percentage of any further rentals that should accrue under the 1979 interim agreement pending the negotiation of superseding agreements between the Government and the various landowners.
The Namu family owns 0.124 acres within the dump lease site, representing 2.13 % of the total area. They are entitled to 2.13 % of the accrued rental proceeds and to the same percentage of future rentals pending the negotiation of a superseding agreement.
Insofar as the motions request additional funds to compensate the moving parties for rentals alleged to have been wrongfully paid to Tuiasosopo between 1974 and 1979, they are denied. The interpled amount obviously includes no such funds, and the complaint in interpleader has nothing to say about them. Although several parties’ answers do raise these and related questions, the parties’ respective rights and obligations with respect to pre-1979 rents depend on various unresolved questions of fact and law.
Counsel for the Government hás called to our attention the fact that the bank holding the funds is not a party to the case. We are informed by counsel that the three signatories on the account are attorneys who signed as representatives of the parties to the 1979 agreement, who are also parties to the present case. This judgment is binding on the parties and their representatives.
The Bank of Hawaii is authorized to distribute 44.823 % of the funds in the Futiga Landfill Dump account to Fale Fai'ai in her capacity as administratrix of the Estate of Fa'ailoilo Fau‘olo, and 2.13% of the funds in this account to Namu T. Fa'asemomo. Should the Bank require a Court order specifically directing any party or his representative to execute a formal authorization for such distribution or to do any other act necessary to implement this judgment, counsel for the Government should draft and submit the appropriate order.
Judgment will enter in accordance with this opinion.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485977/ | On Motion for Summary Judgment:
Facts
On November 18, 1987, plaintiff Etimani, in the course of his employment with Polynesia Shipping Services, Inc., fell and was injured while on the premises of defendant Samoa Packing Company, a fish-packing company. Etimani apparently filed a claim for workmen’s compensation and on January 11, 1989 signed a release prepared in September 1988 at the request of plaintiff N.P.I., the workmen’s compensation insurer of Polynesia Shipping Services. The release, notarized the same date, reads in part:
*3DAVID ETIMANI, hereinafter called the "Payee", . . . in consideration of the sum of. . . ($11,065.82) paid by NATIONAL PACIFIC INSURANCE COMPANY (hereinafter Payor). . . and POLYNISIAN [sic] SHIPPING COMPANY, INC., . . . hereby release and discharge Payor and POLYNISIAN [sic] SHIPPING COMPANY, INC. and any and all other persons and parties in the world, from any and all claims, demands, damages, actions, or causes of action whatsoever, which said Payee has, has ever had or may have, whether or not known or whether anticipated or not, resulting from, arising out of, to arise out of or connected with, directly or indirectly, with that certain industrial injury, to wit: injury to his left leg which occurred on or about November 18, 1987, wherein claimant was injured. . . . [S]aid payment . . . compromises and settles all disputes between the parties for the purpose of payment of this claim. . . . THE PAYEE FURTHER AGREES to indemnify and hold harmless the Payor and POLYNESIAN SHIPPING COMPANY, INC, against loss or liability arising from any and all claims, demands, damages, actions, causes of action or any other matter whatsoever, which may have been or may hereafter be at any time made or brought as a result of, arising out of the matters released hereby and further, the undersigned waives the right under A.S.C.A. § 32.0501, et seq., to maintain any further action or suit against the Payor and POLYNESIAN SHIPPING COMPANY, INC..
On November 3, 1989, plaintiffs Etimani and N.P.I. filed a complaint against defendant Samoa Packing, alleging that its negligence caused Etimani’s fall and resulting injuries. Defendant Samoa Packing Company ("Samoa Packing") moves for summary judgment, claiming two affirmative defenses: (1) that the claims of both plaintiffs David Etimani and National Pacific Insurance Limited ("N.P.I.") are barred by the terms of the global release signed by Etimani; or (2) alternatively, that Etimani assigned his claim to N.P.I. under the terms of A.S.C.A. *4§ 32.06691 and thus must be dismissed as a party to the proceedings. Neither assertion can be sustained as a matter of law, and we deny summary judgment to defendant on both issues for the reasons noted below.
Discussion
Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. 56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, Inc., 369 U.S. 654 (1952), treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (1987).
I. Release
In support of its contention that the release also discharged any and all claims which Etimani may have had against it, Samoa Packing alludes to the old common law rule that the release of one tortfeasor will operate to release all. 76 C.J.S. Release § 50 (1952); Annotation, Release of One Joint Tort Feasor as Discharging Liability of Others: Modern Trends, 73 A.L.R.2d 406, 407 (1960); 66 Am. Jur. 2d Release § 37 (1973). The rule does not apply here for several reasons.
*5First, the employer is not a joint tortfeasor.2 Most workmen’s compensation statutes provide that an employer can be liable only under the workmen’s compensation act; this "exclusive remedy" provision extinguishes any tort cause of action against an employer. 2A Larson, at § 76.00. The language of our corresponding "exclusive remedy" provision3 impels the same conclusion.4 See Shields v. Bechtel Power *6Corp., 439 F. Supp. 192 (D. Wyo. 1977); Cripes v. Haynes, 350 So. 2d 956 (La. 1977); Newsome v. Finch, 375 So. 2d 1144 (Fla. App. 1979); Certain Underwriters at Lloyd’s v. United States, 511 F.2d 159, 163 (5th Cir. 1975).
Second, the policy reasons usually given for the rule are not applicable in the workmen’s compensation context. The reasons usually given to explain why general releases are interpreted to include unnamed third parties are: (1) to protect the potentially liable party who settles against third party suits for indemnity or contribution5 and (2) to prevent double recovery by the injured party.6 Neither rationale applies in workmen’s compensation cases. The employer who settles is exempt from contribution or indemnity liability as a joint tortfeasor.7 Any liability he has under a contract theory of indemnity arises from his independent relationship with the third party. As for double recovery, the compensation statute limits an employer’s liability to pay compensation to "the excess of the amount which the commissioner determines is payable . . . over the amount [the employee] recovered against such third person." A.S.C. A. § 32.0669(c). At the same time, an employer may maintain an action against the employee for any overpayment, preventing double recovery. Peters v. North River Ins. *7Co. of Morristown, N.J., 764 F.2d 306, 312 (5th Cir. 1985); see also cases cited at 33 U.S.C. § 933 n.30 (1980).
While the joint tortfeasor rule still survives in some jurisdictions, its continued vitality is doubtful. It has been vigorously attacked by commentators, 73 A.L.R.2d, supra, and in the absence of statutory regulation the modem trend favors abrogating the rule and looking to the intent of the parties executing a release to determine who is released. Id. The modem "intent of the parties" rule is also reflected in the Restatement of Law, - Restatement (Second) of Torts § 885(1) (1979) provides: "[A] valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others liable for the same harm, unless it is agreed that it will discharge them." This "is a reversal of earlier common law rules." Id., comment b. As this Court has, in construing the common law, ordinarily followed the Restatement of Law, see Tung v. Ah Sam, 4 A.S.R. 764 (1971); DBAS v. Ilalio, 5 A.S.R.2d 1 (1987), we reject the argument that the release also discharges Samoa Packing on the basis of the early common law rale on the release of joint tortfeasors.
Samoa Packing additionally argues that Etimani’s execution of the release was "knowing and intelligent" and that the document thus executed "unequivocally" released "any and all persons and parties in the world from any and all claims and causes of action arising out the incident of November 18, 1987, in which [Etimani] was injured." Memorandum of Points and Authorities, at 2. These factual conclusions, however, are made on the basis of an affidavit from the then lawyer for the insurer. The affidavit reads in pertinent part: ”[t]he Release appears to have been duly executed by David Etimani before a notary public on or about January 11, 1989, as indicated on the release." (Emphasis added). The affidavit really adds nothing in the way of explaining the release nor circumstances behind the release, which, in our view, are far from unequivocal.
The context of the release is Polynesia Shipping’s liability for workmen’s compensation benefits pursuant to the Workmen’s Compensation Act (hereafter the "Act"). The Act disallows compromise contracts between the employer and employee.8 Thus, there can be no *8agreement to prevent the employee from receiving or altering the amount of compensation fixed and guaranteed to him by statute. We note, however, that the terms of the release before us certainly purport to reflect a situation of settlement in the sense of mutual compromise — "[the] payment [made to Etimani] . . . compromises and settles all disputes between the parties." Release, para. 2. While the Act does recognize those settlement agreements which have been approved by the Workmen’s Compensation Commission as effectively discharging an employer’s liabilities under the Act, see A.S.C.A. § 32.0668, we are unable to determine from the face of the release in issue whether such commission approval was ever obtained. In this regard there is, without further evidence, a doubt as to the validity of the release. The more troublesome question is whether Etimani, in order to receive workmen’s compensation benefits to which he was otherwise entitled under the Act, was at all required to sign a release in the first place. (The concern here is significant since Etimani does not appear to have been represented by counsel when he ostensibly signed away rights of which he may not have been aware.) In other words, was there consideration given to Etimani for the global release? The extent of the record is, again, not sufficiently clear on these points.
Moreover, if Polynesia Shipping’s liability to Etimani for compensation is based on the provisions of A.S.C.A. § 32.0605 (dealing with permanent total disability) or pursuant to § 32.0609 (providing a schedule for p ^rmanent partial disability), then the release’s compromise and concession language is not only thoroughly misleading but also completely meaningless, since the benefits thereunder are capable of calculation to a mathematical certainty and thus beyond dispute. Indeed, in as much as the release does reflect an exercise of compromising Etimani’s statutory benefits, it is invalid. See A.S.C.A. § 32.0672.
On the facts before us, we are unable to say whether the release in question is, indeed, a valid release given the Act’s restrictions on compromise contracts. The defendant has provided no showing regarding the context in which the release was signed — the negotiations preceding its execution; the circumstances under which it was signed; whether the underlying payment was a settlement under A.S.C.A. § 32.0668, commuted per A.S.C.A. § 32.0666; or whether the Commissioner had approved such settlement or issued a formal compensation order. All we know is that the release was prepared in *9September 1988 at the request of plaintiff N.P.I., signed by plaintiff Etimani on January 11, 1989, notarized, and accompanied by an interpreter’s certificate (apparently signed by Etimani) stating that the release was translated, acknowledged, understood, and freely executed. In these circumstances and for purposes of summary judgment, the inference of invalidity must be drawn in plaintiffs favor. T.C.R.C.P. 56.
Furthermore, we cannot presume that an injured worker settling a workmen’s compensation claim clearly intended to release all his future claims against a third party who did not participate in negotiating the contract and apparently paid no consideration for such release. In circumstances where a releasor was led to believe that he was getting all that he was entitled to in damages or benefits, some courts have construed the release given as limited to the "settlement of those matters only to which the minds of the parties met, and may not be considered to be in satisfaction of anything not consented to by the plaintiff." Jordan v. Guerra, 144 P.2d 349, 352 (Cal. App. 1943); see also Ruiz v. City of Albuquerque, 577 P.2d 424 (N.M. App. 1978).9 That Etimani was led to believe that he was only entitled to a payment of $11,065.82 for injuries sustained is yet another inference (most favorable to plaintiff) which might reasonably be drawn in the following circumstances: Etimani was not aware that he could also file a common law action in damages against third parties; he was neither represented by counsel, nor did the terms of the release give him the slightest hint that he also had common law rights against third parties which were also the subject of settlement; and the release was given in pursuance of a workmen’s compensation claim.10 Therefore, the release (presuming it is valid) would at best extend only to plaintiff Etimani’s workmen’s compensation claims and not to any common law remedies he may have against third parties. Id.
*10For the foregoing reasons we deny summary judgment on the issue.
II. Assignment of the Claim
Defendant argues in the alternative that plaintiff Etimani "accepted] . . . compensation under an award in a compensation order" on January 11, 1989, when he signed the release settling his workmen’s compensation claim and thereby assigned all rights to maintain a third-party action to N.P.I. by failing to commence this action within six months.
Jurisdictions vary as to whether a third party may assert subrogation as a valid defense when the employee attempts to sue. 2A Larson, at §§ 75.40-75.45. In Rodriguez v. Compass Shipping Co., 451 U.S. 596 (1981), the Supreme Court allowed subrogation as a defense in a L.H.W.C.A. case. It held that L.H.W.C.A., 33 U.S.C. § 901 et seq., with language almost identical to that of our statute,11 divests an employee of all rights to sue a third party six months after he accepts compensation pursuant to an award in a compensation order.12 Id. But a subsequent Supreme Court case, Pallas Shipping Agency, Ltd. v. Duris, *11461 U.S. 529 (1983), vitiates the cases cited by defendant13 and indeed provides support for plaintiffs’ argument; that is, defendant has failed to plead or prove the "award in a compensation order" which A.S.C.A. § 32.0669 requires to trigger assignment of the claim to N.P.I..
The Rodriguez Court did not decide whether informal agreements were equivalent to formal orders for purposes of triggering a § 933(b) assignment but assumed for purposes of the decision that they were. Rodriguez, supra at 598 n.3. But the Pallas Court held that § 933(b) of L.H.W.C.A., 33 U.S.C. § 901 et seq., requires a formal compensation order or award to trigger the assignment of the employee’s right of action against third parties to the employer. Pallas, supra. We find the Supreme Court’s reasoning on a statute so closely paralleling ours14 to be persuasive. Under L.H.W.C.A. regulations an employer can obtain a formal compensation order simply by requesting it once a voluntary agreement has been implemented. The Court implied that the employer should thus bear any consequences of his failure to secure such an order. Pallas, supra at 538. Here, an employer could likewise obtain approval of an agreed settlement from the workmen’s compensation commission which would effectively discharge the employer’s liability, notwithstanding the Act’s provisions against compromise contracts. See A.S.C.A. § 32.0668.
We deny summary judgment on the "assignment of claim" issue since defendant has failed to show a formal award as required by A.S.C.A. § 32.0669.
III. Costs Assessment Under A.S.C.A. % 32.0639
*12Plaintiff asks that the costs of these proceedings be assessed against defendant pursuant to A.S.C. A. §32.0639. We deny the request. This is a negligence suit sounding in tort rather than a proceeding "in respect to any claim or compensation order" where § 32.0639 would apply.
It is so ordered.
[Acceptance of compensation under an award in a compensation order operates as an assignment to the employer of all rights of the individual entitled to compensation to recover damages against such third person unless such individual commences an action against such third person within 6 months after such award. . . . Where the employer is insured and the carrier has assumed the payment of the compensation, the carrier shall be subrogated to all rights of the employer under this section.
A.S.C.A. § 32.0669(a), (e).
See 1 A. Larson,. The Law of Workmen’s Compensation §§ 1.20, 2.00 (1983) (stressing fundamental differences between tort and workmen’s compensation schemes in philosophy, tests of liability, injuries compensated, elements of damage, defenses available, amount of compensation, and ownership of award). Furthermore, a third-party tortfeasor cannot sue or join a negligent employer because "the employer is not jointly liable to the employee in tort; therefore he cannot be a joint tortfeasor" and "[t]he claim[s] of the employee against the employer . . . [and] the third person ... are different in kind and cannot result in a common liability." 2A Larson, at § 76.20. Compensation law is "wholly substitutional" for the common law of tort, not in the sense of liability for liability and exemption for exemption, but "[o]ne entire system was substituted for another, and when the old system went out, all the exceptions and immunities that were a part of the old system naturally went out with it." 1C Larson, at § 50.43).
The liability of an employer [under this Act] shall be exclusive and in place of all other liability of such employer to . . . anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. . . . A.S.C.A. § 32.0522(a) (emphasis added). The language is identical to that of the Federal Longshoremen and Harbor Worker’s Compensation Act ("L.H.W.C.A."), 33 U.S.C. § 905, and the Federal Employees’ Compensation Act ("F.E.C.A.”), 5 U.S.C. §757(b). Haleckv. Scanlon, 4 A.S.R. 998, 1002 (1975) (Workmen’s Compensation Act of American Samoa, 24 A.S.C. [recodified as Title 32], "extraordinarily similar to and seems to have been drawn largely from [L.H.W.C.A.]"); see also United Airlines v. Wiener, 335 F.2d 379, 403 (1964) (exclusive remedy clauses in L.H.W.C.A. and F.E.C.A. are identical).
Most jurisdictions recognize only one exception to the "exclusive remedy" provision — an indemnity action by a third party against an employer, which is not an action for "damages" but for reimbursement. 2A Larson, at §§ 76.41-76.50. But even then the employer is not a joint tortfeasor, since a claim of indemnity is grounded in contract or equity *6rather than tort. 41 Am. Jur. 2d Indemnity §§ 2, 20, 21 (1968); Ocean Drilling & Exploration Co. v. Berry Bros. Oilfield Serv., 337 F.2d 511, 514 (5th Cir. 1967); General Electric Co. v. Cuban Am. Nickel Co., 396 F.2d 89, 100-02 (5th Cir. 1968); United Airlines, Inc. v. Wiener, supra at 402-04.
The possibility of Polynesia Shipping being liable to indemnify defendant under a contract theory is relevant in deciding whether the parties to the release intended to release defendant as a third party beneficiary, White v. General Motors Corp., 541 F. Supp. 190, 194-95 & n.10 (D.C. Md. 1982), and might affect whether defendant could claim the benefit of the parol evidence rule in construing the terms of the release. But no claim to indemnity could transform Polynesia Shipping into a joint tortfeasor.
Morison v. General Motors Corporation, supra, at 954; Auer v. Kawasaki Motors Corp., U.S.A., 830 F.2d 535, 539 (4th Cir. 1987).
State ex. rel Normandy Orthopedics, supra at 831.
Supra note 4.
See A.S.C.A. § 32.0554(b) ("[N]o agreement by an employee to waive his rights to compensation ... is valid."), and A.S.C.A. § 32.0672 ("No . . . release of liability for compensation . . . payable [under the Act] is *8valid, except as otherwise provided for by [the Act]. ”).
In Jordan v. Guerra, plaintiff accepted $150.00 in settlement of a claim for the death of his son. Plaintiff executed a release of all liability stemming from the accident, having been led to believe that all that he could claim was funeral expenses and time lost. In his action for wrongful death, the court construed the release as being ineffective beyond the discharge of liability for funeral expenses and time lost.
It was further held in Ruiz v. City of Albuquerque that any reasonable doubt as to the intent of the parties and the effect of a release should be construed in favor of the workman. Id. at 428.
Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner of Board [sic] shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.
33 U.S.C. § 933(b).
For collected cases dealing with this issue, see Annotation, Right of Injured Employee to Sue Third-Part Tortfeasor Under, or Affected by, § 33(b) of the Longshoremen’s and Harbor Worker’s Compensation Act (33 U.S. C. § 933(b)), 2 A.L.R. Fed. 1015 (1969). In 1984 Congress revised § 933(b), virtually eliminating a Rodriguez-type situation, by providing that if an employer does not file suit against a third party within ninety days after the cause of action was assigned under § 933(b), the right to bring such action reverts to the person entitled to compensation. 33 U.S.C. § 933(b), as amended by P.L. 98-426, § 21, 98 Stat. 1652 (1984). Our statute has not been so revised.
Sorrentino v. Lloyd, 528 F. Supp. 1119 (E.D.N.Y. 1981); Verderame v. Torm Lines, 670 F.2d 5 (2d Cir. 1982); Simmons v. Sea-Land Serv., Inc., 676 F.2d 106 (4th Cir. 1982), vacated and remanded 462 U.S. 1114 (1983).
The language of our statute parallels LHWCA in several provisions cited by the Pallas Court. Compare 33 U.S.C. §§ 914(e)-(l) with A.S.C.A. § 32.0663(a)-(b); 33 U.S.C. § 914(c) with A.S.C.A. § 32.0661(a); 33 U.S.C. § 921(c) and A.S.C.A.§ 32.0652; 33 U.S.C. § 921(a) with A.S.C.A. § 32.0651; 33 U.S.C. § 921(d)-(e) with A.S.C.A. § 32.0653. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485978/ | On Motion for Summary Judgment:
Plaintiff has submitted affidavits and balance sheets showing that defendant O.O. Enterprises is indebted to plaintiff in the amount of A$8,567.97. Defendant O Suk Ko has submitted an affidavit which does *13not deny the particular transactions giving rise to the indebtedness but which, construing it in the light most favorable to defendants, suggests that certain earlier transactions between the parties may or may not — the affiant is not sure — have partly or wholly offset this indebtedness.
On the evidence before us, and construing this evidence in the light most favorable to defendants, there remains no material issue of fact for resolution. Plaintiff has proved the only debt it seeks to collect, and defendants have presented no evidence to support their suggestion that they may be entitled to offsets. Judgment will therefore enter in favor of plaintiff against defendant O.O. Enterprises. If plaintiff is indebted to defendants or to any one of them, on account of other transactions, defendant(s) are and remain entitled to bring a separate action to recover this debt.
Summary judgment will not enter against defendant O Suk Ko in his individual capacity. Although the complaint alleges in the alternative that defendant 0.0. Enterprises is either a partnership or a corporation, defendants allege in their answer that it is a corporation. We have been presented with no evidence on whether 0.0. Enterprises is in fact a corporation or on whether, if it is a corporation, its president, O Suk Ko, should be held personally liable for the debt that is the subject of this action. Plaintiff remains free, of course, to present such evidence in the future course of this proceeding.
We take judicial notice that the Pago Pago branch of the Bank of Hawaii will exchange, as of today, April 4, 1991, $1.25 in Australian dollars for every United States dollar presented. Judgment will therefore enter in favor of the plaintiff and against defendant 0.0. Enterprises in the amount of US$6,926.38 and for court costs of $60, for a total of US$6,986.38, to bear interest at the legal rate of six percent per annum. To avoid further difficulties having to do with exchange rates, this judgment may be satisfied only by payment of the requisite amount into the registry of the Court by cash or cashier’s check, unless the plaintiff should choose to accept some other form of payment.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485979/ | On Motion for Summary Judgment:
In this case we must construe the terms of a trust instrument to determine how the settlors intended to distribute its assets when the first settlor died.
Facts
The following facts appear undisputed: In 1983 plaintiff Lefaga Beaver and her late husband William Beaver were the majority stockholders in South Pacific Traders, Inc., a corporation operating in *17Nu’uuli. On December 19, 1983, they signed a trust instrument1 creating an inter vivos trust ("Beaver Family Trust"), transferred all their shares2 of South Pacific Traders, Inc. (hereinafter "S.P.T. stock") into the trust as the original corpus of the Trust Estate, Art. I.A, and appointed themselves as trustees. Art. II. A. Mr. Beaver added a codicil to his will on the same day giving, devising, and bequeathing to the trust any property not already transferred to it when he dies ("pour-over provision"). No other assets were transferred to the trust during their joint lifetimes. When Mr. Beaver died on September 18, 1984, certain events occurred under the terms of the trust: 1) the trust became irrevocable, Art. IV; 2) defendants Barrett and Cravens became trustees, Art. II.B; 3) the Trust Estate (including "all property received as a result of the Decedent’s death") divided into two trusts administered separately--a Survivor’s Trust and a Decedent’s Trust — and the assets of the inter vivos trust were distributed between them according to the terms of the trust agreement, Art. V. The allocation of assets to the Survivor’s Trust vested in its trustees immediately; the Survivor’s interest in her trust also vested immediately, Art. V., and she received a power of appointment over the principal and undistributed income of the Survivor’s Trust. Art. VLB.
On February 21, 1990, defendants Cravens and Barrett called a special shareholders’ meeting of South Pacific Traders, Inc.. Claiming authority as r-ole trustees of the Decedent’s Trust (which they maintained now held the. S.P.T. stock per the allocation of assets required by the trust instrument), they removed the Board of Directors and elected a new board which included Mrs. Beaver and Muliufi Hanneman. Complaint and Answer, para. 16. The new board immediately met (without plaintiff and Hanneman) and elected Cravens to replace plaintiff as president and Abraham Orcini to replace Hanneman as secretary.
Since at least May 1990, plaintiff has not been allowed to function as an officer of the corporation or a trustee of either the Decedent’s or Survivor’s Trust. On or about July 2, 1990, defendants Cravens and Barrett received a letter from plaintiff in which she exercised her power of appointment under the Survivor’s Trust to direct *18them as trustees to transfer title to all S.P.T. stock held in the Survivor’s Trust into her name. As such transfer of S.P.T. stock would make her the major shareholder, she then requested that defendants (as named President and Chairman of South Pacific Traders) call a special shareholders meeting. Defendants responded with the claim that all of the S.P.T. stock comprising the original Trust Estate of the inter vivos trust had been allocated to the Decedent’s Trust according to the terms of the trust instrument. Plaintiff then filed suit. Both parties have moved for summary judgment on the following issues:
Discussion
I. Which Trust Received the S. P. T. Stock Upon the Death of Mr. Beaver?
The Decedent’s Trust consists of all assets in the inter vivos Trust not allocated to the Survivor’s Trust. Art. V.B. The Survivor’s Trust consists of the separate property of the survivor plus Marital Deduction Property, defined as:
Out of the other assets subject to the terms of this Trust, including those received by the Trustees upon, or by reason of the death of the Decedent, which are e'tfible to satisfy the marital deduction, property equal in value to the amount of the maximum "Marital Deduction" allowable in finally determining the Federal Estate Tax in the Estate of the Decedent less the value of all assets or interest which pass, or have passed to the survivor other than by the terms of this Trust, and which are eligible to satisfy said marital deduction.
In making the selection and allocation of such assets, the Trustees shall do so in a manner to fully utilize the marital deduction .... No assets shall be included in this distribution with respect to which a marital deduction is not allowed, or not allowable if included. In the event a distribution or distributions are made for the Decedent’s Probate Estate which shall saturate and fully utilize the Federal Estate Marital Deduction, then no additional distribution shall be made to the SURVIVOR’S TRUST under the provisions of this subparagraph.
*19Art. V.A.(2) (emphasis added). Since the instrument does not define "other assets” or "maximum Marital Deduction," the Court must construe these terms to ascertain and give effect to the settlors’ intention in creating the trust. In doing so we take into account the document’s subject matter, scheme, and plan, as well as the relationship of the parties; favor effectiveness of the instrument and validity of the trust (if possible); favor beneficiaries rather than settlors; and give effect to the whole instrument by reconciling repugnancies and avoiding surplusage. 76 Am. Jur. 2d Trusts § 17 (1975); 90 C.J.S. Trusts §§ 161-173 (1955). The parties agree on material facts but differ on how they must be interpreted to determine the plan and intent of the settlors. Interpreting a trust instrument to find the settlor’s intention is a question of law. Davison v. Duke Univ., 194 S.E.2d 761, 783 (N.C. 1973); Evans v. First Nat’l Bank of Stillwater, 192 P.2d 666, 667 (Okla. 1948). Since there is no genuine issue as to any material fact, summary judgment can be rendered if either party is entitled to a judgment as a matter of law. Trial Court Rule of Civil Procedure 56(a).
Defendants argue as follows. The Beavers executed the trust instrument intending to minimize federal estate taxes by maximizing the estate’s marital deduction, to provide lifetime income for the survivor, and to ensure that the Trust Estate would pass to their children when the survivor died. Defendant’s Memorandum of Points and Authorities, at 2. "Marital Deduction Property" is restricted to "other assets [than the S.P.T. stock] subject to the terms of this trust." Id. at 3 (emphasis added). A probate action (PR No. 29-87) was opened, and all of decedent’s property "poured into" the inter vivos trust per his will. These "other assets" that poured over satisfied the maximum marital deduction, were transferred to the Survivor’s Trust, and were distributed therefrom to Mrs. Beaver, exhausting and terminating the Survivor’s Trust. Id. They argue that the settlors wished to transfer to the survivor only her half of all property acquired during the marriage. Affidavit of W. Scott Barrett, at 5.
Plaintiff, on the other hand, contends as follows. She and Mr. Beaver intended primarily to transfer as much of the trust estate of the decedent as possible to the survivor without paying federal estate tax. They intended the Survivor’s Trust to receive all properties passing through either the inter vivos trust or the decedent’s estate without being subject to federal estate tax. Plaintiffs Memorandum of Points and Authorities, at 3. None of decedent’s property was subject to probate or distributed to the trust at his death, and no estate taxes applied to American Samoa property; hence, all property in the original trust (i.e., *20the S.P.T. stock) passed to the Survivor’s Trust. Complaint, paras. 11, 13, 14. She does not interpret the phrase "other assets"; instead, she argues that the words "saturate" and "fully utilize" imply that if the assets transferred to the survivor other than through the trust do not exhaust the maximum marital deduction, then the trustees must distribute the assets in the inter vivos trust so that the survivor receives all of the trust escaping federal estate tax, i.e., the entire trust. Plaintiffs Memorandum of Points and Authorities, at 4. In order to assess these respective arguments, we need to look at what the trustors meant by "other assets" and "maximum marital deduction."
A. Marital Deduction
The "marital deduction" is a deduction from a decedent’s gross estate allowed in computing the estate’s liability for federal estate tax. 26 U.S.C. § 2056. Those dying before 1976 could deduct up to 50% of their "adjusted gross estate"3 that passes or passed to the surviving spouse. 26 U.S.C. § 2056(c)(1), amendedby P.L. 94-455, § 2002(a) for estates of decedents dying after 1976. Those dying after 1976 could deduct the greater of $250,000 or 50% of the adjusted gross estate passed or passing to the spouse. 26 U.S.C. § 2056 (c)(1)(A), (B), deleted by P.L. 97-34 for estates of those dying after 12/31/81. Those dying after 1981 could deduct their entire estate if it passed to the spouse. 26 U.S.C. § 2056.
The deduction was first intended to equalize the treatment of estates of married decedents in community property and common law states. Pennsylvania Nat’l Bank v. United States, 387 U.S. 213, 219 (1967). Since the provision was intended to permit marital property to be taxed in two stages, not to allow a tax-exempt transfer to succeeding generations, the deduction is generally restricted to the transfer of property interests that will (unless disposed of or consumed) ultimately be included in the surviving spouse’s estate. U.S. v. Stapf, 375 U.S. 118, 128 (1963). No deduction is allowed for most terminable interests which perish at the survivor’s death and would not be included in her taxable estate. See Estate of Smith, 565 F.2d 455, 459 (7th Cir. 1977). Nor can an estate deduct property that passes to the survivor without *21having first been included in decedent’s gross estate. 26 U.S.C. § 2056(a).
Interpreting the trust instrument here is complicated by the fact that the Beavers and their advisors may not have realized that the law changed in 1981 to allow an unlimited marital deduction. 26 U.S.C. § 2056. Both parties argue as if only half of the estate could be passed via the deduction. Plaintiffs Memorandum of Points and Authorities, at 6; Affidavit of W. Scott Barrett, at 3. In fact, decedent could have passed his entire estate to the. survivor and deducted it, if it was first included in the gross estate and met the other requirements for the marital deduction. The parties do'not say if the S.P.T. stock was included in Mr. Beaver’s gross estate for federal estate tax purposes. If it was not, then clearly it is not an "asset[] subject to the terms of this Trust. . . eligible to satisfy the marital deduction” and did not pass to the Survivor’s Trust. Art. V.A.(2) (emphasis added).
Inter vivos trusts like the original Beaver Family Trust are used to pass property at death without the time and cost of a probate proceeding. Am. Jur. Legal Forms 2d Federal Tax Guide to Legal Forms ¶ 180-K-91 (1981); 17A Am. Jur. Legal Forms 2d Trusts §§ 251:93, 251:101 (1984). The assets escape probate but may be subject to federal estate tax. The difficult issue is determining what the settlors intended to achieve by creating the Survivor’s and Decedent’s Trusts.
The marital deduction allows a couple to arrange their affairs so that their combined wealth is divided between their estates (via the marital deduction) in a manner that achieves the lowest net total tax. If the survivor will also be subject to estate tax at death, the couple often transfers just enough via the deduction to eliminate any tax liability (after utilizing the unified tax credit) of the first decedent’s estate. To transfer more only subjects the income initially taxed in the first decedent’s estate to possible taxation again if it is still in the survivor’s estate at her death. But there are also non-tax reasons for restricting the amount transferred to the survivor:
If the . . . deduction could be secured only by leaving the property to the surviving spouse outright and with no strings attached, its usefulness would in many cases be questionable.
The cost of foregoing the marital deduction is calculable. The potential damage from mismanagement *22after an outright transfer is infinitely greater and its actual size unpredictable. A kind of economic ownership has been created which when given to the surviving spouse enables the decedent’s estate to claim the benefit of the deduction while surrounding the administration and conservation of the property with certain safeguards, wherever such protection may be seemed desirable.
The • essence of this economic ownership qualifying for the marital deduction is the combination of income for life and a general power to appoint, both vested in the surviving spouse.
34A Am. Jur. 2d Federal Taxation ¶ 44,661 (1989) (emphasis added).
The Survivor’s Trust was structured to qualify as a "life estate power of appointment" trust. Arts. VI.A-C, VILC; see 34A Am. Jur.2d, supra at ¶ 44,662 (conditions required to qualify as "power of appointment" trust). Distributions from decedent’s estate to such a trust qualify for the marital deduction if they are first included in the gross estate. 26 U.S.C. § 2056(a). But the survivor’s power to appoint must be quite broad to qualify for the marital deduction. A grantor might be willing to give the surviving spouse the full power of disposition needed for the deduction for some property but wish to limit the survivor to a life interest with a vested remainder to children in other property. The creation of two trusts was the safest way of doing this. See Am. Jur. Legal Forms 2d, supra at ¶ 180-P-51 (1981)4; see also 17A Am. Jur. Legal Forms 2d Trusts §§ 251:251-259 (1984). This seems to be exactly what the Beavers intended. The detail which the trust instrument outlines for the Decedent’s Trust implies that the Beavers intended the assets in that trust to be protected from exhaustion or disposal by the survivor but still be available for his/her support as the trustees deemed necessary. Arts. VIL A-C; VIII. C.
B. "Other Assets"
*23But did the Beavers intend the S.P.T. stock to be transferred to the Decedent’s Trust? If the S.P.T. stock was included in Mr. Beaver’s gross estate for federal estate tax purposes, was it also included in the "other assets" from which property equal in value to the maximum marital deduction was to be transferred to the Survivor’s Trust? Since no language in an instrument is treated as surplusage as long as any other course is reasonably possible, 90 C.J.S., supra at § 161(g)(2), we see only two possible meanings for "other." Either it refers to assets other than the original Trust Estate (the S.P.T. stock), or it refers to assets other than the Survivor’s separate property. Looking at the document as a whole, the first interpretation makes more sense. Why would the settlors create two trusts, surround one with provisions that severely restrict the survivor’s access to its assets, and then intend to transfer as little as possible to it? In fact, why use the language "maximum marital deduction" (implying benefit to the decedent’s estate rather than to the survivor) when determining the amount to flow to the Survivor’s Trust?
After examining the trust instrument as a whole, it appears the Beavers wanted both to minimize taxes and to surround the administration and conservation of the S.P.T. stock with safeguards possible only by transferring it to the Decedent’s Trust. Any other assets transferred to the Beaver Family Trust without specific instructions for allocation were to be placed in the Decedent’s Trust. Art. V.C. This reinforces the view that the settlors intended most property to remain in the Decedent’s Trust. We hold that the S.P.T. stock was transferred to the Decedent’s Trust.
II. Who are the Trustees of Decedent’s Trust?
Defendants argue that "the plain language of Article II [of the trust instrument] . . . contemplates that upon the death or resignation of either Original Trustee, that Defendants Cravens and Barrett would succeed both Original Trustees. ..." Defendant’s Memorandum of Points and Authorities, at 5-6. The language, however, is not as plain as defendant contends. In our view, it would have been a simple matter to specify that defendants shall "replace" both the Survivor as well as the Decedent as trustees. Instead, the instrument states that "[i]n the event of the . . . death of any original Trustee [Mr. and Mrs. Beaver] . . . the Trustors nominate and appoint to serve as Trustees . . . WILLIAM H. CRAVENS and W. SCOTT BARRETT." Art. II.B. It does not specify whether the successor trustees replace only the deceased original trustee as Mrs. Beaver contends (Plaintiffs Memorandum of Points and Authorities, at 7-8) or whether both original trustees are replaced.
*24The general rule, except as provided otherwise by statute or the trust instrument, is that on the death of a trustee and pending appointment, if any, of a new trustee, the trusteeship devolves on any surviving trustees. 90 C.J.S. Trusts § 236 (1955); 76 Am. Jur. 2d, supra at § 301 (surviving trustees can generally exercise trust powers). Defendant argues that construing the instrument to allow the surviving trustor to be both beneficiary and trustee would be unreasonable, since it would place her in a position of conflict. Defendant’s Memorandum of Points and Authorities, at 5. But such trusts are allowed, except where a sole beneficiary is also the sole trustee, on the theory that the legal and equitable titles held as trustee and beneficiary are sufficiently different to prevent the legal estate from merging into the equitable one. Bogert, Law of Trusts § 30 (5th ed. 1973). Mrs. Beaver is neither the sole trustee nor the sole beneficiary; nothing in the instrument implies that the trustors intended to deprive the survivor of all input and guidance in managing the Decedent’s Trust so that it will be well-managed and its assets conserved for their children. The courts are reluctant to remove trustees, especially those appointed by the settlor, Bogert, supra at § 160, and it thus seems unwarranted to remove a surviving trustee because of the absence of an express provision clarifying her status. We hold that Mrs. Beaver is a trustee of the Decedent’s Trust.
III. Are the Directors and Officers Elected or Appointed at the Februaiy 1990 Shareholders’ Meeting the Valid Governing Authority of South Pacific Traders, Inc. ?
In view of our conclusion that Mrs. Beaver is a co-trustee of the Decedent’s Trust, we hold for the following reasons that the special shareholders meeting of February 21, 1990, called by defendants Cravens and Barrett, was invalid. The general rule is that trustees must jointly exercise all powers calling for their discretion and judgment, 76 Am. Jur.2d, supra at § 299, though the Uniform Trust Act ("UTA") permits a majority of a group of three or more trustees to exercise the powers of the trust, absent a provision in the instrument or a court order to the contrary. Id. at § 300. Since we have no pertinent statutes or cases we turn to the common law. See Tung v. Ah Sam, 4 A.S.R. 764, 767-68 (1971).
The Restatement (Second) of Trusts requires co-trustees to jointly exercise power. Bogert, supra at § 91 n.55. "In the absence of a statute or trust provision to the contrary, a majority of three or more trustees has no power to act or to compel the minority to join in action." Id. (quoting the Restatement). Thus any acts of co-trustees Cravens and Barrett requiring discretion and judgment (e.g., calling a shareholders *25meeting) require Mrs. Beaver’s agreement as co-trustee. 76 Am. Jur.2d, supra at § 299.
There is no provision in our statute dealing with shareholder meetings, see A.S.C.A. Title 30, but the bylaws of South Pacific Traders, Inc., provide that special meetings of shareholders for any purpose may be called by the president, board of directors, or shareholders holding at least 20% of the voting power of the corporation. S.P.T. Bylaws, Art. IV § 2. Apparently Mrs. Beaver was president at the time, Complaint and Answer, para. 17; the board consisted of plaintiff, Barrett, Fotu Soliai, Muliufi Hanneman, and Abraham Orcini, see Minutes of S.P.T. Shareholders’ Meeting, February 21, 1990; Defendant’s Memorandum of Points and Authorities, at 6-7; and the co-trustees held joint legal title (see Bogert, supra at § 32) to the majority of S.P.T. stock. See Complaint and Answer, paras. 6, 9; see also Henn, Law of Corporations §§ 187, 1026 (2d ed. 1970) (trustee is ordinarily owner of record with right to vote).5
Mrs. Beaver alleges that Cravens and Barrett called the meeting in their capacity as trustees/shareholders and that she received no notice of it.6 Complaint, para. 16. Since defendants do not deny this, they are deemed to have admitted it. T.C.R.C.P. 8(d). They argue that plaintiff was not entitled to notice since she was no longer a trustee. Answer, para. 16. But since Mrs. Beaver was, as a matter of law, a co-trustee of Decedent’s Trust, defendants were required to act jointly with her. See 76 Am. Jur.2d, supra at § 299 (trustees must jointly exercise all powers calling for discretion and judgment). Since they were not *26empowered to call a shareholders’ meeting without their co-trustee, the meeting was unauthorized and its proceedings of no effect. 18A Am. Jur. 2d Corporations § 958 (1985). We hold that the expansion of the board to seven members and the election of new board members was ineffective.
Additionally, there is doubt whether the new enlarged board was properly elected:
1. Did the shareholders have authority to remove the old board and elect a new enlarged board?
2. Could the shareholders remove directors without cause before their terms expired?
See Henn, supra at § 192. The parties disagree on a vital issue of fact: whether plaintiff and Hanneman were notified of the special board meeting of February 21, 1990. See Complaint and Answer, paras. 16-18; Affidavit of Lefaga Beaver. At that meeting the new board (without plaintiff and Hanneman) elected Cravens to replace plaintiff as president and Abraham Orcini to replace Hanneman as secretary.
A special board meeting held without due notice to all the directors as required by the corporation’s bylaws, and in the absence of those directors without notice, is unlawful, and all acts done at such a meeting are void, absent ratification or estoppel. See 18B Am. Jur. 2d Corporations at § 1453 (1985). The bylaws of South Pacific Traders, Inc. provide "due notice in writing [must be] given to each director in the manner prescribed by statute." S.P.T. Bylaws, Art. II, § 6. The Territory has no statute dealing with notice of directors meetings, see A.S.C.A. Title 30, but reasonable advance notice enumerating any extraordinary matters to be discussed is usually required for special meetings, absent a contrary provision. Henn, supra at § 209. If the corporation did not give plaintiff and Mr. Hanneman such notice, their removal as officers would be void.
IV. Does the Rule Against Perpetuities apply in Samoa to invalidate certain interests created by the Decedent’s Trust, and does such partial invalidity so frustrate the intent of the trustors that the entire trust must be voided?
*27Finally, plaintiff claims that the trust instrument must be invalidated because it creates future interests which violate the Rule Against Perpetuities. She maintains that invalidating these interests defeats the intention of the settlors (she and Mr. Beaver) to such an extent that the entire decedent’s trust must fail. Plaintiffs Supplemental Memorandum.
Defendants, however, argue that the Rule should not apply in American Samoa, since it is based on a public policy favoring free alienation of property, which directly contradicts the Samoan public policy prohibiting free alienation (A.S.C.A. § 37.0204). Defendants’ Supplemental Memorandum.
We look to the trust instrument and observe the following:
1. When the Survivor dies, the assets in the Decedent’s Trust shall be divided into separate trusts for each living Beaver child and each group of living descendants of each deceased Beaver child. Art. IV.C.
2. The trust for their child Lotoa terminates when she reaches age thirty-five. Art. VII.C. Each other child’s trust continues past the child’s death (if the trust has not yet been completely distributed7 and the child has living descendants) for the benefit of such descendants until the deceased child’s youngest child (the grandchild of the settlors) reaches twenty-five.
3. When the deceased child’s youngest child reaches twenty-five, the remaining assets in each deceased Beaver child’s trust are divided into equal shares for each of the deceased child’s living children (settlor’s grandchildren) and each group of living descendants (settlors’ great-grandchildren or beyond) of any deceased children of that deceased child.
4. The instrument is unclear as to whether a deceased child’s older children (settlor’s grandchildren) can begin withdrawing their share of the *28deceased child’s trust at age twenty-five8 or whether they must wait until the trust is divided when the youngest sibling reaches twenty-five.
5. If any person is under twenty-five when his portion is to be distributed to him under these terms, his portion vests in him, but the trustees may withhold possession of it and hold it in trust for him until he reaches twenty-five, subject to the provisions regarding the maximum duration of any trust established hereunder. Art. IV.C.(2).
6. If any provision is void, invalid, or unenforceable, the remaining ones shall nevertheless be valid and carried into effect. If any Trust herein established exceeds the longest permissible period, it shall persist in its period for the longest period permissible, then terminate. Art. X.D. The instrument does not specify who will receive the corpus of a trust terminated by this provision.
The Rule Against Perpetuities reflects a public policy favoring free alienability and transferability of property. 61 Am. Jur. 2d Perpetuities §§ 1, 7 (1981). The Rule aims against the possibility of interests in property vesting too remotely from the time they are created. W. Burby, Real Property § 183 (1965). Under the Rule, all future interests must vest or fail no later than twenty-one years after the measuring period of lives-in-being when the interest is created. 61 Am. Jur. 2d, supra at § 6. Whether it even applies in Samoa is a question of first impression,9 but even if it does, we hold that the savings clause in Article X.D. saves the trust: (1) by terminating any trust that reaches the longest period permitted by the Rule, or (2) by severing any provisions that violate the Rule so that they cannot invalidate the entire trust instrument.
Savings clauses are upheld if carefully drafted. See 61 Am. Jur. 2d, supra at § 27 (citing cases where savings clauses were upheld or rejected); 70 C.J.S., supra at § 35 (provision creating an interest that *29could be interpreted as violating Rule will not be construed to do so where instrument contains another provision limiting duration of such interests to those permitted by law); Nelson v. Mercantile Trust Co., 335 S.W.2d 167, 172-73 (Mo. 1960); Cennamo v. American Sec. & Trust Co., 350 F. Supp. 1354, 1358-59 (D.D.C. 1973); First Ala. Bank of Montgomery v. Adams, 383 So. 2d 1104, 1109 (Ala. 1980); 17A Am. Jur. Legal Forms 2d Trusts § 251:408 (1984); 15 Am. Jur. Legal Forms 2d Perpetuities §§ 201:13-14 (1973) (examples of savings clauses).
Only two cases were cited where a savings clause did not save the instrument by cutting short interests otherwise void under the Rule. In Farmers Nat’l Bank v. McKenney, 264 S.W.2d 881 (Ky. App. 1954), the provision creating the interests for "as long as the law allows" was so uncertain in its language that the creator’s intent could not be discerned, so the entire provision was held unenforceable. In Hagemann v. Nat’l Bank & Trust Co., 231 S.E.2d 388 (Va. 1977), the savings clause provided that the corpus of any interest terminated to avoid the Rule would be distributed to the persons to whom it would ultimately go under the other trust provisions, i.e., the very dispositions rendered void by the Rule. The court noted that "[a] ‘savings clause’ cannot save a void interest by adopting the very provisions which make it void." Id. at 393.
The Beaver trust instrument is ambiguous as to when the trusts created therein L.rminate, but the beneficiaries can begin to withdraw the corpus at age twenty-five and by the age of thirty-five withdraw the entire amount, terminating the trust. Art. VILC.(1-2). Nor does the instrument state who receives the corpus if a trust terminates early to avoid a violation of the Rule. These shortcomings might render the savings clause ineffective, if the settlors’ intent could not be discerned. See Farmers Nat 7 Bank v. McKenney, supra. But even if the savings clause does not apply, the only interests that might vest too remotely are those of the great-grandchildren and possibly grandchildren, depending on whether a grandchild’s interest vests when the survivor of Mrs. Beaver or her parent (a Beaver child) dies or when the grandchild reaches age twenty-five. The Rule applies only to contingent remainders and executory limitations, not present interest or vested remainders (except for interests vested in a class subject to open). 61 Am. Jur. 2d, supra at §§ 44-46. Where an interest is vested in a class subject to open, the number of persons who will take and the size of each person’s share must also be determined within the measuring period of the Rule or the interests of all class members fail. Id. at §§ 33, 44. Whether a remainder interest in a trust is contingent, vested, or vested subject to *30being later divested depends on the intent of the trustor, as determined from the provisions of the trust instrument. Since the law favors vested interests, remainders wil} not be construed as contingent when they can be taken as vested, particularly if the trustor’s intent is in doubt. 90 C.J.S., supra at § 188.
The measuring period for Decedent’s Trust began when Mr. Beaver died, not when the instrument was signed. See Cook v. Horn, 104 S.E.2d 461, 464 (Ga. 1958); 61 Am. Jur.2d, supra at § 72; see also W. Burby, supra at § 187 (if conveyor reserves power of revocation, period under Rule computed from time such power is released); Annotation, Settlor’s right to revoke or terminate trust, or to withdraw funds or invade corpus thereof, as affecting operation of rule against perpetuities, 7 A.L.R.2d 1091 (1949).
Assuming all future interests were created when Mr. Beaver died10, all of his and Mrs. Beaver’s living children would be lives-in-being when the interests were created. The measuring lives for purposes of the Rule would be the surviving settlor (Mrs. Beaver) and the living Beaver children. See 61 Am. Jur. 2d, supra at §§ 18-19 (common law rule does not restrict number of lives in being which may be selected as measuring lives); see also First Ala. Bank of Montgomery v. Adams, supra at 1108 (measuring life for testator’s bequest to grandchildren is "the survivor of the widow or the daughter"). The gifts to the Beaver children are not class gifts, since they are created (for purposes of the measuring period of the Rule) when Mr. Beaver died. See Burby, supra at § 162 (interest to children not a class gift where interest is created at grantor’s death, since size of class is certain then). Since the interests of the Beaver children must vest or fail within their lifetimes, and both the size of the class of "children of Mr. and Mrs. Beaver" and each member’s share can be ascertained at Mr. Beaver’s death, they do not violate the Rule.
A Beaver grandchild may never receive an interest, since the trust of her parent (a Beaver child) may have terminated because it was completely distributed at the discretion of the trustees or the Beaver child withdrew the entire amount at age thirty-five. The remainder interests of the grandchildren on reaching ages twenty-five, thirty, and thirty-five *31could be considered as contingent (subject to the condition precedent of reaching the specified ages) or vested when the survivor of her parent (a Beaver child) or Mrs. Beaver dies, with only the enjoyment being postponed until the specified ages. In construing language in wills, a condition is deemed to be a condition subsequent which will divest a vested interest rather than a condition precedent to vesting, unless the language of the instrument forbids such a construction. Joyner v.Duncan, 264 S.E.2d 76, 85 (N.C. 1980). Since wills and trusts are similarly construed, the "age twenty-five" condition is not a condition precedent. The size of the class and the portion each would receive can be ascertained when the survivor dies, a date within the period of the Rule.
Though the grandchildren may not enjoy the corpus of the trust until they are twenty-five or older, their interests vest at the death of the survivor of Mrs. Beaver or their parent (the Beaver child) if the age restriction on reaching the corpus only defers enjoyment, not vesting. See Joyner v. Duncan, supra at 84-85 (class gift to grandchildren on reaching specified ages of 25, 30, 35, and 40 years does not violate Rule, since provision of testamentary trust construed as giving grandchildren a vested interest at birth subject to open, and class would close when testator’s surviving son, a life in being, died); Carter v. Bern, 140 So. 2d 843 (Miss. 1962) (provision in will providing that active trust should terminate when youngest grandchild becomes twenty-five provided for vesting when testator died and the class’ closing within lives-in-being, at death of testator’s surviving daughter); Annotation, Distinction as regards rule against perpetuities between time of vesting of future estates and time fixed for enjoyment of possession, 110 A.L.R. 1450; 70 C.J.S. Perpetuities §§ 7, 16(b) (postponement of actual enjoyment or possession beyond allowable perpetuities period does not void interest if it vests within that period).
The gifts to the descendants of the grandchildren probably violate the classic Rule, 61 Am. Jur. 2d, supra at § 35, since some descendants could be bom more than twenty-one years after the death of the survivor of Mrs. Beaver or the Beaver children (the measuring lives) and would not take within the period permitted by the Rule. But even these may be valid under some modem alterations to the Rule, such as the doctrines of "wait-and-see," id. at § 29; separability, id. at §§ 35, 89; Annotation, Separability, for purposes of rule against perpetuities, of gift to several persons by one description, 56 A.L.R. 450; cy-pres, 61 Am. Jur. 2d, supra at § 31; and equitable approximation. Id. at § 32.
*32Even if the interests to the descendants violate the Rule and are thus invalid, they are probably not so crucial that they drag the entire trust down. The entire Trust would not fail unless the provisions are so inseparable that eliminating them would violate the settlors’ main scheme in settling the trust. Id. at §§ 85-89, 95-99; 89 C.J.S., supra at § 79; Bogert, supra at § 50 (invalid contingent interests following trust estates may drag down trust if they violate the Rule, but void and valid interests sometimes are separated and the valid ones enforced); 70 C.J.S. Perpetuities § 21 (1951) (whether invalidity extends to other provisions of instrument depends on whether provisions are so interwoven that some cannot be separated from others without defeating primary intention of maker of instrument and his general plan for disposing of property).
The grantor’s intent governs whether the provisions are severable; the general rule favors severability. Armington v. Meyer, 236 A.2d 450, 455 (R.I. 1967). Since the instrument states that if any of its provisions are void, invalid or unenforceable, the rest shall nevertheless be valid, Art. X.D., this clear statement of the settlors’ intent should prevail, and the invalidity of these remote interests to descendants should not drag down the entire Decedent’s Trust.
We accordingly hold, and it is so ordered.
All terms of the trust are cited to the articles in the trust agreement.
Apparently the shares owned by plaintiff and her husband were all issued and outstanding shares. Minutes of S.P.T. Shareholders’ Meeting of February 21, 1990.
"Adjusted gross estate" is the decedent’s estate after certain other deductions are allowed. 26 U.S.C. § 2056(c)(2)(A), deleted by P.L. 97-34 for estates of decedents dying after 12/31/81.
Apparently the editors of Am. Jur. Legal Forms 2d thought that two trusts were no longer needed after the Tax Reform Act of 1981; these paragraphs are deleted in the 1981 revision shown in the 1985 cumulative supplement to the text.
Defendants state that the share certificate for the S.P.T. stock is made out in the name "Beaver Family Trust," July 3, 1990, Letter of Barrett to Ala'ilima; Defendants’ Memorandum of Points and Authorities, at 2-3, and that Mrs. Beaver is not registered in the corporate books as a shareholder. Answer, para. C. However, legal title to trust property is held in the name of the trustee(s), not the name of the fictitious trust. Price v. Marathon, 463 N.E.2d 410, 414 (Ohio App. 1983); Cohen v. Friedland, 450 So. 2d 905, 906 (Fla. App. 1984). The certificate should be made out in the name of all three trustees jointly, held as trustee for the Beaver Family Trust (Decedent’s Trust).
Apparently, only Cravens and Barrett attended the shareholders meeting. See Minutes of S.P.T. Shareholders’ Meeting, February 21, 1990.
"When any such living child of such deceased child or grantor [Mr. and Mrs. Beaver] shall have obtained the age of Thirty Five (35) years, he shall have the right to withdraw the entire amounts of his trust." Art. VII.C.(1). This implies that any Beaver child surviving to age thirty-five may terminate her trust.
Each Beaver grandchild can begin to withdraw the principal and accumulated income of his/her trust at age twenty-five, and by age thirty-five may withdraw the entire amount. Art. IV.C.(l). But the trust of a deceased child remains undivided until the youngest child of that deceased child reaches twenty-five. Unless the older grandchildren can withdraw their portion of an undivided interest, the provisions conflict.
See Túfele v. Mose, 7 A.S.R.2d 157 (1988).
The defendants argue that the trusts created for children and their descendants from the Decedent’s Trust are effective at Mrs. Beaver’s death. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485981/ | Plaintiff moves for relief from the judgment entered on February 17, 1988, dismissing her action (CA No. 11-84) to recover a parcel of land in the possession of defendants Jack and Eliza Thompson. The facts and procedural history are as follows:
Plaintiffs contention in CA No. 11-84 was that this land belonged to the late Alexander Jennings and that an interest in it had been inherited by her children, for whom she was acting as guardian ad litem. The Thompson defendants responded that the land had always belonged to them and that a deed purporting to convey the land from Jack *36Thompson to Alexander Jennings was a forgery. Some depositions were aken, but prosecution of the case ceased at or around the time plaintiffs attorney was appointed Attorney General of the Territory in late 1984 or early 1985. When plaintiff contacted her attorney at some time after his appointment, he told her he could no longer handle the case and that she should consult his immediate predecessor as Attorney General, with whom he had made some arrangements for taking over cases.
The Court has been informed of this arrangement not only in the present case but also in a number of others. The details of the arrangement have never been clear to the Court, but it appears that in many cases (including the present one) the original attorney felt that he had discharged his obligations to his clients by telling them he could no longer handle the case and that they should consult the designated replacement attorney. The latter, on the other hand, apparently believed that he had no obligations absent a specific agreement to take on the particular client. The actual situation, at least in the present case, was that the Court had never granted (nor even been given the opportunity to consider) a motion to withdraw as counsel. The original attorney of record therefore remained such, notwithstanding his assumption of official duties.
On January 14, 1988, in the course of a routine review of old case files, the Court served upon plaintiffs counsel of record a notice that CA No. 11-84 did not appear to have been diligently prosecuted and would be dismissed with prejudice unless good cause to the contrary should be shown within thirty days. On February 17, 1988, having received no response, the Court dismissed the action.
On September 26, 1990, plaintiff filed a new action, LT No. 54-90, seeking essentially the same relief she had sought in CA No. 11-84. The complaint in the new action acknowledged that an earlier action on the same subject had been dismissed and that the dismissal "purports to be" a dismissal on the merits, but suggested this dismissal did not bar the later action for two reasons: first, plaintiffs attorney in the earlier action never told her about its pending dismissal, and second, CA No. 11-84 was brought in the Trial Division rather than in the Land and Titles Division of the High Court, which has jurisdiction over land controversies.
Plaintiff simultaneously advanced these same arguments in a motion to vacate the judgment of dismissal in CA No. 11-84. Although this motion was styled as a motion in LT No. 54-90, the Court directed *37that it be refiled as a motion in CA No. 11-84, so as to constitute a direct rather than a collateral attack upon the judgment it seeks to vacate.
Plaintiff subsequently submitted an affidavit from her attorney in CA No. 11-84, to the effect that he never received the Court’s notice of dismissal. The Clerk of the High Court, however, responded with another affidavit to the effect that both the January 14 notice of pending dismissal and the February 17 order of dismissal were indeed placed in counsel’s Court box, but that the secretary who had been assigned to pick up pleadings and notices from this attorney’s Court box during the period had a habit of misplacing them. The Court also cannot help but take judicial notice of the fact that difficulties similar to the present one occurred in connection with a number of the then-Attorney General’s private cases during this period. Notices from the Court concerning these cases, even when they specifically required a response, were generally ignored; only second or third notices, ordering that the client show cause why he should not be held in contempt of Court for not responding to the earlier notices, generally succeeded in getting the attorney’s attention. Although we cannot say whether this was because the secretary lost the papers or because the attorney misunderstood his continuing obligations to the private clients for whom he remained attorney of record, we are satisfied that the notices were served.
Plaintiffs principal argument, to the effect that the failure to respond to the January 14 notice and to move within the ten days required by statute for a reconsideration of the February 17 order of dismissal should be regarded as "excusable neglect" within the meaning of T.C.R.C.P. 60(b), is without merit. As we restated the well-settled law on this proposition in Lualemana v. Asifoa, 17 A.S.R.2d 151 (1990):
A motion for [relief from judgment] under Rule 60(b) cannot to [sic] 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 (1985), and authorities cited therein.
*38Id. at 157.
Although the present case is arguably distinguishable from that of Lualemana in that the judgment here was rendered essentially by default rather than after a trial on the merits — a factor going not so much to the excusability of the neglect as to the likelihood that vacating the judgment will ultimately lead to a different ultimate outcome on the merits — plaintiffs motion also runs afoul of the explicit requirement of Rule 60(b) that a motion for relief from judgment on the ground of excusable neglect be brought "not more than one year after the judgment . . . was entered or taken." T.C.R.C.P. 60(b).
Plaintiff also contends that the judgment of dismissal in the earlier action should not be held dispositive of the merits because it was rendered by the wrong division of the High Court.
We agree that the action should have been brought not in the Trial Division but in the Land and Titles Division. Plaintiffs attorney styled it as a "Civil Action" in the "Trial Division" either by inadvertence or because of a belief held by some attorneys that a case having anything to do with a will should be brought in the Trial Division even if the action also concerned land. This mistake did not render either the action or the eventual judgment in it a nullity. The Trial Division and the Land and Titles Division consist of exactly the same judges open Sing under almost exactly the same rules. Except in mataititle cases, the difference between a Civil Action and a Land and Titles Action rarely goes beyond the caption. Absent a showing that an erroneous caption made some practical difference, the proper remedy is to give the case a new caption, not to vacate everything and start over.
In the present case, however, the caption actually did make a practical difference. In dismissing cases for want of diligent prosecution, the Court uses one standard form for all civil actions and another for actions concerning the right to possession of land. The civil form gives notice that the case will be dismissed with prejudice if good cause is not shown to the contrary; the land and titles form gives notice that the case will be dismissed without prejudice. These forms reflect the Court’s considered judgment that most civil cases should be tried within a very few years or not tried at all, whereas in land cases it is frequently better to let sleeping dogs lie than to present the parties with a choice between immediate litigation and losing their claims forever. The concerns that give rise to these contrasting judgments are similar to those reflected in the different statutes of limitation: two years for actions founded on *39personal injury, three years for actions on unwritten contracts, ten years for actions on written contracts, and twenty years for actions to recover real property. See A.S.C.A. § 43.0120.
Had CA No. 11-84 been styled a Land and Titles action, as it should have been, the dismissal would have been without prejudice. Had the Court noticed, at the time it issued the judgment of dismissal in 1988, that this action was actually one concerning the right to possession of real property, the standard form for Civil Actions would have been discarded or amended so as to enter the order of dismissal without prejudice. (We can say this with confidence because the judge who signed the 1988 order is also the writer of the present opinion.)
An oversight by the Court or a court official, as opposed to one by a party or his counsel, is generally regarded as an "other reason justifying relief from the judgment" under Rule 60(b)(6). There is no requirement that motions grounded on such oversights be brought within one year, only within "a reasonable time." T.C.R.C.P. 60(b)(6). This motion was brought about two and one-half years after the judgment of dismissal. We are satisfied that plaintiff herself did not learn her case had been dismissed until shortly before the motion for relief was brought. In light of this circumstance and of the twenty-year statute of limitations on actions for the recovery of land, we believe this was a reasonable time. (Although certain facts in the controversy that gave rise to these cases may have happened more than forty years ago, the most recent important development was a purported conveyance to the Thompson defendants by the former executor of the estate of Alexander Jennings in 1976.)
Finally, a party who moves for relief from a judgment under Rule 60(b) must prove a substantial likelihood that such relief will lead to a different outcome on the merits. If plaintiff can prove the facts she alleges in her complaint, and unless defendants can bear the rather heavy burden of proving the forgery they allege in their answer, plaintiff would appear to stand an excellent chance of prevailing on the merits.
Accordingly, the motion for relief from judgment is granted. The judgment of dismissal in CA No. 11-84 will be modified so as to be a dismissal without prejudice.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485987/ | These consolidated cases concern contracts for the sale of a truck and its shipment from California to American Samoa. Plaintiff EW Trucking claims that defendant Coulter, then doing business in the name of "SPEAR Co.," agreed to purchase a certain 1966 Ford "bucket truck" for $37,000.60 plus shipping costs of $12,168. Defendant claims that he did not agree to purchase the truck on behalf of himself or SPEAR but only on behalf of third-party defendant Patrick Coffin.
By the time the truck arrived in American Samoa, the deal had gone bad; nobody picked up the truck from the dock or paid the $12,168 shipping charges. Plaintiff South Seas Shipping Co./Matai Maritime Agency claims this amount plus interest, costs, and attorney fees against both EW and SPEAR.
The two main issues in the dispute between EW and SPEAR are (1) whether SPEAR agreed to purchase the truck or only to arrange for a sale by EW to Coffin and (2) whether the agreement of the parties included a condition that the truck be insulated against electric current.
On the first issue, we find for plaintiff EW. Numerous facsimile transmissions between EW and SPEAR, both before and after the truck was shipped to American Samoa, reflect what appears to have been the understanding of both parties that SPEAR wanted to buy the truck from EW. Although EW knew SPEAR intended to resell the truck to someone else in American Samoa and that this customer had participated in the selection of the truck from various trucks available from EW and was arranging to finance his purchase through a local bank, it is clear that EW regarded this person not as its own customer but as SPEAR’s. This appears not only from the various preliminary communications but also from the evidence immediately surrounding the transaction itself. When SPEAR requested EW to make an exception to its usual policy of requiring cash or a letter of credit before shipping *63merchandise, EW’s chief executive officer told Mr. Coulter of SPEAR that he could authorize this only because SPEAR had made immediate payment on another recent substantial purchase from EW, and that he was relying on SPEAR’s promise that payment for the truck would be made immediately upon delivery. We are unable to find that EW would have made such an exception had it been relying only on the credit of Mr. Coffin — a person with whom it had had no previous dealings and whose name it did not even know — or even that SPEAR reasonably believed that EW would do this. A few days later, just áfter the truck had been loaded onto the ship, EW sent SPEAR an invoice by facsimile transmission. The invoice prominently stated that the truck was being "SOLD TO" SPEAR. SPEAR did not protest its designation as the buyer but instead sent a return facsimile to assure EW that payment would be made shortly. We conclude that the parties understood the contract as one by which EW reasonably believed it was selling the truck to SPEAR for resale to SPEAR’s own unidentified customer.1
On the question of insulation, however, SPEAR prevails. During the negotiations leading up to the sale, EW sent a facsimile transmission asking: "Does the boom need to be insulated?" SPEAR responded the same day: "Boom needs to be insulated.” EW appears to maintain that this condition was waived or superseded by a later exchange between the parties, during which the 1966 truck was substituted for a 1974 truck SPEAR had originally wanted to buy but which was not ready for shipping. EW informed SPEAR that the 1966 truck, although in use by an electrical contractor, would not be "serviced or certified" before being shipped to American Samoa. The reasoning seems to be that since insulation is one of the things a truck must have in order to be certified, SPEAR’s decision to take the uncertified truck meant that it was no longer insisting on insulation. The evidence does *64not reflect, however, that SPEAR knew or should have known that an uncertified truck was necessarily an uninsulated one. Indeed, it appears that both SPEAR and EW assumed that the 1966 truck was in fact insulated, until about two months after it had arrived in American Samoa, when an inspection by the local power authority appears to have revealed the contrary. The agreement of SPEAR to accept a truck that had not been certified did not amount to a waiver or modification of its earlier, strong insistence that the truck’s boom be insulated.
The weight of the evidence is to the effect that the boom is not insulated but that it can be insulated. Although we have no evidence of what it will cost to insulate the truck, we do have evidence that the cost will not be commercially unreasonable in relation to the contract price. The evidence for this proposition is the testimony of Mr. Coffin, the customer at whose instance SPEAR originally specified that the boom must be insulated. Mr. Coffin has at all times been willing to purchase the truck provided financing can be arranged and is confident that the boom can be insulated without such expense as to make the truck not worth buying.
It is not uncommon for each party to a contract to do things which, assuming no breach by the other party, would amount to a breach of the contract. In such situations the first breach is usually deemed to excuse what otherwise would have been the subsequent breach by the other party. In the present case, however, each party breached the contract before finding out about the other party’s independent breach. SPEAR did not reject the truck because it failed to conform to the insulation term of the contract; rather, it wrongfully rejected the truck because it did not have the money to pay for it. Similarly, EW cannot excuse its failure to provide conforming goods by reference to SPEAR’s wrongful rejection, because it provided the goods before it had any idea such rejection would occur. Under these circumstances, and in the absence of any dimension of malice or wilfulness in either party’s breach, the most appropriate remedy is to give each party the benefit of the bargain to which it agreed and was entitled. EW is entitled to the contract price of $37,000.60; SPEAR is entitled to a truck that conforms to all terms of the contract, including the requirement of an insulated boom. SPEAR is obliged to pay the shipping costs, as provided by the contract between the parties. Under the circumstances each party should bear its own costs and attorney fees, and a $2,500 charge for dock storage charges, which was paid by EW, should be evenly divided between the parties.
*65We further find that Patrick Coffin agreed to purchase the truck from SPEAR for $37,250.60 plus shipping costs. SPEAR and Coffin have a contract for the purchase of the truck for $49,418.60, subject to the condition that the boom be insulated. Coffin is also obliged to indemnify SPEAR for its $1,250 share of the dock storage charges, since these charges would not have been incurred if he had paid for the truck when it arrived at the dock.
We conclude that plaintiffs South Seas Shipping and Matai Maritime have the right to recover the shipping charges either from the shipper (EW) or the consignee (SPEAR). This was an explicit term of the contract of carriage set forth in the bill of lading, which was given to EW when it delivered the truck to the dock. It is also a standard term in such contracts, to which both EW and SPEAR, as merchants who have frequent occasion to do business with shipping companies, would be assumed to agree in the absence of an explicit provision to the contrary. SPEAR is obliged to pay the shipping charges not only by the terms of the contract of carriage, into which EW entered upon SPEAR’s explicit instructions, but also by the terms of its contract with EW. As between EW and SPEAR, therefore, SPEAR is primarily liable and would be obliged to indemnify EW for any amounts the latter should be required to pay the shipping company.
South Seas/Matai Maritime, however, has already collected the full $12,168 it is owed for shipping the truck. On January 3, 1990, about six weeks after SPEAR and EW had become obligated to pay the shipping costs, the Comptroller of a company called Harbor Stevedoring sent a letter to SPEAR acknowledging that his company owed $10,528.10 for equipment it had purchased from SPEAR but stating that Harbor Stevedoring intended to withhold payment of its debt to SPEAR pending settlement of the shipping costs for the bucket truck. By April or May of 1990, additional purchases had increased the amount of Harbor Stevedoring’s debt to SPEAR to at least $12,168. Although Mr. Coulter of SPEAR initially protested the non-payment of the debt from Harbor Stevedoring, he eventually agreed with the manager of Harbor Stevedoring (who is also the manager of Matai Maritime and the local manager of South Seas Shipping) that the $12,168 owed to SPEAR could be withheld pending the outcome of this litigation.
Harbor Stevedoring is, or was in January 1990, partly owned by South Seas Shipping, with the remainder of its stock being owned by the same people who own South Seas Shipping and Matai Maritime. After the events giving rise to this litigation, Harbor Stevedoring merged with *66Matai Maritime; the successor entity, Harbor Maritime, is therefore a party to the present case. (Counsel should have moved to substitute Harbor Maritime for its predecessor Matai Maritime as a named plaintiff, lest the Court give judgment in the name of a nonexistent corporation.) Business decisions for all these entities, or at least for their operations in American Samoa, appear to have been made by the same person or persons at all times relevant to the litigation. Although the three companies may nevertheless be entitled to insist on being treated as separate entities for most purposes, in this case they found it to their advantage to treat themselves as a single enterprise and should therefore be so treated by the Court.
The gist of the January 1990 letter is that the management of the three entities had decided to apply the SPEAR debt to South Seas as an offset against the Harbor Stevedoring debt to SPEAR. The money — which the letter acknowledges to have been immediately due and payable to SPEAR — was not placed in an escrow account, deposited in the registry of the Court, or otherwise sequestered so that neither party would have the use of it pending the outcome of the litigation. Rather, it was (and remains) available for the use of the Harbor/Matai/South Seas entities at the full discretion of the common management thereof. The practical situation of the parties during the past year has been identical to that in which they would have found themselves if Harbor Maritime had written a check for $12,168 to SPEAR and SPEAR had written an identical check to South Seas. It is therefore appropriate that the debt from SPEAR to South Seas be satisfied out of the funds withheld from SPEAR by South Seas’ sister entity and co-plaintiff, Harbor Maritime.
Because South Seas was able to collect its debt by self-help soon after it became due, it is unnecessary for us to determine whether the term in the bill of lading which makes the shipper and consignee liable for "expenses" should be broadly construed to supply a contractual basis for an award of attorney fees to South Seas.
Accordingly, plaintiff EW Truck & Equipment will have judgment against defendant Coulter (dba SPEAR) in the amount of $38,250.60 with pre-judgment interest at the legal rate of six percent from December 4, 1990, for a total of $41,501.90. Judgment will enter against plaintiff EW Truck & Equipment, requiring it to insulate the boom on the truck within sixty days. If plaintiff EW should fail to comply with this part of the judgment, defendant Coulter will have the right to rescind the contract of sale. Defendant Coulter will have judgment against third-party defendant Coffin in the amount of *67$50,668.60 plus interest at the legal rate for a total of $54,975.43, due upon tender of the truck after it has been insulated. Execution of the money judgments will be stayed for sixty days.
It is so ordered.
Evidence was admitted of various unsuccessful efforts by the parties to mitigate their damages by entering into substitute contracts involving the truck. Under some of these arrangements EW would have reasserted ownership of the truck and would have dealt directly with buyers (or, under one proposed arrangement, a lessee) other than SPEAR. We admitted this evidence over the objection of counsel for EW, for any light it might shed on the parties’ understanding about the original contract between SPEAR and EW. We conclude that the attempts to mitigate damages were just that. They were fully consistent with the existence of a binding contract of sale between EW and SPEAR and did not deprive EW of its right to sue on that contract. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485990/ | Plaintiff received serious injuries to her leg, as well as abrasions on other parts of her body, when she was struck by a vehicle owned by defendant Mapo and driven by defendant So‘oso‘o. Plaintiff testified that she got down from a bus, waited for the bus to leave, looked both ways, saw no approaching vehicles, and then walked across the street. Defendant So‘oso‘o testified that plaintiff darted out from behind the bus, running and looking backwards. Plaintiff was struck by defendant’s vehicle and dragged under one of the tires for some distance along the roadway.
The testimony of the two parties is hopelessly at odds. Two eyewitnesses, however, who did not see the accident itself but did see the scene immediately before and after the accident, provided credible testimony that tended to corroborate most of plaintiffs story.
Contrary to the testimony of defendant So‘oso‘o, the preponderance of the evidence is to the effect that there was only one bus in the vicinity, the bus from which plaintiff had just disembarked. It had driven away before the accident occurred and would have provided no obstacle to defendant’s view of the girl, had he been sufficiently observant. The physical evidence, as well as the eyewitness testimony, also tends to corroborate the testimony of the plaintiff that she was struck in the leg by defendant’s right-front tire or a part of the vehicle immediately adjacent to the tire, just as she was about to step off the roadway after crossing it, and that she did not hurl herself directly in front of the truck as defendant testified. There were no substantial injuries other than to the leg that was dragged by the tire. As plaintiff was dragged by the vehicle, her entire body, except the leg that had been caught under the tire, was outside and to the right of the vehicle — i.e., toward the edge of the road, which she testified she had reached or almost reached immediately prior to the collision.
Although the facts here, like those of most cases involving conflicts in testimony, are not free from doubt, the evidence preponderates in favor of plaintiffs position that she was struck by *73defendant’s vehicle just as she completed her crossing of the road. This means, in effect, that defendant had all the time in the world to see the girl crossing the road and to take necessary precautions, but somehow did not. We find that defendant’s failure to keep a proper lookout and/or his failure to slow down and allow plaintiff to pass as soon as he saw her in the road was the primary cause of the accident.
By plaintiffs own account, however, she never saw the defendant’s vehicle until after it hit her. Even if she did look both ways before crossing, this testimony strongly suggests that she must not have been keeping her eyes on the road as she crossed it. If she had been looking straight ahead or even slightly away from the approaching truck, she would have at least seen it out of the comer of her eye the moment before it hit her, perhaps in time to jump out of the way. Although neither plaintiffs duty nor her breach figured as heavily in the accident as those of defendant, we find that she was at least slightly negligent and that this negligence contributed to her injuries.
We assess the negligence of defendant So‘oso‘o at seventy-five percent and that of plaintiff Vaiti at twenty-five percent.
Plaintiffs injury was clearly a most painful one. She was required to undergo reconstructive surgery involving tissue transplants from other parts of her body. Her leg will never function quite as a normal leg does; she will always have to wear a brace on her knee in order to walk properly and, in any event, will have difficulty in running, walking for extended periods of time, or engaging in similar activities. We assess the damages for pain and suffering and for the partial loss of the function in plaintiffs leg at $10,000.
Plaintiff also submitted evidence of medical expenses in the amount of $1,886. Defendant points out that plaintiff is a citizen of Western Samoa and that the local hospital therefore charged her more than it would have charged an American Samoan. He suggests that he should not have to pay plaintiffs actual medical bills, but only the lesser amount that the hospital would have charged an American Samoan. This contention is apparently based on the idea that it is hardly defendant’s fault that he happened to hit an alien instead of a citizen. It is well settled, however, that a tortfeasor takes his victims as he finds them. The actual medical expenses incurred by this particular victim, not the amount that would have been incurred had the defendant been lucky enough to hit some other person, are the measure of damages.
*74In addition to the expenses already incurred, plaintiff will need a permanent brace for her leg. This, according to the medical witness, is in preference to a far more expensive series of further operations which might or might not make it possible for plaintiff to do without a brace. Defendant concedes that this brace will cost about $700.
Defendant Mapo, the owner of the car, admits that he did not insure his vehicle as provided by law. He had an explicit statutory duty to provide insurance not only against losses covered by his own negligence but also against those inflicted by the negligence of "any other person who uses the vehicle . . . with [his] express or implied permission." A.S.C.A. § 22.2003. Because defendant So‘oso‘o was using the vehicle with defendant Mapo’s permission, defendant Mapo’s breach of his duty not to allow his car on the road without the required insurance will inflict a loss on the plaintiff in the event defendant So‘oso‘o should be unable to pay the judgment against him. Defendant Mapo is therefore liable to compensate the plaintiff for any losses up to the $10,000 insurance amount he had a duty to provide. Forna'i v. Samana, 4 A.S.R.2d 102 (1987). This liability is secondary to that of the principal tortfeasor; plaintiff may collect from either defendant, but the vehicle owner (whose statutory duty was for the benefit of the victim of the accident, not of the principal tortfeasor) has a right of indemnity and subrogation against the principal tortfeasor for any amounts he may be required to pay on the judgment.
The total of all damages amounting to $12,586, and the accident having been assessed as seventy-five percent attributable to the negligence of defendants, judgment will enter in favor of plaintiff and against defendants, jointly and severally, in the amount of $9,439.50. Judgment will also enter against defendant So‘oso‘o, obliging him to indemnify defendant Mapo for any amounts the latter should be required to pay on the principal judgment.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485991/ | On Motion for Summary Judgment:
In one of these two consolidated cases, LT No. 32-90, plaintiff Ava Vili asks for declaratory judgment that a registration or purported registration of land called "Lalofatu" as individually owned land of the Fa’aliliu Logoai and her children is null and void. The stated grounds for the requested relief are that the land in question is communal land of the Ava family and that the Logoai defendants are members of the Ava family who engaged in "manipulation of the legal process to allow the registration of this land." The specific "manipulation" alleged by the complaint is that the defendants are said to have engaged "the aid by a relative in the Registrar’s Office to secure this registration without the required publication."
The Logoai defendants now move for summary judgment. The motion appears to be based on the contention that a Certificate of Registration is conclusive no matter how it was obtained. An affidavit in support of the motion is signed by defendants’ counsel, rather than by a witness to the events that gave rise to the litigation, and alleges simply that counsel has checked the records and there is indeed a Certificate of Registration. Counsel has also submitted the Registrar’s file concerning the registration in question.
It appears affirmatively from the documents in the Registrar’s file, however, that the land "Lalofatu" surveyed and registered by the defendants is indeed communal land of the Ava family and not individual land of the defendants. The specific part of the public record from which this fact appears is a "Petition to Permit Surveying of Land" submitted to the Court in 1977 by then-counsel for the present defendants, Fa’aliliu Logoai and her children, and signed by Fa’aliliu herself.
*77If the land in question was communal land of the Ava family in 1977, there are only two ways it could become individual land of the Logoai defendants: by adverse possession for thirty years, as provided by A.S.C.A. § 37.0120, or by compliance with the statutory procedures for alienation of communal land, including the approval of the Land Commission and the Governor, as provided by A.S.C.A. § 37.0201 et seq. Defendants do not claim that either of these things has happened.
It is true, as counsel for defendants observes, that compliance with the land-registration statute (A.S.C.A. § 37.0101 et seq.) creates a strong presumption that the land belongs to the person or persons named in the certificate of registration. Indeed, this presumption has been held to be conclusive unless rebutted either (a) by compelling proof that the certificate of registration was obtained by fraud or (b) by fatal irregularities affirmatively appearing on the face of the registration documents. See Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989); Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988).
In this case the registration documents convincingly and affirmatively disprove the very thing they would otherwise cause us to presume: that the defendants were the true owners of Lalofatu at the time they offered it for registration. The case before us is almost identical to Faleafine, supra, in which the registrant procured her survey by swearing that the land was her individual land but decided later in the registration process that the land was actually the communal property of a family whose matai title she had acquired in the interim. Because this inconsistency appeared on the face of the registration documents themselves, and because it caused the documents viewed as a whole to be consistent neither with the requirements for registration of individual land nor with the somewhat different requirements for registration of communal land, the registration was held null and void. See also Solomona v. Governor of American Samoa, 17 A.S.R.2d 186, 191-92 (1990), in which the Appellate Division held that formal compliance with the registration procedures did not vest the registrant with title to land which affirmatively appeared to be tidal or submerged land insusceptible of private ownership.
Counsel for defendants seems to misapprehend Ifopo — as, indeed, the unsuccessful appellants in that case misunderstood the trial court’s opinion — as standing for the proposition that one who successfully negotiates the hurdles in the registration procedure thereby becomes the owner of the registered property even if he did not really own it before.
*78On the contrary, the legal effect of a registration is evidentiary rather than constitutive. It creates a presumption that the registrant owned the land before he registered it. Because the procedure gives anyone who contests the registrant’s claim a fair chance to state and prove his objections, the resulting presumption is almost always conclusive. It cannot be rebutted, for instance, merely by evidence that the land has traditionally been reputed to belong to someone other than the registrant or even by the testimony of one or several witnesses who say they never saw the required posting. See Ifopo, 12 A.S.R.2d at 28. In the present case,. however, the presumption of prior evidence is rebutted by the best evidence in the world: the admission of the registrants themselves, affirmatively appearing on the face of the very documents which would otherwise constitute their only evidence of title.
To extend the rule of Ifopo to insulate such a registration would transform the rule from a strong evidentiary presumption into a process for vesting and divesting title. Such an extension would implicitly overrule such cases as Faleafme and Solomona and would also create a conflict between the registration statute and the statutes governing alienation of land.
This case differs from Faleafme and Solomona in one important respect: in those cases the invalid certificates of registration were issued by the Registrar’s office on its own initiative, whereas in the present case the defendants procured a Court order requiring the Registrar to issue the certifícate. Such an order, if issued by a court having jurisdiction over the parties and the subject matter, is binding on the parties and their successors in interest and can be vacated only in the most extraordinary and compelling of circumstances. See generally T.C.R.C.P. 60(b).
The order at issue in the present case, however, did not resolve (or even purport to resolve) the question with which we are now presented. The order was issued in 1984 in a case styled "In the Matter of the Application by: Fa’aliliu P.S. Logoai and Children, Applicants," LT No. 19-77. The case was then seven years old. It had been filed in 1977 in reaction to the efforts of Ava Vili, the present plaintiff, to prevent defendants’ survey. Curiously, however, it did not name Ava or anyone else as a defendant; rather, it was brought as an ex parte proceeding. This was highly irregular insofar as the petition sought relief against a specific person; the effect of the irregularity was to prevent the Court from acquiring jurisdiction over Ava or anyone else.
*79Nor was Ava or anyone else served with the 1984 application that led to the order to the Registrar. Indeed, not even the Registrar was served until after the order had been issued. Instead, the application was made ex parte by Foma‘i Paepule, one of the present defendants, who alleged that the Registrar had refused to issue a certificate only because of a minor technicality, the absence of a date on the survey map. The application was given the caption of LT No. 19-77, although that case had been closed for over seven years and although the Registrar had never been a party to the case. Mr. Paepule supplied an affidavit including the missing date, and the Court signed the requested order. While this order might conceivably be conclusive of any controversy between the present defendants and the Registrar having to do with the accuracy of the date in question or with the absence of the date in the registration documents, it did not purport to address the only question at issue between the present parties: whether a registration of somebody else’s property, affirmatively identified as such by the applicant in his registration documents, is nevertheless a valid registration. Because neither this issue nor Ava was before the Court in LT No. 19-77, the order in that case does not bar Ava from relitigating the issue. See Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54 (1989), aff’d, 19 A.S.R.2d 40 (1991).
Defendants’ motion for summary judgment is denied. Indeed, summary judgment for plaintiff might be appropriate, but no motion for such judgment has been filed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485992/ | On Motion for Summary Judgment:
Facts
On March 21, 1987, Fuifatu Sefo Patau ("plaintiff") suffered an amputated forearm as the result of an accident at work. At the time, he was employed by Samoa Packing Company ("S.P.C."), a tuna packer located in the territory. On June 29, 1987, plaintiff filed a workmen’s compensation claim with the Workmen’s Compensation Commission. He initially retained local counsel but later replaced him with a San Diego law firm,1 who apparently negotiated and settled plaintiff s compensation claim directly with American International Underwriters (South Pacific) Inc. (A.I.U.), S.P.C.’s insurer at the time. At the direction of plaintiff s lawyers, A.I.U. prepared the settlement and release papers. On July 28, 1987, plaintiff executed the release, in return for which A.I.U. paid the sum of $25,016.49 — as further directed, a check for $3,000.00 was sent to plaintiffs attorneys for legal fees, while the remainder of the settlement proceeds, $22,016.00, was paid directly to plaintiff.
On March 22, 1989, plaintiff filed this action, seeking to recover damages for his injuries. He named, among others, Ralston Purina Company, a corporation who then held all of S.P.C.’s stock. The *82complaint alleges four causes of action: strict liability, strict tort liability, breach of warranty, and negligence.
One year before that, plaintiff had, on March 21, 1988, filed substantially the same action in the United States District Court, Southern District of California (Case No. 880412-E (BTM)). The District Court dismissed the complaint on November 22, 1988 for failure to properly allege diversity jurisdiction, however, plaintiff was also granted leave to amend. He did not attempt to do so until Ralston moved eight months later to dismiss for failure to prosecute. On August 1, 1989, the District Court dismissed the action with prejudice because of unreasonable delay.
Armed with this dismissal order, Ralston next filed a motion with the High Court to dismiss this action on res judicata grounds, arguing that the federal district court’s order of dismissal with prejudice was a dismissal on the merits. We granted the motion.
The dispute was then taken back to California where, at plaintiffs insistence, the District Court subsequently clarified that its order of dismissal was not intended as a dismissal on the merits. Thereafter, this Court vacated its own order of dismissal.
Ralston now moves for summary judgment asserting the following affirmative defenses: 1) that the global release negotiated and executed by plaintiff in settlement of his compensation claim barred this action; 2) that plaintiff is barred from bringing a third-party action because of the provisions of A.S.C.A. § 32.0669 of the Workmen’s Compensation Act, A.S.C.A. §§ 32.0501 et seq. (hereafter the "Act"); and 3) that the action is barred by the statute of limitations, A.S.C.A. § 43.0120.
Discussion
The Release
In Etimani v. Samoa Packing Company, 19 A.S.R.2d 1 (1991), we recently rejected a similar argument for summary judgment, premised on a like-worded release instrument which was also given in exchange for the payment of a workmen’s compensation claim. Ralston’s contract argument here is not unlike the argument rejected in Etimani. First, the usual policy arguments given in favor of compromise and settlement are not relevant in a workmen’s compensation setting because the Act *83disallows compromise contracts between the employer and employee.2 Hence the employer’s liability for workmen’s compensation benefits, fixed and guaranteed under the Act, may not be altered by way of contract. Indeed, the allusion to compromise and settlement in the subject release seems rather misleading, if not altogether meaningless, in that, given the facts, there was really no dispute as to the extent of S.P.C.’s liability under the Act.3 The question naturally follows, what was the consideration given for an effective release?
Moreover, only those agreed settlements between the parties that have been approved by the Workmen’s Compensation Commission have the effect of discharging an employer’s liability for compensation. See A.S.C.A. § 32.0668. Since the record at this time is unclear on whether the subject release was approved by the commission, and bearing in mind that no release is valid except as otherwise provided for by the Act, A.S.C.A. § 32.0672, we find a triable issue of fact. Summary adjudication is not available under these circumstances. T.C.R.C.P. 56.
Third-Party Recovery Barred
Elsewhere the Act provides:
[Acceptance of compensation under an award in a compensation order operates as an assignment to the employer of all rights of the person entitled to compensation to recover damage against such third person unless such individual commences an action *84against such third person within six months after such award.
A.S.C.A. §32.0669. Ralston argues, in effect, that plaintiff s settlement with A.I.U. constituted an "acceptance of compensation under an award in a compensation order" and that any cause of action which plaintiff may have had against Ralston has been, therefore, assigned to S.P.C. for failure to file an action within six months after accepting compensation.
The Supreme.Court, in Rodriguez v. Compass Shipping Co., 451 U.S. 596 (1981), construed virtually identical language contained in the Longshoremen’s and Harbor Workers’ Compensation Act ("L.H.W.C.A."), 33 U.S.C. § 933.4 The Court read this enactment as requiring an employee to file suit within six months or not at all, and that his failure to so file gave rise to an irrevocable assignment of his cause of action to his employer. The Court also explained in Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 533 (1983), that the enactment (§ 933(b))
triggers an assignment of an injured longshoremen’s cause of action against a third party only after he has accepted compensation "under an award in a compensation order filed by the deputy commissioner or Board." (Emphasis in original.) The term "compensation order" . . . refers specifically to an administrative award to compensation following proceedings with respect to the claim.
(Emphasis added.) In Etimani v. Samoa Packing, supra, we held this construction to be persuasive.
As noted above, we are not able to say on the extent of the record before us whether the compensation settlement with A.I.U. was ever formally approved by the commission. As a voluntary payment of compensation does not constitute an "award in a compensation order, ” Pallas, supra, we are again presented with another triable issue of fact. Motion for summary judgment is thus denied on this ground.
Statute of Limitations
*85Plaintiff asserts that his complaint was timely filed since the statutory period begins the day after the event. T.C.R.C.P. 6. We disagree with plaintiffs conclusion and hold that his complaint was one day late, since the limitation period expired at midnight March 21, 1989. See Jenkins v. Yoder, 324 N.E.2d 520 (Ind. 1975); 51 Am. Jur. 2d Limitation of Actions §§ 58-60 (1970).
A.S.C.A. § 43.0120 unambiguously provides in pertinent part: Actions may be brought within the following times after their causes accrue, and not afterward, except where otherwise especially declared: . . . (2) actions founded on injuries to the person . . ., whether based on contract or tort, . . . within 2 years. (Emphasis added). While there are very specific statutory exceptions given that would toll the statute, see A.S.C.A §§ 43.0124-43.0127, the facts here do not come within any of those exceptions. We, therefore, conclude that plaintiff s action is barred by the statute of limitations.
Motion for summary judgment is granted.
It is so ordered.
The record is not clear as to how a member of this firm had gained standing to practice law in the territory at the time. Under the Rules of the High Court, only members of the American Samoa Bar Association may practice law in American Samoa. See H.C.R. 140; see also In Re Complaint of Interocean Ships, Inc., 2 A.S.R.2d 106 (1986).
A.S.C.A. § 32.0554(b) provides that "no agreement by any employee to waive his rights to compensation ... is valid," while A.S.C.A. § 32.0672 states that "[n]o . . . release of liability for compensation . . . payable [under the Act] is valid, except as otherwise provided for by [the Act]."
Plaintiff s San Diego attorney settled the compensation claim for exactly the same dollar figure which plaintiffs local attorney had calculated and offered to A.I.U. at the outset. Plaintiff here had lost his forearm; as a matter of law he was entitled to 244 weeks of compensation. See A.S.C.A. § 32.0609 (3), (15). In addition, the Act also provides for up to 200 weeks of compensation in cases of serious bodily disfigurement. See A.S.C.A. § 32.0609(20).
The Act seems to have been drawn largely from the L.H.W.C.A. In re Westerlund, 4 A.S.R. 998, 1002 (1975). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485993/ | These three consolidated cases involve part of the land called Tafeta in the Village of Faleniu, on the mountainside along the road to A‘oloau and A’asu Fou.
In 1985 Oloava Sene Tauvela offered two parcels of this land for registration as the individually owned property of herself, her siblings, and their late parents ("Tauvela & Teuila and children"). Asifoa Atualevao objected, claiming that the land in question was communal land of the Atualevao family.
In 1988, while the Tauvela case was still pending, Magalei and Tuia‘ana of Faleniu sued to enjoin the burial of a family member of Asifoa Atualevao on adjacent land they claimed to belong to the Magalei family.
*88In 1989 Asifoa offered a large tract of land, which overlapped the parcels claimed by Tauvela and which also apparently included the land involved in the burial dispute, as his own individually owned land (i.e., not as communal land of the Atualevao family), which he called "Malologa." Various people filed objections, including the Tauvela claimants and representatives of the Magalei/Tuia‘ana family. The three cases were consolidated for trial.
We take judicial notice of the following prior cases concerning Tafeta, most of which involved some or all of the present parties: Lualemana v. Tago, 3 A.S.R. 43 (1953); Magalei v. Tago, LT No. 23-1955 (Dec. 30, 1955); Galoia v. Lua, 3 A.S.R. 245 (1956); Filo v. Lualemana, LT No. 43-1961 (Sept. 7, 1961); Lualemana v. Filo, LT No. 55-1961 (Dec. 11, 1961), aff‘d 3 A.S.R. 642 (1961); Magalei v. Lualemana, 4 A.S.R. 242, aff’d 4 A.S.R. 849 (1962); and Atualevao v. Magalei, LT No. 1524-75 (Jan. 23, 1978).
I. The Magalei/Tuia ‘ana Claim
From the records of the above-cited cases and from the testimony taken in the present case, it is clear that the land now in dispute is part of the large area called Tafeta that was cleared by the people of Faleniu and divided among the chiefs of that village in the early part of the present century, as recounted in Magalei v. Lualemana, supra. It further appears that the three parcels offered for registration by Asifoa and by the Tauvela claimants are within the part of Tafeta that was given to the Magalei/Tuia‘ana family when the land was divided in or around 1922.1
*89Although it appears that Tuia'ana is the matai who has been looking after this part of Tafeta on behalf of the extended Magalei/Tuia'ana family, we are not asked to adjudicate the rights of the various matai within that family as among themselves, and we express no opinion on this question.
II. The Moea 7 Claim
The Moea'i family, also of Faleniu, owns an adjacent part of Tafeta. The evidence is to the effect that the Moea'i part of Tafeta includes a 9.08-acre tract downhill from the land now in dispute, just on the other side of the houses belonging to intervenor R.S. Tago Seva'aetasi. This Moea'i tract appears to have been the location of the plantations of Filo, a man connected to the Moea'i family who was the successful litigant in LT Nos. 43-1961 and 55-1961, supra. Moea'i testified that the Magalei/Tuia'ana family own the part of Tafeta in the uphill (mauga or northwesterly) direction from his holdings. The three tracts offered for registration in the cases now before us are entirely within the Magalei/Tuia'ana portion and do not encroach the Moea'i parcel.
III. The R.S. Tago Seva'aetasi Claim
Intervenor R.S. Tago Seva'aetasi came to this area just after World War II, in connection with his work for the government commission that was assessing war claims damages. He requested a place to live from the chiefs of Faleniu, and the chiefs designated a place for him to have a house and plantations. Later, however, Tago fell out with the chiefs of Faleniu, claiming that the land was part of A'oloau and that he had acquired the land he was living on through a family *90connection to A‘oloau. See Magalei v. Tago, supra. In 1955 the Court held that Tago had entered onto the land by permission of the chiefs of Faleniu and that he had the right to remain on part of the land for seven years, after which the chiefs of Faleniu would have the right to evict him. Id.
In 1957, however, Tago was able to procure from two chiefs of Faleniu a purported deed to a large part of Tafeta. The deed purports to convey not only the land then occupied by Tago but also the areas occupied (then as now) by Asifoa and by the Tauvela claimants. A survey prepared by Tago, which he says reflects the land conveyed to him by the deed, overlaps the Asifoa parcel and one of the Tauvela parcels and appears to include houses belonging to Asifoa and Tauvela. Tago’s testimony about the extent of his holdings, however, is to the effect that he does not claim the Asifoa and Tauvela houses.
In any event, there are numerous flaws in the deed. It conveys no particular land by reference to metes and bounds or other cognizable boundaries; it was not signed by Magalei or Tuia'ana, whose family owned a large part of the area it purported to convey; it does not appear to have been approved by the Governor or the Land Commission, as required by statute for conveyances of communal land. A.S.C.A. §§ 37.0203-.0204. Nor, although the deed and an accompanying survey were filed for registration in the office of the Territorial Registrar, have they ever been offered for registration as the property of Tago in accordance with the procedures set forth in A.S.C.A. §§ 37.0101 et seq. The mere filing of a document with the Registrar, without compliance either with the procedures set forth in A.S.C.A. §§ 37.0101 et seq. for the registration of land or with those set forth in A.S.C.A. §§ 37.0201 et seq. for the conveyance of communal land, conveys no title.
The purported deed may have given Tago a license to continue living in the area where his houses are. This would depend on the circumstances, including whether the matai whose family owned the area where Tago’s houses are gave his consent to the deed or to the underlying agreement. (The landowner may be Moea‘i, who did sign the deed, or it may be Magalei or Tuia’ana, who did not.) Tago has no legal interest, however, in the tracts now offered for registration by Tauvela or by Asifoa.
IV. The Tauvela Claim
*91The Tauvela claimants came to this area shortly after the end of the Second World War. Fred Lobendahn, a man who married into the family, had something to do with building the government road up the mountain; the Tauvela family is also connected to A'oloau, the village that had recently moved to the top of the mountain from its old location on the north shore. It appears that during the late 1940s and early 1950s, a number of ambitious and/or adventurous A'oloau people were spilling over onto the southern slope of the mountain toward the villages of Pava'ia'i and Faleniu.
This is by no means the first case in which the postwar migration from A'oloau has given rise to disputes between people of A'oloau and residents of other villages asserting traditional claims to the land along the mountainside. In the present case, however, the A'oloau people settled on land which was subject not just to vague general assertions of political dominion by neighboring villages, but to specific claims of ownership based on the pre-war settlement and division of Tafeta by the villagers of Faleniu. See Magalei v. Lualemana, supra. Although the Faleniu people had been required to leave during the War (1942-46) when the Marines occupied the area, this did not constitute an abandonment of the sort that might entitle strangers (who appear to have arrived virtually on the heels of the departing Marines) to claim the rights of first occupancy. Rather, the Tauvela people could have acquired the land only by conveyance from the original owner (the Magalei/Tuia'ana family) or by adverse possession.
As it happens, the Tauvela claim is buttressed both by a sort of conveyance from Tuia'ana and by occupation sufficient to satisfy the adverse possession statute. Shortly after the Tauvelas arrived they were approached by Tuia'ana, who told them they were on his land. They negotiated with Tuia'ana and eventually it was discovered that they were related to him. He then told them they could go on living forever on the land they were occupying. Since 1950 or so he has never disturbed their possession and has supported them in land disputes with other claimants, including Asifoa.
Tuia'ana testified that he regarded his settlement with the Tauvelas not as a license but as an outright conveyance; that although the land remains in some sense Tuia‘ana\Magalei land, as far as he is concerned the Tauvelas can register it. This, however, is not the way the land laws work. Because the conveyance from Tuia'ana was not approved by the Governor or the Land Commission, it did not operate to pass title to Tauvela or his heirs. See A.S.C.A. §§ 37.0201 et seq.
*92The Tauvela people, however, occupied the parcels they now claim from some time in the late 1940s until about 1973, when a taro patch that had long been maintained by the late Tauvela on the smaller of the two parcels was taken over by Asifoa. This period was longer than the twenty years required for adverse possession by the statute then in force. The Tauvela occupancy was exclusive, continuous, open, and notorious, and it was hostile to a claim of ownership by anyone else — including the claim that might have been asserted by Tuia’ana or Magalei but which Tuia‘ana had renounced.
It is important to notice that the Tauvelas were not occupying the land as licensees of Tuia’ana. Rather, Tuia’ana says he acknowledged the Tauvelas as outright owners of the land and then left them alone for twenty years. Although ineffective as an outright conveyance, this acknowledgment and subsequent non-interference had the effect of allowing the Tauvelas to acquire the land by adverse possession.
We are satisfied that a recent resurvey (Drawing No. 110-15-90) by the Tauvela claimants of their parcel entitled "Fanuaomavaega No.2" (the land in and around the former taro patch, originally designated parcel No. 1) is an accurate survey of this portion of their land. However, this survey cannot be registered because it has never been posted in accordance with the requirements of A.S.C.A. §§ 37.0101 et seq. (Nor is it clear whether the pulenu’u of the Village of Faleniu was present at the survey and gave the required notice within the village.) The original survey of this parcel, the one that was in fact offered for registration in 1984, does not accurately portray either the size, shape, or location of this part of the Tauvela land. Accordingly, the offer of registration is denied.
If, however, the Tauvela claimants wish to offer the new survey for registration — after retracing it, if necessary, in order to comply with the statutory requirement of notice in the village of Faleniu — all parties to the present litigation will be estopped from offering any objection. The present parties’ claims to the subject land have already been litigated, and as among the present parties, this parcel has been held to belong to the Tauvela claimants.
The other Tauvela survey offered for registration in 1984 does appear to accurately reflect the size and shape of a tract occupied by the Tauvelas since the late 1940s and containing at least one Tauvela house. A surveyor’s error — apparently in calculating or transcribing one of the coordinates of the starting point of the survey, and having the effect of *93placing the survey about 200 feet west of where all parties believe the Tauvela-occupied area to be — might not be fatal if it were proved that the field survey itself had been located in the proper place and conducted in accordance with all statutory requirements. The 1984 survey, however, was announced in A‘olau rather than Faleniu. The whole of Tafeta has long been held to belong to Faleniu. Although this does not prevent people of A’olau from acquiring land in Tafeta by conveyance or adverse possession, they cannot register such land without giving the required notices in the village wherein the land is located.
Again, however, the defects in the registration do not prevent us from adjudicating the rights of the present parties, who have in fact received notice of the Tauvela claim, filed their competing claims, and fully litigated their claims. In the event the Tauvela claimants should re-offer this parcel for registration (presumably after correcting the surveyor’s error and complying with all statutory requirements), all parties to the present litigation will be estopped from offering objections.
Another minor adjustment, on the western boundary, may be necessary before the larger Tauvela tract can be re-offered for registration. This matter is discussed in connection with the Asifoa/Atualevao claim.
V. The Asifoa/Atualevao Claim
Asifoa Atualevao also came down from A’oloau during the late 1940s or perhaps during the very early 1950s. His occupation of the area around where his houses now are, although interrupted by long absences, was supplemented by the presence of other Atualevao family members.
In 1975 Asifoa and his wife attempted to register a tract of land as their individually owned property. This tract was apparently intended to include the area immediately around the Asifoa houses, as well as a somewhat larger tract of land to the northeast, which had long been occupied by the Tauvela people. Magalei, Tuia’ana, and Oloava Tauvela objected. The Court rejected the Asifoa claim for several reasons: serious technical flaws in the survey, the "considerable merit" of the competing claim by the Tauvela people, and what the Court regarded as inconsistencies in the Asifoas’ theory about how the land had become their property. Atualevao v. Magalei, supra.
*94Some of the parties to the present case contend that the present Asifoa/Atualevao claim must be denied because it has already been litigated and rejected. In obvious anticipation of this argument, Asifoa has amended his pleadings to claim the land not as his individual property but as that of the Atualevao family. His son Atualevao Sosene Asifoa, the present holder of the Atualevao matai title, has joined in this new claim. Counsel for Asifoa and Atualevao also points out that most of the land unsuccessfully claimed by Mr. & Mrs. Asifoa in 1975 is outside the boundaries of their present claim.
Although Asifoa’s change of heart with respect to the true ownership of this land seems at least partly motivated by strategy rather than conscience, it does make his claim far easier to reconcile with the true facts of the case. For reasons we have already stated at length, we reject Asifoa’s claim that he was the original occupant of this land. If he or the Atualevao family has acquired ownership, it must be by adverse possession from the Tuia'ana/Magalei people who had owned it at least since 1922. Asifoa himself has left the land on several different occasions, and each of these absences lasted for several years. He has therefore not been on the land continuously for long enough to acquire it by adverse possession. Other members of the Atualevao family, however, including the then-holder of the Atualevao title, were on the land while Asifoa was there and also while he was away. Indeed, it seems clear that Atualevao family members have been present in the area of the Asifoa bouses continuously since 1952 at the latest. Although Asifoa himself may have been intending all along to register the land some day in his own name rather than in that of his family, there is no evidence that this intention became public at any time before 1975. The general pattern of occupation seems far more consistent with communal than individual ownership.
The rejection of Asifoa’s claim in 1978 was motivated at least partly by the Court’s skepticism about the individual-ownership aspect of the claim. The Court also clearly regarded the Tauvela claim over the area including the Tauvela houses as superior to that of Asifoa. Neither of these factors is present in the case now before us, since Asifoa has abandoned not only his claim to individual ownership but also any claim at all to the area around the Tauvela houses. The Atualevao family is therefore not collaterally estopped by the rejection of the Asifoa claim in 1978.
On the merits, we find that the Atualevao family’s occupation of the area in the immediate vicinity of the Asifoa houses has been *95continuous, exclusive, open, notorious, and hostile since 1952 at the latest. They therefore acquired the area by adverse possession from the Tuia'ana/Magalei family no later than 1972. Although Tuia’ana had confronted Asifoa during the early 1950s, just as he had confronted Tauvela, in this case there was no settlement. Tuia'ana went on regarding the land occupied by the Asifoa\Atualevao people as rightfully belonging to the Tuia‘ana\Magalei family, but did not assert this position in Court until 1975. By then, however, the Atualevao péople had been on the land long enough to perfect their title by adverse possession.
The Asifoa/Atualevao survey is quite a bit larger than the area of their proven adverse possession. The southwestern portion of their survey overlaps the westernmost Tauvela survey. This was the location of Tauvela’s taro patch. We find the Tauvela evidence, to the effect that Tauvela cultivated this land on his own account, more convincing than Asifoa’s testimony that Tauvela’s long occupation was always as Asifoa’s licensee. The Tauvela claimants therefore prevail with respect to this area. With respect to the steep slopes in the northern and northwestern portion of the Asifoa/Atualevao survey, there is no convincing evidence of any Asifoa or Atualevao occupation until quite recently. The Magalei/Tuia'ana family, the original owner of the land, therefore prevails in these areas.
We hold that the area of the Atualevao family’s proven adverse possession is bounded on the west by the Tauvela tract depicted in Drawing No. 110-15-90; on the south and east by the southern and eastern boundaries of the Asifoa survey; and on the north by the 825-foot contour line. This contour line appears to define as nearly as possible the beginning of the steep slope; it can be seen clearly on Drawing No. 110-15-90, and the depiction in that drawing corresponds to an identical line in the inset portion of the Asifoa survey, Drawing No. 9-15-89.
The Asifoa survey also has a slight overlap on the east with the larger of the two Tauvela surveys. Both parties testified that there is no serious disagreement on the boundary in this area, that their boundary is a line of trees and that the only question is whether the trees themselves are on the Atualevao side or the Tauvela side of the boundary. We conclude that the trees should be the exact boundary rather than being slightly on one side or the other. Each party may have to adjust its survey accordingly before making any new offer of registration.
The Atualevao family is not entitled to immediate registration of any part of the Asifoa survey, because the only notice that was ever *96given of such registration was given in A'oloau rather than Faleniu and notified prospective objectors of a claim by Asifoa rather than by the Atualevao family. A certificate of registration issued after compliance with the registration statutes is evidence of a title good against the world and therefore can only be issued after strict compliance with the statutory procedures. See Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (1991); Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). That the Atualevao family has not done what it has to do to establish a title good against the world, however, does not prevent the Court from pronouncing judgment with respect to the rights of parties who have had notice of the Atualevao claim and have fully litigated their competing claims. See Vaimaona, supra. If, therefore, the Atualevao family should offer for registration that portion of the Asifoa survey which has been held in this opinion to belong to them, the other parties to these consolidated cases will be estopped to object.
V7. Conclusion and Order
Judgment shall issue as follows:
1) Denying the offers of registration by Oloava Tauvela in LT No. 34-85 and by Asifoa Atualevao in LT No. 21-89.
2) Declaring that the 3.0631-acre tract depicted in Drawing No. 110-15-90 is the property of the heirs of Tauvela and his wife Teuila.
3) Declaring that the 7.70-acre tract depicted in Drawing No. 11-11-84, with the stated coordinates corrected so that the western boundary should correspond to a line of trees on the eastern boundary of the Asifoa survey, is the property of the heirs of Tauvela and of his wife Teuila.
4)Declaring that the tract included within the following boundaries is the property of the Atualevao family: Beginning at a point defined by the intersection of the eastern boundary of the Tauvela tract entitled Fanuaomavaega No. 2, as depicted in Drawing No. 110-15-90, and the 825-foot contour line, also depicted in that drawing; thence southeasterly along the eastern boundary of Fanuaomavaega No. 2 to the intersection with the southernmost boundary of the Asifoa survey, Drawing No. 9-15-89; thence easterly and northerly along the various courses of the southern and eastern boundaries of the Asifoa survey; thence northerly along a line of trees, which is along or near the eastern boundary of the Asifoa survey and which is also along or near the *97western boundary of the Tauvela tract depicted in Drawing No. 11-11-84, to the intersection with the 825-foot contour line; thence westerly along the 825-foot contour line to the point of beginning.
4) Declaring that the remaining land within the Asifoa survey is the property of the Magalei/Tuia'ana family of Faleniu.
5) Enjoining all parties to withdraw, within the next thirty days, from any land now occupied by them and held to belong to other parties, to remove their crops and any other belongings they may have on such land, and not to go on such land thereafter except by permission of the lawful owner.
It is so ordered.
Counsel for Asifoa contended at trial that the land now in dispute is not within the land called Tafeta, which the Court has repeatedly held to have been cleared and settled by the Faleniu people in 1922, but is instead somewhat uphill from this land. The evidence for this proposition is Asifoa’s own testimony that there were large trees on the land when he got there in the late 1940s.
Aside from the unlikelihood that the Faleniu people would have cut down every single, large tree when they cleared the land in 1922, there is abundant evidence that all the land now in dispute is within the land Tafeta, whose ownership has been adjudicated over and over again in the High Court. Moea'i, who owns the land just downhill, testified that his portion of Tafeta is not the part that is furthest uphill and that Tuia‘ana owns the portion uphill from him. The evidence of Tuia'ana, *89Tago, and Tauvela also makes it clear that Tuia'ana has been exercising some sort of pule over this area at least since the 1940s.
Moreover, all parties, including Asifoa, agree that the house of Lua Mamoe which was involved in Galoia v. Lua, supra — and which the Court held to be within Tafeta and subject to the pule of Tuia'ana — was located only a few feet from where the Asifoa houses are now. The evidence is to the effect that Lua’s house was just outside the land now in dispute, in an uphill direction toward A'olau. This places the presently disputed land squarely within Tafeta, not outside it and not on its fringes. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485994/ | This is a petition to relinquish the parental rights and obligations of the natural parents, who are in their thirties, so that the child may be *98adopted by some relatives with whom she has been living. The prospective adopting parents are 63 and 69 years of age.
Absent extraordinary circumstances, such as are not present in this case, it is not in the best interests of a child to terminate a legal obligation of support on the part of two healthy, young, natural parents in order to substitute a similar obligation on the part of prospective adopting parents who will be in their seventies and eighties, respectively, before the child reaches her majority.
The Court has consistently rejected petitions such as the present one, and yet a handful of lawyers and legal practitioners — apparently encouraged by heavily subsidized attorney fees inexplicably provided by the deficit-ridden Territorial Office on Aging — continue to bring these cases. The apparent motive in many cases is to increase the Social Security payments of elderly people by providing them with a roster of de jure "dependents."
The prospective adopting mother in the present case says she does not want an increase in her Social Security payments and that her only motive is to show her love for the child, whom she has already adopted into her family according to the Samoan custom. In this case there is no need for a legal adoption. A Samoan customary adoption does not require Court approval or a legal termination of the rights and obligation of the natural parents.
The child can go on living with these elderly relatives for as long as her natural parents continue to approve of the arrangement. The petition for relinquishment of the legal rights and obligations of the natural parents is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485995/ | *101On Motion for Bifurcated Trial:
Defendant, having served notice of his intention to rely on defenses of insanity and/or of diminished mental capacity, now moves for a bifurcated trial. The prosecution has no objection, provided that the nature and scope of each part of the proposed proceeding are made clear.
In the proceeding contemplated by defendant’s motion, the defendant would first be tried for the crimes with which he has been charged, without reference to any mental disease or defect or to the effect, if any, of such defect on guilt or innocence. If and only if the defendant is found guilty of one or more of the offenses charged (or of some lesser included offense or offenses), the trial would proceed to its second stage. In the second stage of the proceeding, the defendant would present testimony, including but not limited to expert evidence, of the alleged mental disease or defect, and the prosecution would have the opportunity to offer evidence to rebut or refute the defendant’s evidence.
The proceeding contemplated by the defendant’s motion is not squarely within the language of the statutory authorization for bifurcated proceedings provided inA.S.C.A. §§46.1301 et seq. The statute speaks in terms of a division of the inquiry into whether the defendant "committed the criminal act charged" and whether he was "insane at the time of the commission of the criminal act." A.S.C.A. §§ 46.1301-.1302.
A defense of diminished mental capacity speaks to a question that is conceptually somewhere in between the two questions contemplated by our statute: whether defendant "committed the ... act charged" and, if so, whether he was "insane" at the time. This question — whether a mental disease or defect, although not rendering the defendant "insane," nevertheless prevented him from having the requisite state of mind to be guilty of the crime with which he is charged — is arguably comprehended within the question whether the defendant "committed the criminal act charged." This is because one who commits the act without the requisite intent has arguably not committed a "criminal" act. If so, diminished mental capacity should be considered within the first ("guilt") stage of a bifurcated proceeding, not within the second ("insanity") stage.
Such a division, however, would defeat the obvious purpose of the statute. Bifurcated trials are designed to make it possible for a government expert witness — to whose examination the defendant may *102be lawfully compelled to submit after putting his own mental capacity at issue — to testify about his observations of the defendant’s mental condition without incidentally affecting the jury’s decision about whether the defendant was otherwise guilty of the crime charged. Such testimony may, in some circumstances, include statements made by the defendant to the expert witness during the compelled examination. Although the witness may testify only about the alleged mental disease or defect and not about "guilt or innocence" (i.e., about whether the defendant would be guilty in the absence of any such disease or defect), evidence about how the defendant’s mind works may have a strong tendency to influence the jury’s determination of what sorts of things he might have done and intended. If the evidence about mental condition seems highly probative of other issues — and especially when such evidence consists partly of the defendant’s own statements — a limiting instruction may be ineffective.
A bifurcated trial solves this problem by not exposing the jury to such evidence until and unless the jury first makes an independent finding that the defendant committed the act charged. Where the crime includes an intent element, a finding of guilt in the first part of the trial also implicitly includes a finding that the defendant either had the requisite intent or would have had it but for the mental disease or defect.
Despite the tendency of bifurcated trial statutes to describe the subject of the second part of the proceeding as "insanity" rather than as "mental disease or defect," a defense of diminished mental capacity falling short of insanity not only is conceptually similar to the insanity defense but also is likely to be supported by the same kinds of evidence and to present the same practical problems. Specifically, a defendant who puts his mental capacity at issue must submit to an examination by an expert witness for the prosecution, and the expert may testify about his observations and conclusions. This is true even though the expert’s observations and conclusions about diminished capacity other than insanity may be seen as directly relevant to "guilt" rather than to "sanity" — i.e., to a mental element of the crime itself rather than to a side constraint on conviction. See United States v. Halbert, 712 F.2d 388 (9th Cir. 1983). Where the mental disease or defect is alleged to have resulted in "incapacity to intend" rather than in "insanity," the expert’s testimony must be limited to the question of such incapacity and may not be considered by the jury for any other purpose. See id. at 390.
If anything, however, diminished-capacity evidence is even more likely than insanity evidence to seem highly probative of other issues in *103the case, particularly of questions about the defendant’s mental state that are theoretically distinct from the question whether the defendant’s mind was so diseased or defective that he could not possibly have had the requisite state of mind. It is therefore even less likely in diminished-capacity cases than in insanity cases that a limiting instruction would effectively erect a wall of evidentiary separation between the disease-or-defect question and the question of "guilt but for the defect."
Logically, therefore, both the defendant’s interest in a fair trial, untainted by inadvertent self-incrimination, and the interest of all concerned in an orderly proceeding would be better served by reserving all evidence of mental disease or defect for the second part of a bifurcated proceeding rather than combining it with the inquiry into whether defendant would otherwise be guilty. The case for such reservation is particularly compelling where, as in the present case, the defendant wishes to present essentially the same evidence to support both an insanity defense and a defense of diminished capacity.
Accordingly, we order that the trial set for May 28, 1991, will be a bifurcated proceeding.
The first part of the proceeding will be limited to evidence of whether the defendant is or would be guilty, assuming the absence of any mental disease or defect such as would render him incapable of understanding the difference between right and wrong, incapable of conforming his conduct to such a standard, or otherwise incapable of having any requisite mental element of the crimes charged or of any lesser-included offenses. Although this stage of the proceeding will necessarily be very much concerned with what the defendant was or was not thinking at various times relevant to the offenses charged, neither party may address such questions by way of expert testimony from psychiatrists or psychologists or by other evidence calculated to show that defendant did or not have a mental disease or defect.
Nor may the government make any use during this stage of the proceeding of statements made by the defendant to the government’s expert witness or of any evidence discovered as a result of such statements that would not ultimately have been discovered had the statements not been made. See United States v. Stockwell, 743 F.2d 123 (2d Cir. 1984); cf. Nix v. Williams, 467 U.S. 371 (1984). (The Court can imagine relaxing these rules if the defendant should open the door to otherwise-inadmissible evidence by putting some fact at issue which could *104only be effectively addressed by such evidence and under such circumstances as would require its admission in the interest of justice.)
If the defendant is found guilty of one or more crimes in the first stage of the bifurcated proceeding, it will proceed to the second stage. At this stage the defendant may present evidence, including but not limited to expert testimony, that he had a mental disease or defect such as would either support an insanity defense or tend to negate the existence of any requisite mental elements of the crime or crimes found in the first stage of the proceeding or of any lesser-included offenses. The government may offer similar evidence in rebuttal.
The jury will then be instructed to consider this evidence, along with the evidence presented at the first stage of the proceeding, and to deliver one or more special verdicts in response to questions put in writing by the Court. For instance, if the defendant were to be found guilty of murder in the first degree, the jury might be asked to decide whether the defendant suffered from a mental disease or defect which caused him to be unable to understand the difference between right and wrong or to conform his conduct thereto (the question of insanity); whether he suffered from a mental disease or defect which caused him to be unable to "deliberate" (the distinctive mental element of first-degree murder); whether he suffered from a mental disease or defect which caused him to be unable to do a certain act "purposely," "knowingly, ” or "recklessly" (elements required for various forms of second-degree murder); and other questions relevant to appropriate lesser-included offenses. If the answer to any of these questions should be affirmative, the Court would modify (i.e., reduce) the general verdict given after the first stage of the trial as necessary to conform it to the special verdicts given after the second stage.
Should the trial proceed to its second stage, the government would not then be prohibited from using evidence obtained during its expert’s examination of the defendant or as a result of such evidence, including but not limited to statements made by the defendant to the expert, provided such evidence is not inadmissible under some other rule of law or evidence.
For the record, we note that the Court has discussed the defendant’s motion and the implications and possible consequences thereof in a pre-trial conference with counsel for the defense and the prosecution. We find that the motion reflects a considered and intelligent decision by defense counsel to maximize the chances for a fair trial and *105to minimize the risks to which the defendant might otherwise be exposed by putting at issue the questions of insanity and diminished capacity. The implicit waiver of any objection to a procedure which, although clearly consistent with the legislative purpose of the bifurcated-trial statute, is not clearly authorized by the letter thereof, we find to have been made after thorough and careful consideration of these objectives. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485996/ | On Motion to Dismiss and on Motion to Supress Evidence:
Defendant moves to suppress two statements he is alleged to have made to police officers on the grounds that the circumstances under which these statements were taken violated his Fifth and Sixth Amendment rights.
Defendant also moves for dismissal of the charges against him on the ground that the prosecution of the case is based on information derived from these two statements and from other allegedly impermissible sources, rather than on "independent investigative efforts."
The first of the two statements was a one-sentence response the defendant made when a police officer asked him "What happened?" This statement appears to have been made by the defendant of his own free will. No Miranda warnings had been given before the police officer asked the defendant "What happened?," but under the circumstances this does not render the statement inadmissible as evidence. The defendant was not in custody: he had not been arrested, handcuffed, physically restrained in any way, or told directly or indirectly that he was not free to go. Nor was the statement made in the course of anything that could remotely be called a process of custodial "interrogation." The police officer asked the defendant "What happened?" immediately upon *107encountering him a short distance from the scene of the incident in question. Although the police officer had just been given information implicating the defendant in the crime for which he was eventually charged, the two-word question appears to have been "investigatory" rather than "accusatory." That is, the officer was trying to gather preliminary and general information, rather than to elicit a confession. See People v. Wright, 66 Cal. Rptr. 95 (Cal. App. 1968). The motion to suppress this statement is denied.
The second statement was made the next day at the Correctional Facility in response a process of custodial interrogation. A number of most unpleasant things had happened to the defendant during the twenty-two hours since his arrest. He had been assaulted twice by a ranking police official, stripped of all his clothing, held for about twenty hours in a cell without a bed or mattress, held incommunicado without access to visitors, and subjected to the shining of a flashlight in his face at frequent intervals during the night.
The defendant was not interrogated until the next afternoon. By then his clothing had been returned, and he had been offered food. The two interrogators had taken no part in any of the events of the night before, and the interrogation itself was neither explicitly threatening or even impolite. Arguably, there had been a sufficient break in the flow of events to render the defendant capable of making a fully voluntary statement, notwithstanding the intimidating circumstances to which he had been exposed during the early hours of his incarceration.
The preponderance of the evidence, however, is to the effect that the defendant told the interrogators that he wished to have a lawyer before he made a statement. The response from one of the interrogating officers was to the effect that he should go ahead and make a statement and that a copy of the statement would be given to his lawyer. The effect of this response, at least against the backdrop of what had happened to the defendant the night before, was to give him the impression that making a statement to the police was his ticket of admission to the legal process. This was an impermissible impression for the officers to give the defendant. Once he had invoked his right to counsel, they had an obligation not to ask any further questions until he had been allowed to consult a lawyer. Instead, it appears that the officers proceeded with the interrogation.
The defendant then signed and initialled a series of written waivers (including one that said he did not want a lawyer) and gave a *108lengthy statement. It is clear that his attitude during this part of the interrogation was cheerful and cooperative and that the interrogators continued to be polite and friendly. It appears that defendant, a man of extremely limited intellect and education, genuinely wanted to explain himself; although he had a hazy recollection that he was entitled to a lawyer and should not make a statement until he consulted with one, he was willing enough to go along with the officer’s explanation that the statement came first, the lawyer later. To say that the defendant’s "will was overborne" as a result of the initial denial of his right to counsel, therefore, is at best an imperfect metaphor. Nevertheless, the United States Supreme Court has made it clear that when a defendant invokes his right to counsel, the interrogation is to cease until he has been afforded that right. If the interrogation proceeds in violation of this rule, the resulting statements of the defendant may not be used as evidence against him — not even statements which, but for the initial invocation of the right to counsel, would seem thoroughly voluntary. See Brewer v. Williams, 430 U.S. 387 (1977). The second statement must therefore be suppressed.
When a statement is suppressed as having been taken in violation of the defendant’s right to counsel, the suppression applies not only to the statement but also to any information the government may have discovered as a result of the statement, unless such information would have been "ultimately or inevitably" discovered even without the statement. Nix v. Williams, 467 U.S. 431, 448 (1984).
Defendant does not move to suppress any particular evidence alleged to have been discovered by the government as a result of the suppressed statement. Instead, he moves for dismissal of the charges unless the government can affirmatively show that it can convict him without the use of any such evidence. This motion is denied. The limited record now before us not only fails to show that the government plans to present any impermissible evidence but also indicates that the government does have substantial evidence — e.g., a body, a pathologist’s report, an arguably inculpatory statement that has not been suppressed — which was not discovered as a result of the suppressed statement. If the government does plan to use any evidence which it discovered as a result of this statement, it should so notify the Court at the outset of trial and should be prepared to show that it would have discovered such evidence in the absence of the statement.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485998/ | On Motion to Dismiss:
Defendant American Samoa Government (ASG) moves to dismiss this medical-malpractice action on the ground that the action was filed prior to exhaustion of the administrative remedy prescribed in A.S.C.A. § 43.1204. This section of the Government Tort Liability Act provides that no action may be instituted upon a tort claim against ASG unless the claimant has first presented the claim in writing to the Attorney General, and the claim has been finally denied by the Attorney General. Because the complaint was filed on March 11, 1985, and the Attorney General cannot be deemed to have denied the administrative claim until June 6, 1985, ASG maintains that the Court lacks subject-matter jurisdiction over the action.
Defendant ASG further contends that the two-year statute of limitations expired on May 8, 1985, and that it is therefore impossible *114for plaintiff to cure the jurisdictional defect by amendment of her complaint to allege the intervening denial of her administrative claim.
The material facts are as follows:
1) Assuming the facts in the complaint to be true, the medical malpractice that caused plaintiffs injuries occurred between March 28, 1983, and May 8, 1983, and plaintiff would appear to have learned the extent and probable causes of her injuries shortly thereafter.
2) On March 6, 1985, counsel for plaintiff filed an administrative claim with the Attorney General.
3) On March 11, 1985, counsel for plaintiff filed the complaint in the present action.
4) The complaint was not immediately served upon defendant ASG or upon the other named defendant, Dr. Troup.
5) On March 20, 1985, counsel for plaintiff submitted to the Court a draft order for service by publication upon Dr. Troup, alleging that he could not be found within the Territory. The then-Chief Justice responded with a one-line note to counsel to the effect that the statutory requirements for service by publication had not been met. The apparent reference was to the failure of the accompanying affidavit to state a particular ground on which the absent defendant was alleged to be amenable to extraterritorial service.
6) The Attorney General appears never to have responded in writing to the administrative claim that had been filed on March 6. According to the provision of A.S.C. A. § 43.1205 (as amended by a law that became effective May 29, 1985, while plaintiffs administrative claim was pending) plaintiff was entitled to consider her administrative claim denied on June 6, 1985.
7) A copy of the complaint in the present action and a summons were served on defendant ASG on or about November 26, 1985.
8) On December 12, 1985, defendant ASG filed an answer on behalf of itself and Dr. Troup. The answer did not plead either the non-exhaustion of the administrative remedy (A.S.C.A. § 43.1205) or the two-year statute of limitations (A.S.C.A. § 43.1204) as a defense. *115Indeed, the answer affirmatively admitted plaintiffs allegation that "[t]his court has jurisdiction herein."
9)The answer also admitted that Dr. Troup was acting at all relevant times in the course and scope of his duty as a surgeon employed by ASG.
10) Nothing further appears to have happened until June of 1988, when plaintiff moved for a trial date. Between 1988 and late 1990, several trial dates were set and continued by stipulation of the parties, and defendant ASG made several discovery requests, with all of which plaintiff appears to have complied.
11) On September 19, 1988, defendant ASG filed a counterclaim for various medical bills, some for services alleged to have been rendered to plaintiff and others for services "to a patient which she sponsored for immigration purposes." In the same pleading, counsel for ASG filed a third-party claim on behalf of the local power authority (an entity wholly owned by ASG) against plaintiff for unpaid electric bills.
12) On May 22, 1989, counsel for ASG and the power authority secured an entry of plaintiff s default on the counterclaim and third-party complaint. Plaintiff then moved to set aside the entry of default. The motion was granted with reference to the medical bills but denied with reference to the electric bills.
13) On October 9, 1990, the defendant brought the present Motion to Dismiss. The motion was heard on October 26. The court took the motion under advisement and granted a further continuance of the trial, pending a decision on the motion.
In addition to its memorandum in support of the motion to dismiss, defendant ASG has appended copies of this Court’s two opinions in Mataipulev. Tifaimoana Partnership, Ltd., 14 A.S.R.2d 100(1990); 16 A.S.R.2d 48 (1990), on motions presenting issues nearly identical to those raised by the present motion. ASG has also appended the lengthy and scholarly memoranda it had submitted to the Court in Mataipule. Although there are some distinctions between this case and that one, ASG’s primary arguments herein are addressed to the errors it believes the Court committed in Mataipule.
*116Defendant ASG urges this Court to reject the holding and the reasoning of Mataipule (which was decided before a different panel of judges) on two questions.
First, the Mataipule Court held that a prospective plaintiffs "claim" under the Government Tort Liability Act does not accrue, and therefore that the two-year limitation period provided by A.S.C.A. § 43.1204 does not begin to run, until after the claim has been finally denied by the Attorney General in accordance with the procedure set forth in A.S.C.A. § 43.1205. The Court construed the term "claim" as synonymous with "cause of action." Because an injured person cannot sue until he has exhausted his administrative remedy — a proposition with which ASG wholeheartedly agrees — and because the plain language of A.S.C.A. § 43.1204 would appear to give such persons two years in which to sue, the Court reasoned that the two years must begin on the day exhaustion occurs. Mataipule, 14 A.S.R.2d at 102-05.
The Mataipule Court’s decision on this point is well-reasoned and well-supported. Courts have frequently construed references to the accrual of a "claim" as being synonymous with the accrual of a "cause of action." See Mataipule, 16 A.S.R.2d at 51-55, and authorities cited therein. It is particularly interesting that this construction was given to the pre-1966 version of 28 U.S.C. § 2401(b), the statute on which A.S.C.A. § 43.1204 may have been modeled. See id. at 52, and authorities ci ed therein.
Nevertheless, if the question were properly before us we might well agree with defendant ASG that A.S.C.A. § 43.1204 should be construed consistent with the general rule that a tort claim accrues when a person has been injured and knows or should have known the essential facts about his injury and its probable cause. See American Samoa Government v. Utu, 9 A.S.R.2d 88, 91 (1988). As ASG points out, Mataipule could have the odd effect of giving injured persons an indefinite amount of time in which to sue, since the Government Tort Liability Act does not explicitly specify a time limit for bringing administrative claims. Even if, as the Mataipule Court suggests, a separate two-year limit for bringing the administrative claim could be imposed by analogy to the two-year limit on lawsuits, the effect would be to give people injured by government employees four-and-one-half years to sue, in curious contrast to the two years given those who have been injured by private persons. See A.S.C.A. § 43.0120(2).
*117The alternative holding of Mataipule, which ASG also urges us to reject, is far less problematic. Rather than subtracting the three-month administrative review period provided in A.S.C.A. § 43.1205 from the two-year statute of limitations provided in A.S.C.A. § 43.1204, the Court decided to add it. On ASG’s construction of the two statutes, a plaintiff who did not act on his claim for one year and nine months would be forever barred from bringing it. (The Attorney General could, however, choose out of the kindness of his heart to revive the claim by acting in less than the required three months.) Instead, the Court construed the two statutes together to require that an action be filed within two years from the date of injury but that this period is tolled during such time as the Attorney General has a timely filed administrative claim under consideration.
This construction would appear to be the least unsatisfactory of all the alternatives, in that it appears faithful to the language and apparent legislative purposes of both of the sections in question. Injured persons may bring suit within two years from the date of injury (or, in certain cases, of knowledge thereof), as clearly provided by the Fono in A.S.C.A. § 43.1204, rather than only one year and nine months, as urged by counsel for ASG. The right to sue is absolutely barred by failure to bring an administrative claim within the same two-year period, as provided by A.S.C.A. § 43.1205; and the Attorney General has a reasonable time in which to review such claim, as is also provided by that section.
Tolling is frequently deemed consistent with the purposes of statutes of limitation. This is particularly true when the period of tolling is one during which the plaintiff was unable to bring suit due to circumstances that were in the primary control of the defendant. ASG’s principal argument against the tolling of the period prescribed in A.S.C.A. § 43.1204 is that this statute is "jurisdictional" and that jurisdictional statutes of limitation, unlike ordinary ones, cannot be tolled. We believe this argument to be circular. Courts tend to characterize a particular statute of limitation as jurisdictional or not after they have decided, for reasons given or assumed, that it ought or ought not to be regarded as tollable, waivable, and/or subject to equitable estoppel. To say that it ought not to be so regarded because it is jurisdictional assumes the whole ground in dispute.
We are not, however, directly presented with either of the questions decided by the Court in Mataipule. This is because in the present case — unlike Mataipule, in which ASG pled both the statute of *118limitations and the failure to exhaust administrative remedies in its answer — several years have elapsed between the filing of the action and the bringing of the present motion to dismiss.
Thus, for instance, if we were to follow Mataipule and hold that the present plaintiffs tort claim accrued on June 6, 1985, the day her administrative claim was deemed denied, the two-year period in which she might have filed her suit would have run from that day until June 6, 1987. As ASG points out, she could therefore no longer cure the jurisdictional defect, if any. An amended complaint would relate back to the date she filed her original complaint, at which time the Court could not exercise jurisdiction because plaintiff had not yet exhausted her administrative remedies. A new lawsuit filed in 1991 would not present this problem, because plaintiff has now exhausted her administrative remedies. It would, however, be filed several years after the latest date at which the two-year statute of limitations might arguably have begun to run and would therefore be subject to dismissal.
Similarly, our tentative agreement with the Mataipule Court’s opinion on the tolling of the statute is of no help to the present plaintiff. Such tolling would have begun on March 6, 1985, when she filed her administrative complaint. It would have ended on June 6, 1985, when her complaint was deemed denied by three months’ inaction on the part of the Attorney General. The running of the statute — which, assuming it began on the day the alleged malpractice ended, had only about two months to go when the tolling began in March 1985 — would then resume, and on or about August 10, 1985, plaintiff lost her right to file a new lawsuit. At any time thereafter she would be presented with the same problem as in the previous illustration: an amended complaint would either "relate back" to a time when she had not exhausted her administrative remedies or, in the absence of "relation back," it would be dismissed because the statute of limitations had run.
In our opinion, during all the time from the filing of the complaint in the present action until the present day, there has been only about a two-month period (from June 6, 1985, to about August 10, 1985) when both of the following conditions held: (a) plaintiff could bring a lawsuit, having exhausted her administrative remedy, and (b) the statute of limitations had not yet run. Had plaintiff amended her complaint at any time during that brief period or had she dismissed this action and filed a new one, her suit would not have been subject to dismissal either as premature under § 43.1205 or as barred by § 43.1204. By November 1985, however, when her eight-month old complaint was finally served *119on counsel for ASG, the action was subject to dismissal for either of these reasons, and possibly also for failure to effect service within a reasonable time. All ASG had to do was plead any of these defenses in its answer — or, at its option, by bringing a motion to dismiss before filing an answer. See T.C.R.C.P. 12(b).
ASG, however, did not plead any such thing. Instead, it filed an answer which not only did not raise any of these issues but also affirmatively admitted that the Court had jurisdiction over the parties and the subject matter. It proceeded to litigate the merits of the action quite vigorously for several years. It required the defendant to undergo a deposition and to answer numerous interrogatories, requests for production of documents, and requests for admissions. It also sought and got affirmative relief from the Court, by filing what amounted to a mandatory counterclaim, a permissive counterclaim, and another permissive counterclaim on behalf of its wholly-owned power company, and has effectively reduced one of these claims to a substantial judgment. Under these circumstances we hold that ASG has waived the statute of limitations.
Again, defendant ASG urges that the statute of limitations is jurisdictional and therefore cannot be waived. The authority cited for this proposition is twofold. First, the High Court has held that the administrative remedy provided by A.S.C.A. § 43.1205 (not the statute of limitations provided by A.S.C.A. § 43.1204) is jurisdictional. See, e.g., Gobrait v. Americana Hotels, Inc., 1 A.S.R.2d 1 (1978). Second, statutes prescribing the time period in which actions may be brought against the United States are frequently construed — similarly to requirements for the exhaustion of administrative remedies, with which such time periods are often intertwined — as jurisdictional prerequisites to suit, rather than as statutes of limitation properly so called. See, e.g., Smith v. United States, 873 F.2d 218 (9th Cir. 1989); Ippolito-Lutz, Inc. v. Harris, 473 F. Supp. 255 (S.D.N.Y. 1979).
We have been cited to no case, and know of none, holding that the two-year statute of limitations provided in A.S.C.A. § 43.1204 is anything other than an ordinary statute of limitations: that is, an affirmative defense which is waived if not affirmatively pled by the defendant. Unlike its quite differently phrased and structured counterpart in the Federal Tort Claims Act, the limitation of A.S.C.A. § 43.1204 has been held to be subject to tolling during the minority of an injured person. Utu v. American Samoa Government, supra', Lutu v. American Samoa Government, 7 A.S.R.2d 61 (1988). This strongly suggests that *120A.S.C.A. § 43.1204 is a real statute of limitations, not a deceptively similar jurisdictional prerequisite. We so hold.
The usual reason given for construing statutes of limitation for suits against the United States as jurisdictional (i.e., not subject to waiver and/or tolling) is that the limitations in question are deemed an integral part of the initial waiver of sovereign immunity. See Smith, 873 F.2d at 221. The United States Supreme Court has observed that the limitation period "is a condition of [the] waiver" by which the government agreed to let itself be sued at all, and that "we should not take it upon ourselves to extend the waiver beyond that which Congress intended." United States v. Kubrick, 444 U.S. 111, 117-18 (1979). The Court has also taken pains to point out, however, that it is equally incorrect for courts to "assume the authority to narrow the waiver that Congress intended." Id. at 118.
Whether the Fono, in prescribing a two-year limitation period for tort claims against the Government, created a traditional statute of limitations or something else altogether is a question of legislative intent. As often as not, such questions boil down to inquiries into what the legislature would have intended if it had adverted in advance to the problem at hand. In the absence of any evidence at all that the Fono meant the two-year limitation on tort actions against the Government to be construed and applied according to a different and almost opposite set of rules than the similar two-year limitation on tort actions against private persons, we cannot simply assume that it did. In particular, we cannot conclude that the Fono intended or would have intended what ASG concedes is the "harsh result" of depriving litigants against the Government of the benefit of the traditional and eminently sensible rule that a party entitled to plead the statute of limitations can waive the statute by not pleading it as an affirmative defense and by proceeding to litigate the suit on its merits.1
*121Finally, however, ASG argues that even if the statute of limitations is waiveable, it should not be deemed to have waived the statute in the present case because plaintiff was not "prejudiced" by ASG’s failure to plead the statute in its answer. This lack of prejudice is said to be because at the time ASG filed its answer, the statute of limitations had already run. "Thus, even if ASG had raised the issue at its first opportunity, it was too late for plaintiff to cure the deficiency by filing a new complaint." This argument proves far too much. By definition, after a statute of limitations has run it is always too late for a plaintiff to cure the deficiency by filing a new complaint. If absence of prejudice were to be evaluated as of the day plaintiff failed to plead the statute as a defense and could be established merely by showing that on such date the plaintiff could not have cured the defect in his action by filing a new complaint, then there would never be any prejudice, and no defendant could ever successfully waive the defense by failing to plead it.
On the contrary, however, we believe prejudice to the plaintiff should be evaluated as of the time that the defendant finally does get around to asserting the statute. In the six years that have intervened since defendant’s failure to plead the statute, plaintiff has been subjected to active litigation on the merits. The record reflects that she has been required not only to comply with voluminous and unusually intrusive discovery requests, but also to defend against three separate claims for affirmative relief asserted against her by ASG. She will almost certainly have judgment taken against her on at least one of these claims. The record also reflects that after 1985 plaintiff gave up her attempt to serve and sue the principal, alleged tortfeasor, the absent Dr. Troup, presumably because of ASG’s admission in its answer that he had been acting in the course and scope of his duty. See A.S.C.A. § 1207. It is quite likely that none of these things would have happened had ASG *122made a timely assertion of the statute of limitations. We find that the plaintiff would be unduly prejudiced if ASG were allowed to rescind its waiver of the statute at this late date.
Accordingly, the motion to dismiss is denied. Plaintiff will be given leave to file an amended complaint, asserting the exhaustion of her administrative remedy, at any time within twenty days from today. The amended complaint will he effective on the day it is filed. Defendant’s waiver of the statute of limitations will be deemed to apply for so long as plaintiff continues her diligent prosecution of the action.
It is so ordered.
Aside from the absence of any apparent legislative intent to enact a different set of rules for tort suits against the government than for similar suits against private parties, what structural and semantic evidence there is suggests that A.S.C.A. § 43.1204 should be read as an ordinary statute of limitations. The statute is referred to in its caption as a "statute of limitations." It contains no explicit reference to jurisdiction. Unlike some time limits that have been held to be jurisdictional, it is set forth in a separate section of the statute rather than in the same sentence or paragraph as an exhaustion of remedies provision or as the substance of *121the cause of action it limits. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), in which the Supreme Court stated flatly that "a statute of limitations," unlike a "jurisdictional prerequisite to filing," is "subject to waiver, estoppel, and equitable tolling." Id. at 393, 398. In Zipes the Court found references to a statute in its own text and legislative history as a "statute of limitations" or a "period of limitations," together with the absence of any explicit reference to jurisdiction in the text or legislative history, as dispositive indications that the statute was a true statute of limitations and not a non-waiveable jurisdictional prerequisite to the filing of suit. Id. at 392-98. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486012/ | Defendants Sosene Asifoa and National Pacific Insurance, seek summary judgment on the ground that the only eye-witness account of the accident, secured by way of deposition, negates plaintiffs’ claim of actionable negligence. Defendants therefore contend the absence of any genuine issue as to material fact. T.C.R.C.P. Rule 56.
In these matters, the non-moving party is to be given the benefit of all reasonable inferences to be drawn on the evidence. Lokan v. Lokan, 6 A.S.R.2d 11 (1989). In this light, we view Officer *46Faataumalama Fereti’s affidavit about blood on the roadway1 as indicating something in the way of a triable issue of fact — the position of the deceased child in relation to the bus as it moved away after discharging plaintiff Peleiupu Tuilesu. Plaintiffs’ theory is failure on the part of the driver to keep a proper lookout for children; hence the deceased child’s location at the critical time would seem to be a material issue.
The motion for summary judgment is, therefore, denied.
It is so ordered.
We note parenthetically that this observation of the scene was about all that this officer competently deposed to "from personal knowledge," as required by T.C.R.C.P. Rule 56(e). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486013/ | The defendant moved to compel discovery and disclosure of exculpatory information. This led to an order directing the government to respond to the defendant’s requests within a certain number of days; accordingly, the prosecutor submitted written responses. Claiming that the prosecutor’s responses were inadequate, the defendant moves to dismiss the case based on violations of the rule of Brady v. Maryland, 373 U.S. 83 (1963), and T.C.R.C.P. 16.
The Court finds that the prosecutor’s responses to the defendant’s Motion for Discovery and Disclosure were inadequate in the following ways:
(1) The response to the Brady requests states that most of the requested items are "not in the custody or control of the prosecutor or [are] immaterial." Government’s Response to Defense Request for Exculpatory Evidence, at 2 (filed July 31, 1991). This statement is insufficient. The responses to many of the discovery requests, that no such items are "in the possession of the prosecutor and subject to disclosure," Government’s Response to Defendant’s Demand for Discovery, at 1-2 (filed July 31, 1991), are equally insufficient. The prosecutor must make a duly diligent inquiry of all other relevant branches of the government for the requested information. United States v. Smith, 552 F.2d 257, 261-62 (8th Cir. 1977). The prosecutor must then answer for the government, not just the prosecutor’s office.
(2) Those same responses are also inadequate because they are ambiguous. For potential Brady material, the prosecutor must identify specifically whether each requested item is not produced because it is not in the possession of the government or because it is immaterial. See United States v. Agurs, 427 U.S. 97, 106 (1976). For potential Rule 16 material, the items may be discoverable if they are intended for use in the prosecution’s case-in-chief, if they are "material to the preparation of the defense," or if they belong to the defendant; the prosecution’s answer blurs these individual categories into one compound category, and does *48not address them all. The alternative answer given by the Government to the Brady request, that the items either are not in the prosecutor’s possession or are immaterial, does not identify the reason for nondisclosure with sufficient particularity, and the compound response given to the discovery requests does not rule out each category individually. Some disputes over materiality may need to be resolved in camera, see id.: accordingly, both the court and the defendant need to know which items the government does not possess, and which are claimed to be immaterial.
The court finds that the following allegations by the defendant do not constitute Brady or discovery violations:
(1) The alleged instructions by Mr. Buckner that witnesses not talk with the defendant’s attorney. Any possible violation in this regard has been cured, as even the defendant’s affidavits show, by the letter issued by the prosecutor. Brady is not a penalty for prosecutorial misconduct, Agurs, 427 U.S. at 110; once the potential for an unfair trial has been cured, no Brady violation is possible, since Brady is premised on the right to a fair trial. Brady, 373 U.S. at 87; United States v. Moore, 439 F.2d 1107, 1108 (6th Cir. 1971).
(2) Alleged government "obstructionism" with the CPS psychiatrist. This interference is, at most, a refusal by the government to affirmatively investigate or create exculpatory information, which the Brady rule has never required of the Government. United States v. Beaver, 524 F.2d 963 (5th Cir. 1975), cert. denied, 425 U.S. 905 (1976); United States v. Sukumolachan, 610 F.2d 695 (9th Cir. 1980).
(3) The Government’s late production of the police report. Any potential Brady violation was cured by the production of the report in time for the defendant to use it effectively at trial. Brady, 373 U.S. at 86; United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985).
(4) All of the "discovery requests," with the exception of any existing reports or results of tests, do not fall within the specifically delineated categories for criminal discovery under Rule 16. These items are therefore not discoverable under Rule 16, but may be subject to disclosure if they fall within the parameters of Brady. The government should therefore respond to these as Brady requests as well as discovery requests.
The remaining claims by the defendant have not yet risen to the *49level of Brady violations, but may rise to that level if the prosecutor fails to provide responses sufficient to ensure a fair trial.
It is ordered that the government answer each request, specifically and on behalf of the government, from each of the several documents requesting disclosure to the defendant, within 10 days of date of entry hereof.
It is further ordered that defendant’s Motion to Dismiss is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486014/ | The natural parents petition to terminate their parental rights to their three-year-old minor child so that she may be available for adoption by her paternal grandparents.
In these matters, we are required to inquire whether the relinquishing parents have been properly counselled and fully advised as to the consequences of their petition, A.S.C.A. § 45.0402(d) and (g), and *50whether granting the petition would best serve the interests of all parties concerned, A.S.C.A. § 45.0402(e), (g). While there was a sufficient showing on the first statutory requirement, we found that the evidence presented on the second requirement focused largely on the adult parties’ needs — the natural parents’ love for the aging grandparents and the latter’s need for filial companionship and care, the grandparents’ desire to legally formalize a family tradition and their concern for the natural father’s availability to attend to his duties as a matai of the family. The evidence, however, failed to adequately address the future needs and welfare of the very young child before the Court.
Unless relinquishment can be found to enhance a child’s best interests, the court is not permitted to grant the petition. A.S.C.A. § 45.0102(a)(1); In re Two Minor Children, 12 A.S.R.2d 87 (1989). A relinquishment petition not only seeks the termination of parental rights but also the termination of a child’s legal right to look to his or her parents for support. The court has therefore taken care to ensure that there be some "net benefit" to the minor before visiting upon him or her a change in legal status. In re Two Minor Children, 11 A.S.R.2d 108, 109 (1989); In re A Minor Child, 7 A.S.R.2d 115 (1988); see also In re A Minor Child, 13 A.S.R.2d 33 (1989); In re A Minor Child, 12 A.S.R.2d 15 (1989).
In the present matter the grandparents are leading citizens in the community and are financially well off. We are satisfied that they undoubtedly have the superior financial resources to care for the child’s "present" needs. At the same time, we have no doubt about the strong love which they have for their grandchild. On the other hand, the natural parents are young and able-bodied; they are both gainfully employed and appear to be mature, responsible, and caring parents — indeed, the child remains in their care and custody during the school days. They also acknowledge that in the natural course of things the child would be their responsibility when the grandparents are no longer able to provide for the child. In these circumstances, we conclude that from the child’s point of view, her "future" needs would appear to be better secured by her remaining legally dependent on her own parents and that they remain legally obligated to provide for her.
This is not to say that adoption in accordance with Samoan custom may not continue to inure and that the grandparents may not continue to love and provide for the child. But a change in legal status is neither in the child’s best interest nor necessary to facilitate customary adoption. The petition is dismissed.
*51It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486015/ | *52For Defendant McDonald, William H. Reardon
Trial of this case took place January 16 and 17, 1992. The central issue is the resolution of plaintiffs Avas’ contention that the land involved, approximately 2.69 acres of a tract called "LALOFUTU" in the village of Pavaiai, is Ava communal land — versus defendants Logoai’s claim that this land is individually owned by Faaliliu Logoai and her children.
At the end of plaintiffs Avas’ evidence-in-chief, defendants Logoai, joined by defendant McDonald, moved for dismissal on the grounds that: (1) a jurisdictionally required certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy was not on file with this court and (2) plaintiffs Ava lacked standing to sue. The motion was taken under advisement while defendants presented their evidence. At the conclusion of the evidence when the case was submitted for decision, defendant McDonald withdrew his motion to dismiss with respect to the lack of a certificate. However, defendant Logoai’s motion to dismiss on this ground is still before the court.
Clearly, there is no certificate of irreconcilable conflict on file in this case. The requirement of these certificates in controversies over communal lands is legislated at A.S.C.A. § 43.0302. While it may ultimately be determined that the land in question is individually owned by the defendants Logoai and her family, defendants Avas’ assertion that this land is Ava communal land brings this statute into play.
Strictly, this action should not have been filed with this court without an accompanying certificate of irreconcilable conflict, but this requirement is procedural and may be corrected by the later filing of a certificate. The lack of a certificate however, is a jurisdictional mandate.
IT IS ORDERED that plaintiffs Ava file a certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy setting forth the events and the status of this controversy in conformance with A.S.C.A. § 43.0302(a) no later than 60 days after the date of this order.
This time period is established to afford sufficient opportunity to meet the 20 days notice of hearing required for each of the two (2) hearings that must be held to comply with A.S.C.A. § 43.0302(a).
*53If plaintiffs fail to timely file the mandated certificate of irreconcilable conflict, their action must be dismissed. If the certificate is filed, the court will proceed with the decision in this matter.
The standing to sue issue remains to be determined. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486017/ | On or about October 14, 1989, young Mercy Tuilesu died after she was run over by a bus. At the time of the accident, Mercy was only twenty-months-old. Her mother, Peleiupu Tuilesu, and her older siblings *61who survived her have filed this action against the driver, owner, and insurer of the bus. Plaintiffs claim damages for wrongful death under A.S.C.A. § 43.5001 and A.S.C.A. § 43.5002; the mother also seeks recovery under a "negligent infliction of emotional distress" theory.1
The only eyewitness to the accident testified that he had been a passenger on the bus but that he had earlier disembarked further up the road from the scene of the accident.2 He testified that he saw the bus stop to let off Mercy’s mother (who was returning from a shopping trip to Fagatogo with her sister and another young relative) and that he then noticed a group of children running across the road to the rear of bus; however, one particular child went underneath the bus from its left side just ahead of its rear set of wheels. The witness recalled that Peleiupu was still in the bus at that time exchanging money with the driver, while her sister was standing by the roadside. (The sister was the first to alight to take hold of one child whom she said she had seen running towards the bus.) The witness further stated that he then started shouting, trying to catch somebody’s attention, but his efforts were to no avail. He saw the bus pull out and then stop, and then he started running to the scene where he saw Mercy’s lifeless body.
Notwithstanding this eyewitness account, plaintiffs ask the court to draw a conclusion of negligence on the part of the driver. The inference sought is premised on the contention that the location of blood stains towards the middle of the road indicates that the child was alongside the bus when it pulled out and that if the driver had been keeping a proper lookout, he would have, or should have, noticed the decedent.
The evidence simply does not support such a conclusion. The Court viewed the scene and found nothing remarkably telling from the location of the blood stains (apparently marked by the investigating police *62officers) to suggest that the child may have been alongside the bus just before the accident. The accident occurred at a rather narrow part of the Aoloau/Aasu highway. We see no good reason to doubt the eyewitness’ recount of the fatal day’s events. Plaintiffs’ contention only invites speculation and we refuse to draw the conclusion suggested.
Considering the evidence before us, we fail to see anything reliable on which to base a finding of negligent causation. The evidence suggests that the only way the accident would have been avoided was if the driver had first checked under his bus before moving it. But the evidence failed to show that the driver knew, or should have known with the exercise of reasonable caution, that there was an infant under his bus. Rather the evidence points in the opposite direction. The child went under the bus when it was stopped and while the driver was momentarily preoccupied with collecting fares, and, it may be reasonably assumed, ensuring that his passengers were safely off the bus before he could move on. His attention would thus have been directed to the right side of the bus while the child’s perilous situation arose on the left, effectively outside of, and later hidden from, his view. In these circumstances we cannot conclude that there was a failure on the part of the driver to keep a proper look out.
We are mindful that the law imposes upon the motorist the duty to be extra vigilant when encountering children in order to prevent accidents, but at the same time, the law does not require the motorist to be an insurer of the safety of such children. The mere fact of injury does not give rise to strict liability without fault. See Matalogo v. Penitusi, 4 A.S.R.2d 46 (1987); Lauoletolo v. Setenaisilao, 14 A.S.R.2d 37 (1990). In our view, plaintiffs have failed to meet their burden of proof to establish negligence together with proximate cause. Accordingly, the complaint is dismissed and judgment shall be entered in favor of the defendants.
It is so ordered.
The details of plaintiffs’ claims were only learned at the time of trial. The complaint itself merely alleges negligent operation on the part of the driver and negligent entrustment on the part of the bus owner.
Although the witness testified that he was about 50 yards away from where the accident occurred, we noticed from our visit to the scene, after comparing the markings which the witness had made on a photograph of the vicinity produced in court, that he was more accurately about 200 yards away from the point of impact. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486018/ | MUNSON, J.:
This is a direct appeal following trial from a decree of divorce issued by the High Court of American Samoa, Trial Division (Kruse, C.J.; Tauanu'u, C.A.J.; Mata'utia, A.J.) in favor of respondent and appellee José Mañuel B. Rocha ("José") as to absence of desertion, and against petitioner and appellant Jeannette Penitusi Rocha ("Jeannette") as to adultery, habitual cruelty, and ill usage. Jeannette was awarded custody of their daughter born in 1985, $300 per month child support pendente lite, and $6,000 from the marital assets. She contests the equitable distribution of marital property and the predicate finding of fact as to the extent of the marital estate. José counters that the appeal is barred because Jeannette filed her motion for new trial one day beyond the ten days permitted, and on the merits argues that there is substantial evidence supporting the findings of fact and that the division is fair and equitable.
We conclude that we have jurisdiction over the appeal, and because the factual finding that the marital estate consisted of $12,000 cash was not clearly erroneous, that the judgment evenly dividing this property should be upheld.
ISSUES
1. Did Jeannette file her Trial Division motion for new trial or for reconsideration beyond the ten days permitted by T.C.R.C.P. 59(a) *65and A.S.C.A. § 43.0802(a), thus depriving the Appellate Division of jurisdiction?
2. Did the Trial Division err in its fourth factual finding that the marital estate consisted of $12,000 cash?
3. Did the Trial Division err in its fifth conclusion of law that Jeannette was entitled to $6,000 from José as her equitable distribution share of the marital assets?
PROCEDURAL HISTORY
Jeannette filed for divorce on December 28, 1989, based upon allegations of desertion and lack of child support. José filed a counter-petition alleging adultery, habitual cruelty, ill usage, and infliction of emotional distress and mental anguish. The case was tried on June 15, 1990, and a ruling was annoünced from the bench. Jeannette filed a request for findings of fact and conclusions of law. She also filed a motion for new trial or for reconsideration pursuant to T.C.R.C.P. 59(a) and A.S.C.A. § 43.0802(a). It was received by the Clerk’s Office on June 25, 1990, file stamped June 26, 1990, and originally set for hearing on July 17, 1990. The court issued its decision and order containing findings of fact and conclusions of law on July 19, 1990. The hearing of the motion was continued to August 6, 1990, at which time it was denied. Jeannette filed her statement of issues pursuant to A.C.R. 10(b)(3) on August 16, 1990, and her appellant’s brief on December 26, 1990. José filed his appellee’s brief on February 20, 1991. Jeannette filed her appellant’s reply brief on February 28, 1991. The parties are represented by the same counsel as at trial.
FACTS
José is a Portuguese national employed during the marriage as a fisherman on a purse seiner vessel. He left Samoa on four extended trips annually. José regularly sent money to his mother in Portugal. Jeannette used $10,000 to finance a trip to see her grandfather in Los Angeles and almost $7,000 to attend her sister’s graduation. The marriage ended when Jeannette accused José of deserting her during a three month fishing voyage starting November 1988 and leaving inadequate money for support while gone. At this time José learned that she had been cohabiting with another man in his absence, renting a house with him with money José had left her. When José received service of this divorce action on December 29, 1989, he immediately transferred *66$12,842 to his mother in Portugal.
At the time of trial, José had approximately $900 in a Portuguese bank account, the source of which is unknown. According to appellant, appellee’s mother had between $10,000 - $15,000 in a Portuguese bank account held for his benefit, excluding the last minute transfer of $12,842. He held legal title to the apartment in Portugal where his parents, brother, and nephews live. He held $6200 cash and $646 at a bank account in American Samoa, was owed $6500 - $6800 in accrued earnings, and owned a motorcycle he kept aboard the fishing vessel.
STANDARD OF REVIEW
Under A.S.C.A. § 43.0801(b), we review the decision of the Trial Division under the clearly erroneous standard. All disputed issues of fact not addressed in the judgment are presumed to have been resolved in favor of the prevailing party. The issue concerning appellate procedure is a question of law which is therefore reviewed de novo.
ANALYSIS
Appellate Jurisdiction
A.S.C.A. § 43.0802(a) provides: "Before filing a notice of appeal, a motion for new trial shall be filed within 10 days after the announcement of the judgment or sentence." The requirement of a motion for new trial or reconsideration of judgment is jurisdictional. Taulaga v. Patea, 17 A.S.R.2d 34 (App. Div. 1990). One of the purposes of the motion is to alert the trial court to possible errors or omissions in its opinion, so the reviewing court will not be left to speculate why the question was not addressed. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 150 (App. Div. 1988).
The ten-day period commences with the oral "announcement" of the judgment or sentence from the bench, if that is done, notwithstanding any subsequent written opinion, notice, or correction short of a new judgment. Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987).
At issue here is not when the judgment was "announced" or when the motion for new trial was due. The parties agree that the deadline was June 25, 1990. Rather, the point of contention is the meaning of the words "shall be filed" in A.S.C.A. § 43.0802(a). *67Counsel for Jeannette states that the motion was delivered to the office of the clerk on June 25, 1990, which is reflected by the "received” stamp. If a document is timely presented for filing, and for no apparent reason it is untimely filed by the clerk the next day, it must be deemed filed when presented. To dismiss an appeal due to circumstances beyond a party’s control and within the magisterial duties of the court would violate due process.
This issue was raised before the Trial Division, which implicitly rejected it by hearing the motion on its merits. The motion for new trial is deemed filed when presented to the clerk for filing, absent valid grounds for rejecting it, and the Appellate Division has jurisdiction over this appeal.
Marital Property
José confuses the issues and defends the court’s determination that the marital property consisted of $12,000 cash by incorrectly arguing that the High Court of American Samoa lacks jurisdiction over funds in Portugal, including $12,842 transferred to his mother upon receiving service of this divorce action. To the contrary, all assets of the marital estate are properly before the court and subject to its jurisdiction. While the court may not have jurisdiction to enforce an award of real property in another forum, such as an apartment in Portugal, so long as it has jurisdiction of the parties, it may make equitable distribution of the marital estate, taking into account the value of real and personal property belonging to the marriage, wherever located.
However, marital property does not include property which has been reasonably expended by one of the spouses for his or her own use or as a gift. Absent fraud, the $17,000 used by Jeannette for two trips to the mainland prior to this action and the $12,842 José transferred to his mother upon receiving service of this divorce proceeding are not marital property. Jeannette argues that the latter transfer was patently made to avoid inclusion in the estate, and must be disregarded. See Karr v. Karr, 628 P.2d 267, 278 (Mont. 1981).
José himself admitted that he transferred funds to keep Jeannette from getting them. He says that he was unable to save money while married, and seems to imply that Jeannette had spendthrift propensities. He also testified that the money was transferred to his mother as a gift.
In resolving issues of witnesses’ credibility, motive, and *68character, the Appellate Division is limited to the naked transcripts. "A written transcript is but a pallid reflection of what actually happened in court. It does not and cannot reflect demeanor, attitude, intonation, inflection, or personality." National Pac. Ins. Co. v. Oto, 3 A.S.R.2d 94, 94 (App. Div. 1986). Hence the presumption that such determinations by the Trial Division are correct unless clearly erroneous. A.S.C.A. § 43.0801(b); United States v. United States Gypsum Co., 333 U.S. 364 (1948).
In Karr, 628 P.2d at 278, the Montana Supreme Court, among numerous other contested factual questions, upheld a finding of the trial court that $12,000 taken out of a Montana bank account and placed in a Canadian bank certificate of deposit in the name of the couple’s children on the date the husband received the summons and divorce petition was in fact still property of the marital estate. The trial court in Karr found the husband to be
a highly unreliable, untrustworthy, evasive, intentionally confusing, studiously misleading and, on occasion, patently perjurious witness. His testimony, given upon discovery or at trial, on material facts, was therefore approached with the greatest caution, accepted in full only where clearly substantiated by other evidence and weighed lightly in the face of conflicting evidence.
Karr. 628 P.2d at 269. No such finding adverse to José’s credibility was made here. Indeed, Jeannette was found to be "at fault" in the marriage, which, although that does not bear directly on credibility as to this transfer, does reflect credibility findings as to other contested issues. Karr does not stand for the proposition that all last minute gift transfers must be disregarded. They very frequently will be, and Karr upheld the trial court in so doing under the facts of that case.3 But here, the Trial Division apparently believed José had made a valid gift to his mother. That he was motivated by the prospect of seeing his soon to be ex-wife fritter it away on her own personal use, where he thought it would be lost to him in any event, does not detract from the court’s acceptance that the transfer was a bona fide gift.
*69Likewise, the court seems to have interpreted José’s somewhat confusing testimony to the effect that the earlier transfers to Portugal were gifts, even if he could theoretically get back some benefit from them if he returns to Portugal to live or when his parents die. That some of the money was used to pay the mortgage of the apartment where his family in Portugal lives, but is held in his name, does not negate donative intent. The court did not address the approximately $900 in a Portuguese bank account José owned, but absolutely no testimony was given — José was not questioned — as to the timing or source of those funds. He did testify, however, that he had sent money home before being married. The presumption that property owned at the time of divorce is not separate property may be negated by testimony concerning gifts during marriage or transfers prior to the marriage.
The property held by José that the court seems to have decided to be property of the estate was the $6200 cash and $646 in an American Samoan bank account, $6500-$6800 in accrued earnings, and possibly the motorcycle kept aboard the boat. The court also took into account the $300 per month child support ordered pendente lite. While the assets arguably total at least $13,346-$13,646, taking into account this interim child support, the finding that the estate constitutes $12,000 is not clearly erroneous. Moreover, this finding of fact must be evaluated within the context of equitable property distribution.
Equitable Distribution
Consistent with the law in many jurisdictions, A.S.C.A. §§ 42.0209-.0210 authorizes the court to equitably distribute the property of either spouse, regardless of title, in a fair and just manner. Although the trial judge referred to "90 years of case law" as if under the impression an even split was mandatory, Jeannette has cited no American Samoan case law requiring a 50%-50% distribution. Nevertheless equity frequently dictates such a result.
The Trial Division did not dwell on it, but the record suggests that it found both parties somewhat lacking clean hands. Jeannette had spent $17,000 during the marriage on her trips to the mainland, used marital property to rent a house with another man and had been found "at fault" in the divorce. Unless the parties had been living separately for five years, the court was required to make a finding of fault. See A.S.C.A. §§ 42.0201-,0208; Wray v. Wray, 5 A.S.R.2d 34, 47 n.6 (Trial Div. 1987). Jose’s abrupt transfer of $12,842 at least appears improper. Yet in applying equity, the court had all the facts we have, *70plus the benefit of seeing and hearing the witnesses. Even if some of the predicate factual findings were slightly erroneous, such as the fact that $900 in the Portuguese bank account was José’s personal property, or the more significant amounts were not marital property, the court had an overall power and duty to arrive at a just result.
Perhaps the court was under a misapprehension as to its power over property in another country, but the record has not been cited to us for that point. Notwithstanding the possibility that these errors of law tainted the decision, the court was required to do equity. The division of property does not seem to us to be manifestly unfair.
Conclusion
The Trial Division did not err in considering Jeannette’s motion for new trial or for reconsideration on the merits. We conclude that the Appellate Division has jurisdiction over the appeal because the motion was presented for filing within the ten days set forth in T.C.R.C.P. 59(a) and A.S.C.A. § 43.0802(a). The factual finding that the marital estate consisted of $12,000 cash, while perhaps mistaken in some particulars, was not clearly erroneous. Even if this factual finding was in error, the equitable distribution of $6,000 from José to Jeannette was not manifestly unjust in view of the totality of the circumstances. The judgment of the Trial Division is AFFIRMED.
Although an issue was raised in the case as to whether the husband was subject to the personal jurisdiction of the Montana courts, Karr, 628 P.2d at 277-78, there was no doubt at all that the court had jurisdiction over the $12,000 moved to Canada, despite its location. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486020/ | The sole issue on appeal is whether the trial court’s award of damages, in the sum of $20,000 for the loss of vision in one eye, is inadequate. Appellant’s principal contention is "that the value of an eye should not be dependent on the cost of living in the place of residence of the injured ... it should be the same for everybody anywhere in the world." Appellant’s Brief at 3-4. Appellant argues that the trial court should have been guided by awards rendered in other American jurisdictions, and he cites a selective number of cases from state jurisdictions.
This is a normative argument. Not only have the damages *77awards in lost vision cases varied notably from case to case, see e.g. Annotation, Excessiveness or Adequacy of Damages - Awarded for Injuries to. or Conditions Induced in. Sensory or Speech Organs and Symptoms. 16 A.L.R.4th 1127, 1211 (1982), but "factors affecting damages are subject to wide variations between (sic) jurisdictions.” Leoso v. Seumalo, AP No. 37-84, slip op. at 2 (1984). As the Court recently explained in Kim v. Star-Kist Samoa, 8 A.S.R.2d 146, 151 (1988):
The disparity [in damage awards] from place to place is accounted for by many factors, including variations in the amount of goods and services that money can buy and in social attitudes toward pain. That trial judges in American Samoa tend to award lesser sums than those in Texas or California no more suggest that awards in Samoa should be higher than that those in Texas should be lower.
Looking fit the individual circumstances of the case before us, we cannot say that the award for the particular injuries suffered by appellant’s son and [heir effect upon him, was an abuse of the court’s discretion as the trier of fact. We AFFIRM. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486489/ | Order On Motion for Summary Judgment:
Plaintiff Sembawang Maritime Ltd. ("Sembawang”) has moved for summary judgment for approval and payment of custodia legis costs. Intervenor United States of America ("U.S.") partially opposed the motion. The Court regularly heard the motion on February 13, 1997. Counsel representing Sembawang, the U.S., and intervenors Hongkong and Shanghai Banking Corp. Ltd., TCW Special Credits, and K.S. Inc. and K.S. Motor Rewinding were present.
FACTS
On April 10, 1996, defendant F/V Don Juan Z was arrested upon Sembawang's complaint. This vessel was sold at auction on October 29, 1996. The U.S. was the successful bidder at that auction. Sembawang now seeks approval and payment of expenses for the care and maintenance of the vessel in the total amount of $62,711.04. Included in this amount is $5,175 in attorney's fees incurred in preserving the vessel and overseeing advance payment of custodia legis costs. The U.S. resists payment or reimbursement of the attorney's fees as not properly included as part of these costs.
DISCUSSION
Claims for costs incurred in securing a vessel while it is in custodia legis prior to judicial sale are recoverable from the proceeds of the sale and have priority over the litigants' claims. 46 U.S.C. § 31326; United Airlines Employee Credit Union v. M/V San End, 15 A.S.R.2d 95 (Trial Div. 1990). The principal qualification is that the services or goods for which payment or reimbursement is sought must be necessary for the care and preservation of the vessel and be for the common benefit of all parties who have a claim to the vessel. Oil Shipping v. Royal Bank of Scotland, 817 F. Supp. 1254, 1259-60 (E.D. Pa. 1993).
We agree with the U.S. that counsel for a plaintiff, in a case where a vessel is arrested, must protect his client's interests in arresting the vessel *195and prosecuting the claim. As part of these efforts, the attorney may spend time performing tasks which contribute to the preservation of the vessel. However, the apparent lack of precedent for thejinclusion of attorney’s fees as custodia legis expenses speaks volumes on the issue of whether the attorney’s efforts on this front are properly included as custodia legis costs. Attorney’s fees, in certain limited circumstances, may be awarded as an item of damages in an in rem action. See e.g., General Electric v. O/S Triton, 712 F.2d 991 (5th Cir. 1983). We, however, do not believe they are properly included as custodia legis expenses.1
CONCLUSIONS AND ORDER
The $5,175 listed as attorney’s fees are not properly custodia legis expenses and are therefore excluded. The other expenses appear proper, and since neither the U.S. nor the other intervenors oppose any of the other expenses, those expenses are approved for payment or reimbursement.
Sembawang is granted summary judgment for the approved custodia legis costs in the amount of $57,536.04, to be paid from the proceeds of the sale of the F/V Don Juan Z.
It is so ordered.
Moreover, even if attorney’s fees were included as custodia legis expenses, the fee statement provided by counsel fails to adequately disclose how many of the activities benefitted the vessel or the other creditors. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486491/ | Opinion and Order:
Plaintiff, American Samoa Power Authority ("ASPA"), brought this action to recover monies for a damaged turbine, purportedly insured by defendant, National Pacific Insurance ("NPI").
FACTS
ASPA is the local power authority in American Samoa which supplies the territory with electrical power. Its generation equipment includes turbines which are serviced and repaired under contract by an outside servicer, U.S. Turbine. When a turbine has to be shipped off-island for repairs, ASPA rents a temporary replacement turbine from U.S. Turbine.
In 1988 a problem developed with one of ASPA’s turbines which required its shipment off-island. ASPA rented a replacement turbine from U.S. Turbine. Its rental agreement with U.S. Turbine required ASPA to insure the rented turbine with All Risk Physical Insurance ("All Risk"). In pursuance of its rental obligations, ASPA sought a number of bid proposals from the various insurance companies and brokers on-island at the time, including NPI. NPI’s initial bid, put together by its reinsurer Munichre New Zealand Services Limited ("Munichre"), was not initially taken up by ASPA. Subsequently, however, ASPA did procure insurance for the rented turbine from NPI beginning in 1988, and renewed its policy with NPI on several occasions. However, neither ASPA nor NPI produced the 1988 vérsion of the insurance policy.
On May 24, 1991, the insured turbine broke down. On June 3, 1991, ASPA notified NPI of its imminent cláim. NPI denied the claim on the' basis of limiting language contained in the 1991 version of the policy ' which states that NPI was responsible for damage "due solely to the negligence of the American Samoa Power Authority or their employees." Both parties agree that the turbine break down was not due to the-negligence of either ASPA or its employees.
DISCUSSION
Although the 1991 insurance policy clearly contains the limiting language which would preclude ASPA’s claim, ASPA argues that 1991 policy did not embody the- iñsúrance agreement it had concluded with NPI. Accordingly, ASPA asserts three different basis for reformation of *203the policy: ambiguity, mutual mistake, and a quasi-fraud claim that the 1991 contract was changed from the initial policy which ASPA renewed.
First it must be stated that contracts of insurance are, as a rule, construed in accordance with general principles of contractual construction. See Asifoa v. NPI, CA No. 60-92, Slip Op. at 2 (Trial Div. Nov. 6, 1996). Terms in an insurance contract are taken in their plain, ordinary and popular sense. Id.
I. Ambiguity
When the language of an insurance policy is plain and unambiguous, the court must refrain from application of rules of construction in order to find coverage for a risk of loss not intended or contemplated within the contract. See Robertson v. Fowler, 475 S.E. 2d 116, 121 (W.Va. 1996). ASPA argues that the 1991 policy is ambiguous. Specifically, it argues that the limiting language discussed above is in conflict with Condition 3 of the policy which states that "the Insured shall at his own expense take all reasonable precautions and comply with all reasonable recommendations of the insurers . . . and comply with statutory requirements and manufacturer’s." ASPA argues that these two provisions, when read together, cover ASPA for its own negligence and that of its employee’s, yet requires ASPA to "take all reasonable precautions... to prevent loss or damage."
The language is plainly ambiguous, and as such the court can consider parole evidence on the issue of coverage. The oral parole evidence offered at trial was conflicting. ASPA’s witnesses testified that they had originally asked for and received an "All Risk" policy in 1988. NPI’s witnesses, on the other hand, stated that the coverage given in 1988 was the same as the coverage indicated in the 1991 policy. Specifically, Martin Kreft of Munichre, testified that he had issued the limited coverage that NPI’s manager at the time, Arnold Carter, had asked him to issue, and that the premium charged and paid was commensurate with'the limited risk insurance. Mr. Kreft’s produced copies of correspondence bearing 1988 dates between his office and Arnold Carter, which revealed discussions pertaining to a limited-ASPA negligence only-coverage proposal.
Coupled with the fact that the only actual policies in evidence all contain the limiting language, we are inclined to accept Mr. Kreft’s testimony as more persuasive regarding the extent of coverage initially issued by NPI to ASPA. In contrast, we find the somewhat vague recollections of ASPA’s contracting officer, Victor Stanley, to be less convincing. Mr. Stanley alluded to a written solicitation he had sent to NPI at the outset for "all risjk" insurance, but as it turns out, this writing is also non existent *204at this time. In these circumstances, we conclude that ASPA has failed to show by a preponderance of the evidence that the original and subsequent policies issued for the turbines were for "All Risk" insurance.
II. Mutual Mistake
ASPA also argues that the policy should be reformed based on mutual mistake. The proof required to reform a policy on the ground of mutual mistake must be more then a mere preponderance of the evidence. See e.g. Hanes v. Roosevelt Nat. Life Ins. of America, 452 N.E. 2d 357, 360 (Ill.App. 5 Dist. 1983); Polaroid Corp. v. Travelers Indem. Co., 610 N.E. 2d 912, 917 (Mass. 1993). At the same time, the mistake warranting reformation must be harbored by both parties, and not just one. The Restatement (Second) of Contracts § 155 (1981) states:
[w]here a writing that evidences or embodies an agreement in whole or in part fails to express the agreement because of a mistake of both parties as to the contents or effect of the writing, the court may . . . reform the writing to express the agreement.
Thus, reformation for mutual mistake requires a mistake by both parties, and must be proven by more then a mere preponderance of evidence.
NPI offered sufficient evidence, through the testimony of Martin Kreft, that the premium ASPA paid was commensurate with the level of protection under the 1991 policy, and that the limited coverage issued by Munichre was the one asked for by NPI's Arnold Carter. Full coverage would have apparently cost three times what ASPA was paying. It seems clear that NPI purposefully issued the 1991 policy at the level of protection, and for the premium, which appears in that written policy. ASPA, on the other hand, has not met its burden of proof on the issue of mutual mistake. If a mistake existed, it was unilateral, and the written terms of the policy will not be reformed to reflect ASPA's proffered revision.
III. Original Contract
ASPA also argues that, when renewing the policy, it was renewing the original "All Risk" policy. ASPA claims that NPI changed the terms of the policy without notifying ASPA and that the contract should be reformed to reflect the original policy which ASPA had believed that it was renewing.
The problem with this submission is again one of proof. Since ASPA has the burden of proof, It was incumbent upon ASPA to satisfactorily show *205that the original policy purchased was for "All Risk" insurance. However, as discussed above, ASPA failed to meet this burden. There was conflicting oral testimony about whether the original policy contained the limiting language; however, all of the written policies offered at trial contain the limiting language. The weight of evidence tips in favor of NPI.
Moreover, even if the policy had been changed, and we have no reason to believe that this was the case, NPI’s failure to read its policy does not warrant reformation. Absent special circumstances, a party may attack a contract on the grounds of fraud only when he has exercised due diligence in protecting himself from that fraud. See e.g. Vickers v. Roadway Exp., Inc., 435 S.E.2d 253, 254 (Ga.App. 1993). Here, ASPA failed to read, at the very least, its 1991 policy. At the same time, ASPA failed to offer any evidence that it had relied upon representations by NPI to the effect that the policy was "All Risk." Generally, where the failure to read the contract is induced by carelessness alone, no grounds exist for reformation or rescission. See e.g. Dombrowski v. City of Omer, 502 N.W. 2d 707, 710 (Mich. App. 1993), appeal denied, 506 N.W. 2d 871 (Mich. 1993). Only where it is shown that an insurer has agreed to renew a policy but in fact issues a new policy containing different terms, may the policy be reformed to read the same as the original policy. See Maryland Casualty Co. v. Kramel, 80 So.2d 897, 900 (La. App. 1955). However, as discussed above, ASPA failed to prove that the initial 1988 policy issued was for "All Risk" insurance.
CONCLUSION
There being insufficient evidence to find that the initial 1988 policy issued was for "All Risk" insurance, and since all of ASPA’s arguments rely on this presumption, they all fall with the finding that ASPA failed to prove that it originally contracted with NPI for "All Risk" insurance. Judgement will therefore enter for NPI.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486022/ | Per Curiam:
This petition is an interlocutory appeal in the midst of a continuing administrative process. On February 25, 1992, the Director of Human Resources wrote to petitioner Michael Sala, telling him that he is to be terminated from his job as Deputy Commissioner of the *81Department of Public Safety, effective March 28, 1992, and that he has been suspended until that date. Through his attorney, Sala then requested a hearing before the Personnel Advisory Board, granted on March 4, 1992, and is scheduled to be heard on March 16, 1992.
Sala raises numerous objections to the procedures leading up to his termination. These need not be addressed by the Court at this time, however, because of our determination that we do not have jurisdiction over this appeal.
An interlocutory appeal of an agency action or ruling is available only under A.S.C.A. § 4.1040(c), which permits such review "only if review of the final agency decision would not provide an adequate remedy."
Judicial review of the final decision of the Personnel Advisory Board will provide Sala with the "adequate remedy” required by A.S.C.A. § 4.1040(c). Thus, this appeal is unripe, and the Court has no jurisdiction to decide the merits of the case at this time. The petition is therefore DISMISSED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486023/ | Afoa Sanerive surveyed 3.43 acres of land in the village of Taputimu and offered the same for registration as the communal property of the Afoa family. His claim attracted the objections of others in Taputimu, including the Asi family, the Meleisea family, and the Si’i family. The Asi family also surveyed their claim, which roughly incorporates about half of Afoa’s claim. The resultant area of dispute between these two families encompasses an area of approximately 1.72 acres which is bisected by a secondary road referred to below as the Taputimu "loop road."
The trial court, while noting that "neither party had presented a particularly compelling case," slip op. at 3, found the evidence preponderating in favor of the Asi family with respect to that portion of the overlap west of the loop road’s median line (referred to below as the "strip"), and in favor of the Afoa family with respect to the remainder. Afoa and Asi both appeal these conclusions. The court also rejected Afoa’s claim insofar as it extended beyond that section of the loop road where it converges with the main Taputimu-Vailoa highway to the west-northwest. It appeared to the court that this part of Afoa’s survey encroached onto land belonging to the Meleisea and/or Si’i family. Afoa additionally appeals this aspect of the decision.
These are essentially appeals on the court’s findings of fact, which findings may not be set aside except for clear error. A.S.C.A. § 43.0801(b). Afoa contends that the decision below was clearly erroneous because the "preponderance of the evidence clearly favors [his] side," and that the trial court "failed to give proper consideration to a previous judicial determination." He claims that his testimony about the boundary *83location was more "clearly" presented while Asi’s key witness, his son Filiva’a, was, on the other hand, vague and uncertain.1 Similarly, the Asi family assigns error — arguing that their side had given "accounts of plantations and cultivations" on the area west of the strip even prior to the time Afoa made use of the area; that this evidence demonstrates "original and continuous occupation," while Afoa, on the other hand, failed to produce such evidence. They further argue that the court’s use of the loop road as a boundary between them and Afoa was arbitrary and without evidentiary foundation.
We first note that it is not the appellate court’s function to decide factual issues de novo. Indeed, where credibility is at issue, due deference must of necessity be given to findings of the trial court who had the opportunity to observe and listen to live witnesses. T.C.R.C.P. 52(a); In re Matai title "Tauaisafune", 6 A.S.R.2d 59 (1987); National Pac. Ins. Co. v. Otto. 3 A.S.R.2d 94, 95 (1986). At the same time, the findings of the court, for which there is substantial evidence on the record, will not be disturbed although the record might also reflect that substantial evidence was given in support of the appellant’s position. Suapilimai v. Faleafine, 9 A.S.R.2d 16 (1988). Thus, "[w]hether or not a dissatisfied litigant had himself presented substantial evidence is not. . . the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court’s conclusions." Moea’i v. Alai’a, 12 A.S.R.2d 91, 93 (1989).
After reviewing the record below, we are satisfied that there was substantial evidence on the record to support the trial court’s findings. It seems clear from the judgment below that the court looked to corroborative indices of actual use and occupation given the contradictory testimony. Asi’s version appeared to be more likely with regard to the strip; his family’s claim to use and occupation was partly supported by the fact that the strip contained the curtilage of one of their family homes.2
*84On the other hand, Afoa’s claim to the remainder of the overlap--to the land east of the loop road — was corroborated by his acknowledged use of this area; he not only raised chickens in this vicinity but he also allowed a third party have a plantation in this area for a number of years. The attempts by the Asi family to explain this anomaly by way of permissive use was simply not convincing to the trier of fact. The court explained:
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. . . .
Slip op. at 3. This is hardly clear error.
Additionally, Asi’s complaint about the delineation of the boundary line along the loop road also fails to impress. The court’s demarcation of the boundary as coinciding with the loop road is no more arbitrary than the Asi family’s own use of another part of the road to delimit their asserted claim. The line was drawn by the court according to the extent of each party’s possession. There is substantial evidence on record to sustain such a conclusion.
Finally, with regard to the objections of Meleisea and Si’i, the court had substantial evidence to find that Afoa’s possession extended only up to the edge of the main road. Among other things, Meleisea’s understanding of the boundary was corroborated by the understanding of other matai of Taputimu. Afoa’s favorable comparisons of his testimony against that of Chief Meleisea’s also fails to impress.
We AFFIRM the judgment below.
It is so ordered.
The senior matai of the Asi family, Asi Koki, was apparently infirm by the time of trial and not capable of testifying.
Afoa’s reference to a "previous judicial determination," is, at best, desperate. The reference is to an interlocutory order of the land and titles division enjoining an Asi family member from the construction of a septic tank that "possibly . . . may be [sic] situated on [Afoa’s] land." Afoa Sanerive v. Asi Sipusi, LT No. 42-80, (Order entered Sept. 8, *841980) (emphasis added). This matter never went to trial but was dismissed without prejudice on June 22, 1989, upon Afoa’s own motion. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486024/ | GOODWIN, J.:
Ernest Thompson appeals from summary judgment in favor of National Pacific Insurance (NPI) denying coverage for damage resulting *86to Thompson’s pickup, which was driven by Thompson’s intoxicated brother without Thompson’s consent.
Thompson is the owner of a pickup truck which was insured by NPI. While visiting the island, Thompson’s brother took the pickup truck without Thompson’s knowledge and became involved in a single vehicle collision. Thompson’s brother was cited and convicted of driving under the influence of alcohol and operating a vehicle without a valid driver’s license. NPI denied coverage based on the following exclusionary clause in the policy:
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.
The parties filed cross motions for summary judgment. There is no substantial dispute about the facts.
This court reviews a grant of summary judgment de novo, in the light most favorable to the non-moving party, to determine whether the trial court correctly found that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Water West, Inc. v. Entek Corp., 788 F.2d 627, 628-29 (9th Cir. 1986); Kraus v. County of Pierce, 793 F.2d 1105, 1106-07 (9th Cir. 1986), cert. denied, 480 U.S. 932 (1987).
The court construed the exclusionary clause of the policy as excluding property-damage coverage to any vehicle driven by a person under the influence of alcohol, whether or not the insured consented to *87that individual driving the insured vehicle.
On appeal Thompson contends that the exclusionary clause is subject to two interpretations, and accordingly, must be construed in favor of the insured. Gustin v. Sun Life Assurance Co. of Canada, 152 F.2d 447 (6th Cir. 1946); Boal v. John Hancock Mutual Life Insurance Co., 27 N.E.2d 555 (Ill. 1940).
Thompson suggests that an alternative interpretation of the exclusionary clause is that coverage will be found where the insured can prove that he did not consent to the use of the vehicle by the intoxicated driver.
The meaning of the exclusionary clause is neither ambiguous nor subject to dual interpretation. The plain meaning of "other person or party" as used in the policy refers to third persons. By definition, an "other person or party" excludes the insured. The term "insured" is used throughout the policy. The "insured" and "the Company" are defined in the opening clause of the policy as the parties to the contract of insurance.
Words used in a contract shall be given the meaning that common speech imports. Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U.S. 80, 85 (1934). As cited by NPI:
If there is no real doubt about what the parties to a contract intended, the rules of construction cannot be used to extend coverage beyond that reasonably and legitimately implied from the policy. The intent of the parties, if evident, must be enforced, and equitable considerations will not be employed to rewrite the terms of policy.
Fried v. North River Ins. Co., 710 F.2d 1022, 1025-26 (4th Cir. 1983). Despite Thompson’s protestations, language specifically excluding the insured is not necessary to clarify the plain meaning of the clause "other person or party. ”
Thompson next contends that the phrase "consent to the motor vehicle being driven or being in the charge of the person" requires that the insured give consent to the vehicle being driven by another. Under this argument, the lack of consent by the insured would result in a type of coverage that the insurer did not agree to write.
*88The trial court did not err in construing the exclusionary policy as limiting coverage to Thompson based on the fact that Thompson’s brother was intoxicated, whether or not Thompson consented to the use of the pickup by his brother.
The intent of the policy to exclude property damage coverage for the insured’s auto to intoxicated drivers is evident. This court declines to rewrite the terms of the contract. The judgment of the trial court is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486026/ | GOODWIN, L:
Carlton and Katherine Lindgren appeal from the judgment and order of the District Court of American Samoa, in favor of Ernest and Miriam Betham, finding that the Lindgrens were month-to-month tenants who used a personal residence and a refrigerator in the residence for commercial purposes and that the Bethams, as landlords, were entitled to an increase in rent to reflect the fair market rental value as commercial property.
The Lindgrens had a written lease for a residence owned by the Bethams, which terminated by its own terms in 1988. The lease restricted the use of the premises to residential purposes. After the expiration of the lease the Lindgrens continued to rent the residence on a month-to-month basis on the same terms and conditions as the original lease. The rental of the residence included a refrigerator. Because they had their own refrigerator, the Lindgrens did not use the Betham refrigerator in the kitchen. The Lindgrens operated a retail business and restaurant close to the residence. At various times the Lindgrens stored some of the perishables from their businesses in the Betham-owned refrigerator, first at the residence, and later in a storage facility. In addition to the storage of perishables in the refrigerator, the Lindgrens stored a few boxes of inventory from their business in the back of the rented house.
In February 1990, the Bethams went to the residence to survey the damage to the premises caused by Hurricane Ofa. On February 10, 1990, the Bethams notified the Lindgrens in writing that their tenancy was terminated immediately and that the refrigerator should be returned to the premises. The Lindgrens sent a letter acknowledging the termination of the tenancy and indicated that they would leave the premises at the end of thirty (30) days. The Lindgrens also requested some compensation for material used to protect the house during the hurricane. The Bethams responded with another letter demanding compensation for commercial use of the residence in violation of the original lease agreement.
The Lindgrens filed a claim with the small claims court and were awarded one half of their deposit. The Bethams then filed this action. The trial judge found that the Lindgrens had breached the terms of the original agreement by the use of the house to store and sort inventory.
*100The court awarded the Bethams an additional $100 per month rental for the premises and $50 per month for the commercial use of the refrigerator for a term of twelve months. The judgment was for $1,800.00.
The Lindgrens raise four issues on appeal. (1) The evidence does not sustain a finding of a material breach of the restriction on the tenancy. (2) The evidence does not demonstrate a commercial use of the refrigerator. (3) Even if there was a breach, the evidence did not support a monetary award in excess of nominal damages. (4) The amount of the increased rent was arbitrary.
This court reverses the findings of the trial court only if they are clearly erroneous. Meusy v. Montgomery Ward Life Ins. Co., 943 F.2d 1097 (9th Cir. 1991); Temengil v. Trust Territory of the Pac. Islands, 881 F.2d 647, 649 (9th Cir. 1989), cert. denied, 496 U.S. 925 (1990). A finding is clearly erroneous when the entire record produces the definite and firm conviction that the court below made a mistake. Oxford Properties & Finance Ltd. v. Minor M. Engle, 943 F.2d 1150 (9th Cir. 1991); Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978).
The Lindgrens admitted that they occasionally used the premises to store and sort inventory for their business. Moreover, the trial court found that the Betham refrigerator was seen being returned to the premises soon after the Bethams sent a letter demanding that the refrigerator be returned. The Lindgrens argue that the prohibition against "commercial use" of the premises should not restrict a limited amount of commercial work within the premises and that the prohibition must be interpreted to reasonably accommodate the concerns of the landlord and the general right of the tenant to do as he pleases on the property. The Lindgrens do not cite authority for this creative interpretation of specific restrictions on the use of real property.
When presented with a violation of a restrictive covenant, courts are obligated to enforce the covenant unless the complaining party can show that enforcement would be inequitable or contrary to public policy. Hartford Elec. Light Co. v. Levitz, 376 A.2d 381 (Conn. 1977). Where there is no ambiguity the courts will ascertain and give effect to the intention of the parties. Gino’s Pizza of East Hartford, Inc. v. Kaplan, 475 A.2d 305 (Conn. 1984); Hammonds v. Huddle House, Inc., 257 S.E.2d 508 (Ga. 1979).
*101When the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed. Hays v. Ottis Watson, 466 S.W.2d 272 (Ark. 1971). The covenant contained in the Betham-Lindgren lease restricting the use of the premises to residential purposes only is not ambiguous. The Lindgrens had notice of the covenant and had within their control the ability to comply with the covenant.
The Lindgrens demonstrate nothing on appeal from which this court can determine that the trial court was clearly in error when it held that the restriction prohibited the Lindgrens from using the premises for anything other than residential purposes. The Lindgrens admitted that the premises were sometimes used for other than residential purposes. There was sufficient evidence to find that both the premises and the refrigerator were used contrary to the restrictive covenant.
The Bethams requested from the court an increase of $200 per month for the use of the premises and $100 per month for the commercial use of the refrigerator. However, counsel could direct this court to nothing in the record to support any specific liquidated damages figure.
Damages for breach of a lease or a covenant in a lease, if any, must be proved according to general principles which determine the measure of damages on claims arising from breaches of other kinds of contracts. The amount of damages sustained need not be proven to an exact certainty, but the figure cannot be left to guesswork or speculation. See Johnson v. Cayman Dev. Co., 108 Cal. App. 3d 977, 983, 167 Cal. Rptr. 29, 32 (1980).
In this case, a judgment of $1,800.00 might have been reasonable if the Bethams had offered any evidence of damages. The Lindgrens breached the covenant restricting the use of the premises to residential purposes. Some increase in rent could have been supported by evidence of a reasonable difference in value between residential and commercial use in the neighborhood. However, in the absence of some proof of damage the court is not free to estimate what might be fair based upon the court’s own knowledge of the rental market. A judgment for a sum certain in money damages must be supported by some evidence in the record so a reviewing court will have something to review.
Given the circumstances of this case and the silence of the record on damages we are forced to conclude that the Bethams proved *102only nominal damages. They are entitled to damages in the nominal sum of one dollar and their costs and disbursements in the trial court. No party is to recover costs on appeal.
AFFIRMED as modified. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486027/ | MUNSON, J.:
This matter comes before the Court on appeal from the Trial Division.
Procedural History
Appellee Pacific Reliant Industries, Inc. (PACREL) brought suit against Paradise Development Company, Inc. (PDC), the Government of American Samoa (Government), and appellant Amerika Samoa Bank (ASB or Bank) in the Trial Division on December 28, 1988. Appellee sued the Bank on an irrevocable standby letter of credit, and sued PDC and the Government for damages for non-payment of $300,000 worth of building materials.
Paradise answered January 18, 1989, denying that any money was owing. The Bank answered on January 27, 1989, asserting various defenses, including estoppel, fraud, payment, failure of a condition precedent, and laches. Appellant Bank counterclaimed against appellee Pacific Reliant for attorney’s fees and costs stemming from a lawsuit *104brought in Oregon,1 and cross-claimed against Paradise Development. The claims against defendant Government have not yet been pursued.
Summary judgment was granted in Pacific Reliant’s favor against the Bank on February 1, 1990. An order denying appellant Bank’s motion for reconsideration was issued August 8, 1990.
Timely notice of appeal was filed by appellant Amerika Samoa Bank on August 13, 1990.
Facts
The trial court’s statement of undisputed material facts is set forth below:
The parties are not in disagreement on the essential facts; they disagree on what legal result should follow. [Amerika Samoa Bank] established on behalf of its customer PARADISE DEVELOPMENT COMPANY (hereinafter P.D.C.), its "irrevocable standby letter of credit" in favor of PACREL [Pacific Reliant] "for the account of Paradise Development Company, Inc., to the extent of Three Hundred Thousand and No cents ($300,000 U.S.)." As is standard in such situations, the letter of credit enabled P.D.C. to purchase construction materials from PACREL in Oregon by relying on the bank’s credit. The "standby" feature of the letter of credit means that the bank is not called upon to honor a draft until and unless, for some reason, the customer has failed to pay what it owes.
Two virtually identical letters of credit were issued, the first on August 12, 1987, and the second on October 19, 1987. The second was apparently issued because the first letter of credit expired in December of 1987, and P.D.C. anticipated requiring the use of the *105credit facility for a longer period. Accordingly, the second, or renewed, letter of credit contained the extended expiry date of March 15, 1988. Both instruments, which were drafted and signed by the A.S.B., contained the following provision: "This credit is subject to the uniform customs and practice for documentary credits (1983 Revision) International Chamber of Commerce Documents No. 400." Plaintiffs Exhibits A and B. The Uniform Customs and Practice for Documentary Credits, customarily referred to as the UCP or Uniform Customs, embodies an effort by international bankers at consensual regulation. Prepared under the auspices of the International Chamber of Commerce, the UCP reduces to codified form the customs and practices of the mercantile world relating to letter of credit transactions.
The business arrangement broke down early in 1988, when PACREL apparently did not receive payment for certain invoices. PACREL then attempted to fall back on the letter of credit, and on February 23, 1988 notified A.S.B. of the default on the invoices. It is unclear when exactly the first formal demand for payment was made to A.S.B. Exhibit El, a telex to A.S.B. from the Hong Kong and Shanghai Banking corporation of Portland, Oregon (PACREL’s bank, hereinafter the "Hongkongbank"), dated March 8, 1988, indicates that A.S.B. had received the documents by February 29, 1988. A.S.B.’s opposition to the motion for summary judgment claims that they were received on March 1, 1988. On March 9, 1988, the Hongkongbank telexed A.S.B. directing the latter’s attention to the requirements of the UCP — quoting in part from Article 16 (c), (d), and (e) — regarding the issuing bank’s duty to timely notify refusal and reasons of refusal or otherwise be estopped thereafter from claiming any deficiencies with the documents. A.S.B. did not respond until March 10, 1988, when it telexed the Hongkongbank that it would not honor the letter of credit because PACREL had not complied with the terms of the letter of credit. The nature, however, of the non-compliance was not specified. On the following day, March 11, 1988, the Hongkongbank *106informed A.S.B. by telex that it had received a letter by fax from P.D.C. (A.S.B.’s customer) accepting any and all discrepancies in the documents. On March 16, 1988, the day after the letter of credit expired, A.S.B.’s attorney wrote to Hongkongbank, in the "hope of clarifying the situation [presumably of dishonor] for your bank." The Court has reviewed the contents of this letter against the terms of the letter of credit and we are none the wiser as to the exact nature of the non-conformities giving rise to dishonor. However, in opposition to the motion for summary judgment A.S.B. has raised the claim that the documents presented by PACREL did not comply with the terms of the letter of credit in that a "copy" of the bill of lading was submitted when the "original" was required by the terms of the letter of credit. A.S.B. accordingly argues that a question of fact remains for trial. (If in fact the documents presented to A.S.B. conformed to the letter of credit requirements, then A.S.B. of course has no defense.)
PACREL on the other hand submits that it must nonetheless prevail even assuming for the sake of argument that the documents were at variance with the terms and conditions of the letter of credit. It contends that under the terms of the UCP, which were expressly incorporated into the letter of credit by A.S.B.’s own draftsman, A.S.B. was precluded from claiming that the documents were not in accordance with the terms and conditions of the letter of credit because of its failure to assert non-compliance in the timely manner as required by the UCP. Such failure, it is further argued, constitutes A.S.B.’s acceptance of any deficiencies.
Alternatively, PACREL also claims to prevail because A.S.B.’s customer P.D.C. accepted any deficiencies in its March 11, 1988 letter to Hongkongbank.
To these claims, A.S.B. raises two defenses: 1) PACREL does not have standing to make a claim based on the UCP; and 2) P.D.C. could not waive the deficiencies for the bank.
14 A.S.R.2d 41, 42-44 (1990).
*107Issues
1. Were there genuine issues of material fact, such that summary judgment in favor of appellee was inappropriate?
2. If there were not, did the trial court err in its application of the law?
Standard of Review
After a grant of summary judgment, the appellate court reviews the evidence and inferences de novo, in the light most favorable to the non-moving party, to determine whether the trial court correctly found that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Water West, Inc. v. Entek Corp., 788 F.2d 627, 628-629 (9th Cir. 1986); Kraus v. County of Pierce (Wash.), 793 F.2d 1105, 1106-07 (9th Cir. 1986), cert. denied, 480 U.S. 932 (1987).
In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision. United States v. Brian N., 900 F.2d 218 (10th Cir. 1990).
Summary Judgment Standard
Civil Procedure Rule 56 provides in part that a summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial." Celotex Com. v. Catrett, 477 U.S. 317, 322 (1986). There can be no "genuine issue of material *108fact" if there is a complete failure of proof concerning an essential element of the non-moving party’s case, since such a failure renders all other facts immaterial. Id. at 323.
"[Tjhere is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [trier of fact] to return a verdict for that party. ... If the evidence is merely colorable ... or is not significantly probative . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). The mere existence of some alleged factual dispute is insufficient — there must be a genuine issue of material fact to preclude summary judgment. Id. at 248-49. "As to materiality, the substantive law will identify which facts are material. * * * That is, while the materiality determination rests on the substantive law, it is the substantive law’s identification of which facts are critical and which are irrelevant that governs." Id- at 248. Summary judgment is appropriate "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. at 250.
Analysis
In its brief, appellant Bank argues both that there were genuine issues of material fact which precluded the grant of summary judgment and that the trial court misapplied the applicable law. The Court will address both contentions.
Alleged Factual Issues
Sprinkled throughout appellant’s brief are claims that there were genuine issues of material fact which the trial court improperly weighed and evaluated at the motion. "[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby Inc., supra, 477 U.S. at 249.
A review of appellant’s brief reveals that it cites the following as genuine issues of material fact: that although it was clear that appellant typed the letter of credit, it was not clear who actually drafted its terms; that appellee committed fraud; that despite the fact that the letter of credit was dubbed an irrevocable standby letter of credit, it was more in the nature of a commercial guaranty; that original bills of lading were required to be presented, not photocopies; that the invoice amount claimed was excessive; and, whether or not appellee was entitled to the *109full $300,000 amount of the letter of credit. The Bank’s claims are not supported with specific citations to the record or to any materials offered at the summary judgment hearing below.
Appellant’s assertions can be dealt with quickly. The party opposing summary judgment has the burden, once movant has put forward a prima facie case, of showing that there exists genuine issues of material fact which render summary judgment inappropriate. Appellant failed to do this. Rather, it is only now on appeal that appellant argues strenuously that genuine issues of fact existed. However, appellant does not direct the Court to specific areas of support in the record below where these purported issues were raised in opposition to the motion. As stated above, summary judgment law is now clear: once movant has met its burden, the non-moving party cannot either rest on its pleadings or hold back evidence or argue that such evidence will develop at trial. See, e.g., First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968).
Appellant’s assertions of genuine issues of material fact find no support in the record. In fact, appellant concedes those facts upon which the trial court based its decision. Such facts as may have been in dispute were not material to the motion and were unnecessary to the decision below.
Applicable Law
As a preliminary matter, we will address appellant’s contention that under UCP 16(e) appellee lost standing to sue on the dishonored letter of credit when its bank, rather than appellee itself, submitted the documents to appellant for payment. The trial court held that the mere fact that appellee’s bank had submitted the documents to appellant did not result in appellee’s bank’s thereby replacing appellee as the proper claimant. The court held, properly, that UCP 16(e) addresses only notice, and does not limit the issuing bank’s liability to the party which actually presents the documents. Also, as appellee notes, as an actual party to the letter of credit it certainly has standing to sue.
The October 19, 1987, document from appellant to appellee was typed on appellant’s letterhead and was titled "Irrevocable Standby Letter of Credit No. 87-1007." It stated, in pertinent part, the following:
Gentlemen,
*110We establish our irrevocable standby letter of credit in your favor for the account of Paradise Development Company, Inc., to the extent of . . . $300,000 available by your draft(s) at sight on Amerika Samoa Bank without protest to be accompanied by the following documents:
"Beneficiary’s signed statement,
Notice of default of invoice to Amerika Samoa Bank, P.O. Box 3790, Pago Pago, American Samoa."
Partial drawings will be allowed.
* * * Letter of credit is subject to the following provisions: 15 days after arrival of materials, presentation of invoices, and corresponding Bills of Lading or delivery order through Bill of Lading with copy of charter party. This irrevocable letter of credit is transferable and assignable.
This credit expires March 15, 1988.
This credit is subject to the uniform customs and practices for documentary credits (1983 revision) International Chamber of Commerce Documents No. 400. We hereby agree with the drawers endorsers and bona fide holders of drafts drawn under and in compliance with the terms of the credit that such drafts will be duly honored upon due presentation to the drawee.
The trial court found that appellant had failed to comply with UCP Article 16, subsections (c), (d), and (e), which were incorporated by reference into the letter of credit.
These subsections provide:
(c) The issuing bank shall have a reasonable time in which to examine the documents and to determine as above whether to take up or refuse the *111documents.
(d) If the issuing bank decides to refuse the documents, it must give notice to that effect without delay by telecommunication or, if that is not possible, by other expeditious means, to the bank from which it received the documents (the remitting bank), or to the beneficiary, if it received the documents directly from him. Such notice must state the discrepancies in respect of which the issuing bank refuses the documents and must also state whether it is holding the documents at the disposal of, or is returning them to, the presenter (remitting bank or beneficiary, as the case may be). The issuing bank shall then be entitled to claim from the remitting bank refund of any reimbursement which may have been made to that bank.
(e) If the issuing bank fails to act in accordance with the provisions of paragraphs (c) and (d) of this article and/or fails to hold the documents at the disposal of, or to return them to, the presenter, the issuing bank shall be precluded from claiming that the documents are not in accordance with the terms and conditions of the credit.
The trial court held that appellant had run afoul of subsections (c) and (d), which gave appellant bank a reasonable time to examine the documents presented to it by appellee in support of its demand for payment and, if appellant decided that the presented documents did not conform with the requirements of the letter of credit, to notify appellee of its decision not to honor the demand and to state with particularity the reasons for its decision.
The trial court found that appellant did not consider the documents and relay its decision to accept or decline them in a "reasonable time," as required by subsection 16(c). The UCP being silent on what constitutes a "reasonable time," the lower court relied on case law that provides that when the UCP is silent or ambiguous, analogous Uniform Commercial Code (UCC) provisions may be utilized. The UCC provides three banking days for an issuer of a letter of credit to honor or reject the request for payment. Here, the undisputed facts were that appellant received the demand for payment no later than March *1121, 1988, but did not telex its rejection until March 10th. The trial court found as a matter of law that this rejection was not done in a "reasonable time," thus preventing appellee from attempting to cure any legitimate deficiencies appellant Bank claimed. This common sense analysis was based on the fact that the "clock keeps ticking” in these situations, and the issuing bank must act in a reasonable amount of time to afford the party deemed not to be in compliance an opportunity to cure any specified deficiencies.
The trial court further found that appellant violated subsection 16(d) because its rejection failed to specify the claimed discrepancies and to state whether the documents were being returned to appellee or were being held until further directions from appellee. The trial court based its decision on these two failures by appellant.
However, the court also found that these failures by appellant would have precluded it from claiming non-compliance under 16(e) and that appellant’s customer, PDC, could waive any claimed deficiencies, thus obligating appellant to pay the $300,000 to appellee even if there were legitimate deficiencies in the documents presented for payment.
Because we believe the trial court’s decision on the first stated ground was correct and provided ample support for its decision, we AFFIRM, and do not consider the alternative grounds upon which the decision was based.
While it is true that an agreement which is ambiguous on its face is not appropriate for summary judgment, IBEW. Local 47 v. Southern California Edison Co., 880 F.2d 104, 107 (9th Cir. 1989), this agreement was not ambiguous. The letter of credit clearly and concisely set forth the conditions to be met by appellee before appellant was obligated to pay. Even if the agreement was unclear, ambiguities in a letter of credit are resolved against the drafter. Banque Paribas v. Hamilton Indus. Int’l, Inc., 767 F.2d 380 (7th Cir. 1985). Appellant offered nothing in support of its claim that someone other than itself actually drafted the letter of credit. Further, since the issuer of a letter of credit or its customer has the opportunity to draft any desired protections into the letter, a court will not infer added protections which were not clearly conveyed to the beneficiary. Atari, Inc. v. Harris Trust and Sav. Bank, 599 F. Supp. 592 (N.D. Ill. 1984), aff'd in part, rev’d in part and remanded, 785 F.2d 312 (7th Cir. 1986).
A standby letter of credit does not call upon the bank to honor *113a draft until and unless the bank’s customer has failed to pay what it owes or otherwise has defaulted on its underlying contract with the beneficiary. Temtex Products, Inc. v. Capital Bank & Trust Co., 623 F. Supp. 816 (D.C. La. 1985), aff'd 788 F.2d 1563 (5th Cir. 1986). Here, the uncontradicted evidence below shows that appellee had sought payment from PDC, appellant’s customer, and had not received payment within fifteen days after the arrival of materials, and the presentation of invoices and corresponding bills of lading by appellee to PDC. At that point, appellant was obligated to honor the draft or state its reasons for not honoring it.
A standby letter of credit requires only that the presenter deliver the correct documentation; it does not require actual proof of default. Security Fin. Group, Inc. v. Northern Ky. Bank and Trust, Inc., 858 F.2d 304 (6th Cir. 1988), as amended. 875 F.2d 529 (1989). Here, the letter of credit required from appellee beneficiary only a signed statement and a notice of default of invoice to appellant, both of which were submitted by appellee. Once appellee provided these documents, appellant was obligated to pay "without protest" the amount of the invoices up to $300,000.2
The distinction between a standby letter of credit and a true guaranty is that the letter of credit is a direct obligation to pay upon presentation of specified documents showing a default and the guaranty is a secondary obligation requiring proof of the fact of default. American Nat’l Bank & Trust Co. of Chicago v. Hamilton Indus. Int'l, Inc., 583 F. Supp. 164 (N.D. Ill. 1984), rev’d on other grounds sub nom. Banque Paribas v. Hamilton Indus. Int’l, Inc., 767 F.2d 380 (7th Cir. 1985). There can be no serious dispute that the "irrevocable standby letter of credit" was anything other than what it purported to be. Not only was it denominated as such, but its terms made it clear that appellant would honor it "without protest" upon presentation by appellee of the proper documents--a characteristic attribute of such letters.
The distinguishing feature of a letter of credit is the principle of the independence of the obligations under the letter of credit from any *114obligations stemming from the underlying transaction. Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464 (5th Cir. 1985). The issuer of a letter of credit cannot look to the underlying transaction to supplement or interpret the terms of the letter of credit. Ward Petroleum Corp. v. Federal Deposit Ins. Corp., 903 F.2d 1297, 1300 (10th Cir. 1990). Likewise, the issuer cannot look to a course of dealing or performance to justify dishonoring a facially conforming demand. Id. To the extent that appellant claims the course of dealings between the parties supports its position that this was not truly an irrevocable standby letter of credit, or that original bills of lading were required, those arguments find no support in the case law.
Where provisions of the UCP are expressly incorporated into a letter of credit, the bank which issued the letter is required to state all its reasons for dishonoring the credit when it is first presented. Kerr-McGee Chem. Corp. v. Federal Deposit Ins. Corp., 872 F.2d 971, 974 (11th Cir. 1989). If the bank fails to do so, it will be estopped from subsequently asserting other grounds. Id. Here, the UCP provisions were expressly incorporated into the letter of credit. Even appellant agrees that it failed to state any reasons for its decision to dishonor the credit. Although it is not necessary for deciding this appeal, we agree that the trial court’s decision could have rested on this ground as well.
The provisions of the UCP which preclude a bank from making an untimely claim that documents presented to it were not in compliance with the letter of credit are intended to give the presenter a chance to cure any curable defects. LeaseAmerica Corp. v. Norwest Bank Duluth, N.A., 940 F.2d 345, 349 (8th Cir. 1991). Here, appellant bank never specified the manner in which it found the documents not in conformity with the letter of credit. Even if it had stated its objections with specificity, it did so in such a manner as to prevent appellee from timely curing any defects.
In conclusion, the great weight of authority requires strict compliance (rather than substantial compliance) with the terms of the letter of credit. Id. (numerous citations). Requiring strict compliance with the terms of a letter of credit is not unfair:
Courts in this area are not dealing with widows and orphans. . . . There is no reason to bend the law of credits out of shape and to destroy an efficient commercial device to protect careless, less than diligent professionals. If they do not know the rules, let them *115eat the cake of compliance.
Dolan, Strict Compliance with Letters of Credit: Striking a Fair Balance. 102 Banking L.J. 18, 29 (1985).
FOR THE FOREGOING REASONS, the decision of the Trial Division is AFFIRMED in all respects.
Pacific Reliant originally brought suit in the United States District Court for the District of Oregon on April 21, 1988. That lawsuit was dismissed for lack of jurisdiction on December 5, 1988. The United States Court of Appeals for the Ninth Circuit affirmed the dismissal by order dated April 11, 1990. See Pacific Reliant Industries, Inc. v. Amerika Samoa Bank, 901 F.2d 735 (9th Cir. 1990).
It is undisputed that at the time the invoices were presented to appellant bank, the amount due was approximately $400,000. Thus, there is no question that appellant was obligated to pay to appellee the entire $300,000, and appellant’s argument that appellee is obligated to prove its damages need not be addressed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486028/ | MUNSON, J.:
This is a direct appeal following trial, from a judgment issued by the High Court of American Samoa, Trial Division (Kruse, C.J.; Tauanu‘u, C.A.J.; Mata‘utia, A.J.) in favor of appellees American Samoa Government, LBJ Medical Center, Dr. Salamo Laumoli, and Dan Noel (collectively "A.S.G."1) and against appellant Davoud Rakhshan ("Rakhshan") on his claim of wrongful failure to hire or breach of a prospective employment contract.
Rakhshan contends that there was a valid contract between Dr. Salamo Laumoli, who is an employee/agent of LBJ Medical Center, and himself, to hire him as a dentist at the dental clinic, and that A.S.G. breached this agreement.
We conclude that the factual finding that there was no such contract was not clearly erroneous and that the judgment should be upheld.
ISSUE
*117Did the Trial Division err in its finding that there was no breach of a prospective employment contract?
PROCEDURAL HISTORY
Three pro se cases filed by Rakhshan, CA Nos. 20-90, 103-90, and 109-90, were consolidated for trial. The action from which this appeal is taken, CA No. 103-90, is based upon allegations of wrongful failure to hire; the other two cases involved alleged wrongful detention by immigration officials. The court issued its opinion and order on July 5, 1991, finding no merit to Rakhshan’s claims. Rakhshan filed a motion for new trial or for reconsideration pursuant to T.C.R.C.P. 59(a) and A.S.C.A. § 43.0802(a) on July 15, 1991. The motion came before the court for hearing on July 29, 1991 (Kruse, C.J.; Mata’utia, A.J.; Logoai, A.J.), and was denied on that date. No appeal was taken from CA Nos. 20-90 and 109-90. Rakhshan filed his appellant’s brief in AP No. 14-91, appealing from CA No. 103-90, on October 17, 1991. No appellee briefs were filed by any party before or after the November 18, 1991, response date.
FACTS
The facts in this matter have been extensively set forth in the comprehensive consolidated opinion Rakhshan v. American Samoa Government, 20 A.S.R.2d 1 (Trial Div. 1991); see also Rakhshan v. Fuimaono, 18 A.S.R.2d 77 (Trial Div. 1991) (suit against former attorney); Rakhshan v. Immigration Board, 15 A.S.R.2d 29 (App. Div. 1990) (stay of deportation to Iran); Rakhshan v. Immigration Board, 13 A.S.R.2d 25 (App. Div. 1989) (stay of deportation); Rakhshan v. Immigration Board, 12 A.S.R.2d 72 (App. Div. 1989) (denial of ex parte petition for stay), so a brief summary will suffice.
Rakhshan is a national of Iran who first arrived in American Samoa under a temporary visitor’s permit on May 3, 1987, from the Philippines, where he had earned a degree in dentistry. In an attempt to remain in the Territory after the expiration of his permit he befriended Dr. Laumoli, Chief of Dental Services at LBJ Medical Center, and got him to sign a short letter on official letterhead for the purpose of securing an immigration permit. The letter falsely stated, "We are in the process of hiring Dr. Davoud Rakhshan to work here in American Samoa as a general practitioner dentist."
On that basis, along with the facts that he was permitted to *118"observe" at the clinic for five months without pay, and that he had various other contacts with the parties, Rakhshan contends that there was a valid offer of employment which was not honored. A.S.G. denied that any such offer was made, and the trial court did not believe Rakhshan.
STANDARD OF REVIEW
Under A.S.C.A. § 43.0801(b), we review the decision of the Trial Division under the clearly erroneous standard. A trial court’s findings of fact for which there is substantial evidence are not clearly erroneous and will not be disturbed on appeal, even though there is also substantial evidence in the record that would have supported a contrary finding by the trial court. Suapilimai v. Faleafine, 9 A.S.R.2d 16, 19 (App. Div. 1988). An appellant who seeks to overturn the trial court’s findings of fact on appeal bears the heavy burden of showing that these findings were clearly erroneous in light of the record. Toleafoa v. Tiapula, 12 A.S.R.2d 56, 57 (App. Div. 1989).
An appeal that raises no legal issues is an abuse of process. If brought by a lawyer, such an appeal would violate his or her duty not to bring a frivolous appeal. Leomiti v. Pagofie, 2 A.S.R.2d 97 (App. Div. 1986).
ANALYSIS
In an attempt to raise issues of law, Rakhshan breaks his appeal into four sub-issues concerning the non-existent contract: (1) offer/acceptance, (2) exchange of promises and formation of a contract, (3) breach of that contract by A.S.G., and (4) the trial court’s failure to acknowledge the existence of the contract. Quite simply, however, these "legal" issues are a reflection of the fact that the trial court did not believe Rakhshan’s testimony that he was offered a job, notwithstanding the letter to that effect and other evidence.
A mere disagreement with a trial court’s factual findings does not raise a legal issue. If an attorney had filed a frivolous appeal such as this one, he or she would be subject to monetary sanctions. However, because appellant is a pro se litigant who we believe is under a pending deportation order, it would not be appropriate to impose further punishment on him for abuse of process.
Parties such as A.S.G. who decline to file an appellees’ brief risk having their positions go unrecognized by the court. However, here *119the appellees evidently decided the appeal was so unmeritorious that it was not worth the time and effort to rebut. In this instance they were correct.
CONCLUSION
The function of an appellate court is to correct errors of law, and such errors of fact as are "clearly erroneous." A trial court may give conflicting testimony and evidence such weight as it deems fit. The determination by the trial court that it does not believe Dr. Rakhshan is not the proper subject of an appeal. The judgment is AFFIRMED.
Because the fictitious "Doe" defendants were not identified prior to trial, they have been stricken from the caption and are dismissed as defendants. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486030/ | KRUSE, C.J.:
*124A six-year-old boy was injured after he had run out onto the street and collided with a moving vehicle. He sued the driver of the vehicle, alleging negligence. At the conclusion of trial the court announced its decision from the bench. After first noting that the plaintiff had the burden of proof, the court concluded that the evidence presented had failed to establish negligence. The minor appeals, assigning error on the part of the trial court for "not applying the principle of res ipsa loquitur, and for accepting a false statement by Tony Mageo as proof that Appellee was not negligent." Appellant’s Brief at 1. The record, which is not lengthy, reveals that the accident occurred while appellee Tony Mageo was driving along the Pago Pago-Fagasa highway, apparently on his way to visit his brother. He testified that when he got to the vicinity of Peau’s store, he saw two children run out onto the highway, one chasing the other; that he stopped but the child, Leuma Iosia, ran into his vehicle breaking the side reflector which is towards the front; that he saw the child fall to the ground and then get up and run away again; and that the child was shortly thereafter taken to the hospital in appellee’s car. The record also reflects that when appellee was asked to estimate his speed, he testified that he was not in a hurry and that he was going uphill at 15 miles per hour.
The other eyewitness who testified was the injured child. However, it was rather obvious from the record that the child could not recall too much in the way of detail, save to the extent that he was being chased at the time by his older brother and that (depending on how counsel framed the question) he was either "hit by" or "collided with" appellee’s vehicle.
Appellant’s first contention is that there was sufficient evidence presented for the application of the doctrine of res insa loquitur and that the court’s failure to apply the doctrine was error. Assuming for the sake of argument that res insa loquitur was applicable, and that, therefore, an inference of negligence could have been drawn from the proof of injury and the surrounding circumstances, it does not follow that the court as the trier of fact was thereby required to draw such an inference. "The great majority of American courts regard res insa loquitur as no more than one form of circumstantial evidence. . . . The inference of negligence to be drawn from the circumstances is left to the jury. They are permitted, but not compelled, to find it." Prosser, Torts § 40 (5th ed. 1984). The Supreme Court noted in Sweeny v. Erving, 228 U.S. 233, 240 (1912), that
res insa loquitur means that the facts of the occurrence *125warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. . . . When all the evidence is in, the question for the [trier of fact] is, whether the preponderance is with plaintiff.
See also Johnson v. United States, 333 U.S. 46 (1947). In other words, the doctrine, when applicable, merely establishes a permissive inference of negligence which the factfinder is not required to adopt.
The standard for review of the trial court’s findings is clear error, A.S.C.A. § 43.0801(b), and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses, T.C.R.C.P. 52(a). A finding is clearly erroneous when the entire record produces a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364 (1948), reh’g denied, 333 U.S. 869 (1948).
The evidence of surrounding circumstances pointed to by appellant are: an entry in the police investigation report stating that appellee’s vehicle had "side wiped" [sic] the appellant; another entry in the same report estimating property damage at $20; a sketch drawn by the child (apparently before taking the stand) suggesting that he and his brother were in front of appellee’s vehicle; the extent of injuries suffered (appellant categorizes his injuries as "serious" and he submits that such injuries "could have been caused only by being hit or thrown to the ground with violence," Appellant’s Brief at 4); and testimony that appellee had seen the children but had failed, as found by the trial court, to stop.
This evidence is at best equivocal, if not tenuous and unreliable, and it seems that the court below gave it appropriate weight. We noted from the record that the two conclusionary entries contained in the police report remained unexplained and unsubstantiated (the "side swiped" entry appears to be the product of hearsay); that the pictorial produced by the minor and said to depict a frontal collision was not so explained, although the minor was called to testify (the court viewed the minor’s testimony as tending to support the appellee’s version of impact); and that *126the extent of the evidence for the claim of "serious injuries" was the testimony of the injured minor’s mother about miscellaneous lacerations about the facial area, some lost teeth, and a "broken" arm which was placed in a cast for "a week and three days.11 We are unable to conclude clear error on the part of the court for failing to make the permissive inference of res insa loquitur in the light of this circumstantial evidence.
Appellant’s other assignment of error is that the court relied upon a falsehood to arrive at its conclusion of no negligence. The argument is that the court had found that the appellant, contrary to his testimony, could not have come to a stop before the moment of impact; that since appellant had testified that he had seen the children beforehand, he had, in his failure to stop, also failed to comply with his statutory duty to "exercise due care to avoid colliding with any pedestrian upon any roadway, and to give warning by sounding the horn when necessary, and to exercise proper precaution upon observing any child or obviously confused or incapacitated person upon a roadway." (Appellant’s Brief at 4, quoting A.S.C.A. § 22.0406). The immediate problem with this contention is that it necessarily presupposes, as a given fact, that appellant had the time to stop or take evasive action to avoid a collision. The record does not exactly reflect this; however, it is implicit in the trial court’s decision that the occurrence arose suddenly before the driver had time to take evasive action. Certainly there was substantial evidence to sustain such a finding.
We cannot say that the record leaves with us a definite and firm conviction that a mistake has been made. Indeed, our review of the record leads us to the conclusion that the evidence taken as a whole provides substantial support for the trial court’s finding of no negligence. We AFFIRM. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486031/ | KRUSE, C.J.:
Appellant, Falefatu Fa’amaoni, was convicted of Sexual Abuse in the First Degree and sentenced to a term of imprisonment for a period of five years. Execution of sentence was suspended and the appellant was placed on probation for a period of five years, subject to a number of conditions. Contending that certain conditions of probation imposed upon him were illegal, appellant filed his motion for reconsideration of his sentence some 90 days' after the announcement of sentence. *128However, the territorial statute which governs appeals in criminal matters, A.S.C.A. § 46.2402, provides:
The following procedure shall apply to appeals taken to the appellate division of the High Court:
(a) Before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence.
(Emphasis added). The statutory language is very plainly mandatory and the requirement of a motion for new trial or reconsideration of judgment or sentence within ten days is jurisdictional.1
Notwithstanding, appellant cites H.C.R.Cr.P. 35, which provides that "[t]he court may correct an illegal sentence at any time," and he urges a reconciliatory reading of the statute. Appellant contends that "it would be bad precedent to read A.S.C.A. § 46.2402(a) so restrictively so as to defeat the purpose and policy behind rule 35 and the territorial legislature’s desire that the local rules conform to the federal rules." Appellant’s Brief at 3. The legislative desire alluded to is that embodied in A.S.C.A. § 46.0501. This enactment reads:
Except as otherwise enacted in this Code, by rules adopted by the Chief Justice, the criminal procedure in the High Court shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure.
Although there is perhaps something to be said about the suggestion, it is quite clear that the Chief Justice’s rule making authority under A.S.C.A. § 46.0501 does not include the power to amend unambiguous legislative enactments setting out the prerequisites to appeal. Secondly, A.S.C.A. § 46.0501, by its own terms, is limited to situations not "otherwise" covered by the Code. Thus, T.C.R.Cr.P. 35 is in conflict with the provisions of A.S.C.A. §§ 46.2402(a) and 43.0802(a). As correctly explained by the court below:
*129Rule 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. § 43.2402(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 by 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 generally American Samoa Government v. Tile, 8 A.S.R.2d 120 (1988).
Since there was no timely motion for reconsideration or new trial within the statutory ten-day deadline, we have no jurisdiction to entertain this appeal-regardless of any arguments, equitable or otherwise. See Judicial Memorandum No. 2-87. 4 A.S.R.2d 172, 174 (1987). We accordingly dismiss.
It is so ordered.
See, e.g., Taulaga v. Patea, 17 A.S.R.2d 34 (1990) (construing A.S.C.A. § 43.0802(a), which employs the exact language contained in A.S.C.A. § 46.2402(a)); see also Judicial Memorandum No. 2-87. 4 A.S.R.2d 172 (1987). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486032/ | RICHMOND, J.:
*2The appellant was awarded the title in 1985 by the Land and Titles Division of the High Court, in Aoelua v. Tagoa’i, MT No. 01-85 (1985), aff’d, AP No. 20-85 (1986). He then went through a title-investiture ceremony in which he and Manu Lealai were presented to the village council as joint titleholders, even though appellant alone was selected as the sole and legitimate titleholder.
*1This appeal is from a decision of the Land and Titles Division granting appellees’ petition to remove the matai title "Aoelua" from *2appellant. The appellees, members of the Aoelua communal family, sought the removal based on A.S.C.A. § 1.0411, which provides for removal of matai titles for cause, and A.S.C.A. § 1.0412, which provides for removal of matai titles for absence from American Samoa for more than one year.
Since 1987, the appellant has resided in Tacoma, Washington. The appellant has testified that he left the territory in pursuit of his wife’s education in order for her to qualify as a registered nurse. The appellant estimates that this education will take between two and four years to complete, but he admits that she has not yet begun the schooling and will not begin until they earn sufficient funds for the tuition.
The trial court found that Aoelua had been absent from the territory for more than one year. The court then examined the reasons for this absence and the wishes of the family, in order to determine whether to exercise its discretion, available to the court under A.S.C.A. § 1.0412(a), to permit the matai to retain the title despite his absence. The court also considered the appellant’s acquiescence with the illegal investiture and use of the title by Manu Lealai. The trial court decided not to exercise its discretion and ordered the removal of the title.
The appellant now argues both that the appellees did not have standing to petition the court for his removal because they did not prove that they were actively serving the matai and family, and that he has not been "absent" from the territory for more than one "continuous" year because he has returned to American Samoa at least once every year.
The appellant’s contention that the appellees did not have standing to bring the petition must fail. This requirement of active service is necessary to petition for removal for cause, under A.S.C.A. § 1.0411.1 While the appellees did petition for removal under this *3provision, they also petitioned under A.S.C.A. § 1.0412, which only requires that the petitioner be a "member of the family of the absent matai. "2 The petition was granted by the trial court pursuant only to the latter statute; the court made no findings or decisions with regard to the former statute. The trial court did find that petitioner Samuelu Aoelua is a member of the Aoelua family, and the appellant did not contest this finding on appeal. Thus, appellee Samuelu Aoelua, who filed the petition on behalf of appellees, had standing to bring the petition under A.S.C.A. § 1.0412.3
The appellant also argues that the trial court should not have weighed the wishes of the appellees when considering the "wishes of the family actively serving the matai," A.S.C.A. § 1.0412(a), in the court’s decision on whether to exercise its discretion to permit the appellant to retain his title. Instead, the appellant asserts that the support of other family members, who are actively serving him, should have been considered. The appellant’s claim that none of the appellees are actively serving the matai is, as the trial court stated, unjustified. His residence thousands of miles from the village makes traditional service to him by the family as a whole virtually impossible. The trial court did find that a substantial number of the appellees are actively participating in family affairs, which the trial court found sufficient to warrant its consideration.
Yet, even if the appellant were correct, we could not say that the trial court abused its discretion. The statute says that the court "may consider" (emphasis added) the wishes of the family actively serving the matai. This is not a mandate, but merely the opportunity for the court *4to consider these wishes, if it believes the situation warrants its discretion. For the trial court not to have considered these wishes cannot be an abuse of its discretion.
Finally, the appellant argues that he was never "absent" from American Samoa for one "continuous" year. The statute states that "any matai absent from American Samoa for more than 1 year" may be removed upon petition. A.S.C.A. § 1.0412(a). "Absent" is generally defined as "not present; away." New Webster’s Dictionary of the English Language at 6 (college ed. 1974). Within the context of A.S.C.A. § 1.0412, this logically means away from American Samoa. The appellant testified to voting by absentee ballot and to being registered as an absent resident. While these acts may show that the appellant is still a resident of American Samoa, neither supports his argument that he was not "absent"; to the contrary, they lend support to the idea that he was away from the territory.
A.S.C.A. § 1.0404, which governs eligibility to claim or object to matai title succession, provides useful guidance by analogy to a court’s attempting to determine whether or not to exercise its discretion to permit the matai to keep the title despite his absence. That section provides that, to be eligible to claim or object to the succession, a person must have resided in American Samoa for one calendar year preceding the claim or objection. The section goes on to permit a bona fide resident who is absent from the territory for specifically listed reasons to register as an absent resident and thus be treated for the purposes of that statute "as if he actually resided in American Samoa." One such reason is "attendance at an education institution." These reasons for absence may guide a court when determining whether to use its discretion.
The trial court’s refusal to exercise its discretion was not an abuse of discretion, however, even though appellant’s claimed reason for the absence is the education of his wife.4 First, these reasons, which are not mandated by the relevant statute, A.S.C.A. § 1.0412, are merely guidelines for the court, not a requirement that any matai who meets them must be permitted to keep his title. Second, appellant has not met these guidelines, which specify "attendance at an educational institution," *5because appellant’s own testimony indicates that his wife has not yet begun to attend an educational institution.5
The trial court also correctly considered the effect of the appellant’s absence. In his absence, an unregistered co-holder has been permitted to hold himself out as Aoelua. Appellant’s acquiescence to this illegal use of a matai title would presumably continue until the legitimate matai returned, but even if it did not continue, its occurrence in the first place is an appropriate factor for the court to weigh.
Lastly, the statute does not require one "continuous" year of absence, but merely "more than 1 year." This statute is based on the needs of both the matai and the family to remain in close touch.6 The trial court accurately stated:
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.
While the appellant may have returned for short, occasional visits during his residency in Washington, the trial court decided, as a factual matter, that these visits did not constitute a "continuing presence" sufficient to meet the purpose of the statute. We are unable to say that such a decision is clearly erroneous, and we therefore AFFIRM.
A.S.C.A. § 1.0411(a) provides:
*3A matai may be removed by the High Court upon a petition for removal filed in the High Court by 25 blood members of the matai’s family, over 18 years of age, who at the time of the petition are all serving the matai and family according to Samoan custom.
A.S.C.A. § 1.0412(a) provides that: "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.” (emphasis added).
This Court does not decide whether petitioners would have standing under the other portion of their petition.
The Court makes no findings here that the education of a spouse qualifies as a reason for absence under A.S.C.A. §1.0404(b) for the purposes of either A.S.C.A. § 1.0412 or A.S.C.A. § 1.0404.
This seems to indicate that appellant was incorrectly registered as an absent resident, because he did not meet the statutory requirements. This matter is not before the Court at this time, however.
See, e.g., Galu v. Mariota, 1 A.S.R. 461, 463 (1932) ("the court does not feel the interests of the family can be well served by a matai who does not live in the Village where the family of which he is the matai has its situs"). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486033/ | GOODWIN, J.:
This matter comes before the Appellate Division on an appeal consolidated from the Land and Titles Division, LT No. 18-90, and from the Trial Division, CA No. 87-88.
PROCEDURAL BACKGROUND
The Appellant, Nelson & Robertson, ("N&R''), the Diocese of Pago Pago ("the Diocese") and Shantilal Brothers, Ltd. ("Shantilal") were among the creditors of KMST Wholesale. Shantilal secured a judgment against KMST in the Trial Division for $41,689.76 in December of 1988. Shantilal then secured a writ of execution for its judgment in December of 1989 and proceeded to hold a sale of KMST’s inventory. The auction was held in January of 1990. A total of $25,800.00 was recovered.
Meanwhile, in March of 1988, N&R had recorded a chattel mortgage on "all of [KMST’s] inventory." The chattel mortgage covered debts owed N&R by KMST in excess of $212,000.00. The mortgage was properly recorded. It purported to mortgage the following property:
(a) Inventory. All of Mortgagor’s inventory, including all goods, merchandise, raw materials, goods in process, finished goods, other tangible personalty now owned or hereafter acquired and held for sale or lease, furnished or to be furnished under contracts of service, or used or consumed in the business of Mortgagor.
(b) Equipment, Fixtures, Furniture. All of Mortgagor’s furniture, machinery, apparatus, appliances, tools, supplies, materials, trade and other fixtures and equipment, including automotive equipment, now owned or hereafter acquired, together with all substitutions therefore and additions and accessions thereto and parts needed or intended to be used therewith.
(c) Other. All goods, instruments, documents of title, policies and certificates of insurance, securities, deposits and other property owned by *8Mortgagor or in which it has an interest which are now or may hereafter be in possession or control of Company by documents of title or otherwise.
(d) Proceeds and Products. All proceeds and products of all of the above, including without limitation insurance proceeds and proceeds of condemnation by paramount authority; all of the foregoing described property being hereinafter referred to as the "mortgaged property."
In March of 1990, the Diocese secured a judgment against KMST for $4,400.00. The combined cases pose the question of whether a general chattel mortgage which purports to cover everything a debtor owns is valid against the judgments of Shantilal and the Diocese, both obtained after the mortgage was filed.
The trial court held that the property description in N&R’s chattel mortgage did not comply with A.S.C.A. § 27.1510 and so was insufficient as to invalidate the mortgage, thereby making N&R an unsecured, rather than a secured, creditor.
STANDARD OF REVIEW
Because the trial court’s judgment presents a legal question that requires interpretation of law, this Court reviews the issue de novo. In re Daniel, 771 F.2d 1352, (9th Cir. 1985), cert. denied 475 U.S. 1016 (1985).
DISCUSSION
At issue is the interpretation of American Samoa Code § 27.1510, entitled "Validity of mortgage, bill of sale, etc."1 That law *9requires that there be a "specific description" of the mortgaged property. The trial court held that N&R did not sufficiently identify the mortgaged property. The general description, quoted supra, failed under A.S.C.A. § 27.1510.
The decision of the Trial Division was rendered in three parts. First, an Opinion and Order stated that N&R’s mortgage did not cover any particular chattel. This was fatal to its security interest because the Court held that this was not "specific."
Later, the Court revisited the issue in an Opinion and Order on Reconsideration. In that Opinion, the Court explained, "while the [above quoted] language is arguably a ’description’ of sorts, it certainly does not contain a description of any ’specific’ article or articles, as our statute requires." The Court reasoned that the word "specific" required that a description by class did not suffice; the Court said, ”[I]ndeed, a reference to ’all’ of a general class of things would appear to be the very opposite of a ’description’ of a ’specific’ thing."
Finally, in an Opinion and Order in the Land and Titles Division, the Court reasoned simply that the mortgage contained no specific description, and so failed as a mortgage.
Appellant argues that to uphold the trial court decisions would effectively eliminate inventory financing in American Samoa. Appellees concede the point and argue that this is the concern of the legislature. The trial court said the statute requires a description of every item covered and only the legislature can rewrite the statute. We agree.
The argument of the Appellant should be addressed to the legislature. So long as every chattel mortgage must specifically describe each item covered, inventory financing is not, as a practical matter, available in American Samoa.
*10The parties make note of the fact that American Samoa has not adopted the Uniform Commercial Code. Appellant is urging an interpretation of A.S.C.A. § 27.1510 consistent with a UCC interpretation. Appellees argue that the UCC interpretation, if desirable, should be made by the legislature, rather than by this court.
We agree and AFFIRM the judgments challenged by these appeals.
The text of the law at issue reads:
No mortgage, bill of sale, conditional sales contract, deed of trust or conveyance of personal property which is not accompanied by a personal delivery thereof to the vendee is valid as to persons who do not have actual knowledge thereof unless all of the following conditions are met:
*9(1) it is in writing signed by the person to be bound and attested to by at leas one witness;
(2) it is filed with the territorial registrar within ten days after its execution
(3) it truly states the consideration upon which it was based or the debt o liability which it was intended to secure, and contains a description of th specific article, articles, or land sold or mortgaged. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486034/ | RICHMOND, J.,
dissenting:
I would reverse the decision of the trial court and remand this case with directions to recognize the validity of the appellant’s prior, recorded chattel mortgage with respect to appellees’ judgment-creditor status and to accordingly distribute the proceeds of the execution sale of KMST’s property.
As the trial court and the majority of this court recognize, their decisions will bring consternation to inventory financing in the Territory unless and until there is corrective legislation. It would be a practical impossibility to update a chattel mortgage with specific descriptions of every item of the inventory of a functioning business every day; as such, chattel mortgages have effectively been eliminated in American Samoa, for the time being. It should not be necessary and is not appropriate to inflict this harsh restriction, however temporary, on business practices in the community.
The majority rule under common-law and pre-Uniform Commercial Code statutes clearly upholds "all" of a certain kind or type of mortgaged personal property as sufficiently specific. A description in this manner in a recorded chattel mortgage, even if inquiries are necessary to fully identify the property, adequately notifies subsequent creditors of the encumbrance. Security First Nat’l Bank v. Haden, 211 Cal. App. 2d 459, 27 Cal. Rptr. 282, (1962); Evans v. Stewart, 66 N.W.2d 442 (Iowa 1954); First Nat’l Bank v. First Nat’l Bank, 106 So. 422 (Fla. 1925); In re Beede, 126 F. 853 (N.D.N.Y. 1903); see also cases cited in Annotation, Sufficiency of Description in Chattel Mortgage as Covering All Property of a Particular Kind, 2 A.L.R.3d 839, 840-51 (1965). For inventory financing, particularly when, as here, "all" of the inventory is mortgaged, the instrument itself does raise the inquiries necessary to discover the exact scope of the mortgage and thus adequately notifies third parties of the mortgage. When subsequent *11creditors have actual notice of a prior recorded chattel mortgage, the majority rule is even more universal. Annotation, supra, 2 A.L.R.3d at 850-51.
Reversal, in my view, would not violate any principle leaving policy-making to the Legislature. As the court stated in Bennett v. Green, 119 S.E. 620, 622 (1923), "[a] general description of this kind is tantamount to a specific description of each unit composing the whole." Such a description of "aH" of a particular thing actually makes it easier for a subsequent creditor to determine what is mortgaged than if only some (or all) items are specifically described, because a creditor need not determine which of the particular items are mortgaged, and which are not — they all are.
Additionally, the other territorial recording statutes, A.S.C.A. §§ 37.0210 and 37.1002(b), embody the concept of constructive notice through recordation in land-alienation and mortgage transactions. Consistency would indicate a similar legislative intent with respect to inventory and other business financing using personal property as security, but the majority’s interpretation makes the description and the notice it affords into a substantive requirement that voids the mortgage even between the parties themselves. This narrow and crippling construction is unnecessary. Interpreting the statute to permit a mortgage of "all" of a particular thing, such as inventory, is plausible under the statute as it is written, is a much more practical construction of the Legislature’s intent, and is more consistent with other territorial recording statutes.
Perhaps those involved in the legislative process will quickly take up the banner of reform. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486035/ | Amended Order Dismissing Appeal:
The previous order dismissing this appeal was for failure to timely file an appellants’ brief. In this case, however, the appellants’ brief was never due because the appellants failed to perfect this appeal by complying with the requirements of Appellate Court Rule 10(b). The appeal is therefore dismissed in accordance with Appellate Court Rule 10(b)(5).
Regardless of the arguments submitted by these appellants that they are awaiting the continuation of a hearing, within ten days after receiving the reporter’s or clerk’s estimate of the cost of the transcript, *13all appellants are required either to file with the clerk of the court a written order to the reporter for a transcript of all or part of the proceedings, or to file a certificate that no parts of the transcript are to be ordered. A.C.R. 10(b)(1). The reporter’s estimate in this case was filed on April 1, 1991, and the written order or certificate was therefore due on April 11, 1991. Instead, it still has not been filed over one year later. Under A.C.R. 10(b)(5), the appellate division may, on its own motion, dismiss the appeal for failure to comply with Rule 10(b)(1), and hereby does so.
Even if the certificate or order for the transcript had been timely filed, however, the appeal would still be dismissed for lack of jurisdiction. In order for the appellate court to have jurisdiction over an appeal, a motion for new trial or for reconsideration must be filed within ten days after the announcement of the judgment or sentence, and within ten days after the denial of that timely motion, the notice of appeal must be filed. A.S.C.A. § 43.0802; Taulaga v. Patea, 17 A.S.R.2d 34 (1990); Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). Only if both of these requirements are met does this Court have jurisdiction to consider the appeal.
In this case, the announcement of judgment was on August 6, 1990, and the earliest motion for reconsideration was filed on September 10, 1990, 25 days too late. A second motion for reconsideration was also filed beyond the ten-day limit. This latest motion for reconsideration, to reconsider the denial of the earlier motion for reconsideration, was denied on February 5, 1991, and the notice of appeal was then filed on March 22, 1991, 35 days too late, even using the latest denial date.1 Thus, even viewing the filing dates in the light most favorable to appellants, which the Court is no longer inclined to do in this case because of the continued abuses of the judicial process, both motions were untimely, and the appellate court never acquired jurisdiction over these proceedings. The decision of the trial court is therefore final and unappealable, and any further attempts to continue appealing essentially the same decision may be met with appropriate sanctions by either the appellate court or the trial court.
*14For these reasons, the appeal is dismissed. It is so ordered.
For further explanation of the convoluted history of this case, see Fuimaono v. Toluao, LT No. 12-87 ("Memorandum Opinion and Order on Motion for Reconsideration of Denial of Motion for Reconsideration or Relief from Judgment," issued Feb. 12, 1991). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486036/ | On Plaintiffs Motion for Partial Summary Judgment:
FINDINGS
There are no genuine issues as to the material facts forming the basis for plaintiff Michael R. Sala’s present motion for partial summary judgment, under T.C.R.C.P. 56, heard on April 15 and 20, 1992. The motion seeks to obtain his compensation as an employee of defendant American Samoa Government (Government), beginning February 26, 1992, the date of his suspension without pay pending removal. The facts are as follows:
1.Plaintiff is a career-service employee of the Government. On November 15, 1991, he held the position of Deputy Commissioner in the Government’s Department of Public Safety. His duties included the functions described in paragraph 4 of these findings.
2.On November 15, 1991, the Commissioner of Public Safety served plaintiff with Commissioner’s Office Memorandum No. 61-91, entitled "Notice of Charges Re Traffic Accident on August 6, 1990." The notice informed plaintiff that the Special Board of Inquiry, established to investigate plaintiffs involvement in this traffic accident as the driver of a Government vehicle which struck and injured a pedestrian, had completed its investigation and recommended plaintiffs prosecution on criminal charges and adverse disciplinary action by termination of his employment. Plaintiff was given three days to respond to the memorandum, which he did in writing on November 18, 1991.
3. On November 15, 1991, the Commissioner also issued to plaintiff Commissioner’s Office Memorandum No. 62-91, entitled "Notice of Placement of [sic] Annual Leave.” This notice, on the basis of the Special Board of Inquiry report and the sensitive nature of plaintiffs position and responsibilities in the Department, relieved plaintiff from all duties of his position and placed him on annual leave, effective immediately, until the resolution of the underlying matter.
4. On November 18, 1991, the Acting Governor, by memorandum to the Commissioner, restored plaintiff to his position as head of the Government’s operations within the Department in connection with the *16multi-jurisdictional, law-enforcement programs of the South Pacific Islands Criminal Intelligence Network (SPICIN) and U.S. National Central Bureau (Interpol).
5. On February 7, 1992, the Commissioner, by memorandum to the Director of Human Resources, forwarded the Special Board of Inquiry report, Commissioner’s Office Memorandum No. 61-91 of November 15, 1991, and plaintiffs written response of November 18, 1991, and, stating that plaintiffs "acts and misconduct in this matter have adversely reflected upon the dignity, integrity and prestige of the governmental service," recommended that plaintiff be terminated from employment with the Government. The Commissioner did not request plaintiffs suspension with or without pay pending removal.
6. On February 25, 1992, the Director of Human Resources, by memorandum to plaintiff, notified plaintiff that the Director was terminating plaintiffs employment with the Government, effective March 28, 1992, and suspending plaintiff from his duties, which was implemented without pay, for 30 days from February 26 to March 27, 1992. The notice informed plaintiff that the Director had carefully reviewed this matter and concurred in the Commissioner’s recommendation as reasonable. It further advised plaintiff that his termination was based on plaintiffs "conduct unbecoming a reliable and dependable employee of the Government," specifically citing charges of "speeding, careless driving, driving while under the influence of intoxicating liquor, causing bodily injury, tampering with and/or fabricating evidence, and failure to exercise care while operating a government vehicle" arising out of the traffic accident on August 6, 1991. The letter also advised plaintiff that he was entitled to request, within ten days, a hearing on this matter before the Government’s Personnel Advisory Board and that he had certain rights and procedures related to this hearing process.
7. On February 28, 1992, plaintiff formally requested a hearing before the Personnel Advisory Board, which was then scheduled for March 16, 1992, by the Director of Human Resources. Before the hearing date, plaintiff requested additional preparation time and disqualification of the Attorney General’s Office from representing the Government at the hearing. The Attorney General’s Office agreed on the Government’s behalf to both requests. On March 13, 1992, plaintiff filed this action for declaratory relief. In a hearing before the Court on March 27, 1992, the parties agreed, among other things, that at *17plaintiffs request the Personnel Advisory Board hearing would be delayed until after there is a final decision in this action.
DISCUSSION AND CONCLUSIONS
The statutory authority for termination of employment in the career service with the Government is provided in A.S.C.A. § 7.0803, which reads:
7.0803 Demotion and termination.
(a) Any employee in the career service serving under an appointment without a time limitation who has completed his probationary period may be removed for cause or demoted on any ground set out in 7.0801.
(b) When considered appropriate, such action shall be recommended in writing to the director of manpower resources by department heads or other authorized operating officials, who shall supply the director with supportive evidence.
(c) If the recommendation is followed, the director shall in writing notify the employee of the nature of the charges against him, that he is subject to removal or demotion 30 calendar days from the date of the notice, and that he may request a hearing before the personnel advisory board within 10 calendar days of the date he receives the notice.
(d) The decision of the personnel advisory board, or of the director of manpower resources in the event no hearing is requested and held, shall be final and shall be made within the 30-day notice period provided in subsection (c).
(e) Employees serving under temporary appointments as defined in subsection (a) of 7.0207 may be terminated at any time without notice or the procedures described in this section.
Grounds for termination as adverse disciplinary action are set forth in A.S.C.A. § 7.0801 as follows:
7.0801 Grounds for demotion, suspension, or removal.
Employees in the career service may be demoted, suspended, or removed for below standard *18job performance, misconduct on the job, misconduct off the job which reflects adversely on the government, conviction of a felony, sentence to prison for 30 days or more upon conviction of a crime, or violation of standards established' administratively which govern employee conduct and deportment, including but not limited to, the proper use and penalty for misuse of government property.
Administration rules implementing these statutes have been promulgated at A.S.A.C. §§ 4.0801 and 4.0802. These rules state:
4.0801 Discipline policy generally — Scope of reasons for removal.
It is the policy of the ASG to ensure that employees whose performance of their duties or conduct are not satisfactory are removed from their position promptly, that those who are guilty of misconduct not sufficiently serious to justify removal be properly disciplined, that voluntary and involuntary separations be handled in an orderly manner, and that employees be protected against arbitrary or capricious action. Removal may be effected for any of the reasons but not limited to those, referred to in this title and in the ASCA.
4.0802 Removal, suspension, demotion of career employees.
(a) Employees in the career service, not serving probationary or trial periods and who are not serving under temporary appointments or contracts, shall not be removed, suspended, or involuntarily demoted except for such cause as will promote the efficiency and the good of government service.
(b) Discrimination shall not be exercised in suspensions, removals, or demotions because of an employee’s religious belief or affiliations, marital status except as may be required by this title, race, ethnic background, or political affiliation except as may be required by law, and his physical handicap unless he is unable to perform the duties of his position.
*19(c) Like penalties shall be imposed for like offenses whenever removals, suspensions, or demotions are made or when other disciplinary actions are taken.
(d) One of the following procedures shall be followed in cases of removal, suspension, and involuntary demotion:
(1) The employee shall be notified, in writing, of the charges against him, and of the corrective action proposed to be recommended to the director or, in the case of the Judicial Branch, the Chief Justice, to be taken against him.
(2) The notice shall set forth, specifically and in detail, the charges preferred against him.
(3) The employee shall be allowed 3 days for filing a written answer to such charges and for furnishing affidavits in support of his answer, or he may request and shall be given the opportunity to reply orally.
(4) If the employee answers the charges, his answer must be considered by the agency. Following consideration of the answer, the employee must be furnished with the agency’s decision, in writing, as to the action to be recommended to the director or, in the case of the Judicial Branch, the Chief Justice.
(5) The agency shall forward to the director copies of the charges, answer, and reasons for recommended adverse action, all of which shall be made a part of the employee’s official personnel file.
(e) The employee shall be retained in an active duty status during the period of notice of proposed action except as follows:
(1) The employee may be placed on annual leave when the agency head does not consider it advisable from an official standpoint to retain him in an active duty status during the advance notice period.
(2) When the employee is not placed on annual leave and the circumstances are such that his retention in an active duty status may result in damage to government property, or may be detrimental to the interests of the government or injurious to the employee, his fellow workers, or the general public, he may be temporarily assigned duties in which these conditions will not exist, or be placed on excused *20absence, and is required to submit a reply to the charges within 24 hours. The employee may be placed on immediate suspension pending removal thereafter if requested by the director or, in the case of the Judicial Branch, the Chief Justice.
(f) The director, if he considers the recommending official’s request reasonable, shall advise the employee in writing of the removal action to take effect 30 calendar days from the date of the notice, the reasons therefor, and that he may request a hearing before the board within 10 calendar days of the date he receives the notice.
(g) If the employee does not appeal or if he appeals and the appeal is denied, his removal shall be processed finally in accordance with instructions applying within the office of manpower resources.
These statutes and administrative rules are quoted in full to indicate the complete instructive context in which the termination of a Government career-service employee must function up to the point in the proceeding when a Personnel Advisory Board hearing is requested and granted. The only issue before the court at this juncture is, of course, the legality of plaintiffs suspension without pay pending removal during the course of this termination proceeding against him.
While A.S.C.A § 7.0802 does not mention suspension with or without pay as a tool of the termination process, these would seem to be inherent, executive authority to suspend an employee before removal is effective under circumstances when continued performance of regular duties are detrimental to the Government’s interests. In any event, A.S.A.C. § 4.0802(e) provides guidelines for when such action is appropriate.
The most sensible interpretation of A.S.A.C. § 4.0802(e) is to apply its provisions for the entire period from written notification by the employee’s agency head to the employee of the charges against him and the proposed action until either the proposed termination becomes effective or the proceeding is cancelled.
The clear preference of A.S.A.C. § 4.0802(e) is to retain the employee in active-duty status during this notice period. A different course of action must be predicated on a determination that it is unadvisable from an official standpoint to keep the employee in that *21status. Examples of such circumstances cited in A.S. A.C. § 4.0802(e)(2) include retentions that may result in damage to Government property, or may be detrimental to government interests, or may injurious to the employee, his fellow workers or the general public. In no event may this action be arbitrary or capricious. A.S.A.C. § 4.0801.
When retention in the employee’s position is inadvisable, the employee’s agency head has several options. The preferred choice in this situation is to place the employee on annual leave. When annual leave is not utilized, the employee may be either assigned duties in which the detrimental condition will not exist or placed on excused absence. When reassignment or excused absence are utilized, the employee’s time to reply to the charges is reduced from three days to 24 hours. A.S.A.C. § 4.0802(e)(1)-(2). The shortened reply period indicates the relatively greater seriousness of reassignment or excused absence compared to annual leave, even though both excused absence, under A.S.A.C. § 4.0802, and reassignment, see A.S.A.C. § 4.0804, do not involve any loss of pay and benefits.
The agency head’s final option is to recommend to the Director of Human Resources that the employee be placed on immediate suspension pending termination. Only the Director has the authority to suspend, and then it exists only upon request. A.S. A.C. § 4.0802(e)(2). Presumably, the request would normally come from the employee’s agency head, but it could be made by other competent authority, such as the Governor. It appears from the structure of A.S. A.C. § 4.0802(e) that suspension is the least-favored course of action and must be based on circumstances seriously and adversely impacting the Government’s interests.
While the rule does not state whether or not suspension pending removal is with or without pay, again we believe that the Government has inherent authority to take this action with either alternative, provided that there are sufficient justifying circumstances supporting the decision as reasonable, as opposed to arbitrary or capricious. It is noted in this regard that excused absence normally contemplates a period of short-term duration. See A.S.A.C. § 4.0511.
When the Government makes rules to govern the conduct of its affairs, it must play by those rules. In the case, there was no recommendation to or request of the Director of Human Resources by plaintiffs agency head, the Commissioner of Public Safety, or other competent authority to place plaintiff on suspension pending removal, and there was no documented justification for such action. The Director *22clearly acted in excess of his authority when he unilaterally took the most severe of administrative actions. This excess must be corrected.
Plaintiffs motion for partial summary judgment is granted against the Government only. At this stage, there has been no showing that the named Government departments and the Government instrumentality are properly subject to suit in this action.
Plaintiff must be reinstated as the head of the Government’s SPICIN and Interpol operations, the position he held on February 25, 1992, and must receive all entitlements to pay and benefits from the effective date of his suspension without pay, February 26, 1992.
The Acting Governor’s authority to restore plaintiff to this position on November 18, 1991, is without question. The Governor has general supervision and control of all executive departments, agencies and instrumentalities of the Government. Rev. Const. Am. Samoa Art. II, § 7; A.S.A.C. § 4.0111(b). Personnel decisions are subject to his direction so long as his actions are in accordance with applicable territorial and federal laws and rules. See A.S.C.A. § 7.0110; A.S.A.C. § 4.0102. The Acting Governor’s action did not exceed his authority.
Plaintiffs reinstatement does not mean that the Government must keep plaintiff in this position while the proposed termination proceeding is pending. If one of the conditions described in A.S.A.C. § 4.0802(e) or other similarly serious condition exists, the Government may place plaintiff on annual leave, reassign him to duties in which the condition does not exist, place him on excused absence, or suspend him with or without pay pending removal, provided the action is taken in compliance with all applicable laws and rules and is based on substantive and documented justification.
The Government asserts that plaintiffs reinstatement with pay harms the Government’s pecuniary interests. It is argued that as a matter of policy, if misconduct warrants dismissal, the Government should not be required to pay the employee pending removal. On a case-by-case basis, circumstances may justify that position. However, suspension without pay pending removal is the last resort under the existing polices and procedures for termination. Moreover, plaintiff will not recover more than his due in pay and benefits to the extent he has unused, earned annual leave, to which he is entitled without regard to when his employment with the Government may end, or he is reassigned to other duties.
*23The Government also points out that plaintiff has caused the delay in the Personnel Advisory Board hearing and, on this basis, it should not be required to pay him any extended period pending removal. It is likewise true, however, that this motion for partial summary judgment has been made and granted due to a serious error of law in the Government’s handling of the underlying termination proceeding. There are still other, alleged serious errors of law to be resolved at the trial of this action. The Court is not now ruling on the merits of any of these issues, but only correcting the procedurally improper suspension action taken by the Director of Human Resources. Suspension without pay pending removal is not beyond the Government’s grasp if there is proper procedural compliance and substantive justification for such action.
Partial summary judgment reinstating plaintiff to the position he held on February 25, 1992, with all pay and benefits restored from February 26, 1992, forward, shall be entered.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486525/ | *114OPINION AND ORDER
Introduction
Plaintiff Alfred Faumuina (“Faumuina”), was employed by defendant American Samoa Government Employees Retirement Fund (“ASGERF”) from March 1974 to March 1975 and from August 1976 to April 1996. When Faumuina began his employment with the ASGERF, and when he rejoined the ASGERF in August 1976, Faumuina was a “career service employee” as described in A.S.C.A. § 7.1415.
In 1986, the American Samoa Legislature enacted Public Law 19-37 to protect the ASGERF from undue political influence and improve the efficiency of the ASGERF’s operations. Public Law 19-37 amended A.S.C.A. § 7.1415 to classify all ASGERF employees as “employees of the government, under the direction of the board, not career service employees.” On June 4,1986, Faumuina signed a written acknowledgment that he “will be hired as a Non Career Service, Government Employee of A.S.G.E.R.F.”
On March 1, 1993, the ASGERF’s Executive Director, George Odom (“Odom”), sent a letter to Faumuina complaining of Faumuina’s extended absences from the office during working hours and excessive contact with “ASG officials.” On December 7, 1994, Odom sent a lengthier letter to Faumuina registering similar criticisms.
On April 12, 1996, Faumuina was arrested and charged with possession of a controlled substance. After the arrest, Faumuina was directed to stop working and stay out of the Fund’s office. He utilized accumulated annual leave. On April 23, 2996, Faumuina’s counsel contacted Odom and expressed Faumuina’s desire to return to work. Odom declined to allow Faumuina to return to work.
Shortly thereafter, Faumuina contacted two members of the Fund’s Board of Trustees, Gata E. Gurr (“Gurr”) and Magalei Logovii (“Magalei”), for advice concerning his employment status. On April 30, 1996, Odom sent a letter to Faumuina stating that Faumuina was terminated because Faumuina “flagrantly disregarded [Odom’s] instructions” by approaching “several Trustees individually to urge their assistance in overturning administrative decisions [Odom] communicated to [Faumuina] concerning [Faumuina’s] work status and payroll situation.”
On September 9, 1996, Faumuina sued the ASGERF and the ASG for wrongful discharge and unconstitutional deprivation of due process. This court concluded a trial on the merits on June 16,1997.
*115Discussion
A. The Just Cause Clause
Faumuina has conceded that he was not technically a career service employee of the ASG at the time that he was terminated. • He thus acknowledges that the Fund offered, and he accepted, a new employment relationship, where Plaintiff would relinquish his rights as an A.S.G. career service employee and receive rights to which a “Non Career Service, Government Employee of A.S.G.E.R.F.” was entitled. Thus, our inquiiy is limited to the question of whether, under the new contract, Faumuina had the right to continued employment unless Faumuina provided the ASGERF with just cause for terminating his employment.
The presumption that employment is at-will, Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d 162, 165 (Trial Div. 1987), can be rebutted with evidence of the intent of the parties, business custom and usage, the nature of the employment, the situation of the parties, and the circumstances of the case. See Roberts v. Atlantic Richfield Co., 568 P.2d 764, 769 (Wash. 1977) (citing Perry v. Sinderman, 408 U.S. 593 (1972)); Shebar v. Sanyo Business Systems Corp., 544 A.2d 377, 382 (1988). From this evidence, a court may infer that a particular employment contract contained a just cause clause.
1. Intent of the parties.
Faumuina and former coworker Sunu'i Tofi (“Tofi”) testified that ASGERF representatives made oral statements that ASGERF employees who continued employment with ASGERF after the enactment of PL 19-37 would receive essentially the same package of benefits that ASG career service employees received. Faumuina and Tofi indicated that these representations were very important to them, as they probably would not have accepted the new contracts if they had known that they were losing their job security in the process. The ASGERF, in its defense, presented no evidence that changing the official status of ASGERF employees was designed to eliminate ASGERF employees’ job security. Therefore, even though there was no express agreement with respect to job security in the written document, the evidence presented at trial favors Faumuina’s claim that the parties intended for Faumuina and other ASGERF employees to have a contractual “just cause” provision.
2. Business Custom and Usage.
There was no direct evidence at trial regarding the “custom and usage” of governmental employment in American Samoa. However, based on our own personal experience, we find that non-temporary government employment generally contemplates a relationship with greater security *116than an at-will relationship, even if they are not “career service” positions. In the instant case, PL 19-37 did not “privatize” the ASGERF, and the ASGERF remained a governmental institution. Thus, we conclude that business custom in the “industry” of public service favors the conclusion that Faumuina’s employment contract was not subject to arbitrary termination.
3. Nature of the Employment.
Faumuina held the position of Deputy Director of ASGERF, a position of substantial authority. Given the importance of Plaintiffs position to the overall operation of ASGERF, we conclude that this piece of evidence supports Faumuina’s claim that his position contained a “just cause” clause.
4. The Situation of the Parties.
The evidence at trial indicated that at the time Faumuina and other ASGERF employees signed new contracts, the employment relationships between the ASGERF and its employees were mutually satisfactory.
Furthermore, when the ASGERF assumed its new form after the enactment of PL 19-37, it enjoyed valuable efficiency gains by retaining the existing ASGERF staff. In effect, the ASGERF benefited substantially during 1986 and 1987 from the employee loyalty that had, in part, been inculcated by the verbal promises of job security. Thus, the evidence of the parties’ situations when the contract was formed buttresses Faumuina’s claim that the new deal simply prolonged, in reality if not nominally, the earlier “career service” employment relationship.
5. Circumstances of the Case.
Though it is theoretically possible for an employee to relinquish voluntarily a right or benefit due him under an employment contract, we find it very difficult to believe that the entire ASGERF staff would have relinquished their important contract rights without protest and without some form of new consideration. Again, this circumstantial evidence backs Faumuina’s claim that position that the parties understood that Faumuina would not lose his job security rights when they formed the new contract.
The presumption of at will employment has been effectively rebutted by direct and circumstantial evidence. Faumuina did not have merely a subjective, personal belief that he would be employed as long as he did his job in a satisfactory manner. Rather, in light of ASGERF oral representations, the parties’ respective intentions, business custom and usage, the nature of the employment, the situation of the parties, and the circumstances of the case, we can only conclude that Faumuina did, indeed, *117have an understanding and agreement with the ASGERF that his employment contract would be terminated only for just cause.
B. Termination for Cause
Odom testified that he had repeatedly issued verbal and written warnings to Faumuina regarding Faumuina’s practice of directly contacting members of the ASGERF Board of Trustees regarding personal and ASGERF business. Defendants argue that when Faumuina approached Trustee Gata Gurr regarding Faumuina’s employment situation, he violated an express written directive of ASGERF’s Executive Director and committed an act of insubordination that justified termination “for cause.” In support of the proposition that failing to obey the rules, orders and instructions of an employer is sufficient cause justifying discharge, defendants cite Walker v. Washington, 627 F.2d 541 (D.C. Cir. 1980), cert. denied, 449 U.S. 994, 66 L. Ed. 2d. 292 (198?); Farnell v. Albuquerque Publishing Co., 589 F.2d 497 (10th Cir. 1978); Joseph E. Seagram & Sons, Inc. v. Bynum, 191 F.2d 5 (8th Cir. 1951); Flowers v. Area Agency on Aging of Southeast Arkansas, Inc., 574 F. Supp. 71 (D. Ark. 1983), appeal dism’d, 738 F.2d 444; Farrakhan v. Sears, Roebuck & Co., 511 F. Supp. 893 (D. Neb. 1980).
However, as the Bynum court recognized, a servant is only bound to obey reasonable orders of the employer. 191 F.2d at 17 (citations omitted). In defendants cited cases, the expectations placed on the employees were reasonable and served to further a legitimate business purpose. Walker, 627 F.2d at 543 (employee refused to follow employer’s directives to fill out program activity records, which were “[p]art of [employee’s] job”); Farnell, 589 F.2d 497 (terminated employee competed with company in violation of company’s rules and employee’s common law duty); Bynum, 191 F.2d 5 (employees’ failure to deliver goods according to employer put employer in breach of contract with buyer).
In contrast, Odom’s “gag order” was so broad that it lost its legitimacy. Faumuina was prohibited from initiating contact with any member of the Board of Trustees about any topic, personal or professional. When Faumuina approached Gurr about assistance in reversing Odom’s decision regarding Faumuina’s suspension, Faumuina was not attempting to subvert Odom’s authority or to undermine morale at the ASGERF, but was merely pleading for advice from a friend as to how he might maintain his livelihood during a period of tremendous stress. We cannot allow an employee with a “just cause” contractual benefit to be terminated for an act of desperation which has no real impact on the employer’s operational efficiency. Thus, we find that insubordination was merely a pretext for Odom’s personal animosity towards Faumuina, and that Faumuina was terminated without just cause.
*118C. Due Process Claim
To assert a cause of action for deprivation of due process, a party must demonstrate that it has a constitutionally protected claim of entitlement to a “liberty” or “property” interest. See Board of Regents v. Roth, 408 U.S. 564, 570 (1972) (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Procedural due process rights can attach to a contractual entitlement, especially where, as here, a person’s “good name, reputation, honor, or integrity is at stake.” Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); see also Leis v. Flynt, 439 U.S. 438, 442 (1979); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 467 (1981) (Brennan, J. concurring). A properly interest in continued employment is “created and defined by the terms of the appointment. Roth, 408 U.S. at 578. In the instant case, because we have concluded that Faumuina’s contract with the ASGERF provided for continued employment absent sufficient cause, we must also conclude that Faumuina was entitled to due process before being deprived of this “property” interest. Cf. id.
Plaintiffs primarily criticize the absence of procedural due process in Faumuina’s termination. In Ferstle v. American Samoa Gov’t, 7 A.S.R.2d 26 (Trial Div. 1988), the High Court stated that the practical requirements of procedural due process vary with the circumstances and particular demands of the case and usually require something less than a full evidentiaiy hearing. Id. at 49. As long as the claimant has notice and an opportunity to be heard, the claimant has been afforded adequate procedural due process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 506 (1985).
In the instant case, Faumuina’s letter of termination adequately spelled out the proffered reasons for his termination, but the letter was never delivered to Faumuina. He thus had no advance notice of the charges against him, such that Faumuina was unable to gather evidence and solicit witness testimony to defend against the charges against him, at least in a meaningful way. We think the procedure utilized for terminating Faumuina did not substantially comport with the requirements of procedural due process.
D. Damages
During the course of discovery, defendants learned that Faumuina had accepted in 1981 an $800 gratuity from an ASGERF member to perform his official duties. Such conduct is clearly in violation of the prohibitions on gifts contained in Administrative Manual of Executive Regulations Chapter 10.0411 (1964) and A.S.A.C. § 4.0708 (1981). Defendants argue that we should bar recovery for the unlawful termination because he could have been terminated for accepting this gift. Faumuina, in turn, proffers a *119pathetic justification for such a gross ethical violation: other employees sometimes accept free lunches.
The United States Supreme Court has refused to absolutely bar a plaintiff employee’s recovery of damages where a defendant employer took an adverse employment action against the employee for an illegal reason, but subsequently discovered evidence that would justify a lawful termination. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 357, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). The Court opined that an absolute bar against recovery would corrupt the deterrent value of the law, as well as the law’s intent to compensate injured victims. At the same time, the Court posited that “[o]nce an employer leams about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit. McKennon, 513 U.S. at 362, 115 S.Ct at 886. Thus, the Court authorized courts to review the factual permutations and the equitable considerations on a case-by-case basis and fashion relief accordingly. The Court discouraged generally the use of reinstatement and back pay as a remedy because it “would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.” Id.
In the instant case, we find as a matter of fact that the defendants were unaware of the $800 gratuity, and that Faumuina can be lawfully discharged for this conduct. Therefore, we conclude that Faumuina is entitled to lost wages from April 30, 1996 to the date on which defendants discovered the evidence of Faumuina’s improper acceptance of a gift, Id. at 362, minus the amount of money he earned during that time period pursuant to his duty to mitigate damages.
Conclusion and Order
We conclude that Faumuina’s employment contract protected him from arbitrary termination; that Faumuina was not terminated for just cause; that Faumuina was terminated without procedural due process; and that Faumuina is entitled to damages for his unlawful discharge in an amount to. be determined at a post-trial hearing consistent with this opinion. At the hearing, we will hear evidence as to the date on which the defendants first learned of Faumuina’s earlier illegal conduct, and the dates of Faumuina’s employment with the ASG election office.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486526/ | ORDER GRANTING MOTION FOR WRIT OF EXECUTION
Introduction
On July 14, 1997, Plaintiff Nelson & Robertson Pty, Ltd., ("N&R") filed an application for a writ of execution against "J.J. Yong a/k/a Jum-Yong Jung, a/k/a Mr. Chung and Malaeimi Valley Mart" for satisfaction of a $502,379.27 judgment entered against defendant J.J. Yong ("Yong") and co-defendants on April 10, 1991. (Emphasis added). N&R’s application for a writ of execution relied on G.H.C. Reid and Co., Inc. v. K.M.S.T., 1 A.S.R.3d 82, 86 (Trial Div. 1997), in which the court judicially declared "that Yong constructively possesses a 100% interest in [Malaeimi Valley Mart], and that [Malaeimi Valley Mart]'s assets are therefore subject to Reid's judgment lien."
On July 15, 1997, this court summarily denied the application in part because N&R had not sufficiently demonstrated why this court should include "Malaeimi Valley Mart" in a writ of execution on the April 10, 1991, judgment.
*122On August 8, 1997, the court conducted a hearing on the application of the doctrines of res judicata and collateral estoppel to the present controversy. On the morning of August 8, 1997, N&R filed their written brief in the matter. Because Yong's counsel had an inadequate opportunity to review N&R's written brief, the hearing was continued until August 12, 1997. After the hearing, the court ordered the parties to file supplementary briefs.
Discussion
After reviewing the briefs submitted, we conclude that N&R may obtain a writ of execution against the assets of Malaeimi Valley Mart.
I. The Doctrine of Collateral Estoppel
Under the judicially-developed doctrine of collateral estoppel, "once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation." United States v. Mendoza, 464 U.S. 154, 158, 78 L. Ed. 2d 379, 383 (1984) (citing Montana v. United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210 (1979)); Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54, 76 (Land & Titles Div. 1989). Collateral estoppel, like the related doctrine of res judicata, relieves "parties of the cost and vexation of multiple lawsuits," conserve^] judicial resources, and encourages reliance on adjudication by preventing inconsistent decisions." Mendoza, 464 U.S. at 158, 78 L. Ed. 2d at 383-84 (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411 (1980)); Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 974 (1979). However, the doctrines are distinct in that res judicata applies only between parties and their privies to the prior action, while collateral estoppel may be invoked by a stranger to the prior action against a party to that action. Novak v. World Bank, 703 F.2d 1305, 1309 (D.C. Cir. 1983). Stranger plaintiffs may, under certain circumstances, use the doctrine of collateral estoppel "offensively," to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 329, 99 S. Ct. 645, 650 (1979).
A trial court has broad discretion in determining when offensive collateral estoppel is appropriate, id., 439 U.S. at 331, 99 S. Ct. at 651, and must consider the following factors: (1) whether the new plaintiff could have easily joined the previous action; (2) whether the defendant had sufficient incentive in the earlier action to litigate the matter with vigor; (3) whether the application of collateral estoppel would be unfair to the defendant for other reasons; (4) whether the issues in the two actions are identical; (5) whether the court’s holding in the earlier action *123was actually litigated and necessary to a determination on the merits; (6) whether the judgment in the earlier action was final.
A. Failure to Join Earlier Action
The court must consider whether judicial economy is truly served by the offensive use of collateral estoppel under the circumstances of the case. The offensive use of collateral estoppel can actually increase rather than decrease the total amount of litigation by encouraging potential plaintiffs to adopt a "wait and see" attitude towards similar pending actions. Thus, if a particular plaintiff "could easily have joined in the earlier action," a trial judge should not allow the use of offensive collateral estoppel. Id., 439 U.S. at 331, 99 S. Ct. at 652; Restatement (Second) of Judgments § 29(4).
The Supreme Court did not define the type or degree of ease which is relevant or necessary. Starker v. United States, 602 F.2d 1341, 1349-50 (9th Cir. 1979); Collins v. Seaboard Coastline Railroad Co., 516 F. Supp. 31, 33 (S.D. Ga. 1981); 18 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 4465, at 59 (West 1980 and 1994 Supp.) (stating that "[i]t is far from clear whether this test will be administered strictly"). Furthermore, the Supreme Court failed to identify whether the moving party in a collateral estoppel action bears the burden of proving that joinder was not "easy," or whether the defendant has the burden of demonstrating that joinder was, indeed, easy. Neither N&R nor Yong have briefed the court on the issue of burden of proof.
The weight of. the authority, however, seems to be in favor of the proposition that the application of collateral estoppel will not be denied due to failure to join unless the defendant can produce evidence that the plaintiff was motivated by a "wait and see" attitude. See Blonder-Tongue Labs. v. Univ. of Illinois Foundation, 402 U.S. 313, 333, 28 L. Ed. 2d 788, 802 (1971) (quoting Eisel v. Columbia Packing, 181 F. Supp. 298, 301 (D. Mass. 1960) (asserting that the party who lost the prior action "must be permitted to demonstrate, if he can, that he did not have 'a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time.’"); Carter-Wallace, Inc. v. United States, 496 F.2d 535, 539 (Ct. Cl. 1974) ("It is significant that the Court [in Blonder-Tongue] placed the burden on the plaintiff-patentee to show that he did not have a full and fair opportunity to litigate."); Ross-Berger Cos. v. Equitable Life Assur. Socy., 872 F.2d 1331, 1337-38 & n.2 (7th Cir. 1989) ("Where a plaintiff has not needlessly increased the total amount of litigation by adopting a 'wait and see' attitude, the concern for judicial economy animating the Parklane Hosiery ‘easy joinder’ limitation has not been implicated."); Nations v. Sun Oil Co., 695 F.2d 933, 938 (5th Cir. 1983), cert. denied, 464 U.S. 893, 78 L. Ed. 2d 229 (1983) (holding *124that where there was "no proof of purposeful delay" and where a delay is "not shown to be fundamentally unfair" a defendant has no right to a second bite at the apple); Starker, 602 F.2d at 1349-50; McLendon v. Continental Group, Inc., 660 F. Supp. 1553, 1564 (D.N.J. 1987); Midcontinent Broadcasting Co. v. Dresser Indus., 486 F. Supp. 858, 862 (D.S.D. 1980); Collins, 516 F. Supp. at 33 (refusing to "speculate why plaintiff declined to join her husband's suit, [but nevertheless stating that it was] clear that her purpose was not to elude the binding force of an adverse judgment."); Restatement (Second) of Judgments § 29, cmt. e, Reporter's Note (suggesting that a claimant who simply "stayed out of' a prior action between others may ordinarily invoke preclusion). This authority convinces us that, in the case at hand, Yong possesses at minimum a burden of producing some evidence indicating that N&R was a "sideline sitter[] while others carried the ball." Carr v. District of Columbia, 646 F.2d 599, 606 (D.C. Cir. 1980).1
In the present case, Yong has merely submitted, without any evidentiary support, that the present case "is an excellent example of [a plaintiff "waiting and seeing" whether another plaintiff would receive a favorable ruling, and then "jumping on the bandwagon"]." Defendant's Memorandum in Opposition to Application for Writ of Execution, at 4. Yong has presented no direct or circumstantial evidence supporting the proposition that N&R adopted a "wait and see" attitude so as to avoid the binding force of a potentially adverse ruling in CA No. 78-89.2 Since we adopt for this jurisdiction a rule that the party opposing collateral *125estoppel has the burden of proving that the proponent was sandbagging, even where the plaintiff has not adequately explained the failure to join,3 we conclude that Yong's conclusory statement is insufficient to deny the application of collateral estoppel on the ground that N&R failed to join inCANo. 78-89.
B. Incentive to Litigate
In Parklane Hosiery, the Supreme Court also expressed concern about potential unfairness to defendants where the defendant had little incentive to defend the first action "vigorously." 439 U.S. at 330, 99 S. Ct. at 651. In the instant case, Yong has argued that the court should consider the fact that judgment in CA No. 78-89 was for "only" $60,000, whereas judgment in the instant case is potentially over $500,000.
However, $60,000 is a high enough stake to elicit vigorous litigation. See Starker, 602 F.2d at 1349 ("The government had plenty of incentive to litigate Starker I, in which a $37,342 refund was at stake."). Cf. Berner v. British Commonwealth Pac. Airlines, 346 F.2d 532, 540-41 (2d Cir. 1965). Furthermore, where future suits are foreseeable at the time of the first action, the defendant can not claim that there was a lack of incentive to litigate the issue. Parklane Hosiery, 439 U.S. at 330, 99 S. Ct. at 651; Johnson v. United States, 576 F.2d 606, 615 (5th Cir. 1978) ("One of the most important considerations is whether, at the time of the earlier action, the party could foresee that facts subject to estoppel could be important to future litigation."). In the instant case, Yong knew at the time of CA No. 78-89 that N&R and other entities possessed unsatisfied judgments against him, and that an adverse judgment in CA No. 78-89 might enable these entities to assert in court the same claims that G.H.C. Reid posited. Therefore, the circumstances of this case suggest that Yong had an adequate incentive to litigate vigorously the issue of his ownership of Malaeimi Valley Mart.
*126C. Fairness to Defendant
The Supreme Court cautioned courts against the application of collateral estoppel where such action "would be unfair to a defendant." Parklane Hosiery, 439 U.S. at 331, 99 S. Ct. at 652. Where a party lacked full and fair opportunity to litigate the issue in the first action, the application of offensive collateral estoppel against that party is inappropriate. Amisone v. Talaeai, 23 A.S.R.2d 52, 54 (Trial Div. 1992); Montana v. United States, 440 U.S. at 153, 99 S. Ct. at 973; Speaker Sortation Systems v. U.S. Postal Service, 568 F.2d 46, 48 (7th Cir. 1978); Restatement (Second) of Judgments § 29.
In the instant case, Yong alleges that the court in CA No. 78-89 did not grant relief that was contemplated in Reid's pleading, and that the court's judgment was not supported by the evidence presented. We have reviewed the record in CA No. 78-89 and find no reason to "doubt the quality, extensiveness, or fairness of procedures followed in [the] prior litigation." Montana v. United States, 440 U.S. at 164 & n.11, 99 S. Ct. at 979 & n.11. The trial court in CA No. 78-89 liberally construed the plaintiffs pleadings, as it must in this "notice pleading" jurisdiction. T.C.R.C.P. 8(e)(1), 8(f); Morgan v. American Samoa Gov't, 24 A.S.R.2d 164, 165 (Trial Div. 1993). The fact that Yong was overconfident in his theory of the case and did not effectively counter the plaintiffs evidence does not mean that Yong had no opportunity to litigate the issues of fraudulent conduct and equitable ownership in the first action.4 Thus, we reject Yong's allegation that issue preclusion would be unfair to him because of inadequacies in the previous litigation.5
*127D. Identity of Issues
Issue preclusion only applies when the issue raised is the same issue that was decided in an earlier case. Reid v. Puailoa, 23 A.S.R.2d 101, 112 (Land & Titles Div. 1993); Montana v. United States, 440 U.S. at 153, 99 S. Ct. at 973; Restatement (Second) of Judgments, § 27(1); 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4416, at 148. For example, in Speaker Sortation Systems v. U.S. Postal Service, 568 F.2d 46 (7th Cir. 1978), the Seventh Circuit held that a determination that the defendant retained a "fund" that was subject to recovery on an equitable lien theory was suitable for issue preclusion, whether the issue be characterized as one of law, fact, or both fact and law. Id. at 49. The court found that the later claim stemmed from the same controversy and that there was nothing to be gained from repeated litigation. Id.
The court in CA No. 78-89 essentially determined that Yong had engaged in fraudulent and inequitable conduct, that Yong “possessed” an equitable interest in Malaeimi Valley Mart, and that this asset could be subject to an equitable lien. N&R is in exactly the same position as G.H.C. Reid was in CA No. 78-89. Nothing in N&R's claim depends on characteristics or conduct attributable to N&R, or the particular relationship between N&R and Yong. The distinction that Yong proposes, that CA No. 78-89 dealt only with "constructive possession" for the purposes of satisfying a judgment and that the current issue is over "legal ownership" for the purposes of satisfying a judgment, is merely an exercise in semantics. We therefore hold that for the purposes of issue preclusion the instant case deals with the same issue of which the court in CA No. 78-89 disposed.
E. Essential and Necessary to Prior Determination
The doctrine of issue preclusion prevents relitigation of all issues of fact or law that were actually litigated and necessarily decided in the prior proceeding. Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988); GAF Corp. v. Eastman Kodak Co., 519 F. Supp. 1203, 1213 *128(S.D.N.Y. 1981). In CA No. 78-89, the court stated that equity required the court to fashion a "new" remedy, and to declare that Yong "constructively possesse[d]" Malaeimi Valley Mart. The court's holding was based on substantial circumstantial evidence that was presented at trial regarding Yong's fraudulent and inequitable conduct, and directly responded to the plaintiffs request for a determination that the store's "money [and] property" was Yong's property for the purposes of satisfying the plaintiffs judgment. See G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 106, 107 (Trial Div. 1997) (Order on Motion for Reconsideration). Thus, we have no trouble concluding that the issue of Yong's equitable ownership of Malaeimi Valley Mart was actually litigated and necessary to the resolution of CA No. 78-89.
F. Finality of Judgment
Issue preclusion only applies to "final" judgments on the merits. John Morrell & Co. v. Local 304A United Food & Comm. Workers, 913 F.2d 544, 562 n.16 (8th Cir. 1990), cert. denied, 500 U.S. 905, 114 L. Ed. 2d 78. In the United States federal courts, for purposes of issue preclusion, final judgment includes "any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect." Restatement (Second) of Judgments § 13. The fact that the losing party in the earlier case may still appeal the ruling to a higher appellate court does not render the judgment non-final. Deposit Bank v. Frankfort, 191 U.S. 499 (1903); Kurek v. Pleasure Driveway & Park Dist., 557 F.2d 580, 595 (1977); cert. denied, 439 U.S. 1090, 99 S. Ct. 873 (1977); Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir. 1993); Erebia v. Chrysler Plastics Products Corp., 891 F.2d 1212, 1215 n.1 (6th Cir. 1989); Dyndul v. Dyndul, 620 F.2d 409, 412 (3d Cir. 1980); Prager v. El Paso Nat'l Bank, 417 F.2d 1111, 1112 (5th Cir. 1969); McLendon, 660 F. Supp. at 1562; 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4433, at 308 (stating that the "established rule" in the federal' courts is that a final judgment retains all of its preclusive effect pending appeal). Yong has presented no persuasive reason for rejecting this rule in American Samoa,6 and we decline to deviate from federal precedent on this issue. Accordingly, we hold that the judgment in CA No. 78-89, which has survived a motion for reconsideration, is final for the purposes of issue preclusion.
*129Conclusion and Order
The doctrine of collateral estoppel applies to the holding of the tidal court in CA No. 78-89 that Defendant J.J. Yong possesses Malaeimi Valley Mart. Yong may not relitigate the issue of his ownership of Malaeimi Valley Mart in this action by Nelson & Robertson. Accordingly, the application for a writ of execution to satisfy Nelson & Robertson's heretofore unsatisfied judgment against Yong by seizing the assets of Malaeimi Valley Mart is GRANTED.
It is so Ordered.
Cf. Hauser v. Krupp Steel Producers, Inc., 761 F.2d 204, 207 (5th Cir. 1985), (finding no clear error in the decision of a trial court to deny the application of collateral estoppel because plaintiff had "failed to present a valid reason" for not joining the earlier action); Aiello v. City of Wilmington, 470 F. Supp. 414, 422 n.21 (D. Del. 1979) (opining that the Supreme Court's decision in Parklane Hosiery had "put a slightly higher burden on the proponent of collateral estoppel when it is used offensively."); Mancuso v. Harris, 677 F.2d 206, 209 (2d Cir. 1982) (cautioning courts to use "care" before applying the doctrine of collateral estoppel); Evanston Ins. Co. v. Affiliated FM Ins. Co., 556 F. Supp. 135, 137 (D. Conn. 1983) (remarking that "[w]hile Parklane Hosiery did authorize the use of collateral estoppel offensively, it did so under certain strict guidelines.") (emphasis added).
The absence of any evidence that N&R's conduct created unnecessary litigation distinguishes the instant case from Hauser, where the district court had relied on the absence of a valid reason for failing to join, but also on circumstantial evidence of the plaintiffs knowledge of the earlier suit, including: (1) the fact that plaintiff was married to the previous plaintiff; (2) the fact that plaintiff was represented by counsel during the pendency of her husband's litigation and counsel at that time knew of the potential for the wife's cause of action. 761 F.2d at 207 n.2.
N&R has not presented evidence to explain precisely how and when N&R learned of Yong's involvement in Malaeimi Valley Mart. N&R merely presents the affidavit of its counsel, Jennifer Joneson, who averred under oath that N&R contacted her law office at a juncture where "the post-judgment trial in the G.H.C. Reid v. K.M.S.T., et. al. HCCA 78-89 had already been completed and was under advisement with the court." Because this statement does not necessarily mean that N&R did not know of G.H.C. Reid's case during the period when CA No. 78-89 was being litigated, nor does the statement necessarily mean that N&R did not know of Yong's involvement with Malaeimi Valley Mart at some point prior to the conclusion of trial, the remark has minimal value with respect to the issue of whether N&R could have easily joined in the action. Cf. Flatt v. Johns Manville Sales Corp., 488 F. Supp. 836, 840 (E.D. Tex. 1980).
See G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 105, 110 (Trial Div. 1997) (Order on Motion for Reconsideration) (". . . Defendants and Defendant-Garnishees were content to rest on their characterization of the issues and to offer only minimal effort at rebutting Reid's evidence.")
However, one commentator has questioned the intensity of scrutiny due an earlier trial:
Issue preclusion is available in most circumstances without any need to prove the quality of the first litigation and decision. The values of preclusion would be destroyed if proof of the quality of decision were required of the party asserting preclusion or permitted to the party opposing it. Trial of the quality of the first litigation would often prove more demanding than simple retrial of the issues themselves. Deliberate harassment would be facilitated accordingly. And the opportunity to try this question would undermine any ability to rely on the finality of the first determination.... The current trend is to allow preclusion unless the first court followed severely limited procedures or there is a clear and *127strong policy requiring independent redetermination by the second court.
18 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 4423, at 216, 217 (West 1980 & 1994 Supp.). While we tend to agree with this reasoning, the facts of the instant case are such that we need not strictly prohibit subsequent evaluations of trial "quality" in order to reach our conclusion today regarding the "fairness" to the defendant of applying the doctrine of collateral estoppel to the trial court's conclusions in CA No. 78-89.
In Warwick Corp. v. Maryland Dept. Of Transp., 573 F. Supp. 1011, 1014 (D. Md. 1983), the court held that denying preclusion because the earlier judgment was on appeal would "be laughable. If a judgment was denied its res judicata effect merely because an appeal was pending, litigants would be able to refile an identical case in another trial court while the appeal is pending, which would hog-tie the trial courts with duplicative litigation.") | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487024/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MOUNT CLEMENS RECREATIONAL BOWL, FOR PUBLICATION
INC., K.M.I., INC., and MIRAGE CATERING, November 17, 2022
INC., Individually and on Behalf of All Others 9:00 a.m.
Similarly Situated,
Plaintiffs-Appellants,
v No. 358755
Court of Claims
DIRECTOR OF THE DEPARTMENT OF HEALTH LC No. 21-000126-MZ
AND HUMAN SERVICES, CHAIRPERSON OF
THE LIQUOR CONTROL COMMISSION, and
GOVERNOR,
Defendants-Appellees.
Before: HOOD, P.J., and JANSEN and K. F. KELLY, JJ.
PER CURIAM.
Plaintiffs, Mount Clemens Recreational Bowl, Inc., K.M.I., Inc., and Mirage Catering,
Inc.,1 appeal as of right the Court of Claims order denying plaintiffs’ motion to transfer the case to
the Macomb Circuit Court and granting summary disposition under MCR 2.116(C)(8) to
defendants, the Michigan Governor, the Director of the Department of Health and Human Services
(DHHS), and the Chairperson of the Liquor Control Commission. Plaintiffs’ lawsuit involved
allegations of impacts to their properties and businesses from shutdown and other regulatory orders
pertaining to food-service establishments and COVID-19. On appeal, plaintiffs contend (1) that a
transfer to the Macomb Circuit Court was appropriate because they had a right to a jury trial in the
circuit court, (2) that they pleaded an actionable takings claim under the Michigan Constitution,
and (3) that they pleaded actionable tort claims. We affirm.
1
Plaintiffs styled their lawsuit as a class action, but class certification was not granted.
-1-
I. DISMISSAL OF MOTION TO TRANSFER
Plaintiffs first contend that the trial court erred by denying their motion to transfer. This
issue involves interpretation of the Court of Claims Act, MCL 600.6401 et seq. Doe v Dep’t of
Transp, 324 Mich App 226, 231; 919 NW2d 670 (2018). Questions of statutory construction,
including of the Court of Claims Act, are reviewed de novo. Id.; Parkwood Ltd Dividend Housing
Ass’n v State Housing Dev Auth, 468 Mich 763, 767; 664 NW2d 185 (2003).
MCL 600.6419(1)(a) states that the Court of Claims “has the following power and
jurisdiction”:
To hear and determine any claim or demand, statutory or constitutional,
liquidated or unliquidated, ex contractu or ex delicto, or any demand for monetary,
equitable, or declaratory relief or any demand for an extraordinary writ against the
state or any of its departments or officers notwithstanding another law that confers
jurisdiction of the case in the circuit court.
In addition, MCL 600.6419(7) states:
As used in this section, “the state or any of its departments or officers”
means this state or any state governing, legislative, or judicial body, department,
commission, board, institution, arm, or agency of the state, or an officer, employee,
or volunteer of this state or any governing, legislative, or judicial body, department,
commission, board, institution, arm, or agency of this state, acting, or who
reasonably believes that he or she is acting, within the scope of his or her authority
while engaged in or discharging a government function in the course of his or her
duties.
Because plaintiffs sued the individual defendants in their official capacities, the lawsuit is against
the state itself. Mays v Snyder, 323 Mich App 1, 88; 916 NW2d 227 (2018), aff’d 506 Mich 157
(2020). And MCL 600.6443 indicates that cases are to be heard in the Court of Claims without a
jury.
Regarding a motion to transfer, in Elia Cos, LLC v Univ of Mich Regents, 335 Mich App
439, 457; 966 NW2d 755 (2021), lv pending on app ___ Mich ___; 967 NW2d 237 (2021), the
Court stated that “the bare fact that plaintiff filed its complaint in circuit court is irrelevant . . . .
Rather, the dispositive factor is whether plaintiff’s . . . claim may actually be maintained in circuit
court.” (Emphasis added.)2
Plaintiffs, in arguing that their takings claim may be pursued in circuit court, cite MCL
600.6421(1), which states:
2
Plaintiffs originally filed their complaint in circuit court, and it was transferred to the Court of
Claims.
-2-
Nothing in this chapter eliminates or creates any right a party may have to
a trial by jury, including any right that existed before November 12, 2013. Nothing
in this chapter deprives the circuit, district, or probate court of jurisdiction to hear
and determine a claim for which there is a right to a trial by jury as otherwise
provided by law, including a claim against an individual employee of this state for
which there is a right to a trial by jury as otherwise provided by law. Except as
otherwise provided in this section, if a party has the right to a trial by jury and
asserts that right as required by law, the claim may be heard and determined by a
circuit, district, or probate court in the appropriate venue. [Emphasis added.]
In assessing whether this particular statute applies, “the question is not whether there would
ordinarily be a right to a jury trial as between private parties but whether there is a specific right
to a jury trial against the state.” Elia Cos, 335 Mich App at 457. In Elia Cos, id. at 458, the Court
concluded that “the Court of Claims has exclusive jurisdiction over plaintiff’s breach-of-contract
claim seeking money damages” against the state.
The complaint in the present case makes clear that plaintiffs are seeking money damages
under Const 1963, art 10, § 2.3 In Hill v State, 382 Mich 398, 400; 170 NW2d 18 (1969), the
plaintiffs filed a complaint with the Court of Appeals in which they sought an order
to require defendant to show cause why a writ of mandamus should not issue
directed to the State Highway Commission and commanding it to institute an action
to ascertain and determine the damages to plaintiffs’ property as a result of
establishment of the right-of-way and construction of the I-94 Expressway.
“[T]he Court of Appeals denied the complaint without prejudice to the right of plaintiffs to file a
claim with the Court of Claims,” and the Supreme Court granted leave. Id. at 402. The Supreme
Court said:
If plaintiffs’ claims have merit, they are of such a nature as to establish a
constructive rather than an actual taking of plaintiffs’ property. This is the crux of
the case. Determination of that question (it being the contention of defendant that
there has been no taking whatsoever) can come only after a full testimonial hearing.
In circumstances such as these, plaintiffs’ remedy is by an action in the Court of
Claims in order that a determination may be made as to whether a taking has
occurred and, if so, plaintiffs’ damage from the same. [Id. at 405.]
3
Const 1963, art 10, § 2, states:
Private property shall not be taken for public use without just compensation
therefore being first made or secured in a manner prescribed by law. . . .
Compensation shall be determined in proceedings in a court of record.
-3-
The “plaintiffs concede[d] they ha[d] a remedy in the Court of Claims, [but] they assert[ed] that it
[was] not adequate because the amount of damages cannot be determined by a jury in such a
proceeding.” Id.
The Supreme Court noted that the 1908 Constitution did not mandate, and the 1963
Constitution does not mandate, a jury trial for condemnation proceedings. Id. at 406. It also noted
that “some condemnation statutes provide for different modes of assessing damages than by a jury,
such as by three commissioners.” Id.; see also MCL 213.183. The Court concluded:
Since neither the Constitution of 1908 nor 1963 provides a constitutional right to a
jury in a condemnation hearing and since there is statutory authority for non-jury
[condemnation] proceedings by the Highway Commission, the plaintiffs’ claim of
a right to a determination of damages by a jury is without merit. [Hill, 382 Mich at
406.]
Plaintiffs contend that the present case is not analogous to Hill because, in the present case,
there is no “statutory authority for non-jury proceedings” such as was present in that case.
Plaintiffs rely heavily on certain provisions of the Uniform Condemnation Procedures Act
(UCPA), MCL 213.51 et seq. MCL 213.51(e) states that “ ‘[c]onstructive taking’ or ‘de facto
taking’ means conduct, other than regularly established judicial proceedings, sufficient to
constitute a taking of property within the meaning of section 2 of article X of the state constitution
of 1963.” MCL 213.52(2) states:
If property is to be acquired by an agency through the exercise of its power
of eminent domain, the agency shall commence a condemnation action for that
purpose. An agency shall not intentionally make it necessary for an owner of
property to commence an action, including an action for constructive taking or de
facto taking, to prove the fact of the taking of the property.
And MCL 213.62(1) states:
A plaintiff or defendant may demand a trial by jury as to the issue of just
compensation pursuant to applicable law and court rules. The jury shall consist of
6 qualified electors selected pursuant to chapter 13 of Act No. 236 of the Public
Acts of 1961, as amended, being sections 600.1301 to 600.1376 of the Michigan
Compiled Laws, and shall be governed by court rules applicable to juries in civil
cases in circuit court.
Plaintiffs’ attempt to rely on these provisions is unavailing because plaintiffs were not
proceeding under the UCPA.4 As stated in Miller Bros v Dep’t of Natural Resources, 203 Mich
App 674, 690; 513 NW2d 217 (1994):
4
In addition, the right to a jury trial under the UCPA extends only to the issue of just compensation,
not to the issue of necessity. See Kalamazoo v KTS Indus, Inc, 263 Mich App 23, 33-34; 687
NW2d 319 (2004).
-4-
[W]hen the state affects [sic] a taking merely by depriving an owner of all beneficial
use of property, the state does not acquire the property “taken.” Such a taking may
violate the constitution, but it does not violate the UCPA. Consequently, the state
cannot be compelled to invoke the UCPA. And if it cannot be forced to proceed
under the statute, then the UCPA’s provision regarding attorney fees is not
applicable.
In other words, the UCPA is not applicable to plaintiffs’ claims because it is not in dispute that
defendants did not acquire plaintiffs’ property. The other statutes relied upon by plaintiffs also
speak to the acquisition of property by the state. See MCL 213.1 and MCL 213.23.5
In Lim v Mich Dep’t of Transp, 167 Mich App 751, 753; 423 NW2d 343 (1988), the
defendant relocated the plaintiff’s driveway, and the “plaintiff alleged that defendant’s actions and
omissions resulted in a de facto taking of his property without just compensation.” This Court
stated that “[t]he Court of Claims is the proper forum in which to seek redress where a plaintiff
alleges an already accomplished inverse condemnation by the State of Michigan.” Id. at 754. It
continued:
Plaintiff argues that in enacting the UCPA the Legislature expressly
conferred jurisdiction upon the circuit court to hear claims of inverse condemnation
initiated by aggrieved property owners. Plaintiff is mistaken. The UCPA has no
application to inverse condemnation actions initiated by aggrieved property
owners. Instead, the UCPA only governs actions initiated by an agency to acquire
property on the filing of a proper complaint and after the agency has made a good-
faith written offer to purchase the property. The agency must be authorized by law
to condemn property.
Finally, plaintiff argues that the right to just compensation is constitutional
and not contractual or tortious in nature and, therefore, because the claim is
grounded in the constitution it should be adjudicated in a court created by the
constitution and not one created by the Legislature. We find plaintiff’s argument
to be without merit. [Id. at 755 (citations omitted).]
Plaintiffs contend that this Court need not follow Lim because it is not strictly binding
under MCR 7.215(J)(1) (“A panel of the Court of Appeals must follow the rule of law established
5
At any rate, in Miller Bros, 203 Mich App at 687, the Court stated that the UCPA “defines the
exclusive means by which government is empowered to judicially condemn and acquire property.”
In Kalamazoo, 263 Mich App at 38, the Court stated:
[T]he purpose of the UCPA is to set forth the procedures by which a public or
private agency exercises the right of eminent domain conferred on it by another
source . . . . Moreover, the UCPA . . . unambiguously states in MCL 213.75 that it
sets forth the exclusive procedures to be followed by an agency seeking to condemn
property under the power of eminent domain.
-5-
by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that
has not been reversed or modified by the Supreme Court, or by a special panel of the Court of
Appeals as provided in this rule.”). But even though Lim was issued before November 1, 1990, it
still has precedential value. See People v Bensch, 328 Mich App 1, 7 n 6; 935 NW2d 382 (2019).
Viewing the UCPA and the other statutes cited by plaintiff in connection with Miller Bros, 203
Mich App at 687, 690, Kalamazoo v KTS Indus, Inc, 263 Mich App 23, 38; 687 NW2d 319 (2004),
and Hill, 382 Mich at 406, we conclude that there is no basis to conclude that the holding of Lim
is no longer good law.
II. DISMISSAL OF TAKINGS CLAIM
Plaintiffs next argue that the trial court erred by granting defendants’ motion for summary
disposition regarding plaintiffs’ regulatory-takings claim.
“This Court reviews de novo a trial court’s decision on a motion for summary disposition.”
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). As for motions brought
under MCR 2.116(C)(8):
A motion under [this subrule] tests the legal sufficiency of the complaint.
All well-pleaded factual allegations are accepted as true and construed in a light
most favorable to the nonmovant. A motion under MCR 2.116(C)(8) may be
granted only where the claims alleged are so clearly unenforceable as a matter of
law that no factual development could possibly justify recovery. When deciding a
motion brought under this section, a court considers only the pleadings. [Maiden v
Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999) (quotation marks and
citations omitted).]
Const 1963, art 10, § 2, states:
Private property shall not be taken for public use without just compensation
therefore being first made or secured in a manner prescribed by law. . . .
Compensation shall be determined in proceedings in a court of record.
In Ypsilanti Fire Marshal v Kircher, 273 Mich App 496, 555 n 22; 730 NW2d 481 (2007),
remanded on other grounds 480 Mich 910 (2007), the Court stated that “[t]he Takings Clause of
the Fifth Amendment is substantially similar to the Takings Clause of the Michigan Constitution,
and the two provisions should generally be interpreted coextensively[.]” (Citation omitted.)
However, the Michigan provision has sometimes been interpreted more broadly than the federal
one. AFT Mich v State of Michigan, 497 Mich 197, 217-218; 866 NW2d 782 (2015), aff’d 497
Mich 197 (2015); Gym 24/7 Fitness, LLC v Michigan, ___ Mich App ___; ___ NW2d ___ (2022)
(Docket No. 355148); slip op at 12, lv pending on app.
In Cummins v Robinson Twp, 283 Mich App 677, 707; 770 NW2d 421 (2009), this Court
stated that there are two types of per se regulatory takings: instances wherein the government
causes a permanent physical invasion onto property and instances wherein the government
deprives an owner of all economically beneficial use of property. It stated that, apart from these
two narrow categories, alleged regulatory takings are governed by a test from Penn Central Transp
-6-
Co v New York City, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978). Cummins, 283 Mich
App at 707. Plaintiffs do not dispute that the two narrow categories are inapplicable here.
The parties dispute whether the Penn Central test need be applied. Of import is the recent
case of Gym 24/7 Fitness. In that case, the plaintiff (“the Gym”) “filed suit in an individual
capacity and as a representative of a putative class of plaintiffs comprised of gyms, fitness centers,
recreation centers, sports facilities, exercise facilities, exercise studios, and other similarly-situated
businesses” in certain counties. Gym 24/7 Fitness, ___ Mich App at ___; slip op at 1 n 1. The
Gym alleged
an unconstitutional taking of its business property by operation of Executive Orders
[(EOs)] issued by the Governor that temporarily shuttered the business in response
to the COVID-19 pandemic. The Gym demanded “just compensation” for the
taking of its private property that resulted from the closure. [Id. at ___; slip op at
1.]
The Court of Claims denied the defendant’s motion for summary disposition, and this Court
reversed. Id. at ___; slip op at 1-2.
The Gym had conceded that EOs were issued for a public purpose but had argued that
constitutional principles required that fitness centers be compensated for the diminution in value
of their property interests. Id. at ___; slip op at 3-4. On appeal, the Gym argued that,
“[u]nder takings jurisprudence, whether the taking by the government was
reasonable or unreasonable is legally irrelevant.” The Gym explain[ed] that
“[g]overnments can, almost always, take private property; [but] they commit an
actionable wrong when they fail to pay just compensation.” [Id. at ___; slip op at
7 (first brackets in original).]
This Court stated that
the primary question presented in this appeal is whether the business owner of
private property is entitled to just compensation under either the state or federal
Takings Clause when the government properly exercises its police power to protect
the health, safety, and welfare of its citizens during a pandemic by temporarily
closing the owner’s business operations. [Id. at ___; slip op at 9.]
The Court in Gym 24/7 Fitness analyzed cases discussing the state’s police power to react to health
emergencies and whether such reactions and restrictions comported with constitutional principles
of due process. Id. at ___; slip op at 10-11. The Court emphasized, however, that the Gym was
not making a due-process argument but was relying on takings principles. Id. at ___; slip op at 11.
The Court discussed takings in general and stated:
To summarize, there are physical takings and regulatory takings. A physical taking
of private property is a categorial taking that requires the payment of just
compensation. A regulatory taking involving the deprivation of all economically
productive or beneficial use of property is also a categorical taking, requiring the
payment of just compensation. The second type of regulatory taking—a
-7-
noncategorical taking—is one that is determined upon application of the Penn
Central balancing test. Additionally, inverse condemnation arises when the
government takes property, either by physical invasion or regulation, absent formal
condemnation proceedings. Finally, a taking can be either temporary or permanent.
[Id. at ___; slip op at 14-15 (second emphasis added).]
In its analysis, the Court first noted “that to the best of our knowledge, every federal court
and state appellate court that has addressed a takings claim stemming from the government’s
closure of a business as a safeguard against the spread of COVID-19 has rejected the claim.” Id.
at ___; slip op at 15. It cited 17 cases in support, stating, “We now join those courts and reject the
Gym’s claim that its property was taken absent just compensation in violation of the Taking
Clauses of the state and federal constitutions.” Id. at ___; slip op at 15.
With regard to the Penn Central balancing test, the Court stated:
Next, we hold as a matter of law that there was no regulatory taking under
[the] Penn Central analysis. With respect to the Penn Central balancing test, the
first two factors—economic impact of the EOs and their interference with
reasonable investment-backed expectations—weigh in favor of the Gym because
its business was in fact shuttered under the EOs, but we do not give those factors
all that much weight because the economic impact and the interference with
business expectations arising from the closure orders were short lived. Moreover,
the third factor—the character of the government’s action—was compelling in that
the aim of the EOs was to stop the spread of COVID-19, which our Supreme Court
described as “the most threatening public-health crisis of modern times” . . . that
“has resulted[] in significant numbers of persons suffering serious illness or death.”
In re Certified Questions from the United States Dist Court, [Western Dist of Mich,
Southern Div,] 506 Mich [332, 337-338; 958 NW2d 1 (2020.] And, once again,
the Gym accepted that the Governor’s EOs were issued solely for a public purpose,
and it did not contest the prudence of the Governor’s actions[6] or her authority to
issue the EOs. Lending further support for our stance that the character of the
Governor’s actions strongly favors the State, or perhaps actually demands that we
find no taking, is language in precedent issued by the United States Supreme Court.
In Lucas [v South Carolina Coastal Council], 505 US [1003, 1029; 112 S
Ct 2886; 128 L Ed 2d 798 (1992)], the Supreme Court indicated that just
compensation is not owed to a property owner for an alleged taking that arises from
a law or decree that does nothing more “than duplicate the result that could have
been achieved in the courts . . . by the State under its . . . power to abate nuisances
that affect the public generally, or otherwise.” (Emphasis added.) The Supreme
Court then noted, “The principal ‘otherwise’ that we have in mind is litigation
absolving the State . . . of liability for the destruction of real and personal property,
in cases of actual necessity, to prevent the spreading of a fire or to forestall other
6
As discussed infra, caselaw has indicated that the actual, factual legitimacy of the government’s
actions is not a proper consideration in a takings analysis.
-8-
grave threats to the lives . . . of others.” Id. at 1029 n 16 (quotation marks and
citations omitted; emphasis added). The purpose of the EOs was to forestall the
spread of COVID-19 that had hospitalized and killed thousands of Michiganders.
[Gym 24/7 Fitness, ___ Mich App at ___; slip op at 17-18.]
The Court in Gym 24/7 Fitness quoted with approval a passage from Keystone Bituminous Coal
Ass’n v DeBenedictis, 480 US 470, 491-492; 107 S Ct 1232; 94 L Ed 2d 472 (1987). Gym 24/7
Fitness, ___ Mich App at ___; slip op at 18. The Keystone Court, in that passage, stated:
The Court’s hesitance to find a taking when the State merely restrains uses
of property that are tantamount to public nuisances is consistent with the notion of
“reciprocity of advantage” . . . . Under our system of government, one of the State’s
primary ways of preserving the public weal is restricting the uses individuals can
make of their property. While each of us is burdened somewhat by such
restrictions, we, in turn, benefit greatly from the restrictions that are placed on
others. These restrictions are properly treated as part of the burden of common
citizenship. Long ago it was recognized that all property in this country is held
under the implied obligation that the owner’s use of it shall not be injurious to the
community, and the Takings Clause did not transform that principle to one that
requires compensation whenever the State asserts its power to enforce it. [Keystone
Bituminous Coal Ass’n, 480 US at 491-492 (quotation marks and citations
omitted).]
The Court in Gym 24/7 Fitness stated, “In light of the precedent, we cannot conclude that the Gym
has a viable takings case under the Penn Central balancing test.” Gym 24/7 Fitness, ___ Mich
App at ___; slip op at 18.
The only consideration that could, at least theoretically, distinguish the present case from
the case of Gym 24/7 Fitness is that plaintiffs in the present case did in fact argue that the
regulations and EOs at issue were not actually warranted. However, this argument must be viewed
in context. Plaintiffs emphatically state in their primary appellate brief that the government’s
purpose in making the restrictive regulations is not pertinent to a regulatory-takings analysis under
Penn Central. They state that whether the EOs were “arbitrary, invalid exercises of the police
power” “is ultimately irrelevant to the regulatory taking analysis.” And caselaw supports this.
See, e.g., Lingle v Chevron USA, Inc, 544 US 528, 544; 125 S Ct 2074; 161 L Ed 2d 876 (2005)
(“Rather, the gravamen of Chevron’s claim is simply that Hawaii’s rent cap will not actually serve
the State’s legitimate interest in protecting consumers against high gasoline prices. Whatever the
merits of that claim, it does not sound under the Takings Clause.”); see also Dorman v Twp of
Clinton, 269 Mich App 638, 646 n 23; 714 NW2d 350 (2006) (“[T]he determination of whether a
regulation fails to ‘substantially advance legitimate state interests’ has no part in the takings
analysis.”). Plaintiffs contend that the only pertinent question regarding the government’s action
in the context of a Penn Central analysis is whether it burdens citizens equally. But plaintiffs’
authority for this proposition does not adequately support their position that their takings claim
should proceed. They cite K & K Constr, Inc v Dep’t of Environmental Quality, 267 Mich App
523; 705 NW2d 365 (2005). In that case, the Court, discussing Penn Central, indicated that
“regulation in and of itself does not constitute a taking if it applies to a widespread group of
landowners.” Id. at 560. The Court indicated that the wetlands regulations in that case applied to
-9-
all similarly situated landowners and could not be characterized as directed at the plaintiffs. Id.
at 562; see also Cummins, 283 Mich App at 720 (“Here, the township enforced the statewide
building code and its provisions regarding flood-plain construction that apply equally to all
landowners with property similarly situated in flood-prone areas.”). Similarly, the actions
challenged here applied to all similarly situated property owners.
Also, in Gym 24/7 Fitness, the Court stated:
To be clear, the Gym does not believe that the closure of fitness centers was
reasonable. But the Gym’s theory of the case is that it is entitled to just
compensation regardless of the reasonableness of the EOs. In its brief on appeal,
the Gym notes that it provided documentary evidence in the form of a study that
demonstrated that shuttering gyms and fitness centers was unnecessary and that the
risk of transmitting COVID-19 at such facilities was no greater than at other
businesses involved in indoor activities. The Gym contends that the State’s
argument to the contrary was not supported by any proper documentary evidence
and that even if the hearsay references cobbled together by the State and obtained
from the Internet can be considered, it minimally created a genuine issue of material
fact on the matter. Nevertheless, the Gym indicates that this underlying factual
dispute “misses the pertinent point” and is irrelevant. And the Gym emphasizes
that “[t]his suit does not seek to contest whether Governor Whitmer’s decision to
issue the [EOs] . . . were [sic] prudent.” [Gym 24/7 Fitness, ___ Mich App at ___
n 7; slip op at 10 n 7.]
Similarly, plaintiffs in the current case, for purposes of the regulatory-takings claim, are not
arguing on appeal that the EOs were imprudent.
The upshot is that the case of Gym 24/7 Fitness is not distinguishable from the present case.
Even if one could argue that the Court in Gym 24/7 Fitness intermingled, to some extent, concepts
of taking and governmental necessity, Gym 24/7 Fitness is binding caselaw regarding how to view
the COVID-19 regulations in Michigan. Further, even if one looks to the caselaw, such as K & K
Constr, provided by plaintiffs, it does not provide a path to appellate relief. Plaintiffs argue that
discovery is needed, but in Redmond v Heller, 332 Mich App 415, 448; 957 NW2d 357 (2020),
the Court stated that “summary disposition may still be appropriate before the conclusion of
discovery if there is no fair likelihood that further discovery would yield support for the nonmoving
party.” Such is the case here.
III. DISMISSAL OF TORT CLAIMS
Lastly, plaintiffs argue that the court erred by granting defendants’ motion for summary
disposition regarding plaintiffs’ tort claims for alleged interference with business and contractual
relationships.
MCL 691.1407(5) states that “the elective or highest appointive executive official of all
levels of government are immune from tort liability for injuries to persons or damages to property
if he or she is acting within the scope of his or her judicial, legislative, or executive authority.” In
Mack v Detroit, 467 Mich 186, 195 n 8; 649 NW2d 47 (2002), the Court stated:
-10-
The five statutory exceptions to governmental immunity are the “highway
exception,” MCL 691.1402, the “motor vehicle exception,” MCL 691.1405, the
“public building exception,” MCL 691.1406, the “proprietary function exception,”
MCL 691.1413, and the “governmental hospital exception,” MCL 691.1407(4).
A “plaintiff must plead her case in avoidance of immunity.” Id. at 198. “A plaintiff pleads in
avoidance of governmental immunity by stating a claim that fits within a statutory exception or by
pleading facts that demonstrate that the alleged tort occurred during the exercise or discharge of a
nongovernmental or proprietary function.” Id. at 204. Plaintiffs did not state a claim fitting within
a statutory exception and did not plead anything occurring during a proprietary function.
Rather, plaintiffs make an argument about “ultra vires” activities. In Coleman v Kootsillas,
456 Mich 615, 619; 575 NW2d 527 (1998), the Court stated:
Whenever a governmental agency engages in an activity which is not expressly or
impliedly mandated or authorized by constitution, statute, or other law (i.e., an ultra
vires activity), it is not engaging in the exercise or discharge of a governmental
function. The agency is therefore liable for any injuries or damages incurred as a
result of its tortious conduct. [Quotation marks and citations omitted.]
Plaintiffs contend that the Governor engaged in ultra vires activity because, in In re Certified
Questions, 506 Mich at 347, 372, the Court ruled that the Governor did not have the authority to
declare a state of emergency beyond April 30, 2020. But the Governor was clearly acting, at the
very least, under implied authority, even if the Supreme Court later ruled against that authority.
Justice Markman, in fact, acknowledged that the Governor’s interpretation of the Emergency
Powers of the Governor Act of 1945 (the EPGA), MCL 10.31 et seq., was correct, but then went
on to conclude that the statute was unconstitutional. Id. at 356-357 (opinion of MARKMAN, J.). He
stated that, as a consequence, “the EPGA cannot continue to provide a basis for the Governor to
exercise emergency powers.” Id. at 385 (opinion of MARKMAN, J.) (emphasis added). The actions
by the Governor, subject to a reasonable dispute needing to be resolved by the Michigan Supreme
Court in a lengthy and divided opinion, were not ultra vires. In addition, DHHS was authorized
to issue its own regulations, and plaintiffs do not argue otherwise. No basis for reversal is
apparent.7
7
Even disregarding the question of governmental immunity, plaintiffs acknowledge in their
complaint that in CMI Int’l, Inc v Intermet Int’l Corp, 251 Mich App 125, 131; 649 NW2d 808
(2002), the Court stated:
[O]ne who alleges tortious interference with a contractual or business
relationship must allege the intentional doing of a per se wrongful act or the doing
of a lawful act with malice and unjustified in law for the purpose of invading the
contractual rights or business relationship of another. [Quotation marks and
citation omitted.]
-11-
Affirmed.
/s/ Noah P. Hood
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
No malice or nefarious purpose was alleged. And the actions by the Governor, subject to a
reasonable dispute needing to be resolved by the Michigan Supreme Court, were not per se
wrongful. See, e.g., Prysak v R L Polk Co, 193 Mich App 1, 12-13; 483 NW2d 629 (1992) (“A
wrongful act per se is an act that is inherently wrongful or an act that can never be justified under
any circumstances.”). In addition, plaintiffs’ argument about the alleged unconstitutional taking
providing a basis to avoid governmental immunity does not make sense because that claim
pertained to a different count of the complaint.
-12- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486037/ | This is yet another episode in the seemingly unending series of land disputes in the Iliili-Airport road vicinity — another legacy of unregulated subdivision developments.
FACTS
The parties are adjacent-lot owners, and they all trace title to the original registrant Lautele Iuta. The defendant’s lot is the servient tenement, while plaintiffs’ respective holdings are the dominant tenement. The latter have filed suit seeking a permanent injunction to enjoin the defendant from interfering with their access to the main road. The defendant, who has only recently moved into the area, attempted to block the plaintiffs’ further use of a defined access road which has been made available to them since 1987. The access road came about subsequent to an agreement between the parties’ respective grantors, Tipa Fa’alafi, then owner of the servient tenement, and Mrs. Overland Olotoa, then owner of the dominant tenement. Fa’alafi and Olotoa agreed to exchange strips of land to the extent that Fa’alafi would yield up a strip of the servient tenement for access purposes, while an equal area of the dominant tenement would be yielded by Olotoa for Fa’alafi’s use. Nothing was reduced to writing, but the agreement was acted upon by an exchange of performance; the access road was constructed and made use of by Olotoa’s grantees, while Fa’alafi, on the other hand, planted and made use of that portion of the dominant tenement assigned to him.
The neighborhood lived in harmony until Fa’alafi sold his lot in 1991 to the defendant Jennings. The defendant, while continuing to make use of, and apparently also laying claim to, the exchanged strip of the dominant tenement, also wants the exclusive use of strip assigned by Fa’alafi for the access road. He claims that Fa’alafi had, immediately prior to selling him the land, given Olotoa’s husband $1,000 to buy back the strip now involving the access road. This incredible claim, even if true, does not affect the exchange agreement which was entered into between Fa’alafi and Mrs. Overland Olotoa.
CONCLUSION
Although no deeds were exchanged by their predecessors in interest, the court may nonetheless compel specific performance of a *25partially performed agreement. Indeed, the court’s power to compel specific performance is expressly recognized in the statute of frauds relating to land transactions. Sec A.S.C.A. § 37.0211. We conclude on the foregoing that there is at least an enforceable easement agreement which is binding on the parties hereto; that is, that Fa’alafi had agreed with Olotoa to grant an easement over his property in exchange for the use of an equivalent amount of Olotoa’s land.
Accordingly, we decree specific performance of the easement agreement and enjoin the defendant from interfering with plaintiffs’ rights under that easement.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486038/ | This is an appeal from a decision of the Personnel Advisory Board (hereinafter the "PAB"), an administrative agency of the American Samoa Government.
FACTS
The facts giving rise to this dispute are as follows: Subsequent to a change in administration, the new Commissioner of Public Safety, Tuilefano Vaela’a, (hereinafter the "commissioner") issued on March 31, 1989, a memorandum styled "Personnel Order No. 13-89," which essentially reshuffled and reassigned 22 departmental employees ranging from the deputy commissioner to certain office secretaries. With respect to appellant, a career officer of some 34 years’ standing, the memorandum stated that he was "relieved of his duties as DPS Advisor and . . . reassigned as Commander for the Community Services Unit." The memorandum further stated that appellant was placed under the "direct supervision of the Deputy Commissioner of Operations," one of two new management positions created and filled as the result of the subject memorandum. The new management posts were "Deputy Commissioner for Operations," and "Deputy Commissioner for Administration." The former was assigned to Commander Douglas Jessop, a career officer, while the latter position was assigned to Michael Fuiava, a training coordinator with the Territorial Emergency Management Coordinating Office.
The memorandum’s operative effect on appellant was to place him one step down the department’s organizational ladder. Whereas he previously reported directly to the commissioner, he was now to report to an intermediary deputy commissioner for operations. The reorganization, however, did not affect his police rank of commander nor his salary grade (GS-14, Step 10).
*27
PROCEDURAL HISTORY
After receiving a copy of the reorganizing memorandum, appellant filed his grievance letter with the commissioner on April 5, 1989. He protested, among other things, his being "demoted ... to a lower assignment," his reporting to a supervisor over which he had senior status, and the creation and filling of two new managerial positions in violation of the merit-system law, which regulates job advancement in the government career service.
After a departmental grievance-review committee had decided that it could not objectively arrive at a resolution to the grievance, the Director of Human Resources (hereinafter the "director") took up the matter pursuant to A.S.A.C. § 4.0903(b)(2). In a letter dated June 26, 1989, to appellant’s counsel, the director documented his decision. He rejected appellant’s demotion contention since the Administrative Code, A.S.A.C. § 4.0233, defined "demotion" in terms of a cut in pay; he upheld the commissioner’s reorganization of the department, resulting in appellant’s reassignment, as being "in compliance with the [sic] ASAC 4.0804 which gives the Agency head the right to reassign or to move any employee involuntarily from one position to another"; he dismissed appellant’s complaint about reporting to an officer over which he had seniority as being without any legal foundation; and he found that appellant’s allegation of political victimization was unsupported by the evidence. On the third aspect of the grievance, the director also declined to "question the Commissioner’s decision in the creation of the additional Deputy Commissioner position [sic] as a result of the new DPS reorganization" and upheld the filling of the position of deputy commissioner for operations by Commander Jessop as being consistent with the non-competitive promotions procedure set out in A.S.A.C. § 4.0303(b). However, with regard to the appointment of Michael Fuiava, the director stated that he was "rescinding" this appointment since it was not in accordance with requirements of A.S.C. A. § 7.0206 and A.S.A.C. § 4.0304. By separate letter dated July 6, 1989, the director notified the commissioner accordingly.
Appellant, pursuant to A.S.A.C. § 4.0903(b)(3), appealed to the PAB on the issues of his "practical demotion" and the advancement of Commander Jessop. The PAB hearing record before us appears to be that of a second proceeding reconvened on advice from the Attorney General’s Office (hereinafter the "Attorney General"). It seems that the Attorney General developed doubts as to whether the initial proceedings had satisfied the requirements of A.S.C.A. § 4.1026, relating to *28appellant’s right to be heard, and he recommended that the matter be reopened. These procedural due process concerns of the Attorney General attracted an additional procedural due process challenge from the appellant. The second hearing opened with a motion by appellant objecting to the Attorney General’s continuing representation of the director while it was, at the same time, acting as legal advisor to the PAB. The presiding chairman ruled against the motion, stating that the PAB, like every other executive board, had the attorney general as its legal advisor. On the issues, the PAB: 1) affirmed the director on the demotion issue but recommended a clarification to the department’s organizational chart to more clearly depict appellant’s position; 2) concluded that the commissioner’s reorganization of the department, and hence appellant’s reassignment, was lawfully done in accordance with the provisions of A.S. A.C. § 4.0804; 3) concluded that the filling of the new position of director for operations was consistent with the Administrative Code’s provisions dealing with the non-competitive filling of vacancies; and 4) affirmed the director’s ruling that the position of deputy commissioner for administration had to be filled through competitive procedures.
Appellant, pursuant to the Administrative Procedures Act, A.S.C.A. § 4.1040, filed for judicial review of certain aspects of the PAB’s decision.
DISCUSSION
Appellant’s first argument is that the PAB’s decision was erroneous in that it had failed to address whether his reassignment "was with the best interests of the government as the primary objective," a requirement of A.S.A.C. § 4.0804(b). Alternatively, appellant contends that notwithstanding A.S.A.C. § 4.0804(b), he was "demoted to a lesser position" or was "operationally reduced to a position of lower rank," in violation of policy objectives of the career-service laws.
We find appellant’s demotion argument to be without foundation, and we agree with the PAB that appellant was "reassigned"1 and not *29"demoted.”2 However, we are also satisfied that the PAB’s conclusion on reassignment was premised on a misreading of applicable regulation. This conclusion reads in pertinent part:
[Appellant’s] reassignment . . . was legally done in accordance with Section 4.0804 entitled "Involuntary Reassignment," ASAC. This section empowers any agency head/Director to move any employee involuntarily, without the right of appeal, provided that no reduction in grade or rate of compensation is involved.
In the Matter of the Appeal of Toleafoa T. V. Leiato, PAB (1989) "Findings of Facts, Conclusions and Order,", at 3 (entered Nov. 4, 1989) (emphasis added). Contrary to the PAB’s view, A.S.A.C. § 4.0804 does not purport to grant the commissioner, nor any other agency3 head for that matter, the singular authority to reassign employees involuntarily. Rather, involuntary reassignment requires the concurrence of the "director," A.S.A.C. § 4.0804(b), which term is defined in A.S.A.C. § 4.0237 as "the director of the office of manpower resources [now known as the department of human resources, see A.S.C.A. §4.0301(a)(11)]." Furthermore, the Administrative Code talks elsewhere about the "lateral movement" of employees in terms of a "reassignment" or "transfer.” See A.S.A.C. 4.0313(b). This regulation further provides that "[a]ll lateral movements of personnel must be approved by ihe director [of human resources]. ..." Id. (emphasis added). The movement of personnel, therefore, is not within the exclusive province of an agency head such as the commissioner. Thus, the PAB’s conclusion regarding appellant’s involuntary reassignment was affected by error of law. A.S.C.A. §4.1044(4).
Additionally, the "involuntary reassignment" of any employee is not without limitation. A.S.A.C. § 4.0804(b) requires that such an assignment be made with "the best interests of the government as the primary objective." This regulation effectively sets out the standard for *30involuntary reassignment; yet the PAB did not address this requirement, md it accordingly failed to make a finding on whether or not appellant’s reassignment was consistent with "the best interests of the government as the primary objective." Id. Since the PAB arrived at its decision upholding the director without regard to this regulatory standard, its decision was also necessarily arbitrary. A.S.C.A. § 4.1044(6). This, too, was an error of law. The regulations are quite clear; the commissioner’s authority with regard to the "involuntary reassignment" of an employee is neither singular nor untrammelled.
Appellant’s next argument is yet another attempt at his demotion contention. He claims that the reassignment regulations are somehow repugnant to the overall objectives of the merit-system law because they can be used, as the commissioner did here, to circumvent "procedural and substantive rights" statutorily provided. Appellant alludes to A.S.C.A. §§ 7.0801 through 7.0806. These enactments, however, set out the procedural requirements applicable in cases relating to demotion, suspension, and termination, but not reassignment. Appellant was not demoted since he did not receive a cut in salary, see A.S.A.C. § 4.0233, and obviously he cannot invoke the procedural safeguards attendant to demotion actions by simply calling his "reassignment" a "demotion."
On the advancement of Commander Jessop, the PAB ruled that the newly created post of deputy commissioner for operations was filled through non-competitive filling procedures and that Commander Jessop was lawfully promoted in accordance with the provisions of A.S.A.C. § 4.0303(b). These regulations, however, touch on only one aspect of the statutory scheme relating to government hiring objectives.
The Fono has declared "that all appointments and promotions to positions in the career service shall be made solely on the basis of merit, fitness, and length and quality of previous service." See A.S.C.A. § 7.0204(a). Whenever practical, the criteria of "merit and fitness" are to be ascertained "by competitive examinations," but at the same time due recognition is to be given "to practical experience . . . and probable aptitude for learning while on the job." A.S.C.A. § 7.0204(b). Where competitive examinations are not practical, A.S.C.A. § 7.0206(c) provides that "applicants for employment shall be subject to an applicant supply file system established and administered by the director of manpower resources." (emphasis added). In such instances where competitive examinations are not given, the director, "upon receipt of an approved request from a department head ... to fill a vacancy in the service on a permanent basis[,] . . . shall certify to the [requesting *31department head] ... 5 candidates . . . from an applicant supply file vhom the director of manpower resources considers to be best qualified by virtue of experience and/or training." A.S.C.A. § 7.0206(d) (emphasis added). The statute further provides that "[i]n no instance will a government official allow an employee to enter on duty unless he has been assured by the director of manpower resources . . . that the appointment action has been approved." A.S.C.A. § 7.0206(e).
The regulations which the PAB exclusively relied upon, A.S.A.C. § 4.0303(b), merely set out those situations in which noncompetitive procedures are applicable. In other words, the subject regulations attempt to identify certain situations where competitive examinations are to be considered "not practical." A.S.C.A. §§ 7.0204(b), 7.0205(b). The regulations, however, do not and cannot supersede the mandatory statutory requirement relating to the utilization of an applicant supply-file system for the hiring and promotion of government employees. See A.S.C.A. § 7.0206. It seems clear that the PAB read these regulations out of context and, in so doing, it entirely overlooked other applicable statutory considerations in assessing the propriety of Commander Jessop’s promotion. We accordingly conclude that the PAB’s decision supporting the advancement of Commander Jessop was affected by error of law.
Appellant’s final contention is that he was deprived of his procedural due-process rights before the PAB since its legal advisor, the Attorney General, was also counsel for the director. We agree. A.S.C.A. § 4.1034 statutorily prohibits such dual representation. The statute specifically states that
[n]o officer, employee, or agent engaged in the performance of any investigative or prosecuting function of an agency in a contested case may, in that . . . case, participate or advise in any final or recommended agency decision.
Clearly, by acting as the PAB’s legal advisor, the Attorney General violated this proscription.
For reasons given, we conclude that appellant’s substantive rights have been prejudiced, and in accordance with A.S.C.A. § 4.1044, we remand the matter to the Personnel Advisory Board for further proceedings consistent with this opinion.
*32It is so ordered.
A.S.A.C. § 4.02114 defines "reassignment" as the "movement of an employee from one position to another position in the same class or grade or from one position to another position in a different class at the same grade.
A.S.A.C. § 4.0233 defines "demotion" as the "change of an employee from a position in 1 class to a position in another class having a lower salary range."
The term "agency" includes government departments. See A.S.A.C. § 4.0209. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486041/ | These actions are for recovery of approximately 3.429 acres of land in Pava‘ia‘i, Island of Tutuila, American Samoa ("the land") from the possession of defendants Jack and Eliza Thompson. The vehicles selected to this end are declarations that the 1976 deed of the land by defendant Wallace Jennings to defendants Jack and Eliza is void and that plaintiffs are entitled to an undivided 2/15 interest in the land, eviction of Jack and Eliza, and correction of the Territorial Registrar’s records. Plaintiffs also seek a constructive trust imposed on the properties of Jack and Eliza on the land to compensate plaintiffs for loss of use of the land, $10,000 in punitive damages, and an injunction preventing Jack and Eliza from making any further improvements to the land.
Jack and Eliza in turn seek to have the 1950 deed signed by Jack Thompson declared void or voidable, or in the alternative, to have a constructive or resulting trust declared on the land. They also assert a number of other affirmative defenses that are not addressed here.
This decision on the merits culminates a protracted series of judicial actions. The history of these actions is set forth in essence. The first of these cases, CA No. 76-83, was commenced in 1983 by the Executor/Administratrix Tinousi Jennings on behalf of the Estate of her late husband, David Eli Jennings, and on behalf of her six children. This action was dismissed early in 1984 when it became clear, on the motion of Jack and Eliza to dismiss or for summary judgment, that Tinousi had initiated the action on behalf of non-consenting offspring.
A new action, CA No. 11-84 (one of the present actions), followed almost immediately by Tinousi on behalf of the Estate, as David Jennings’ widow and as guardian ad litem for her minor son. John David, and by two adult daughters, Zenobia Zelpher Jennings and Christabel Lupe Jennings. This action was dismissed with prejudice in 1988 for lack of diligent prosecution.
*42CA No. 22-90, renumbered LT No. 38-90, was then filed in 1990 for relief essentially the same as that sought in LT No. 54-90 (the other present action). LT No. 38-90 was dismissed that same year on motion of Jack and Eliza on the grounds that CA No. 11-84 was dismissed with prejudice. The court noted, however, that a corrective remedy may exist in CA No. 11-84 under T.C.R.C.P. 60(b), permitting relief from a judgment or order based on mistake, inadvertence, or excusable neglect.
Thereafter, LT No. 54-90 was commenced, and a Rule 60(b) motion was filed in it. The Court ordered the motion heard as having been made in CA No. 11-84 to constitute a direct, rather than collateral, attack on the judgment in CA No. 11-84. After hearing, the court granted the motion. As a land matter, CA No. 11-84 should have been brought before the Land and Titles Division of the Court, not as a civil action before the Trial Division. There is a practical difference in these two stylings when dismissal for want of diligent prosecution is at issue. Dismissal on this basis in a civil action is with prejudice, while it is without prejudice in a land and titles action, recognizing that most civil cases should be concluded expeditiously, while land claims often warrant more prolonged consideration. The Court regarded this oversight by a court official, rather than any party or counsel, as a proper reason justifying relief from the CA No. 11-84 dismissal under Rule 60(b) and regarded the motion as made within a reasonable time.
The trial date in both LT No. 54-90 and CA No. 11-84 was then set.
FINDINGS
For purposes of these findings, judicial notice is taken of the Estate of Alexander E. Jennings, PR No. 01-1960, and Estate of David Jennings, PR No. 12-77, in addition to the actions referenced above.
These actions involve the Jennings and Thompson families, and it is helpful in resolving the issues to indicate the relationships of family members immediately connected with those issues, as shown by stipulation and other evidence in the following chart:
[[Image here]]
*43It is also noted that Jack is of 3/4 Samoan blood while Alexander was of 1/2 Samoan blood.
By "Deed of Conveyance" dated December 13, 1948 (the 1948 deed), Pule, Matai of the Pule family, for himself and the Pule family, conveyed this land to Jack Thompson as Jack’s individually owned land. The deed shows that Jack paid Pule $800 as consideration. On April 25, 1949, the Land Commission recommended the Governor’s approval, and Governor Vernon Huber approved the transaction. The deed was recorded with the Territorial Registrar on May 2, 1949 (in vol. Ill of the Register of Land Transfers, at 14-15).
On July 31, 1950, Jack signed a "Deed of Conveyance" (the 1950 deed) transferring the land to Alexander Eli Jennings as Alexander’s individually owned land. The recited consideration is the nominal $1. The copy of this document in evidence does not bear a recommendation of the Land Commission or the Governor’s approval. It was, however, recorded with the Territorial Registrar on August 29, 1950 (in vol. Ill of the Register of Land Transfers, at 29).
At the time of these two transactions, Jack was married to Eliza, one of Alexander’s daughters. They are still married. Jack was then a radioman in the U.S. Navy and was stationed in American Samoa. His testimony was that the $800 he paid for the land were part of his savings from his $245 monthly Navy pay. Since he was from the Manu‘a Islands, the land was purchased for his immediate family’s future use.
In 1950 Jack was reassigned to Honolulu. He testified that his father-in-law Alexander had told him on several occasions that he would look after his property while he was away. Before departing, Alexander approached him about signing the 1950 deed, saying it gave him permission to look after the land. Alexander only showed him the second page, on which appears only the attestation clause and the signatures of Jack and two witnesses.
Following his transfer to Hawaii in 1950, Jack continued to serve in the U.S. Navy until he retired in 1957. He was then employed by the U.S. Federal Aviation Administration (FAA) outside of American Samoa, including a substantial period of time when he was stationed in Guam.
At some time after July 1950 and before his death in 1958, Alexander constructed a small house on a foundation left by the U.S. *44Marines on the land. However, the principal Jennings home remained in Utulei.
Probate of Alexander’s estate was commenced in 1958 in this Court. The proceeding was initiated by a petition for letters of administration by the on-island heirs at law of Alexander and the Bank of American Samoa (the Bank), as the most competent creditor of the deceased residing in American Samoa; the Bank was appointed the administrator of the estate. In 1959, his will was found, naming the Bank as the executor of the estate. The will was executed in 1938. It was admitted to probate, and letters testamentary were issued to the Bank in 1960.
The land was included as part of the estate in the original petition for letters of administration and, since it was not covered by the will, passed by intestate succession. The order of final settlement, decree of distribution, and discharge of executor was issued by this Court on July 26, 1962. The order gave a 2/15th share each in the land to Eliza, Wallace, Lilly, and David, Alexander’s living children, and to the heirs of Zilpher, his predeceased daughter.
Jack testified he did not know the land was included in the estate during the time of the probate of Alexander’s estate. He did, however, state in an affidavit filed in CA No. 22-90, which he signed, but does not now recall signing, on June 26, 1990, that "it was not until my father-in-law’s estate was probated in 1962 that I discovered that my Pava‘ia‘i land was deeded to him."
Based on a transcript of proceedings in the Estate of Alexander E. Jennings, PR No. 01-1960, Eliza and David were present at the close of this estate and responded to questions by the Court. Thus, Eliza and David knew in 1962 that the land was included in Alexander’s estate. A reasonable inference from this fact is that Jack also knew about the inclusion of the land in Alexander’s estate during its probate or at least shortly after its closing. A further reasonable inference is that Eliza became aware of Jack’s version of the 1950 deed and its attendant circumstances contemporaneously with Jack’s knowledge of the land’s inclusion in Alexander’s estate.
David and Tinousi Jennings were married in July 1962. Initially, they lived in the Jennings home in Utulei. However, they did live in the house Alexander built on the land from some time in 1964 until 1967 when they moved back to the Utulei home.
*45Tinousi testified that David related family history to her from time to time. The following is information pertinent to this case from this source. Alexander married Margaret Pedro. Five children, Eliza, Wallace, Zilpher, Lilly, and David, were bom of this marriage. Alexander purchased the land for $800 from Pule in 1948 and brought people and animals from Swains Island to live there. However, he could not register the land due to the extent of his non-Samoan blood. Thus, Alexander had the land registered in his son-in-law Jack’s name. After the law was changed in 1949, reducing the Samoan blood requirement and qualifying Alexander to own land, the 1950 transfer took place.
David died at age 34 in 1971 at the Utulei house following a fall. Tinousi is the administrator of David’s estate.
Meanwhile, Jack and Eliza retired to American Samoa when Jack was unable to obtain an FAA assignment in American Samoa and decided to resign. Eliza came back in Í968 and moved into the house on the land after a few weeks in the Utulei home. Jack returned in 1969. Since their return, Jack and Eliza have continuously lived and still do live on the land. Over time they made substantial improvements to the land, including two additional houses, a store, and a tennis court. Tinousi first learned of the claim by Jack and Eliza to all of the land in 1968, but neither she nor any other Jennings family member made any objection to this claim or to the Thompson improvements until 1975, when Tinousi’s plans to build a home there were denied by Jack and Eliza. Margaret, a daughter of David and Tinousi, testified to one emotional confrontation about this subject.
Regardless of when Jack learned of the inclusion of the land in Alexander’s estate, Tinousi’s building plans and claim to the land prompted Jack’s first legal action to establish his title to the land. On attorney George Wray’s advice, the land was deeded to Jack and Eliza in 1976. This "Deed of Conveyance," dated September 6, 1976 (the 1976 deed), was executed by Wallace H. Jennings, another of Alexander’s sons, as "Trustee of the Estate of Alexander E. Jennings, deceased" and purported to transfer the land, in consideration of $1, to Jack and Eliza. Wallace’s appointment as trustee is not documented.
This action turns on the consequences flowing from the three deed transactions.
1. 1976 Deed
*46Since Wallace was not the trustee of Alexander’s estate on September 6, 1976, he did not have any legal authority in that capacity to execute the 1976 deed of the land to Jack and Eliza.
Moreover, title to the land had been transferred to Alexander’s intestate heirs by this Court’s distribution order on July 26, 1962. Thus, any conveyance of the land to Jack and Eliza at any time after that date would require a deed executed by those heirs or their legal representative(s), rather than a representative of the estate.
The 1976 deed has no legal effect and must be cancelled.
2. 1948 and 1950 Deeds
These deeds are discussed together due to the intimate interrelationships of the circumstances surrounding their executions.
As indicated above, Jack testified that he purchased the land for his immediate family’s use, paying $800 from his savings. On the other hand, Tinousi testified that according to family history related by David, Alexander provided the $800 and purchased the land for the Jennings family’s use. Under the law in 1948, Jack was able to own land in American Samoa, and Alexander was not permitted to own land. It is also true that both Jack and Alexander originated from outside the Island of Tutuila, from the Manu‘a Islands and Swains Island, respectively. However, at the time, the Jennings had a family home in Utulei, while Jack, married to Alexander’s daughter Eliza, did not yet own land to develop on Tutuila.
Evaluating the evidence as a whole, we find that the preponderance establishes that Jack purchased the land in 1948 as his individually owned land and not on Alexander’s behalf.
The U.S. Navy’s reassignment of Jack to Hawaii in 1950 created his need for someone to look after his property and affairs in American Samoa while he was away. We find that the discussions between son-in-law Jack and father-in-law Alexander about the land in that year were in the context of this management need and not due to the 1949 change in the law qualifying Alexander to own land. We further find that when Alexander presented the 1950 deed to Jack to sign, Alexander failed to reveal to Jack the true nature of the document. Alexander’s acquisition of the land is properly construed in one of two ways.
*47When two persons, particularly family members, discuss and plan that one will manage the other’s property or business affairs while he is away, a fiduciary relationship is established between them in the absence of actual fraud. Alexander’s acquisition of the land was the result of constructive fraud or undue influence by Alexander, arising from a violation of a fiduciary relationship between Jack as son-in-law and Alexander as father-in-law. See Restatement of Restitution § 166 (1937); Johnson v. Clark, 7 Cal. 2d 308, 61 P.2d 767 (1936). It was also the result of an implied promise by Alexander to reconvey the land to Jack upon Jack’s return to American Samoa, arising out of the fiduciary relationship. See Steinberger v. Steinberger, 60 Cal. App. 2d 116, 140 P.2d 31 (1943); 76 Am. Jur. 2d Trusts § 234 et seq. The evidence in support of both of these constructions was clear and convincing.
Under these circumstances, a constructive trust provides the remedy to transfer the property at issue to the person entitled to it. See Calistoga Civic Club v. Calistoga, 143 Cal. App. 3d 111, 117, 191 Cal. Rptr. 571, 575-76 (1983); Restatement of Restitution § 160 (1937); 76 Am. Jur. 2d Trusts § 221 et seq. After execution of the 1950 deed, Alexander held the land in trust for Jack and was obligated to reconvey the land to Jack no later than upon his return to American Samoa.
When Alexander died, the obligation of this constructive trust passed to the Bank of American Samoa as the Administrator of Alexander’s intestate estate. Following distribution, that obligation was transferred to Alexander’s intestate heirs.
In order to accomplish the effect of this remedial constructive trust some 42 years later, the 1950 deed should be canceled, and as a result, title to the land should now be vested in Jack Thompson through the valid 1948 deed.
Equitable Estoppel
Plaintiffs argue that Jack and Eliza are barred by equitable estoppel from taking unfair advantage of plaintiffs through the long-term failure of Jack and Eliza to assert fraud or other invalidity of the 1950 deed.
Atuatasi v. Tu'ufuli, 9 A.S.R.2d 67, 76 (App. Div. 1988) (quoting Johnson v. Williford, 682 F.2d 868, 872 (9th Cir. 1982)), sets forth a four-part test for estoppel:
*48The party to be estopped must know the facts;
he must intend that his conduct shall be acted on or must so act that the party asserting estoppel has a right to believe it is so intended; to
the latter must be ignorant of the facts; and en
he must rely on the former’s conduct to his injury.
Three elements of equitable estoppel are not present in this action. First, if Jack and Eliza misrepresented or concealed any material fact, it was only their knowledge of the inclusion of the land in Alexander’s estate when Alexander should only have had managerial powers over the land, not an ownership interest. Jack and Eliza became aware of this inclusion in Alexander’s estate, at the latest, at some time between 1958, when the probate proceeding was instituted, and 1962, when the land was distributed to Alexander’s intestate heirs. Alexander’s intestate heirs were aware of the inclusion of the land in his estate contemporaneously with Jack and Eliza.
Second, plaintiffs have not shown that Jack and Eliza intended for the plaintiffs to rely on any misrepresentation or concealment. Jack and Eliza openly asserted their claim to the land as their land at least as of 1968-1969, when they permanently returned to American Samoa and took possession of and began to make substantial improvements to the land.
Finally, plaintiffs have not shown that they relied on any misrepresentation or concealment or that they suffered injury from it. As related above, Alexander’s intestate heirs must have been aware of the claim by Jack and Eliza no later than 1969. There was no objection made to their claim by any of these heirs until 1976, when Tinousi offered her plans to relocate her home to the land and was refused. Thus, any misrepresentation or concealment was fully revealed before any injurious reliance could take place.
In fact, the remaining heirs appear to agree with the claim by Jack and Eliza to the land. Wallace certainly did agree, as evidenced by the 1976 deed. While they are not yet legally precluded from any judicial action, neither Lilly, nor any heir of Wallace, who died in 1989, nor any heir of Zilpher, who died in 1961, has participated in this action.
*49Plaintiffs have not shown any basis to estop Jack and Eliza from pursuing Jack’s claim to own the land.
Laches
Similarly, Jack and Eliza’s claim is not barred by the equitable doctrine of laches. The classic elements of laches have not been shown: "an unreasonable delay in the assertion of their [sic] rights by one party and undue prejudice to the other party.” Siofele v. Shimasaki, 9 A.S.R.2d 3, 14 (1988). Even if there were an undue delay by Jack and Eliza in asserting their claim to all of the land, plaintiffs have not shown that they have suffered undue prejudice, just as they have not shown injury for the purposes of estoppel.
CONCLUSIONS
A constructive trust on the land is established with Alexander E. Jennings and his successors in interest as trustees and Jack Thompson as beneficiary.
The 1976 and 1950 deeds are declared void and cancelled. The Territorial Registrar shall cancel the registrations of the 1976 and 1950 deeds. Jack Thompson is declared to be the owner of the land as individually owned land by virtue of the 1948 deed.
Judgment shall enter accordingly.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486042/ | *51This action seeks declarations on plaintiff Michael R. Sala’s rights with respect to proceedings to terminate his employment by defendant American Samoa Government (Government).
FINDINGS
The evidence before the Court consists solely of documents offered by the parties and admitted. The relevant and material facts provided by these documents for purposes of this opinion are as follows:
1. Plaintiff is a career service employee of the Government. On August 23, 1991, he held the position of Deputy Commissioner in Government’s Department of Public Safety (DPS). His duties included the functions described in paragraph 4 of these findings.
2. On August 23, 1991, the Acting Governor, pursuant to A.S.C.A. § 4.0302, issued a memorandum to the Commissioner of Public Safety (Commissioner) authorizing the Commissioner to appoint a "Special Board of Inquiry" (BOI) to investigate allegations of criminal violations of plaintiff as the driver of a motor vehicle in a traffic accident on or about August 6, 1990, in American Samoa, and to provide a report and recommendations to the Commissioner and Attorney General’s Office. The memorandum also directed the BOI to "conduct its proceedings pursuant to the Administrative Procedures Act (APA), and in accordance to the laws and regulations pertaining to career service employees of the American Samoa Government."
3.On September 20, 1991, plaintiffs attorney wrote to Michael Fuiava, who is a Deputy Commissioner of Public Safety in charge of DPS operations and was the BOI’s Chairman. This letter appears to have been written when plaintiffs attorney first became aware of the BOI’s activities. It informed the Chairman that plaintiff would not make any further written statements to the BOI in view of the pending personal-injury action. It also questioned both the Governor’s authority to delegate his power to appoint a board of inquiry and the lack of procedural rights afforded plaintiff in the BOI proceedings to that date under the APA and career service laws or rules.
4.The "Report on the Findings, Conclusions and Recommendations of the Special Board of Inquiry," dated November 8, 1991, was addressed to the Commissioner and Attorney General. The title page, Table of Contents, and the first 11 pages and part of Page 12 are in evidence in this action. The report shows that:
*52a. In addition to Chairman Fuiava, the BOI’s members were the DPS Commander in charge of the Training Division, DPS Commander in charge of the Office of Motor Vehicles and Highway Safety, DPS Commander in charge of the Records Office, and DPS Commander in charge of Administration and Finance. The Chairman is of equal rank to plaintiff. The other members are of lower rank.
b. The Commissioner requested the Attorney General to provide legal counsel for the BOI. Assistant Attorney General Ripley was assigned to this role.
c. The BOI took note of the DPS Standard Operating Procedures (SOP), which govern internal investigations of alleged improprieties or misconduct of DPS employees and provide for a board of inquiry to make findings and recommendations to the Commissioner. In cases of proposed adverse disciplinary action, the SOP provides that proceedings of such boards of inquiry shall be conducted subject to applicable territorial and federal laws, apparently referencing the due process requirements in A.S.C.A. Title 4 and A.S.A.C. Title 4.
d. The BOI decided that the SOP was not applicable to its proceedings for two reasons. First, the SOP requires that the members be of equal or higher rank to the employee subject to those proceedings. The BOI Chairman was the only available person who met this requirement, which necessitated the Acting Governor’s' action to authorize the BOI. Second, the SOP, despite their approval by the Commissioner and Governor, had not been adopted under the formal rule-making process. Thus, the BOI decided to use the SOP only as a guideline.
e. The BOI also decided to conduct its proceedings as an investigatory process rather than as a contested-case hearing under the APA. Thus, the BOI did not afford plaintiff the contested-case requirements of reasonable notice of the hearing and opportunity to respond, present evidence and argument, and conduct cross-examination at the hearing. Rather, it took statements under oath by witnesses appearing voluntarily or by subpoena and considered documentary evidence such as police reports, witness statements, and photographs.
f. The BOI began its investigation on August 27, 1991, by reviewing official DPS reports. Witnesses gave statements at various times between August 30 and October 1, 1991, when they and at least three BOI members were available. The accident scene was viewed by the *53BOI on September 3, 1991.
g. During its investigation, the BOI also decided to expand the scope of its inquiry to include the manner in which the traffic accident investigation was carried out by DPS employees in light of conduct by them that, if substantiated by sufficient evidence, could lead to charges involving obstructing justice, tampering with evidence and perjury by some or all of these employees.
h. The Table of Contents indicates the report covers circumstances leading to and at the traffic accident, the conduct of the investigation and follow-up investigation by various DPS employees and an employee of the Attorney General’s Office, and plaintiffs involvement in the conduct of the investigation on general dates, beginning August 13 and ending September 19, 1990. It also lists conclusions and recommendations regarding plaintiff in terms of six territorial laws on speeding, general duty of driver, careless driving, driving while under the influence of intoxicating liquor, causing bodily injury, tampering with or fabricating physical evidence, and tampering with a witness.
5. On November 15, 1991, the Commissioner of Public Safety served plaintiff with Commissioner’s Office Memorandum No. 61-91, entitled "Notice of Charges Re Traffic Accident on August 6, 1990." The Notice informed plaintiff that the BOI had completed its investigation and recommended plaintiffs prosecution on criminal charges and adverse disciplinary action by termination of his employment. Plaintiff was given three days to respond to the memorandum, which he did in writing on November 18, 1991.
6. On November 15, 1991, the Commissioner also issued to plaintiff Commissioner’s Office Memorandum No. 62-91, entitled "Notice of Placement of [sic] Annual Leave." This Notice, on the basis of the BOI report and the sensitive nature of plaintiffs position and responsibilities in the Department, relieved plaintiff from all duties of his position and placed him on annual leave, effective immediately, until resolution of the underlying matter.
7. Plaintiff responded on November 18, 1991, at length and in detail. He denied each of the alleged statutory violations, and for most allegations provided further comment. He also protested the denial of rights under the ABA career service laws and rules, specifically citing A.S.A.C. § 4.1026 and SOP § 4.1. He then continued with comments *54on the lapse of time after the traffic accident before the BOI was convened and on details of certain events and his actions after the traffic accident. He concluded by commenting on the BOPs recommendations, the validity of its report, again the lapse of time, and the importance of his role as the head of the Government’s operations within DPS in connection with the programs of the South Pacific Islands Criminal Intelligence Network (SPICIN) and the U.S. National Central Bureau (Interpol).
8. On November 18, 1991, the Acting Governor, by memorandum to the Commissioner, restored plaintiff to his position as head of the Government’s SPICIN and Interpol operations.
9. On November 25,1991, Assistant Attorney General Ripley wrote to plaintiffs attorney to follow up on their conversation on November 21, 1991. This letter indicated that the Commissioner would return plaintiffs November 18, 1991, response for attorney-client consultations as may be appropriate and would allow more time to respond in any event. Mr. Ripley also stated he had advised the Commissioner that only the Commissioner, and no BOI member, can participate or advise in any final or recommended agency decision for disciplinary action.
10. On November 27, 1991, plaintiffs attorney responded to Mr. Ripley’s letter. This letter identified four concerns with the disciplinary proceedings. First, the Attorney General’s Office was still plaintiffs attorney of record in the personal injury action, which arose out of the August 6, 1990, traffic accident and was still pending, and directly participated in the BOI proceedings, allegedly causing a conflict of interest. Second, the entire BOI report was sent to the Commissioner while plaintiffs attorney inteipreted the Acting Governor’s authorization of the BOI to limit this action to only the BOI’s recommendation. Next, the BOI proceedings did not comply with the APA or the administrative rules governing disciplinary action against career-service employees. Finally, the bulk of the report dealt with matters outside the scope of the Acting Governor’s authorization, to wit, the traffic citations, which had been alleged in the personal-injury action complaint but were later acknowledged as not in fact having been issued. For these reasons and other violations of plaintiffs rights, he advised the Attorney General’s Office that plaintiff would not participate in the BOI proceedings, urged withdrawal of the BOI report and the BOI’s dissolution, objected to the Commissioner’s taking disciplinary action against plaintiff due to the BOPs review of plaintiffs November 18, 1991, response, and cited *55conflicts of interest of the Attorney General’s office and DPS as preventing further action in this matter.
11. On February 7, 1992, the Commissioner forwarded the BOI report, Commissioner’s Office Memorandum No. 61-91 of November 15, 1991, and plaintiffs written response of November 18, 1991, to the Director of Human Resources (Director) and, stating that plaintiffs "acts and misconduct in this matter have adversely reflected upon the dignity, integrity and prestige of the governmental service," recommended that plaintiff be terminated from employment with the Government. The Commissioner did not request plaintiffs suspension with or without pay pending removal.
12. On February 10, 1992, plaintiffs attorney wrote to the Director. This letter requested - the Director not to take action on the Commissioner’s February 7, 1992, memorandum until the Commissioner’s conflict of interest and the legality of the BOI’s action were resolved and the Attorney General’s "special investigator’s" findings were known, citing improprieties in the BOI proceedings, the Commissioner’s violation of A.S.C.A. § 4.1034, and the Attorney General’s decision to obtain outside counsel to handle the matter.
13. On February 25, 1992, the Director responded to plaintiffs attorney. This letter denied the request not to take further action.
14. On February 25, 1992, the Director of Human Resources, by memorandum to plaintiff, notified plaintiff that the Director was terminating plaintiffs employment with the Government, effective March 28, 1992, and suspending plaintiff from his duties, which was implemented without pay, for 30 days from February 26 to March 27, 1992. The notice informed plaintiff that the Director had carefully reviewed this matter and concurred with the Commissioner’s recommendation as reasonable. It further advised plaintiff that his termination was based on plaintiffs "conduct unbecoming a reliable and dependable employee of the Government," citing specifically charges of "speeding, careless driving, driving while under the influence of intoxicating liquor, causing bodily injury, tampering with and/or fabricating evidence, and failure to exercise care while operating a government vehicle” arising out of the traffic accident on August 6, 1990. The letter also advised plaintiff that he was entitled to request, within ten days, a hearing before the Government’s Personnel Advisory Board (PAB) on this matter and that he had certain rights and procedures related to his hearing process.
*5615. On February 26, 1992, plaintiffs attorney again wrote to the Director. This letter pointed out that the Acting Governor’s August 23, 1991, authorization specifically directed compliance with the APA and the requirement of the Act that investigatory proceedings and reports must conform with an investigatory board’s convening order.
16. On February 28, 1992, plaintiff formally requested a hearing before the PAB, which was then scheduled on March 16, 1992, by the Director. Before the hearing date, plaintiff requested additional preparation time and disqualification of the Attorney General’s Office from representing the Government at the hearing. The Attorney General’s Office agreed on the Government’s behalf to both requests. On March 13, 1992, plaintiff filed this action for declaratory relief. In a hearing before this Court of March 27, 1992, the parties agreed, among other things, that at plaintiffs request the PAB hearing would be delayed until after a final decision in this action.
DISCUSSION AND CONCLUSIONS
1. Actual Controversy
We first address the issue of whether or not there is an actual controversy relating to the legal rights and duties of the parties, which is the core requirement of a declaratory relief action. A.S.C.A. § 43.1101. There must be a justiciable issue based on alleged facts showing, under all the circumstance, that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment. The test generally applied is the relative certainty that litigation will eventually follow if declaratory relief is not granted. In re High Chief Title Mauga, 4 A.S.R. 132 (Trial Div. 1974); Danzy v. Johnson, 417 F. Supp. 426 (E.D. Pa. 1976), aff’d, 582 F.2d 1273 (3d Cir. 1978).
Plaintiff is a career service employee of the Government. The Government proposes to terminate plaintiffs employment through the adverse or disciplinary action process applicable to career-service employees. Plaintiff is challenging the due-process adequacy of the procedures to date. It is difficult to frame a more direct and immediate controversy involving legal rights and duties of parties that has high potential to result in future litigation if the alleged errors are not resolved now. An actual controversy exists.
2. Refusal to Hear
*57Despite the presence of an actual controversy, the Court still has discretion to refuse declaratory relief when, under all the circumstances, it is not necessary or proper at the time it is sought. A.S.C.A. § 43.1102. Application of this statute properly involves analysis of the administrative-law principle that the exhaustion of administration remedies is a prerequisite to judicial review in the context of a declaratory-relief action.
The exhaustion of administrative remedies standard does not absolutely preclude earlier judicial action, but such action is permissible only in exceptional circumstances. In disciplinary matters, a public employee need not await a final agency decision only if a preliminary agency decision clearly and unambiguously violates a statutory or constitutional right of the employee or if the prescribed administrative process is clearly inadequate to prevent irreparable injury. Barnes v. Chatterton, 515 F.2d 916 (3d Cir. 1975); American Fed’n of Gov’t Employees, Local 1004 v. Resor, 442 F.2d 993 (3d Cir. 1971); Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972); Athas v. United States, 597 F.2d 722 (Ct. Cl. 1979).
Since the PAB hearing remains as a significant step in proceedings to terminate plaintiffs employment, administrative remedies are clearly not yet exhausted. The Court cannot and will not speculate on the outcome of this hearing.
A further factor is avoidance of judicial administration of executive-branch processes. The Court is in no position in theory or practice to take on the executive’s functions to administer territorial laws and rules. Election Office of Am. Samoa Gov’t v. Tuika, 9 A.S.R.2d 1 (Trial Div. 1988).
With these limiting principles in mind, we turn to analyzing the substantive issues.
3. Misconduct investigation
Disciplinary action against public employees almost invariably starts with an investigation of some kind into the misconduct resulting in discipline. Normally, such investigations are informal and do not involve due-process requirements. They may, however, require certain due-process procedures when an underlying statute or regulation specifies particular procedures to follow. For specific examples and discussion of principles, see Morgan v. United States, 304 U.S. 1 (1938); Green v. *58McElroy, 360 U.S. 474 (1959); Hannah v. Larch, 363 U.S. 420 (1960); Federal Communication Comm’n v. Schreiber, 381 U.S. 279 (1965).
The type of investigation required in this case depends on whether the board of inquiry provisions of the SOP or the contested case provisions of the territorial APA, A.S.C.A. §§ 4.1025-4.1037, or both, apply to the disciplinary process. Both the SOP and APA afford a person under investigation basic due-process rights, summarized, for purposes of this discussion, as notice of the hearing, including a concise statement of allegations, and a right to a hearing at which there is an opportunity to respond and present evidence and argument on all issues involved and conduct cross-examination. SOP §§ 4.1.3, 4.1.4; A.S.C.A §§ 4.1025, 4.1026.
The SOP was approved by the Commissioner and the Governor, but it has not been adopted pursuant to the rule-making procedures set forth in the APA, specifically A.S.C.A. § 4.1020. Thus, it is not an administrative rule as defined in A.S.C.A. § 4.1001(g), having the force and effect of law. It is, however, effective as a statement of internal DPS management, which requires no formal adoption process.
Although it is intended to be applicable as an internal management tool to all disciplinary actions involving DPS employees, the SOP, by its own terms, could not work in the disciplinary proceedings against plaintiff. SOP § 4.1.2 clearly provides that the board of inquiry must consist of four or five members "selected from among employees of the department of equal or higher rank than the employee against whom disciplinary actions [sic] is brought." Excluding the Commissioner, the only person qualified to serve as a member was the Deputy Commissioner who was eventually named as Chairman of the BOI.
Whether or not the Acting Governor issued the BOI convening order of August 23, 1991, exclusively due to this limitation in the SOP, he did, pursuant to A.S.C.A § 4.0302, authorize the BOI investigation.
This convening order delegated the authority to select the BOI members to the Commissioner. Plaintiffs argument that executive appointments must remain with the Governor may reflect sound policy, but so long as A.S.C.A. § 4.0131 allows the Governor and other executive branch officials to delegate their authority, but not their responsibility, without limitation, this delegation of appointing authority was proper. We do not believe that other existing statutes on executive-branch appointments limit A.S.C.A. § 4.0131.
*59Four of the BOI members appointed by the Commissioner were DPS employees of lesser rank than plaintiff. These appointments were contrary to the principle of SOP §4.1.2 and certainly raise the possibility that these members might be influenced by aspirations for plaintiffs position. However, there is no evidentiary basis for finding any such motivation at work in this case. Although it may have been unwise not to select persons at the deputy or higher level from Government agencies outside of DPS, we conclude that there was no error at law in the makeup of the BOI as appointed.
The convening order also provided that the BOI "shall conduct its proceedings pursuant to the Administrative Procedures Act." A.S.C.A. § 4.0302(b) states that "proceedings and reports of a board of investigation shall be as designated by the Governor in the order convening any such board." The APA has three distinct parts, which are rule-making, contested cases, and judicial review. Since the BOI was not involved in either rule-making or judicial review, the reference can only mean the contested-cases provisions and their procedural due-process requirements. These due-process rights were expressly denied to plaintiff by the BOI.
The denial of plaintiffs fundamental rights, which are established not only statutorily but also constitutionally, Rev. Const. Am. Samoa Art. I, § 2 (1967), brings this case within the violation of statutory or constitutional rights exception to the exhaustion of administrative remedies principle for purposes of declaratory-relief actions. Hence, the disciplinary action taken to date to terminate plaintiffs employment for conduct related to the traffic accident on August 6, 1990, must be and is declared null and void ab initio. Plaintiff must be and is restored to his position as Deputy Commissioner in the DPS, which he held on November 15, 1991, with all pay and benefits restored from November 16, 1991, forward, including all earned annual leave which he may have been required to take in connection with the employment termination proceedings against him. Judgment will be entered accordingly.
Since our conclusion that the investigatory phase of the employment-termination proceedings against plaintiff is fatally flawed is dispositive of this action, we decline to address plaintiffs other allegations of denied rights. Advisory opinions in declaratory-relief actions are properly avoided. Danzy v. Johnson, 417 F. Supp. 426 (E.D. Pa. 1976), aff’d, 582 F.2d 1273 (3d Cir. 1978).
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486043/ | *61This is an action by which plaintiffs Peter Crispin and Henry Jamison seek damages against the American Samoa Government for property damage.
FINDINGS
Plaintiffs jointly own a 26-foot Sea Ray Express motorboat. Plaintiff Crispin is also a co-owner of the Tool Shop, Inc., which has business premises on land in the Sen. Daniel K. Inouye Industrial Park at Tafuna, American Samoa, leased from defendant. Facilities of the Maintenance and Operations Division (M & O) of defendant’s Department of Public Works are on land immediately adjacent to the northern boundary of the Tool Shop area. The two areas are separated by a 6-foot chain-link fence.
On Saturday, February 3, 1990, the motorboat was parked on a trailer at the west end of the Tool Shop building, next to the separating fence. It had been there for approximately two to three months in need of repair due to a blown head gasket. The trailer axle was also in disrepair. Thus, the motorboat was not readily movable from this location on this date. The motorboat had been parked at this point on many occasions before when it was taken out of the water.
Across from the motorboat, there was a shed that was next to the fence on the M & O premises. The shed covered various equipment parked in this area by defendant. Defendant constructed the shed in June or July 1988. Plaintiff Crispin told the workers that he thought the quality of the construction was not good work. They laughed. He also informed the head of the M & O Division about his opinion on the quality of the shed’s construction. However, no alterations were made to the structure.
A storm with strong winds began to impact American Samoa on Friday, February 2, 1990. Plaintiff Crispin had heard by Friday evening that the storm might reach hurricane proportions. The Tool Shop opened for business Saturday morning, February 3. However, the storm was growing in strength, with strong gusts of wind, and all employees had been allowed to go home by noon.
Plaintiff Crispin and his wife remained at the premises past noon. Bill Maxey, a business person then operating at the Lumanai Corporation warehouse a short distance to the east in the Industrial Park, and his wife stopped by some time between noon and 12:30 *62p.m. At approximately 1:00 p.m., while the two couples were having coffee in the second-floor office of the Tool Shop at the west end of the building, Maxey and plaintiff Crispin saw the roof of the shed blow off in one piece and into and over the fence onto the motorboat.
At the time the shed roof was blown onto the motorboat, the winds generally came from a northeasterly direction. However, the Tool Shop building did not offer much protection to the area where the motorboat was located. The roof was still on the motorboat when plaintiff Crispin checked about 11:00 p.m. Saturday night. Another check between 2:00 and 3:00 a.m. Sunday, February 4, revealed that the roof had blown off the motorboat.
While the roof lay on the motorboat, the wind was banging the roof up and down against the motorboat. Plaintiff Crispin inspected the damage on Monday, February 5, 1990. It was extensive. Both starboard windows and their top and side frames were broken. One port window was also broken. The top awning and frame were destroyed. The cabin doors were damaged, and substantial interior water damage occurred. The front hatch was broken. The stem handrail was also broken, and other handrails were bent. The gel coat on the hull was extensively chipped. The estimated cost of repair is $4,300.
Akapo Akapo of the U.S. National Weather Service provided the official records of wind strength taken at the nearby Pago Pago International Airport during this storm, designated Hurricane Ofa. The winds were recorded until the Weather Service lost power about 6:00 p.m. on Saturday, February 3, 1990. The highest recorded wind on Saturday was 93 knots or approximately 107 miles per hour at 2:19 p.m. Between 12:30 and 1:30 p.m., the winds ranged from a low of 15 knots, or 17.25 miles per hour, to the strongest gust at 77 knots, or 88.55 miles per hour.
David Gianni, General Manager of the Architect and Engineering Division (A & E) of the Department of Public Works of defendant Government, testified to community building standards. At the time of Hurricane Ofa, the Uniform Building Code, Short Form, 1964 edition, was in effect. The shed would be rated under the Code as a "J" occupancy structure, which is a non-human occupied building with the least restrictions applicable to its construction. There would be no wind resistance restrictions. He had seen the shed before the storm and did not observe any violations of applicable construction *63standards in the Code or of generally accepted standards in the community. The shed would not withstand the winds of Hurricane Ofa. He would have designed, if he had been involved in that phase, a more substantial shed for its intended purposes, which would have withstood 80 to 90 mile per hour winds, in light of safety considerations for adjoining property.
Hurricane Ofa caused severe damage throughout the Tafuna area. The Lumanai Development Corporation building, housing Bill Maxey’s business, suffered extensive wall and roof damage at some point after the shed roof was deposited on the motorboat. Paul Dumas, a defendant Government employee with the Department of Education and a resident at the Government-housing complex about one-half mile to the east of the Tool Shop, testified to serious damage to units there. The winds were at their peak in that area late Saturday night and early Sunday morning. There was both structural damage, particularly to roofs, and considerable water damage inside the housing units.
Andy Smith, who is presently the Deputy Director of Public Works and was General Manager of the Civil Division when Hurricane Ofa struck, testified to several inspections during and after the storm. He inspected north-shore areas of the Island of Tutuila on Friday, February 2, where severe, wave-surge damage occurred. During the morning of Saturday, February 3, he checked on crews working at various damaged areas. These inspections were slowed by obstacles on the road requiring removal for vehicles to pass.
He returned to the M & O compound at Tafuna at 1:30 p.m. on Saturday, February 3. While there, this area was being struck by periods of heavy rains with intermittent strong winds. When he left for home about 3:00 p.m., he'observed that a large section of the roof had blown off the Bums Philp lumber-yard building, which is south and across the street from the Tool Shop, into the adjacent Spencer Company warehouse. Banana trees and a breadfruit tree were blown down near his Government quarters in the Tafima-housing area. The storm was then intensifying. By dark that evening, mango and other larger trees were down in this area.
After the storm, he observed extensive damage in the Tafuna area. Power poles were snapped and lines down. In the Industrial Park, the CBT Lumber warehouse had collapsed. Portions of the Bums Philp roof were blown away. Roofs at the Tropical Millwork *64buildings were off. Metal skin at the GHC Reid facility was gone— likewise at the South Pacific Recycle premises. The McConnell-Dowell building had roof damage. The Ice, Inc. facility was severely damaged, as was the T & T compound. All of these structures are located in the vicinity of the Tool Shop.
Towards the Pago Pago International Airport, the Tafuna High School gymnasium had collapsed. Roofs of the airport shops were gone. One hangar was virtually destroyed, as were several warehouses. The Government’s Office of Procurement facility in this area suffered severe skin and roof damage.
At the east end of the Industrial Park, there was substantial roof damage at the Vocational-Technical School adjacent to the Government-housing area. The roof of one Government-housing unit was destroyed. Other units had significant wind damage. Roofs and fences at the nearby Government Correctional Facility were seriously damaged.
The M & O compound was also heavily damaged. The heavy equipment shop skin was gone. The second floor of the materials laboratory was blown away.
He did not see any damage to the Tool Shop. The Lumanai Development Corporation warehouse was still intact Saturday afternoon, February 3. He believes most of the serious destruction in the Tafuna area occurred after 3:00 p.m. that afternoon and into the early morning the next day.
He also believes the CBT warehouse collapsed as a result of a rocking motion. He does not know whether faulty construction or strong winds, or both factors, caused or contributed to this action.
He has no personal knowledge of the manner of construction of the shed. He estimated its size at 35 to 40 feet long and 10 to 15 feet wide. However, he only saw it from a distance before the hurricane.
DISCUSSION AND CONCLUSIONS
1. Administrative Claim Prerequisite
*65Claims against the American Samoa Government for personal injury or property damage must be administratively submitted under the Government Tort Claims Act to the Attorney General for resolution before judicial action is instituted. A.S.C.A. § 43.1205. This prerequisite to suit is clearly jurisdictional by its own terms.
In this case, the pleadings implicitly show that plaintiff Crispin filed an administrative claim, which was rejected by the Attorney General. However, defendant Government’s answer to the complaint denies this Court’s jurisdiction over plaintiff Jamison’s claim for lack of a prior, administrative claim. The Court sought but did not receive any specific details about plaintiff Crispin’s administrative claim, specifically a copy of the claim and denial, to make an informed decision on the issue of plaintiff Jamison’s standing based on the form and content of plaintiff Crispin’s administrative claim.
A.S.C.A. § 43.1205 is an essentially precise counterpart of 28 U.S.C.A. § 2675 in the Federal Tort Claims Act. While there is no territorial implementing rule to A.S.C.A. § 43.1205 known to the Court, the federal rule at 28 C.F.R. § 14.3 provides:
§ 14.3 Administrative claim; who may file.
(a) A claim for injury to or loss of property may be presented by the owner of the property, his duly authorized agent, or legal representative.
(e) A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.
Federal court decisions make applicable policy considerations clear. The administrative claim prerequisite, while jurisdictional, is not an arbitrary standard. One basic purpose is to focus the government on settling claims without litigation when settlement is appropriate. Another is to not obstruct judicial determinations on technicalities when the government is adequately apprised of the claim *66it must face. See, as examples of claims involving representative capacities, Locke v. United States, 351 F. Supp. 185 (D.C. Haw. 1972); Coe v. United States, 502 F. Supp. 881 (D.C. Or. 1980); Sky Harbor Air Serv., Inc. v. United States, 348 F. Supp. 594 (D.C. Neb. 1972); see generally Annotation, When is Claim Properly Presented to Federal Agency, Under 28 U.S.C.S. § 2675(a), for Purposes of Satisfying Prerequisite to Subsequent Suit Under Federal Tort Claims Act, 73 A.L.R. Fed. 338 (1985).
Applying these principles in this case, the Court only knows, by way of evidence, that plaintiffs are in some legal manner co-owners of the motorboat and that plaintiff Jamison allegedly failed to file an administrative claim. Neither the claim or claims by plaintiffs nor the denial or denials by defendant, as the case may be, nor any other affirmative evidence on this issue, was presented. Thus, the Court declines to rule on the legal sufficiency or insufficiency of plaintiff Crispin’s administrative claim on plaintiff Jamison’s behalf.
On the other hand, defendant was aware of the plaintiffs co-ownership of the motorboat and was adequately prepared to defend this action. In this case at least, the interests of final determination of the issues with respect to all litigants outweigh the legal niceties of plaintiff Crispin’s representative capacity for administrative-claim purposes. Therefore, we accept jurisdiction over plaintiff Jamison’s claim. We also expect defendant to support more vigorously any asserted defects in the administrative-claim process in the future if it truly wants to rely on such defects in defense.
2. Motion to Dismiss under T.C.R.C.P. 41(b).
Defendant moved, pursuant to T.C.R.C.P. 41(b), for dismissal when plaintiffs completed presentation of their evidence, on the ground that upon the facts and the law plaintiffs had shown no right to relief. The Court opted to decline to render any judgment until the close of all the evidence.
T.C.R.C.P. 41(b) is precisely the same as Rule 41(b) of the Federal Rules of Civil Procedure (F.R.C.P.).1 This Court looks to *67the F.R.C.P. for guidance and must conform to them as closely as practicable. A.S.C.A. § 43.0201(a). The standard of proof on a motion to dismiss at the conclusion of a plaintiffs evidence is that plaintiff must prevail by a preponderance of evidence. Willis v. Fai'ivae, 10 A.S.R.2d 121, 141 (1989); J. Moore, J. Lucas, & J. Wicker, 5 Moore’s Federal Practice ¶ 41.13[4], at 41-177 to 41-179 (1985); C. Wright & A. Miller, 9 Federal Practice and Procedure § 2371, at 224-25 (1971).
However, the Court is not obliged to rule on the motion at this point but may defer judgment until the close of all the evidence. This procedure amounts to no more than a refusal to enter judgment when a plaintiff completes his case-in-chief and does not preclude a later determination not altogether strictly consistent with postponement of the ruling. J. Moore, J. Lucas, & J. Wicker, supra, ¶ 41.13[4], at 41-179 to 41-180 (1985); C. Wright & A. Miller, supra, § 2371, at 222-23 (1971).
Having in its discretion elected to defer judgment until the close of all the evidence, the Court now turns to its decision based on the law applicable to the findings of fact above.
3. Defendant’s Negligence
This case embraces the rights and obligations in tort by owners or other occupiers of land to persons outside of the premises. This area of the law has historically been slower to accommodate to the needs of modem society, or put otherwise, to balance the privilege to freely use one’s land with due regard for others who may be adversely affected by those uses. W. Prosser & W. Keeton, The Law of Torts § 57 (5th ed. 1984); Restatement (Second) of Torts § 363 et seq. (1984); B. Witkin, Summary of California Law, Torts § 898 et seq. (9th ed. 1988); see also the informative discussion in Sprecher v. Adamson Cos., 30 Cal. 3d 358, 636 P.2d 1121 (1981).
*68Today it is widely accepted, however, in the context of the facts of this case, that a landowner or possessor of land is liable for creating or maintaining dangerous artificial conditions. Restatement (Second) of Torts §§ 364, 365; B. Witkin, supra, § 898. Defendant’s duty is to cause no unreasonable risk of harm to others in the vicinity. W. Prosser & W. Keeton, supra, § 57.
There is no serious issue under the evidence in this case that defendant vicariously knew, through its employees responsible for the shed’s construction, including at least one senior official, that the shed was of inferior quality. However, it is equally clear that the quality of the shed’s construction met the minimum, statutory building requirements applicable to this type of structure. Therefore, it is concluded that defendant did not breach any duty owed to plaintiffs and was not negligent with respect to the construction of the shed.
Even if it were concluded that the shed was negligently constructed, perhaps due to a higher standard of care in light of the proximity of the shed to plaintiffs’ adjacent premises and/or defendant’s knowledge of the destructive force of hurricanes, liability does not follow. The evidence shows that a shed of this type reasonably constructed to withstand greater wind forces, under architect Gianni’s design, probably would not have repelled hurricane winds in excess of 80 to 90 miles per hour. Recorded Hurricane Ofa winds reached 88.55 miles per hour in velocity at or about the time the shed’s roof was blown onto plaintiffs’ motorboat. Negligence of a landowner or land occupier is not a substantial factor proximately causing harm if the harm would have occurred despite the negligence of the landowner or land occupier. Restatement (Second) of Torts § 432(1). Thus, any negligence by defendant in the construction of the shed was not a proximate cause of plaintiffs’ property damage.
We conclude that defendant was not negligent and Hurricane Ofa was the legal proximate cause of plaintiffs’ property damage. Judgment will be entered in defendant’s favor.
It is so ordered.
The operative provisions of F.R.C.P. 41(b) have recently been transferred to F.R.C.P. 52(c) with a new name: judgment on partial findings. This change is largely organizational, placing all provisions *67dealing with findings of fact and conclusions of law in a non-jury trial in one rule. However, it also broadens the scope of the rule in two respects. First, the motion is available to a plaintiff as well as a defendant. Second, it can be made at any time after the opposing party has been fully heard on an issue. It continues to give the court broad discretion to require issues to be tried in a particular sequence before having legal sufficiency tested by this motion. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486044/ | On Motions for Reconsideration or New Trial:
Both plaintiff and defendant have moved for reconsideration of the judgment entered March 25, 1992, or alternatively for a new trial.
Defendant’s motion, claiming insufficient evidence to support the decision and the damages, is denied.
Plaintiffs motion, claiming that defendant’s failure to plead contributory negligence resulted in a waiver of that affirmative defense, is also denied.
*70Under Federal Rules of Civil Procedure (F.R.C.P.) 8 and 15, a court must treat issues that the parties have impliedly or expressly consented to try as having actually been raised in the pleadings, and thus as not waived by the failure to plead. See C. Wright & A. Miller, Federal Practice and Procedure § 1278, at 494-98. F.R.C.P. 15(b) requires that the pleadings be treated as if they had actually raised the issue if an unpleaded defense is introduced at trial without objection — in other words, if the parties impliedly consented to the amendment. In the absence of such consent, F.R.C.P. 15(b) also gives the Court discretion to permit the amendment of pleadings over objection to conform to the evidence at trial. This discretion should be used to consider whether the merits will be served by the amendment and whether the opposing party will be prejudiced by the amendment.
The above federal provisions are nearly identical counterparts to our local rules, T.C.R.C.P. 8 and 15(b). Thus, based on A.S.C.A. § 43.0201, which establishes that High Court procedure "shall conform, as closely as practicable, to the practice provided for in the Federal Rules of Civil Procedure," we accept this interpretation for our own rules, as well.
Contributory negligence was actually litigated by the implied or even express consent of the parties in this case. Additionally, it was discussed at the pretrial conference, so plaintiff suffered no prejudice through the sudden assertion of the defense and had ample opportunity to meet the defense. Thus, under both the mandatory and discretionary provisions of Rule 15(b), the issue of contributory negligence was properly before the Court.
Both motions are DENIED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486045/ | Findings of Fact and Conclusions of Law:
The above-entitled cause came on regularly for trial on April 27, 1992. The Court heard testimony and received other evidence, and the cause was submitted for decision. The Court, having considered the evidence, finds as follows:
FINDINGS OF FACT
1. Both petitioner and respondent have been bona fide and continuous residents of American Samoa for at least one year next preceding the commencement of this action on January 27, 1992.
*722. The parties were married on December 24, 1981, in Reno, Nevada, and they have continued to be husband and wife since that date.
3. The parties separated on January 26, 1992, and they have not lived together as husband and wife since that date.
4. Three children are the issue of the marriage:
Francis Sesepasara, male, bom March 19, 1982;
Faatuiese'Sesepasara, female, bom March 22, 1983;
Malepelepe Sesepasara, Jr., male, bom April 30, 1986.
5. Respondent committed adultery in the fall of 1991, from which he contracted and transmitted to petitioner a venereal disease. Later, in December 1991, petitioner committed adultery during an off-island business trip. On December 15, 1991, respondent physically assaulted petitioner when she admitted her adulterous conduct. Sexual relations resumed thereafter but ceased after respondent physically assaulted petitioner again on January 28, 1992. A third such assault occurred on March 8, 1992. Taken as a whole, this conduct also constituted habitual cruelty or ill usage towards petitioner. These ultimate facts are fortified by other events during the marriage.
When respondent committed adultery, this marriage had been under progressive stress and deterioration over a substantial period of time. This state of the marriage is indicated by such events as another physical assault by respondent against petitioner in 1986. Use of alcoholic beverages was involved in that incident, and it appears respondent was excessively intemperate during that era of the marriage. Throughout the marriage, petitioner, who is a civil engineer, has been the steady breadwinner of the family, while respondent has been unemployed for substantial periods. This reversal of traditional roles in a Samoan family has taken its toll of the marriage over time.
Two issues emerge. First, petitioner may have condoned respondent’s misconduct. A.S.C.A. § 42.0207 provides:
"Condonation may be presumed in all matrimonial actions and proceedings by the voluntary cohabitation of the parties with the knowledge of the offense charged." Renewed sexual intercourse is a strong indication of condonation. However, the key elements are genuine forgiveness of the misconduct and intent to start afresh. Passage of time is often quite significant. Wright v. Wright, 153 Neb. *7318, 43 N.W.2d 424 (1950). When condonation exists, earlier misconduct cannot be grounds for divorce. Kinek v. Kinek, 331 Mich. 54, 49 N.W.2d 58 (1951). Nonetheless, if the wrongdoer continues or revives his or her misconduct, condonation may be vitiated. Rentel v. Rentel, 39 Wash. 2d 729, 238 P.2d 389 (1951).
Under the rapidity of events from respondent’s adultery in the fall of 1991 until the parties separated in January 1992 and his following misconduct, especially in a marriage moving towards, if not already at, the breaking point, we find that petitioner did not condone respondent’s adultery, and certainly not the habitual cruelty or ill usage as the combined result of his adultery, disease transmittal, and three episodes of physical abuse in short order.
Second, the parties’ respective acts of adultery may constitute mutual recrimination requiring denial of both the petition and counter-petition for divorce. A.S.C.A. § 42.0206(a)(5); Lea’e v. Lea’e, 3 A.S.R.2d 51 (Trial Div. 1986).
From a social viewpoint, recrimination as an absolute bar to divorce, as a sort of punishment for sins, is unjustified when the parties’ conduct shows that continuation of the marriage will not result in a successful marital relationship.1 The prospect of reconciliation, effect of the marital conflict on the parties and others, and comparative guilt are legitimate considerations in deciding how to apply the doctrine of recrimination. DeBurgh v. DeBurgh, 39 Cal. 2d 858, 250 P.2d 598 (1952). The provocative effect of one spouse’s conduct on the other spouse’s conduct may also be relevant. Steiger v. Steiger, 4 Utah 2d 273, 293 P.2d 418 (1956).
We find that the prospect of reconciliation in this marriage is very slight at best. Continued physical violence seems inevitable. The children will unduly suffer under these circumstances. The *74marriage is essentially discredited. The gravity of respondent’s adultery and recent pattern of physical violence substantially outweighs the seriousness of petitioner’s singular adulterous incident. It appears his adultery even provoked her misconduct. There is no justifiable basis for applying the doctrine of recrimination to prevent dissolution of this marriage.
The DeBurgh decision, similar to judicial decisions or legislative action in many American jurisdictions, H. Clark, Law of Domestic Relations § 12.12 (1968), interjected judicial discretion to determine just results when both spouses are guilty of grounds for divorce. However, Deburgh involved interpretation of the phrase "in bar" in a statute providing that "[djivorces must be denied upon * * * a showing by a defendant of any cause of divorce against the plaintiff, in bar of the plaintiffs cause of divorce " (emphasis added), as requiring judicial determination of whether misconduct by a petitioning spouse should prevent dissolution of a marriage. DeBurgh also pointed out that striking "in bar" would show clear legislative intent to make recrimination an absolute defense.
A.S.C.A. § 42.0206(a)(5) requires denial of a divorce if upon the evidence the Court finds "that the petitioner is guilty of any of the grounds for divorce." This is the language of an absolute defense as recognized by DeBurgh.
As much as we consider A.S.C.A. § 42.0206(a)(5) out of step with sound public policy, we are bound to apply its directions as written. Any change in this law is the province of the Legislature of American Samoa. Thus, we find that both parties are barred by recrimination from obtaining a divorce from each other.
6. Although territorial law precludes the grant of a divorce to either party in this case, the Court has authority in equity to issue orders on the care, custody and control of the minor children of the parties and on both child and spousal support while the parties are separated. Atwood v. Atwood, 229 Minn. 333, 39 N.W.2d 103 (1949); Subrt v. Subrt, 275 Wis. 628, 83 N.W.2d 122 (1957); Sovereign v. Sovereign, 354 Mich. 65, 92 N.W.2d 585 (1958). Custody and support in this case do not involve and, therefore, do not derogate the territorial juvenile-justice laws, A.S.C.A. § 45.0101 et seq. The statutory provisions on custody and support when a divorce is granted, A.S.C.A. §§ 42.0209 and 42.0210, also do not prohibit such orders when a divorce is not granted. See Sovereign v. *75Sovereign, supra. We find that it is necessary to provide for these matters in this action.
7. Both parties are fit and proper persons to have the care, custody and control of their minor children, who as of the date of trial were ages 10, 9 and 5, respectively. Respondent has had substantial opportunity, particularly during the periods of his unemployment, to care for and control the children and has performed these responsibilities reasonably well. Petitioner has also provided a suitable home and intelligent attention and direction in matters affecting the health, education, and growth and development of the children. Other things being equal, as they are in this case, younger children should remain together with their mother. There is no satisfactory substitute for a mother’s love at the stage of development of the children in this case. We find that it is in the best interests and welfare of these children to place their custody with petitioner, subject to respondent’s visitation rights at all reasonable times.
8. Petitioner is a professional engineer and is reasonably capable of supporting herself. Respondent has been gainfully employed and is reasonably capable of supporting himself. Thus, neither party requires spousal support by the other party.
The minor children of the parties need support by both parties. Respondent is reasonably capable of providing support for his children in the amount of $100 per child per month, a total of $300 per month.
Both parties are reasonably capable of paying their respective attorney’s fees and costs in this action.
CONCLUSIONS OF LAW
From the foregoing facts, the Court concludes:
1. Neither petitioner nor respondent is entitled to divorce from the other party.
2. Petitioner is entitled to the care, custody and control of the minor children of the parties, and respondent is entitled to reasonable visitation rights.
*763. Petitioner is entitled to receive from respondent $100 each month for the support of the minor children of the parties, a total of $300 per month, commencing in June 1992.
4. Neither party is entitled to spousal support from the other party.
5. Neither party is entitled to attorney’s fees or costs from the other party.
IT IS ORDERED that judgment shall be entered accordingly.
Recrimination originated as a property rule in Roman law dealing with dowry rights on dissolution of a marriage. Later, in English law at a time when only legal separation and not divorce was recognized, it was extended to govern spousal-support issues. American divorce statutes and interpretations of ecclesiastical law as part of the common law of divorce transformed recrimination from a defense in separation actions into a bar to absolute divorce. H. Clark, Law of Domestic Relations § 12.12 (1968). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486046/ | Findings of Fact and Conclusions of Law:
The above-entitled cause came on regularly for trial on April 27, 1992. The Court heard testimony and received other evidence, and the cause was submitted for decision. The Court, having considered the evidence, finds as follows:
FINDINGS OF FACT
1. Both parties have been bona fide and continuous residents of American Samoa for at least one year next preceding the commencement of this action on October 4, 1991.
2. The parties were married on May 27, 1983, and they have continued to be husband and wife since that date. Apparently, respondent did obtain a divorce from petitioner on January 20, 1992, in the State of Tabasco, Republic of Mexico. We presume for discussion that this divorce was valid under the laws of Tabasco. However, it cannot be recognized in American Samoa for several reasons.
First, the decree has not been properly authenticated. It lacks a final certification of the genuineness of the signature and official position of the court clerk who purportedly signed the decree, as required by the Rules of Evidence, Rule 902(3).
Second, it does not appear that Tabasco or Mexico had any legitimate interest in the marital status of the parties. The Tabasco decree does not show the physical presence of either party in Mexico, let alone Tabasco, which is in the lower southeast part of Mexico. Respondent testified to spending two days in Tijuana, Mexico, where he arranged for the divorce. Tijuana is in the extreme northwest comer of Mexico. Both parties are clearly bona fide residents of American Samoa. Residents cannot step across an international boundary as casual visitors and bring back a divorce decree worthy of any consideration here. McElhatten v. McElhatten, 159 Cal. App. 2d 136, 323 P.2d 500 (1958).
*78Next, recognition of a foreign divorce decree should not be permitted when the sole purpose of seeking the divorce in a foreign court is to evade the laws of American Samoa. See the concurring opinion in Scott v. Scott, 51 Cal. 2d 249, 331 P.2d 641 (1958). Respondent obtained the Mexican divorce after this action was filed, after this Court issued orders pendente lite, and while he was admittedly committing adulterous conduct. He ostensibly remarried immediately. His evasive purpose is evident.
Lastly, also very important, recognition of a foreign divorce decree should be withheld when the divorce proceedings are held ex parte without reasonable notice to the defendant. See Scott v. Scott, supra (concurring opinion). There may have been service of process over petitioner under the laws of Tabasco, but the nature of that service is not set forth in the decree. There is no evidence that petitioner received actual or legitimate constructive notice of the Mexican proceedings, participated in them, or had any real opportunity to do so.
3. The parties separated in February 1991, and they have not lived together as husband and wife since their separation.
4. Three children are the issue of the marriage:
Jerry Stevens, male, bom March 26, 1984;
Charles Stevens, Jr., male, bom March 6, 1986;
Popi Stevens, male, bom January 25, 1988.
5. Petitioner testified to respondent’s admission to her of committing adultery before the parties separated. Respondent testified to committing adultery in August 1991 and in January and February 1992. Acts committed after separation may afford grounds for divorce. Palmanteer v. Palmanteer, 11 Cal. 2d 570, 81 P.2d 910 (1938). We find that respondent committed adultery both before and after the parties’ separation. We also find that the evidence is insufficient to establish respondent’s allegations of adultery and habitual cruelty or ill usage by petitioner.
6. Both parties are fit and proper persons to have the care, custody and control of the minor children of the parties. However, other things being equal, children of tender years should remain together and their custody given to the mother. The mother is the natural custodian of her young. There is no satisfactory substitute for her love. Washburn v. Washburn, 49 Cal. App. 2d 581, 122 P.2d 96 *79(1942). Other things to be weighed and considered are a good home, ■ongenial surroundings, and intelligent attention and direction in matters affecting the health, education, growth and development of the children. Bemis v. Bemis, 89 Cal. App. 2d 80, 200 P.2d 84 (1948). The children of the parties, who are ages 8, 6 and 4, respectively, will have equal advantages in the home of petitioner, who has demonstrated her ability and willingness to perform her maternal duties properly. Thus, the care, custody and control of the children should be given to petitioner, subject to respondent’s visitation rights at all reasonable times.
7. Petitioner and the minor children of the parties need support. We have analyzed petitioner’s financial statement and respondent’s financial records and tax returns for the business carried on by The Record Store, Inc., which he manages, as well as both parties’ testimony, to determine a reasonable level of support. It is clear that petitioner’s accustomed standard of living for herself and the children cannot be maintained. Accordingly, we have made some downward adjustments to the monthly budgetary amounts set forth in her financial statement. Assuming respondent continues to make the mortgage payments on the family home, loan payments on the vehicle used by petitioner, and the children’s tuition at a private school, as he has been doing, we find that a reasonable amount of support is $370 per week. Taking into account petitioner’s net weekly salary from her employment with Hawaiian Airlines of approximately $70, respondent must pay $300 per week to make up the difference. Petitioner also has attorney’s fees and costs to pay in this action. At the time of trial, her attorney’s fees were $1,700, which is a reasonable amount.
Since respondent’s income is dependent upon the sales made by his business, which necessarily varies from time to time, his ability to pay support is not as susceptible to such precise analysis. However, the growth of his business has averaged about 5 percent per year, setting aside the first year of the business, which he opened in 1978, and an operational loss in 1991. Business this year through March 31 has been reasonably good. His annual salary is $26,000. The business provides the additional funds to make the house loan, vehicle loan and tuition payments. We find that respondent has the ability to provide $300 per week for the support of petitioner and the minor children, and to pay petitioner’s attorney’s fees and costs in this action.
*80Child support should be separately stated at $75 per week per child, and spousal support at $75 per week.
8. Property at issue in this action includes the family home in Ili‘ili, American Samoa; a 1991 Ford Explorer motor vehicle; shares of stock in The Record Store, Inc.; a bank account at the Bank of Hawaii, American Samoa Branch, into which insurance proceeds covering damage to the family during Hurricane Val in December 1991 were deposited; furniture and furnishings; and clothing and other personal effects.
The family home should be transferred to petitioner to provide a home for herself and the minor children of the parties.
The Record Store, Inc. is the registered owner of the 1991 Ford Explorer. However, since this is closely held family business and petitioner needs the vehicle for the transportation of herself and the minor children, this vehicle should be transferred to petitioner as the registered owner at this time and as the legal owner when the loan for its purchase is fully paid.
Since petitioner no longer has any operational interest in The Record Store, Inc., except to the extent successful operation of the business is essential for the support of herself and the minor children of the parties, her shares of stock of the corporation should be transferred to respondent.
The funds in the bank account should be used for their intended purpose of repairing the family home. If any funds remain after the repairs are completed, they should be used to reduce the principal amount of the mortgage on the family home.
Each party should retain the furniture and furnishings and the clothing and personal effects now in their respective possession as the owner of such property.
9. The debts of the parties include the mortgage on the family home and the purchase loan on the 1991 Ford Explorer motor vehicle. The tuition of the minor children of the parties must also be paid, so long as the children are enrolled in a private school. Respondent should be required to continue making the two loan payments and to hold petitioner harmless from these debts. He should also be required to continue making the tuition payments.
*8110. Petitioner’s maiden name is Mapo Niko.
CONCLUSIONS OF LAW
From the foregoing facts the Court concludes:
1. Petitioner is entitled to a divorce from respondent on the ground of respondent’s adultery.
2. Petitioner, is entitled to the care, custody and control of the minor children of the parties, subject to respondent’s visitation rights at all reasonable times.
3. Petitioner is entitled to receive from respondent $75 each week for the support of each of the three minor children of the parties and $75 each week as spousal support, a total of $300 per week, on Friday of each week, commencing May 29, 1992.
4. Petitioner is entitled to payment by respondent of her attorney’s fees in the sum of $1,700 and costs in this action.
5. The property itemized in the Findings of Fact is subject to be divided between the parties by the Court and is divided as follows:
To petitioner: the family home in Ili’ili, American Samoa, 1991 Ford Explorer motor vehicle, furniture and furnishings in her possession, and clothing and other personal effects in her possession.
To respondent: Petitioner’s shares of stock in The Record Store, Inc., furniture and furnishings in his possession, and clothing and other personal effects in his possession.
The bank account at the Bank of Hawaii, American Samoa Branch, should and shall be expended on repairs to the family home. Any funds remaining upon completion of the repairs shall be expended to reduce the principal amount of the mortgage on the family home.
6. Respondent should and shall be ordered to pay the mortgage loan on the family home and the purchase loan on the 1991 Ford Explorer motor vehicle, and to hold petitioner harmless therefrom, and to pay the tuition of the minor children of the parties, so long as they are enrolled at a private school.
*827. Petitioner is entitled to the restoration of her maiden name Mapo Niko upon entry of the decree of divorce.
It is ordered that judgment will be entered accordingly. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486047/ | On Motion to Suppress:
*83Defendant Fagavao Luki moves to suppress his confession made at the Fagatogo police station to Police Officer Analoi Suamataia on the morning of March 8, 1991. Among other things, Luki contends that he was arrested without a warrant and that his confession was obtained while he was unlawfully detained, in violation of his constitutional rights under Rev. Const. Am. Samoa Art. I, §5.1 The government relies on the provisions of A.S.C.A. § 46.0805(3), which authorizes a warrantless arrest "of persons found near the scene of a felony and suspected of committing it, where such suspicion is based on reasonable grounds and the arrest follows the crime by a short time."
The evidence shows that the defendant was taken into custody on the morning of March 8, 1992, and then later questioned. Officer Paulo Leuma testified that he and two other fellow officers from the village of Leone were instructed by Commander Poa’i Ripley to pick up the defendant, who is also a Leone villager. The officers did not have a warrant when they picked up the defendant, whom they found asleep at home. After he was first verbally warned of his Miranda rights, the defendant was then transported to the Tafuna sub-station where he was questioned by other officers.
Generally, an arrest whether with or without a warrant must be supported by probable cause. Giordenello v. United States, 357 U.S. 480 (1958); Wong Sun v. United States, 371 U.S. 471, (1963); see also Gerstein v. Pugh, 420 U.S. 103 (1975). The terms "probable cause" and "reasonable grounds" have been said, in the context of arrests, to be substantially equivalent in meaning. Draper v. United States, 358 U.S. 307 (1959). Furthermore, probable cause for a warrantless arrest must exist when the arrest is made, see United States v. Simon, 409 F.2d 474, 475 (7th Cir. 1969), cert. denied, 396 U.S. 829; Washington v. United States, 414 F.2d 1119, 1122 (D.C. Cir. 1969); United States v. Rivera, 321 F.2d 704, 708 (2d Cir. 1963), and the government has the burden of showing probable cause. Wong Sun, supra; United States v. Rivera, supra, at 708.
*84On the extent of the showing before us, we cannot say that there was either probable cause or reasonable grounds for arresting the defendant. Save for Officer Leuma’s statement that he had heard from someone at the sub-station that the complainant had been raped, the Court was not told anything about the circumstances leading up to this particular defendant’s arrest. The decision to arrest the defendant was made by the ranking officer of the watch, Commander Ripley, not the arresting officer, Leuma. Commander Ripley was not called to testify and explain his reasons for ordering the defendant’s arrest.
On the foregoing, we hold that defendant Luki’s statements made to Lt. Suamataia at the Fagatogo police station on the morning of March 8, 1992, must be excluded, since the government has failed to show that the defendant was, at the time he made the statements in question, arrested and detained upon "probable cause," within the meaning of Rev. Const. Am. Samoa Art. I, § 5, or "reasonable grounds," within the meaning of A.S.C.A. § 46.0805(3). Won Sun, supra. Motion to suppress is granted.
it is so ordered.
This provision — proscribing unreasonable searches and seizures— tracks the language of the Fourth Amendment to the United States Constitution; however, it differs from its federal counterpart in that it additionally provides that "[ejvidence obtained in violation of this section shall not be admitted in any court." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486049/ | "Atiumaletavai" is a matai title in the village of Pago Pago, Ma‘oputasi County, American Samoa.
Tovea A. Taeleifi Galea‘i Tupa‘i (Tovea) offered the title for registration by the Territorial Registrar in her name. Three counterclaims were filed by Suafala Tavai, Faoato Fua Tupua, and Atoa S. Sipili. The matter was referred by the Registrar to the Office of Samoan Affairs and thence to the High Court.
The trial in this matter was heard by the Court May 12-14, 1992. The judges deliberated for three days on the evidence and arguments presented. The Court finds as follows:
*89FINDINGS OF FACT
At trial, there was some concern, reflected in the testimony, over the matter of a candidate’s filing for registration of the title as the family was still trying to reach consensus. It was clearly indicated in the testimony of all candidates, however, that the family did indeed gather on two separate occasions for discussions prior to registration, and at the end of the second meeting no consensus was reached. In fact, this second meeting of the family broke up in complete disarray, with open outbursts of candidate declarations from the various factions of the family present. The Court is satisfied, from the evidence presented, that the Atiumaletavai family had a complete opportunity to reach consensus at their second family gathering but obviously were not able to do so.
Although the Court is not persuaded on the merits of all the reasons stated by the filing candidate for registering the title immediately following the second family meeting, filing for registration when the family could not reach consensus is a sufficient reason on its own.
Pursuant to the considerations set forth in A.S.C.A. § 1.0409, the Court makes the following findings of fact regarding the four candidates for the "Atiumaletavai" title:
1. The best hereditary right
The Court is convinced, from the evidence presented, that each of the candidates is of the fifth generation of a direct bloodline tracing back to one common ancestor, Manu, who was the offspring of a holder of the title "Atiumaletavai."
Therefore, the Court cannot find that any candidate prevails over the others in this regard.
2. The wish of a majority or plurality of the clans
While the number or names of clans listed in the questionnaires vary from one to three, it is apparent that each candidate has some clan support from a combination of two or three of them. Thus, candidate Tovea, supported by clans Simaie and Sitai with her list of over 160 names, prevails over the others in this regard.
*903. The forcefulness, character, and personality of the candidates and their knowledge of Samoan custom
The Court finds that candidate Tovea clearly prevails in this regard. Her testimony at trial showed her knowledge of Samoan customs, and her career service record and involvement in community organizations, as well as her unselfish participation in activities that serve the public’s interest at large, show her superior qualities of forcefulness, character, and personality.
4. The value of the holder of the title to the family, village, and country
Here again, candidate Tovea prevails over the others. Her proven active participation in the family affairs, especially during the reign of the last two titleholders, her genuine concern and open willingness to bear some major financial responsibilities on matters pertaining to the good health, as well as some of the off-island medical expenses, of the late titleholder, and her continued support and maintenance of the family sa‘o’s ’monotaga’ in the village of Pago Pago amply display the highest degree of devotion to her family. The fact that she has continually served the family and resided in Gataivai on "Atiumaletavai" communal land, and the leadership role she has played consistently on behalf of the "Atiumaletavai" family in village and government affairs, plus her 22 years of dedicated service to the American Samoa Government, clearly speak well of her high value to the family, village, and country.
CONCLUSIONS
Based on the foregoing findings, the Court concludes:
Tovea Tupa‘i prevails over the other candidates on issues (2), (3), and (4), and she is therefore selected to be the titleholder of the title "Atiumaletavai." The Territorial Registrar is directed to so register the title.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486050/ | RICHMOND, J.:
This appeal is from a decision of the Land and Titles Division holding that a 1969 registration of land by Lualemaga was valid and that the appellee was therefore entitled to judgment against the appellants for eviction and trespass. The trial court also found that the appellants had not proved that they had adversely possessed the land. Execution of the eviction order was stayed pending this appeal.
The land in question, located on the boundary between A‘oloau and A‘asu, was part of a tract originally proposed for registration by Lualemaga Faoliu of the Village of A‘asu in 1961. An objection was raised, so the matter was referred to the High Court for resolution. Asu Village Chiefs v. Village of Asu, CA No. 40-1961. (Aug. 10, 1961) (the "1961 case"). The only objection was withdrawn, so the court ordered the land registered; this was not done. In 1969, before a new judge, it was "brought to the attention of the court" that the Registrar had not registered the land in accordance with the earlier court order. After reviewing the transcript of the earlier hearing, the court again ordered the Registrar to register the land, and this time, the land was registered. The appellants, chiefs of the Village of A'oloau, now seek to register the land as theirs, claiming that the registration was invalid because the land is located in A'oloau, not A‘asu, and that A'oloau never received the required notice of the proposed registration in accordance with Chapter 18, Section 905 of the Code of American Samoa (now A.S.C.A. § 37.0103).
The appellants first assert that they have standing to raise the issue of defective notice in the registration. They are correct. The fact that the registration was ordered by the court, rather than done strictly by the Registrar, does not bar the appellants from claiming that notice was defective in the 1961 case. A collateral attack of an in rem judgment is permissible if notice in the first case was defective. Scott v. McNeal, 154 U.S. 34, 14 S. Ct. 1108, 1112 (1894); see also 47 Am. Jur. Judgments § 1071 (2d ed. 1969). Appellants are also not barred by res judicata, because they were not parties to the 1961 case. See Namu v. Satele, 15 A.S.R.2d 141 (1990). Thus, they may attempt to show that the notice given for this registration was defective.
Next, appellants claim that the notice was defective. In order to prove this, appellants must meet a heavy burden. Ifopo v. Siatu‘u, 12 A.S.R.2d 24, 28 (App. Div. 1989) (emphasis added), established *93the applicable standard: "the Court must assume — and, absent compelling proof to the contrary, must conclude — that the Registrar recorded a title only after complying with his obligations under the law." The court also noted that "[cjourts can and do disregard registrations ... in which the failure to afford the required notice affirmatively appears in the record of the registration itself." Id. (citing Faleafine v. Suapilimai, 1 A.S.R.2d 108 (1988)) (emphasis added).
Appellants claim that the blank "affidavit of notice" in the Registrar’s files constitutes affirmative proof of the failure to afford the required notice in the record of the Lualemaga registration. The appellants also rely on the file’s lack of responses from several pulenu'us of villages surrounding the land to a letter from the clerk of the court requesting the pulenu'us to certify that notice was given in their villages, including A'oloau, in the 1961 case. These two factors, combined with the testimony from a witness, Aimalefoa Lefotu Puletu, that she does not remember any notices or announcements regarding this land nor does she remember her father’s ever mentioning a notice’s being posted, have led the appellants to claim that they have shown "compelling proof” that the notice was defective. Their primary argument is that "[tjhere was no affirmative evidence of any posting," including no affirmative statement by either judge in the 1961 and 1969 hearings or by the Registrar that the statutory notice was given. Appellants’ Brief at 10. The Ifopo standard, however, does not require that there be affirmative evidence of posting in the registration, but affirmative proof in the record of the registration itself of the failure to post notice in accordance with the statute.
Appellants rely on Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (App. Div. 1991), to establish that the blank "affidavit of posting" meets the Ifopo burden. In Vaimaona, the court remanded the case for an evidentiary hearing on the issue of notice because the "affidavit of posting" was defective on its face. That case significantly differs from the present case, however, because the affidavit in Vaimaona showed statutory deficiencies on its face. The affidavit was filled out, but only alleged posting for 33 days instead of the required 60 days. It was also subscribed to on the first day of posting, which was obviously before the posting took place, so it was prepared without personal knowledge by the subscriber; several other deficiencies that are not relevant to this case were also noted.
*94This facial deficiency is significant because in the present case, no affidavit was filled out. If such an affidavit were required by the statute, this might constitute a facial deficiency sufficient to meet the Ifopo burden, but no such affidavit is required. In Namu v. Satele, supra, 17 A.S.R.2d at 144, the court correctly noted that "the ’affidavit of posting’ is an administrative convenience (albeit a salutary one) rather than a statutory requirement." The statute merely requires that "[i]f no notice of adverse claim is filed within the 60-day period, and all the requirements of this chapter have been complied with, the territorial registrar shall register the title to such land in the name or names of the applicant or applicants." A.S.C.A. § 37.0103(c) (emphasis added).1 If an adverse claim is filed, as occurred in the 1961 case, A.S.C.A. § 37.0104(b) directs that ”[u]pon adjudication of the matter by the High Court, the territorial registrar shall register the land as directed by the court." Neither statute requires a certification or an affidavit by the Registrar or the court that notice was given for the required period. Likewise, the clerk of the court’s request to the pulenu’us for certification was not a statutory requirement. This absence of required certifications is precisely the reason that the Ifopo standard requires that compelling proof of defective notice appear affirmatively in the registration itself. Under Ifopo, the court presumes that the Registrar — or, as in this case, the earlier court — only caused the land to be registered after complying with the registration statutes, including the notice statute, as A.S.C.A. § 37.0103(c) requires. The lower court thus correctly applied this presumption.
Moreover, two other factors in the 1961 case strengthen this presumption by leading to a strong inference that notice was given: the letter in the 1961 case from the clerk of the court to the pulenu’us of several villages near the land leads to the inference that notice was given, even though it is not further substantiated by "certification" from several of the pulenu’us; and the presence of Fuimaono, the principal matai of A’oloau, at the 1961 hearing.2
*95Appellants have not met the burden established by Ifopo. The valid registration by Lualemaga precludes the court from questioning the boundary established by that registration. We therefore AFFIRM the trial court’s decision.
The statutes in effect at the time of the 1961 case had the same requirements as the present statutes; the present statutes are used for ease of reference.
It is true that "actual knowledge of the proposed conveyance does not vitiate the importance of notice [in accordance with the statute], because other interested persons might have had some objection to registration of title," Vaimaona v. Tuitasi, 18 A.S.R.2d at 95, but such *95knowledge may lend itself to an inference that proper notice was given. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486051/ | RICHMOND, J.:
This appeal is from the decision in two consolidated cases of the Land and Titles Division holding that the appellant, Martin Anderson (Anderson), did not own either of the two claimed portions of the parcel "Logopesega.1
The two cases concern the single, freehold parcel of land called "Logopesega" in Pago Pago, American Samoa. This parcel was purchased by Jane Sophia Foster and was later confirmed to be her land in Court Grant 852 in 1897. Douglas O. Craddick (Craddick) purchased Logopesega from the heirs of Jane Foster in 1981 and later assigned his interest to Anderson. The main road around Pago Pago *97Harbor divides Logopesega approximately along the claims of the parties.
The first case, LT Nó. 40-85, was originally brought by the matais of the communal families Vaivao, Fuga, and Taito (the communal families), which claimed an interest in the land on the mountain or mauga side of the road, against Craddick to quiet title to the mauga side of Court Grant 852 and for unspecified damages. Anderson intervened in this action as Craddick’s assignee or his successor in interest. . The lower court ruled that the communal families did indeed own the land, which they acquired through adverse possession. The court did not decide which families owned which portions of the parcel, so it therefore could not quiet title, and it did not award damages because no evidence on these issues was offered at trial. Anderson now appeals, claiming that the court erred in not finding that he, as the owner of Court Grant 852, owns this land. The matais did not appeal the decision and, in fact, filed no appellate brief.
The second case, LT No. 2-87, was brought by Anderson against the American Samoa Government (ASG) to quiet title to the seaward or sami side of the road. ASG has quitclaimed part of this section of the parcel to Anderson.2 At issue is the remaining part of the sami side of Logopesega, which was entirely created when the government filled in the back portion of Pago Pago Harbor for park and recreation purposes; this filling project began in 1966.3
Standard of Review
Anderson claims that, because this is an action in equity, we should review the trial court’s findings of fact de novo. To do so, however, would be directly contrary to the mandate of A.S.C.A. § 43.0801(b), which states that ”[t]he findings of fact of the trial, probate and land and titles divisions of the High Court may not be set aside by the appellate division unless clearly erroneous" (emphasis *98added). We therefore apply the clearly erroneous standard to questions of fact. Questions of law are, of course, reviewed de novo by the appellate division.
The Mauga Side
Although Anderson phrases his appeal of the decision awarding the mauga side to the communal families as three issues, essentially there is only one issue: was the evidence sufficient to support the trial court’s decision? The question on appeal here is one of fact. The evidence and testimony submitted to the trial court was, as the court acknowledged, inconsistent. The relevant test is not whether there were facts in the record sufficient to support a decision for the appellant, but whether there was sufficient evidence to support the trial court’s decision — only then would the decision be clearly erroneous.
The trial court is in the unique position of being able to assess the credibility of witnesses, both interested and disinterested. The court carefully considered the testimony of the witnesses before it found that the communal families had adversely possessed the land. Moreover, the trial court in this case went so far as to inspect the parcel at issue, to enhance its ability to assess the credibility of both the surveys submitted and the witnesses’ versions of the use and occupancy of the parcel. We cannot say that the evidence cited by the trial court is insufficient to support its decision.
Anderson also argues that the land could not be adversely possessed through an "unorganized use of the premises by the general public which indicates a claim of common or public right." Appellant’s Brief at 8. The trial court did not find such a use by the general public, however. It found that the plaintiff communal families, not the general public, "have had possession of the disputed area for a great number of years while exercising proprietary rights thereon . . . without any interruption whatsoever from the Fosters." Additionally, after reciting the requirements of adverse possession, the court concluded that "[pjlaintiffs ’ possession of the disputed land area certainly qualifies to confer title on them." (Emphasis added).
Because land can be owned communally in American Samoa, it logically can also be adversely possessed communally. See Fau v. Wilson, 4 A.S.R. 443, 448 (1964); Laeli v. Moetoto, 4 A.S.R. 494, 495 (1964). Such possession is distinct from use by the general *99public. It includes exclusive and continuous possession by the communal family against the rest of the world.
Anderson misconstrues A.S.C.A. § 37.0201,4 which defines freehold land, in an attempt to show that adverse possession of freehold land violates public policy. Such a construction, however, would mean that freehold land could never be adversely possessed. No such exception is evident in the adverse possession statute, A.S.C.A. § 37.0120. Freehold land is essentially the only fee-simple title to land available in the territory. Anderson has shown no public policy reason to exempt such titles from the adverse-possession statute.
The court found that the communal possession was clearly shown, although the plaintiffs did not submit a survey or comply with other necessary requirements sufficient to register the land or to award the requested relief. These findings were not clearly erroneous and the conclusions of law were correct. We therefore affirm the trial court’s decision awarding the land to the communal families.
The Sami Side
Anderson’s arguments concerning the sami side of Logopesega are more complex. Craddick, Anderson’s assignor, originally laid claim to the filled land as the owner of the littoral rights of Court Grant 852 and who is therefore entitled to the abutting, reclaimed land. ASG claims to have acquired title to the littoral rights in 1900 through two enactments on September 3, 1900: Ordinance No. 15, called "An Ordinance Relating to a Public Highway in Pago Pago," and Regulation No. 16, called "Regulation Concerning the Public Road of Pago Pago as Defined in Ordinance No. 15 of the United States Naval Station, Tutuila” (collectively, the ordinances).5 *100Ordinance No. 15 condemned the land from Blunt’s Point to Breaker’s Point "along the shore at high-water mark, of a uniform 15 feet distant inland from said shore." It also provided that anyone claiming compensation for this condemnation "must present their claims to the High Court within three months from the date hereot [sic]; otherwise such claims shall not be recognized." Regulation 16 then declared it unlawful for anyone to erect any building or structure on the sami side of the public highway without permission of the Commandant of the United States Naval Station, Tutuila, thus asserting the government’s proprietary authority over its newly-acquired land. Court Grant 852 extended to the high-water mark within the above area, and ASG claims that the United States therefore acquired the littoral rights of this parcel through the ordinances; these rights were later transferred to ASG.6
*1011. Lago v. Mageo and the Treaty of Cession
Appellant first claims that the trial court erroneously relied on Lago v. Mageo, 4 A.S.R. 287 (1962), aff’d sub nom. Mageo v. American Samoa Gov’t, 4 A.S.R. 874 (1963), instead of overruling it; he now urges us to overrule it. This issue is raised too late.
Anderson claims that the court in Lago erred because it never addressed the issue of whether the ordinances that condemned the land and essentially set a statute of limitations for seeking compensation for this land complied with the Treaty of Cession of Tutuila and Aunu'u (the Treaty), which governs the transfer of the islands of Tutuila and Aunu‘u to the United States. Appellant claims that the ordinances allowed the government to take property without paying for it, if the owner did not file for compensation within the allotted three months. According to Anderson, this violates the Treaty because Section 2 of the Treaty provides that
if the [United States] Government shall require any land or any other thing for Government uses, the Government may take the same upon payment of a fair consideration for the land, or other thing, to those who may be deprived of their property on account of the desire of the Government.
Anderson did raise, in his Memorandum of Martin Anderson at 5 (filed Jan. 19, 1990), the issue of whether the ordinances violated *102the Treaty through overbreadth.7 He did not, however, raise the larger issue until his motion for reconsideration. It is therefore not appropriately before this Court. Vaimaona v. Tuitasi, 13 A.S.R.2d 76, 82 (1989).
Nevertheless, contrary to appellant’s urging that we overrule Lago, we would reaffirm the court’s holding in Lago as within the parameters set out by the Treaty. The ordinances, which became published law, were an effective and fair means for the government to acquire the land needed to establish the public highway in the Harbor area. Compensation was offered, in accordance with the Treaty, although the records of payments made cannot be located. As a practical matter, such an ordinance was surely the best way to condemn such a large section of land across the property of so many frequently unregistered and, therefore, unknown owners.
2.' Overbreadth
Appellant next claims that the ordinances took more land than was strictly necessary for a road and thus were an overbroad taking.
The trial court incorrectly interpreted the language of the ordinance to mean that the government acquired a "uniform 15 feet of land in from the shoreline." We instead agree with the Lago court’s interpretation, which concluded that the language of Ordinance No. 15 meant that "the road was to be ‘of a uniform width of fifteen feet’ and it was to be ‘distant inland from’ the shore." Lago, 4 A.S.R. at 292. The Court then interpreted "’along high-water mark of the Harbor of Pago Pago’" to mean that the road was to be within a reasonable distance of the high-water mark, id. at 293, and that the condemnation included the land between the highway and the sea, id. at 296. This is confirmed by Regulation No. 16, which forbids anyone from erecting a building on this area without the permission of the government; thus, the government was exercising its proprietary rights. This interpretation of the ordinances, affirmed by the Appellate Division in that case, is the only reasonable interpretation. As the Lago court noted, building a road at an equal distance from the shoreline would be extremely impractical, especially given the many windings and curves of the Pago Pago harbor area. Id. at 293-94.
*103This condemnation in this case was not unreasonable--it was not an overbroad taking. The land was "condemned and appropriated for public uses," which logically include more than simply a road. Additionally, as the trial court noted,
[w]ith 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.
Thus, through the ordinance, the United States government acquired the land between the road and the shoreline, which includes the accompanying littoral rights; ASG now possesses these rights.8 These rights were necessary for the "public uses" of the ordinance to permit such improvements as seawalls to protect the road.
Additionally, in 1974 filled-in lands and submerged lands were transferred to ASG, subject to several exceptions, to be administered in trust for the benefit of the people of American Samoa. 48 U.S.C. § 1705(a).9 This transfer includes the filled-in portion of *104Logopesega, which formerly belonged to the United States Government. The exception of 48 U.S.C. § 1705(b)(ix) claimed by Anderson, that he had lawfully acquired the formerly submerged lands by purchase of Court Grant 852, does not apply. These formerly submerged lands were the property of the United States, as part of a navigable water within a territory of the United States. Lago, 4 A.S.R. at 301 (citing 65 C.J.S. Navigable Waters 197). Anderson could only have acquired land up to the mean high tide mark through purchase of Court Grant 852.
Anderson’s reliance on Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973), in an attempt to assert his right to the filled-in portion of Logopesega, is misplaced. In Bonelli, a federal re-channelling project resulted in thousands of acres of dried-up riverbed land; the state and the cattle company, the riparian owner, then disputed the ownership of this land. The United States Supreme Court held that the cattle company held title, as the riparian owner.
Because ASG owns the littoral rights of Logopesega, however, if 48 U.S.C. § 1705 were not applicable and Bonelli were, the latter would support ASG rather than Anderson. The initial condemnation was for a permissible public purpose. Additionally, the filling project was undertaken for another, equally valid public purpose — the creation of a park and recreation area for the public.
Through Ordinance No. 15, title to the littoral rights along the shore of Pago Pago Harbor from Blunt’s Point to Breaker’s Point, including the (previous) shoreline of Court Grant 852, vested in and still remains in the government. ASG therefore owns the reclaimed land attached to Court Grant 852, either as the littoral owner or through 48 U.S.C. § 1705.
3. Laches
*105The trial court also properly found that ASG’s defense of laches was valid. Contrary to Anderson’s assertion, the littoral rights were not taken in 1966 when the filling operations began, but in 1900, when the ordinances were enacted. Mageo v. Government, 4 A.S.R. 874, 885 (App. Div. 1963). Appellant, in waiting nearly 90 years to claim that he~or rather, his predecessor in interest — was not compensated for an alleged taking, has shown "the classic elements of laches~an unreasonable delay in the assertion of their rights by one party and undue prejudice to the other party." Siofele v. Shimasaki, 9 A.S.R.2d 3, 14 (1988).
Appellant states that "[t]he doctrine of stale demand applies only where, because of the lapse of time, it would be inequitable or injustice would result to allow a party to enforce his legal rights." Appellant’s Brief at 19. Yet Anderson has no legal rights in this situation. The 1900 condemnation, for a valid public purpose, was permissible. An action for the recovery of land is barred if it is not brought within 20 years after it accrues. A.S.C.A. § 43.0120(6). Thus, any right to recover such land by claiming the ordinances were invalid should have been brought no later than 1920. The statute of limitations for adverse possession does not, however, run against the government, Mageo v. Government, 4 A.S.R. 874, 881-82 (App. Div. 1963); Teo v. Totoa, 2 A.S.R. 243 (1947), so the government has owned the land since 1900, whether or not the Fosters continued to occupy it.
By waiting so long to assert this claim, Anderson/Foster has prejudiced ASG. Several different bodies have governed American Samoa since the Treaty of Cession, and the governmental records from these different periods have been scattered and sometimes lost, making it difficult, if not impossible, for ASG to affirmatively show compensation was paid.
Conclusion
For the foregoing reasons, we AFFIRM the trial court’s decision awarding the sami portion of Logopesega to the ASG. We likewise AFFIRM the trial coúrt’s decision that the communal families acquired the mauga portion of Logopesega through adverse possession.
Also spelled "Lotopesega."
This quitclaimed portion was part of yet another case, Craddick v. ASG, LT No. 20-85, which has been resolved and is not at issue in this appeal. The Pago Plaza has since been erected on this portion of the parcel.
Most of the disputed portion of land now serves as the parking lot for the Pago Plaza.
A.S.C.A. § 37.0201(b) states:
"Freehold lands" means all those lands included in court grants prior to 1900 which have not, at the request of the owner, been returned to the status of other land in American Samoa surrendering their freehold characteristics.
The Ordinances were later codified by the Legislative Branch of the Government of American Samoa. Ordinance No. 15 now appears as
*100A.S.C.A. § 37.2050:
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.
Regulation No. 16 now appears as A.S.C.A. § 37.2052 (now requiring the permission of the Governor rather than the Commandant).
Act Aug. 17, 1961, Pub. L. 87-158, 75 Stat. 392, provides:
The Secretary of the Navy is hereby authorized and directed to transfer, without reimbursement or transfer of funds, to the government of American Samoa, within ninety days after the date of enactment of this Act [enacted Aug. 17, 1961] title to all property, real and personal, which is located in American Samoa on *101the date of enactment of this Act [enacted Aug. 17, 1961] . . . and which is owned by the United States and is within the administrative supervision of the Department of the Navy on such date.
(Act may be found in 48 U.S.C.S. § 1662 note.)
This transfer was apparently accomplished by a deed entitled "Transfer of Navy Property to the Government of American Samoa," from E. J. Poltier, Chief of the Bureau of Yards and Docks, by direction of the Secretary of the Navy, and is probably dated on or about November 15, 1961, although we have been unable to locate a signed copy of this deed.
This issue is addressed in the next section.
Anderson’s claim that he acquired the littoral rights when ASG quitclaimed the Pago Plaza parcel to him, see footnote 2 and accompanying text, supra, is incorrect. ASG quitclaimed the land up to the old shoreline, but ASG had already acquired the filled-in portion when the land was filled, and the littoral rights had moved with the shoreline. ASG thus retained the filled portion from the old shoreline up to and including the new shoreline and its accompanying littoral rights.
48 U.S.C. § 1705(a) states:
Subject to valid existing rights, all right, title, and interest of the United States in lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide . . . and in artifically [sic] made, filled in, or reclaimed lands which were formerly permanently or periodically covered by tidal waters, are hereby conveyed to the [government of American Samoa] ... to be administered in trust for the benefit of the people thereof.
*104One example of existing rights is found in 48 U.S.C. § 1705(b)(ix):
all submerged lands lawfully acquired by persons other than the United States through purchase, gift exchange, or otherwise. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486052/ | GOODWIN, J.:
*107This matter comes before the Appellate Division on an appeal from the Trial Division.
The Appellants ("the Hollands") left their car at Haleck’s Island Motors ("Haleck’s") for servicing. While the car was stored at Haleck’s, a fire broke out, completely destroying the building and its contents. The Hollands’ car was consumed by the fire as well.
The Hollands sued Haleck’s, only to discover that Haleck’s liability insurance was written to indemnify Haleck’s for damages and loss caused by Haleck’s negligence. The case went to trial on the Hollands’ claims of negligence in allowing a fire to break out, in storing the car, and in failing to procure bailee insurance. The Hollands also sued on a breach of bailment theory. Royal Insurance Company ("Royal") was joined as a defendant after the Hollands learned that Royal was denying coverage for this particular claim.
After the Hollands rested, Haleck’s moved for dismissal. The Trial Division denied that motion because the Hollands had proved a prima facie case. The court entered judgment for Haleck’s, however, by an Opinion and Order of January 23, 1991, finding no negligence. The Hollands appeal that decision.
The Hollands have raised three issues to be reviewed: (1) whether the trial court wrongly applied the burden of proof; (2) whether the trial court’s finding that Haleck’s was not negligent was clearly erroneous; and (3) whether the trial court’s finding that there was no duty to insure was clearly erroneous.
A. The Burden of Proof
It is undisputed that the Hollands’ prima facie case for breach of bailment was made when they showed that the car was delivered to Haleck’s and that it was not returned. The burden then shifts to Haleck’s to show why the car was not returned.
The Hollands argue that after they made their prima facie case, Haleck’s had to prove that they were free from negligence. Whether the bailor must show negligence or the bailee must show non-negligence is an unsettled area of the law. See generally Annotation, Presumption and Burden of Proof Where Subject of Bailment is Destroyed or Damaged by Fire, 44 A.L.R.3d 171 (1972).
*108Haleck’s case tended to prove that the cause of the fire was not electrical in origin and the cause remains unknown. Its case further showed that the fire spread exceptionally rapidly and that water was unavailable. A finding of non-negligence with reference to the fire was not clearly erroneous.
If the trial division had placed the burden of proving negligence on the Hollands once Haleck’s had proved a "no-fault" fire, the Hollands failed to show that the rapid spread of the fire, the lack of water, or the unknown origin were a result of Haleck’s negligence. Using either standard, the record would support a finding that the fire was not caused by Haleck’s negligence.
B. The Finding of No Negligence
The standard used by the trial division in imposing liability on Haleck’s for the loss of the property was the prudent-man standard, "that measure of care which ’ordinarily prudent men, as a class, would exercise in caring for their own property under like circumstances.’ Garcia v. Galea'i, CA No. 41-87." The issue before the Court on this point was whether an ordinarily prudent man would have taken the precaution of insuring his own property against fire.
One might well expect an ordinarily prudent repairman to at least insure his customers’ cars against fire on his premises. Haleck’s failure to provide insurance suggests that Haleck’s was not acting as an ordinarily prudent man. Nothing in the trial-division record satisfactorily explains why there was no insurance protection for property left with Haleck’s.
A departure from the prudent-man standard is strongly suggested by the deposition testimony of Mr. Haleck, who testified to the following:
Q (by Mr. Dennison): Did you feel it was necessary for you as a prudent man to purchase insurance to cover this sort of loss?
A (By Mr. Haleck): Yes.
In light of this testimony, the trial court’s finding cannot be said to be well-supported, and we are left with a definite and firm conviction that a mistake has been made. When the defendant himself states that a *109prudent man would have secured fire insurance for bailed property, it is clear error to find that the bailee’s failure to secure insurance does not violate the prudent-man standard.
C. The Duty to Insure
There is no duty on the part of a bailee to insure bailments absent a statutory obligation, an agreement to that effect, or some custom or usage of trade. The trial division found that there were none of these. This finding, however, does not have support in the record. As noted, Mr. Haleck himself admitted, in effect, that he had a duty to insure. Indeed, he thought he had purchased the kind of insurance that would have protected his customers. This was fairly substantial proof of a custom and usage of prudent bailees to carry fire insurance for their bailors.
The trial division did not reach the question of duty to insure. Bailee insurance, however, is so prevalent that it can safely be said to be custom in the industry — not just in the repair industry but in virtually all service businesses. A consumer’s belief that a repair shop has insurance is entirely reasonable; in fact, it is unreasonable to put a duty on a consumer to inquire whether a repair shop, where the consumer leaves his valuable possessions, has insurance. No body of law compels a contrary result. See Annotation, Bailee’s Duty to Insure Bailed Property, 28 A.L.R.3d 513 (1969).
For this reason, we are left with the conclusion that there was error. To hold otherwise would be to allow repair businesses to take consumers’ property free of any realistic responsibility for that undertaking.
CONCLUSION
Though the fire may not have been preventable, the failure to obtain insurance was preventable. Two theories support a finding that Haleck’s was negligent in not providing no-fault fire insurance. First, the subjective belief of the business owner was that he should have obtained that kind of insurance. This created a duty on the part of Haleck’s, the breach of which supports a finding of negligence. Second, because it is customary, prudent, and virtually universal to secure one’s business customers against fire loss, the requisite custom and usage of trade to insure customers’ cars create a duty on the part of the bailee.
*110For these reasons, the decision of the trial division is REVERSED, and the cause is REMANDED to the trial division to determine damages.
The motion for reconsideration is denied, except for the necessary correction in the statement of facts. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486053/ | This action stems from certain attempts by the parties to conclude a land deal, which they never quite managed to get off the ground. As a result, the plaintiff, Titi Fofoagaitotoa, filed suit, claiming restitution and damages, as well as punitive damages, from the defendant, Musu Faleafine.
*111In early August 1990, plaintiff approached the defendant about the possibility of buying some land from him, and in their ensuing discussion, the parties agreed to a sale and purchase of a half-acre for $50,000, payable in monthly installments of $500. After accepting a cash deposit of $1000, the defendant then immediately took plaintiff and showed him a certain area which he could begin to cultivate. A week or so later, plaintiff gave the defendant another $2,000; however, the defendant also informed plaintiff that he had to be relocated onto an alternative site. The latter acquiesced, and while making his next succeeding monthly payments, he also undertook a number of improvements on this new location in the way of clearing, levelling, planting, and fencing. All of this was happening, however, before the parties had even identified in metes and bounds the subject matter of the purchase.
In the process of plotting the area shown to plaintiff, it was apparently discovered by the defendant that if he only sold to plaintiff the designated area, he would then be effectively left with useless bits and pieces of unsold surrounding areas. Consequently, the defendant proposed to plaintiff that he purchase these additional areas as well. The latter agreed. Again, before the subject matter of the agreement was finalized in the way of a survey, plaintiff began immediately to work and improve the additional areas which he gathered was the extent of the new agreement. Shortly thereafter, the parties had a falling-out. The defendant demanded that plaintiff quit the land, which plaintiff eventually did, but not without making his own demand upon the defendant for the return of monies paid and the recoupment of efforts to improve the land. The matter thus found its way to court.
As we understand the defendant’s position, it is that plaintiff had failed to prove a contract for the sale and purchase of land, since the subject matter of the agreement was never defined; hence, there was no contract from which damages can arise to be breached.
We find that we need not address the issues raised by the defense. At trial, plaintiff advised the Court that the deposit and various installments which he paid towards purchasing the land-totalling $6,600 — had been refunded, and that the extent of his claim was for the value of improvements which he had made to the land. To this end, plaintiff claims the sum of $7,354 as hereinafter set out.
On the evidence, we conclude that plaintiff was a "good-faith" improver whose possession of the improved land was under a claim or *112color of title derived from tia© defendant himself. As such, plaintiff is entitled to equitable relief in the way of compensation for the improvements which he had made to the land. See Faleatua v. Tauiliili, 19 A.S.R.2d 122 (1991); Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987); Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988). "The measure of compensation is the lesser of two amounts: (1) the actual cost of the improvements or (2) the amount by which they have enhanced the property." Leapagatele v. Nyel, 17 A.S.R.2d 201, 204-05 (1990). This measure of compensation arises from the fact that the duty to compensate is derived from the "unjust enrichment of the land owner, not the impoverishment of the improver." Roberts v. Sesepasara, supra, at 131.
Plaintiff sets out his claim for improvements as follows: 24 loads of fill, $1,080; Backhoe rental, $90; 2 rolls of fencing wire, $136; 5 bags of cement, $23.25; iron posts for fence, $100; labor for setting up posts, $250; labor for clearing land from July, 1990, $1,000; 4500 tiapula (taro tops) at $15 per hundred, $675; and projected income from crops left on the land, $4,000. We find all but the last item of the claim to be reasonable and within the realm of compensable improvements. The last item, projected income, must necessarily be discounted since the "actual cost of improvements," not the amount which they have enhanced the property value, is the applicable measure of compensation on the evidence before us — "the lesser of two amounts." Leapagatele v. Nyel, supra. We hold that plaintiff is accordingly entitled to be compensated for the value of improvements which he has made to the defendant’s land, in the amount of $3,354.25.
Finally, plaintiff also prays for punitive damages. We find that the evidence fails to support and warrant an award of punitive damages.
Accordingly, judgment shall enter in favor of the plaintiff, Titi Fofoagaitotoa, and against the defendant, Musu Faleafine, in the amount of $3,354.25.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486054/ | The parties before the Court are Tafa’ifa F. Malau’ulu and Fofo Lokeni; candidate Fiatoa Fiatoa Jr. had passed away before the time of trial.1 With regard to the four criteria set forth in A.S.C.A. § 1.0409(c), the Court makes the following findings:
I. Hereditary Rights
Tafa’ifa Fonoti Malau’ulu (hereafter "Tafa’ifa") and Fofo Fonoti Lokeni (hereafter "Fofo") are respectively the daughter and sister of the last titleholder, Fonoti Aufata. Fonoti Aufata succeeded his father Fonoti Vili, whose connection to the title was through *114marriage. In these circumstances, we hold that Fofo prevails on this criterion since she is a generation ahead of Tafa’ifa. See In re Matai Title "Sotoa", 2 A.S.R.2d 15 (Land & Titles Div. 1984).
II. Support of the Clans
The parties agree that there are two customary clans of the Fonoti family — Saveuteuga and Siauloto. While the evidence established that each candidate had some clan support, the evidence does not preponderate in favor of a conclusion that either had secured a majority of clan support. A very large number of family members supported the claim to succession filed with the Territorial Registrar by the decedent, Fiatoa Fiatoa, Jr. Although the decedent’s sister, Tapunu’u F. Ah Soon, testified that she and her siblings were in support of their aunt Fofo’s bid to succession, the evidence was not clear on the wish of those other remaining family members who supported Fiatoa’s candidacy. We find that neither candidate prevails on this criterion.
III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom
On the third criterion, we find Tafa’ifa to be the more forceful personality. At 49 years of age, Tafa’ifa is young and ambitious; she has also led an active and leading role in the affairs of the church. Fofo, now 76 years of age, and her husband are now enjoying a well-earned retirement after a long and dedicated ministry in Western Samoa. Although both candidates have displayed a good knowledge of family history, Tafa’ifa shows the more detailed familiarity with Samoan customs and traditions. On balance, we have rated Tafa’ifa ahead of Fofo with respect to this criterion.
IV. Value to Family, Village, and Countiy
The Court is satisfied that both candidates have in various ways rendered valuable service to the family and past matai and that they have each contributed significantly to village and country. However, we find that Tafa’ifa has the stronger credentials for family leadership. We have already found that she has the more forceful personal characteristics, and while Fofo possesses the experience for judgment that comes with maturity, Tafa’ifa nonetheless has a sufficiently sound background of learning, both in terms of formal education and in terms of first-hand experience with family matters *115and communal assets — among other things, Tafa’ifa was involved throughout her late father’s protracted efforts to fend-off third-party claims to Fonoti-family lands.
From the foregoing, we hold that Tafa’ifa is qualified to succeed the title Fonoti. Although Fofo has the better hereditary claim to entitlement, Tafa’ifa prevails on the third and fourth criteria, with both parties being roughly equal on the second. The Territorial Registrar shall accordingly register the title Fonoti in candidate Tafa’ifa Fonoti Malau’ulu, in accordance with the requirements of A.S.C.A. § 1.0409(b).
It is so ordered.
We denied a motion by Mrs. Tapunu’u F. Ah Soon, the decedent’s sister, seeking to intervene on behalf of her side of the family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486055/ | RICHMOND, J.:
This is an appeal from a decision of the Land and Titles Division in two consolidated cases over the offer of registration of a parcel of land on the western slopes overlooking Malaeimi Valley, Tutuila. In the first case, appellant Opapo Afualo (Afualo) offered the 24-acre tract for registration as the individually owned land of "the children of Luteru Afualo" in 1988, and the Appellees objected. T.M. Puailoa (Puailoa) claimed that the land belonged to his communal family; Penirosa Fanene (Fanene) claimed that he owned the land by right of original occupation;1 and Moea‘i Uiliata and Alai‘a Filifili (the Faleniu families) claimed that the land belonged to the communal families of Faleniu, an adjacent village. The second case was an *117injunctive action by Afiialo against Puailoa and his son-in-law, also relating to this tract.
The trial court found that Afualo’s father, Luteru Afualo (Luteru), came to Malaeimi in his capacity as an officer or employee of the Mormon Church (the Church), which long occupied a tract of approximately 300 acres of the Malaeimi Valley (the 300-acre tract) adjacent to the present survey, and began cultivating land that overlapped the boundary of this 300-acre tract as a licensee of the Church. Additionally, the court found that Afualo had not sufficiently proved that he had acted on his own account under a claim of right in cultivating land outside that possessed by the Church. The court also found that the preponderance of the evidence showed that the present 24-acre survey was cleared by a Church group that Luteru supervised, not by Luteru himself. The court concluded that activities of those acting as licensees cannot give rise to claims of ownership. Finally, the court found that Afualo did not claim individual ownership of any land in Malaeimi until 1987, after Puailoa, claiming that it was Puailoa communal land, ordered Afualo to leave the land. Because the court found that Afualo did not present evidence sufficient to prove ownership, it held that he could not claim the land. The trial court did not determine who ultimately owns the land because it had insufficient evidence to decide between Puailoa and the Faleniu families.
Afualo now appeals, claiming that the trial court erred because there was not sufficient evidence to support its finding that Afualo was acting as a licensee of the Mormon Church or its finding that Afualo did not claim the land in the present 24-acre survey as individually owned land before 1987. Appellant also urges that the preponderance of the evidence supports his position, but this Court is not free to weigh the evidence or determine where the preponderance lies; instead, we must examine the evidence only to determine whether the trial court’s decision was clearly erroneous.
The issues on appeal here are ones of fact. The relevant test is not whether there were facts in the record sufficient to support a decision for the appellant, but whether there was sufficient evidence to support the trial court’s decision. The court carefully considered the testimony offered by both interested witnesses and disinterested witnesses, as well as the surveys and photographs submitted by the various claimants. The trial court’s thorough and well-reasoned opinion addressed the plausibility of each claimant’s theory on who cleared the land, when, and why, and it was clearly supported by *118sufficient evidence. Thus, the trial court’s resolution of these issues was not clearly erroneous. On the contrary, it was very well supported on the record. We therefore AFFIRM.
Fanene claimed that he owned a tract of land within the 24-acre survey by right of original occupation. The trial court found that while the Fanene family does own Malaeimi land on the sami or sea side of the main government road, Fanene does not own the parcel at issue, which is on the mauga or mountain side of the road, either because he is collaterally estopped from making this claim, see Reid v. Fanene, LT No. 7-79 (one of the consolidated cases decided in Reid v. Puailoa, 1 A.S.R.2d 85 (1983)), or because the land had long been occupied by someone and was therefore not susceptible to new "original occupation. ” Fanene did not appeal this decision, and although he is named as a party by appellant, Afualo does not contest the Fanene portion of the decision. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486056/ | RICHMOND, J:
These consolidated appeals are from a decision of the Land and Titles Division dividing the flat land called "Lega'oa" in the Village of Leone among the various claimants, after first determining exactly what land is part of "Lega‘oa." The proceedings were bifurcated for ease of adjudication, and these appeals are from the second proceeding. The trial court also adjudicated the respective rights of parties claiming the slopes of the valley outside Legatoa but within a survey submitted by appellant Willis. The procedural history and facts of the case are discussed in detail in Willis v. Fai'ivae, 10 A.S.R.2d 121 (Trial Div. 1989); aff’d, 12 A.S.R.2d 37 (App. Div. 1989).
In AP No. 30-90, appellant Taeleifi asserts that the trial court erred in its failure to use a hibiscus hedge as the northern boundary of the Taeleifi land called "Lalolelata," or in the alternative, that the court should have awarded the entire tract Lalolelata to the Taeleifi family through adverse possession. The trial court implicitly found that merely a license, rather than the land itself, was granted by the oral agreement relied on by Taeleifi when it determined the boundary of Taeleifi’s land. Taeleifi claims that the hedge was the boundary agreed to according to fa‘a Samoa customs and that such customs should not be inferior to "court established boundaries." The short answer to that allegation is that under A.S.C.A. § 1.0202, when the *120two systems conflict, custom must give way to the laws of American Samoa and the United States — ”[t]he customs of the Samoan people not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved" (emphasis added).
In AP No. 31-90, appellant Willis claims that the court erred in its determination of the dividing line between the inland half of Lega'oa, which belongs to appellants, and the seaward half, or in not adjusting (i.e. increasing) the land of the inland half so that the division awarded to appellants was exactly half of the tract; that the court erred in its determination of the western boundary, because it used a stream located within the "flat land" as the boundary and failed to adjust for this reduction of the inland half; that the court erred in its determination that Failautusi Avegalio’s freehold grant was located within Lega’oa; and that the court erred in not awarding appellants’ residences and farms located on the slopes surrounding Lega’oa, if not the entire slopes, to appellants.
The issue of the main dividing line was not raised in Appellant Willis’ motion for new trial, so it is not properly before this Court. Even if it were considered by this Court, however, the trial court properly used the boundaries that were implemented based on the 1906 decision, rightly assuming that those persons closer in time to the decision were in a better position to determine what the 1906 court meant by "inland half." The trial court heavily relied on several surveys from 1915 or earlier and their accompanying recent retraces1 to establish the dividing line between the inward and seaward halves of Lega‘oa. Likewise, the trial court’s finding that the stream formed the western boundary of the Willis tract was based on the implementation of the 1906 decision. Additionally, the trial court, in its opinion on the Willis Motion for New Trial, stated that even if the Willis tract originally extended to the boundary argued by Willis, the current *121occupants had satisfied the 20-year, adverse-possession statute by maintaining occupancy since well before 1962.
We need not detail all of the many additional factors considered by the trial court in its thorough and well-reasoned opinion. The court carefully considered the extensive testimony offered by both interested witnesses and disinterested witnesses, as well as the many surveys and photographs submitted by the various claimants. Additionally, the court conducted its own on-site inspection of the relevant tracts of land,
The remaining questions on appeal here are ones of fact. The relevant test is not whether there were facts in the record sufficient to support decisions for the two sets of appellants, but whether there was sufficient evidence to support the trial court’s decisions. For both appeals considered here, there was. Thus, the trial court’s resolution of these issues was not clearly' erroneous. On the contrary, it was very well-supported on the record. We therefore AFFIRM.
Five of these six parties with old surveys rely on long-registered titles. The registered surveys with accompanying retraces were offered by the Ripley estate, the Meredith heirs, and the Uo family. A freehold land grant approved by the Land Commission of Samoa to the Roman Catholic Diocese of Samoa Pago Pago was also offered with its recent retrace, and the heirs of Sekio offered a freehold land grant approved by the Land Commission of Samoa without a retrace. An unregistered map and its accompanying recent retrace was offered by Fai‘ivae. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486057/ | Order Determining Heirship and for Further Proceedings:
The motion by co-administrator Sapati Fuimaono (Sapati) of the above-entitled estate1 for a hearing to close the estate came regularly for hearing on April 6, 1992. The Court heard testimony and received other evidence, and the motion was submitted for decision. The Court, having considered the records on file in this proceeding and the evidence presented at the hearing, finds:
FINDINGS OF FACT
A. Summary of Proceedings
1. On July 10, 1986, Fa’alua Fuimaono (Fa‘alua) filed a verified petition for letters of administration of this estate. On September 17, 1986, Sapati also filed a verified petition for letters of administration. These separate proceedings were consolidated on September 22, 1986.
2. Based on these two petitions, the decedent Tuinanau Fuimaono (Tuinanau) was bom on March 14, 1906, in American Samoa and died in January 1984 (Fa‘alua’s petition states on or about January 22 in Hawaii; Sapati’s petition states January 1, 1984 in *123American Samoa). Both petitions agree that Tuinanau died intestate, leaving property in American Samoa subject to administration, and that he was then domiciled in American Samoa. He died in Hawaii.
3. Both petitions list Fa'alua as Tuinanau’s surviving wife and Sapati as his surviving son. Fa‘alua’s petition also lists Saumaleato Fuimaono (Ato) as Tuinanau’s surviving son.
4. On February 27, 1987, Fa'alua and Sapati filed a stipulation for their appointment as co-administrators. However, there was no formal appointment of any administrator of record until July 17, 1990.
5. On July 17, 1990, Sapati’s petition for Fa'alua’s removal as co-administrator, filed June 6, 1990, was pending before the Court. This petition was based on allegations of her mismanagement of the estate, lack of cooperation, and incompetency due to age. Fa’alua controverted these allegations by answer filed on June 14, 1990. There is also a letter in the file alleging similar mismanagement by Sapati.
6. On July 17, 1990, the Court appointed Sapati and Ato as co-administrators, which was formalized by the Court’s order dated July 20, 1990.
7. Meanwhile, Fa’alua’s notice to creditors was issued and, on July 25, 1986, published in the Samoa News. Another notice to creditors, issued by both Fa'alua and Sapati, was published in the Samoa Journal & Advertiser on March 5, 1987. There are four apparently unresolved creditors’ claims on file. There may be others when the final accounting is filed.
8. Several accountings are on file, following the Court’s order of June 7, 1990, requiring both Fa’alua and Sapati to file separate accountings by June 22, 1990. Fa’alua’s accounting in response was filed on June 20, 1990, and Sapati’s accounting was filed on June 21, 1990. As then directed by the Court on July 5, 1990, Fa‘alua filed another accounting of cash received on July 17, 1990. As a result of Sapati’s motion citing Ato for contempt filed on July 19, 1990, and stipulated continuances to October 18, 1990, to survey lands sold, still another accounting, prepared jointly by Sapati and Ato, was filed on December 11, 1990. On March 14, 1991, the Court advised the co-administrators, at a hearing for approval of the. *124December 14, 1990, accounting, that there were still unresolved accounting issues.
9. The estate proceedings have remained at this point until the present motion was filed. The essence of this motion, despite its styling as a motion to close, is to determine the heirship to Tuinanau’s estate and obtain further direction from the Court.
B. Heirship
1. Tuinanau and Selepa were formally married, probably in 1944. Sapati was bom of this relationship on February 23, 1940. The couple probably separated in 1945. There is uncertainty about when and if they ever legally divorced.
2. Fa‘alua was apparently bom on January 11, 1905, and thus was approximately one year older than Tuinanau. Tuinanau and Fa‘alua began living together in 1946 or 1947. There is no certificate of their marriage in the files of American Samoa’s Registrar of Vital Statistics. No marriage certificate of another jurisdiction was submitted into evidence. There is a church document purporting to show their marriage on August 22, 1946, performed by a person named "Morrow," presumably a reference to former Chief Justice Arthur A. Morrow. Fa’alua also has a Certificate of Identity travel document, issued on September 8, 1976, by the American Samoa Attorney General’s Office, stating that she was married. Attached to this document is an American Samoa Birth Certificate, issued as a late registration on January 28, 1971, stating that she was bom in Fagatogo, American Samoa, on January 11, 1905. However, there is also an Attorney General’s Alien Registration Form, which Fa'alua completed under oath on February 11, 1964, using her maiden name of Letuli and stating that she was bom on March 14, 1930, in and was a citizen of Western Samoa, had entered American Samoa at Fagatogo on June 22, 1947, and was living with the Fuimaono family in Nu‘uuli. Tuinanau and this Fuimaono family were long-term residents of Nu'uuli, American Samoa. Not all of these documents can be genuine, and we are persuaded that the Alien Registration Form, other than Fa’alua’s date of birth, contains the truth. Thus, we find that the union of Tuinanau and Fa’alua was not solemnized by a marriage ceremony as is required under A.S.C.A. § 42.0101.
3. Clearly, however, Tuinanau and Fa‘alua held themselves out publicly as a married couple and were recognized by their *125Fuimaono family and the public at large as married. The relationship lasted in this manner from 1946 or 1947 until Tuinanau’s death in 1984, a period of 37 or 38 years. They used the name Fuimaono throughout these years in all their personal and business transactions, and Ato, their son, carries the same name. However, despite their de facto marital relationship, they both knew the relationship was not a legal marriage. Lack of good-faith belief in the validity of a marriage, in a jurisdiction such as American Samoa that does not recognize common-law marriages, precludes finding a putative marriage for inheritance purposes. Vallera v. Vallera, 21 Cal. 2d, 134 P.2d 761 (1943).
4. We find that Fa’alua was neither Tuinanau’s lawful spouse nor his putative spouse for inheritance purposes.
5. Ato is the only child bom of the relationship of Tuinanau and Fa’alua. He is approximately 46 years old. He has lived with his father, until his father died, and mother throughout his life. Both parents publicly acknowledged Ato as their child. If his parents had legally married, he would have been legitimated under A.S.C.A § 42.0501 and unquestionably entitled to inherit from his father’s intestate estate under A.S.C.A. §§ 40.0201 and 40.0202. None of these statutes, however, necessarily exclude illegitimate children from inheritance by their own terms. While we recognize the common-law view equating illegitimacy with disinheritance, and that legitimation is essentially a statutory development of the law, we cannot accept disinheritance as a proper result when paternity or maternity is a genuinely established fact. It is, in the words of the United States Supreme Court, "illogical and unjust" under these circumstances to extend the condemnation of irresponsible liaisons as imposing disabilities on their innocent offspring. Interpretation or application of the American Samoa statutes to disinherit under these circumstances would result in impermissible discrimination. Trimble v. Gordon, 430 U.S. 762 (1972); Nagle v. Wood (Estate of Russell R. Richards), 178 Conn. 180, 423 A.2d 875 (1979); see also Craddick v. Territorial Registrar, 1 A.S.R.2d 10 (1980).
When parents perform their parental duties towards their recognized children, and those children perform their filial obligations in return, as has occurred in this family, a defacto right of inheritance should be recognized in principle. Nagle v. Wood (Estate of Russell R. Richards), supra; see the discussion in H. Clark, Law of Domestic Relations, §§ 5.1, 5.4, 18.8.
*1266. We find that Ato is Tuinanau’s recognized child for inheritance purposes.
CONCLUSIONS OF LAW AND ORDERS
Based on the foregoing facts, the Court concludes and orders:
1. Since Fa‘alua is neither a lawful nor putative surviving spouse, she cannot inherit any part of Tuinanau’s estate.
2. Since Sapati and Ato are Tuinanau’s children for inheritance purposes, they are entitled to succeed equally to Tuinanau’s estate, both real and personal property, equally, a one-half undivided interest to each, as tenants in common. A.S.C.A. §§ 42.0201(b), 42.0202(a).
3. Since Sapati and Ato are the only heirs, they should and at this time shall continue to be co-administrators of Tuinanau’s estate.
4.Since these proceedings lack a satisfactory inventory of estate assets and a satisfactory accounting, it is not yet in any condition to permit distribution of the property and closing. Therefore, the co-administrators shall jointly generate and file in this proceeding the following documents:
a. An inventory of all estate property existing as of the date of Tuinanau’s death.
b. A final accounting of all transactions, including all cash receipts and disbursements, and the validity and disposition of all creditors’ claims, since the date of Tuinanau’s death to the date of filing the accounting, together with a petition and proposed order for distribution of the estate property.
c. A petition and proposed order for closing the estate and discharging the co-administrators after the distribution is completed.
5.In order to facilitate preparation of these documents, a hearing before the Court is scheduled on July 23, 1992, at 1:30 p.m., at which the co-administrators shall produce, and be ready to testify about, copies of the following *127records in the possession of either or both of them, or now known to be in the possession of third parties, or located by either or both of them between now and the date of the hearing:
a. All records pertaining to all estate property at the date of Tuinanau’s death, and in the case of land, before death.
b. All records pertaining to all transactions concerning estate property after the date of Tuinanau’s death until the date of the hearing, including but not limited to all cash receipts and disbursements, and the validity and disposition of creditors’ claims.
It is so ordered.
The Court, on its own motion, is changing the title of this estate proceeding. The existing title, "In the Matter of the Estate of Tuinanau Fuimaono, Deceased, by Fa’alua and Sapati Fuimaono, Co-administrators, " along with other similar designations along the way, is confusing, especially when Fa’alua is not, and never has been, an appointed administrator in this proceeding. The change keeps the focus on the underlying purpose of this proceeding, the administration of the decedent’s estate, and simplifies the title. As a general rale, the title of all proceedings for the administration of decedents’ estates should not be any more elaborate than "Estate of_, Deceased." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486058/ | Findings of Fact, Conclusions of Law, and Order on Remand:
The trial in this action was held on June 28, 1989, and the decision was issued on August 28, 1989. The issue of fraud in connection with the conveyance of a certain portion of the communal land of the Vaimaona family by plaintiff Vaimaona Foloi, as the sa‘o or senior matai of the family, to defendant Fa'amamafa Tuitasi as her *2individually owned land was the focus of the trial proceedings. The trial court determined that there was no fraud-in-fact; the Samoan custom of family consultation on major decisions was not a requirement of law in land-transfer transactions; the conveyance was completed in compliance with the provisions of A.S.C.A. §§ 37.0201 et seq., concerning alienation of land; and the registration of the title to the land was done in accordance with the provisions of A.S.C.A. §§ 37.0101 et seq. For these reasons, the action was dismissed.
Plaintiffs’ motion for a new trial was filed on September 7, 1989. The motion was heard on September 25, 1989, and the trial court’s decision on the motion was issued on December 12, 1989. The trial court discussed at length the procedural irregularities raised by the motion, particularly with respect to notice requirements, in the title-registration process of the land in question under A.S.C.A. §§ 37.0101 et seq. However, the trial court upheld the validity of the conveyance under A.S.C.A. §§ 37.0201 et seq. and, on that basis, considered any procedural deficiencies in the title-registration process moot for purposes of this action. Thus, the motion was denied.
Plaintiffs’ appeal was noticed on December 14, 1989, and the appellate decision, addressing two issues, was handed down on March 12, 1991. The appellate court upheld the trial court on the issue of family consultation. However, it disagreed with the trial court’s decision to effectively quiet title to the land in Tuitasi, when the record below clearly evidenced irregularities, broadly described as the notice issue, regarding the registration of the title to the land and possibly the recordation of the deed transferring the land to Tuitasi. Hence, this action was remanded to the trial court for an evidentiary hearing and further findings of fact and conclusions of law on the notice issue. This evidentiary hearing was held on April 24, 1992.
FINDINGS OF FACT
The Territorial Registrar of the American Samoa Government, who did not testify at the trial contrary to the usual practice in actions involving titles to land, testified at the evidentiary hearing. Based on the testimony of the Territorial Registrar and other witnesses at the hearing, together with the records in the trial and appellate files in this action, the Court finds as follows:
1. The land at issue is situated in Aumi, which is a part of the Village of Lauli‘i, American Samoa.
*32. On November 7, 1977, Luaitaua Pele, the Pulenu'u or Mayor of Lauli‘i, gave public, oral notice in the village, at a meeting of the chiefs thereof, of the time and place of the survey of the land. The survey was made by a Government surveyor and on November 18, 1977, was approved for registration by the manager of the Government’s Survey Branch. The Surveyor and PulemTu Certificate, showing compliance with the requirements set forth in A.S.C.A. § 37.0102, was signed on December 20, 1977.
3. On January 19, 1978, Vaimaona Foloi offered the land for registration with the Territorial Registrar as the communal land of the Vaimaona family. The Notice for Proposed Registration of Land was posted from January 20, 1978, through March 21, 1978, in front of the courthouse and on two telephone poles in Aumi, as certified by the Affidavit of Posting issued by the Territorial Registrar on March 27, 1978. No objections to the proposed registration were received during the posting period. The land was then registered by the Territorial Registrar as the communal land of the Vaimaona family.
4. Vaimaona Foloi executed a warranty deed, dated as of December 23, 1977, and delivered on April 11, 1978, conveying the land to Tuitasi as her individually owned land. The trial court found that at some point between April 11, 1978, and August 6, 1987, the original of the deed was lost or destroyed and that the disappearance was a result of Arieta Vaimaona’s unsuccessful efforts to complain about the conveyance to various Government officials and not due to any act of bad faith by Tuitasi.
5.On August 6, 1987, Tuitasi filed a copy of the deed with the Territorial Registrar for registration. Since she was not acting immediately upon an attorney’s advice at that point, we find that she was generally aware of the land-registration requirements and intended to comply with those requirements. On the same day the Territorial Registrar, in his capacity as the Secretary of the Land Commission, issued the Commission’s notice of the filing and prospective forwarding of the deed to the Governor for approval or disapproval and setting September 8, 1987, as the deadline for filing objections with the Secretary. This initiated the process for registration or recordation of the deed pursuant to A.S.C.A. §§ 37.0201 et seq. The notice was posted in front of the courthouse and on two telephone poles in the Village of Lauli‘i from August 6, 1987, through September 8, 1987, a period of 34 days. The Affidavit of Posting issued by the Territorial Registrar *4certifies the places and period of posting but was signed on August 6, 1987, before, rather than after, the posting period was completed.
6. The Land Commission considered this land transaction on September 28, 1987. Vaimaona Foloi twice participated in the hearing before the Commission. Although it is not entirely clear whether his two appearances were on the same day or different days, the Commission’s deliberations were concluded, and its recommendation for approval of the conveyance was forwarded to.the Governor on September 28, 1987.
7. The Governor appended his approval of the conveyance on the copy of the deed on October 20, 1987. On the same day, the Territorial Registrar registered the transaction in the Register of Land Transfers.
8. The Territorial Registrar’s Certificate of Registration form is used to certify both registrations of title under A.S.C.A. §§ 37.0101 et seq. and recordations of transfer documents under A.S.C.A. §§ 37.0201 et seq. As the trial court indicated, the Certificate issued in this transaction is somewhat ambiguous. It clearly registers or records the deed itself. It also refers to registration as Tuitasi’s "individually-owned land." The Registrar testified that when a deed seeks to change the status of land from communal land to individually owned land, the practice is to provide the required 60-day notice period before the Land Commission’s hearing is held. However, with a posting period of only 34 days, the 60-day notice for the purpose of title registration under A.S.C.A. §§ 37.0102 et seq. was not afforded in this case.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact, and addressing in particular the issues of notice raised by the appellate court, the Court concludes as follows:
1. The appellate court rightly points out that compliance with the statutory notice requirements for registrations of title under A.S.C.A. §§ 37.0101 et seq. is an essential feature of the registration process. The importance of proper notice is graphically illustrated in this action by the sa‘o’s failure to follow the custom of family consultation before he deeded the land to Tuitasi. Notice then becomes the only means by which interested family members have an opportunity to voice objections to proposed title registrations, which is particularly important when communal land is proposed to be registered as individually owned land.
*5Details of posting become very significant. Posting at non-obvious locations, or in an area outside the village in which or nearest to which the land is situated, or for less than the mandated posting period can deprive family members of adequate opportunity to object to the registration of title. The customary official, government affidavit of posting showing these details and executed after the posting period closes, while not a legal requirement in the process, solidifies confidence in the title-registration program.
Plaintiffs suggest that the 1987 notices in this transaction were posted at places too remote from their family lands in Aumi. However, we do not need to take up this question, as the evidence clearly shows that the notices were posted for only 34 days in 1987, and there is no evidence that the Territorial Registrar was relying on the 60-day period afforded in 1978, when the land was registered as Vaimaona communal land, as a basis for registration of the title in 1987 in Tuitasi as her individually owned land. Since the 60-day notice period mandated under A.S.C.A. § 37.0103 was not met during the proceedings in 1987, there has not been a valid registration of the title to the land as Tuitasi’s individually owned land under A.S.C.A. § 37.0101.
2. Tuitasi presented a copy of the deed to the Territorial Registrar in 1987 for registration without differentiating between registration of the title or recordation of the instrument, or both, as her purpose. The Registrar acted upon her offer as one for registration or recordation of the deed.
Although the instrument offered was a copy of the deed, its genuineness as a copy of the original has not been contested. The trial court found that the original was lost or destroyed as a result of Arieta Vaimaona’s unsuccessful efforts to complain about the conveyance to various Government officials, after the deed was executed and delivered and before the copy was offered for registration. Her responsibility for the disappearance, and not any bad-faith act by Tuitasi, is also uncontested. Recordation of a genuine copy of a deed under these circumstances is consistent with evidentiary admission of a copy of an instrument as an exception to the best-evidence rule. See R.O.E. 1002, 1003, 1004(1). The passage of ten years, more or less, while lengthy, is not sufficient of itself to deprive Tuitasi of her land registration or instrument-recordation rights. The copy of the deed offered by Tuitasi was recordable and may be used for title-registration purposes.
*6The Territorial Registrar followed the procedural steps required for recordation of instruments. The Land Commission must provide the Governor with recommendations on proposed transfers of communal land and individually owned land before the Governor gives his essential approval to land-transfer transactions. A.S.C.A. §§ 37.0203, 37.0204. Implicitly, but not explicitly, the Land Commission should hold public hearings on proposed land transfers and, although there are no specific notice requirements, must give reasonable notice of its deliberations to interested persons, regardless of the forum selected to "study" proposed transactions.
The Land Commission held a hearing on the proposed conveyance in this action. The hearing was conducted after the notice for the filing of objections was posted for 34 days. Although there is some dispute over the suitability of the posting places in the Village of Lauli‘i, and there is no record of any specific notice of the hearing date, Vaimaona Foloi, as the sa‘o of the Vaimaona family and grantor in the deed, participated meaningfully in the hearing.
The Land Commission then recommended the Gove'mor’s approval of the conveyance, and the Governor approved it. Accordingly, the Territorial Registrar then registered the deed. Thus, the deed was duly registered for recording purposes under A.S.C.A. § 37.0210(a).
3. The Territorial Registrar’s Certificate of Registration, dated October 20, 1987, is set aside with respect to the registration of the title to the land at issue in this action as Fa’amamafa Tuitasi’s individually owned land, but is sustained with respect to the registration or recordation of the deed transferring the land to Tuitasi as her individually owned land.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486059/ | This dispute is essentially between first cousins, who are members of the Fiaseu family of Masausi, and it concerns entitlement to a certain homesite located on a ridge separating Masausi and Fagaitua. The site once contained the home of plaintiffs’ (Talauega Letumu and Polapiitasi Fiaseu) sibling, Vai Fiaseu, who built his home thereon in 1983 on the basis that the site was part of the Fiaseu family’s communal land "Sopomaleula." At the time Vai Fiaseu was also holding himself out as the senior matai of the Fiaseu family (having gone through a matai-installation ceremony with the village and having undertaken the matai-title registration process as required by statute), and as such he executed a separation agreement for the construction of his home. He subsequently moved off-island. Sometime thereafter his cousin, Jeanette Mulipola, approached plaintiffs about the use of their brother Vai’s home, since she and her husband were planning to build a home of their *8own on the opposite side of the road. Plaintiffs agreed; Jeanette and her husband consequently moved into Vai’s house and commenced construction of a house of their own across the road.
It seems that the Mulipolas have since taken the position that plaintiffs’ side of the family has no right whatsoever to Sopomaleula. Plaintiff Talauega testified that in 1987, Jeanette’s father Pesefea Utu, who has been living off-island since 1952 and was visiting at the time on a church-related conference, told him and his sister that they had no rights at all to lands in the village of Masausi and that plaintiffs should confine themselves to Sailele village, where they belong. Talauega further testified that Pesefea also gave him and his sister the ultimatum that Vai’s house would be burnt to the ground if plaintiffs’ side of the family refused to stay in Sailele. He also testified that Vai’s home was indeed burnt to the ground - and that the Mulipolas had thereafter commenced to erect yet another home on the disputed site, after obtaining a building permit under signature of the defendant Aiava Ua, who now holds himself out illegally as the Fiaseu titleholder. Plaintiffs seek a preliminary injunction to halt the construction by the Mulipolas, pending trial on the merits.
At the hearing, Pesefea Utu claimed that the site in question is part of his individually owned land, also known as "Sopomaleula." He claims that he began clearing the land after the Second World War; however, he also acknowledges that he went upon this area after obtaining permission from his father, the then-Fiaseu titleholder. Vai Fiaseu, who also attended and testified at the hearing, disputes his uncle’s claim to individual landholding.
We hold that plaintiffs have established sufficient grounds for the issuance of a preliminary injunction pursuant toA.S.C.A. §43.1301(j).1 *9We conclude that there is a substantial likelihood that the applicants will prevail at trial on the merits. The evidence here essentially reveals a forced ouster of one Fiaseu family member by another on the unlikely premise that the land in question is individually owned land. Among other things, the evidence tended to show that Pesefea Utu had gone on the land Sopomaleula through permission of the family matai. This is hardly consistent with individual ownership. See Fanene v. Magalei, LT No. 64-77 (1977).
On the issue of great or irreparable harm, we find in favor of plaintiffs. The Court visited the scene and observed a rectangular, concrete foundation with cinder-block walls in the process of going up; the slab had yet to be poured. The construction is located somewhat precariously on the edge of a steep ravine, with little room for anything else on the site. On the opposite side of the road, however, we also noticed an impressive structure yet to be completed. This is the home which the Mulipolas were originally building, while temporarily occupying Vai Fiaseu’s home, which subsequently burned. This structure has been substantially built; however, its construction has been very obviously halted while the complained-of construction was begun. In the circumstances, it is difficult to resist the conclusion that the primary purpose behind the construction complained of is an attempt, in derogation of plaintiffs’ claims to entitlement, to assert pule in a permanent way — a concrete fixture of defendants’ choosing. This construction ic in a preliminary stage, and in our view, the equities weigh in favor of a provisional injunction to secure the status quo until a decision on the merits of this case.
IT IS THEREFORE ORDERED that construction, by the defendants and all those in active concert with them, on the structure located on the site that contained Vai Fiaseu’s house until it was burnt, is hereby ENJOINED until final disposition hereof.
This enactment provides:
"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 *9on whether a permanent injunction should issue. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486060/ | *11On Motion for Reconsideration or New Trial:
At oral arguments heard on June 17, 1992, plaintiffs moved the Court for reconsideration or new trial on several grounds. First, they claim that the findings of fact are clearly erroneous or unsupported by the evidence. We decline to reconsider our decision or grant a new trial on this ground.
Plaintiffs also assert that the relief awarded was beyond the Court’s authority. They claim that defendants Jack and Eliza Thompson did not file a compulsory counterclaim against the plaintiffs in accordance with T.C.R.C.P. 13(a) and thus are not entitled to any relief. This claim has no merit, as under T.C.R.C.P. 8(c), ”[w]hen a party mistakenly designates ... a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation." The defendants did ask for the relief we granted in several of their asserted affirmative defenses. Misdesignation clearly occurred, but in the interests of justice, we have treated the pleading as if there were a proper designation. Thus, we also decline to grant reconsideration or a new trial on this ground.
Finally, plaintiffs assert that the Court’s order exceeds the Court’s authority because it affects property rights of persons who are not parties to this action. This claim does have merit. When the property was included in Alexander’s estate, it was divided and distributed among over a dozen people, including David and Eliza. T.C.R.C.P. 19 provides that ”[a] person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties." (Emphasis added.) In this case, the complete relief constructed by this Court must affect the rights of all of these heirs of Alexander, since the relief is based on Alexander’s fiduciary relationship with Jack and his implied promise or constructive fraud with respect to the relationship, and all of the heirs received their interests from Alexander. It is possible that.even if the Court were only to award the Jennings’ 2/15 interest to the Thompsons, the remaining heirs would be collaterally estopped from later claiming that they own their interests because of the derivation from Alexander. Thus, the parties are necessary parties and the Thompsons, if they desire relief to be accorded in this case, must attempt to join the remaining heirs.
*12Several of these distributees have since died, and although most of these estates1 are still open and can thus be joined by naming their administrators or executors, a few estates have been closed and the property in them distributed. The Thompsons will have to attempt to join the distributees of these closed estates as well, to bring all of the potential claimants before the Court. If the defendants are unable to bring some of the parties before the Court, we will then determine whether these parties are indispensable or whether the action can proceed despite their absence.
Even if no attempt to join the other heirs is made, we do not confirm the plaintiffs’ 2/15 interest in the property. Plaintiffs’ original prayer for relief is denied if such joinder is not attempted.
The Estate of Margaret Z. Jennings, PR No. 39-88, may be helpful in determining which of Alexander’s heirs are still alive and where they may be found. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486061/ | Order Denying Motion to Dismiss or in the Alternative to Quash Summons, and Order of Consolidation:
*14Defendant Kao Ya Fisheries Company has appeared specially in CA No. 56-92 for the purpose of moving the Court to dismiss that action or, in the alternative, to quash the summons on the grounds that the Court lacks jurisdiction over this defendant. This motion came regularly for hearing on July 15, 1992. The Court, having considered the documents on file in CA No. 56-92 and counsel’s arguments, finds that plaintiff has established a prima facie case of jurisdiction over defendant in this action in that:
1. Plaintiffs verified complaint alleges that defendant is doing business in American Samoa by owning four fishing vessels which have used or are using Pago Pago as their home port and has failed to pay plaintiff $438,644.77 for provisions and other operational requirements furnished by plaintiff, also doing business in American Samoa, to these vessels. From this, it is reasonably inferred that some, and perhaps all, of the underlying transactions occurred in American Samoa.
2. Plaintiffs verified complaint further alleges that defendant is associated with two other business entities in American Samoa, which are under the supervision and control of two individuals who are, respectively, defendant’s "local agents and directors."
Therefore, defendant Kao Ya Fisheries Company’s motion to dismiss the complaint or, in the alternative, quash the summons in CA No. 56-92 is denied. Plaintiff must, of course, still establish jurisdiction over this defendant by a preponderance of the evidence before the end of the trial of this action.
At the hearing on this motion, the parties stipulated that in the event the Court denied the motion, CA No. 56-92 and CA No. 70-92 would be consolidated for all further proceedings. Therefore, these two actions are now consolidated.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486062/ | *16
FACTS
Intervenor Sione Kolo was seriously injured on September 5, 1990, in the course of his employment for Samoa Maritime. All parties agree that the injury is covered by compensation benefits under the Workmen’s Compensation Act, A.S.C.A. §§ 32.0501 et seq. Intervenor’s treating physician has recommended off-island medical care. After a formal hearing, the Workmen’s Compensation Commission ("Commission") concluded in its Findings of Fact, Conclusions of Law, and Decision and Order filed on March 3, 1992, that Samoa Maritime and its workmen’s compensation insurer, petitioner National Pacific Insurance Co. ("NPI"), "are responsible for the provision of such medical and hospital services, treatment and supplies required by Claimant, which includes the making of arrangements for such necessary off-island medical treatment." Id. at 6. NPI now seeks judicial review of that decision pursuant to the provisions of A.S.C.A. § 32.0652. Although NPI concedes that it must cover medical treatment and travel expenses for the off-island care, including accommodation and per diem, it claims that intervenor must first go through the off-island medical referral procedure outlined in A.S.A.C. §§ 11.0310 et seq. and that the LBJ Tropical Medical Center ("LBJ") must make the arrangements for intervenor’s off-island medical treatment. Additionally, NPI argues that the government cannot charge different rates for insured and uninsured patients.
Respondent and intervenor, on the other hand, both raise the issue of whether LBJ is within the Commission’s jurisdiction in the first place; they claim that it is not and that the Commission therefore cannot order LBJ to process intervenor through its off-island medical referral procedure.
Intervenor further alleges that NPI intends to seek reimbursement for the costs which it incurred in making the off-island arrangements, and intervenor therefore seeks a declaration to the effect that he is not responsible for such costs, as well as a permanent injunction to enjoin NPI from filing suit against him to recover such costs. Intervenor also prays for his attorney’s fees and costs since June 1991.
STANDARD OF REVIEW
The courts have given considerable deference to administrative decisions involving an agency’s construction of its governing statute and *17regulations. Thus, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984), the Supreme Court said that
[ijf ... the court determines [that] Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, [footnote omitted] as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent and ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
In Wilderness Society v. Morton, 479 F.2d 842, 864 (D.C. Cir. 1973), the Court of Appeals noted "the settled principle that administrative interpretations are entitled to great weight” but went on to add that if the court deems the interpretation to be inconsistent with a statutory mandate or to frustrate congressional policy, the court need not approve the interpretation. Deference to the agency’s interpretation does not mean rubber-stamping its decisions. Additionally, the court noted that " [t]here is a presumption against construing a statute so as to render it ineffective." Id. at 855.
Thet-c standards have been effectively incorporated in the Workmen’s Compensation Act. A.S.C.A. § 32.0652(a) provides that, " [i]f not in accordance with law, a compensation order may be suspended or set aside, in whole or in part." This provision limits the court, which "can set aside the Commission’s decision only if it was ’not in accordance with law.”' Continental Ins. Co. v. Workmen’s Compensation Comm’r of Am. Samoa, 7 A.S.R.2d 105, 107 (1988), aff’d, 8 A.S.R.2d 152 (App. Div. 1988). On issues of fact, the right to appeal the Commission’s decision "does not entitle the losing party to a new trial before a new tribunal. As long as reasonable people could differ on the facts presented to the Commission, its decision will be upheld on appeal." Id.
Thus, if the Commission’s interpretation is permissible under the statutes and regulations, the Court should defer to the Commission’s decision. If, however, the Commission’s construction is inconsistent with a statutory mandate, frustrates legislative policy, or renders the statutes or regulations ineffective, the Court must set aside the decision. See also Morton v. Ruiz, 415 U.S. 199, 237 (1974).
*18
DISCUSSION
Off-Island Referral Procedures
A. Different Rates
The American Samoa Administrative Code provides that "[t]he medical referral committee will meet to review each proposed referral case, and . . . will recommend approval or disapproval according to policies, procedures, and criteria governing this process." A.S.A.C. § 11.0312(b). As the Commission found, one of these policies is that, if a patient is covered by workmen’s compensation insurance, the patient will not go through the off-island medical-referral procedures. Instead, the doctor advises the employer or insurer in writing of the recommendation that off-island treatment is essential and sends a copy to the patient’s attorney, if he has one. Upon receipt, the employer or insurer makes any necessary arrangements for off-island treatment.
The hospital also charges different rates for insured and uninsured patients, under A.S.A.C. §§ 11.0303-11.0304 (insured), adopted under the authority of Rev. Const. Am. Samoa Art. IV, § 6, and A.S.A.C. §§ 11.0301-11.0302 (uninsured), adopted under the authority of A.S.C.A. §§ 13.0601-13.0602. NPI argues that the distinctions in the administrative rules requiring workmen’s compensation insurers to be charged different rates than those the injured patient would be charged if not covered by workmen’s compensation insurance are "in conflict with the laws of American Samoa," Rev. Const. Am. Samoa Art. IV, § 6, and are not, as the administrative code states, authorized by this section of the Revised Constitution.
The American Samoa Code Annotated provides that all fees and other charges for treatment under the Workmen’s Compensation scheme "shall be limited to such charges as prevail in the same community for similar treatment of injured individuals of like standard of living, and shall be subject to regulation by the commissioner." A.S.C.A. § 32.0619(f). It also provides that "[t]he employer shall furnish, where no other provision is made, such medical [and] . . . hospital service ... as the nature of the injury or the process of recovery may require." A.S.C.A. § 32.0619(a). NPI asserts that the different rates established by the administrative code conflict with the limits established by these statutes.
*19The "conflict" is claimed to arise because the authorizing statute prescribes "reasonable" charges for the use of government facilities, and the Workmen’s Compensation Act "expressly limit[s]" fees and other charges for medical treatment to those prevailing for "similar treatment of injured individuals of like standard of living." NPI’s Opening Brief at 5 (citing A.S.C.A. § 32.0619(f)). The thrust of the argument is that "no statutory clear authority to charge different rates or provide different procedures based upon insurance coverage, for patients otherwise statutorily entitled to ‘free’ medical care, is indicated in the language of these statutes." NPI’s Opening Brief, at 5. Yet NPI never argues that the rates charged are not "reasonable," thus the conflict with the statutory authority actually does not exist.
Further, this alleged conflict is not at issue in this appeal. LBJ has simply refused to process intervenor through the off-island referral procedures, and therefore, no charges, whether at the insured or uninsured rate, are incurred. Thus, any difference in charges is not relevant in the present case.
B. Governing the Process
The Commission’s decision determined that A.S.C.A. § 32.0619(f), which limits workmen’s compensation charges, does not mandate that workers covered under the statute and who require off-island treatment must be processed by LBJ. NPI disputes this determination, claiming that "LBJ may not treat patients differently based solely upon the fact that the patient’s charges and fees will be paid pursuant to the Workmen’s Compensation Act." NPI’s Opening Brief, at 6.
The key issue is whether the A.S.A.C. provision allowing "policies, procedures and criteria [to] govem[] this process" of off-island referral can encompass an unwritten policy that those fully covered by insurance will not go through the process at all; is this "governing" the process? There is no clear statutory mandate requiring anyone to go through the off-island referral procedures. NPI makes much of the off-island referral committee’s duty to review each proposed referral case, but this duty does not arise until "[t]he chief of service immediately concerned fills out an off-island medical referral form and sends it to the office of the director of health," A.S.A.C. § 11.0312(a), thus creating a "proposed referral case," A.S.A.C. § 11.0312(b). Presumably, such a form will be filled out only when the chief of service anticipates that LBJ will be paying at least part of the cost of off-island medical *20treatment. If anything, this equivocality of the statute lends itself to supporting the Commission’s decision, since it would be difficult to find that the decision is not in accordance with law when the law does not have specific requirements.
This policy actually does govern the process by serving as a valid screen to exclude people from the process and its benefits — medical care at government expense — and not to "exempt" them from "completing the Off-Island Medical Referral requirements," as NPI claims. NPI’s Opening Brief, at 9. The primary purpose of the procedure is to ensure that only those who truly need the off-island care receive it at LBJ’s expense, and the exclusions serve to keep those who will not receive the care at LBJ’s expense out of the process, thus conserving time and resources. This screen functions in the same way as the requirement that a patient qualify by contract, residence, or nationality for free medical care before he can be considered by the off-island referral committee; unless the patient meets the requirement, the committee does not consider the case. Yet clearly the qualifications "govern" the process even though they serve to exclude people from the process. The only difference is that one is a promulgated policy while the other is not. This exclusion does not render the statute ineffective or frustrate the legislative purpose behind the statute.
NPI claims that A.S.A.C. § 11.0311(b) "acknowledges that insured, eligible patients will still go through the off-island referral process," because it states that the American Samoa Government ("ASG") will only be responsible for any amounts not covered by insurance, including workmen’s compensation insurance. But nothing requires those who are insured to go through the process of off-island medical referral; the provisions of both A.S.A.C. § 11.0311(b) and § 11.0318, which permits a patient to choose private care but limits the government’s monetary responsibility for that care to the Tripler Army Medical Center’s rate, demonstrate that the primary concern of the off-island referral procedure is the government’s expenditure of funds. As Respondent and intervenor argue, the off-island referral process is only necessary for those who wish LBJ to pay some part of the costs of off-island care. Because intervenor’s injury is entirely covered by workmen’s compensation benefits, LBJ will not be paying any part of the costs of off-island care; thus, the off-island medical referral process is not a necessary step for intervenor.
NPI also argues that it is only required under A.S.C.A. § 32.0619(a) to furnish medical care where no other provision is made, and *21that since the Commission clearly found that intervenor would be entitled to free medical care, the Commission’s decision is not in accordance with law. It is urged that others of like standard of living receive "free" off-island medical care and have the arrangements for off-island care made by LBJ. This argument, however, overlooks the administrative rule that ASG, and therefore LBJ, is only responsible for the costs of off-island medical referral not covered by workmen’s compensation under A.S.A.C. § 11.0311(b). Because NPI is responsible for the entire cost of intervenor’s treatment, it is not entitled to receive the free services that LBJ provides at government expense.
This policy serves as part of a sensible method to effect off-island medical care for those covered by workmen’s compensation. Although those covered by workmen’s compensation may often include those who would be entitled to free medical treatment, the two groups are distinct. The example given by respondent of a foreign national who works in American Samoa and would not be entitled to LBJ-sponsored off-island care, but would be entitled to workmen’s compensation, illustrates that the two procedures were not meant to mesh. Requiring all workers to go through the off-island medical referral procedures would prevent some workers, who need off-island care and qualify to have workmen’s compensation pay for it, from qualifying for and obtaining this care. The policy also allows the employer or insurer to begin making the necessary arrangements immediately after the need for off-island csve becomes apparent, while permitting the employer to challenge the necessity of such off-island care through a Commission hearing very early in the process.
Additionally, to require strict compliance with the LBJ off-island medical-referral procedures would require LBJ to obligate funds for travel and medical care, expenses which even NPI acknowledges it must pay. This, too, shows that the two procedures were not meant to be complementary parts of a single procedure but instead address entirely separate concerns.
Finally, NPI’s misgivings about whether off-island care is warranted in cases covered by workmen’s compensation insurance can be and has in this case been addressed through a workmen’s compensation hearing and order. This procedure serves as a safeguard in questionable cases to ensure that only those who truly need off-island care are so referred at the insurer’s expense.
*22The off-island medical-referral committee is, as respondent and intervenor urge, primarily set up to ensure that LBJ funds are only expended when necessary. Because such funds will not be spent in cases covered by workmen’s compensation insurance, this analysis by the referral committee is not necessary. Thus, in cases covered by workmen’s compensation insurance, the policy of not consulting the off-island medical-referral committee is a logical and reasonable policy. The statute is not rendered ineffective, no legislative policy is frustrated, and the non-consultation policy is not inconsistent with a statutory mandate. Additionally, the other inconsistencies that would result from following the off-island referral procedures make it clear that the policy should be considered a permissible interpretation of the governing statutes and regulations and as such is entitled to deference by the Court. Given this deference, the policy and the Commission’s decision must be upheld.
In view of the conclusion we have reached, we need not consider the issue of jurisdiction over LBJ nor address the merits of intervenor’s petition for declaratory and injunctive relief. It remains for us to consider intervenor’s request for attorneys fees and costs. There was no basis set out for this claim, and the same is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486063/ | On Motion to Dismiss:
The motion by third-party defendant American Samoa Government ("ASG") to dismiss the third-party complaint against it for lack of subject-matter jurisdiction came regularly for hearing on July 8, 1992.
ASG claims that this Court can have no jurisdiction over ASG until defendant/third-party plaintiff Southwest Marine of Samoa, Inc. ("SWM Samoa") has filed an administrative claim that is denied by ASG; this administrative claim must be pursued prior to filing suit. SWM Samoa counters that the Federal Tort Claims Act (F.T.C.A.), on which the American Samoa Government Tort Claims Act is based, allows an exception for third-party claims and that plaintiffs but not SWM Samoa suffered the injury, and thus only plaintiffs should file any administrative claim. We find SWM Samoa’s reasoning both logical and enticing, but we find that we are compelled to rule for ASG.
The requirement of filing an administrative claim pursuant to A.S.C.A. § 43.1205 before filing suit is, in fact, jurisdictional. Gobrait v. Americana Hotels, Inc., 1 A.S.R.2d 1 (Trial Div. 1978); Mataipule v. Tifaimoana Partnership, Ltd., 14 A.S.R.2d 100 (1990); Crispin v. ASG, 21 A.S.R.2d 60 (Trial Div. 1992). The F.T.C.A. does also, in fact, provide an exception to this requirement for third-party complaints. This exception allows a third-party plaintiff to bring the government into federal district court as a third-party defendant without first filing an administrative claim, because "the third party plaintiff is forced into the action by the plaintiff and has no choice but to assert any claims he might have against those who might be responsible for the acts he is charged with in the plaintiffs complaint." Rosario v. American Export Isbrandtsen Lines, Inc., 531 F.2d 1227, 1234 (3d Cir. 1976). This reasoning would persuade us in favor of SWM Samoa, but the historical, legislative relationship between the federal and American Samoa acts compels us otherwise.
*25The F.T.C.A. was adopted in 1946 and amended in 1966. This amendment inserted the exception of third-party complaints, cross-claims and counterclaims from the requirement of filing an administrative claim prior to asserting the claim in the lawsuit. The American Samoa Government Tort Liability Act (G.T.L.A.) was adopted in 1967, one year after the 1966 amendment, yet it did not adopt the exceptions for third-party complaints, cross-claims and counterclaims. No direct legislative history is known to exist regarding the adoption of the G.T.L.A., but this procession of events leads us to inevitably infer that the omission was a deliberate act by the Legislature. For us now to apply this omitted sentence as though it were part of the G.T.L.A. as well as the F.T.C.A. would be a judicial usurpation of legislative power. The Legislature would be well advised to amend the G.T.L.A. to include this exception, but despite the wisdom of SWM Samoa’s position, we are constrained to hold that ASG prevails. SWM Samoa should file an administrative claim with ASG forthwith if it wishes to join ASG as a third-party defendant. The motion to dismiss is GRANTED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486065/ | The individual litigants here were all, at one time, members of an unincorporated association which publicly held itself out as the Tutuila and Manu’a branch of the YWCA of Samoa (hereinafter the "association"). The association was affiliated with the "YWCA of Samoa," a corporate body (hereinafter the "corporation") organized in 1977 under the laws of Western Samoa. The corporation was, in turn, *35affiliated with the YWCA World Council (hereinafter the "world body"), to which the corporation pays an annual affiliation fee.1 This fee was collected from the membership — which not only comprised the association but also separate branches from the islands of Upolu and Savai’i — in the way of annual dues. These dues were determined at the fono tele, the annual general meeting of the three island branches, convened at the end of each year. Save for certain collective concerns like the annual affiliation fee payable to the world body, each island branch operated more or less autonomously, raising its own funds and developing its own parochial programs and projects.
In 1989, however, the defendants, who were then principal officers of the association, instituted a secessionist movement to get out completely from under the umbrella of the corporation. They stopped paying the annual dues to the corporation and incorporated a local entity named the "YWCA of American Samoa," apparently with the objective of dissolving the association and assuming its assets, as well as its role, in the territory. Since incorporating, however, the defendants have failed to secure world-body recognition as a YWCA affiliate in its own right. The world body continues to recognize the corporation and its three island branches as the only affiliated YWCA for the Samoas.
Plaintiffs oppose the secession and they filed suit to freeze the association’s assets to prevent the defendants’ use thereof. These assets are essentially funds — $7,800 now on deposit with the Clerk of Courts— comprised of dues and monies which were publicly solicited through the association’s various fund-raising activities in 1987-1988 under the YWCA banner. At the time, fund-raising was geared towards securing a clubhouse for association activities. Since the split, the plaintiffs and those members opposed to a divorce with Western Samoa have actively continued to promote the activities of the association with, among other things, a renewed membership drive; they continue to pay the annually assessed dues towards the world body’s affiliation fee; they have organized as a local eleemosynary corporation known as the "YWCA of Tutuila and Manu’a," and as such have rented a building in Tafuna for corporate headquarters. Plaintiffs seek to retain use of all the funds.
*36Defendants argue that the American Samoa branch as an unincorporated association was not a legal entity capable of holding property in American Samoa. They claim dissolution of the association and thus seek to have the funds divided up among the members as tenants in common.2 Alternatively, defendants suggest a 50%-50% split of the assets as being an equitable division. The defendants further argue that the disputed funds cannot be claimed by the corporation since it could not have done business in the territory without first complying with the requirements of local law, A.S.C.A. Title 30, Chapter 3, pertaining to the registration of foreign corporations.
DISCUSSION
The issue before us is what to do with these funds. We need not here address the issue whether a foreign corporation, operating within American Samoa without complying with the provisions of A.S.C.A. Title 30, Chapter 3, can hold property in the territory; the funds in question were undisputedly held by the YWCA branch in American Samoa and not by the corporation.
For the reasons given, we conclude that the funds should be awarded to the plaintiffs on behalf of the association. First, the evidence does not sustain the conclusion that there was a voluntary dissolution of the association by common consent of its members. Notwithstanding the actions of the defendants, the association continued to remain alive and active, pursuing the ends of its existence. Significantly, it alone continues to enjoy the recognition of the world body as the legitimate YWCA affiliate in the territory. We see nothing on the facts to warrant a decree of involuntary dissolution.
On the other hand, the defendants, in their ceasing to pay the customary annual dues, widely acknowledged by the members as a prerequisite to membership, had thereby effectively withdrawn from the association. In the absence of a provision in the constitution or bylaws of an unincorporated association giving its members a severable interest in the association’s assets, the general rule is that a withdrawing member *37loses title to associational property, which stays in the members remaining in the association. 6 Am. Jur. 2d Associations & Clubs § 23; 7 C.J.S. Associations § 26(b). Indeed,
[t]his rule applies even where a number of members secede in a body, and although they constitute a majority, and organize a new association. In such case, the remaining members, and only they, are entitled to the entire funds and property of the association, so long as they continue to keep it alive and adhere to its purposes.
7 C.J.S. Associations § 26(b), at 71. Here, we find nothing in the association’s organic law giving its individual members a severable interest in the association’s assets and accordingly find no reason to permit a diversion of funds from the organic purpose for which such funds were raised. See also Liggett v. Koivunen, 34 N.W.2d 345 (Minn. 1948).
Judgment will enter accordingly in favor of plaintiffs as aforesaid.
It is so ordered.
For an extensive discussion of the general purposes and activities of the YWCA, see In re Briggs’ Estate, 208 N.W. 247, 248-49 (Wis. 1926).
In the absence of authorizing statute, the general rule at common law is that an unincorporated association is not a legal entity capable of holding or acquiring property. See 6 Am. Jur. 2d Associations & Clubs § 13. "Property ostensibly held by such unincorporated bodies is deemed to belong to the members jointly or as tenants in common." Id. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486066/ | Judgment Against Garnishee and Modification of Original Judgment:
Plaintiff is presently seeking a judgment in the sum of $7,115.35 in this action against the garnishee, pursuant to the garnishment laws of American Samoa, A.S.C.A. §§ 43.1801 et seq. Plaintiffs application for an order to show cause for this purpose and affidavit in support of issuance of the order were filed on May 5, 1992. The order to show cause was issued on May 6, 1992, and an evidentiary hearing was held *39on May 20, 1992, as scheduled. Bill Adams ("Adams") and Saipai Adams ("Saipai"), his wife, appeared and testified.
FINDINGS OF FACT
On May 27, 1987, Adams signed a promissory note on behalf of Quality Furniture, which is a domestic American Samoa corporation fully named Quality Furniture Manufacturing, Inc., in the principal sum of $12,441.26, with interest at the rate of 12% per annum on the decreasing balance of the principal, payable to the Amerika Samoa Bank (the Bank) in 48 monthly installments of $327.63 each, on the 27th day of each month beginning on June 27, 1987. The principal sum represented the combined balance of two loans by the Bank to Quality Furniture. Payments on the promissory note were made sporadically, the first one on July 15, 1987, and the last one on February 21, 1989.
On December 15, 1989, the Bank commenced this action against Adams and Quality Furniture for damages on default of the unpaid amount of the promissory note in the sum of $6,028.07, plus prejudgment and post-judgment interest, costs of suit, and attorney’s fees. Following trial on August 1, 1990, at which Adams did not appear, the Bank was awarded judgment against Quality Furniture. The written judgment, issued on August 7, 1990, is in the principal amount of $6,028.07, plus pre-judgment interest of $390.43, attorney’s fees of $641.85, and costs of $55, for a total of $7,115.35.
The Bank served a notice of garnishment on the Bank of Hawaii on June 17, 1991, which did not reveal any property belonging to Adams or Quality Furniture in the Bank of Hawaii’s possession or debts due to Adams or Quality Furniture by the Bank of Hawaii.
The Bank then served Adams with interrogatories in aid of judgment on August 28, 1991; which were returned on October 1, 1991 with Adams’ unsigned answers. In one answer, Adams stated that he was a consultant to Pacific Island Manufacturing and was paid $200 on the 5th and 20th of each month, a total of $400 per month.
The Bank next served Pacific Island Manufacturing with a notice of garnishment on April 7, 1992. The interrogatories were answered and signed by Saipai and were filed with the Court on April 24, 1992. In one answer, Saipai stated that Adams "is not an employee or owner, partner, officer or any other of Pacific Island Mfg. Inc." The Bank followed with this proceeding for a judgment against the garnishee.
*40Pacific Island Manufacturing was incorporated as a domestic American Samoa corporation on June 27, 1986, with its principal place of business in Nu'uuli, American Samoa. Saipai is one of the three incorporators. According to Saipai, the present shareholders or owners and managing directors of the corporation are her sister and brother and herself. She is also the president of the corporation but does not recall when she took office. The last meeting of the board of directors was in 1991, but she is uncertain which directors attended the meeting.
Saipai states emphatically that Adams has nothing, and never had anything, to do with Pacific Island Manufacturing’s business affairs. However, there are numerous significant indications to the contrary. One of Pacific Island Manufacturing’s main business activities is selling furniture. Adams has been in the furniture business for some 32 years. This experience includes the operation of Quality Furniture in American Samoa, which he closed down in 1986, after a judgment of $40,000 in damages was rendered against him and Quality Furniture by this Court. He claims that he was tired of and experiencing burn-out from the furniture business. Pacific Island Manufacturing commenced business operations the same year. Both Adams and Saipai, his wife of ten years, admit that her knowledge of the furniture business was gained from him.
Pacific Island Manufacturing also operates a tour and travel agency, doing business as "Pacific Island Tour & Travel." For this activity, it registered with the American Samoa Government’s Territorial Registrar in 1986, after Pacific Island Manufacturing was incorporated, a seven-day tour itinerary in American Samoa, including a daily schedule of events, as its purported "sole and exclusive property." This registered document is signed by Adams. He states that he was running the tour and travel operation for Saipai in 1986.
Saipai’s knowledge of Pacific Island Manufacturing’s business, as well as business matters generally, is largely superficial. In addition to her vagueness on formal corporate affairs noted above, she does not know the amount of the original investment in the corporation, which came from funds provided by her parents, or the amount invested in the beginning inventory of the business. She also did not recognize a number of technical English terms for furniture items when she was questioned about them, although this may be attributable in part to a lack of familiarity with this terminology.
More significantly, while she runs the store and at times consults with her sister and brother, she looks to Adams for advice on business *41matters. As specific examples, she answered the interrogatories to garnishee after discussing the questions asked with Adams; and Pacific Island Manufacturing’s tax returns are prepared by an accountant, but she signs them only after discussing the returns with Adams. The company’s business premises are located on land that Quality Furniture leases, under a lease signed by Adams, and in turn subleases to Pacific Island Manufacturing.
Saipai left American Samoa in the early part of September 1991 and returned from California in February 1992. According to Adams, he looked after Pacific Island Manufacturing’s business affairs and was paid $400 per month as a consultant for his oversight services during the first two months or so of his wife’s absence. He continued to provide these services without any compensation after Hurricane "Val" struck American Samoa in the early part of December 1991, causing extensive damage to the furniture inventory at Pacific Island Manufacturing’s store. The inventory damage made it necessary for Saipai to stay in California longer than intended to replace the damaged items. On-hand replenishment of the inventory was accomplished in February and March of this year.
Adams went on to explain that Saipai’s continued absence required him to submit to the Government in December 1991 two business-license renewal applications for calendar year 1992 on behalf of Pacific Island Manufacturing. One of these applications was for the furniture business, while the other was for the tour and travel-agency operation. Adams signed both applications as the manager of Pacific Island Manufacturing.
Saipai stated that Adams is not now receiving any money from Pacific Island Manufacturing and that she is the sole signatory on the company’s bank account. She professed that she has no knowledge about Adams’ remunerative activities or any debts he may have.
Adams stated that he has no financial interest in Pacific Island Manufacturing and that his only present business activity, which began a few months ago, is in wholesale produce, dealing with a company in Los Angeles. He also stated that his only present indebtedness, except to his parents, is the one to the bank involved in this action.
DISCUSSION
*42The ultimate resolution of the present proceedings in this action depends upon the application of A.S.C.A. § 43.1811(a), which reads in pertinent part as follows:
43.1811 Judgment.
(a) If it is made to appear that the garnishee was indebted to the defendant or had any of his property in his hands at the time of being served with the notice of garnishment, the garnishee shall be liable to the plaintiff... to the full amount of the judgment, or to the amount of such indebtedness or property held by the garnishee.
The application of this statute in this case, in turn, requires analysis of the sequential relationship of Quality Furniture and Pacific Island Manufacturing and Adams’ relationship to both corporations.
The Bank’s underlying judgment in this action is only against Quality Furniture as a corporation. Judgment was not awarded against Adams. The fundamental purpose of incorporating is to create a legal entity having an existence separate from that of its shareholders and thereby exempting the shareholders’ property from corporate debts. The corporation laws of American Samoa recognize this purpose. A.S.C.A. § 30.0114(6). This immunity is absolute unless there are circumstances justifying disregard of the corporate entity to prevent abuse of coiporate privileges, either by one or more individuals or by another corporation. B.E. Witkin, 9 Summary of California Law, Corporations § 12(1), at 524-25 (Bancroft-Whitney Co., 9th ed. 1989). In such cases, the issue is not whether the corporate entity should be disregarded for all purposes, but whether limiting corporate privileges will accomplish justice and defeat fraud or other unfairness in resolving the particular issues before the court. Id. at § 12(2); at 525.
It must be shown that the corporation is dominated or controlled by one or more individuals or another corporation. As stated in Minifie v. Rowley, 202 P. 673, 676 (Cal. 1921), domination or control in this context means:
Before the acts and obligations of a corporation can be legally recognized as those of a particular person, and vice versa, the following combination of circumstances must be made to appear: First, that the corporation is not only influenced and governed by that person, but *43that there is such a unity of interest and ownership that the individuality, or separateness, of said person and corporation has ceased; second, that the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.
The totality of the circumstances set forth above and the manner in which Adams and Saipai testified provide ample basis to find, and we do find, that in reality Adams was, and still is, the dominating force in control of both corporations and their alter egos. We further find from these circumstances that Adams is the dormant but nonetheless real owner of Pacific Island Manufacturing, whether or not his equity interest is shared in some manner with Saipai or any other persons. See Nelson v. Tarman, 163 Cal. App. 2d 714, 329 P.2d 953 (1958). The creation of Pacific Island Manufacturing simultaneously with the operational demise of Quality Furniture were Adams’ means of relieving the financial pressures on Quality Furniture and continuing the same business afresh in an ostensibly different format as Pacific Island Manufacturing. While not defrauded outright, the Bank was clearly the object of unfairness. These findings lead us to recognize that the acts and obligations of Quality Furniture are also those of Adams and Pacific Island Manufacturing, as both corporations are Adams’ alter egos.
In light of the present finding of Adams’ alter ego relationship with Quality Furniture, the judgment in this action excluding Adams as a judgment debtor needs reconsideration. The alter ego issue was not raised during the trial of this action. Hence, this Court then had no basis to look behind the protective corporate clothing of Quality Furniture. Now that Adams’ alter ego relationship with Quality Furniture has been found to exist, it is apparent that the judgment in this action requires amendment to designate the correct judgment debtors. An amendment of this nature is proper whenever the necessity becomes evident during proceedings after the judgment, so long as there was jurisdiction over the omitted defendant at the time of trial. Thomson v. L. C. Roney & Co., 20 Cal. App. 2d 456, 246 P.2d 1017 (1952).
At this point, we take note that A.S.C.A. § 43.1812 precludes a judgment against a garnishee unless the principal defendant, or in this case the judgment debtor, has had seven days’ notice of the garnishment proceedings and unless a marshal’s return of that notice is of record. There is a marshal’s return showing service of the writ of garnishment and related documents on Adams as Pacific Island Manufacturing’s *44manager on April 7, 1992, 52 days before the hearing on the order to show cause. The order to show cause was served on Saipai on May 7, 1992, 13 days before the order to show cause hearing. Adams did testify at the order to show cause hearing, and clearly, he had more than seven days’ notice of that hearing. However, there is no marshal’s return showing service of the order to show cause on Adams or Quality Furniture.
The purpose of A.S.C.A. § 43.1812 is to ensure that the principal defendant has adequate opportunity to participate and protect his property interests in proceedings against a garnishee allegedly indebted to or holding property of the defendant. Notice of the order to show cause hearing or other evidentiary proceeding is particularly important in this respect and is the object of the marshal’s return required under A.S.C.A. § 43.1812.
In this case, however, in view of Adams’ actual participation in the order to show cause hearing and alter ego relationship with Pacific Island Manufacturing and Quality Furniture, the marshal’s return of service of the order to show cause on Saipai is substantial compliance with the requirement of a marshal’s return of service on Adams and Quality Furniture.
CONCLUSIONS OF LAW
1. The Amerika Samoa Bank is entitled to a judgment against garnishee Pacific Island Manufacturing Company, Inc. in the sum of $7,115.35, plus interest at the rate of 12% per annum from August 1, 1990.
2. The Bank is entitled to a judgment against defendant Bill Adams individually, in addition to defendant Quality Furniture, on the underlying promissory note, dated May 27, 1987, in the sum of $7,115.35, nunc pro tunc to August 1, 1990; and the judgment, which was awarded on August 1, 1990, and signed on August 7, 1990, is so modified.
Judgment shall enter accordingly.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486074/ | Order Denying Motion to Reconsider Order on Motion to Dismiss: .
The Court’s order granting the motion by third-party defendant American Samoa Government ("ASG") to dismiss the third-party complaint against it was issued on August 5, 1992, and entered on August 6, 1992. The motion by defendant and third-party plaintiff Southwest Marine of Samoa, Inc. ("SWM Samoa") to reconsider this order was fded on August 17, 1992, and heard on September 3, 1992.
In connection with its motion to reconsider, SWM Samoa has correctly pointed out that the administrative-claim prerequisite to suit against the U.S. Government was added to the Federal Torts Claims Act ("F.T.C. A.") by amendment to 28 U.S.C. § 2675 in 1966; and that then-federal case law, initiated by United States v. Yellow Cab, 340 U.S. 543 (1951), had clearly established third-party practice against the federal government. Any cause of action asserted by third-party complaint, cross-claim, or counterclaim is expressly and reasonably excepted from the administrative-claim requirement in 28 U.S.C. § 2675(a). However, this point only reinforces the compelling inference that the Legislature acted deliberately when the American Samoa Government Tort Liability Act ("G.T.L.A.") was enacted in the following year, 1967, and the exception was not included in A.S.C.A. § 43.1205(a). The G.T.L.A. was modeled on the F.T.C.A., as amended in 1966, and A.S.C.A. § 43.1205(a) is the counterpart of 28 U.S.C. § 2675(a).
The motion to reconsider the order of dismissal is denied.
The following language was inadvertently omitted from the Court’s order dismissing the third-party complaint against ASG and by amendment is added at the end of the last paragraph on page 3: "It is so ordered."
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486075/ | Plaintiffs, a mother and her minor son, seek damages from the defendants Mau Mau, Jr., and Paul Young, police officers, alleging unlawful entry into their family home and wrongful arrest and assault on the minor in May 1990. The testimony was poles apart; however, we find the police officers to be more credible. Our overall impression from plaintiffs’ testimony was that of fabrication. While the place of the alleged arrest is stated in the verified complaint as "a friend’s home in Fagatogo," the minor, who is now 16 years of age, testified that he was arrested by officers other than the defendants while he was sitting in front of Sam Scanlan’s store. He also testified that he was then beaten by Officer Young with a chair, testimony which his mother attempted to corroborate by testifying that she had subsequently taken her son to the hospital where he was required to undergo x-rays and was treated for cuts and abrasions. The minor’s hospital records, however, failed to disclose any hospital treatment around the time frame of the alleged beating. Rather, the hospital’s records revealed treatment for injuries *91which were attributable to claimed police brutality which occurred some four months after the complaint here was filed on March 12, 1991. The records further revealed that most of the minor’s hospital visits were related to injuries noted as having resulted from beatings by either his father or his uncle.
The minor is well-known to the police. The credible evidence shows that one Sunday morning in late May 1990, the minor was brought into the station by another Fagatogo youth, who told the police that the minor knew something about the burglary of Chen’s store, which the police were in the process of investigating at the time. The minor was referred to Officer Mau; Officer Young would work a different shift that day. After questioning by Officer Mau, the minor told the officer that he had some money hidden at his home, which is located on the steep rise immediately behind the station. The minor then led Officers Mau and Tafa Vili in a hike up the hill to his home. When they arrived there, they met the minor’s mother and informed her of the purpose of their visit; they asked permission to enter the home (an open fale-type structure), and the mother consented. After a feigned search by the minor, he then informed the officers that he had hidden the loot outside in the yard. Another pretense of looking for something under a rock pile outside the house ended with the minor running away and the officers then realizing that they had been taken on a wild-goose chase.
We conclude on the evidence that there was no arrest by the officers; that there was no entry into plaintiffs’ home without permission; and that there was no beating of the minor by the officers. The complaint is dismissed, and plaintiffs shall take nothing thereby.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486079/ | On Application for Preliminary Injunctions:
Plaintiffs’ application for preliminary injunctions came regularly for hearing on September 18 and 21, 1992.
Defendants Neil and Sala Scratch own and operate defendant American Industries (collectively "American Industries"), a building materials and hardware business located in Tafeta, American Samoa. Presently, business operations are quite active. Hurricanes "Ofa" in 1990 and "Val" in 1991 contributed substantially to that development. However, real growth appears to have begun at some earlier time, which is not yet clearly identified. Business operations now involve use of areas on both sides the public road through Tafeta and include significant traffic from heavy-duty trucks and forklifts operated by American Industries and from numerous customers’ vehicles. In plaintiffs’ view, American Industries’ business operations, with expansion, became and are now unduly noisy and hazardous for an area principally zoned as residential.
Earlier this year, American Industries went forward with plans to add a large warehouse-type structure to the business premises to serve as wholesale/retail outlet. When defendant American Samoa Government ("ASG”) learned of the extent of this construction, it stopped the work and required American Industries to obtain land-use and building permits and any necessary zoning variance through its required project notification and review system (PNRS) process for such projects, which in this case included two noticed public hearings before the PNRS review committee.
During the course of this administrative process, plaintiffs were prompted to object to the proposed project. Apparently sensing prolonged delay in project approval and having substantial quantities of *105cement on hand, American Industries changed the scope of the project and received ASG’s informal approval to construct only a concrete slab for outdoor sports activities. The slab was then completed in accordance with the original plans, including concrete posts, which certainly suggests American Industries’ anticipation of eventual approval of the proposed building. Indeed, although the building is not under construction, the slab is being utilized for non-sports activities.
This change in direction caused plaintiffs to then file this action to seek, among other relief, preliminary and permanent injunctions (1) requiring American Industries to cease all business operations and construction on its premises until there has been full compliance with ASG’s PNRS and zoning requirements, and (2) preventing ASG from allowing any use of the premises that was not properly noticed. At the preliminary-injunction hearing, plaintiffs particularized their request for provisional relief to enjoin American Industries’ use of the new slab, further expansion of business operations, and storage of materials on or other use of the area across the public road from the main business premises. There was also indication that American Industries is searching for alternative business locations, which might bring about a more peaceful resolution of this dispute.
We are persuaded that the preliminary injunctions sought by plaintiffs are unnecessary and inappropriate. This is a situation that calls for balancing the relative hardships. On one hand, plaintiffs appear to have legitimate nuisance complaints. On the other hand, American Industries may suffer significant financial detriment from the proposed constraints. An element of the public interest also exists in having this business outlet available to consumers in this part of the Territory.
We think that ASG is in a better position than the Court to assist in finding a solution to the competing interests of plaintiffs and American Industries, including acceptable uses of the new slab, during the pendency of this action. We do not share plaintiffs’ perception that ASG is an inept regulator, which they consider to be illustrated by lax handling of laws and administrative rules in past matters concerning American Industries’ business operations. To the contrary, we expect that ASG will act resolutely in enforcing presently applicable laws and rules, particularly in this action.
We would also point out that under A.S.C.A. § 43.1309(a), issuance of preliminary injunctions against American Industries requires a written undertaking by plaintiffs, with sufficient sureties as the Court *106may determine, to the effect the plaintiffs will pay American Industries’ damages and costs, up to a specified amount, that American Industries may sustain due to the injunction if a permanent injunction is not granted and American Industries is awarded damages and costs. In this regard, the evidence of record is not yet particularly illuminating, and an appropriate undertaking amount may only be conjectural at best. However, any significant, immediate curtailment of American Industries’ business operations could result in substantial damages, perhaps in the tens of thousands of dollars.
For these reasons, we have concluded that preliminary injunctions as a provisional remedy should not be issued in this action, and we urge the three parties to pursue a reasonable resolution of their differences before the trial of this action.
The application for preliminary injunctions is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486080/ | Plaintiffs filed this action to evict defendants from certain communal land, which is under the control, or "pule," of the senior chief, or "sa‘o," of the Fanene family; and to have removed, at defendants’ expense, the improvements which defendants had constructed on the land. Defendants claimed a right to remain on the land under the Samoan custom of "igagato." Pursuant to A.S.C.A. § 43.0302, a certificate of irreconcilable dispute was issued by the Secretary of *2Samoan Affairs on November 8, 1990, and filed with the Court on May 15, 1991. Trial was held on August 13, 1992.
FINDINGS OF FACT
The land at issue consists of approximately two acres within the communal land of the Fanene family, known as "Malaeimi," in American Samoa. A portion of this land was adjudicated as Fanene communal land by this Court in Aupiu v. Fanene, Case No. 1-1931 (1932). A substantially larger portion of "Malaeimi," which included the portion adjudicated in 1932, was adjudged to be Fanene communal land by the Court in Fanene v. Magalei, LT Nos. 64-77 and 74-77 (1977), aff’d sub nom. Te‘o v. Fanene, 1 A.S.R.2d 3 (1980). The two acres are located within the Fanene portion of "Malaeimi." Defendants did not participate in either of these actions in opposition to the Fanene claims.
In addition to these judicial decisions, Fanene Aipopo Laulu ("Fanene"), the present sa‘o of the Fanene family,1 and another Fanene family member testified at the trial that the two acres are Fanene communal land. Defendants countered that Tinei Su'apaia ("Tinei") and his family own or at least control the two acres and that the Fanene titleholder no longer has pule over these two acres. Defendants claimed that Fanene Tuiloli made a customary "igagato" assignment of this land to Tinei and his family, giving them the right to use the two acres so long as they render traditional service, or "tautua," to the sa‘o. One Fanene family member, Lagafa'atasi Fanene, who is also defendants’ nearby neighbor, testified to his recognition of the Tinei family’s right to remain on this land while they continue to provide tautua to the Fanene titleholder.
*3Fanene acknowledged that the custom of "igagato" exists as a special reward for extraordinary service performed for a Samoan family. The reward may be given to a person who is not related by blood to the family, but a reward of a parcel of communal land for such service is proper only with the entire family’s concurrence. This concurrence is required because a reward of communal land under this custom necessarily deprives the family of use of the land so long as the rewarded person lives as a member of the family and renders tautua to the sa‘o.
The status of Tinei and his family on the two acres was a major issue in Su‘a v. Pasene, No. 4-1958 (1958), before this Court. The plaintiffs in Su'a were Tinei’s two eldest children, who brought the suit during Tinei’s extended absence in Hawaii and alleged that Tinei and his offspring were blood members of the Fanene family as the basis for a claim to the land as a sa'o’s traditional assignment of communal land to a blood family member. The Court found that Tinei and his children were not blood members of the Fanene family. Tinei came to Tutuila in American Samoa from Upolu in Western Samoa, perhaps as early as 1916. At Tinei’s request, Fanene Tuiloli assigned the two acres to Tinei as a plantation area for his and his family’s use on the condition that Tinei would not plant any coconut or breadfruit trees. About a year later he authorized Tinei to plant such trees, provided that when Tinei permanently returned to Upolu, any coconut and breadfruit trees planted by Tinei and his family would become the property of the Fanene family.2
At the trial Fanene confirmed, and defendants agreed, that Tinei and his family were not blood members of the Fanene family. Fanene and defendant Faimanifo Taaseu ("Faimanifo"), who is Tinei’s youngest child and the wife of defendant Mose Taaseu ("Mose"), also agreed that: (1) Tinei came to Tutuila during the administration of American Samoa by the United States Navy, (2) he was a student at the Mormon mission school in Mapusaga, which is near the two acres at issue, (3) he later became a church missionary, and (4) any traditional rights or privileges in the two acres belonging to Tinei and his family were granted by *4Fanene Tuiloli. The parties, however, disagreed on the extent of those rights or privileges.
Defendants interpreted Fanene Tuiloli’s grant of the two acres to Tinei and his family as an "igagato" transaction which established their right to live on the land, free of the sa'o’s pule, so long as they provided tautua to the sa‘o. However, this interpretation disregards the initial plantation-usage restriction in the permission given to Tinei and his family. It also overlooks the condition subsequent of termination upon permanent return to Upolu, which event may or may not coincide with their cessation of tautua to the Fanene titleholder. It further ignores the lack of any evidentiary basis showing the nature of any extraordinary service by Tinei to the Fanene family or family support as a prerequisite to a bona fide "igagato" award of communal land at the time Fanene Tuiloli gave permission to Tinei and his family to use the two acres. In contrast, Fanene viewed this transaction as Fanene Tuiloli’s singular authorization of a privilege granted to persons without Fanene blood to use the land, subject to termination by their permanent departure to Upolu or at the sa‘o’s will.
In fact, the evidence also did not clearly show whether or not Tinei and his family were ever given express permission to reside, in addition to planting, on the two acres. However, it appears that by 1958, when Su'a v. Pasene, No. 4-1958 (1958), was decided, that their residency presence was not in question and had been previously established by either express or implied permission.
We find that the permission given to Tinei and his family to use the two acres included both plantation and residency purposes but, except for the conditional plantation privilege, is without any incidental traditional rights or privileges in communal land. We further find that the permission is terminable (1) by the condition subsequent of permanent departure to Upolu or, as this is at most an interest in land in the nature of a license, (2) at the sao's will, whichever occurs sooner.3
Considerable conflicting testimony was introduced on the extent of the tautua provided by defendants, particularly Mose and Faimanifo, *5to Fanene. Fanene succeeded to the title in or about 1977. Mose and Faimanifo moved from Western Samoa to the two acres in 1982 and have lived there since. Plaintiffs presented testimony about several incidents during these years which they sought to portray, and defendants sought to refute, as signifying Mose’s disrespect towards, if not defiance of, the sa‘o and his pule. However, we are persuaded that defendants, having no blood relationship to the Fanene family and no "igagato" entitlement to the two acres, do not have any traditional interest in the land which is not terminable at the Fanene titleholder’s will. Thus, it is unnecessary to make any findings of fact with respect to defendants’ exercise or lack of exercise of tautua to the sa‘o or to characterize the other incidents in evidence. We do point out that Fanene testified that the Fanene family is in the process of "inventorying" its communal lands and wants the Court to determine the defendants’ rights or privileges, if any, in the two acres at issue; and that if any such interest is now terminable, acceptance of defendants’ continued presence on Fanene communal land, should they manifest their will to provide tautua to the sa‘o, depends upon the wishes of the entire Fanene family.
It is necessary to make findings of fact with respect to buildings which Tinei and his family have constructed on the two acres for purposes of their entitlement to any compensation for these improvements. Three structures have been erected and presently remain on the land. Although there is no precise evidence of the year of construction, two of them are pre-1990 hurricane "Ofa" buildings. One is a western-style house, measuring approximately 40 feet by 18 feet, which was damaged during hurricane "Ofa" and was restored with emergency-relief funds. The other is a utility building, approximately 12 feet by 8 feet in size. The third structure is a new, 60 foot by 34 foot, western-style house that was built after hurricane "Val" in 1991.
The improvements were constructed under building permits signed by one or another of the defendants and not by any Fanene titleholder. However, the recorded evidence shows that defendants have enjoyed long-term permitted use and at least tolerated occupancy of the two acres during the time of five Fanene titleholders (a period of at least 59 years and perhaps as long as 74 years), without actual or constructive knowledge of any desire on the part of any of those titleholders to vitiate Fanene Tuiloli’s permission to Tinei and his family. This desire was not clearly expressed until 1990, when this action was commenced. Under these circumstances, we find that the improvements constructed by defendants on the two acres on or before June 2, 1990, when defendants received the summons and complaint in this action, were made in the *6good-faith belief that their use and occupancy of the land was under color or claim of a legitimate interest in the land. The improvements made after June 2, 1990, were distinctly not made in such good faith.
Finally, although not addressed directly by the parties, it is reasonably inferred from the evidence that on June 2, 1990, defendants possessed growing crops and trees which they planted on the two acres pursuant to their plantation-usage privilege.
CONCLUSIONS OF LAW
1. Defendants do not have any rights or privileges in the two acres which are not terminable at the Fanene titleholder’s will. The complaint for eviction is granted. Defendants shall remove themselves from the two acres within 60 days.
2. At their option, defendants are entitled to compensation for their improvements made on the two acres before June 2, 1990, when the summons and complaint in this action were served on them, or they may remove these improvements. The measure of this compensation is the lesser amount, as of June 2, 1990, of the present value of the actual construction cost of these improvements, including additions and restorations before the cutoff date, or the present, enhanced value of the property resulting from the improvements. See Roberts v. Sesepasara, 8 A.S.R.2d 124 (1990); Leapagatele v. Nyel, 17 A.S.R.2d 201, 204-05 (1990) (citing Roberts). Within the next 30 days, the parties shall submit to the Court documentary evidence, consisting of affidavits, receipts, etc., of the cost of these improvements and the enhanced value of the land, or defendants shall notify the Court of their intent to remove them. The documentary evidence may prompt a further hearing on this issue.
3. Defendants are not entitled to compensation for the house constructed after June 2, 1990, or for any additions or restorations made to the two then-existing structures after that date. Defendants may also remove this house at their option.
4. Removal of the improvements will certainly destroy their beneficial use and is likely to be wholly uneconomical and wasteful. Thus, it would appear to be in both parties’ best interests if plaintiffs would purchase the three buildings from defendants at a negotiated, fair price. In any event, defendants shall have 60 days in which to remove the improvements. If they are not removed, the improvements shall become the plaintiffs’ property.
*75. Defendants are entitled to harvest crops and fruits of trees that they planted on the two acres on or before June 2, 1990, and to remove this harvest from the land. Any such harvesting shall be completed within 60 days. Except for harvesting the coconuts and breadfruits, the coconut and breadfruit trees shall not be removed or otherwise disturbed, and those trees shall become the plaintiffs’ property.
Judgment shall be entered accordingly. It is so ordered.
Recent Fanenes and their periods of service as the titleholder are identified in documentary evidence admitted in Fanene v. Magalei as follows:
Fanene Tuiloli 1906-1931
Fanene Tuutau 1932-1950
1952-1960 Fanene Penerosa
1961-1974 Fanene Touli
Fanene A. Laulu 19 -Present
Fanene testified that he became the sa‘o in or about 1977.
The Court in Su ‘a compared the permission given to "the situation of a Samoan pastor when he comes to take charge of a church." We agree with this characterization in so far as the plantation purpose and departure condition subsequent are concerned. However, since Tinei was not the pastor of a church in the village, the comparison is not exact.
Since the evidence failed to show two commonly understood elements of an "igagato" award of communal land, extraordinary service and family concurrence, it is unnecessary to define this custom for purposes of precedent. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486082/ | On Motion for Preliminary Injunction:
Plaintiff is an eleemosynary corporation whose corporate objects embrace the preservation and protection of the environment. Defendant American Samoa Government has leased a certain parcel of land next to the Pala Lagoon to the defendants Ray and Sese McMoore, dba Samoana Fellowship Incorporated, for the stipulated purpose of developing "a community center for community related activities for the youth and senior citizens." The latter defendants are well-known bingo operators in the territory.1 Plaintiff, claiming non-compliance with the territory’s environmental laws, seeks a preliminary • injunction to enjoin the McMoores from proceeding with their proposed construction next to the Pala Lagoon. For reasons given, the application must be denied.
*13I. Standing
In order for a party to establish standing to enforce provisions of environmental laws, two criteria must be met. One, the party must show that he has suffered an "injury-in-fact"; two, the alleged injury must arguably be within the statute’s "zone of interests." United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686 (1973); Sierra Club v. Morton, 405 U.S. 727, 733 (1972); California by Brown v. Watt, 683 F.2d 1253, 1270 (9th Cir. 1982) (citing Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 151-53 (1970); Barlow v. Collins, 397 U.S. 159, (1970); Glacier Park Foundation v. Watt, 663 F.2d 882, 885 (9th Cir. 1981)). Aesthetic and environmental harm can constitute "injury-in-fact." SCRAP, 412 U.S. at 686; Sierra Club, 405 U.S. at 734; Brown, 683 F.2d at 1270-71; see Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 230 n.4 (1986).
A plaintiff is required to allege "specific and perceptible harm," and these "allegations must be true and capable of proof at trial." SCRAP 412 U.S. at 689. Demonstrating personal harm of some sort is crucial because this "gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders." SCRAP, 412 U.S. at 687, (citing Sierra Club at 740). As such, "a mere ’interest in a problem, ’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient to establish standing." Sierra Club, 405 U.S. at 739; Foundation on Economic Trends v. Lyng, 943 F.2d 79, 83, 85 (D.C. Cir. 1991) (quoting Sierra Club) (an interest in disseminating environmental information, by itself, is insufficient). A party must show injury, although an organization may represent members who are injured. Sierra Club, 405 U.S. at 739; Brown, 683 F.2d at 1270; Lyng, 943 F.2d at 83, 85 (an organization can derive standing from its members).
Plaintiff Le Vaomatua has failed to plead, let alone demonstrate, specific harm to itself or its members. Rather, it has been content to assert standing in a conclusionary fashion, citing its corporate objectives. The fact that it is an organization concerned with the environment or the public interest fails to meet the test set forth in the cases. Therefore, we conclude that Le Vaomatua lacks standing to pursue this action.
*14II. Exhaustion of Administrative Remedies
A preliminary injunction is an extraordinary remedy and is granted only when clearly warranted. Sierra Club v. Hickel, 33 F.2d 24, 33 (9th Cir. 1970), aff’d sub nom. Sierra Club v. Morton, 405 U.S. 727 (1972); United States v. School District of Omaha, State of Nebraska, 367 F. Supp. 179 (D. Neb. 1973) (citing Yakus v. United States, 321 U.S. 414 (1944)); Crimmins v. American Stock Exchange, Inc., 346 F. Supp. 1256 (S.D.N.Y. 1972). Indeed, courts have gone so far as to deny standing when an organization failed to exhaust its administrative remedies. See, e.g., National Audubon Society v. Johnson, 317 F. Supp. 1330 (D.C. Tex. 1970) (denying standing when an organization had many administrative remedies but did not complain to any agency, even though the agencies were better able to research the problem and could grant the same relief).
Plaintiff Le Vaomatua has not demonstrated that a preliminary injunction is necessary. The territory’s governing statute, the American Samoa Coastal Management Act of 1990 (A.S.C.A. §§ 24.0501 etseq.), charges the director of the Development Planning Office ("DPO") with enforcement of the Act’s provisions; he may issue a stop order if the American Samoa Coastal Management Program, or a rule adopted pursuant to it, is being violated. If the stop order is violated, the director can seek an injunction from the High Court. A.S.C.A. § 24.0505(c); see also A.S.C.A. § 4.1040. Thus, an administrative enforcement remedy is available, and the DPO is the appropriate enforcement agency. However, the evidence fails to show that the plaintiff has attempted to pursue any administrative remedies. Plaintiff’s counsel submits, again in conclusionary fashion, that the administrative route would only prove fruitless and that plaintiff has therefore petitioned the court directly. We conclude that plaintiff has not shown a need for the extraordinary relief which a preliminary injunction provides. Thus, even if plaintiff had standing, a preliminary injunction is unwarranted.
III. Coastal Zone Administrative Rules
Although its pleadings acknowledge the existence of rules and regulations for administering the American Samoa Coastal Management Program (see Complaint, para. 7), plaintiff has nonetheless argued that valid rules to govern the administrative process are lacking (presumably, the argument is arbitrariness within the administrative process). Plaintiff cites the DPO director’s failure to formally establish rules within one year after the enactment of the American Samoa Coastal Management *15Act, as mandated by A.S.C.A. § 24.0506(a). However, the Act also provides that the rules promulgated as A.S.A.C. §§ 26.0201 et seq. are to remain in effect until the new rules are in place, "notwithstanding any other law or rule." A.S.C.A. § 24.0506(b). These are two separate, distinct provisions, and any violation of the former does not nullify the latter. Thus, the procedures codified in A.S.A.C. §§ 26.0201 et seq. govern, and plaintiffs challenge to their validity fails.
IV. Sufficient Grounds
A preliminary injunction may only issue after a hearing in which "sufficient grounds . . . has been established by a preponderance of the evidence adduced." A.S.C.A. § 43.1301(g). A.S.C.A. § 43.1401(j) 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.
Plaintiff Le Vaomatua has not sustained the required statutory showing. On the basis of the evidence received, the defendants would probably prevail on the merits at trial. While plaintiff claims noncompliance by the government with existing land-use permit procedures, and non-compliance by the McMoores with the conditions of the permit issued to them, the evidence adduced tends to the support the opposite conclusion. On the question of irreparable injury, plaintiff made no attempt to show any particular harm to itself (as discussed above), irreparable or otherwise.
Finally, A.S.C.A. § 41.1309 essentially requires a party seeking a preliminary injunction to post security to cover the costs and damages suffered by a party wrongfully enjoined or restrained prior to the opportunity for a trial on the'merits.' The plaintiff has shown neither the willingness nor the ability to post the required security.
*16V. Conclusion
Plaintiff Le Vaomatua’s application for a preliminary injunction is denied.
It is so ordered.
Cf. A.S.C.A. § 46.4301, which proscribes gambling and the keeping of gaming facilities as a criminal offense, and A.S.C.A. § 46.4302, which exempts from this general proscription the "occasional playing of bingo . . . when the profits [therefrom] are used for religious, educational or charitable purposes." (Emphasis added). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486086/ | This action was initiated on November 4, 1991, as CA No. 125-91 and first framed issues pertaining to rights and obligations under a sublease of land and improvements by Wilbur J. Reine ("Reine") to South Pacific Equipment and Repair ("SPEAR"). This action was followed by a second action, filed as CA No. 87-92 on September 2, 1992, in which Reine sought injunctive relief against the Afo family and individually named family members (collectively, the "Afo family") and SPEAR. This second action raised issues with respect to the lease of the same land and a dwelling of the Afo family to Reine, as well as the sublease.
On September 30, 1992, disposition of the Afo family’s motion to dismiss under T.C.R.C.P. Rule 12, on the grounds of: (1) lack of jurisdiction and (2) failure to state a claim, was postponed until the trial on the merits, and Reine’s application for a preliminary injunction was denied. CA No. 125-91 and CA No. 87-92 were also consolidated and transferred to the Land and Titles Division, pursuant to A.S.C.A. § 3.0208(b)(2), and later renumbered as LT No. 50-92. The Afo family then moved to refer these actions to the Secretary of Samoan Affairs for dispute-resolution proceedings under A.S.C.A. § 43.0302, which was denied on the grounds that the controversy did not involve any underlying title issues to communal land.1 In addition, the trial of both actions was *27scheduled for October 15, 1992 (the date on which former CA No. 125-91 had been previously set for trial), and the time to file answers to the complaint in former CA No. 87-92 was shortened to require filing no later than October 6, 1992.2
The trial took place on October 15 and 16, 1992. After Reine completed the presentation of his evidence, SPEAR and the Afo family, pursuant to T.C.R.C.P. Rule 41(b), moved for dismissal of Reine’s complaints on the ground that, upon the facts and the law, Reine had not shown any right to relief. However, as permitted by T.C.R.C.P. Rule 41(b), the court declined to render judgment until the close of all the evidence.3 Having heard and considered all of the evidence, the court *28has made the following findings of fact and conclusions of law, as required by T.C.R.C.P. Rule 52(a).
FINDINGS OF FACT
The two leasehold agreements are at the foundation of this controversy.
On April 19,1972, Tema Afo leased certain land inFaganeanea, American Samoa, and a dwelling on the land to Reine. The evidence clearly indicated that this land is the communal land of the Afo family; that Tema Afo was then the senior chief, or "sa‘o," of the Afo family; and that he entered into the lease as the sa‘o. The initial term of the lease was 20 years, beginning on April 19, 1972, and ending on April 18, 1992. Reine was given the option to renew or extend the lease for another ten years, upon written notice given at least 90 days before the end of the original term.
On June 28, 1989, Reine subleased the land and all improvements then existing on it to SPEAR. The initial term of the sublease was from August 1, 1989 to April 18, 1992. If Reine elected to extend the lease with the Afo family, SPEAR was given the option to renew the sublease for an additional ten years by so informing Reine at least 30 days prior to expiration of the original sublease term.
*291. Underlying Lease Issues
Factual findings are necessary on three issues in connection with the underlying lease. First, the continued existence of the underlying lease is at issue and depends on the effectiveness of Reine’s notice to renew or extend the lease. Evidence was presented of extensive written and verbal communications between Reine and SPEAR and between Reine and his legal practitioner, beginning at least as early as August 8, 1990, on the importance of the renewal or extension to SPEAR, Reine’s willingness to renew or extend the underlying lease, and the legal practitioner’s assurances that the option to renew or extend would be exercised.
Despite these communications, the legal practitioner’s letter of March 16, 1992, addressed to Tina Atofau and Logoleo Faleali‘i at Matuu, American Samoa, was the first and only notice of the option’s exercise in the record’s evidence. The evidence, however, did not show actual transmittal of the legal practitioner’s letter by mail, personal delivery, or other means, and the Afo family disclaimed receipt of it by the addressees or any other family member.
Since Tema Afo’s death in 1983, the Afo family has been without a sa‘o. Shortly after his death, the role of family leader in handling decisions requiring a family consensus was principally taken by defendants Magaui Afo Fiame and Siigavaa Faleali'i, who were elder lesser chiefs, or "matais," of the family. However, by the time of the legal practitioner’s letter, Magaui had become the main leader, as Siigavaa’s age and health reduced her capacity to participate in these matters. Reine’s rental payment checks were regularly drawn payable to Magaui and Siigavaa at least as far back as July 9, 1987. At the time when the lease required the exercise of the renewal or extension option, Reine was well aware of their function in Afo-family matters and that his renewal or extension notice could have been given to them. In any event, the notice was not given until well after the 90-day limitation.
The second issue revolves around Reine’s use of the premises, in light of the lease provision which states that the primary use of the leased premises will be for "storage and sale of construction material and related purposes and supplies. ” Basically, SPEAR, which also had a NAPA automotive parts and equipment distributorship, has operated a business of storing, selling and repairing equipment and parts. Further, the sublease authorized additional subleasing, which was done by SPEAR *30to two sub-sublessees, one for automotive repair activities and the other for machine-shop facilities.
Third, the amount of rent actually paid by Reine has been put at issue. Reine claimed that the rent had been fully paid through November, 1992, and for that reason, he stopped making further rental payments after July, 1991. However, his evidence, other than canceled checks issued between July 9, 1987, and December 3, 1989, amounted to an abstract reconstruction of payments based on the lease requirements rather than records of actual payments. The Afo family, on the other hand, has contended that Reine is behind in the rental payments. However, their evidence has also fallen short of concrete proof of any amount owed. Thus, we are unable to find, from the record’s evidence, either an overage or underage in the rental payments by Reine to the Afo family.
2. Sublease Issues
The sublease also brings to the foreground three issues requiring factual determinations. First, entitlement to the sublease’s rental payments after April 18, 1992, has been questioned. The Afo family’s attorney, by letter dated March 23, 1992, informed SPEAR that when the underlying lease expired in April 1992, the family was willing to offer a month-to-month tenancy to SPEAR, at the same rental rate paid by SPEAR to Reine under the sublease, for the portion of the premises in actual use by SPEAR. The letter also indicated that similar tenancies would be offered to SPEAR’s two sub-sublessees. Since April 18, 1992, SPEAR has paid the rent at this rate directly to the Afo family.
Second, Reine has contested the accuracy of the rental payments by SPEAR to Reine under the sublease. The make-up of the sublease rental has involved three elements: (1) $2,000 per month, (2) 50% of revenue earned from third-party use of the premises, and (3) 2.5% of SPEAR’s sales volume in excess of $1 million a year (calculated monthly on a cumulative carry-forward basis and paid 30 days in arrears). The sublease also authorized SPEAR to enter the premises as of June 28, 1989, and make necessary repairs and renovations-to bring the premises to "merchantable" condition and to credit these costs up to $10,000 against the rent, prorated over 24 months. The sublease did not contain any other provision on the duty to repair or renovate. There was, however, evidence that Reine later made oral commitments to SPEAR to extend the repair credit to the full amount of the initial repairs and renovations in the total sum of $17,190.81, as well as to allow credits for *31the cost to SPEAR of repairs it made for damage caused by two hurricanes. The evidence showed that during the period from August 1, 1989, to April 18, 1992, SPEAR accurately accounted for the three elements of the sublease rental, including a 2.5% sales-volume override rental for 1991, the only calendar year in which sales exceeded $1 million, and the $10,000 repair credit. Although the repair credit was not taken strictly by the terms of the sublease, SPEAR made actual payments in accordance with this accounting. It also took additional credits for the cost of repairs which it made as a result of damage to the premises caused by Hurricane Val in 1991, in the sum of $948.36, unused pre-paid rent advanced at Reine’s request in the net sum of $516.28, and miscellaneous unpaid services provided by SPEAR to Reine in the sum of $255.61.
Third, SPEAR has sought damages against Reine for alleged lost profits, lost capital investment, relocation expenses if required to move, and other consequential and foreseeable damages. While SPEAR introduced evidence indicating that it may have suffered certain losses, including in particular the consequences of any breach of Reine’s purported promises to renew or extend the underlying lease, this evidence has failed to provide a sufficient basis for enumerating the dollar amount of any such damages, other than (1) $5,108.41 expended by SPEAR on repairs for property damage to the premises caused by Hurricane Ofa in 1990 and (2) lost sub-sublessee income after April 18, 1992.
CONCLUSIONS OF LAW
1. Reine could have exercised his option to renew or extend the underlying lease with the Afo family by delivering his written notice for this purpose to defendants Magaui Afo Fiame, Siigavaa Faleali'i, or another authorized representative of the family, including the family’s attorney, no later than 90 days before April 18, 1992. Reine failed to exercise his option to renew or extend the lease in a timely manner, and his effort to exercise the option on March 16, 1992, even assuming his legal practitioner’s letter of that date was delivered to an appropriate person, was ineffective. See Bekins Moving & Storage v. Prudential Ins. Co., 176 Cal. App. 3d 245, 221 Cal. Rptr. 738 (1985). As a tenancy for a fixed term, the lease expired, without any notice or other act, at the end of the term on April 18, 1992. See 49 Am. Jur. 2d Landlord and Tenant § 69 (1970). Since the Afo family clearly evidenced its intent to terminate the underlying lease, Reine did not hold over as a consensual tenant at sufferance, tenant at will, or periodic tenant. See The City v. Hart, 175 Cal. App. 3d 92, 220 Cal. Rptr. 349 (1985).
*322. The expressly authorized use of the premises under the underlying lease, for the "storage and sale of construction material and related purposes and supplies," is modified by the word "primary." Arguably, the express use is sufficiently broad to encompass the activities of SPEAR and its sub-sublessees. However, the word "primary" clearly permits other uses of the premises, and the activities since the sublease commenced in 1989 have not, in any event, been incompatible with the primary use contemplated in the underlying lease. Moreover, all three current users appear to be acceptable to the Afo family by its express grants of month-to-month tenancies to the present occupants. No breach of the terms of the underlying lease resulted from the sublease and sub-sublease uses of the premises.
3. Since we have not found from the evidence any convincing basis to determine whether Reine’s rent under the underlying lease was overpaid, underpaid, or exactly paid as of April 18, 1992, we do not reach any conclusion with respect to rental amounts which may be owed by Reine to the Afo family or by the Afo family to Reine.
4. Since the underlying lease expired on April 18, 1992, SPEAR has properly paid rent accruing after that date to the Afo family, under the month-to-month tenancy it now has with the family. The Afo family is entitled to those rental payments.
5. SPEAR has correctly accounted for the rental calculations under the terms of the sublease with Reine. The credits taken outside of the terms of the sublease for unused pre-paid rent and unpaid services in making actual rental payments were properly included. However, credit should not have been taken for SPEAR’s repairs of Hurricane Val damage. Except by statute or agreement, a commercial lessor is not obligated to repair or renovate leased premises. 49 Am. Jur. 2d Landlord and Tenant § 774. While a contemporaneous oral agreement may establish a lessor’s duty to repair, a subsequent oral undertaking cannot vary a written lease complete in itself. 49 Am. Jur. 2d Landlord and Tenant § 829. In this sublease, the inclusion of the limited repair credit shows that the parties did not intend to hold Reine generally responsible for repairs. Even if the sublease is read to permit oral amendments, we did not find sufficient evidence of genuine agreement by Reine to any such agreements of his intent to waive the limited repair-credit clause. Thus, SPEAR has an additional rental obligation to Reine in the sum of $948.36.
*336. Damages cannot be awarded in the absence of evidence of some reasonable basis on the monetary amount of those damages which can be determined. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 266 (1946). In addition, as indicated above, SPEAR is not entitled to recover amounts it expended on repairs or renovations to the premises following Hurricane Ofa. Likewise, Reine’s oral representations to SPEAR that he would exercise the option to renew or extend the underlying lease were not sufficient to amend the sublease or to create a separate agreement and are unenforceable. Reine was not legally obligated to exercise the option. Thus, SPEAR is also not entitled to recover damages for lost sub-sublease rental income after April 18,1992.
7. Reine recovers $948.36 on his complaint for rent against SPEAR. In all other respects, his complaints against SPEAR are dismissed. Reine’s complaint against the Afo family is dismissed. The counterclaims by the Afo family and SPEAR against Reine are also dismissed.
It is so ordered.
At the time of the hearing on September 30, 1992, the court relied significantly on Tuilefano v. Beaver, LT No. 31-78 (1978). In an order denying a motion to dissolve a temporary restraining order, Tuilefano dealt specifically with whether or not a controversy relating only to leasehold issues must be heard in the Land and Titles Division. The court, in holding that A.S.C.A. § 3.0208(b)(2) [5 A.S.C. § 402(d)(3) in 1978] required proceedings of all land controversies to be handled in the Land and Titles Division, even though title to communal land was not at issue, cited A.S.C.A. § 43.0302 [11 A.S.C. § 1002 in 1978] in further support of the conclusion that all land controversies belong within the jurisdiction of the Land and Titles Division. Since there was no referral to the Secretary of Samoan Affairs, Tuilefano at least inferentially stands *27for the proposition that leasehold controversies not involving communal-land title disputes need not go through dispute-resolution proceedings in front of the Secretary or his deputy before the Court can act substantively. The court did offer to reconsider that issue if any counsel cited any case that might require a different result. No citations have been forthcoming.
On April 29, 1992, trial in former CA No. 125-91 was set for October 15, 1992. As of September 30, 1992, former CA No. 87-92 essentially added to the issues whether or not the underlying lease existed after April 18, 1992, and entitlement to injunctive relief resulting from the determination of the lease existence issue. The interrelationships between the two actions were significant. Further, it was apparent to the court that the parties were prepared, or could readily prepare, to proceed with the trial on October 15, 1992. Hearings on applications for preliminary injunctions take precedence over most other matters, as provided by A.S.C.A. § 43.1305(d), and denial of a preliminary injunction in this action was predicated in part on the early trial setting, which would enable a prompt decision on the merits of all issues and avoid the stamp of possible permanent effect of a preliminary injunction decision, particularly with respect to payment of SPEAR’s sublease rental payments after April 18, 1992. Reine was in the courtroom on September 30, 1992, and his physical appearance indicated that early substantive resolution of this action was appropriate, so long as the other parties could fairly proceed with the trial.
The standard of proof applicable to a motion to dismiss at the conclusion of a plaintiffs evidence in a civil action tried by the court is that a plaintiff must prevail by a preponderance of the evidence. The *28court is not concerned with whether or not a plaintiff has established a prima facie case, but rather it must weigh the evidence, resolve any conflicts in the evidence, and decide where the preponderance lies. Willis v. Fai'ivae, 10 A.S.R.2d 121, 141 (1989). It is noted that the proposed 1991 amendments to the Federal Rules of Civil Procedure moved this procedure from F.R.C.P. 41(b) to F.R.C.P. 52(c), restyling it as a judgment on partial findings. In this particular action, the documentary evidence presented by Reine was sufficiently voluminous and complex to preclude a hurried decision. Thus, the court chose to defer judgment until it had ample opportunity to review and reflect upon both the witnesses’ testimony and documentary evidence. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486087/ | Amendment to Order Determining Heirship and for Further Proceedings:
On August 17, 1992, following the hearing on July 23, 1992, on the respective motions for reconsideration or new trial by co-administrators Sapati Fuimaono ("Sapati") and Ato Fuimaono ("Ato"), the court ordered a farther evidentiary hearing on two fact issues: (1) Ato’s biological parentage and (2) the existence of any ceremonial marriage between Fa'alua Fuimaono ("Fa'alua") and the decedent, Tuinanau Fuimaono ("Tuinanau"). This hearing took place on September 10, 1992. The court, having considered the evidence presented at this hearing, amends the Order Determining Heirship and for Further Proceedings, entered on June 25, 1992, by deleting paragraphs B.5 and B.6 of the Findings of Fact and paragraph 5 of the Conclusions of Law and Orders in their entirety and substituting the following.
AMENDMENTS TO FINDINGS OF FACT
"5. Ato is Fa'alua’s natural son, but he is not Tuinanau’s natural son. He is almost 46 years old. From his infancy until Tuinanau’s death, Ato was nurtured and reared by, and lived with, Tuinanau and his mother as their genuine son. Both Tuinanau and Fa‘alua publicly acknowledged Ato as their child. This recognition extended to legal documents, expressly in Tuinanau’s power of attorney to Ato in 1983, and implicitly in deeds of land executed in 1976 and 1978 and witnessed by Sapati and Ato. The Fuimaono family essentially accepted the practical, day-to-day, father-son relationship between Tuinanau and Ato.
When a decedent performs parental duties towards a child in his or her household and that child performs filial obligations in return, as has occurred in this defacto family, the child’s right to inherit from the decedent should be recognized. This just result is commonly referred to as "equitable," "virtual," or "defacto" adoption for inheritance purposes. See Annotation, Adoption by Estoppel, 97 A.L.R.3d 347, 353-55, 359-65 (1991). While the principle usually is couched in contract terms requiring a finding of an express or implied agreement to adopt supported by consideration to sustain enforcement by specific performance or estoppel, this fiction is by no means universally applied to reach a proper *35result. An equitable adoption may be found when a child "has stood from an age of tender years in a position exactly equivalent to a formally adopted child." Wheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369, 373-74 (W. Va. 1979) (emphasis in original); see H. Clark, Law of Domestic Relations § 18.8 (1968). We will follow the Wheeling principle, when necessary and appropriate, to recognize defacto adoptive relationships for inheritance purposes.
The evidence in this proceeding is, in our view, more than sufficient to infer that Tuinanau intended Ato to become and be his adopted son. In any event, the circumstances of the relationship between Tuinanau and Ato justify finding an equitable adoption, with or without any express or implied contract to adopt.
6. We find that Ato is Tuinanau’s equitably adopted son for inheritance purposes."
AMENDMENT TO CONCLUSIONS OF LAW AND ORDERS
"5. In order to facilitate and assist in the preparation of these documents, the court is willing to schedule a hearing, at the request of either co-administrator’s counsel, at which the co-administrators will be required to produce, and be ready to testify about, copies of the following records in the possession or either or both of them, or known to be in the possession of third persons and accessible to either co-administrator:
a. All records pertaining to all estate property at the date of Tuinanau’s death and, in the case of land, before death.
b. All records pertaining to all transactions concerning estate property after the date of Tuinanau’s death, including but not limited to all cash receipts and disbursements, and the validity and disposition of creditors’ claims."
Except as amended herein, the original Order Determining Heirship and for Further Orders is reaffirmed and remains in full force and effect.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486089/ | This action seeks damages for personal injuries sustained in a motor-vehicle accident. Trial was held on August 6, 1992.
FINDINGS OF FACT
A. The Accident
This accident involved the collision of a pickup truck and a pedestrian. It occurred during daylight hours in the early afternoon of August 28, 1991, on the public highway adjacent to the Kym residence in the Village of Pava‘ia‘i, American Samoa. At the time of the accident, the vehicle was owned by defendants Sherry Lutali ("Sherry") and Willie Lutali ("Willie"), who are married to each other, and was operated without liability-insurance coverage. Hence, no action was filed against an insurer. Sherry was driving the pickup. The pedestrian was plaintiff Sharlea Kimioranga Jasmin Sciascia ("Sharlea"), who was then nine years old.
Shortly before the accident occurred, Sharlea and her brother Israel, who is 13 years of age, had crossed the highway from the Kym house, located on the ocean side of the road, to return to their home in Aoloau on the mountain side of the road. They had been at the Kym house with the Kym children during the course of the day. Helen Kym, who is 14 years old, reminded Sharlea that she had forgotten to take her sleeping bag. As Sharlea was about to return to the Kym residence, a westbound bus stopped or was stopping to her left. The driver waved to her to cross the road, saying something which Sharlea understood to mean she should go ahead. An eastbound bus was stopped across from Sharlea at the oceanside edge of the road. The pickup driven by Sherry was approaching from the west in the eastbound lane. Without looking further at immediate traffic conditions and unaware of the pickup, Sharlea started running, at a jogging rate, diagonally across the road towards the Kym house. She slowed down, perhaps to a walk, as she entered the eastbound lane. She suddenly became aware of Sherry’s pickup, raised her right hand signaling and shouted to stop, but she and the pickup momentarily collided.
*40Sherry, who was 23 years old at the time of the accident, was accompanied in the pickup only by her young son. She did not see any buses or other vehicles on either side of the road at or near the accident scene. She knew and waved at Helen, which Helen confirmed. Sherry believed that the speed of the pickup was approximately 20 miles per hour. From her perspective, Sharlea darted across the road and was almost to the middle of the road, about 20 feet ahead of the pickup, when Sherry realized the danger in the situation. Sharlea, still running, raised her hand and shouted to stop. Sherry braked and swerved to avoid Sharlea, but Sharlea and the pickup collided. The impact point on the pickup was near the side-view mirror on the left door.
At this point, we note that four eyewitnesses at different locations testified to the events of the accident. There were some discrepancies in their respective versions of these events. However, their testimonies were remarkably similar with respect to the key circumstances, and except for further comment below on the presence or absence of buses, these differences do not affect our findings.
B. Liability
Turning to analysis of the events of the accident on the issue of liability, we take judicial notice of several facts to assist in evaluating both the speed of the pickup when Sherry became aware of the danger presented by Sharlea’s presence on the road and any negligence by Sherry due to violation of the speed limit prescribed by A.S.C.A. § 22.0323. First, we will use the factual information on stopping distances for a single-unit vehicle, with a gross weight rating of less than 10,000 pounds, contained in the Uniform Table on Driver Stopping Distances, Including Perception-Reaction Distance, 10 P.O.F. App., Fig. 21 (1961).1 Second, we recognize that at a speed of 20 miles per hour, a vehicle travels 29.33 feet per second. Third, we note that several signs, erected by the Commissioner of Public Safety, on both sides of the road within the Village of Pava‘ia‘i, give notice of a maximum speed of 25 miles per hour.
The Uniform Table indicates that the driver stopping distance for a pickup traveling at 20 miles per hour is 74 feet, including driver *41perception distance of 22 feet, driver reaction distance of 22 feet, and vehicle stopping distance of 30 feet. At 25 miles per hour, the total stopping distance is 98 feet, including driver perception distance of 28 feet, driver reaction distance of 28 feet, and vehicle stopping distance of 42 feet. Since the impact occurred almost immediately after Sherry became aware of the dangerous situation, we find that the pickup and Sharlea were approximately 20 to 30 feet apart when Sherry became aware of the situation; that, within a second later, Sherry started to brake and the impact occurred almost simultaneously; and that the speed of the pickup when Sherry began to perceive the danger was approximately 20 to 25 miles per hour. We further find that Sherry was not negligent due to any violation of the maximum speed limit prescribed by A.S.C.A. § 22.0323.
We are convinced, however, that Sherry was negligent in failing to notice the precarious situation and in not taking defensive action any sooner than she did. She was aware of the group of children along the road when she waved at Helen. However, she did not observe the two buses that were stopped or stopping on each side of the road.2 She did not grasp the need to reduce the speed of the pickup until it was too late to avoid the accident. Sherry’s inattentiveness to the full circumstances of the situation establishes a lack of ordinary or reasonable care, which persons of ordinary prudence would use to avoid foreseeable injuries to children who are nine years of age.
*42Persons dealing with children must anticipate the ordinary behavior of children, taking into account their maturity, intelligence and experience. The fact that children usually do not exercise the same degree of prudence for their own safety as adults — that they often are thoughtless and impulsive-imposes on those dealing with children, and from whose conduct injury to a child might result, a duty to exercise proportional vigilance and caution. Schwartz v. Helms Bakery Ltd., 67 Cal. 2d 232, 240, 60 Cal. Rptr. 510, 515, 430 P.2d 68, 73-74 (1967). Statutory descriptions of this standard of care are found in A.S.C.A. § 22.0701, defining careless driving, and A.S.C.A. § 22.0406, prescribing a driver’s overriding duties to pedestrians, especially children. Sherry’s negligent operation of the pickup was clearly a proximate cause of the accident and Sharlea’s injuries.
At the same time, it is clear that Sharlea’s conduct was also negligent and that her negligence was a contributory cause of the accident and her injuries. Sharlea crossed the road into the unavoidable path of Sherry’s vehicle, at least at the time when Sherry belatedly perceived Sharlea’s presence. Also, because Sharlea crossed the road at a point other than within a designated, marked or unmarked crosswalk, she was required to yield the right-of-way to all vehicles. These are standards of conduct set forth in A.S.C.A. §§ 22.0401(c) and (d).
Thus, it becomes necessary to compare the respective negligent conduct by Sherry and Sharlea and to diminish the award of damages in proportion to the amount of negligence attributable to Sharlea. A.S.C.A. § 43.5101. Apportioning their negligence, we find that each is equally culpable. On one hand, Sherry failed to keep a proper lookout when she knew or should have known of the risk to children in the area. On the other hand, Sharlea could have readily avoided the dangerous situation in which she found herself. Therefore, we assess Sherry’s responsibility at 60% of the damages suffered by Sharlea.
Based on Willie’s joint ownership with Sherry of the pickup and their marital relationship, we further find that Sherry was operating the vehicle at the time of the accident with Willie’s express or implied knowledge and consent. See Wilcox v. Berry, 32 Cal. 2d 189, 195 P.2d 414, 415 (1948). Therefore, Sherry’s negligence is imputed to Willie, and he is equally responsible with Sherry to the extent of her liability to Sharlea. See Foma'i v. Semana, 4 A.S.R.2d 102, 104-109 (1987); Toleafoa v. Sioka, 5 A.S.R.2d 18, 21 (1987); Sataua v. Himphill, 5 A.S.R.2d 61, 63 (1987); A.S.C.A. § 22.2003(2).
*43C. Damages
After the impact, the pickup quickly stopped, partially off the ocean side of the road. Sherry thought that she stopped almost immediately and that the pickup did not drag Sharlea. However, based on the Uniform Table information for a single-unit vehicle, with a gross weight rating of less than 10,000 pounds, moving at 20 to 25 miles per hour, it is apparent that Sharlea was dragged some 52 to 70 feet before the vehicle came to a complete stop. That Sharlea was dragged for some significant distance is also consistent with the nature of her injuries, described below.
After the collision, Sharlea was taken to the hospital by her uncle. She next recalled being held by a friend of her uncle in the cab of her uncle’s pickup. She was not sure whether or not she had been unconscious. She saw blood and the skin removed from her right foot. She was in severe pain which she had never experienced before. She did not remember arriving at the hospital or exactly what initially happened there. She did recall that at some point, she was in a room with people moving around. She then felt dizzy and great pain. There was a cast on her right leg when she next woke up. She did not recall the length of time that she was hospitalized. Back at home, her mother dressed her foot more than once a day. She did not attend school for a while, but she was not sure of the length of her absence. Her leg was checked by doctors from time to time. She is now used to the sight of her foot. She can do the same things now that she did before the accident, but she feels pain on the bottom of her foot when running. Today she can wear shoes and walk straight, but differently, with an up and down "bump." Her friends had called the sight of her foot gross, but this description does not bother her any longer.
Katrina May Sciascia, Sharlea’s mother, first saw her daughter about two hours after the accident. A neighbor took her to the hospital. Sharlea was then crying in pain, calling for her mother. It was about three to four hours after the accident before a doctor was available to care for Sharlea, and it was about five hours before she was sedated. Sharlea was hospitalized for about one month.' After Sharlea was released, her mother tended to her wounds twice a day. For a while, Sharlea was confined to a wheelchair and was emotionally depressed. However, her mother has encouraged her daughter to lead a normal life. Her mother thinks Sharlea can now do most of the things she did before the accident. Sharlea started playing basketball, a game she loves, about *44a month ago, but she cannot play a whole game. Sharlea also walks as though she needs to constantly balance herself.
Dr. Ronald W. Vinyard, an orthopedic surgeon, first saw Sharlea on the day of the accident at the request of Dr. Reilly Magiin, who wanted a second opinion on her condition. Sharlea was conscious and reasonably stable, in shock but not grossly so. She had suffered a compound fracture of her right leg between the ankle and knee. Two bones protruded. The tissue along the inside of her right foot was tom away from her ankle to the toes. She also had facial abrasions and contusions, which were not serious injuries. Under anesthesia, her leg and foot were debrided of dead tissue and irrigated, and the foot wound was dressed. Then the leg bones were reduced to normal alignment, and a cast to the toes was placed on the leg. The foot part of the cast was removed three days later to treat the foot further by grafting skin from other parts of her leg to granulated foot tissue, placed at measured intervals to grow together. This procedure is done under general anesthesia and, at the donor site, involves acute pain for two to three days and takes ten days to three weeks of healing time, depending on the thickness of the removed skin. The grafts are then regularly watched for the growth and viability of the grafted skin. Treatment also included medication for pain and antibiotics for infections.
Dr. Vinyard also testified that, according to the medical records, Sharlea was actually hospitalized from August 28 to September 20, 1991, and has regularly received outpatient treatment since her release. She was last treated on April 8, 1992, and another treatment was scheduled about three months later. Dr. Vinyard examined Sharlea the week before the trial. The grafting process is still incomplete, as there is still exposed granulated tissue. In time, the foot will be frozen and superficial skin ground off in preparation of new grafts, perhaps done in a series, as may be necessary. The foot functions mechanically well now, but it will never be completely normal. Sharlea can expect to participate in sports, probably on a somewhat restricted basis. The foot will continue to require superficial skin care on a regular basis. Sharlea is also a candidate for early arthritis due to this injury. She also has four to five years of normal bone growth ahead of her, and a "club foot" may develop. She should be seen every six months until her normal growth period is over.
Her foot will never look like it did originally. Regardless of the success of the healing or growth processes, Sharlea will eventually require additional cosmetic surgery, at best, and "club foot" corrective *45surgery, at worst. Special instruments, which are presently unavailable locally, are needed for these kinds of surgery. The current cost of each such operation in the U.S. mainland is about $5,000. Three cosmetic operations will probably be necessary to make the foot appear as normal as possible. Five to 12 operations may be required if more severe conditions are encountered.
In determining special damages for medical expenses, we first note that although it is apparent that some current medical expenses were associated with both Sharlea’s inpatient and outpatient care, the record evidence is not specific on incurred medical expenses. However, since Sharlea is not entitled to medical attention under A.S.C.A. § 13.0601, lawful charges were $60 per day for inpatient care under A.S.A.C. § 11.0302(b)(1) and $2 per visit for outpatient care under A.S.A.C. § 11.0302(b)(1). Thus, by reason of Sharlea’s hospitalization for 24 days, her inpatient medical expenses would have been $1,440. Again, we do not know the exact frequency of her regular outpatient checkups after her release in September 1992 through April 1992, but given the nature of her injuries, a reasonable estimate is three times a month, resulting in outpatient charges of $42. Therefore, we find that Sharlea’s past medical expenses were $1,482.
Damages for projected medical expenses are allowed when, as has been shown in this case, permanent and troublesome injuries will probably require medical treatment in the future. Besch v. Triplett, 532 P.2d 876, 877-878 (Ariz. App. 1969). Additional skin grafts, locally performed in a series, are reasonably certain. We think that the equivalent of 12 inpatient days, costing $720, is a reasonable estimate for this medical expense. There is also reasonable probability or certainty of at least three cosmetic operations, estimated at $5,000 each by today’s cost standards, or a total of $15,000. Finally, the recommended outpatient checkups to be conducted at six month intervals for the next five years, if they are done in American Samoa, will add another $20 to the projected medical costs. Therefore, we find that Sharlea’s projected medical costs are $15,740. Combining these determinations of past and future medical expenses, special damages for medical expenses are $17,222.
Clearly, Sharlea suffered and in the future will suffer substantial pain and suffering, including but not limited to the effects of lifelong disfigurement and some permanent disability. Taking into account typical awards for pain and suffering in American Samoa, and recognizing that any dollar value for this purpose is objectively neither right nor wrong, *46we find that Sharlea’s general damages for pain and suffering are $50,000.
Apportioning the total damages of $67,222 on a 60%-40% basis according to our comparative negligence evaluation, we find that Sharlea is entitled to $40,333.20 in damages.
CONCLUSIONS OF LAW
1. Sherty negligently operated a motor vehicle on the occasion of this accident, and her negligence was one proximate cause of Sharlea’s personal injuries.
2. Sharlea negligently crossed the road, and her negligence was the other proximate cause of her injuries.
3. Comparing the negligent conduct by Sherry and Sharlea, assessment of responsibility at 60% to Sherry and 40% to Sharlea is reasonable.
4. Sherry’s negligence is properly imputed to Willie to the full extent of her liability to Sharlea.
5. Sharlea’s special damages for medical expenses are $17,222. Her general damages for pain and suffering, including disfigurement and permanent disability, are $50,000. Her total damages are $67,222.
6. Apportioning the damages on a 60%-40% basis between Sherry and Sharlea, Sherry and Willie are jointly and severally liable to Sharlea in the sum of $40,333.20.
7. In accordance with Judicial Memorandum No. 1-1988, 1 A.S.R.2d 144 (1988), until further order of the court, the amount of the damages shall be deposited directly into the depositary of the High Court of American Samoa and shall be placed in an interest-bearing account with Sharlea as the beneficiary. Disbursements will be made only on application by Katrina May Sciascia as guardian ad litem, or by her successor of record, and only on approval by one of the justices.
Judgment shall enter accordingly. It is so ordered.
This table was agreed on by ten national traffic safety organizations and was approved by the National Conference on Uniform Stopping Distance Charts.
Of the four eyewitnesses, Sharlea was the only one who recalled seeing both buses. Helen, who was on the mountain side of the road when the accident occurred, noticed only the westbound bus. Neither Sherry nor Mrs. Tuitele, who was picking up trash in her yard next door to the Kym house, observed any buses. However, we do not think that these differences in the witnesses’ perceptions indicated a lack of credibility of any of them. We also do not think that the presence or absence of the buses, particularly the eastbound bus, had a direct bearing on the accident in the sense that Sherry had to pay attention to avoid striking any bus. We do think that Mrs. Tuitele, based on her yard activity, and Helen, perhaps based on her recognition of Sherry’s greeting, were not necessarily alert to every circumstance immediately before the impact. Moreover, while Sherry’s failure to notice the eastbound bus further illustrates her lack of awareness, we think that even if there were no eastbound bus, her inadequate attention to the situation was amply shown. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486541/ | ORDER DENYING MOTION FOR IN CAMERA HEARING
Introduction
On April 16, 1997, plaintiff American Samoa Government (“ASG”) filed an information against defendant Abe Samana (“Samana”) The information alleged that Samana unlawfully produced a controlled *180substance in violation of A.S.C.A. §§ 3.1020, 13.1001(h) and (m) and 13.1006; that Samana unlawfully possessed a controlled substance in violation of A.S.C.A. §§ 3.1022 and 13.1006; and that Samana committed assault in the first degree in violation of A.S.C.A. §§ 46.3520(a) and (b) and 46.3111 (7), (9) and (24).
The information is based on evidence that police gathered as a result of searching Samana’s residence and the surrounding area. Police acted pursuant to a search warrant issued by the District Court of American Samoa on April 4, 1997. That search warrant was issued upon the affidavit of DPS Agent Va'aolmala Sunia (“Sunia”), who stated that a “Confidential Informant” had told him that marijuana was growing near Samana’s residence.
Samana now moves for an in camera hearing to examine the confidential informant who had allegedly supplied the police, and eventually the District Court, with the information leading to the search.
Discussion
A. In camera hearing to challenge probable cause for issuing a search warrant.
Article I, § 5 of the Revised Constitution of American Samoa provides, in part, that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and ... things to he seized.”
An evidentiary hearing to review probable cause for a search warrant, whether in camera or otherwise, is only mandated where a defendant alleges “deliberate falsehood” or “reckless disregard for the truth,” and can “support those allegations with an offer of proof.” Franks v. Delaware, 438 U.S. 154, 171, 57 L. Ed. 2d 667, 682 (1978). “Probable cause may be founded upon hearsay and information received from informants.” Franks, 438 U.S. at 165, 57 L. Ed. 2d. at 678. A judge may issue a warrant without requiring informants to be produced, as long as there is “a substantial basis for crediting the hearsay.” Rugendorf v. United States, 376 U.S. 526, 533, 11 L. Ed. 2d at 891-92, (citing Jones v. United States, 362 U.S. 257, 271-72, 4 L. Ed. 2d 697, 708-09 (1960)); see also McCray v. Illinois, 386 U.S. 300, 311, 18 L. Ed. 2d 62, 71 (1967) (requiring issuing judge to be informed of some of the “underlying circumstances” supporting the affiant’s belief that the informant was “credible” and that his information was “reliable”). Thus, only the affiant, not any nongovernmental informant, may be subject to impeachment at such an evidentiary hearing. Franks, 438 U.S. at 171, S7 L. Ed. 2d at 682.
*181In the instant case, Samana merely states that the affiant relied on “general and vague” statements of a confidential informant, and that the confidential informant may be unreliable. However, every fact recited in the warrant need not be correct or complete as long as the information put forth by an informant “is believed or appropriately accepted by the affiant as true.” Franks, 438 U.S. at 165, 57 L. Ed. 2d. at 678. In the affidavit in support of the search warrant, Sunia stated that he had investigated the informant’s criminal history (and found no record of a conviction), verified the informant’s credibility with Lt. Paulo Leuma (who had used the informant on previous occasions to uncover illegal marijuana possession), and utilized his memory to confirm that the informant’s statements wore consistent with his own personal experience with Samana and Samana’s residence. Thus, we believe that the affidavit contains “a substantial basis” for crediting the hearsay of the confidential informant, and that there is therefore no need to produce the confidential informant at an evidentiary hearing regarding probable cause.1
Finally, Samana suggests that the confidential informant “may” not exist. Of course, if this unsubstantiated allegation could effectively undermine a warrant’s presumed validity, warrants could never be issued on information from confidential informants, because such an allegation could he made in every case involving a confidential government informer. Such a result would defy precedent and common sense. We cannot assume that officers are committing perjury. American Samoa Gov’t v. Samana, 30 A.S.R.2d 1, 4 (Trial Div. 1996) (Order Denying Motion for in Camera Hearing). Therefore, without any further offer of proof from Samana regarding the affiant’s bad faith, we find no reason to respond to Samana’s self-serving statements attacking the existence or veracity of the affiant’s confidential informant. Franks, 438 U.S. at 171, 57 L. Ed. 2d. at 682 (stating that the challenger’s attack “must be more than conclusory” and must he supported by more than a “mere desire to cross-examine” the affiant); see also United States v. Erickson, 732 F.2d 788, 790 (10th Cir. 1984).
B. In camera hearing to reveal identity of informant for trial purposes.
Samana’s brief does not make clear whether Samana is requesting an in camera hearing solely for the purposes of testing probable cause of the *182search warrant, or whether Samana also wishes to obtain the identity of the confidential informant for purposes at a trial on the merits. Though the court expects greater precision from the Public Defender’s Office, we shall proceed as if Samana is also requesting the identity of the confidential informant for the trial on the merits.
In general, ASG has the “privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro v. United States, 353 U.S. 53, 59, 1 L. Ed. 2d 639, 644 (1957) (citations omitted). The privilege advances the public interest in effective law enforcement, and encourages citizens to fulfill their civic duty to communicate their knowledge of criminal activity to law enforcement officials. Id.
However, the privilege is not absolute, and a trial court must “balanc[e] the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Roviaro, 353 U.S at 62, 1 L. Ed. 2d. at 646. “Where the disclosure of an informer’s identity ... is relevant and helpful to a fair determination of the cause, the privilege must give way.” Roviaro, 353 U.S. at 60-61, 1 L. Ed. 2d at 645; see also American Samoa Gov’t v. Samana, 1 A.S.R.2d 1, 3 (Trial Div. 1996) (Order Denying Motion for In Camera Hearing). The Supreme Court has expressly declined to adopt a fixed rule with respect to disclosure, and instead directed trial courts to consider the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. Roviaro, 353 U.S. at 62, 1 L. Ed. 2d at 646; see also Rugendorf, 376 U.S. at 534-35, 11 L. Ed. 2d at 892-93.
In the case at hand, we believe that the facts weigh in favor of respecting ASG’s decision to maintain the anonymity of its informant. Even if the confidential informant is generally a lying, cheating, no good varmint, such information has no value to Samana’s possible defenses at trial to charges of cultivating and possessing marijuana on his land. Now that the officers have located and seized the contraband pursuant to a search warrant, the informant’s statements are of little significance to the prosecution’s case in chief. American Samoa Gov’t v. Samana, 1 A.S.R.2d 1, 4 (Trial Div. 1996) (Order Denying Motion for In Camera Hearing).2 Thus, we conclude that there has been no adequate showing *183that an in camera hearing ihvolving the confidential informant “is relevant and helpful” to a particular legal theory that Samana is proposing to raise at trial or “is essential to a fair determination of the cause.”3 Roviaro, 353 U.S. at 60-61, 1 L. Ed. 2d at 645. We find no justification for abrogating ASG’s limited privilege to protect the identity of the confidential informant
Conclusion and Order
Accordingly, the motion for an in camera hearing is denied. It is so Ordered.
This case is factually distinguishable from this court’s Order For In Camera Hearing with Confidential Informant in American Samoa Gov’t v. Samana, 1 A.S.R.2d 37, 38 (Trial Div. 1996), where the defendant was able to present affidavits from individuals who directly challenged the accuracy of hearsay statements of a confidential informant.
The present case is factually distinguishable from Roviaro, where the drug possession and transport charge was based on a transaction that only the confidential informant witnessed. 353 U.S. at 63, 1 L. Ed. 2d at 646-47. Access to the confidential informant was a “vital need” because questioning the informant was the only way that the defendant in Roviaro could “explain[] or justify[] his alleged possession of the *183heroin” at a trial on the merits. 353 U.S. at 63, 1 L. Ed. 2d at 647. However, in the present case, the marijuana was simply growing outside Samana’s residence, and Samana cannot argue at trial that the confidential informant is the only eye-witness to the crime. Furthermore, we fail to. see how access to the confidential informant will significantly help Samana explain and justify his conduct.
Samana claims that the access to the informant is “important” because it could go to the issue of whether or not he had “control” over the property on which the marijuana is found. But court files indicate that the informant is not listed as a witness who will testify at trial. Samana will have an opportunity to raise this defense at trial, where he will be presumed to be lacking control over the property unless the prosecution proves control beyond a reasonable doubt, and will have a chance to confront and cross-examine any witnesses the prosecution presents on the issue of control. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487049/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 01:07 AM CST
- 606 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
Millard Gutter Company, a corporation
doing business as Millard Roofing and
Gutter, appellant, v. Shelter Mutual
Insurance Company, appellee.
___ N.W.2d ___
Filed October 14, 2022. No. S-20-907.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo by
an appellate court, accepting the factual allegations in the complaint as
true and drawing all reasonable inferences of law and fact in favor of the
nonmoving party.
2. Actions: Parties: Standing: Judgments: Jurisdiction: Appeal and
Error. Whether a party who commences an action has standing and is
therefore the real party in interest presents a jurisdictional issue. When a
jurisdictional question does not involve a factual dispute, determination
of the issue is a matter of law which requires an appellate court to reach
a conclusion independent from the trial court.
3. Pleadings: Judges: Words and Phrases: Appeal and Error. An order
of the district court requiring a complaint to be made more definite and
certain will be sustained on appeal unless it clearly appears that the
court abused its discretion. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depri
ving a litigant of a substantial right and denying just results in matters
submitted for disposition.
4. Actions: Parties: Standing. Whether a party who commences an action
has standing, and is therefore the real party in interest, presents a juris-
dictional issue.
5. Actions: Parties. The purpose of Nebraska’s real party in interest
statute, Neb. Rev. Stat. § 25-301 (Reissue 2016), is to prevent the
prosecution of actions by persons who have no right, title, or interest in
the cause.
- 607 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
6. Actions: Parties: Standing. The focus of the real party in interest
inquiry is whether the party has standing to sue due to some real interest
in the cause of action, or a legal or equitable right, title, or interest in the
subject matter of controversy.
7. Standing. The focus of a court’s standing inquiry is not on whether
the claim being advanced has merit; it is on whether the plaintiff is the
proper party to assert the claim.
8. Assignments: Parties. Generally, if there has been a valid and complete
assignment of rights, then the assignee is the real party in interest, but
if the assignment is invalid, then the purported assignor remains the real
party in interest.
9. Assignments: Words and Phrases. An assignment is the transfer of
some identifiable property, claim, or right from the assignor to the
assignee.
10. Assignments. Fundamental to the law of assignments is the concept
that an assignee takes nothing more by an assignment than the assignor
had; an assignor cannot assign any rights greater than that which he or
she held.
11. Assignments: Intent. The intention of the assignor must be to transfer a
present interest in a debt or fund or subject matter.
12. Insurance: Breach of Contract: Assignments: Standing. In the
absence of a statute to the contrary, an insured may validly assign a
postloss breach of contract claim for insurance proceeds due under a
homeowner’s policy, and the assignee of such a claim has standing to
bring the breach of contract claim in its own name.
13. Standing: Pleadings: Evidence: Words and Phrases. When standing
is challenged at the pleadings stage, before an evidentiary hearing and
before any evidence outside of the pleadings is admitted, it is deemed a
facial challenge.
14. Standing: Pleadings: Proof. When considering a facial challenge to
standing, the trial court will typically review only the pleadings to
determine whether the plaintiff has alleged sufficient facts to establish
standing.
15. Torts: Insurance: Contracts. The general theory underlying the tort of
bad faith is that the law implies a covenant of good faith and fair deal-
ing as a result of the contractual relationship between the insurer and
the insured.
16. Torts: Insurance: Claims: Proof. To establish a claim of first-party bad
faith, a policyholder must show both an absence of a reasonable basis
for denying benefits of the insurance policy and the insurer’s knowl-
edge or reckless disregard of the lack of a reasonable basis for denying
the claim.
17. Torts: Intent. An action for first-party bad faith is an intentional tort.
- 608 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
18. Actions: Insurance: Contracts. A cause of action for insurer bad faith
is separate from, and not dependent on, a cause of action for breach of
the insurance policy, although the two may share facts in common.
19. Claims: Torts: Insurance: Damages: Proximate Cause. Because
claims of bad faith are grounded in tort, traditional tort damages, includ-
ing damages for mental distress and for economic loss, are recover-
able when they are proximately caused by the insurer’s tortious bad
faith conduct.
20. Torts: Insurance: Claims. Only (1) an injured policyholder who is also
a covered person or (2) a policyholder who is also a beneficiary may
bring a cause of action in tort against the policyholder’s insurer for fail-
ure to settle the policyholder’s insurance claim.
21. Torts: Claims: Assignments: Death: Abatement, Survival, and
Revival. The common-law rule is that a right of action is not assignable
where the tort causes a strictly personal injury and does not survive the
death of the person injured.
22. Torts: Assignments: Statutes. Where only the proceeds of personal
injury tort litigation, and not control of the litigation, have been assigned,
such assignments are valid and enforceable under Nebraska law unless
there is a statute prohibiting such assignment.
23. Torts: Insurance: Claims: Assignments. A policyholder cannot val-
idly assign the right to prosecute or control a tort action for first-party
bad faith.
24. Torts: Insurance: Assignments. A policyholder’s postloss assignment
of insurance proceeds neither increases nor changes the insurer’s obliga-
tions under the insurance policy.
25. Pleadings. Motions to make more definite and certain are addressed to
the sound discretion of the trial court.
26. Pleadings: Time: Dismissal and Nonsuit. A plaintiff’s failure to file
an amended pleading within the time specified by the court’s order is a
basis for dismissing the action without prejudice under Neb. Rev. Stat.
§ 25-601(5) (Reissue 2016).
27. Courts: Dismissal and Nonsuit. In addition to the statutory authority
under Neb. Rev. Stat. § 25-601 (Reissue 2016), courts have inherent
authority to dismiss an action for violation of a court order. And pur-
suant to their inherent authority, courts can dismiss the action with or
without prejudice.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellant.
- 609 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
Michael T. Gibbons, Raymond E. Walden, and Christopher
D. Jerram, of Woodke & Gibbons, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In connection with a 2013 storm, Millard Gutter Company
(Millard Gutter) obtained assignments from various policy
holders of Shelter Mutual Insurance Company (Shelter).
Millard Gutter then filed suit against Shelter in its own name,
as assignee, seeking to recover damages for breach of the
insurance contracts and for first-party bad faith in failing to
settle the claims. The district court dismissed the action, and
Millard Gutter appeals. The primary question on appeal is
whether Millard Gutter has standing to assert first-party bad
faith claims against Shelter. We affirm the judgment of the
district court.
I. BACKGROUND
1. Complaint
On April 9, 2018, Millard Gutter filed a complaint against
Shelter in the district court for Douglas County. Millard Gutter
brought the action in its own name as “the assignee of vari-
ous insured property owners” who purchased insurance from
Shelter and whose property “sustained loss due to a storm
occurring in 2013.” The assignments were not attached to the
complaint, but were described therein as “valid assignments
of the right to proceeds under an insurance policy issued
by Shelter.”
The complaint alleged that Millard Gutter provided Shelter
with copies of the assignments and made claims for storm dam-
age to the insured properties. The complaint broadly alleged
that all of the Shelter policies were in full force and effect, the
storm damage was covered, and all conditions precedent under
the policies had been met. The complaint did not identify the
addresses or locations of the insured properties, the dates of
- 610 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
the alleged storm damage, or the dates the assignments were
made. Millard Gutter alleged that Shelter breached the policies
when it “failed to make direct payment to [Millard Gutter]”
and failed to include Millard Gutter “as a payee on any checks
or other payments for the loss.” The complaint also alleged
that Shelter’s failure to pay Millard Gutter amounted to “bad
faith and constitutes a separate violation of the implied cov-
enant of good faith and fair dealing owed under the insurance
contracts.” The complaint prayed for unspecified general and
special damages in an amount to be determined at trial.
2. Preanswer Motions
Shelter moved to dismiss the bad faith claims pursuant to
Neb. Ct. R. Pldg. § 6-1112(b)(6), arguing the complaint failed
to state a claim because Millard Gutter lacked standing to
assert a first-party bad faith claim. Additionally, Shelter moved
for a more definite statement under § 6-1112(e), arguing that
without more detail identifying the insured properties and the
nature and scope of the alleged assignments, Shelter could
not reasonably form a responsive pleading. More specifically,
Shelter argued that it could not discern, from the allegations of
the complaint, which claims the policyholders had purportedly
assigned, where the insured properties were located, whether
all named insureds had executed the assignments, or whether
the assignments were made preloss or postloss.
In an order entered March 26, 2019, the district court sus-
tained the motion for a more definite statement, finding the
original complaint was “insufficient to identify the homeown-
ers and put [Shelter] on notice of each individual homeowner’s
claim.” Millard Gutter was ordered to file, within 14 days, an
amended complaint which identified the pertinent policy num-
bers and attached the assignments upon which it relied. Millard
Gutter never filed an amended complaint.
In a separate order entered April 8, 2019, the court granted
Shelter’s motion to dismiss the bad faith claims for lack of
standing. The court recited the rule from Braesch v. Union Ins.
- 611 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
Co. 1 that only a policyholder who is also a covered person or
beneficiary under the policy has standing to bring a tort action
against an insurer for first-party bad faith. The court then rea-
soned that Millard Gutter, a nonpolicyholder, lacked standing
under Braesch to assert claims for first-party bad faith in its
own name.
The court also considered, and rejected, Millard Gutter’s
argument that it had standing to assert the bad faith claims
by virtue of the alleged assignments. First, the court recited
the general rule that only a present interest may be validly
assigned, 2 and it noted that the complaint contained no fac-
tual allegations suggesting that any Shelter policyholder had
an existing bad faith claim at the time the assignments were
made. Additionally, the court reasoned that even if the assign-
ments purported to include an existing claim for first-party bad
faith, allowing Millard Gutter to bring such claims in its own
name would violate the rule announced in Mutual of Omaha
Bank v. Kassebaum, 3 which held that the proceeds of personal
injury tort litigation may be validly assigned, but control of
the litigation may not. The court therefore concluded that
Millard Gutter’s complaint did not contain sufficient factual
allegations to establish standing to assert claims of first-party
bad faith.
3. Show Cause and Dismissal
With Prejudice
After the court ruled on the preanswer motions, the case
remained pending with no apparent activity for about 17
months. Then, in August 2020, the court sua sponte issued an
1
Braesch v. Union Ins. Co., 237 Neb. 44, 464 N.W.2d 769 (1991), dis
approved on other grounds, Wortman v. Unger, 254 Neb. 544, 578 N.W.2d
413 (1998).
2
Krohn v. Gardner, 248 Neb. 210, 533 N.W.2d 95 (1995) (holding assign
ment must transfer present interest in debt, fund, or subject matter).
3
Mutual of Omaha Bank v. Kassebaum, 283 Neb. 952, 814 N.W.2d 731
(2012).
- 612 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
order for the parties to appear and show cause why the action
should not be dismissed for lack of progression.
Our bill of exceptions does not include the show cause hear-
ing, so it is not clear what, if any, evidence or argument was
offered by Millard Gutter. But other portions of the record
reflect that during the hearing, Millard Gutter advised the court
it would not be filing an amended complaint despite the court’s
prior rulings. In response, Shelter moved to dismiss the entire
action with prejudice.
After a hearing on Shelter’s motion, the court entered an
order dismissing the entire action with prejudice. The court
recited the procedural history of the case, including the basis
for the court’s prior rulings dismissing the bad faith claims
and ordering that Millard Gutter file an amended complaint on
the remaining breach of contract claims. The dismissal order
also stated:
[Millard Gutter] has not at any time filed an Amended
Complaint in this case. Nor has [it] filed anything else
in this case, despite the Court’s Order on August 10,
2020 directing that the parties appear at a hearing on
September 1, 2020 and show cause why the action should
not be dismissed for lack of prosecution. At that hearing,
[Millard Gutter’s] counsel advised that [Millard Gutter] is
standing on its original Complaint.
. . . The court agrees with [Shelter] that it is necessary
under the circumstances to go beyond dismissal for lack
of prosecution and dismiss the action on the basis that
[Millard Gutter] failed to comply with the Court’s specific
Order to file an Amended Complaint by April 24, 2019,
and has instead chosen to stand on the Complaint that the
Court found to be insufficient without a more definite
statement[,] and on the bad faith claims that the Court
also found to be insufficient.
. . . The Court determines that it is appropriate to dis-
miss the breach of contract claims as a sanction for non-
compliance with that Order . . . .
- 613 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
. . . The Court also finds that without the assignments
and specific identifying information about the alleged
homeowners executing the assignments, the Court cannot
determine that [Millard Gutter] has standing to assert the
claims of homeowners alleged to be insured by [Shelter]
and therefore finds that the Court lacks subject matter
jurisdiction over this action.
. . . The Court also reaffirms its dismissal of the bad
faith claims, which were not included in the leave to
amend.
Millard Gutter timely moved to alter or amend the order
of dismissal, arguing that under Neb. Rev. Stat. § 25-601
(Reissue 2016), the dismissal should have been without preju-
dice. After a hearing, the court entered a slightly modified
order of dismissal, which generally recited the same rationale
for dismissal and, once again, dismissed the entire action with
prejudice.
Millard Gutter filed a timely notice of appeal. We moved the
appeal to our docket on our motion. 4
II. ASSIGNMENTS OF ERROR
Millard Gutter assigns, restated and consolidated, that the
district court erred in (1) granting the motion to dismiss the
bad faith claims for lack of standing, (2) granting the motion
to make more definite as to the breach of contract claims and
ordering Millard Gutter to file an amended complaint identify-
ing the policies and attaching the assignments, and (3) dismiss-
ing the entire action with prejudice once Millard Gutter elected
to stand on its original complaint.
III. STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo by an appellate court, accepting
4
See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020); Neb. Ct. R. App.
Prac. § 2-102(C) (rev. 2022).
- 614 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
the factual allegations in the complaint as true and drawing all
reasonable inferences of law and fact in favor of the nonmov-
ing party. 5
[2] Whether a party who commences an action has standing
and is therefore the real party in interest presents a jurisdic-
tional issue. 6 When a jurisdictional question does not involve
a factual dispute, determination of the issue is a matter of law
which requires an appellate court to reach a conclusion inde-
pendent from the trial court. 7
[3] An order of the district court requiring a complaint to
be made more definite and certain will be sustained on appeal
unless it clearly appears that the court abused its discretion. 8
A judicial abuse of discretion exists when the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. 9
IV. ANALYSIS
1. Standing to Assert Claim
of First-Party Bad Faith
[4] In Millard Gutter’s first assignment of error, it argues
the district court erroneously concluded that Millard Gutter
did not have standing to assert claims of first-party bad faith
against Shelter. Whether a party who commences an action has
standing, and is therefore the real party in interest, presents a
jurisdictional issue. 10
5
SID No. 67 v. State, 309 Neb. 600, 961 N.W.2d 796 (2021).
6
Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856
(2020).
7
Id.
8
See Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501
N.W.2d 281 (1993).
9
George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947
N.W.2d 510 (2020).
10
Valley Boys, supra note 6.
- 615 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
[5-7] Nebraska’s real party in interest statute provides in
part that “[e]very action shall be prosecuted in the name of the
real party in interest.” 11 The purpose of that section is to pre-
vent the prosecution of actions by persons who have no right,
title, or interest in the cause. 12 The focus of the real party in
interest inquiry is whether the party has standing to sue due to
some real interest in the cause of action, or a legal or equitable
right, title, or interest in the subject matter of controversy. 13
The focus of our standing inquiry is not on whether the claim
being advanced has merit; it is on whether Millard Gutter is the
proper party to assert the claim. 14
(a) Assignee as Real Party in Interest
[8-11] As a general proposition, we have recognized that if
there has been a valid and complete assignment of rights, then
the assignee is the real party in interest, but if the assignment
is invalid, then the purported assignor remains the real party
in interest. 15 An assignment is the transfer of some identifiable
property, claim, or right from the assignor to the assignee. 16
Fundamental to the law of assignments is the concept that
an assignee takes nothing more by an assignment than the
assignor had; 17 an assignor cannot assign any rights greater
than that which he or she held. 18 The intention of the assignor
must be to transfer a present interest in a debt or fund or sub-
ject matter. 19
11
Neb. Rev. Stat. § 25-301 (Reissue 2016).
12
Valley Boys, supra note 6.
13
Id.
14
See Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020).
15
See Valley Boys, supra note 6.
16
6A C.J.S. Assignments § 2 (2016).
17
Id., § 91.
18
Id.
19
See, Krohn, supra note 2; Craig v. Farmers Mut. Ins. Co., 239 Neb. 271,
476 N.W.2d 529 (1991).
- 616 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
[12] In Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins.
Co., 20 we held that in the absence of a statute to the contrary,
an insured may validly assign a postloss breach of contract
claim for insurance proceeds due under a homeowner’s policy.
We also held that the assignee of such a claim has standing to
bring the breach of contract claim in its own name. Notably,
Millard Gutter limited its holding to assignments made after
the occurrence of a loss, reasoning that “‘[a]fter a loss occurs,
the indemnity policy is no longer an executory contract of
insurance [but rather] a vested claim against the insurer and
can be freely assigned or sold like any other chose in action . .
. .’” 21 After concluding that postloss assignments of property
damage claims were valid and enforceable, Millard Gutter sug-
gested that “[i]f postloss assignments of storm damage claims
are having a deleterious effect on insurers, they should present
their concerns to the Legislature.” 22
In 2018, the Legislature responded by amending the Insured
Homeowner’s Protection Act, 23 to add specific provisions gov-
erning the validity of postloss assignments of benefits under
property and casualty insurance policies covering residential
real estate. Postloss assignments that do not comply with all
the provisions of the act are deemed void. 24 However, because
the events which gave rise to this action occurred before the
effective date of such amendments, we leave for another day
a detailed discussion of the act’s provisions governing post-
loss assignments.
(b) Facial Challenge to Standing
[13,14] In this case, Shelter’s challenge to Millard Gutter’s
standing was raised and resolved at the pleadings stage. When
20
Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 295 Neb. 419,
889 N.W.2d 596 (2016).
21
Id. at 429, 889 N.W.2d at 603.
22
Id. at 433, 889 N.W.2d. at 605.
23
See Neb. Rev. Stat. §§ 44-8605 to 44-8608 (Cum. Supp. 2020).
24
See § 44-8608.
- 617 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
standing is challenged at the pleadings stage, before an evi-
dentiary hearing and before any evidence outside of the plead-
ings is admitted, it is deemed a “‘facial challenge.’” 25 When
considering a facial challenge to standing, the trial court will
typically review only the pleadings to determine whether the
plaintiff has alleged sufficient facts to establish standing. 26
The complaint alleged that Millard Gutter “obtained valid
assignments of rights under the policies issued by Shelter” and
specifically described the nature of the rights assigned as “the
right to proceeds under an insurance policy issued by Shelter.”
On appeal, Millard Gutter argues these allegations were suffi-
cient to establish its standing, as an assignee, to assert not only
breach of contract claims for insurance proceeds, 27 but also to
assert tort claims for first-party bad faith against Shelter.
Regarding the claims of first-party bad faith, we understand
Millard Gutter to advance two separate standing theories. First,
Millard Gutter argues it has standing, as assignee, to assert any
existing bad faith claims that Shelter’s policyholders had when
the assignments were made. Alternatively, Millard Gutter relies
on the assignments to argue it can assert its own claims for
first-party bad faith based on Shelter’s postassignment conduct.
We address each standing argument in turn.
(c) Assignability of First-Party
Bad Faith Claims
Millard Gutter broadly argues that the policyholders’ exist-
ing first-party bad faith claims are assignable because there is
“not a single Nebraska appellate court decision, which states
that an assignee of a post-casualty loss claim cannot state a
claim for bad faith.” 28 Millard Gutter is correct that we have
not previously addressed whether a policyholder can validly
25
SID No. 67, supra note 5, 309 Neb. at 606, 961 N.W.2d at 802.
26
Id.
27
See, Millard Gutter Co., supra note 20; Valley Boys, supra note 6.
28
Brief for appellant at 18.
- 618 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
assign an existing tort claim of first-party bad faith. We do so
now, and begin by reviewing the relevant principles from our
first-party bad faith cases.
(i) First-Party Bad Faith
This court judicially recognized the tort of third-party bad
faith in the 1962 case of Olson v. Union Fire Ins. Co. 29 and
recognized the tort of first-party bad faith almost 30 years later
in Braesch. 30 In Braesch, the court described the difference
between the two torts as follows:
[A] first-party bad faith cause of action is based upon alle-
gations that the insurer, in bad faith, refuses to settle with
its own policyholder insured, who thereby suffers some
type of direct loss. . . . In contrast, a traditional third-party
bad faith claim arises when an insurer wrongfully fails to
settle a claim by a third party against an insured. 31
[15] In Braesch, we said the general theory underlying the
tort of bad faith is that the law implies a covenant of good
faith and fair dealing as a result of the contractual relation-
ship between the insurer and the insured. 32 In a later case,
we emphasized that it is the breach of the covenant of good
faith and fair dealing from which the insurer’s tort liability
springs, and we said the tort of first-party bad faith “embraces
any number of bad faith settlement tactics, such as inadequate
investigation, delays in settlement, false accusations, and so
forth.” 33
[16,17] To establish a claim of first-party bad faith, a policy
holder must show both an absence of a reasonable basis for
denying benefits of the insurance policy and the insurer’s
knowledge or reckless disregard of the lack of a reasonable
29
Olson v. Union Fire Ins. Co., 174 Neb. 375, 118 N.W.2d 318 (1962).
30
Braesch, supra note 1.
31
Id. at 54-55, 464 N.W.2d at 776.
32
See Braesch, supra note 1.
33
Ruwe v. Farmers Mut. United Ins. Co., 238 Neb. 67, 74, 469 N.W.2d 129,
135 (1991).
- 619 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
basis for denying the claim. 34 Based on these elements, we
have characterized first-party bad faith as an intentional
tort, reasoning that “‘“[b]ad faith” by definition cannot be
unintentional.’” 35
[18,19] We have explained that a cause of action for insurer
bad faith is separate from, and not dependent on, a cause of
action for breach of the insurance policy, although the two
may share facts in common. 36 The damages recoverable for
bad faith differ too; because claims of bad faith are grounded
in tort, 37 traditional tort damages, including damages for men-
tal distress 38 and for economic loss, 39 are recoverable when
they are proximately caused by the insurer’s tortious bad faith
conduct. 40 Indeed, one of the justifications for recognizing
the intentional tort of bad faith was concern that recoverable
damages for breach of the insurance contract are inadequate
to compensate policyholders for personal injuries suffered as a
result of an insurer’s tortious bad faith. 41
[20] In Nebraska, only a policyholder has standing to bring
a first-party bad faith claim against an insurer. 42 More specifi-
cally, “only (1) an injured policyholder who is also a ‘covered
person’ or (2) a policyholder who is also a beneficiary may
bring a cause of action in tort against the policyholder’s insurer
for failure to settle the policyholder’s insurance claim.” 43 In this
case, Millard Gutter does not allege or argue that it is a Shelter
policyholder. Instead, Millard Gutter argues that, by virtue of
34
See Ruwe, supra note 33.
35
Braesch, supra note 1, 237 Neb. at 57, 464 N.W.2d at 777.
36
See Braesch, supra note 1.
37
See id.
38
Id.
39
See Ruwe, supra note 33.
40
See, Braesch, supra note 1; Ruwe, supra note 33.
41
See, e.g., id.
42
Braesch, supra note 1.
43
Id. at 56, 464 N.W.2d at 776.
- 620 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
the postloss assignments from Shelter’s policyholders, it has
standing to bring any existing claims for first-party bad faith
the policyholders had when they executed the assignments.
It is a question of first impression whether a policyholder
can validly assign, to a nonpolicyholder, a cause of action
for the tort of first-party bad faith. At oral argument, Millard
Gutter suggested the question could be answered by applying
the reasoning from Millard Gutter Co. v. Farm Bureau Prop.
& Cas. Ins. Co., 44 but that case answered a different question,
and our analysis was limited to the assignability of postloss
breach of contract claims. To determine whether a policyholder
can validly assign a tort claim for first-party bad faith, we
must examine our jurisprudence governing the assignability of
tort actions.
(ii) Assignability of Tort Actions
Not all tort claims are assignable under Nebraska law. A
wrongful death cause of action cannot be assigned because it
is authorized by statute, and “[t]he plain language of the stat-
ute allows only the personal representative to bring the action
and only the widow, widower, or next of kin to benefit.” 45
Moreover, although the law generally supports the assign-
ability of rights, it does not permit assignments for matters
of personal trust or confidence, or for personal services. 46
Applying this rule, we have held that claims for legal malprac-
tice cannot be validly assigned in Nebraska because of public
policy considerations concerning the personal nature and con-
fidentiality of the attorney-client relationship. 47 And we have
explained that if an assignment “grants both the proceeds of
44
Millard Gutter Co., supra note 20.
45
Spradlin v. Dairyland Ins. Co., 263 Neb. 688, 692, 641 N.W.2d 634, 637
(2002). See Neb. Rev. Stat. § 30-810 (Reissue 2016).
46
See Earth Science Labs. v. Adkins & Wondra, P.C., 246 Neb. 798, 523
N.W.2d 254 (1994).
47
Id. Accord, Community First State Bank v. Olsen, 255 Neb. 617, 587
N.W.2d 364 (1998).
- 621 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
[a legal malpractice] action and the right to prosecute it, it is
an assignment of the cause of action” which is void as against
public policy. 48
[21] In Kassebaum, we considered whether an assignment
of the unliquidated proceeds from a personal injury action was
valid and enforceable under Nebraska law. 49 We described this
as an issue of first impression and began our analysis by recit-
ing the common-law rule that a right of action is not assignable
where the tort causes a strictly personal injury and does not
survive the death of the person injured. 50 We said this prohibi-
tion is grounded on two principles: (1) that prior to more recent
statutory amendments, personal claims did not survive the
death of the victim, and (2) that prohibiting the assignment of
tort claims prevents champerty and maintenance. 51
[22] In Kassebaum, we observed there was a split of author-
ity in other jurisdictions regarding whether a party could assign
the proceeds of personal injury litigation without violating this
common-law prohibition. And after discussing the reasons in
favor of and against allowing such assignments, we determined
“the cases holding that an assignment of proceeds is enforce-
able to be the better reasoned position.” 52 We thus adopted the
rule that “[w]here only the proceeds of [tort] litigation, and not
control of the litigation, have been assigned,” such assignments
are valid and enforceable under Nebraska law. 53 In other words,
absent a statute to the contrary, Nebraska law generally allows
a party to assign the proceeds from personal injury actions, but
it does not allow assignment of the right to prosecute or control
such actions.
48
Community First State Bank, supra note 47, 255 Neb. at 622-23, 587
N.W.2d at 368.
49
Kassebaum, supra note 3.
50
Id. See, also, Earth Science Labs., supra note 46.
51
Kassebaum, supra note 3.
52
Id. at 959, 814 N.W.2d at 737.
53
See id.
- 622 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
Here, the district court held that tort actions for first-party
bad faith are subject to the assignability rule for personal injury
actions announced in Kassebaum, and we agree. Actions for
first-party bad faith are intentional torts, and plaintiffs in such
actions are entitled to seek and recover traditional personal
injury damages. 54 We conclude it is appropriate to apply the
same assignability rules to actions for first-party bad faith as
are applied to other strictly personal torts. And under that rule,
the proceeds from such an action are assignable absent a statute
to the contrary, but the right to prosecute or control such an
action cannot be validly assigned. 55
[23] As such, even assuming without deciding that the pro-
ceeds from first-party bad faith actions can be validly assigned
under Nebraska law, we hold that a policyholder cannot val-
idly assign the right to prosecute or control such an action.
So, regardless of the validity for other purposes, the postloss
assignments from Shelter’s policyholders could not, as a mat-
ter of law, give Millard Gutter standing to prosecute the poli-
cyholders’ tort actions for first-party bad faith against Shelter.
Millard Gutter’s arguments to the contrary are without merit.
(d) Argument Based on Implied
Covenant of Good Faith
Millard Gutter’s alternative standing theory appears to be
that it is asserting its own claim for first-party bad faith against
Shelter. More specifically, Millard Gutter argues that once it
obtained postloss assignments from Shelter’s policyholders,
it “stood in the shoes of each of the insureds.” 56 And, as the
assignee of the policyholders’ rights to proceeds under the
Shelter policies, Millard Gutter argues that Shelter owed it the
same covenant of good faith and fair dealing that it owed its
policyholders. Thus, according to Millard Gutter, it can assert
a claim for first-party bad faith based on Shelter’s failure “to
54
See, Ruwe, supra note 33; Braesch, supra note 1.
55
See Kassebaum, supra note 3.
56
Brief for appellant at 14.
- 623 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
adjust the claim[s] in good faith and make prompt payment to
Millard Gutter.” 57
There is no merit to Millard Gutter’s alternative standing
theory, because there is no legal basis for its contention that
Shelter owed Millard Gutter any obligation of good faith and
fair dealing. The implied covenant of good faith and fair deal-
ing that Nebraska law imposes on insurers “is dependent upon
a contractual relationship between the [policyholder] and the
insurer.” 58 There is no contractual relationship between Shelter
and Millard Gutter, and the postloss assignments did not cre-
ate one.
[24] Moreover, we soundly reject any suggestion that a
policyholder’s postloss assignment of insurance proceeds to
a nonpolicyholder can somehow alter or expand the insurer’s
implied covenant of good faith and fair dealing under the pol-
icy, or create any contractual relationship between the insurer
and the assignee. Our cases allowing postloss assignment
of insurance proceeds plainly hold that “such an assignment
neither increases nor changes the insurer’s obligations under
the policy.” 59
Here, the postloss assignments could not alter Shelter’s
obligations under the insurance policy or change the fact that
Millard Gutter has no contractual relationship with Shelter.
Consequently, there is no doctrinal basis for Millard Gutter
to claim that Shelter owes it a covenant of good faith and fair
dealing. And absent such a duty, there is no legal basis on
which Millard Gutter can assert its own claim of first-party
bad faith against Shelter. As we explained in Braesch, the tort
of first-party bad faith does not extend to nonpolicyholder
beneficiaries—even those who claim to have been harmed by
57
Id.
58
Braesch, supra note 1, 237 Neb. at 55, 464 N.W.2d at 776.
59
Valley Boys, supra note 6, 306 Neb. at 939, 947 N.W.2d at 865 (emphasis
supplied). Accord, Kasel v. Union Pacific RR. Co., 291 Neb. 226, 231, 865
N.W.2d 734, 738 (2015) (“[a]n assignment does not affect or change any
of the provisions of the contract”).
- 624 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
an insurer’s failure to settle with them—because nonpolicy-
holders lack a contractual relationship with the insurer. 60 As
a nonpolicyholder, Millard Gutter lacks standing to bring an
action for first-party bad faith against Shelter.
In sum, both of Millard Gutter’s standing theories fail as
a matter of law. The district court correctly concluded that
the allegations of Millard Gutter’s complaint, even accepted
as true, failed to establish that Millard Gutter has standing to
assert first-party bad faith claims against Shelter.
For the sake of completeness, we note that under Nebraska’s
real party in interest statute, an action “shall not be dismissed
on the ground that it is not prosecuted in the name of the
real party in interest until a reasonable time has been allowed
after objection for joinder or substitution of the real party in
interest.” 61 But here, Millard Gutter has not assigned or argued
that the district court erred by failing to allow Millard Gutter a
reasonable opportunity to file an amended complaint joining or
substituting the Shelter policyholders as plaintiffs for purposes
of the first-party bad faith claims. And on this record, we can
find no plain error related to § 25-301, particularly where, as
we discuss later, it is apparent that Millard Gutter would have
refused to file an amended complaint if allowed to do so.
2. No Abuse of Discretion in Ordering
More Definite Statement
In its second assignment of error, Millard Gutter argues the
court erred in granting Shelter’s motion to provide a more defi-
nite statement. According to § 6-1112(e) of the pleading rules:
If a pleading to which a responsive pleading is permitted
is so vague or ambiguous that a party cannot reasonably
60
See Braesch, supra note 1.
61
§ 25-301. See, also, North Star Mut. Ins. Co. v. Stewart, 311 Neb. 33,
47, 970 N.W.2d 461, 471 (2022) (holding when plaintiff is not real
party in interest with standing to sue, “better practice” is to allow
plaintiff reasonable period of time to amend complaint by either joining or
substituting real party in interest before dismissing action).
- 625 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
be required to frame a responsive pleading, the party
may move for a more definite statement before interpos-
ing a responsive pleading. The motion shall point out
the defects complained of and the details desired. If the
motion is granted and the order of the court is not obeyed
within 10 days or within such time as the court may fix,
the court may strike the pleading or make such order as
it deems just.
[25] Motions to make more definite and certain are addressed
to the sound discretion of the trial court. 62 Rule 6-1112(e)
requires the movant to identify the alleged deficiencies in the
pleading and to specify the details that are reasonably needed
to draft a responsive pleading. Shelter argued it could not tell
from the complaint which claims had been assigned, whether
the assignments were made preloss or postloss, whether all
named insureds had executed the assignments, or whether the
insured properties were located in the county where suit had
been filed. It asserted that without knowing these details, it
was unable to draft a responsive pleading or identify available
policy defenses.
The district court granted the motion, but did not require
all of the additional details requested by Shelter. Instead, the
court ordered Millard Gutter to amend the complaint within
14 days to “include policy numbers and attach the assignment
associated with each homeowner.” This additional detail would
presumably allow Shelter to identify the insured properties, the
named insureds, and the assignors so it could draft a respon-
sive pleading. On this record, we find no abuse of discretion in
granting the motion to make more definite.
3. No Error in Dismissal With Prejudice
In its final assignment of error, Millard Gutter argues it
was error to dismiss the entire action with prejudice. Millard
62
See Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218
N.W.2d 220 (1974).
- 626 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
Gutter argues that, pursuant to § 25-601, the dismissal should
have been without prejudice. Section 25-601 provides in rel-
evant part:
An action may be dismissed without prejudice to a
future action . . . (3) by the court for want of necessary
parties; . . . (5) by the court for disobedience by the plain-
tiff of an order concerning the proceedings in the action.
In all other cases on the trial of the action the decision
must be upon the merits.
[26,27] We have said the plaintiff’s failure to file an
amended pleading within the time specified by the court’s
order is a basis for dismissing the action without prejudice
under § 25-601(5). 63 But in addition to the statutory author-
ity under § 25-601, we have long recognized that courts have
inherent authority to dismiss an action for violation of a court
order. 64 And pursuant to their inherent authority, courts have
discretion to dismiss the action with or without prejudice. 65
Additionally, § 6-1112(e) of the pleading rules authorizes a
trial court to “strike the pleading or make such order as it
deems just” if an order to make more definite is not obeyed
within the time fixed by the court. Dismissal with prejudice is
63
See Bert Cattle Co. v. Warren, 238 Neb. 638, 471 N.W.2d 764 (1991).
64
Id. at 641-42, 471 N.W.2d at 767 (internal quotation marks omitted)
(explaining “[i]t has almost universally been held or recognized that courts
have the inherent power to dismiss an action for disobedience of a court
order. . . . Without this right, a court could not control its dockets; business
before it would become congested; its functions would be impaired; and
speedy justice to litigants would largely be denied”).
65
See, Scudder v. Haug, 197 Neb. 638, 250 N.W.2d 611 (1977) (finding no
error in dismissing cross-claim with prejudice where defendant was given
repeated opportunities to comply with court’s order to bring pleading
into proper form, yet failed to do so); Ferson v. Armour & Co., 109
Neb. 648, 651, 192 N.W. 125, 127 (1923) (finding no error in dismissing
action with prejudice after four pleadings were stricken for failure to
comply with pleading rules, though such dismissal “should be sparingly
exercised”).
- 627 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
generally considered an available sanction under such a provi-
sion and is reviewed for an abuse of discretion. 66
Moreover, the inherent authority of a trial court to dismiss
an action with prejudice for failure to prosecute is also well
established:
The authority of a . . . trial court to dismiss a plaintiff’s
action with prejudice because of [a] failure to prosecute
cannot seriously be doubted. The power to invoke this
sanction is necessary in order to prevent undue delays in
the disposition of pending cases and to avoid congestion
in the calendars of the District Courts. The power is of
ancient origin, having its roots in judgments of nonsuit
and non prosequitur entered at common law, e. g., 3
Blackstone, Commentaries (1768), 295-296, and dismis-
sals for want of prosecution of bills in equity . . . . 67
Our record shows that Millard Gutter’s failure to comply
with the order to make more definite was intentional, not inad-
vertent. Then, when the case showed no activity for a period of
almost 17 months and the court sua sponte issued an order to
show cause why the case should not be dismissed for failure to
prosecute, Millard Gutter offered no explanation, and instead,
it advised the court for the first time that it was going to stand
on its original complaint despite the court’s prior orders. After
the show cause hearing, the district court granted Shelter’s
motion to dismiss the entire action with prejudice, finding that
Millard Gutter’s delay “entirely stalled the case for nearly [a]
year and a half at the initial pleading stage” and that Millard
Gutter had no intention of filing an amended complaint to
remedy the deficiencies the court had identified in the origi-
nal complaint.
66
See, e.g., Nystrom v. Melcher, 262 Mont. 151, 864 P.2d 754 (1993); Clay
v. City of Margate, 546 So. 2d 434 (Fla. App. 1989); Medved v. Baird, 58
Wis. 2d 563, 207 N.W.2d 70 (1973).
67
Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L.
Ed. 2d 734 (1962) (emphasis omitted).
- 628 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
Although dismissal with prejudice pursuant to a court’s
inherent authority is a severe sanction which should be exer-
cised sparingly, 68 we cannot say on this record that it was
an abuse of discretion. The record in this case supports the
trial court’s determination that Millard Gutter deliberately dis-
obeyed the order to make more definite, stalled progression of
the case by waiting almost 17 months to advise the court of its
decision to stand on the original complaint, and failed to show
good cause for the resulting failure to prosecute. We find no
merit to any of Millard Gutter’s arguments that it was an abuse
of discretion to dismiss the case with prejudice.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
Affirmed.
68
See Ferson, supra note 65. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486090/ | Voyager, Inc., as owners of the fishing vessel VOYAGER, has filed a "Complaint for Exoneration from or Limitation of Liability," invoking the High Court’s admiralty jurisdiction "pursuant to ASCA 3.0208(a), TCRCP Supplemental Rules for Certain Admirably and Maritime Claims, Rule F, TCRCP 9(H) and 46 U.S.C. § 181 et seq." The complaint alludes to a suit filed in the Superior Court of California, County of San Diego, by a Byron J. Blocker and Catherine A. Blocker of San Diego, California, against Voyager, Inc., wherein Byron Blocker seeks damages for personal injuries sustained as the result of an explosion on board the VOYAGER, while his wife Catherine Blocker seeks damages for loss of consortium. Total damages prayed for by the Blockers is $17.5 million.
The complaint before us alleges that the vessel’s value does not exceed $3 million and that the vessel’s owner accordingly seeks to limit liability to the extent of the vessel’s value, under 46 U.S.C. § 181 etseq. and under "all other rules and statutes limiting a vessel owner’s liability." The vessel owner seeks from the court a "Notice to Claimants" pursuant to T.C.R.C.P., Supplemental Rules for Certain Admirably and Maritime Claims, Rule F(4). This application was previously made and denied.
*48Rule F(l) presupposes a limitation-of-liability action "pursuant to statute." (emphasis added). The rule also presupposes that the High Court can enjoin proceedings in other jurisdictions in order to consolidate any and all claims against a vessel in a limitation proceeding before the High Court of American Samoa. See Rule F(3). However, no territorial statutory remedy for limitation of liability exists, and the High Court of American Samoa has no jurisdiction to grant relief under the provisions of 46 U.S.C. §§ 181 et seq., because Congress restricted jurisdiction to the federal district courts. See 46 U.S.C. § 145; In re Complaint of Interocean Ships, 2 A.S.R.2d 76 (App. Div. 1985). As noted by the Appellate Division:
The Fono [through the enactment of A.S.C.A. § 3.0208(a)(3)--conferring admiralty jurisdiction on the High Court] cannot extend the jurisdiction of this court to encompass proceedings in other jurisdictions. Neither can this court accomplish that result through its procedural rules.
Interocean Ships, 2 A.S.R.2d at 80 (emphasis added).
Application for notice to claimants is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486091/ | Per Curiam:
Petitioner Faga S. Fuala'au, a candidate for the House of Representatives from District No. 11, has filed a petition, pursuant to A.S.C.A. §§ 6.0902-6.0903, contesting the results of the general election recently held on November 3, 1992. The respondents are Malepeai V. Setu, the chief election officer, and Saofaiga Maulupe, the candidate who topped the vote count from District No. 11 by a margin of one (1) vote over his closest rival, petitioner Fuala'au. Petitioner alleges, inter alia, that a certain elector (Vagi Vasai) had voted twice in the general election and that, therefore, it cannot be determined that Saofaiga Maulupe had polled a majority or plurality of the votes cast.
We find on the evidence that one Vagi Vasai, a qualified elector from District No. 11, did indeed vote twice. He first cast a ballot as an absentee voter but then presented himself at the polls and requested to vote in person. Mr. Vasai’s request was referred to the chief election officer, who decided to allow Mr. Vasai to vote in person but to have his absentee ballot removed from the absentee ballot box and not be counted. Although Mr. Vasai was allowed to vote in person, the removal of his returned absentee ballot was overlooked by the election office; this resulted in the counting of both of his ballots.
Since elector Vasai had, in effect, voted twice, one of his ballots cast is accordingly void. A.S.C.A. § 6.0903 provides that:
*50[t]he judgment [of this court] may invalidate . . . [an] election on the grounds that a correct result cannot be ascertained because of a mistake ... on the part of the district or election officials or because it cannot be determined that a certain candidate . . . received a majority or plurality of votes cast and were elected.
This provision has been interpreted to mean "that the election is to be invalidated only if the number of ineligible ballots cast is equal to or greater than the number of votes by which the leading candidate defeated his closest adversary." See Dole v. Attorney General, AP No. 24-78 (App. Div. 1978), slip op. at 8. Here, respondent Maulupe’s winning margin of one (1) ballot over his closest adversary, petitioner Fuala'au, is equal to the invalid second vote cast by elector Vagi Vasai. Therefore, it cannot be determined that respondent Saofaiga Maulupe had either polled a majority or plurality of the valid votes cast on election day.
Accordingly, it is Ordered, Adjudged and Decreed that the general election for the representative to the House of Representatives from District No. 11, held on November 3, 1992, is invalid and that another election be held in accordance with the requirements of A.S.C. A. § 6.0903(c).
It is further Ordered that the Clerk of Courts shall forthwith cause a certified copy hereof to be served upon the Governor in accordance with the requirements of A.S.C.A. § 6.0903(c). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486092/ | On Motion to Dismiss:
Appellees have filed a motion seeking an order to either dismiss the above-entitled matter or, in the alternative, "[to] direct[] the appellants to refile their cause of action and conform to the requirements for filing a Petition for Review." The appellees’ principal concern is that the matter has been styled an "appeal," although in actuality, it is a "petition for review" under A.S.C.A. § 41.0209. It is argued that the immigration board alone is, therefore, the only proper respondent. We agree. The board is the only proper respondent; the American Samoa Government, the Attorney General, and the Chief Immigration Officer *52are improperly named herein as appellees. See A.S.C.A. § 41.0209.1 However, as to whether the matter should be dismissed or that the appellants be required to refile their petition to correct the names of the appellees in the caption, we answer in the negative. A.S.C.A. § 43.0201(b) provides that "[n]o objection may be made to formal deficiencies in pleading." Further, H.C.R. 3 provides that "the [High Court] Rules are to be construed so as to be consistent with the [American Samoa] Code [Annotated] and to promote the just, efficient and economical administration and determination of every action and proceeding." Motion denied.
It is so ordered.
A.S.C.A. § 41.0209 reads:
A petition for review may be filed with the appellate division of the High Court not later than 15 days from the date of the final decision of the [immigration] board; the action shall be brought against the board as respondent. (Emphasis added). | 01-04-2023 | 11-18-2022 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.