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https://www.courtlistener.com/api/rest/v3/opinions/8486093/ | On Motion for Partial Summary Judgment:
Plaintiffs have filed a second motion for partial summary judgment against defendant Talaeai ("Talaeai") on the issue of liability in this wrongful-death action.
Plaintiffs’ first motion for a partial summary judgment on the issue of liability was denied on July 15, 1992, on the procedural ground that the action was subject to default-judgment proceedings rather than summary-judgment proceedings. On August 26, 1992, plaintiffs’ motion for reconsideration, new trial or hearing, or an amended judgment with respect to the court’s order of July 15, 1992, was denied. An amended order denying the motion for summary judgment was also issued to correct portions of the original order, without any substantive change in the result. Furthermore, the clerk’s entry of default was set aside, based on Talaeai’s appearance on July 31, 1992, and he was allowed to and did file an answer within two weeks. Thus, it has become appropriate to consider the substance of plaintiffs’ motion for partial summary judgment.
The motion is grounded on the legal consequence of Talaeai’s conviction by his plea of guilty to the felony of homicide by vehicle (A.S.C.A. § 22.0706). This criminal prosecution arose out of the same incident forming the factual basis of this civil action for damages. Talaeai’s plea of guilty is evidence that he was recklessly driving a motor vehicle and thereby proximately caused Filipo Amisone’s death. *54Plaintiffs argue that, as a result, no genuine issues as to material facts remain with regard to Taleai’s liability in this litigation.
In essence, plaintiffs’ argument seeks to apply the doctrine of res judicata or, more precisely, collateral estoppel. The peculiar circumstances of some related criminal and civil actions may occasionally justify employment of this doctrine. See, e.g., Teitelbaum Furs, Inc. v. Dominion Insurance Co., 375 P.2d 439 (Cal. 1962). However, it is not appropriate to utilize Talaeai’s plea of guilty as the sole means of determining his civil liability in this action.
Ordinarily, a plea of guilty in a previous criminal prosecution is admissible as evidence in a subsequent civil action under the hearsay exception for a party’s admissions. Teitelbaum Furs, 375 P.2d at 441; Remmenga v. Selk, 34 N.W.2d 757, 766 (Neb. 1948); Koch v. Elkins, 225 P.2d 457, 460 (Idaho 1950); Dimmick v. Follis, 111 N.E.2d 486, 488 (Ind. App. 1953); Fleming v. City of Seattle, 275 P.2d 904, 910 (Wash. 1954); Ryan v. Westgard, 530 P.2d 687, 695 (Wash. App. 1975).
The policy underlying collateral estoppel would not be truly served by making a plea of guilty conclusive in a civil action. Collateral estoppel seeks to limit litigation by preventing a party who has had a fair trial on an issue from raising it again in a later controversy. Teitelbaum Furs, 375 P.2d at 441. However, this policy must also take into account the policy that a party shall not be deprived of a fair adversarial proceeding and full opportunity to present his cause in a subsequent action. Id. A plea of guilty in a prior criminal action necessarily eliminates a full and contested presentation of evidence on the issues, and it may only indicate a compromise or an expectation of a more advantageous disposition of a criminal accusation. Id. Considerations of fairness in a later civil proceeding and due regard for expeditious administration of criminal justice prevent the application of collateral estoppel against a civil litigant, when founded solely on his plea of guilty to a criminal charge arising from the same set of facts. Id.
Plaintiffs’ motion is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486094/ | Order Denying Motion to Dismiss for Failure to State a Sum Certain:
The motion by third-party defendant American Samoa Government ("ASG") to dismiss the third-party complaint against it for lack of jurisdiction, due to the failure to state a sum certain in the administrative claim filed with ASG by third-party plaintiff Southwest Marine of Samoa, Inc. ("SWM Samoa"), came regularly for hearing on November 24, 1992. The underlying cause of action in this litigation is in tort for property and related damages.
Earlier and associated steps in this proceeding have included: (1) the court’s order entered on August 6, 1992, granting ASG’s motion to dismiss for lack of jurisdiction on the grounds of SWM Samoa’s failure to file an administrative claim with ASG as a jurisdictional prerequisite to filing suit; (2) the court’s order, entered on September 8, 1992, denying SWM Samoa’s motion to reconsider the court’s order of August 6, 1992; and (3) the court’s bench order on October 9, 1992, granting SWM Samoa’s motion for leave to file its second amended third-party complaint. The last order followed the requisite filing of an administrative claim with ASG by SWM Samoa on August 25, 1992, and ASG’s denial of the claim on September 15, 1992.
In support of the present motion, ASG has advocated a strict and literal reading of A.S.C.A. § 43.1203(c), as requiring in every instance a stated, specific sum certain in administrative claims filed against it. Actually, A.S.C.A. § 43.1203(c) only indirectly sets forth a sum-certain requirement by limiting, with exceptions not presently relevant, a subsequent lawsuit to the amount presented in the administrative claim. As SWM Samoa has pointed out, the actual sum-certain requirement is found in A.S.A.C. § 43.0103(a). This is an administrative rule, which was adopted under the general authority of A.S.C.A. § 4.1002 and pursuant to the rule making process in the Administrative Procedures *57Act, A.S.C.A. §§ 4.1001-4.1010, and thus has the force and effect of law. A.S.C.A. § 1.0201(3).
The sum-certain requirement is both statutorily and administratively an integral part of the jurisdictional administrative-claim process. SWM Samoa has correctly stated that the Attorney General’s decision on an administrative claim is final and conclusively binding on all ASG officers, except when procured by fraud. A.S.C.A. § 43.1206. However, the Attorney General’s action cannot result in a waiver or estoppel preventing ASG from raising a jurisdictional issue related to an administrative claim at any stage of future litigation. Fallon v. United States, 405 F. Supp. 1320, 1322 (D. Mont. 1976) (citing Powers v. United States, 390 F.2d 602 (9th Cir. 1968)); cf. Randall v. ASG, 19 A.S.R.2d 111, 120-21 n.l (Trial Div. 1991) (jurisdictionalrequirements, unlike a statute of limitations, are not subject to waiver and estoppel).
Nonetheless, we have concluded that SWM Samoa has complied with the sum-certain requirement under the circumstances involved in this action. SWM Samoa is seeking to draw ASG into this action by a third-party complaint on the theory that if it is liable for the plaintiffs’ damages; ASG, in turn, has some measure of responsibility for the damages as well. Plaintiffs have not seen fit, whether for strategic or other reasons, to bring suit directly against ASG, which is their decision to make. Plaintiffs have essentially left the amount of their damages to proof at trial and cannot be required by ASG to state those damages in a sum certain. SWM Samoa cannot presently access sufficient information to evaluate plaintiffs’ damages and accordingly is seeking reimbursement or contribution by ASG, in the event of its liability, in an amount not to exceed, the damages ultimately proven by plaintiffs.
We hold that SWM Samoa has asserted a sum sufficiently certain in amount to inform ASG of the claim it must defend. While this concept of the sum-certain requirement is broad, we hasten to add that this decision is limited to the special circumstances found in this action, specifically involving third-party practice against ASG when the third-party plaintiff cannot ascertain in a timely manner a precise dollar amount of a plaintiff’s damages for purposes of filing an administrative claim against ASG but restricts itself to the amount of the plaintiff’s damages proven at trial.
Motion denied. So ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486097/ | This is an action in tort for property damage resulting from a motor-vehicle accident. Trial took place on September 30, 1992.
FINDINGS OF FACT
This accident involved the collision of a commercial aiga, or "family," bus and a flatbed truck at about 10:30 a.m. on January 8, 1991. This accident occurred in the westbound lane of the main public road immediately adjacent to the JGL Lumber and Hardware ("JGL") store in Nu'uuli, American Samoa.
At the time of the accident, the bus was being driven by Uili Collins ("Collins") without the knowledge of the bus’ owner, Uili Fuia ("Fuia"). Fa‘aea Tapu ("Tapu"), the regular driver of this bus, had gone fishing the night before and allowed Collins to operate the bus in his place. The truck was owned by defendant Sawyer Sifoa Co. ("Sawyer Sifoa") and was operated by defendant Tumanu Tua ("Tua"), Sawyer Sifoa’s employee.
At the time of the accident, Sawyer Sifoa carried the truck’s liability insurance with defendant Insurance Company of the Pacific ("INSPAC"). The policy provided a property damage limit of $5,000 for each accident, with an excess liability endorsement up to an additional $100,000. This endorsement is subject, however, to all conditions of the underlying policy, which does not appear to have been submitted as a complete document at the trial.
1. The Accident
Seeking items to purchase for Sawyer Sifoa, Tua was operating the truck within the course and scope of his employment. In order to buy some lumber, he had parked the unloaded truck on the concrete parking area in front of and facing the JGL store. The concrete parking area slopes downward from the store to the road. Tua testified that he put the truck’s standard transmission into second gear and engaged- the parking brake.
As Tua entered the store, the bus started to move backwards, slowly gaining speed, towards the main road. Trying to regain control *72and stop the truck before it reached the main road, Tua rushed to the truck cab and tried to both start the engine and apply the brake. Nevertheless, the end of the flatbed struck the bus near the right-side door. The collision occurred approximately in the middle of the westbound lane of the road.
Clearly, Tua had failed to fully engage the truck’s transmission gear when he parked on the inclined parking area, and the transmission slipped into neutral as he entered the JGL store. Because the hand brake was not engaged or was overcome by the truck’s weight, the truck rolled backwards and into the oncoming bus. Since traffic on the main road was foreseeable, ordinary or reasonable care towards persons in or owning those vehicles required that the truck be properly parked. Thus, the collision was a natural and uninterrupted consequence of his failure to exercise proper care. Since Tua was acting in the course and scope of his employment, his negligence is imputed to Sawyer Sifoa.
As for the bus, Tua’s observations were fleeting at best. Apparently, he saw the bus traveling westbound, when it was still some distance away, but thought it was moving fast enough to get out of the truck’s way. Although several bus passengers and others probably observed the collision, we heard from only two other purported percipient witnesses.
Tapu, the regular driver, stated that he was seated in the left-rear corner of the bus. He testified that the bus was moving at about 20 miles per hour as it approached the JGL store area and that the driver continued straight into the truck’s path without looking at the truck or taking any evasive action. Since he turned over the bus to Collins several miles away at Fagatogo and after a night of fishing, we harbor doubts about his actual presence on the bus. However, his testimony was at least consistent with Tua’s observation on the lack of any attempts to elude the truck.
Duke Vienna was also just inside one of the front doors of the JGL store when the truck began to roll backwards. He saw the bus moving slowly into the area and thought that the bus could have been stopped in time. Instead, the driver accelerated in an unsuccessful attempt to avoid the accident.
Collins either was inattentive, if not oblivious, to the predicament of the truck or possessed poor judgment in accelerating to attempt to avoid the collision. A combination of both factors was *73probably involved in his failure to use ordinary or reasonable care. Because he was neither aware of nor properly reacted to the surrounding circumstances, the collision was also a natural and uninterrupted result of his careless driving.
Considering all the surrounding circumstances, the proportionate shares of the negligence attributable to Tua and Collins are determined to be 60% and 40%, respectively.
2. Damages
The measure of damages to personal property injured but not wholly destroyed is: (a) either: (1) the difference between the value of the property immediately before and after the injury, or (2) at the owner’s option when the property is economically repairable, the reasonable cost of repair, with due allowance for any difference between the original value and the value after repairs; and (b) loss of use. Restatement (Second) of Torts § 928 (1979). Fuia has elected to recover the reasonable cost of repair, without any claim of residual depreciation after repair, and defendants have not contended that this measure be adjusted because the cost of repair exceeded the decline in value caused by the accident.
The back of the flatbed truck struck the right side of the bus at or next to the rear side of the door, piercing the bus just above the passengers’ floor. Several witnesses, including Tapu (who may not have seen the damaged bus until later), INSPAC’s inspector, and Fuia and his principal repairman, testified in some detail to the extent of the bus’ damage. While the testimony differed, we are persuaded that in addition to the right siding and door, several side posts and passenger seats, the floor, and the roof sustained damage. Most importantly, one main beam was fractured. The repair estimate for materials, parts and labor, excluding painting, was $5,839.85. The actual cost, including painting, was $6,178.24. When considered in the light of the descriptions by Fuia and his repairman of the work done, it is apparent that the bus was substantially reconstructed. We are not satisfied that all of this work was necessary. Hence, although no evidence precisely identified nonessential repairs, we find that $4,633.68, the actual cost reduced by 25%, was the reasonable cost of repairing the damage to the bus resulting from the accident.
Loss of use is based on the value of that use or the amount paid for a substitute during the period when the owner is prevented from using *74the injured personal property. Restatement (Second) of Torts § 931 (1979). This time period is generally defined as the time reasonably required for repairing the property. Valencia v. Shell Oil Co., 147 P.2d 558, 560 (Cal. 1944). However, the owner’s duty to mitigate damages by undertaking repairs with due diligence may be moderated, and the period may be extended, if delays are encountered because necessary acts are unreasonable or impracticable. Id. at 561. In Valencia, the plaintiff owner lacked the financial ability to pay, and the defendant tortfeasor refused to pay, a repair bill for a truck used in the plaintiff’s business.
Repair of the bus actually began in early April 1992, and the bus was back in operation on June 18, 1992. The repairman testified that a reasonable time frame for the work done was approximately two months. Fuia contended that the delay in starting the repair resulted from his lack of sufficient funds to purchase all the materials and parts needed. He cited contemporaneous construction of an addition to his house, which competed with the repair work for funds and required piecemeal purchase of repair items for the bus.
Although we have found that more work was done on the bus than was necessary to repair the accident damage, we are satisfied that 60 days was a reasonable period for the repairs actually required. We do not, however, find that the delay from January to April 1991 in commencing the repair was due to Fuia’s inability to pay for the repair materials, parts and labor. Fuia was, and still is, employed as an accountant. He should and could have found the means to more promptly begin and complete the repair.
Both Fuia and Tapu testified that the daily, average gross income from the commercial operation of the bus, Monday through Saturday of each week, was $100. Clearly, the gross earnings varied almost every day, and Tapu also testified to variable averages for each weekly operational day. This testimony showed a lesser daily average closer to $87 per day. However, for purposes of assigning a value to Fuia’s loss of use of the bus, we find that $100 per operational day is a reasonable average. Gross bus earnings were divided between the owner and driver, the owner receiving 65 cents of every $1. The driver paid for gas out of his 35-cent share. Beginning on January 10, 1991, the day the repair estimate was given, and ending on March 10, 1991, there were 51 actual bus-operation days during this 60-day period. Thus, the reasonable value of Fuia’s loss of use was 65% of estimated gross revenues of $5,100, or $3,315.
*75Adding the reasonable cost of repair, $4,633.68, and the reasonable value of the loss of use, $3,315.00, we find that Fuia’s total damages were $7,948.68. Apportioning this sum according to the degree of fault found to be attributable to Tua (60%) and Collins (40%), we find that Fuia’s recoverable damages are $4,769.21.
CONCLUSIONS OF LAW
1. Tua negligently parked the truck on the occasion of this accident, and his negligence was a proximate cause of the damage to Fuia’s bus.
2. At the time of the accident, Tua was acting in the course and scope of his employment by Sawyer Sifoa, the owner of the truck. Tua’s negligence is properly imputed to Sawyer Sifoa to the full extent of his liability to Fuia, as the owner of the bus.
3. Collins negligently operated the bus, and his negligence was the other proximate cause of the damage.
4. Comparing the negligent conduct by Tua and Collins, assessment of responsibility at 60% for Tua and 40% for Collins is reasonable.
5. Fuia, as the owner of the bus, suffered damages in the amounts of $4,633.68 for the reasonable cost of repairing of the bus and $3,315.00 for the reasonable value of the lost use of the bus, for a total of $7,948.68.
6. Apportioning the damages on a 60%-40% basis between Tua and Collins, respectively, Tua and Sawyer Sifoa are jointly and severally liable to Fuia in the sum of $4,769.21.
7. Under the terms of the motor vehicle liability insurance policy issued to Sawyer Sifoa, INSPAC has the ultimate contractual responsibility for payment of Fuia’s property damages in the sum of $4,769.21.
Judgment shall enter accordingly. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486098/ | On Liability:
This action arose out of an explosion which occurred aboard the purse seiner Ocean Pearl on November 21, 1983. This explosion, which killed the captain of the vessel and injured six crew members, was caused when the crew attempted to "jump start" the stalled engine of the ship by using a combination of oxygen from cylinders supplied by the defendant Samoa Gases and an ether-based starter fluid. Several actions were filed in various jurisdictions by the injured crew members and the widow of the Ocean Pearl’s captain, naming plaintiff Interocean Ships, Inc. ("Interocean") as defendant. Interocean settled these claims and then brought actions against the companies which supplied the diesel fuel, the starter fluid, and the oxygen cylinders to the Ocean Pearl. All of these suits have been settled, save the one presently before the court. The court bifurcated this trial, postponing the determination of damages until a decision was reached regarding the liability of Samoa Gases.
Interocean asks us, for the first time, to apply the doctrine of strict products liability to a proceeding within admiralty jurisdiction. We accept Interocean’s invitation. Applying the principles of comparative fault (comparative negligence) to this strict products liability action, we *78hold Samoa Gases liable in proportion to the amount by which its fault furthered the accident.
FACTS
On November 16, 1983, the Ocean Pearl sailed from Pago Pago, American Samoa, on a fishing voyage. Two days later, while the vessel was on the high seas, the diesel propulsion engine of the Ocean Pearl stopped, due to tainted diesel fuel which was taken on while in Pago Pago. On November 21, 1983, after three days on the high seas unsuccessfully attempting to restart the engine, the decision was made to utilize a combination of ether-based starter spray and pure oxygen gas in an attempt to "jump start" the engine.
Purse seiners normally carry cylinders of oxygen and acetylene for use in routine welding and splicing jobs which occasionally arise during their fishing trips. Samoa Gases had supplied the Ocean Pearl with the oxygen cylinders for this purpose. These cylinders were stored on the Ocean Pearl’s "wet deck," a sub-deck which, as its name implies, is exposed to harsh, wet conditions.
The cylinders were brought into the engine room, and their valves were opened so that their contents would discharge into the air filter of the engine. At the same time, the starter fluid was sprayed into the air filter. The first attempt met with small encouragement, so a third cylinder of oxygen was placed next to the original two, and another attempt was made. This resulted in a low-order explosion, which severely burned the captain and six crew members and damaged the engine room and the engine itself. The captain subsequently died of his injuries.
Interocean, the owner of the Ocean Pearl, is seeking indemnification from Samoa Gases, under the theory that the latter is liable for failure to provide a warning label on its oxygen cylinders.
DISCUSSION
. I. Justifications for Strict Products Liability in Tort
"The purpose of [strict products liability in tort] is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." Greenman v. *79Yuba Power Products, Inc. 377 P.2d 897, 901 (Cal. 1962). The seminal Yuba Power Products case laid the foundation for the application of strict products liability in tort, as opposed to similar actions based upon negligence or breach of warranty. Allowing such an action directly, in tort, obviated the need for plaintiffs to meet the cumbersome and difficult requirements imposed by these latter theories of recovery, such as proof of specific acts of negligence or privity with the defendant. See, e.g., Schuldies v. Service Machine Co., 448 F. Supp. 1196 (E.D. Wis. 1978); see generally, Annotation, Products Liability-Strict Liability, 13 A.L.R.3d 1057, at § 2 (1967).
The main theoretical justifications for strict products liability are that: (1) the seller or manufacturer is in a position to spread the cost of accidents evenly among the purchasers of the products; (2) the burden of liability will provide incentives for the production of safer goods; and (3) the marketer of a product has made an implied representation that the product, when put to its intended use, will not be unreasonably dangerous and will be at least as safe as other, comparable products. See W. Prosser & P. Keeton, The Law of Torts § 98, at 693-94 (5th ed. 1984); McKay v. Rockwell International Corp., 704 F.2d 444, 451 (9th Cir. 1983). Such considerations motivated the American Law Institute to draft the Restatement (Second) of Torts § 402A (1965), which sets forth the elements of strict products liability.
It is generally said that strict liability looks at the product itself and determines if it is defective, whereas negligence looks at the act of the manufacturer and determines if it exercised ordinary care. See, e.g., Syrie v. Kroll International, 748 F.2d 304 (5th Cir. 1984). This distinction, however, is not so clear in failure-to-wam cases, as will be discussed below.
II. Application of Strict Products Liability in Admiralty
It is well settled that an action for recovery under a theory of strict products liability may be entertained by a court sitting in admiralty jurisdiction. The Supreme Court has stated that it "join[s] the Courts of Appeals in recognizing products liability, including strict liability, as part of the general maritime law." East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 865 (1986). The vast majority of circuit courts considering the question of strict products liability in admiralty have applied § 402A in their analyses. See Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129 (9th Cir. 1977); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. *801972); Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121 (3d Cir. 1984); Vickers v. Chiles Drilling Co., 822 F.2d 535 (5th Cir. 1987); McKee v. Brunswick Corp., 354 F.2d 577 (7th Cir. 1965). Indeed, the Ninth Circuit has called § 402A "the best and most widely-accepted expression of the theory of strict products liability." Pan-Alaska, 565 F.2d at 1135.
We agree with the reasoning of these courts and accept § 402A as the rule for strict products liability in our admiralty jurisdiction. Indeed, the need for consistency within the law of admiralty virtually demands this decision. The issue of the applicability of § 402A to a non-admiralty action is not presently before the court, and we do not consider it at this time.
III. Application of Comparative Fault in Admiralty
Comparative fault (also termed comparative negligence), long recognized in admiralty in actions for unseaworthiness (see Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953)), under the Jones Act (46 U.S.C. § 688), the Death on the High Seas Act ("DOHSA") (46 U.S.C. § 761, 766), and the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. §§ 901 et seq.; see Lewis v. Timco, Inc., 716 F.2d 1425, 1428 (5th Cir. 1983) (en banc)), has been applied also to strict products liability actions under maritime law. See Pan-Alaska Fisheries, 565 F.2d at 1138; Lewis, 716 F.2d at 1428; National Marine Service, Inc. v. Petroleum Service Corp., 736 F.2d 272, 277 (5th Cir. 1984). "The admiralty rule in personal injury cases is, in effect, one of comparative negligence." Lewis, 716 F.2d at 1428 (quoting G. Gilmore & C. Black, The Law of Admiralty 500 n.70 (2d ed. 1975)).
Lewis put forward several arguments for the incorporation of comparative fault into admiralty. They are important enough to cite at length. First, the court noted, DOHSA explicitly instructs courts to apply comparative fault. Failure to apply the same to strict products liability actions could create a situation in which
when a worker’s death on the high seas was caused by a defective product, the recovery would be reduced on account of the worker’s negligence, but not when he was only injured. Moreover, because DOHSA applies to accidents occurring beyond a marine league from shore plaintiffs would be treated differently depending upon where a fatal accident occurred.
*81Lewis, 716 F.2d at 1428.
Second, the court pointed out that
[w]hen a negligent plaintiff, negligent defendants, and the manufacturer of a defective product are all held jointly responsible for injuries, plaintiffs negligence would diminish his potential recovery from the negligent defendants but not from the manufacturer. If the liability was joint and several, plaintiff could recover the entire amount of his damages from the manufacturer. From the plaintiffs perspective, assuming the solvency of the manufacturer, it is as if there were no doctrine of comparative fault with respect to the negligent defendants as well. From the manufacturer’s perspective, contribution might be available, but somebody would bear more than his share of the damages. In other words, erosion of the comparative fault principle, once started in the products liability field, will cut at the legs of negligence as well.
Id.
Finally,
[t]he traditional doctrine of seaworthiness will also likely be affected. If a vessel is unseaworthy because a product was defective, we will be forced to decide whether to hold the manufacturer of the product to a stricter standard of liability than the vessel owner, traditionally a near insurer in cases of unseaworthy vessels. Even more taxing will be the categorization process as seamen attempt to escape the comparative fault of the traditional theory of unseaworthiness and label their case products cases. Ultimately, there would be the inquiry of whether a vessel is not itself a product. . . . [S]hould we reject comparative fault, many maritime torts of our circuit will become product cases with the companion problem that the courts of this circuit would be favored over more convenient courts by seamen with a choice of forum.
Id. at 1429.
*82While the applicability of such federal legislation as the Jones Act or DOHSA has not yet come before this court, our failure to apply comparative fault to admiralty actions within this jurisdiction would erode the "cardinal mark" of maritime law, universality. See id. at 1428.
There is no consensus outside of admiralty on the application of comparative fault to strict products-liability actions. The most frequently mentioned objection of courts which oppose the incorporation of comparative fault is "that it would be inappropriate to inject negligence concepts into an area of liability which is based, not on negligence principles, but on a no-fault concept. ..." Annotation, Applicability of Comparative Negligence Doctrine to Actions Based on Strict Liability in Tort, 9 A.L.R.4th 633, 636, at § 2 (1981). This objection, however, seems particularly inappropriate infailure-to-warn actions, as courts have generally recognized that the difference between such cases and negligence cases is more apparent than real.
In addition, the Legislature of American Samoa has directed that we apply comparative fault to actions for personal injury or property damage. A.S.C.A. § 43.5101. Thus, we do not contravene the will of the Legislature by incorporating this principle into admiralty.
The rule of comparative fault can be stated quite simply: "[T]he defendant is strictly liable for the harm caused from his defective product, except that the award of damages shall be reduced in proportion to the plaintiff’s contribution to his own loss or injury." Pan-Alaska Fisheries, 565 F.2d at 1139.
IV. Restatement (Second) of Torts § 402A
Restatement (Second) of Torts § 402A describes the elements of a successful strict products-liability action. It reads:
1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
a) the seller is engaged in the business of selling such a product, and
*83b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
2) The rule stated in Subsection (1) applies although
a) the seller has exercised all possible care in the preparation and sale of his product, and
b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Application of § 402A, then, is predicated on several distinct determinations of both fact and law. In the instant case, it must be shown that: (1) Samoa Gases was engaged in the business of selling oxygen tanks (this is not in dispute); (2) the oxygen tanks reached the users (here, the crew of the Ocean Pearl) without substantial change in the condition in which they were sold; and (3) the oxygen tanks were in a defective condition, i.e., were unreasonably dangerous to the crew of the Ocean Pearl.
A. No substantial change in condition sold
§ 402A comment g reads, in part:
The rule stated in this Section applies only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.
*84Safe condition at the time of delivery by the seller will, however, include proper packaging . . . and other precautions required to permit the product to remain safe for a normal length of time when handled in a normal manner.
Interocean, therefore, bears the burden of proof by a preponderance of the evidence that the cylinders were unlabelled when they left the control of Samoa Gases. See Restatement (Second) of Torts § 402A comment g (1965); Molett v. Penrod Drilling Co., 826 F.2d 1419, 1424 (5th Cir. 1987). This fact, "like all others, may be established by either direct or circumstantial evidence. . . . Identification of a specific defect is often impossible, and the plaintiff need create only a reasonable inference that the defective condition of the product was present at the time of manufacture." Molett, 826 F.2d at 1424. Interocean’s witness Robert Parkerson stated that he brought oxygen bottles on board the Ocean Pearl and that these bottles had no warning labels. Deposition of Robert Parkerson at 30. This was the only direct evidence put forward by Interocean to prove that the tanks were not labelled when they left the control of Samoa Gases. Samoa Gases offered no direct evidence on the matter. We find that Interocean has met its burden of proof in this issue and that Samoa Gases failed to deliver properly-labelled oxygen cylinders to the Ocean Pearl.
However, even if it were shown that warning labels were affixed to the cylinders when they left Samoa Gases’ hands, Interocean’s case might still survive. The general rule is that subsequent changes in the condition of the product (here, the possible wearing away of the labels while they were being stored on the "wet deck") do not relieve the seller or manufacturer of strict liability if the changes were foreseeable and did not unforeseeably render the product unsafe. Vanskike v. ACF Industries, Inc., 665 F.2d 188, 195 (8th Cir. 1981), cert. denied sub nom. St. Louis-San Francisco Railway Co. v. Vanskike, 455 U.S. 1000 (1982) (citing Hales v. Green Colonial, Inc., 490 F.2d 1015, 1020 (8th Cir. 1974)). Put another way:
To constitute a defect it is not necessary that the ultimate "defect" as it appeared and developed shortly prior to the accidental occurrence existed in that form at the time possession was surrendered. . . . The rule is that if the manufacturer or assembler surrenders possession and control of a product in which change will occur, or in which the change can be anticipated *85to occur so as to cause a product failure, the existence of a defect at the vital time is established.
Whitehead v. St. Joe Lead Co., 729 F.2d 238, 250 (3d Cir. 1984) (citing Sharp v. Chrysler Corp., 432 S.W.2d 131, 136 (Tex. Civ. App. 1968)). See also Saupitty v. Yazoo Mfg. Co., 726 F.2d 657, 659 (10th Cir. 1984); Scott v. White Trucks, 699 F.2d 714, 716 (5th Cir. 1983); C&S Fuel, Inc. v. Clark Equipment Co., 552 F. Supp. 340, 345 (E.D. Ky. 1982).
While this issue of foreseeability of change has not been raised by courts sitting in admiralty, the United States Supreme Court has noted that "[d]rawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." East River S.S., 476 U.S. at 864-65. Indeed, " [i]n maritime tort cases courts traditionally apply principles of maritime law, as informed by common law tort developments . . . unless a policy determination has been made by the Congress." Lewis, 716 F.2d at 1427 (citations omitted). Thus, even if we are incorrect in finding the lack of labels at the time of delivery, it is not a fatal error. Interocean’s witness Robert Parkerson testified by deposition that he examined the oxygen cylinders immediately prior to the accident and found no warning labels. Deposition of Robert Parkerson at 28-29. Furthermore, Interocean’s exhibits, which included photographs taken on board the Ocean Pearl, establish that there were no labels on the tanks after the explosion. Interocean’s witnesses asserted that it was unlikely that any labels would have been burned away by the explosion. Thus, we further find that the oxygen tanks were unlabelled directly prior to their use before the explosion. The foreseeability of their condition reinforces our finding that Samoa Gases breached its duty to provide a sufficient warning to the crew of the Ocean Pearl.
B. Defective Condition/Unreasonably Dangerous
There is little or no difference between "defective condition" and "unreasonably dangerous" as applied under § 402A. Several courts and, indeed, the Restatement (Second) of Torts itself, consider these two terms synonymous; a finding of one will preclude the necessity of finding the other. Pavlides v. Galveston Yacht Basin 727 F.2d 330, 338 n.13 (5th Cir. 1984) (adopting the position of § 402A in considering "defective condition" as synonymous with "unreasonably dangerous"); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1087 n.20 (5th Cir. 1973) (same), cert. denied 419 U.S. 869 (1974).
*86But regardless of the label applied, the finding is a prerequisite to Samoa Gases’ liability. In actions based upon failure to warn, however, the term "strict liability" may be inappropriate, for in these cases, the "threshold question [is] whether a duty to warn exists." Hull v. Eaton Corp., 825 F.2d 448, 454 (D.C. Cir. 1987). This is, in essence, a negligence inquiry. The First Circuit has said:
[S]ince the duty to warn under both theories is a function of, chiefly, what the manufacturer knows or should know about the danger necessitating the warning, the two theories often seem similar. In fact, other courts have concluded that the strict liability duty to warn is so largely informed by negligence principles as to be essentially identical to the negligence duty.
Kotler v. American Tobacco Co., 926 F.2d 1217, 1231 (1st Cir. 1990). Accord Hull, at 454; Gonzalez v. Volvo of America Corp., 752 F.2d 295, 300 (7th Cir. 1985); Birchfield v. International Harvester Co., 726 F.2d 1131, 1139 (6th Cir. 1984); Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 466 (7th Cir. 1984); Werner v. Upjohn Co., 628 F.2d 848, 858 (4th Cir. 1980).
The D.C. Circuit put it thusly:
[S]trict liability in tort imposes liability for unreasonably dangerous products regardless of the fault of the defendant. If a product is dangerous only because it has not been labelled properly, however, the fault of the defendant is relevant to the question whether the labeling is adequate. Such a product is unreasonably dangerous only if it was reasonably foreseeable that the product, as labelled, would cause injuries.
Young v. Up-Right Scaffolds, Inc., 637 F.2d 810, 814 (D.C. Cir. 1980) (emphasis in original).
And Prosser states:
[Notwithstanding what a few courts have said, a claimant who seeks recovery on [a theory of failure to warn] must, according to the generally accepted view, prove that the manufacturer-designer was negligent. *87There will be no liability without a showing that the defendant designer knew or should have known in the exercise of ordinary care of the risk or hazard about which he failed to warn. . . . Although this ground of recovery is sometimes referred to as strict liability, it is really nothing more than a ground of negligence liability described as the sale of a product in a defective condition, subject, however, only to the defenses and other limitations on liability applicable to strict liability rather than negligence.
W. Prosser & P. Keeton, The Law of Torts § 99, at 697 (5th ed. 1984).
Section 402A comment j itself suggests the application of a negligence standard to failure to warn cases. It reads, in part:
In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. . . . Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger (emphasis added).1
The Seventh Circuit noted that " [tjhis similarity [between negligence and strict liability in failure to warn cases] exists because the language and concepts of reasonableness which determine unreasonable risk under Section 402 A are the same concepts used in a negligence case." Gonzalez, 752 F.2d at 300.
*88Some courts have refused to apply an identical standard to negligence and strict-liability actions. They tend to hold the seller or manufacturer to a higher duty of care in a strict products liability action than in a negligence action; this should not, however, distract from the fact that they, too, speak in the negligence language of standard of care. See, e.g., Pavlides, 727 F.2d at 338 (manufacturer is to be held to standard of an expert); Borel, 493 F.2d at 1088 (same); Anderson v. Owens-Illinois, Inc., 799 F.2d 1, 4 (1st Cir. 1986) (same).2
It should be noted, however, that for the issue at hand, the standard of knowledge to which Samoa Gases is held is of little or no consequence.3 The danger of oxygen’s volatility when combined with *89petroleum products and/or open flame or sparks is not so esoteric that an expert should be aware of it while a "mere merchant" could remain safely ignorant. The danger should be apparent to anyone in the field of selling compressed gases, expert or not.4 It is clear that such a seller has a duty to warn of the inherent dangers of its products. However, this duty is not static and independent of its audience. Rather, it is influenced by those towards whom it is owed.
*90In judging the effectiveness of a warning, most courts, interpreting Restatement (Second) of Torts § 402A comment i or § 388 comment k,5 have held that it is necessary to take into account the parties towards whom the warning is directed. "Where, for example, a product is marketed solely to professionals experienced in using the product, the manufacturer may rely on the knowledge which a reasonable professional would apply in using the product." Bor el, 493 F.2d at 1087 n.20.
It is relatively clear that, in some instances, the expertise of the consumer may be sufficient to completely obviate the need for a warning. There are several cases sufficient to support the statement that the manufacturer’s or seller’s duty to warn is unnecessary when the consumer is an expert who has or should have knowledge of the dangers of the product. See, e.g., Jacobson v. Colorado Fuel and Iron Corp., 409 F.2d 1263, 1271 (9th Cir. 1969) (applying Montana law); Martinez v. Dixie Carriers, 529 F.2d 457, 466 (5th Cir. 1976) (in admiralty); In re Incident Aboard D/B Ocean King on 8/30/80, 813 F.2d 679, 686 (5th Cir. 1987) (in admiralty); Helene Curtis Industries v. Pruitt, 385 F.2d 841, 860 (5th Cir. 1967) (applying Texas law); White v. Amoco Oil Co., 835 F.2d 1113, 1118 (5th Cir. 1988) (applying Louisiana law); Koonce v. Quaker Safety Products & Mfg., 798 F.2d 700, 716 (5th Cir. 1986) (applying Texas law); Strong v. E.I. DuPont de Nemours Co., 667 F.2d *91682, 686 (8th Cir. 1981) (applying Nebraska law); Andrulonis v. United States, 924 F.2d 1210, 1222 (2d Cir. 1991) (applying New York law).
In addition, courts have held that a manufacturer need not warn of an "open and obvious danger" associated with their products. "A manufacturer is under no duty to guard against injury from a patent peril or from a source that is manifestly dangerous. There is no duty to warn of obvious common dangers connected with the use of a product." Pressley v. Sears-Robuck and Co., 738 F.2d 1222, 1223 (11th Cir. 1984) (applying Georgia law). "[A] product is not defective if the peril from which injury could result is patent or obvious to the user." Wilson v. Bicycle South, Inc., 915 F.2d 1503, 1507 (11th Cir. 1990) (applying Georgia law). This rule, however, has been explicitly rejected by other courts. See, e.g., Lovell v. Marion Power Shovel Co., 909 F.2d 1088, 1090 (7th Cir. 1990) (under Indiana law, "open and obvious" rule does not act as an absolute bar to recovery); Harris v. Karri-On Campers, Inc., 640 F.2d 65, 76 (7th Cir. 1981) (West Virginia law rejects the "seldom used and often criticized" obvious-danger doctrine). The "open and obvious" doctrine seems to be nothing more than a variant of the "expert user" defense with a lower standard of knowledge on the user’s part. See, e.g., Gracyalny, at 1319 (status of the user determines whether the danger is "open and obvious").
Application of either the "open and obvious" or the "expert user” doctrines, however, should be made cautiously, for they fully preclude recovery by the injured party and resemble the application of the "all-or-nothing" defenses of assumption of risk and contributory negligence, which have been definitively rejected by courts sitting in admiralty. See, e.g., National Marine Service, 736 F.2d at 276 ("all-or-nothing" defenses, including assumption of risk and contributory negligence are inequitable in their operation because they fail to distribute responsibility in proportion to fault; comparative fault should be applied instead). In fact, the "expert user" defense can be viewed as more draconian than assumption of risk. Unlike the latter defense which requires the plaintiff’s actual consciousness of the danger, id. at 216, the "expert user" defense merely requires that "manufacturers need not warn sophisticated users of dangers that they should know of," White v. Amoco Oil Co., 835 F.2d 1113, 1118 (5th Cir. 1988) (emphasis added), a much less demanding showing. But see In re Incident Aboard D/B Ocean King, 813 F.2d at 686 (sophisticated-user defense applies "only when the user knew of the particular danger"). Indeed, inquiry into what a plaintiff should know would unavoidably devolve into a contributory negligence analysis. This latter doctrine has been specifically rejected as *92a defense to strict products liability actions. See § 402A comment n ("Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.").6 But see Up-Right Scaffolds, 637 F.2dat 815 (contributory negligence, assumption of risk and misuse are not always interchangeable). Contributory negligence as a bar to recovery has also been explicitly rejected by the Legislature of American Samoa. A.S.C.A. § 43.5101.
Under the comparative-fault approach, which we adopt today, the knowledge of the user is not disregarded. It is, rather, one element in the calculus of liability determination. This approach eliminates the inequities which "all-or-nothing" defenses can perpetuate but does not reject the rationale behind these rules. Indeed, if the court were to find the user of a product to be inexcusably ignorant, the result under comparative fault might be the same as that resulting from the "expert user" or "open and obvious" danger defenses.
While Samoa Gases attempted at trial to establish that it did, in fact, label the cylinders supplied to the Ocean Pearl, its trial brief focused on the defense of misuse, the successful establishment of which precludes a finding of duty.7 This will be considered further below.
One additional consideration in the instant case is the ease and minimal costs involved in labelling the cylinders. Although it discussed defective design rather than failure to warn, Vickers, 822 F.2d 535, seems relevant. The plaintiff in Vickers was a seaman who was attaching a large air-compressor to a crane, in the process of removing it from a ship. He climbed onto the roof of the air compressor, attached the hook of the crane to the lifting-eye of the compressor, then fell while jumping back down to the deck of the ship. In his suit against the manufacturer of the air compressor, the court, sitting in admiralty, found the *93compressor to be defectively designed, solely because it did not bear any notice of its internal access to the lifting eye. ”[T]o decide whether a product is defectively designed and unreasonably dangerous, we may consider how easily the manufacturer could have designed a safer alternative product. . . . [The manufacturer] easily could have attached a notice to the compressor, explaining the availability of the interior access to the roof." Id. at 539. This balancing of ease and cost of improvement is relevant here, for in failure to warn actions, as in Vickers, it is the failure to communicate information about the product which is the essence of the tort.
V. Misuse
A seller obviously cannot warn of every possible use. "A product is not in a defective condition when it is safe for normal handling and consumption." § 402A comment h. "[I]n admiralty cases, the ’normal’ use includes all reasonably foreseeable uses, including misuse. This is the virtually universal rule in all states." Vickers, 822 F.2d at 537. The Ninth Circuit, applying California law, said, "A plaintiff may recover from the manufacturer even if the product is used in a manner not intended by the manufacturer, and therefore unanticipated by warnings or other instructions, if the unintended manner of use is reasonably foreseeable to the manufacturer." Kay v. Cessna Aircraft, 548 F.2d 1370, 1372 (9th Cir. 1977) (citations omitted) (emphasis in original).8
Misuse, like assumption of risk, is a negligence concept. Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740, 752 (D. Kan. 1978). Therefore, like assumption of risk and contributory negligence, it should properly be subsumed under the doctrine of comparative fault. Although the court has not found any admiralty decision which specifically held that misuse was to be supplanted by or factored into the comparative-fault calculus, several courts not sitting in admiralty have suggested as much. See, e.g., Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F. Supp. 598, 603 (D. Idaho 1976) ("rationale of comparative negligence was meant to apply as well in a products liability action, such that misuse may not be an absolute bar to recovery"); DeLeon v. Commercial Mfg. and Supply Co., 195 Cal. Rptr. 867, 872 *94(Cal. App. 1983) ("[E]ven if plaintiff’s acts could be considered misuse of the product and contributory negligence, this would not foreclose an action in products liability but only reduces any award she might receive in an amount proportionate to the degree she is deemed to be at fault."). Cf. Courturier v. Heidelberger Druckmaschinen, 341 N.W.2d 226, 228 (Mich. App. 1983) (misuse not a complete defense to breach of warranty action). See generally, Annotation, Products Liability: Product Misuse Defense, 65 A.L.R.4th 263 (1988).
The reasoning of these last cases seems confused, however. If misuse is to be defined as unforeseeable use only, then rejecting it as a complete defense to liability removes the foreseeability issue from failure-to-wam cases and transforms them into actions based upon absolute liability. This would require the manufacturer or seller to warn of dangers of which it did not, and could not, know.9 This conundrum is the result of semantics. In order for the label "misuse" to have any meaning at all independent of contributory negligence, the application of that label to a plaintiff’s conduct must always serve as a complete bar to recovery.10 The alternative is to impose absolute liability upon manufacturers and sellers for their products. This is not only contrary to the case law cited above in section IV.B., but would also make manufacturers absolute insurers of their products if used in an unforeseeable manner, and would ultimately result in wasted time as litigants argued over the proper label to apply to a plaintiff’s conduct.
The better method, and the one which we adopt today, is to do away with labels altogether and simply weigh the fault of Samoa Gases directly against that of all other causal parties. This is essentially the approach advocated by the Ninth Circuit for admiralty cases in its jurisdiction. " [A]ll of plaintiff’s conduct contributing to the cause of his loss or injury can be compared to the defendants’ liability, regardless of the labels attached to that conduct." Pan-Alaska Fisheries, 565 F.2d at *951139. This seems to be the most consonant with the paradigm of comparative fault. If the conduct of the Ocean Pearl’s crew was completely unforeseeable (i.e., constituted misuse), then the scales would fall completely in favor of Samoa Gases, and there would be no liability and no recovery. This approach has been taken by at least two states. See Kennedy v. City of Sawyer, 618 P.2d 788, 798 (Kan. 1980); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 428 (Tex. 1984).
However, it is still necessary to address the real issue which the misuse defense targets. Translated into the language of comparative fault, this question is: Even if the standard label warning of the hazards of exposing oxygen to petroleum products was present, would it have prevented the accident at hand? The principles of comparative fault again help frame this issue, through the concept of proximate cause.
VI. Proximate Cause
Proximate cause, like misuse, contributory negligence and assumption of risk, has been melded with the concept of comparative fault. Indeed, the Ninth Circuit has stated that "perhaps the term ’comparative causation’ is a conceptually more precise term than ’comparative fault,’ since fault alone without causation does not subject one to liability." Pan-Alaska Fisheries, 565 F.2d at 1139 (citing Sun Valley Airlines, 411 F. Supp. at 603). See also Duncan, 665 S.W.2d at 427 (comparative causation more accurate than comparative fault); Lewis, 716 F.2d at 1431 (same); Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42, 47 (Alaska 1976) (Rabinowitz, J., concurring) (same); Daly v. General Motors Corp., 144 Cal. Rptr. 380, 386 (1978) ("equitable apportionment or allocation of loss" more descriptive than "comparative fault"). In short, once the legal fault of Samoa Gases is established, then its actions are to be weighed against all other causal factors, and liability is to be assigned upon this basis. Thus, having found Samoa Gases at fault for failure to label, we need only to decide, for the purposes of the first part of this bifurcated trial, whether the failure to label the cylinders played any causal role in the accident. Interocean alleges that Richard Gonsalves, chief engineer of the Ocean Pearl, read the label on the can of starter fluid, and would have done the same for the oxygen cylinders. We are inclined to agree. Thus, the failure to label was, at least, a proximate cause of the accident, to be weighed against the conduct of the other causal actors (i.e., the crew of the Ocean Pearl, the suppliers of the diesel fuel and the ether-based starter fluid).
*96CONCLUSIONS
Having enunciated the approach we have taken in this case, and based on the foregoing findings of fact, we conclude as follows:
1. Since (a) the oxygen cylinders supplied by Samoa Gases to the Ocean Pearl did not have a warning label adhered to them (i) at the time of delivery, or (ii) immediately prior to the explosion, a reasonably foreseeable condition at that time, and (b) the unlabelled cylinders were unreasonably dangerous, and (c) the lack of labels was a proximate cause of the accident aboard the vessel, Samoa Gases is liable to Interocean.
2. Since some of the crew of the Ocean Pearl were experienced in the use of oxygen, at least for welding purposes, and should have known of the danger of using it in the circumstances which brought about the explosion, the crew and, therefore, Interocean also bear some significant quantum of responsibility for the accident.
Determination of the exact percentages of fault to be assigned to each party will be made after the second part of this bifurcated trial, which will specifically address the issue of damages. The causal role of the suppliers of the diesel fuel and the starter fluid will be considered at that time.
The illustrative example of allergies in comment j probably reflects the fact that strict products liability originated to protect consumers from impure food and drink. See Restatement (Second) of Torts § 402A comment b.
Although Anderson did state that the manufacturer or seller was to be charged with expert knowledge in products liability cases based upon failure to warn, as opposed to mere trade knowledge, that same court later stated that Anderson stood for the proposition that "since even expert knowledge does not rise to the level of perfectly developed knowledge, a showing must still be made that the state of knowledge supports the conclusion that a certain risk is knowable-or what the law calls ‘reasonably foreseeable.”' Kotler, 926 F.2d at 1232.
Perhaps the main import of equating the strict liability duty with the negligence duty is that it makes analysis under either standard equivalent. E.g., Gracyalny v. Westinghouse Electric Corp., 723 F.2d 1311, 1317 n.ll (7th Cir. 1983) (impliedly incorporating § 388 of the Restatement (Second) of Torts and its duty of care into § 402A analysis, and vice versa); Russel v. GAF Corp., 422 A.2d 989, 992 (D.C. App. 1980)(same). The Restatement (Second) of Torts § 388 reads:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
*89(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
However, it is important to keep in mind that substantial differences between common-law negligence and strict products liability do exist outside of the area of standard of care.
There was some mention at trial that the label proffered by Samoa Gases as being of the type that was affixed to the cylinders was in compliance with Occupational Safety and Health Administration ("OSHA") and Compressed Gas Association standards. However, "The Occupational Safety and Health Act, which provides the legislative grant of authority to OSHA, specifically states that it is not intended to affect the civil standard of liability. ... To use OSHA regulations to establish whether a product is unreasonably dangerous is thus improper." Minichello v. U.S. Industries, Inc., 756 F.2d 26, 29 (6th Cir. 1985). But cf. Rexrode v. American Laundry Press Co., 674 F.2d 826, 832 (10th Cir. 1982)(assuming the relevance of OSHA standards in context of feasibility of safer product design); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1144 (5th Cir. 1985)(taking judicial notice of pertinent OSHA guidelines); Lorenz v. Celotex Corp., 896 F.2d 148, 151 (5th Cir. 1990)(compliance with government safety standards constitutes strong and substantial evidence that a product is not defective, but is not automatically preclusive of the issue of liability). We disagree with the reasoning of Minichello and instead adopt the approach of these other courts. We therefore find the violations of OSHA and Compressed Gas Association standards relevant as to the level of knowledge to which a dealer of such gases should be held.
Section 402A comment i states that, for a product to be unreasonably dangerous, it must be "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."
Section 388 comment k states:
One who supplies a chattel to others to use for any purpose is under a duty to exercise reasonable care to inform them of its dangerous character in so far as it is known to him . . . but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved.
See supra note 3.
Section 402A comment n does specifically accept the defense of assumption of risk; however, this defense has been thoroughly rejected by courts sitting in admiralty. See, e.g., Pan-Alaska Fisheries, 565 F.2d 1129 (rejecting defense of contributory negligence in favor of comparative fault paradigm in strict products-liability actions in admiralty).
See Jones v. Menard, 559 F.2d 1282, 1285 (5th Cir. 1977) (seller has no duty to warn against unforeseeable uses of its products).
This is consistent with the idea that foreseeable change in the condition of the product will not relieve the seller of liability. See, supra, Section IV.A.
"[I]f a danger is unknowable, how can effective warning be given? To warn that a product may have unknown and unknowable risks is to give no meaningful warning at all." Anderson, 799 F.2d at 4.
Some jurisdictions not applying comparative fault principles have defined misuse in terms of foreseeability, such that it would serve as a complete bar to recovery. See Annotation, Products Liability: Product Misuse Defense, 65 A.L.R.4th 263, 295, at § 8 (1988), and cases cited therein. We reject this approach as incompatible with comparative fault. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486100/ | Order Denying Summary Judgment:
This matter came before the court on defendant’s motion for summary judgment. After hearing oral argument on this motion, the court ordered counsel for the parties to submit further memoranda of points and authorities for their respective positions. Having duly considered same, and upon reflection of the entire record (but not the *101documents and affidavit appended to the plaintiffs Supplemental Memorandum in Opposition to Motion for Summary Judgment, per the court’s prior Order Denying the Admission of Supplementary Documents), the court hereby denies the defendant’s motion.
In these matters, we must assume the truth of the evidence presented by the non-moving party and draw therefrom inferences most favorable to the non-moving party. Lokan v. Lokan, 6 A.S.R.2d 44 (1987). It appears that the plaintiff is asserting that the actual agreement between itself and the defendant is not truly represented by the insurance policy and interlineated language contained therein, and that the actual terms of the policy were established orally and by exchange of informal writings between the parties. In other words, the contention appears to be that the contract, as written, is the product of mutual mistake. See Defendant’s Answers to Interrogatories at 4, lines 24-25 (filed Sept. 3, 1992). The defendant naturally disputes this assertion. The existence of mutual mistake is difficult to establish absent additional parol evidence (indeed, the fact that the plaintiff attempted to provide such evidence along with its Supplemental Memorandum in Opposition to Summary Judgment is telling). See Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 1 (1987). The core of this dispute, then, is factual, and thus summary judgment is inappropriate and will not issue.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486101/ | Opinion and Order Denying Motion for Rule 60(b) Relief:
I. CASE HISTORY
The dispute over this 300 acre portion of the land called "Malaeimi" has a long history indeed. In deciding a dispute over the matai title "Puailoa" in favor of Nouata, the High Court stated that approximately 360 acres of Malaeimi, including the land at issue, was the individually owned land of the title predecessor’s widow, Salatiama. Nouata v. Pasene, LT No. 18-1930 (Land & Titles Div. 1931). Nouata’s subsequent protests of the decision to the Chief Justice and the Governor went unheeded. In 1953, Salataima sold approximately 300 acres to the LDS Church, which had previously leased the land. Forty-seven years after the 1931 Nouata decision, Puailoa Tavete sought to set aside the judgment or obtain a new trial on T.C.R.C.P. 60(b) and other grounds, but his motion was denied. Nouata v. Pasene, LT No. 18-1930 (Land & Titles Div. 1979), aff’d 1 A.S.R.2d 25 (App. Div. 1980).
Shortly thereafter, the LDS Church filed suit to enjoin the Puailoa family from trespassing. The High Court overruled the 1931 Nouata case, holding that Malaeimi was the Puailoa family’s communal land and the 300 acre parcel was not legally alienated to the LDS Church. Reid v. Puailoa, LT Nos. 7-79 & 41-79 (Land & Titles Div. 1982), aff’d in part and rev’d in part, 1 A.S.R.2d 85 (App. Div. 1983), aff’d sub nom. Corporation of the Presiding Bishop v. Hodel, 631 F. Supp. 1398 (D.D.C. 1986), aff’d 830 F.2d 374 (1987), cert. denied 486 U.S. 1015 (1988).
In 1983, Puailoa Tavete filed suit to establish his claim for the other 60 acres. Declaring that it was bound by the 1931 Nouata decision but not Reid, the High Court held that this land was legally alienated as Salataima’s individually owned land. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54 (Land & Titles Div. 1989), aff’d AP No. 20-89 (App. Div. 1991). On the basis of the Lagafuaina decision, the LDS Church *104now seeks relief from the Reid judgment under T.C.R.C.P. 60(b)(4)-(6).1
n. RULE 60(b) RELIEF, GENERALLY
T.C.R.C.P. Rule 60(b), which is patterned after Fed. R. Civ. P. 60(b), permits relief from a final judgment or order in certain enumerated situations; other, unforeseen situations are covered by a "catch-all" clause. Such relief is not mandatory, though; Rule 60(b) relief is at the trial court’s discretion. Taulaga v. Patea, 12 A.S.R.2d 64, 65 (Land & Titles Div. 1989); Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54, 57 (App. Div. 1987) (trial court’s ruling will be reversed on appeal only for abuse of discretion). Rule 60(b) motions are primarily granted in regard to default judgments or other situations, such as those involving fraud, in which a failure to consider the merits of the case would result in an obvious injustice. Fackelman v. Bell, 564 F.2d 734, 735 (5th Cir. 1977); see Satele v. Uiagalelei (Mem.), 8 A.S.R.2d 97 (Land & Titles Div. 1988) ("[mjotions for relief from judgment after trial should not be granted as freely as those seeking relief from default judgments"). The strong interest in the finality of judgments means Rule 60(b) is rarely available, even if a judgment is subsequently found to be wrong. The general limits of Rule 60(b) relief are described as follows:
Weighing against the grant of a 60(b) motion is the desirability of finality in judgments. This is particularly true where the reopening of a judgment could unfairly prejudice the opposing party. . . . But even without such prejudice, the desirability of orderliness and predictability in the judicial process *105speaks for caution in the reopening of judgments. These are matters that are addressed to the sound discretion of the trial court ....
Fackelman, 564 F.2d at 736.
III. RULE 60(b)(4)
A. Statement of Law
Rule 60(b)(4) permits a court to grant relief from a "void" judgment. "Void" means the court lacked the power to enter the judgment, usually when it lacked jurisdiction over the parties or the subject matter. A judgment can also be void if the court violated "due process of law" or engaged in "a plain usurpation of power." Matter of Whitney-Forbes, 770 F.2d 692, 696-97 (7th Cir. 1985); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224-25 (10th Cir. 1979); United States v. Holtzman, 762 F.2d 720, 724 (9th Cir. 1985) (a plain misinterpretation of statutorily delegated power is "blatant usurpation”); Nouata v. Pasene, 1 A.S.R.2d 25, 31 (App. Div. 1980) (clear usurpation of power, lack of jurisdiction, or lack of notice may void a judgment). Nevertheless, "[a] judgment which a court has the power to make, and one which [is] rendered in accordance with minimal standards of due process, is a valid judgment, even if it is incorrect." Nouata, 1 A.S.R.2d at 30.
Only the most extraordinary circumstances will support a finding of a void judgment, and even then usually only as to default judgments. Nouata, 1 A.S.R.2d at 31. Thus, a "judgment is not void merely because it is or may be erroneous." Margoles v. Johns, 660 F.2d 291, 295 (7th Cir. 1981) (quoting V.T.A., 597 F.2d at 224); Holtzman, 762 F.2d at 724; United States v. 119.67 Acres of Land, 663 F.2d 1328, 1331 (5th Cir. 1981); Whitney-Forbes, 770 F.2d at 696 (even "gross errors" do not render a judgment void). Because of the interest in finality, voidness grounds are "narrowly restricted." V.T.A., 597 F.2d at 225; 119.67 Acres, 663 F.2d at 1331; see also Whitney-Forbes, 770 F.2d at 696.
B. Discussion
The High Court has jurisdiction over land and land titles under A.S.C.A. § 3.0208(b). Furthermore, federal courts have held that the Reid court did not deny the plaintiff due process. The federal district court stated that Reid was "not clearly erroneous or even an abuse of *106discretion. It certainly does not constitute the type of arbitrary, gross, or ’perverse’ reading of the law" necessary to constitute a taking of property without due process. Corporation of the Presiding Bishop, 637 F. Supp. at 1410. The court of appeals said that the 1931 Nouata decision was ambiguous and that the Reid court’s failure to give that decision res judicata effect did not deprive the church of due process. Corporation of the Presiding Bishop, 830 F.2d at 380-81, 387. The High Court is bound by those decisions.
Plaintiff alleges that the Lagafuaina decision held that Reid was wrongly decided. However, changes in precedent and evidence of factual errors do not result in voidness. Even if Lagafuaina’s holding were, in fact, contrary to that of Reid, this would not convert Reid from an enforceable judgment to one which "usurped" power. Therefore, the judgment in Reid is not void; and relief is unavailable under Rule 60(b)(4).
IV. RULE 60(b)(5)
A. Statement of Law
Rule 60(b)(5) permits relief from a judgment when a prior judgment forming its basis has been reversed or vacated, or if giving it prospective application would be inequitable.2 As such, Rule 60(b)(5) relief is available
only in situations where a temporary factual underpinning of an order has ceased to exist, as when an order to pay damages is no longer appropriate because the claim has been satisfied in some way different from that contemplated by the order, or there is an implicit limitation to the time during which a prospective judgment is to be given effect.
Nouata, 1 A.S.R.2d at 33-34 (citing, e.g., Jackson v. Jackson, 276 F.2d 501 (D.C. Cir. 1960), cert. denied 364 U.S. 849 (1960); Loney v. Scurr, 474 F. Supp. 1186 (S.D. Iowa 1979); John W. Johnson, Inc. v. J.A. Jones Constr. Co., 369 F. Supp. 484 (E.D. Va. 1973)).
*107Subsection (5) does not apply just because a precedent on which the decision relied was overruled. Rather, its application is limited to a judgment based on a prior judgment reversed or otherwise vacated — based in the sense of res judicata, or collateral estoppel, or somehow part of the same proceeding. . . . The relation between the present judgment and the prior judgment must thus be closer than that of a later case relying on the precedent of an earlier case ....
Tomlin v. McDaniel, 865 F.2d 209, 210-11 (9th Cir. 1989) (change in applicable law after a final judgment is insufficient to vacate) (citing 11 C. Wright & A. Miller, Federal Practice and Procedure § 2863, at 202-04 (1973); 7 J. Moore & J. Lucas, Moore’s Federal Practice § 60.26[3], at 60-246 to 60-248 (1987) (emphasis in original)); see Marshall v. Board of Education, Bergenfield, New Jersey, 575 F.2d 417, 424 (3d Cir. 1978). As such, a later change in the law provides grounds for relief only in situations such as a reversal or modification of a prior judgment or an amending of a statute. Wallace Clark & Co., Inc. v. Acheson Industries, Inc., 394 F. Supp. 393, 395 n.4 (S.D.N.Y. 1975), aff’d 532 F.2d 846 (2d Cir. 1976), cert. denied 425 U.S. 976 (1976). Thus, no relief is available if the law used by a court was later overruled or declared to be erroneous in an unrelated proceeding. Marshall, 575 F.2d at 424 n.24 (quoting Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 650 (1st Cir. 1972)); Wallace Clark, 394 F. Supp. at 395 n.4; In re Master Key Antitrust Litigation, 76 F.R.D. 460, 463 (D.C. Conn. 1977), aff’d without opinion 580 F.2d 1045 (2d Cir. 1978) (citing 7 Moore’s Federal Practice ¶ 60.26[3] at 325 (2d ed. 1975)).
A court may also grant relief from a judgment whose application is "prospective" or "executory." Marshall, 575 F.2d at 425 (contrasted with a damage award, which is "inherently final" and is unaffected by a later change in the law). The standard for "determining whether an order or judgment has prospective application ... is whether it is ’executory’ or involves ’the supervision of changing conduct or conditions . . . . ’" Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C. Cir. 1988) (citing United States v. Swift & Co., 286 U.S. 106 (1932); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421 (1856)). Such an order compels or prohibits certain future actions or requires a court’s supervision of conduct between the parties. Id. The court thus rejected the argument that "any order that precludes relitigation of a claim has ’prospective application’ for that reason alone." Id. at 1140.
*108B. Discussion
No res judicata or collateral estoppel relationship exists between Reid and Lagafuaina to constitute a "prior judgment" under subsection (5). Additionally, the Reid court’s holding as to title to the 300 acres of Malaeimi is not a decision having "prospective application." The decision does not involve a court order or injunction, in which the court either mandates conduct or supervises a party’s conduct. Because neither of the elements necessary for relief are present in this case, and the "satisfied, released, or discharged" clause is inapplicable, plaintiffs are not entitled to Rule 60(b)(5) relief.
V. RULE 60(b)(6)
A. Statement of Law
Rule 60(b)(6) is the "catch-all" clause, which permits a court to reopen a judgment for "any other reason justifying relief." Subsection (6) gives courts "broad authority to relieve a party from a final judgment ’upon such terms as are just’ .... [I]t provides courts with authority ’adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice’ . . . ." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863-64 (1988) (quoting Klapprott v. United States, 335 U.S. 601, 614-15 (1949), modified on other grounds 336 U.S. 942 (1949)).
However, this power is only to be exercised in "extraordinary circumstances." Liljeberg, 486 U.S. at 864 (quoting Ackermann v. United States, 340 U.S. 193, 199-200 (1950)); see Davisdon v. Dixon, 386 F. Supp. 482, 493 & n.2 (D. Del. 1974), aff’d without opinion 529 F.2d 511 (3d Cir. 1975) (relief confined to "extraordinary, exceptional cases"); Nouata, 1 A.S.R.2d at 34 ("extraordinary circumstances" include physical duress preventing a party from protecting his interests before a court). Thus, Rule 60(b) "should only be sparingly used." Twelve John Does, 841 F.2dat 1140 (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)).
Obtaining relief under the "catch-all" provision is extremely difficult, because the party seeking relief bears a "heavy burden of showing" greatly changed circumstances and must demonstrate that "’extreme’ and ’unexpected’ hardship will result" without relief. Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977) (discussing Rule 60(b)(5)&(6)). As such, "the movant must allege and prove such *109extraordinary circumstances as will be sufficient to overcome our overriding interest in the finality of judgments." Wilson v. Fenton, 684 F.2d 249, 251 (3d Cir. 1982) (quoting Mayberry v. Maroney, 529 F.2d 332, 337 (3d Cir. 1976)). This is especially true in regards to land titles. "The need for certainty with respect to land titles warrants a great deference to the need for finality of judgments." Ritter v. Smith, 811 F.2d 1398, 1401-02 (11th Cir. 1987); see also Collins v. City of Wichita, Kansas, 254 F.2d 837, 839 (10th Cir. 1958). The rationale for infrequently granting relief under subsection (6) is as follows:
Any reopening of a case, whether prior to or following entry of judgment, involves some delay, expense and prejudice to the other party. The Court must balance the need for prompt and efficient handling of litigation . . . against the attainment of a just resolution of a particular dispute before the court. ... In addition, the court must consider whether the other party will be substantially prejudiced by a reopening, and, if so, whether the prejudice can be mitigated by an award of costs or other shaping of relief.
Bell Telephone Laboratories v. Hughes Aircraft Co., 73 F.R.D. 16, 22 (D.C. Del. 1976).
Although the circumstances sufficient to successfully invoke Rule 60(b)(6) have not been specifically delineated, a number of cases provide some guidance. The United States Supreme Court roughly defined the outer boundaries of Rule 60(b)(6) in Klapprott v. United States, 335 U.S. 601 (1949) (relief granted) and Ackermann v. United States, 340 U.S. 193 (1950) (relief denied). See Twelve John Does, 841 F.2d at 1140 (contrasting Klapprott and Ackermann). Despite their superficial similarity as deportation challenges, ”[t]he comparison strikingly points up the difference between no choice and choice; imprisonment and freedom of action; no trial and trial; no counsel and counsel; no chance for negligence and inexcusable negligence." Ackermann, 340 U.S. at 202.
Other important considerations include "the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process." Liljeberg, 486 U.S. at 864 (upholding court of appeals’ vacating of district court’s judgment, on the *110grounds of "appearance of impropriety" due to a judge’s failure to disqualify himself, in violation of 28 U.S.C. § 455(a)).
In most jurisdictions, a change in applicable case law is not, in itself, enough to justify Rule 60(b)(6) relief. "Numerous courts have held that mere showing of a change in the law is not enough to demonstrate such an extraordinary situation when the judgment has become final." Overbee v. Van Waters & Rogers, 765 F.2d 578, 580 (6th Cir. 1985); see Professional Assets Mgmt., Inc. v. Penn Square Bank, N.A., 616 F. Supp. 1418, 1420 n.1 (W.D. Olda. 1985).
If relief is sought because a subsequent case was overruled or vacated, most courts require that the case in which relief is sought be virtually identical or otherwise closely related to it. One situation is when the case law changes after a ruling in another case, which was decided to resolve a conflict with the holding of the case at issue. For example, one factor in Ritter was two cases’ close relationship. The state of Alabama was granted relief from an order to resentence defendant, whose death sentence was vacated when the same court of appeals had previously held Alabama’s death-penalty statute to be unconstitutional. The Alabama Supreme Court, in another case, expressly rejected the court’s reasoning; and the United States Supreme Court granted certiorari to resolve the conflict between the cases and held that the statute was constitutional. Ritter, 811 F.2d at 1402-03. Similarly, five years after the original judgment, the Supreme Court granted certiorari to resolve a conflict between two district court decisions and vacated judgment. Tsakonites v. Transpacific Carriers Corp., 322 F. Supp. 722, 723 (S.D.N.Y. 1970).
An analogous situation exists when the two cases are related because they "arose out of the same transaction." Ritter, 811 F.2d at 1402-03. For example, relief was granted when a state court decision relied upon by a defendant was overturned by the state supreme court in an action by another plaintiff. The "extraordinary circumstances" were that (1) both suits arose from the same vehicular accident and (2) the suits’ results differed because one set of plaintiffs had to sue in federal court (based on diverse citizenship) rather than in state court. Pierce v. Cook & Co., 518 F.2d 720, 723 (10th Cir. 1975) (non-uniform results violated policy of Erie Railroad v. Tompkins, 304 U.S. 64, 74-75 (1938)), cert. denied 423 U.S. 1079 (1976). Similarly, the Supreme Court reversed a judgment after a court of appeals misinteipreted its decision setting forth a liability standard and another court of appeals upheld an award to the survivors of another employee killed in the same *111accident. Gondeck v. Pan American World Airways, Inc., 382 U.S. 25, 27-28 (1965).
Some federal courts of appeal do permit Rule 60(b)(6) relief based on a change of precedent on which a judgment is based. Wilson, 684 F.2d at 251 ("A decision of the Supreme Court of the United States or a Court of Appeals may provide the extraordinary circumstances"); Ritter, 811 F.2d at 1401 (relief allowed when "there has been a clear-cut change in the law"); Adams v. Merrill Lynch Pierce Fenner & Smith, 888 F.2d 696, 702 (10th Cir. 1989) ("a change in relevant case law by the United States Supreme Court warrants relief") (citing Pierce, 518 F.2d at 722-24); Professional Assets Mgmt., 616 F. Supp. at 1419-20 (citing Pierce)-, see Overbee, 765 F.2d at 580 (denying relief was an abuse of discretion because "unique facts" compelled relief; the "extraordinary circumstances” consisted of the state supreme court’s reversing itself, within a year, on a question of substantive law and the fact that plaintiffs’ motion for a new trial was pending at the time of the state court decision). However, this line of cases has been criticized. Professional Assets Mgmt., 616 F. Supp. at 1420 n.l (discussing authorities on both sides of the issue).
Even in jurisdictions following this more liberal doctrine, though, Rule 60(b)(6) relief remains at the court’s discretion. "[R]elief under Rule 60(b) because of a change in precedent is directed to the trial court’s discretion and consideration in equity." Professional Assets Mgmt., 616 F. Supp. at 1419-20 (citing Pierce). Likewise, "a change in the law will not always provide the truly extraordinary circumstances necessary to reopen a case." Ritter, 811 F.2d at 1401 (emphasis in original); see Adams, 888 F.2d at 702 (affirming grant of Rule 60(b)(6) relief).
B. Discussion
Even if plaintiff were correct that Lagafuaina constituted a change in precedent and that this is a sufficient basis on which to grant relief, the High Court is not obligated to do so. The granting of relief under T.C.R.C.P. Rule 60(b)(6) is solely at this court’s discretion.
However, Lagafuaina can be distinguished from Reid as disagreeing on findings of fact and not conclusions of law. The Lagafuaina court was careful to emphasize that it agreed with' the Reid court on the applicable law. Rather, the differences in the holdings *112resulted from different conclusions drawn from the evidence presented in their respective cases.
Furthermore, Lagafuaina was only binding on the parties in that case. Although Lagafuaina held that the land was individually owned land, the Court went to great lengths to differentiate that case from Reid as differing in the findings of fact or issues raised, not in interpretation of law. Lagafuaina did not overrule Reid because the disagreement between the two cases "is not about general propositions of law but about the application of those principles to a particular fact situation." Lagafuaina, 11 A.S.R.2d at 77-78 (noting that the appellate court in Reid also treated the trial court’s interpretation of the 1931 Nouata decision as a question of fact and not of law). Similarly, Reid did not have res judicata or collateral estoppel effect on the parties in Lagafuaina because the parties were different and the subject matter (the land) was not "exactly the same." Lagafuaina, 11 A.S.R.2d at 76, 78.
Because the appellate court in Reid used the "clearly erroneous" standard of review, it is possible to have different results regarding factual questions in cases with different parties. Lagafuaina, 11 A.S.R.2d at 78-79. In fact, the appellate court in Reid held that its decision was not binding on those who were not parties in that case or regarding land not claimed by the LDS Church. Id. at 78 (citing Reid, 1 A.S.R.2d at 89).
Thus, Lagafuaina did not overrule Reid, as their contradictory holdings stem from different findings of fact. Furthermore, the granting of relief under subsection (6) must be founded on extraordinary circumstances and is at the sound discretion of the court. This court hereby exercises this discretion in denying relief from a final judgment under Rule 60(b)(6).
VI. CONCLUSION
The litigation pertaining to the Reid case has gone on for quite some time-some would say far too long. See Reid v. Puailoa, LT Nos. 7-79 & 41-79 (Land & Titles Div. 1982), aff’d in part and rev’d in part, 1 A.S.R.2d 85, 87 (App. Div. 1983), aff’d sub nom. Corporation of the Presiding Bishop v. Hodel, 637 F. Supp. 1398 (D.D.C. 1986), aff’d 830 F.2d 374 (1987), cert. denied 486 U.S. 1015 (1988). When all the other cases which have at least made statements as to the ownership of Malaeimi are counted, the litigation has been volumous indeed. See generally Lagafuaina, 11 A.S.R.2d at 55-67. All lawsuits, though, must *113eventually come to an end. It may be argued that Reid itself significantly lengthened this trail of litigation. However, this does not mean that this court should utilize the extraordinary remedy provided by Rule 60(b) to further prolong this litigation. First, subsections (4) and (5) are clearly inapplicable to this case. Second, this court has concluded that the circumstances of this case do not warrant the granting of relief under subsection (6). Therefore, petitioner’s Rule 60(b) motion for relief from a final judgment is denied.
It is so ordered.
The pertinent portions of T.C.R.C.P. Rule 60(b) are as follows:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
The provision regarding "satisfied, released, or discharged" judgments is inapplicable here. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486102/ | This matter came on regularly for hearing on January 15, 1993, upon the natural parents’ petitions to relinquish their parental rights to their three minor children to enable the children’s availability for adoption by their paternal grandmother.
The three children are, respectively, ages four, five and six years. They live with their father, age 37 years, and mother, age 30 *114years, who love their children and provide significantly for their children’s emotional and physical care. Their grandmother, age 68 years, lives nearby. At this time, this family group’s income is derived principally, if not entirely, from the grandmother’s retirement pay and Social Security benefits and another, unmarried son’s earnings. Clearly, she contributes financially and in other immeasurable ways to her grandchildren’s upbringing.
The parents’ desire to relinquish their parental rights appears to be voluntarily motivated in recognition of the grandmother’s kindness towards their children and their impecunious situation. The father apparently suffers from an emotional disorder and does not maintain steady employment. The mother is unemployed.
The grandmother appears to still be in good health. However, she foresees the day in due course when her grandchildren will return to their loving parents’ total care. She also knows that the family members presently living together are close-knit in the Samoan way of life. She admits that the real purpose for the adoption is enhancement of Social Security benefits.
Relinquishment of parental rights must be predicated on the best interests of all concerned. A.S.C.A. § 45.0402(e). The circumstances here are factored on the grandmother’s and parents’ immediate best interests. Higher Social Security benefits are not, as such, detrimental the children’s interests. However, disruption of the natural relationships existing in this situation is not in the children’s more important, long-term best interests.
The petitions should be and are denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486103/ | The first trial of this boundary dispute, on January 13, 1987, ended with the court’s ruling that plaintiff Adeline Pritchard Huff ("Huff") had failed to prove her case, at least against named defendant Taumaoe Brown ("Brown"). In the court’s view, most of the fence erected by Brown appeared to reflect the common boundary between Huff’s and the Gurr estate’s real properties more accurately than the resurvey submitted by Huff at this trial.1 Brown, who is related to the Gurr family, was an occupant, but not the owner, of a portion of the Gurr estate’s land immediately adjacent to Huff’s land. As such, the court further pointed out that this common boundary could not be finally *116adjudicated without joinder of the Gurr estate as the owner of the real property defended by Brown. Brown died after the first trial.
On May 22, 1987, the court granted Huff’s motion for a new trial and vacated the judgment. The court again suggested the joinder of necessary parties for final adjudication of the common-boundary dispute. When further efforts to reconcile the common boundary did not fully succeed, court-ordered resurveys were authorized, and the Gurr estate was joined as a defendant. The parties also stipulated that at the new trial (1) the common boundary between the parties’ real properties would be the only issue requiring adjudication and (2) testimony would be limited to the parties’ surveyors. The new trial proceeded in accordance with this stipulation on November 24, 1992, with a site visit on January 22, 1993.
FINDINGS OF FACT
The parties’ real properties at issue are located in an area called "Malaloa" in Pago Pago, American Samoa. A short history of these lands is documented in the file. Both parcels are "freehold lands," as defined in A.S.C.A. § 37.0201(b). Huff’s land was transferred in 1896 by Jane S. Foster to Harry Jay Moors, who conveyed it pursuant to a court grant issued in 1897 to one Alafaio. By 1932 the Jewett family had acquired this land, and in 1964 Mary Jewett Pritchard and her husband, Ronald E. Pritchard, transferred it to Huff. Edwin W. Gurr purchased his land between 1900 and 1904, and except for lots conveyed to others at various times, this land descended to the Gurr estate, which presently holds the title.
The Gurr estate’s land borders the entire south side and substantially the inland portions of the east and west sides of Huff’s land. The land along the remainder of the east side was conveyed sometime in or prior to 1922 by the Gurr family to the Kneubuhl family, who in turn eventually transferred the title to the immediate portion of this tract to Margaret K. Landrigan, the present owner and a Kneubuhl family member. The land along the remainder of the west side was acquired by SSP Co., Inc., during or prior to 1922 and then, no later than 1934, by Burns Philp (SS) Co., Ltd.
Originally, the north side of Huff’s land was bounded by the high-water mark of Pago Pago Bay. The then-existing main road crossed her land, for the most part if not entirely, within the legal description in the 1897 court grant ("1897 survey"). In the 1960s, filling moved the *117shoreline considerably northward, and the road was widened, straightened and essentially relocated outside the northern boundary. During this time, the northern boundary was adjusted to a straight line along the south side of the relocated road. This adjustment did result in some diminution of Huffs land but, as discussed below, does not impact the present common-boundary dispute. The histories of the northern boundaries of Landrigan’s and Burns Philp’s lands appear to be similar.
Huffs land was described by metes and bounds (showing distances in links, one link being 7.92 inches) in the 1897 survey and in the 1964 deed (probably a mere copy of the 1897 survey). A 1934 resurvey of the Gurr estate’s land, which necessarily included the metes and bounds of Huff’s land, was apparently done, at least in part, to convert the distances in an earlier survey from links to feet and contained a legal description substantially the same as the description in the first two documents. A fourth document, undated and otherwise unidentified, attempted to retrace Huff’s land using distances in feet and reached similar results, but it showed an "error of closure." Omission of one boundary leg is the apparent cause of this error.
According to the 1897 survey and 1964 deed, the point of beginning ("POB") of the metes and bounds in these four documents, whether depicted in survey form or legal description, is "the northwest comer of the high water mark near the mati tree standing on the main road"; and the concluding two boundary legs proceeded "along the high water mark . . . back to the starting point." It actually appears from the survey drawing in the 1897 survey that the mati tree was on the inland side of the old road, the northwest comer was within the road, and the high water mark was a short distance north of the sea side of the road. In any event, the mati tree no longer exists, perhaps the victim of the road work in the 1960s. Moreover, none of the other natural boundary markers, all trees, indicated in the 1897 survey and the 1964 deed still exist in clearly identifiable form. On the other hand, the metes and bounds do refer to the boundary "passing five links (3.3 feet) distant from a concrete wall near the road to the high water mark" at the northeast comer. This reference will be discussed below.
The parties have sought to resolve the common-boundary dispute through the use of resurveys of the legal description in the 1897 survey. These resurveys were done by recognized surveyors, Meko A. Tua‘olo in 1985 (the "Meko resurvey"), Mulivanu Tua‘olo in 1987 (the "Mulivanu resurvey"), and William A. Sword in 1991 (the "Sword resurvey"). The Meko and Sword resurveys were prepared at Huff’s *118request, while the Mulivanu resurvey was done at the Gurr estate’s call.
All three surveyors used virtually identical POBs at the northwest corner of Huff’s land, which is also the northeast comer of the immediately adjacent Burns Philp’s land. No gap has ever existed between the Huff and Burn Philp properties. Although we do not know when a pin was originally set, a pin was reset there during the last survey of Bums Philp’s land in 1977 (the "Bums Philp survey") and a survey pin is located there. Thus, this is a logical POB. However, the positioning of this POB cannot be determined with complete confidence without knowing the precise location of the missing mati tree. Moreover, the POB coordinates on the three surveys are also slightly different from the POB coordinates of the (presumably) same point in the Bums Philp survey. Hence, we cannot be absolutely certain of the POB’s accuracy in the three resurveys with respect to the POB in the 1897 survey. Nonetheless, this location is sufficiently accurate as a basis for resolving the present common-boundary dispute and has been mutually accepted by the parties.
The major question in dealing with the three recent resurveys arises with the boundary leg immediately after the initial boundary legs to the south of the POB. The Mulivanu resurvey plots two such legs at slightly different angles immediately south, as the 1897 survey shows, while the Meko and Sword resurveys use a single leg (although the Sword resurvey shows the distances of both legs), coinciding with the same leg in the Burns Philp survey and terminating at an existing pin. This pin was found during the Burns Philp survey, but we do not know when it was first placed there. The discrepancy comes where the 1897 survey next takes a westerly dogleg. The Mulivanu resurvey displays the distance of this leg at a reasonably accurate 75.17 feet, as shown in the 1897 survey. The Meko resurvey shortens the distance to 44.67 feet, while the Sword resurvey shows it at 49.79 feet. There are also fairly substantial directional variations for this leg in the three resurveys. The Sword resurvey is closest to the 1897 survey, but again it exactly follows the boundary shown in the Bums Philp survey, rather than precisely with this leg in the 1897 survey.
Our evaluation of the three recent resurveys indicates that overall the Mulivanu resurvey most closely approximates the 1897 survey. However, the problem is not resolved by this finding. Too many "calls" (the surveyors’ term for field evidence) demonstrate that the 1897 survey is not precisely correct and, hence, limit the usefulness of the Mulivanu resurvey to resolve the dispute.
*119A survey pin is located at the northwest comer of Landrigan’s land to the east of Huff’s land. This pin appears to have been there a substantial period. In any event, no gap between Huffs and Landrigan’s properties has ever existed, just as no gap has ever separated Huff’s and Burns Philp’s properties at the western end. In fact, the driveway leading to a former residential building on Huff’s land intersects the main road immediately adjacent to the northeast corner.
The Meko and Sword resurveys do straighten the northern boundary of Huff’s property, along the south side of the present main public road. This is contrary to the two legs shown in the 1897 survey and the Mulivanu resurvey. However, the 1897 survey drawing clearly locates the northeast corner on the sea side of the original road. Thus, we are persuaded that the fill and road work in the 1960s resulted in relocating the present road substantially, if not entirely, outside of both the northwest and northeast comers set out in the 1897 survey. Furthermore, although it appears that the concrete wall near the northeast corner, as noted in the 1897 survey, may have disintegrated to some extent, we believe that it was rebuilt at the same location. Hence, we are satisfied that the northeast corner is accurately depicted in the Meko and Sword resurveys, as is, for present purposes, the northwest comer in all three resurveys.
There is additional supporting field information. A pin is located at the southwest corner of Landrigan’s land, indicating another point on the eastern boundary of Huff’s land. Further south a rock wall with kapok tree fenceposts exists for some distance, again suggesting the boundary line between Huff’s land and, at this point, the Gurr estate’s land. Along the southern boundary area, near the southwest corner, several 30-foot kapok trees are imbedded with rusty barbed wire, a further sign of the disputed common boundary. Finally, there is a line of mango trees further west of Huff’s land, which appears to mark the western end of the Gurr estate’s land and to be notably further from the western common boundary, 65 feet according to the 1934 resurvey, than is indicated by the Mulivanu resurvey when the three resurveys are overlaid. The Sword resurvey takes all of this information, and the Meko resurvey some of it, into account in reconstructing the actual boundaries intended in the 1897 survey.
Overlay of the three recent resurveys is also particularly informative in other respects. Using the same POB, in essence, they are closely aligned. The southern boundaries are very close. The only truly significant differences are that the Mulivanu resurvey locates the eastern *120and western boundaries further west and creates a gap between Huffs and Landrigan’s lands, which has never existed historically and is contradicted by the driveway entering Huffs land. If the Mulivanu resurvey is moved eastward so that its northeast comer coincides with the existing pin, the eastern, southern and western common boundaries in all three recent resurveys become even more closely aligned. The only vital discrepancy is a gap then created between Huff’s and Burn Philp’s lands at the west end, due to the length of the westerly dogleg in the 1897 survey and Mulivanu resurvey. However, this gap, which has also never existed historically, would only be an issue between Huff and Bums Philp. This issue is not before us now and has no real impact on the present common boundary dispute.
Based on the evidence, we find that the Sword resurvey accurately describes the boundaries of Huff’s land, in accordance with the understanding and recognition of the original owners of Huff’s and the Gurr estate’s lands, and that the differences between the 1897 survey and Sword resurvey are technical errors in the 1897 survey. Thus, we find that the Sword resurvey correctly depicts the common boundary between Huff’s and the Gurr estate’s lands.
CONCLUSIONS OF LAW
1. Huff is entitled to have the 1991 Sword resurvey of the freehold land transferred to Alafaio, her antecedent in title by the court grant in 1897, filed with the Territorial Registrar as part of the registration of her title to this land.
2. Huff is entitled to a permanent injunction against the Gurr estate and all persons having ownership or possessory interests in the Gurr estate’s land immediately adjacent to Huff’s land, derived from or by the authority of the Gurr estate, their officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them, from trespassing on or interfering with Huff’s land, and requiring removal of Brown’s encroaching fence and practicable restoration of this area to its state at the time the fence was erected.
Judgment shall be entered accordingly. It is so ordered.
This resurvey, done in 1985 by Meko A. Tua'olo, is one of three recent resurveys in evidence and used by the parties to assist in resolving this common boundary dispute. All three recent resurveys are discussed below. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486104/ | The trial of this action on December 3 through 8, 1992, including inspection of the land area involved on December 4, 1992, *122portrayed yet another vivid example of the ongoing slum development in American Samoa. In recent years, badly conceived land subdivisions have unfurled within the relatively expansive plains in American Samoa between Pala Lagoon and the villages of Ili'ili and Vaitogi. These disordered subdivisions are bom of landowners’ monetary greed, with little, if any, discernible planning for sensible rights of way for access roads and power, water, sewer and telephone lines. Unregulated land development of this nature is not in the public interest.
In the absence of land subdivision laws, courts are ill-equipped to constructively deal with problems arising out of privately dominated land subdivisions and, at best, can only forge piecemeal solutions in some specific situations. Lands subject to traditional values and properly governed by traditional leaders may fare well enough, even though technical deficiencies for suitable utility installations may occur. However, much of the plains area lacks any effective local governmental authority. The need is evident for legislative enactment and meaningful executive enforcement of a land subdivision law requiring prior approval and continuing oversight of land development plans by an appropriate public agency. The American Samoa Government’s three branches, in concert, could step in and reasonably control this sorry state of affairs.
In this particular case, we are unable to fashion any legally acceptable remedy to correct the right of way problem about which plaintiff Peter Fuimaono ("Fuimaono") understandably complains.
FINDINGS OF FACT
The attached drawing of the land area involved in this action is provided to assist in following the numerous, interrelated transactions described below.
At one time, necessary third-party defendant Lavasi'i Tauoa 0'Lavasi‘i") owned approximately 26.8 contiguous acres of land, known as "Ogevai," in the plains generally recognized as Tafuna, American Samoa, as individually owned land. In December 1981, he sold 1.05 acres at the southern end of this land ("Lot 12”) to necessary third-party defendant Magdalene Vaivao ("Vaivao"), who, under the name Magdalene V. Craddick, also owned a large tract of land below this lot. Contemporaneously, if not in connection with this transaction, Lavasi'i and necessary third-party defendant Craddick Development, Inc. ("CDI") reached an oral agreement that authorized access to both their properties by an undedicated dirt road extending from the road (now paved) at the *123northeast comer along the eastern boundary of LavasiTs land and turning westward into these properties ("ROW l").1
In May 1984, Lavasi'i first conveyed another acre of this land ("Lot 10") to his sister, necessary third-party defendant Meritiana Palemia ("Meritiana"), another sister Vaililo Wemer, who is not a party, and a brother Aniga Su‘a, Jr. ("Aniga"), who is also not a party, as joint owners. In September 1984, he transferred 9.02 acres of this land ("Tract B") to the same three siblings. Tract B lies immediately to the north of Lot 12 and encompasses Lot 10. Lot 10 is at the eastern end of Tract B. The Tract B transaction was a part of the resolution of legal disputes between Lavasi'i and these siblings. At this point, Lavasi‘i retained ownership only of the northern 8.73 acres of his original land ("Tract A").2
The three siblings agreed in turn to divide Tract B equally among themselves.3 Meritiana apparently obtained the eastern one-third section and retained approximately one-half acre ("Lot 3") within it for her residence. Lot 3 is located southwest of Lot 10 along the southern boundary of Tract B. She also began (actually before LavasiTs conveyances of Lot 10 and Tract B to and the division of Tract B among the three siblings were formalized) the subdivision onslaught of Tract B. In April 1984, she sold Lot 10 to the Seventh-Day Adventist Church of American Samoa, Inc.
Nineteen eighty-five saw three more transactions. In February, Meritiana sold 0.06 of an acre ("Lot 6") to Palako and Valasi Lualemaga, who in April 1987 sold it to Rev. Olivia and Maria Safotu (collectively the "Safotus"). Rev. Safotu is a minister of the Seventh-Day Adventist Church. Lot 6 lies north of Lot 10 adjacent to Tract B. In May 1985, she sold 0.4352 of an acre ("Lot 4") to defendants Uili *124Fuia ("Uili") and Losa Fuia;(collectively the "Fuias"). Lot 4 is located immediately west of Lot 10 and north of Lot 3. In December 1985, she sold one-half of an acre ("Lot 1") to Tonisi and Matapua Matatia. Lot 1 is situated west of Lot 4.
Moving on to 1987, three more transactions occurred. In February, Meritiana sold another 0.06 of an acre ("Lot 7") to the Safotus. Lot 7 lies between Lots 10 and 6. In June, she sold one-quarter of an acre ("Lot 9") to Sausaulele and Beverly Tagaloa and 0.29 of an acre ("Lot 5") to defendants Tamapele Tevaseu ("Tamapele") and Sofima Tevaseu (collectively the "Tevaseus").4 Lot 9 is located northwest of Lot 1 and immediately to the south of Tract B. Lot 5 is situated north of Lot 4 and is also adjacent to Tract B. There is another lot, as yet unnumbered, north of Lot 1, between Lots 5 and 9 and also next to Tract B. This lot is occupied by prospective buyers, who so far, apparently, have been unable to consummate purchase.
Except for the unnumbered lot, this series of Meritiana’s sale transactions was completed in May 1989, when she sold 0.53 of an acre ("Lot 2") to Sagaga Lafaele. Lot 2 is located west of Lot 3 between Lots 1 and 12. Fuimaono purchased Lot 5 from the Taveseus in August 1989 and completed a then-partially constructed house on the property, in which he now resides. Lot 5 is surrounded by Tract B on the north, Lots 6 and 7 on the east, Lot 4 on the south, and the unnumbered lot on the west.
Fuimaono seeks a suitable right of way for access to Lot 5. The present access ("ROW 2") is a dirt road off of ROW 1, apparently beginning in Craddick property, that heads north along the west sides of Lots 2 and 1 and then makes a 90-degree, right turn and heads east between Lot 1 and the unnumbered lot to Lot 5. ROW 2 via ROW 1 provides not only circuitous access, but more importantly, ROW 2 is also narrow, sufficient for only one vehicle to travel and very rough. Recently, the occupants of the land immediately west of ROW 2 and a short distance from its beginning have erected or enlarged a house on their land, which has almost encroached upon ROW 2 and has created a safe-passage hazard. ROW 1 ’s undedicated status, at least the portion on Vaivao’s land, has placed some uncertainty on its permanent and *125continuous existence. ROW 2’s suitability for utility lines, particularly sewer lines, can be seriously questioned.
These circumstances clearly demonstrated Meritiana’s lack of concern and foresight for suitable land development when she began subdividing Tract B. This action was commenced on March 22, 1990. On May 11, 1990, she then dedicated land for an access road ("Lot 11"). This dedication set aside a right of way that generally coincided with ROW 2, except in two particulars. First, at 20 feet, it is substantially wider. Second, it circled behind the house, causing the safety hazard. It is by no means clear from the evidence that the owner of this house was her or her sibling’s grantee. Thus, doubt about the permanency of the new access road in this area, if it is ever constructed, is present. In any event, this hindsight action amply fortified Meritiana’s earlier established attitudes.
Access to Lot 5 could be physically accomplished from three other directions. The shortest and most direct route would be a connecting road from Lot 5 to a dirt road close by in Tract A that then continues a short distance to the paved road north of Tract A. However, Lavasi'i at least orally arranged for access to Tract B when it was created, which access is not presently threatened. Under existing circumstances, neither Lavasi'i nor any of his grantees of lots in Tract A has any legal obligation to permit access to Lot 5 across Tract A.
A right of way could be established from the east across Lot 10 and then a small portion of either Lot 7 or Lot 4 to Lot 5.5 However, as pitifully inadequate as ROW 2 is, this solution would require a finding of necessity, as enunciated in Sese v. Leota, 9 A.S.R.2d 35 (1988), new trial denied, 9 A.S.R. 136 (1988). An implied easement by necessity would be inappropriate, so long as access over ROW 2 is available.
Lastly, a right of way to Lot 5 from the south could be recognized in Lots 3 and 4. Justification by necessity for this solution is no more proper than it would be across Lots 10, 7 or 4 from the east. However, the conveyance of Lot 4 to the Fuias does show a 12-foot right of way extending along the entire east boundaries of Lot 4 and, apparently, Lot 3 retained by Meritiana. There is in fact an access road *126across Meritiana’s Lot 3 into the Fuias’ Lot 4, meandering some distance from the right of way shown in the Lot 4 conveyance.6 Meritiana and Uili have denied any intention to create a right of way to Lot 5 in the Lot 4 conveyance.
Indeed, the conveyances of Lot 5, first by Meritiana to the Tevaseus and later by them to Fuimaono, contained no indications of any such intent. Moreover, the Tevaseus constructed a stone wall along the south boundary of Lot 5, which is generally parallel to the original north boundary of Lot 4. They understood that ROW 2 was their access way to Lot 5, and Tamapele passed on that information to Fuimaono when he bought Lot 5. Also of some note is the relatively steep incline between Lots 4 and 5.
Meritiana’s sale to the Fuias on July 11, 1990, again after commencement of this action, of a 0.035 strip of land between Lots 4 and 5, raised some doubt about the denial by Meritiana and the Uili of any intent to create in the Lot 4 conveyance a right of way to Lot 5. Apparently, this strip resulted from earlier survey mistakes, and the belated sale may have been motivated by an opportunity to establish an additional buffer between the end of the surveyed right of way in the Lot 4 conveyance and Lot 5. However, we find from the entire circumstances that the right of way across Lots 3 and 4 was not created to provide access to Lot 5.
CONCLUSIONS OF LAW
1. The Fuias, Meritiana and Lavasi'i are entitled to dismissal of this action pursuant to their respective motions under T.C.R.C.P. Rule 41(b) on the ground that upon the facts and the law Fuimaono has shown no right to relief.7
2. Lavasi'i is entitled to dismissal of the third-party claim by Meritiana against him pursuant to T.C.R.C.P. Rule 41(b) and (c).
*1273. Fuimaono is not entitled to default judgments against the Tevaseus, CDI or Vaivao pursuant to his motion for default judgments against them under T.C.R.C.P. Rule 55(b), and that motion will be denied.
Judgment shall énter accordingly. It is so ordered.
*128[[Image here]]
CDI and Vaivao have been served with process but have not appeared in this action. Fuimaono’s motion for default judgments against them are simultaneously under advisement with the trial decision.
Tract B, minus two later adjustments to the southeast and southwest comer areas, was registered as LavasiTs individually owned land in January 1982.
In 1985, Aniga and his wife sold their three-plus-acre portion to Vaivao as tmstee for Douglas O. Craddick.
The Tevaseus also failed to appear and are the subject of Fuimaono’s motion for a default judgment, which is under advisement.
Although Lots 6 and 7 are presently landlocked, their ownership by a minister of the Seventh-Day Adventist Church, which owns Lot 10, forestalls any immediate access problem to these two small lots.
Despite available access to Lot 2 across ROW 2, a dirt road across Lot 3 to Lot 2 also exists. Meritiana testified that this means of access to Lot 2 is only temporary.
These motions were made after Fuimaono had completed the presentation of his evidence. In accordance with Rule 41(b), the court declined to render any judgment until the close of all the evidence. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486105/ | The petitioners in this proceeding seek to relinquish their parental rights to pave the way for their son’s adoption by his paternal grandfather.
The petitioners are married, in their twenties, and have two young children, a two-year-old son who is the subject of this proceeding and a recently bom infant. Both husband and wife are healthy and employed with promising futures in the educational field. The paternal grandfather is a recent widower. He is 50 years of age and medically retired, relying on Social Security benefits for his income.
The child has lived much of the time since he was two months old with his paternal grandparents and apparently developed a strong relationship with them. It is also true, however, that while his parents do have a separate household, they, their children and the now-widowed, paternal grandfather essentially live together in the same home.
Relinquishment of parental rights must be based in very substantial part on the best interests of all persons concerned. A.S.C.A. § 45.0402(e). The adoption proposed in this situation may enhance the paternal grandfather’s Social Security benefits and, thus, the entire family’s overall income. However, the longer-term best interests of this child of tender years are not served through legal severance of his natural *130relationships with his parents and younger sibling to be raised by an older, single parent who is in poor health.
The love and affection between grandson and grandparent can be maintained. In fact, this child may reside more or less permanently with his grandfather, if all concerned so desire. Eventually, however, full and intimate familial contacts with his immediate family, even if disrupted to some extent in the nearer term, will and should resume of necessity.
The petition should be and is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486106/ | This action was generated out of competing claims by the Toilolo and Poti families to ownership of certain land as their communal land. Testimony at the trial was taken on November 20 and 23, 1992. Both parties were present with counsel. Without the counsel’s presence, by stipulation, the court made a rain-abbreviated inspection of the land on November 27, 1992, and two members (the third then being off-island) viewed it again on December 4, 1992.
FINDINGS OF FACT
The land at issue, consisting of approximately 0.7529 of an acre, is a portion of a larger tract known as "Niualuga" and is situated in the Village of Failolo, American Samoa.
The land was surveyed on September 6, 1990, at the request of defendant Poti Amosa ("Poti"), the senior chief ("sa‘o") heading the Poti family. The survey is set forth in Drawing No. 100-15-90 of the Land and Survey Branch of the American Samoa Government. On September 13, 1990, a surveyor and pulemTu certificate1 was issued, as required under A.S.C.A. § 37.0102(c). On January 18, 1991, Poti offered the land for registration by the Territorial Registrar.2 In accordance with *132A.S.C.A. § 37.0103, the notice for proposed registration of land was posted for 60 days, beginning January 18, 1991, in Failolo and at the court house.
On January 30, 1991, plaintiff Toilolo Siu ("Siu"), as the purported sa‘o of the Toilolo family,3 objected to the registration. The Territorial Registrar referred the registration controversy to the Secretary of Samoan Affairs for dispute-resolution proceedings under A.S.C.A. § 43.0302. The Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute on August 7, 1991; and on August 8, 1991, in accordance with A.S.C.A. § 37.0104, the Territorial Registrar submitted the matter to the High Court for adjudication.
On August 20, 1991, notice, captioned "Toilolo Siu, Plaintiff, v. Poti Amosa, Defendant," was issued by the clerk of courts, instructing objectors to move forward with their objections within 20 days after receipt of the notice or face dismissal of the case. The notice prompted Poti to file his quiet-title complaint first, which was followed by Siu’s answer and counterclaim to quiet title.
This is one of those cases in which the contestants have offered oral family history and tradition of occupancy and cultivation as a basis for establishing title to the same parcel of land. Although largely hearsay, such evidence is necessary in a communal land-tenure system which commonly lacks title documentation and is, therefore, admissible. Tupuola v. Tu‘ufuli, 1 A.S.R.2d 80 (1983). However, without more substantial evidence, the result can readily be a standoff in which neither the claimant nor the objectors meet their respective burdens of proving title. Toilolo v. Galoia, 4 A.S.R. 719 (1966). More substantial evidence is before us in this case.
*133The physical configuration of the land at issue indicates that it is the Toilolo family’s communal land. The east and west sides have straight, virtually exact north-south boundaries. The creek along the west side is a natural boundary. The boundary on the east is akin to a systematic subdivision lot. Moreover, the eastern surveyed boundary bisects a Toilolo family’s house. The size of the plot is relatively small. Taken together, these circumstances support the logical inclusion of the land with the contiguous Toilolo family’s communal land immediately to the east. However, other circumstances are persuasively to the contrary.
This litigation is the second recent action involving the land at issue. In 1988, registration as Toilolo communal land was sought for a surveyed parcel called "Niualuga and Lalomilo." The survey had been obtained by Toilolo Laufau, then the sa‘o of the Toilolo family, before he passed away in the same year. Misa Taliloa ("Misa"), sa‘o of the Misa family, objected to the registration, claiming that portions of the surveyed land encroached upon the Misa family’s communal land. Poti objected with respect to the land at issue, which was also encompassed within this survey. Suit followed in 1990. In 1991, the three contestants agreed to its dismissal with prejudice, and Misa obtained registration of the land surveyed as the Misa family’s communal land without any objections. Poti’s claim that the land at issue is the Poti family’s communal land is discernible in these events.
At the time of Poti’s survey of the land at issue, Siu was, and still is, the pulenu'u of Failolo. Although he was not present when Poti showed the boundaries of the land to the surveyor, Siu was there at the beginning of the survey. Later he signed the surveyor and pulenu‘u certificate. Even though he testified that Misa brought the certificate to him for his signature and he thought it pertained to the Misa family’s communal land, his denial of knowing the purpose of Poti’s survey is incredulous.
Most important, however, is the actual use of the land at issue. The Toilolo family’s oral history and tradition placed the family guesthouse in the southeast corner of the land. Other witnesses claimed that the site of this guest-house was located on higher ground, according to custom, to the east. Both families presented contradictory evidence of current cultivation. Coconut trees are lined along most, perhaps all, of the shoreline in the village; but they are mature, and the planters’ identity is obscured.
*134Long-term occupancy by Poti family members is clearly established. According to the evidence, they may have first resided on the land as far back as 1942, but no later than 1948. This residency was undertaken without any permission by the Toilolo family’s sa‘o then or later in office. Although occasional departures by some sa‘os of the Poti family have occurred for relatively protracted periods, they were apparently prompted by village or other issues unrelated, except in instances involving Siu, to ownership of the land at issue, and the Poti family’s possession of the land has been continuous to the present time.
Two houses, both constructed by Poti family members, are wholly within the surveyed site. Poti, who was born on the land, has lived most of his life in one of those houses, which is actually erected on the Toilolo family’s claimed guest-house site. His father and grandfather also lived in this house. Poti moved to a relative’s house in another village after Hurricane "Ofa" rendered this house uninhabitable in 1989, but he had no intention of vacating the land.
The other house was built in 1972-1973 for Poti’s cousin, the granddaughter of a former sa‘o of the Poti family, who authorized the construction. We are not persuaded by Siu’s claim that he selected this site by direction of the sa‘o then heading the Toilolo family. After she relocated outside of American Samoa, the Poti family’s sa‘o first permitted a sister of a former sa‘o of the Toilolo family and later her brother, who is still there, to live in this house. The Toilolo family has never voiced any claim to own or objection to the presence of either of these houses.
Two graves are located on the land. One is the burial site of Poti’s grandmother and is covered with concrete. The other is less substantial, marked only by stones. Apparently, Toilolo family members are buried there. Although the testimony differed, they may include the parents of one witness, who is now 69 years old and lived on the land with them at one time, and a grandson of his sister, who wanted her grandson buried with his great-grandfather. However, the traditional Toilolo family’s burial grounds are located elsewhere in Failolo.
A dispute over the land involving Siu and a former Poti familysa‘o occurred on or about December 20, 1968, when Siu moved back, after an extended absence, from Western Samoa to American Samoa. Initially, this quarrel concerned the plantations on the land. Siu claimed that, in 1969, this sa‘o of the Poti family agreed to remove his plantations and moved to Hawaii. Siu also testified to continued strife *135with the next Poti family’s sa‘o the following year, when Siu began to build the house now bisected by the surveyed boundary on the east side of the land. On both occasions, the Secretary of Samoan Affairs and the Western District Governor apparently became involved in settling matters.
Siu’s asserted role of prominence in Toilolo family affairs so quickly after arriving from Western Samoa seems improbable. However, even if these events occurred more or less as he described them, at most they only disrupted relationships between the Toilolo and Poti families. They did not interrupt the Poti family’s continuous possession of the land at issue. By 1968, the Poti family had been in open, notorious, hostile, exclusive and continuous possession of the land for at least 20 years, and possibly as long as 26 years. In fact, the Poti family continued in possession adverse to any claim that the Toilolo family may have had to owning the land until this action was commenced. Thus, this period extended over 43 years to 49 years, well in excess of the 30-year period presently required under A.S.C.A. § 37.0120(a).
It is true that there are interrelationships through marriages between the Toilolo and Poti families. Poti is a high-talking-chief matai title, while Toilolo is one of two high-chief titles, along with Misa, in Failolo. In this capacity, the Poti titleholder customarily performs service or "tautua" to and speaks on behalf of the Toilolo titleholder. However, in spite of these connections, we are satisfied that the two families are independent of each other for purposes of owning communal land and acquiring title from one another by adverse possession. Therefore, except as noted below, we find as the ultimate fact in this action that the land at issue is the Poti family’s communal land.
The Toilolo family claims, and the Poti family acknowledges, that both the house bisected by the eastern surveyed-boundary line and the house which is apparently touched at one comer by that boundary line are owned by the Toilolo family. Thus, we further find that the Poti family have relinquished the portions of the land occupied by these houses to the Toilolo family. Fairness dictates that the eastern boundary line be relocated at least ten feet away from all points along the outside roof-lines of those two houses and be resurveyed, at the Poti family’s expense, for that purpose.
*136CONCLUSION OF LAW
Upon completion of the resurvey, with the eastern boundary modified in accordance with the findings of fact above, Poti is entitled to registration of the title to the land at issue, and the Territorial Registrar shall register that title as the communal land of the Poti family.
Judgment shall enter accordingly. It is so ordered.
A pulemTu serves iaa position authorized by A.S.C.A. § 5.0301 and, having duties set forth in A.S.C.A. § 5.0302 and other statutes, is roughly the equivalent of a mayor of a municipality.
The offer proposed registration as land "individually owned" by the Poti family. The potential contusion engendered by this terminology with the recognized category of land known in American Samoa as "individually owned land" belonging to a person having at least one-half Samoan blood, as distinguished from "communal land" owned by an extended Samoan family without any title rights in individuals, was adequately dispelled by three factors: Poti’s testimony that he intended registration as communal land, the reference to the "Poti family" in the offer itself, and the entire circumstances pertaining to the registration effort.
Although not affecting our decision on which family owns the land at issue, we take special note that Siu is a citizen of Western Samoa, bom in that country of parents who were not inhabitants of American Samoa. As such, he is ineligible, under A.S.C.A. § 1.0403(a), to hold this matai ("chief") title. Thus, the Toilolo title was bestowed on him contrary to the provisions of A.S.C.A. §§ 1.0401-1.0414 and cannot be registered or otherwise recognized as Siu’s title under A.S.C.A. § 1.0413. His use of the Toilolo matai title is also a criminal act under A.S.C.A. § 1.0414. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486108/ | Opinion and Order Denying Motion for New Trial, Reconsideration, or Rehearing:
On January 29, 1993, plaintiff filed a motion, with a supporting memorandum, for new trial, reconsideration, or rehearing. For the following reasons, this motion is denied.
I. The Reid decision is not void under Rule 60(b)(4)
Rule 60(b)(4) permits a court to grant relief for a "void" judgment. A judgment is void if the court lacked the power to enter the judgment, usually when it lacked subject-matter or personal jurisdiction or if the court violated "due process of law" or engaged in "a plain usurpation of power." Matter of Whitney-Forbes, 770 F.2d 692, 696-97 (7th Cir. 1985); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224-25 (10th Cir. 1979); United States v. Holtzman, 762 F.2d 720, 724 (9th Cir. 1985); Nouata v. Pasene, 1 A.S.R.2d 25, 31 (App. Div. 1980). However, "[a] judgment which a court has the power to make, and one which [is] rendered in accordance with minimal standards of due process, is a valid judgment, even if it is incorrect." Nouata, 1 A.S.R.2d at 30; see Margoles v. Johns, 660 F.2d 291, 295 (7th Cir. 1981) (quoting V.T.A., 597 F.2d at 224); Holtzman, 762 F.2d at 724; United States v. 119.67 Acres of Land, 663 F.2d 1328, 1331 (5th Cir. 1981); Whitney-Forbes, 770 F.2d at 696 (even "gross errors" do not render a judgment void).
Two federal courts have upheld the Reid court’s decision. The federal district court stated that Reid was "not clearly erroneous or even an abuse of discretion. It certainly does not constitute the type of arbitrary, gross, or ’perverse’ reading of the law" necessary to constitute a taking of property without due process. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Hodel, 637 F. Supp. 1398, 1410 (D.D.C. 1986), aff’d 830 F.2d 374 (D.C. Cir. 1987). The appellate court said that the 1931 Nouata decision was "ambiguous on its face" and that the Reid court did not act arbitrarily in refusing to apply res judicata. Hodel, 830 F.2d at 380, 387. "[T]he errors alleged in the Samoan court proceedings did not constitute gross error or arbitrary action in violation of the Fifth Amendment." Id. at 387. The Lagafuaina decision, even if contrary to Reid, did not transform a valid judgment into a void judgment.
*146II. The Reid decision does not have prospective application under Rule 60(b)(5)
Contrary to appellant’s statement, Rule 60(b)(5) relief "is limited to a judgment based on a prior judgment reversed or otherwise vacated-based in the sense of res judicata, or collateral estoppel, or somehow part of the same proceeding." Tomlin v. McDaniel, 865 F.2d 209, 210-11 (9th Cir. 1989) (emphasis in original); see Marshall v. Board of Education, Bergenfield, New Jersey, 575 F.2d 417, 424 (3d Cir. 1978). No relief is available if the law used by a court was later overruled or declared to be erroneous in an unrelated proceeding. Marshall, 575 F.2d at 424 n.24 (quoting Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 650 (1st Cir. 1972)); Wallace Clark & Co., Inc. v. Acheson Industries, Inc., 394 F. Supp. 393, 395 n.4 (S.D.N.Y. 1975), aff’d 532 F.2d 846 (2d Cir. 1976); In re Master Key Antitrust Litigation, 76 F.R.D. 460, 463 (D.C. Conn. 1977), aff’d without opinion 580 F.2d 1045 (2d Cir. 1978).
Subsection (5) is inapplicable to the Reid judgment because the standard for "determining whether an order or judgment has prospective application ... is whether it is ’executory’ or involves ’the supervision of changing conduct or conditions.’" Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C. Cir. 1988) (citing United States v. Swift & Co., 286 U.S. 106 (1932); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421 (1856)). The Reid court did not issue an order which compelled or prohibited certain future actions or which required supervision of the parties’ conduct. See id.
m. This Court properly exercised its discretion in denying relief under Rule 60(b)(6)
The power to vacate judgments is only to be exercised in "extraordinary circumstances." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (quoting Ackermann v. United States, 340 U.S. 193, 199-200 (1950)); see Davisdon v. Dixon, 386 F. Supp. 482, 493 & n.2 (D. Del. 1974), aff’d without opinion 529 F.2d 511 (3d Cir. 1975); Nouata, 1 A.S.R.2d at 34. Obtaining relief under subsection (6) is also very difficult because "the movant must allege and prove such extraordinary circumstances as will be sufficient to overcome our overriding interest in the finality of judgments. ” Wilson v. Fenton, 684 F.2d 249, 251 (3d Cir. 1982) (quoting Mayberry v. Maroney, 529 F.2d 332, 337 (3d Cir. 1976)). This reluctance to reopen a final judgment is especially strong in regards to land titles. "The need for certainty with *147respect to land titles warrants a great deference to the need for finality of judgments." Ritter v. Smith, 811 F.2d 1398, 1401-02 (11th Cir. 1987); see also Collins v. City of Wichita, Kansas, 254 F.2d 837, 839 (10th Cir. 1958).
Even if the subsequent Lagafuaina decision were a sufficient basis on which to grant relief from Reid, the court is not obligated to do so; relief remains at the court’s discretion. See Professional Assets Mgmt., 616 F. Supp. at 1419-20 (citing Pierce v. Cook & Co., 518 F.2d 720 (10th Cir. 1975)); Ritter, 811 F.2d at 1401; Adams v. Merrill Lynch Pierce Fenner & Smith, 888 F.2d 696, 702 (10th Cir. 1989) ("absent such abuse of discretion, the district court’s [denial of relief] should not be disturbed"). Additionally, conflicting factual findings are possible in cases with different parties. Lagafuaina, 11 A.S.R.2d at 78-79. The granting of relief under subsection (6) is at the sound discretion of the court.
IV. Conclusion
Subsections (4) and (5) do not apply because the Reid judgment is not "arbitrary," nor does it have prospective application. Subsection (6) was the only possible means of relief from the Reid judgment, but this court has exercised its discretion in denying relief. Petitioner’s Rule 60(b) motion for relief from the final judgment was properly denied. Therefore, plaintiff’s motion for new trial, reconsideration, or rehearing is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486112/ | *160On Motion to Withdraw:
On March 16, 1993, District Court Judge Pro Tempore Roy J.D. Hall, Jr. appointed Jill W. Crew, a newly admitted member of the American Samoa Bar Association, as the court-appointed counsel for defendant Peniamina Wilson. Counsel Crew filed a motion to withdraw from her appointment as defense counsel on March 23, 1993, and a hearing on her motion was held on March 30, 1993. She claims financial hardship and argues, among other things, a constitutional "talcing" without just compensation.
The established tradition and practice in this jurisdiction has been such that members of the bar may be appointed, without compensation if necessary, to represent indigent defendants in criminal cases. This practice follows the majority rule, which permits a court to appoint counsel based on an attorney’s status as an officer of the court. As one court noted, "[t]he vast majority of federal and state courts which have addressed the due process issue have decided that requiring counsel to serve without compensation is not an unconstitutional taking of property without just compensation." Williamson v. Vardeman, 674 F.2d 1211, 1214-15 (8th Cir. 1982); see Powell v. Alabama, 287 U.S. 45, 73 (1932); United States v. Dillon, 346 F.2d 633, 635-36 (9th Cir. 1965), cert. denied 382 U.S. 978 (1966); Family Division Trial Lawyers of the Superior Court D.C., Inc. v. Moultrie, 725 F.2d 695, 705 (D.C. Cir. 1984). Thus, there is no "taking" of a lawyer’s "services without just compensation when he performs an obligation imposed upon him by the ancient traditions of his profession and as an officer assisting the courts in the administration of justice." Dillon, 346 F.2d at 636; see Moultrie, 725 F.2d at 705 (quoting Dillon); Williamson, 674 F.2d at 1215 (quoting Dillon).1
In reaping the benefits as a legal professional, an attorney accepts his office cum onere. One of his duties includes the gratuitous representation of indigent defendants. Williamson, 674 F.2d at 1214-15; *161Moultrie, 725 F.2d at 705; Warner v. Commonwealth, 400 S.W.2d 209, 211 (Ky. App. 1966), cert. denied 385 U.S. 858 (1966); People v. Randolph, 219 N.E.2d 337, 340 (Ill. 1966). As such, service as court-appointed counsel does not, in itself, constitute a constitutional "taking" without compensation. Williamson, 674 F.2d at 1214-15; Moultrie, 725 F.2d at 705; Warner, 400 S.W.2d at 211. This rationale is all the more compelling when the funds appropriated for appointed counsel have been exhausted. E.g., Wolff v. Ruddy, 617 S.W.2d 64 (Mo. 1981) (per curiam), cert. denied 454 U.S. 1142 (1982).
However, severe economic hardship is a factor which the court may appropriately consider in deciding whether to permit an attorney to withdraw as counsel. See, e.g., Wolff, 617 S.W.2d at 67 (court to consider right to earn a livelihood and to be free from involuntary servitude); Okeechobee County v. Jennings, 473 So. 2d 1314, 1315 (Fla. Dist. Ct. App. 1985) (granting motion to withdraw by attorneys claiming that further representation would cause "financial ruination"); see also Moultrie, 725 F.2d at 705-06 ("unreasonable amount of required uncompensated service might" constitute a "taking").
Counsel Crew testified that in her nine or ten weeks of practice, she has had to devote about two weeks of that time to this case. She further testified that she receives a salary and hourly rate as an "independent contractor" for Ala‘ilima & Associates, and her income is accordingly tied to billable hours she generates for the office. She has asserted monthly expenses exceeding $1300 a month and has claimed that these expenses, combined with a lack of current income and her prospective termination in May, would cause her severe financial hardship. Counsel further claims that her loss of income due to time spent on the defendant’s case is exacerbated by the complexities of the case and her inexperience with criminal proceedings. Attorney Charles Ala'ilima testified and confirmed that Ms. Crew has indeed spent 30 to 35 percent of her time "getting up to speed" on criminal-trial procedure. He testified that this has, in turn, created a financial strain on his office; at the same time he is phasing-out much of his practice in American Samoa. In fact, Jill Crew was apparently hired to help clear-out the backlog in Ala'ilima’s office, in preparation for its closing.
On the other hand, defendant Wilson still needs counsel for his criminal trial. This court also recognizes the work being done by other members of the bar in representing other indigent defendants during this period of judicial budgetary constraints. A number of attorneys have had to make sacrifices in terms of time and finances. In short, this court *162must insure that indigent criminal defendants receive legal representation. Rev. Const. Am. Samoa Art. I, § 6; A.S.C.A. §§ 46.0502(2), 46.1001. At the same time, this court is attempting to mitigate the financial hardships imposed by serving as court-appointed counsel. Nevertheless, each member of the bar, as an officer of the court, must be willing to serve as court-appointed counsel when the need arises.
Given counsel Crew’s present and special circumstances, this court grants counsel her motion to withdraw as Wilson’s defense counsel and instead appoints Charles Ala'ilima, who is a senior member of the bar, an experienced criminal-law attorney and former district-court judge. This arrangement is subject to the defendant’s approval. However, counsel Crew must nonetheless assist counsel Ala‘ilima, as he may require, in regards to her previous research and consultations with the defendant. In terms of the more effective employment of time within the office, this arrangement should mitigate the financial hardships to both counsel Crew and Ala'ilima. Of paramount importance, though, is defendant Wilson’s constitutional right to counsel, which will be protected by this order of the court.
Upon the written approval of Mr. Wilson, filed with the clerk, the order entered by Judge Hall, aforementioned, shall be amended accordingly.
It is so ordered.
Counsel’s citation of Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296 (1989), is inapplicable. The U.S. Supreme Court specifically stated that its decision was limited to interpreting 28 U.S.C § 1915(d), which permits a federal court to “request" an attorney to represent a person claiming forma pauperis status. Id. at 310. Indeed, the Court noted the ethical obligation of lawyers "to volunteer their time and skills." Id. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486113/ | Order Denying Motion for Reconsideration or New Trial:
Plaintiffs motion for reconsideration or new trial came regularly on March 26, 1993 for hearing. Plaintiff’s counsel appeared. Though given notice, defendant’s counsel was not present. The court, having considered the points raised by plaintiff’s motion, has concluded that all but one of them are adequately addressed and appropriately resolved in the court’s opinion and order of February 23, 1993.
The remaining point concerns plaintiff’s matai-title status. Plaintiff has taken issue with the factual basis of footnote number 3 in the *2opinion and order. He has asserted that the court took judicial notice, without any other evidentiary support, that plaintiff is a Western Samoa citizen, born in that country of parents who were not inhabitants of American Samoa, when in fact both his father and grandfather were bom in this Territory.
However, these factual findings were based on affirmative evidence and not on judicial notice. Plaintiff testified that he was born in Western Samoa and first came to American Samoa as a young man during the World War II era, after which he returned to Western Samoa until he undertook permanent residence here in 1968. The court’s findings as to plaintiff’s citizenship and his parents’ nationality and residency as inhabitants are reasonable inferences from this evidence.
Even if one assumes the American Samoan heritage of his father and grandfather, plaintiff is still disqualified, under A.S.C.A. § 1.0403, from holding a matai title in American Samoa. The law excepts birth outside American soil only if both parents were inhabitants of American Samoa and were temporarily residing outside of American Samoa or engaged in foreign travel at the time of the person’s birth. Plaintiff now claims that his father but not his mother was an inhabitant of American Samoa, in a nationalistic sense. Clearly plaintiff’s long-term residency in Western Samoa, the country of his citizenship, refutes any basis for finding that his parents transitorily resided in Western Samoa or were merely traveling abroad at his birth.
The purpose of footnote number 3 was to demonstrate plaintiff’s ineligibility to hold the Toilolo matai title and to forestall any credence the court’s opinion and order might otherwise lend to recognition of plaintiff’s right to hold this title. This purpose is still served.
Plaintiff has carried his argument on this point another step by contending that if he is disqualified from holding a matai title, he is also ineligible to be a pulenu'u, who under A.S.C.A. § 5.0301 must be appointed "from the ranks of the chiefs in each village." Thus, he argues that the surveyor and pulenu'u certificate, which he signed as the pulenu'u of the Village of Failolo to accompany the survey of the land at issue, was an invalid document.
However, a pulenu'u is a de jure public officer, and at the time of the survey, plaintiff was a de facto occupant of that position. A de facto public officer’s acts, if done within the scope and by the apparent authority of a de jure public officer, are binding, insofar as the rights of *3third persons are concerned; it is as if the de facto public officer were legally selected, qualified and in possession of the office. In re Redevelopment Plan for the Bunker Hill Urban Renewal Project 1B, 389 P.2d 538 (Cal. 1964), cert. denied and appeal dismissed, 379 U.S. 28 (1964), cert. denied, 379 U.S. 899 (1964).
Plaintiff has also referred to his testimony that the pulenu'u’s notice of a proposed survey was not actually given in Failolo, as A.S.C.A. § 37.0102(c) requires. However, this testimony was clearly contradicted by the surveyor and pulenu'u certificate, which is regular on its face. We found, and continue to find, that plaintiff was fully aware of the purpose of the survey and the certificate. The notice requirement was met.
Plaintiff’s motion for reconsideration or new trial is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486114/ | Order Approving First and Final Account of Administrator and for Final Distribution:
The motion by Wallace Jennings, Jr., administrator of the estate of Margaret Z. Jennings, for approval of the first and final account and for final distribution, came regularly on February 12, 1993, for hearing. The court, having heard testimony and considered the evidence, finds:
1. Due notice of the motion has been regularly given as prescribed by law.
2. All allegations of the account are true, except to add personalty on Swains Island to paragraph 9a below.
3. Margaret Z. Jennings died intestate on August 2, 1966, while domiciled in American Samoa.
a. An unwitnessed will has been presented to the court. The entire will, including the date of March 22, 1962, and the testator’s signature, is in the handwriting of one person, who appears to have been the decedent. This holographic will reflected the intended distribution of Swains Island, along with the improvements and personalty thereon, as expressed in the will of decedent’s husband, Alexander Eli Jennings, to their sons, Wallace H. Jennings and David E. Jennings. This intention was not fully carried out, as decedent exercised her right of dower and thereby acquired an undivided 1/3 interest in Swains Island, and the improvements and personalty thereon, during the probate of her husband’s estate. This probate was concluded on July 26, 1962.
b. The right to a testamentary disposition of property is derived from positive law. Although the common law recognized holographic wills, when legislation provides for the kind of wills which may be executed and the manner of execution, a will failing to meet those statutory requirements is not valid. In re Brown’s Estate, 172 P. 247 (Wash. 1918); Davis v. Davis, 45 S.W.2d 240, 241 (Tex. Civ. App. 1931); Ball v. Miller, 214 S.W.2d 446, 450 (Tenn. Ct. App. 1948). A.S.C.A. § 40.0102 clearly requires that the testator’s signature on any *5will, except one involving personalty which has a total value of not more than $300, must be witnessed. Thus, decedent’s holographic will cannot be recognized, except as to the personalty on Swains Island if that property has a combined value totaling no more than $300. Taking judicial notice that Swains Island is occupied and agriculturally cultivated, we infer and find that the estate’s share of the personalty on Swains Island exceeds the $300 maximum limit.
4.On June 16, 1989, Wallace Jennings, Jr. was appointed administrator of decedent’s estate and qualified as such on July 10, 1989. On July 24, 1989, letters of administration were issued to the administrator, who since then has been the administrator of decedent’s estate.
5. Notice to creditors has been given as required by law, and the time for filing or presenting claims has expired. No claims have been filed or presented against the estate.
6. No request has been made for the court to allow and determine any fees of the administrator for discharge of his duties or any fees of his attorney for services rendered to the estate.
7. There will be no further expenses of closing the estate.
8. The estate is now in a condition to be closed.
9. The assets of the estate, which have been inventoried in the account, are not communal property and are in the hands of the administrator for distribution. The assets are as follows:
a. an undivided one-third interest, by right of dower, in Swains Island, American Samoa, and all improvements and personalty thereon;
b. an undivided one-third interest, by right of dower, in the lease of land in Village of Gataivai/Utulei, American Samoa, which was recorded on April 23, 1940, with the Territorial Registrar of American Samoa (see "Native Leases," Volume II, pp. 101-02); and
c. an undivided one-third interest, by right of dower, in the improvéments for residential purposes on said leased land.
10. Said leased land and improvements are claimed to be communal land owned by the Atiumaletavai family, which is not in *6privity with this estate. In the absence of statutory authorization for privity exceptions in probate proceedings, their claims with respect to the land, lease and improvements must be determined, as may become necessary, in an independent action. See Schlyen v. Schlyen, 273 P.2d 897, 903 (Cal. 1954); Richer v. Superior Ct. in and for the County of Los Angles, 63 Cal. App. 3d 748, 756, 134 Cal. Rptr. 52, 56 (1976) (limitation.on probate court jurisdiction changed by statute).
11. Decedent had five children: Wallace H. Jennings, Lilly G. Billings, and David E. Jennings, who survived her but are now deceased; Ilaisa J. Thompson, who survived her and is still living; and Selepa J. Reed, who predeceased her. The latter left six children: Liki Reed, Ilaisa Reed, May R. Mageo, and Selepa Reed, who survived decedent and are still living; and Fritz Reed, Jr. and Rommel A. Reed, who survived decedent but are now deceased. Distribution should be ordered as specified below.
IT IS ORDERED that:
1. The administration of the estate is brought to a close.
2. All acts and transactions set forth in the account are confirmed and approved.
3. The statutory fees of the administrator and fees of his attorney, payable from the assets of the estate, are waived.
4. Notice to creditors has been given as required by law.
5. Decedent died intestate, leaving as her only heirs at law the persons, all adults, whose names and relationships to her are set forth below. They are to receive, as tenants in common, the property in the hands of the administrator. This property is to be distributed in the proportionate, undivided share set opposite each name.
Name Relationship Share
a. Wallace H. Jennings’ estate Son l/5th
b. Ilaisa J. Thompson Daughter l/5th
c. Lilly G. Billings’ estate Daughter l/5th
d. Liki Reed Grandson l/30th
e. Ilaisa Reed Granddaughter 1 /30th
f. May R. Mageo Granddaughter l/30th
g. Selepa Reed Granddaughter l/30th
*7h. Fritz Reed, Jr.’s estate Grandson l/30th
i. Rommel A. Reed’s estate Grandson l/30th
j. David E. Jennings’ estate Son l/5th
6. Any other property of the estate not now known that may belong to the estate or in which the decedent or the estate may have an interest shall be distributed in the same manner as provided in paragraph 5 of this order or, in the event any of the named heirs should then be deceased, to the estate of such deceased heir.
Judgment shall enter accordingly. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486115/ | *8Following a series of family meetings, Joe M. Fiaui filed, with the Office of the Territorial Registrar, his claim to succession to the matai title "Paopaoailua," pertaining to the Village of Aua. Niumalelega K. Semaia and Malia Shimasaki subsequently filed objections and their respective counter-claims to succession. After the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute pursuant to A.S.C.A. § 43.0302, the matter was referred to the Lands and Titles Division of the High Court. Malia Shimasaki withdrew her objection and counterclaim in open court. We proceeded to trial upon the remaining claims to succession.
In these matters, the court is guided by the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to family, village, and country.
FINDINGS
1. Hereditary Right
Fiaui claims 50% entitlement; his father was the previous titleholder. Niumalelega claims 6.25% entitlement, claiming that his great-great-grandfather was the original titleholder. Measured according to the method which the Court has traditionally used to evaluate heredity, Fiaui prevails because he can show the shortest descent path to a past titleholder. However, Niumalelega, claiming the better right of entitlement, contends that Fiaui’s ancestral roots derive from a titleholder who was adopted.
In re Matai Title Paopaoailua, LT No. 496-67 (1970), established that Fiaui’s branch of the family is entitled, as Fiaui’s father, Fiaui, Sr., prevailed in that case. We accordingly hold that candidate Fiaui is entitled to succeed and find on the evidence that he has a heredity claim of 50%. He thus prevails over Niumalelega on this issue.
2. Wish of the Clans
We find on the evidence that at the very first family meeting held to select a successor matai, a clear consensus was reached selecting Fiaui to succeed his aging and infirm father, Paopaoailua Fiaui, Sr. At the conclusion of the meeting, Fiaui took the kava cup without objection from anyone. Even candidate Niumalelega held out in support of Fiaui, *9as he had also participated in the kava ceremony. Following the family meeting, Fiaui accordingly applied to the Territorial Registrar to have the Paopaoailua title registered in his name. His application, however, was met with the subsequent objection of Niumalelega (as well as Malia Shimasaki); he had changed his mind about the outcome of the family’s deliberations. This gave rise to a number of further family meetings to address Niumalelega’s objection. The evidence is clear that even at these later meetings, Fiaui continued to hold the overwhelming weight of family opinion. We find that Fiaui has, at the very least, the support of the majority of the clans of the family.
3. Forcefulness, Character and Personalty, and Knowledge of Samoan Customs
In our evaluation of the parties, we find both candidates to be about equal on the question of forcefulness, character and personalty. As to knowledge of Samoan customs, both candidates fared roughly equal in their responses to the examination by the Associate Judges, with neither candidate appearing particularly impressive in this regard.
4. Value to Family, Village, and Country
Both candidates have been actively involved in both family and village concerns, including service to the church. While Fiaui has mostly worked in government service, Niumalelega has dedicated his career to private sector employment. In their own chosen fields, they have each contributed to the general well-being of the territory. Fiaui, however, impresses us as having the better leadership potential. He not only commands widespread support and following within the family, but he also has the stronger background in training and work experience. We find Fiaui to be better suited to head the family and rate him ahead of Niumalelega on this last criterion.
CONCLUSIONS
Based on the foregoing, we hold that Joe M. Fiaui is qualified to hold the title Paopaoailua. He prevails over Niumalelega K. Semaia on the first, second and fourth criteria. The Territorial Registrar shall accordingly register the Paopaoailua title from the Village of Aua in candidate Joe M. Fiaui, in accordance with the requirements of A.S.C.A. § 1.0409(b).
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486116/ | Defendant Eti Fealofa'i brought a number of pre-trial motions.
A. On Motion to Dismiss
Defendant moves to dismiss Count II of the Information, on the grounds that Count II, Assault in the First Degree, is a lesser-included offense of Count I, Murder in the Second Degree. As we stated in American Samoa Government v. Moafanua, 4 A.S.R.2d 33, 35 (1987) (quoting Brown v. Ohio, 432 U.S. 161, 166 (1977)), offenses are not inclusive so long as "each provision requires proof of a fact that the other does not."
However, a close reading of the relevant statutes, A.S.C.A §§ 46.3503 & 46.3520, reveals no element of the latter which is not present in the former. A.S.C.A. § 46.3520, Assault in the First Degree, includes the inchoate offense of homicide and, as such, is necessarily a lesser-included offense of Murder in the Second Degree.
Defendant’s Motion to Dismiss Count II of the Information is therefore GRANTED.
B. On Motion to Suppress Written Statement
Defendant also moves to suppress the written statement provided to a Special Investigator of the Department of Public Safety. He contends that the statement was made while he was in a custodial situation, as "the target of police investigation," and that the failure to provide him with his "Miranda rights" at that time prevents the admission of the statement.
We are not persuaded, however, that the defendant, a police officer himself, was in a custodial situation at the time the statement was made. Nor do we find any indication that the statement was less than fully voluntary. The Special Investigator testified that the defendant was not the "target" of the investigation when Fealofa'i provided his written statement, only hours after the alleged incident occurred. To the contrary, the Special Investigator merely wanted to find out "what had happened," in general terms, and did not question the defendant with an *12eye towards confirming any pre-existing theory as to what had occurred. The defendant was not arrested after giving his statement.
While it is true that the statements were given at the Tafuna Police Substation, this was the defendant’s place of employment, a familiar and non-threatening environment. The defendant was on duty at the time the statement was made. The Special Investigator was not wearing any sort of uniform which might intimidate the defendant, nor was it certain that he even outranked the defendant. There was no indication that defendant was not free to leave (save, perhaps, that he was still on duty) or that he was compelled to provide the written statement. In short, there was nothing in the evidence to suggest that the defendant was in a custodial situation at any time, or that a coercive atmosphere existed, when he provided his written statement.
The Motion to Suppress the Written Statement of the Defendant is, therefore, DENIED.
C. On Motion to Suppress Photographic Line-Up
Defendant’s penultimate motion, to suppress any and all information obtained as a result of the photographic line-up conducted by the Attorney General’s Office, alleges that the method of identification of the defendant was unduly prejudicial. According to the Attorney General’s investigator, Sam Matagi, the alleged victims were shown an array of twenty-one photographs. Of these photographs, snipped from driver’s licenses, seven were of the defendants in the present case, four were of other safety officers present at either Kanana Fou or the O.M. V. police substation on the night in question, while the balance was a mix of safety officers not present that night and ordinary civilians. According to Matagi, on the reverse of each of the photographs was a number. When the alleged victims singled out one of the photographs, Matagi would note down the number, then correlate that number with the appropriate name. In some instances, the alleged victims knew the name of the officer already. Matagi testified that under no circumstances did he suggest to the alleged victims the names of the defendants or single out one particular photograph for special attention.
The defendant alleges that this photographic line-up procedure was unduly suggestive and prejudicial. We disagree. In determining admissibility of identification testimony, "reliability is the linchpin." Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145, 147 (1990) (quoting Manson v. Braithwaite, 432 U.S. 98, 114 (1977)). In *13Afamasaga, we rejected the defendant’s allegation that a one-on-one confrontation was unduly suggestive, after noting that "even an impermissibly suggestive identification procedure does not render an identification inadmissible if, in the totality of circumstances, the identification was nonetheless reliable." Id. at 146. Factors which are to be considered in judging reliability include
the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
Id. at 147. The identification procedure used in the instant case is less susceptible to the charge of suggestiveness than the one challenged in Afamasaga. There is no reason to question either the reliability of the photo line-up . or the sworn testimony of the Attorney General’s investigator to the effect that he did not suggest the names of any of the defendants.
The Motion to Suppress the Photographic Line-Up is, therefore, DENIED.
D. On Motion for Severance
Defendant, in his final motion, seeks a separate trial. He asserts that if this is not done, the jury will infer conduct of his co-defendants upon him, in contravention of his right to an impartial jury. Additionally, he maintains that, due to the large number of defendants and the relatively small number of peremptory challenges, he will face a jury containing members that "he does not want there."
We note at the outset that the decision to sever properly joined defendants (and all parties have agreed that defendants were properly joined, per T.C.R.Cr.P. 8(b)) is made at the sound discretion of the trial court. See, e.g., United States v. Lane, 474 U.S. 438, 449, n.12 (1986). The United States Supreme Court has stated that a
court should grant a severance under Rule 14 [the equivalent of T.C.R.Cr.P. 14] only if there is a serious risk that a joint trial would compromise a specific trial *14right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. . . . For example, evidence of a codefendant’s wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened.
Zafiro v. United States, 61 U.S.L.W. 4147, 4148 (U.S. Jan. 26, 1993) (No. 91-6824). While none of these factors mandates that a separate trial be granted, they are to be considered in deciding upon a severance motion.
Defendant’s contention that he will be unable to utilize his peremptory challenges to screen-out jurors that he does not want is wholly lacking in merit. It is well settled that a defendant does not have the right to a trial by any particular jury or jurors, but only to a trial by a competent and impartial jury. American Samoa Government v. Agasiva, 4 A.S.R.2d 110, 112 (1987). In addition, T.C.R.Cr.P. 24(b) gives the trial court discretion, in joint trials, to grant additional peremptory challenges to the defendants, so as to relieve possible inequities of such trials.
Taking into account all of the above considerations, the court agrees to spare the defendant the possible burden of being tried together with eight other defendants. Instead, he will be tried with only a single co-defendant, Thomas Schuster. The similarity of the charges aimed at these two defendants makes theirs a logical pairing.
The Motion for Severance is, therefore, GRANTED, on the conditions stated above.
It is so ordered.
It is further ordered that trial in this matter shall be held as previously scheduled. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486117/ | *16Defendant Thomas Schuster brought a number of pre-trial motions.
A. On Motion to Dismiss Count V of the Information
Defendant Thomas Schuster moves to dismiss Count V of the Information, on the grounds that Count V, Assault in the First Degree, is a lesser-included offense of Count IV, Murder in the Second Degree. As we stated in American Samoa Government v. Moafanua, 4 A.S.R.2d 33, 35 (1987) (quoting Brown v. Ohio, 432 U.S. 161, 166 (1977)), offenses are not inclusive so long as "each provision requires proof of a fact that the other does not."
However, a close reading of the relevant statutes, A.S.C.A §§ 46.3503 & 46.3520, reveals no element of the latter which is not present in the former. A.S.C.A. § 46.3520, Assault in the First Degree, includes the inchoate offense of homicide and, as such, is necessarily a lesser-included offense of Murder in the Second Degree.
Defendant’s Motion to Dismiss Count V of the Information is, therefore, GRANTED.
B. On Motion to Dismiss Count VI, Murder in the Second Degree
At the outset, we note that the defendant must be referring to Count IV of the Information; Count VI of the Information contains the charge of Assault in the First Degree. Defendant Schuster asserts that the allegation of Count IV of the Information is not made with sufficient specificity, thus denying him adequate notice of the charge against him. He maintains that the term "recklessly," as used in A.S.C.A. § 46.3503 and in the Information, "carries with it no imputation of the conduct of Defendant which is alleged to constitute the basis of the offense charged." We disagree. Unlike the statute cited by the defendant in his motion, A.S.C.A. § 46.3503 does not contain the word "willfully"; therefore, the dilemma facing the Ninth Circuit in U.S. v. Kurka, 818 F.2d 1427 (9th Cir. 1987), is not before us. The term "recklessly" is defined in A.S.C.A. § 46.3202(d). Consequently, Count IV of the Information "sets forth ’fully, directly and expressly, without any uncertainty or ambiguity, ... all the elements necessary to constitute the offense intended to be punished.’" Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145, 150 (1990).
*17Likewise, the defendant’s assertion that Count IV of the Information is fatally flawed because it does not specify the location of the alleged unlawful activity leaves us unimpressed. . It strikes us as an attempt to discover the prosecution’s trial strategy, rather than a valid request for greater clarity or specificity. There are no double jeopardy issues involved, for the "entire record of the proceedings, and not just the information alone, may be referred to if there is a claim of double jeopardy with a subsequent prosecution." Id. The material already provided by the government is sufficient to put the defendant on notice of the charges against him.
Defendant’s Motion to Dismiss Count IV of the Information is, therefore, DENIED.
C. On Motion for Severance
Defendant seeks a separate trial. He asserts that if this is not done, he will be denied his constitutional right to cross-examine the other defendants, whose written statements will be introduced into evidence. He also claims that at least one other defendant is willing to testify in his favor, if severance is granted. If it is not, the witness/defendant will presumably exercise his Fifth Amendment right against self-incrimination, thus denying Schuster the benefit of this testimony.
We note at the outset that the decision to sever properly-joined defendants (and all parties have agreed that defendants were properly joined, per T.C.R.Cr.P. 8 (b)) is made at the sound discretion of the trial court. See, e.g., United States v. Lane, 474 U.S. 438, 449, n. 12 (1986). The United States Supreme Court has stated that a
court should grant a severance under Rule 14 [the equivalent of T.C.R.Cr.P. 14] only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.
Zafiro v. United States, 61 U.S.L.W. 4147, 4148 (U.S. Jan. 26, 1993) (No. 91-6824).
• We note that "[t]he ’great mass’ of cases refuse to grant a severance despite the anticipated exculpatory testimony of a co-defendant." United States v. Gay, 567 F.2d 916, 919 (9th Cir. 1978). And we are not persuaded by the defendant’s attorney’s bare affidavit *18that such a witness exists and will testify. Greater specificity should be provided in order for us to consider a severance on these grounds.
The defendant’s Bruton concerns are a little more troubling. Fortunately, our decision to separate defendants Schuster and Fealofa’i from the other defendants eases our apprehensions at the possibility of conforming to the guidelines established by Bruton and its progeny. With only a single co-defendant, solutions such as redaction become much more tenable.
Taking into account all of the above considerations, the court agrees to spare the defendant the possible burden of being tried together with eight other defendants. Instead, as stated previously, he will be tried with only a single co-defendant, Eti Fealofa’i. The similarity of the charges aimed at these two defendants makes theirs a logical pairing.
The Motion for Severance is, therefore, GRANTED, on the conditions stated above.
D. On Motion to Suppress Photographic Line-Up
Defendant’s final motion, to suppress any and all information obtained as a result of the photographic line-up conducted by the Attorney General’s Office, alleges that the method of identification of the defendant was unduly prejudicial. According to the Attorney General’s investigator, Sam Matagi, the alleged victims were shown an array of twenty-one photographs. Of these photographs, snipped from driver’s licenses, seven were of the defendants in the present case, four were of other safety officers present at either Kanana Fou or the O.M.V. police substation on the night in question, while the balance was a mix of safety officers not present that night and ordinary civilians. According to Matagi, on the reverse of each of the photographs was a number. When the alleged victims singled out one of the photographs, Matagi would note down the number, then correlate that number with the appropriate name. In some instances, the alleged victims knew the name of the officer already. Matagi testified that under no circumstances did he suggest to the alleged victims the names of the defendants or single out one particular photograph for special attention.
■ The defendant alleges that this photographic line-up procedure was unduly suggestive and prejudicial. We disagree. In determining admissibility of identification testimony, "reliability is the linchpin." Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145, 147 *19(1990) (quoting Manson v. Braithwaite, 432 U.S. 98, 114 (1977)). In Afamasaga, we rejected the defendant’s allegation that a one-on-one confrontation was unduly suggestive, after noting that "even an impermissibly suggestive identification procedure does not render an identification inadmissible if, in the totality of circumstances, the identification was nonetheless reliable." Id. at 146. Factors which are to be considered in judging reliability include
the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
Id. at 147. The identification procedure used in the instant case is less susceptible to the charge of suggestiveness than the one challenged in Afamasaga. There is no reason to question either the reliability of the photo line-up or the sworn testimony of the Attorney General’s investigator to the effect that he did not suggest the names of any of the defendants.
The defendant also attempts to argue that his photograph was unlawfully "seized" in violation of his Fourth Amendment rights. The photograph was obtained, as mentioned above, from a copy of the defendant’s driver’s license on file at the Office of Motor Vehicles. We find that there is no reasonable expectation of privacy in one’s driver’s license, and thus the argument is without merit.
The Motion to Suppress the Photographic Line-Up is, therefore, DENIED.
It is so ordered.
It is further ordered that trial in this matter will be held as previously scheduled. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486118/ | Defendant Fautua Maiava brought two pre-trial motions.
A. On Motion to Suppress Written Statement
Defendant moves to suppress the written statement provided to a Special Investigator of the Department of Public Safety. He contends that the statement was made while he was in a custodial situation, as "the target of police investigation," and that the failure to provide him with his constitutional rights at that time prevents the admission of the statement.
*21We are not persuaded, however, that the defendant, a police officer himself, was in a custodial situation at the time the statement was made. Nor do we find any indication that the statement was less than fully voluntary. The Special Investigator testified that the defendant was not the "target" of the investigation when Fealofa’i provided his written statement, only hours after the alleged incident occurred. To the contrary, the Special Investigator merely wanted to find out "what had happened," in general terms, and did not question the defendant with an eye towards confirming any pre-existing theory as to what had occurred. The defendant was not arrested after giving his statement.
While it is true that the statements were given at the Tafuna Police Substation, this was the defendant’s place of employment, a familiar and non-threatening environment. The defendant was on duty at the time the statement was made. The Special Investigator was not wearing any sort of uniform which might intimidate the defendant, nor was it certain that he even outranked the defendant. There was no indication that defendant was not free to leave (save, perhaps, that he was still on duty) or that he was compelled to provide the written statement. In short, there was no evidence that the defendant was in a custodial situation at any time or that a coercive atmosphere existed, when he provided his written statement.
The Motion to Suppress the Written Statement of the Defendant is, therefore, DENIED.
B. On Motion to Suppress Photographic Line-Up
Defendant’s other motion, to suppress any and all information obtained as a result of the photographic line-up conducted by the Attorney General’s office, alleges that the method of identification of the defendant was unduly prejudicial. According to the Attorney General’s investigator, Sam Matagi, the alleged victims were shown an array of twenty-one photographs. Of these photographs, snipped from driver’s licenses, seven were of the defendants in the present case, four were of other safety officers present at either Kanana Fou or the O.M.V. police substation on the night in question, while the balance was a mix of safety officers not present that night and ordinary civilians. According to Matagi, on the reverse of each of the photographs was a number. When the alleged victims singled out one of the photographs, Matagi would note down the number, then correlate that number with the appropriate name. In some instances, the alleged victims knew the name of the officer already. Matagi testified that under no circumstances did he *22suggest to the alleged victims the names of the defendants or single out one particular photograph for special attention.
The defendant alleges that this photographic line-up procedure was unduly suggestive and prejudicial. We disagree. In determining admissibility of identification testimony, "reliability is the linchpin." Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145, 147 (1990) (quoting Manson v. Braithwaite, 432 U.S. 98, 114 (1977)). In Afamasaga, we rejected the defendant’s allegation that a one-on-one confrontation was unduly suggestive, after noting that "even an impermissibly suggestive identification procedure does not render an identification inadmissible if, in the totality of circumstances, the identification was nonetheless reliable." Id. at 146. Factors which are to be considered in judging reliability include
the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
Id. at 147. The identification procedure used in the instant case is less susceptible to the charge of suggestiveness than the one challenged in Afamasaga. There is no reason to question either the reliability of the photo line-up or the sworn testimony of the Attorney General’s investigator to the effect that he did not suggest the names of any of the defendants.
The Motion to Suppress the Photographic Line-Up is, therefore, DENIED.
In addition, the court, upon its discretion and in accordance with T.C.R.Cr.P Rule 14, orders that the trial of the defendant be partially severed from those of the other defendants. The defendant Fautua Maiava shall be tried together with defendants Tamasamoa Tauai, Ronald Tui, and Peniamina Wilson.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486120/ | Defendant Peniamina Wilson brought several pre-trial motions.
A. On Motion for Severance
Defendant seeks to sever his trial from that of the other defendants. He asserts that if this is not done, the jury will infer conduct of his co-defendants upon him, in contravention of his right to an impartial jury. Additionally, he maintains that, due to the large number of defendants and the relatively small number of peremptory challenges, he will not be able to obtain "jurors that are preferred and desired to be selected."
We note at the outset that the decision to sever properly-joined defendants (and all parties have agreed that defendants were properly joined, per T.C.R.Cr.P. 8(b)) is made at the sound discretion of the trial court. See, e.g., United States v. Lane, 474 U.S. 438, 449, n.12 (1986). The United States Supreme Court has stated that a
court should grant a severance under Rule 14 [the equivalent of T.C.R.Cr.P. 14] only if there is a serious risk that a joint trial would compromise a specific trial right of one. of the defendants, or prevent the jury from *28making a reliable judgment about guilt or innocence. . . . For example, evidence of a codefendant’s wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened.
Zafiro v. United States, 61 U.S.L.W. 4147, 4148 (U.S. Jan. 26, 1993) (No. 91-6824). While none of these factors mandates that a separate trial be granted, they are to be considered in deciding upon a severance motion.
Defendant’s contention that he will be unable to obtain jurors he prefers is wholly lacking in merit. It is well settled that a defendant does not have the right to a trial by any particular jury or jurors, but only to a trial by a competent and impartial jury. This he will get.
Taking into account all of the above considerations, the court agrees to spare the defendant the possible burden of being tried together with eight other defendants. Utilizing the sound discretion which informs the decision to sever co-defendants under T.C.R.Cr.P. Rule 14, we order that defendant Peniamina Wilson shall be tried together with defendants Ronald Tui, Fautua Maiava, and Tamasamoa Tauai.
The Motion for Severance is, therefore, GRANTED, on the conditions stated above.
B. On Motion to Suppress Written Statement and Photo Line-Up
Defendant asserts that the written statement of defendant made on the morning of December 29, 1992, was invalid, as defendant was not informed of his constitutional rights before such statement was made. In addition, he contends that the photographic line-up used to identify him was unduly suggestive and violative of his due process rights and that any evidence obtained as a result of this lineup should be suppressed. In the interest of brevity, we state here only that these arguments lack merit. A fuller discussion may be found in our Order dated April 28, 1993, in CR No. 03-93.
The Motion to Suppress Written Statement and Photo Line-Up is, therefore, DENIED.
*29
C.On Motion for List of Prosecution Witnesses
The defendant has shown no need for a list of prosecution witnesses and is not entitled to one under either T.C.R.Cr.P. Rule 16(a)(2) or the Constitution. See United States v. Napue, 834 F.2d 1311, 1317 (7th Cir. 1987).
The Motion for List of Prosecution Witnesses is, therefore, DENIED.
D. On Motion for Bill of Particulars
Defendant claims that the information filed by the government is lacking sufficient detail to enable him to properly prepare for trial. He asks for additional information establishing the elements of the charges brought against him, namely assault in the first degree, assault in the third degree, and fabricating physical evidence. We do not find that the information provided by the government to be so wanting as to require such a bill of particulars.
So long as the defendant has enough information to "adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense," United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1972), a bill of particulars is not required. The defendant is required to look at all of the sources provided by the government, not simply the information formally charging him with the crime. See 1 C. Wright, Federal Practice and Procedure § 129, at 437 (1982). We are satisfied that the government has provided sufficient specificity to make the defendant aware of the charges and to allow him to prepare for his defense. "Bills of particulars are not to be used as a discovery tool by the defendant," U.S. v. LBS Bank-New York, Inc., 757 F. Supp. 496, 507 (E.D. Pa. 1990); to allow the defendant his motion would be to sanction just such a procedure.
The Motion for Bill of Particulars is, therefore, DENIED.
E. On Motion to Dismiss
The defendant’s final motion seeks to dismiss the charge of Fabricating Physical Evidence for lack of evidence. At the hearing, defendant’s counsel contended that the government did not identify which document was misleading or which government official was misled. The government replied that the document in question was the statement made *30by the defendant on the morning of December 29, 1992, and the government officials mislead by this document were those investigating the incident, who were present at the preliminary examination of the defendant. We are satisfied that there was sufficient evidence at the time of this preliminary examination to sustain the charge against the defendant.
The Motion to Dismiss is therefore DENIED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486591/ | DISSENT
ATIULAGI, Associate Judge.
I would award the title “Tagoilelagi” to Fagaoali'i.
Fagaoali'i clearly has the superior hereditary right to the title. I interpret the evidence of the family meetings as resulting not in majority clan support for Ulimasao but in no decision for either candidate,' and would therefore find a draw on the clan wish criterion.
On the third and fourth criteria, I believe that based on his education and career achievements, Fagaoali'i is a more forceful person and, a stronger leader. Moreover, unlike Ulimasao, Fagaoali'i has lived in American Samoa his entire life except when attending college. In addition, he also has held a family matai title for many years, longer than Ulimasao has held his present title. . 1
Since I would find that Fagaoali'i prevails over Ulimasao on the first, third, and fourth criteria, I believe that the title “Tagoilelagi” should be awarded to Fagaoali'i. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486592/ | OPINION AND ORDER
The matai title I'aulualo has been vacant for many years. Among other things, a longstanding history of factional rivalry within the I'aulualo extended family has existed between the immediate families of candidate Folau I'aulualo and candidate Tuasivi S. I'aulualo.1 The I'aulualo family has since been divisive on the issue of matai succession, an issue which has been before this court earlier but remanded back to the family after the court found that none of the candidates then vying for the title were legally eligible to succeed. See Aoelua v. I'aulualo, 25 A.S.R.2d 116 (Trial Div. 1994), aff'd Siofaga v. I'aulualo, AP No. 06-94 (App. Div. 1995). Once again, this dispute is before the court. Contesting succession at this time are Folau S. I'aulualo (“Folau”), Tuasivi S. I'aulualo (“Tuasivi”), and Pule Sitaiai Ma'ileoi (“Pule”).
In these matters we look to the four statutory criteria set out in A.S.C.A. § 1.0409(c), namely; (1) best hereditary right, (2) clan support, (3) forcefulness, character and personality, and knowledge of Samoan customs, and (4) value to family, village, and country.
Discussion
A. Best Hereditary Right
We find that all three candidates are blood heirs to the matai title I'aulualo. We further find that all three candidates descended from the first title-holder established in Afono, I'aulualo Tuua. Family history records the first titleholder as having three issue: Sili'i (female); Taualoa (female); and Solo (male). The three candidates before the court are all descended from Taualoa. In these circumstances where family history is harmonious, we apply the Sotoa rule in calculating best hereditary right. See In re Matai Title “Misa, ” AP No. 09-95 (App. Div. 1997); In re Matai Title "Lolo," 25 A.S.R.2d 175, 176 (Land and Titles Div. 1994); In re Matai Title "Sotoa, ” 2 A.S.R.2d 15 (Lands and Titles Div. 1990).
We find that Folau is sixth generation descendant; Tuasivi is sixth *240generation descendant; and Pule is fifth generation descendant. Since Pule is a generation ahead of Folau and Siofaga, we conclude that Pule prevails on the issue of best hereditary right.
B. Clan Support
No dispute on the evidence exists as to clan makeup and number. There are three traditional clans in the Faulualo family, namely, the Sili'i, Taualoa, and Solo clans. The evidence further shows that the Faulualo family met on several occasions to select a matai. Three meetings were initially convened in Afono. Then there were two meetings held before the Office of Samoan Affairs, and a short discussion took place in Ili'ili. While Folau did not attend any of the family meetings at Afono, his uncle Maave attended for Folau’s side of the family.
The family failed to reach a consensus at the first and second meetings at Afono; however, a settlement or compromise was arrived at during the third meeting. Here, the whole family agreed that Maave would hold the family's other vacant chiefly title “Laupola,” while its orator title “Faulualo” would be co-held by Pule and Siofaga Faleseu, the father of Tuasivi. Faleseu, on other hand, withdrew from contention and that left Pule as the sole appointee. At the conclusion of this conciliatory effort by the assembled family, Maave gave a speech praising and thanking the family for its tofa (the wisdom of its judgment [in appointing he and Pule to the family's two vacant titles]). He then advised the gathering that he would personally convey the family's decision to Folau, whom he referred to as “his son.”
With Folau unyielding on his position that the matter be taken to court, there were two subsequent, and requisite, meetings at the Office of Samoan Affairs pursuant to the requirements of A.S.C.A. § 43.0302. Folau did not attend the first meeting, although he attended the second only after he was directed by Samoan Affairs to participate. At the latter meeting, Folau advised the family that the matter would be taken to court as he had already offered the title for registration with the Territorial Registrar. Folau's registration application attracted the objection of Pule and Tuasivi.
On the foregoing, we find that neither the candidacy of Folau nor the candidacy of Tuasivi were presented to the assembled family for its consideration. Therefore, they can lay no claims to family support. On the other hand, we find that Pule's candidacy was not only presented to the family but was unanimously endorsed by family consensus. Accordingly, we hold that Pule prevails on the issue of clan support.
*241C. Forcefulness, Character and Personality, and Knowledge of Samoan Customs
Folau is 53 years of age and presently resides in Ili'ili. He left the territory at the age of 16 and, after graduating from high school in San Francisco, he joined the construction industry in the mainland and worked his way to general foreman. He returned to American Samoa with a mainland contractor that was contracted by the American Samoa Government to construct the Afono road project. Folau has since remained in the territory, working first with the Department of Public Works, and then with TEMCO, coordinating territorial disaster programs with local government officials. He has also served as a member of the Flag Day Committee during various administrations.
Within his church, Folau’s service has gained him prominence. He has held the office of failautusi aoao (secretary general) and he has also served on numerous church development committees.
Pule is 59 years of age and also resides in Ili'ili. He has had a varied work history. After high school, he joined the government working first as a school teacher and then with the Department of Public Works for one year, before leaving to work with the private sector. After two years working at the fish canneries, he went back to government to the Department of Agriculture (“DOA”) where he remained for twenty-three years until he was medically discharged. While employed with the DOA, he represented the department at various off-island seminars and workshops. He is also a member of the Territorial Humanities Council, a government body commissioned with promoting awareness of the native culture.
Tuasivi is 27 years of age and currently resides in Afono. After high school, he attended Community College and then spent some time in Hawaii working at a variety of jobs, including driving a food delivery track and dancing in a Polynesian entertainment show. He recently returned home to serve the family in Afono and is currently employed with the Department of Port Administration as a security officer on the main docks. Tuasivi also helps out with the family business in Afono.
Under this heading, Folau prevails on the forcefulness factor. He has the more impressive work history. He is aggressive, but to a fault in some serious respects. He seems less amenable to counsel and rather headstrong in his quest to become the next titleholder. Being unsuccessful with the family in his bid to become the I'aulualo, he has singularly forced the issue of matai succession to the courts.
*242On the other hand, we rate Pule ahead of both Folau and Tuasivi on the consideration of character, personality, and knowledge of Samoan customs. Having observed his demeanor on the stand and evaluated his responses to the various questions fielded by him, we rate him ahead on the issue of knowledge of Samoan customs. At the same time, he impressed us as being a humble, composed, and level-headed individual, traits that no doubt weighed with the family when they attempted to give the title to him. In our view, he best fits the bill as peacemaker within a very discordant family. Although we had some initial reservations with his health which prompted his early retirement, we find that Pule has not slowed down in retirement and that his life has not been one of leisure. Besides a history of progressive leadership assignments within his church, Pule continues to work, supplementing the family income with crop farming and a small store he operates in Ili'ili.
Tuasivi's youth weighs against him; his comparatively brief history to date merely bespeaks the fact that he is only just starting out in life. He is, however, a confident and promising young man that the I'aulualo family can certainly look to in the future. Service to the family and village are very much a part of his future goals, as is evident by his participation in various community chores under the direction of the pulenu'u and his attendance at the youth activities of his church at Afono. While his side was prepared to accept the family's decision reached at Afono, his candidacy was an afterthought prompted by the realization that the issue of matai succession would be pursued beyond the family's decision, and his immediate family's desire for representation in a judicial proceeding.
Overall, we find Pule to prevail on this consideration.
D. Value to Family, Village, and Country
As we stated above, Tuasivi shows potential as a prospective leader. Apart from the fact that he lives in the village and is thus more in daily contact with village and family responsibility, Tuasivi is immediately disadvantaged because he does not have the history of family, village, and country, commitments that the other candidates exhibit.
Both Folau and Pule have both served the family by contribution to fa'alavelave and village obligations. They both demonstrate adequate resources available if selected to undertake the responsibilities of the titleholder. They have both rendered service to the people and government of American Samoa beyond their respective positions of employment by serving on government commissions. However, the scales must also tilt here in favor of Pule on the factor we alluded to above; that is, the best potential for restoring peace and harmony to a *243family that has been divided for too long. Unlike Folau, Pule enjoys a significant measure of family following. Unlike Folau, he does not belong to either of the factions that have plagued the family with rivalry. He is thus in a unique position to best serve the immediate needs of the I'aulualo family. Pule prevails also on this consideration.
Conclusion and Order
Based on the foregoing, we hold that Pule is qualified to hold the title I'aulualo as he prevails on all four statutory criteria. The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title I'aulualo, attached to the village of Afono, in candidate Pule Sitaiai Ma'ileoi.
It is so ordered.
Some insight into this rivalry may be found in I'aulualo v. Siofaga, 10 A.S.R.2d 26 (Land & Titles Div. 1989). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486121/ | *31On Motion for Relief from Judgment:
Respondent, Jose M.B. Rocha, seeks relief from final judgment under T.C.R.C.P. Rule 60(b), on the grounds of "extrinsic fraud." Rule 60(b)(3), however, requires that motions grounded on fraud "shall be made within a reasonable time . . . and not more than one year after judgment." (Emphasis added.) The motion here was not made within one year and is therefore untimely.
Alternatively, plaintiff moves under Rule 60(b)(6), which provides for relief for "any other ground justifying relief from the operation of judgment." Subsection (6) motions are subject to a "reasonable time" limitation. Notwithstanding, respondent is not entitled to relief hereunder, since Rule 60(b)(6) and Rule 60(b)(3) are mutually exclusive. Taulaga v. Patea, 12 A.S.R.2d 64, 65-66 (1989). That is, the claimed grounds for Rule 60(b)(6) relief must not also fall under subsections (l)-(5). Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863 (1988); Davidson v. Dixon, 386 F. Supp. 482, 493 n.2 (D. Del. 1974), aff’d without opinion 529 F.2d 511 (3d Cir. 1975); Stradley v. Cortez, 518 F.2d 488, 494 (3d Cir. 1975). See also Smith v. Secretary of Health and Human Services, 776 F.2d 1330, 1332-33 (6th Cir. 1985) (because "[i]t has been suggested" that Rule 60(b)(6) only applies when (l)-(5) do not, the court did not abuse its discretion in denying relief).
For the reasons given, the motion is DENIED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486123/ | Defendant Tupulua Tagaloa brought two pre-trial motions.
A. On Motion for Relief From Prejudicial Joinder
Defendant seeks a separate trial. He asserts that the jury will be unable to distinguish or compartmentalize the evidence against each defendant. He is also concerned that the charges being brought against two of the other defendants are more serious than those being brought against him, creating a situation where he might be found guilty by association.
While we do not make a decision on the merit of these arguments or the ability of proper jury instructions to adequately address these concerns, our decision to grant a limited severance should assuage the defendant’s fears. Utilizing the sound discretion which informs the decision to sever co-defendants under T.C.R.Cr.P. Rule 14, we order *38that defendant Tupulua Tagaloa shall be tried with Swain Meleisea and Masefau Suiaunoa.
The Motion for Relief From Prejudicial Joinder is therefore GRANTED, on the conditions stated above.
B. On Motion to Quash Arrest Warrant and Dismiss Information
The defendant contends that the warrant for his arrest was issued in contravention of A.S.C.A. § 46.0801 et seq., as it was signed by the district court judge and not, as the statute implies, by the Chief Justice, the Associate Justice, or an assistant judge. While he admits that T.C.R.Cr.P. Rule 4(c)(1) authorizes the district court judge to issue arrest warrants, he correctly states that these administrative rules of procedure do not "trump" statutory declarations. He therefore asserts that, his arrest being invalid, the information should be quashed. We disagree.
The Supreme Court has established that even an arrest warrant which is violative of the Fourth Amendment does not always negate the validity of the information. "[I]t does not follow that because the arrest was illegal, the information was or became void." Albrecht v. United States, 273 U.S. 1, 5 (1926). While we give no opinion as to the validity of a warrant bearing the signature of the district court judge, we note that the infringement of an accused’s Fourth Amendment rights seems a more egregious error than that a warrant, issued upon probable cause, was signed on the first, rather than the second, floor of this courthouse.1
The Motion to Quash Arrest and Dismiss Information is, therefore, DENIED.
It is so ordered.
Under A.S.C.A. § 3.0304, the district court is authorized to issue process. As an arrest warrant is process (see Ellis v. Glascow, 168 S.W.2d 946 (Tex. Civ. App. 1943)), it would seem that the district court judge’s signature on such a document is authorized by statute. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486124/ | This matter came on regularly for trial on April 30, 1993, upon plaintiffs complaint for injunctive relief. Prior to filing suit, plaintiff had thrice requested the secretary of the American Samoa Development Corporation (hereinafter ASDC) to call a special shareholders’ meeting. In letters dated February 11 and 25, 1993, plaintiff sought a shareholders’ meeting to vote upon whether to remove the current board *40members and, if they were removed, to replace them. Also requested in the second letter was a vote to repeal the board’s February 5th amendment to the bylaws.
In his letter dated March 15, 1993, plaintiff requested a special shareholders’ meeting to amend the ASDC’s articles of incorporation. Among other things, a vote would be taken to transfer from the board to the shareholders the power to amend the bylaws. However, the board met and voted to reject the first two requests for a special shareholders’ meeting and never responded to the third request. As such, Mabel Foster, ASDC’s secretary, has failed to call such a meeting.
The two issues in this case, then, are whether Mabel Foster should be enjoined from failing to call a special shareholders’ meeting to (1) amend ASDC’s articles of incorporation and (2) remove the current board of directors and elect a new board.
According to ASDC Articles of Incorporation § 11, the articles of incorporation may be amended by a majority vote of the stockholders. At trial, defendants conceded that Mabel Foster should call within sixty days a special shareholders’ meeting for this purpose, and they stipulated to an injunction to that effect. Defendants’ objection to the meeting’s purposes of removing and electing new directors, though, misses the point. Even if such actions were currently prohibited, they would be entirely proper if the proposed changes in the articles of incorporation and the bylaws were adopted by the shareholders. Mabel Foster, as secretary of the ASDC, is thus obligated to call a special shareholders’ meeting for the purposes enumerated in plaintiff’s letter of March 15, 1993.
Likewise, plaintiff seeks to hold a special shareholders’ meeting for the purposes of removing the current members of the Board of Directors and electing replacements for them. According to ASDC Bylaw § 2(b), special meetings of the stockholders may be called for any purpose, and the secretary shall call a meeting when a written request has been signed by owners of at least ten percent of the common stock entitled to vote. Both parties have stipulated that the Development Bank holds at least ten percent of ASDC’s shares.
Previously, defendants had challenged plaintiff’s right to vote the Development Bank’s stock. Nevertheless, ASDC Bylaw § 2(j) provides that an officer designated by the Governor may vote the government-owned shares. Furthermore, in a letter dated April 15, 1993, the *41Development Bank explicitly ratified the Governor’s actions in seeking a special shareholders’ meeting.
Defendants assert that A.S.C.A. § 30.0141(a), which states that corporate directors are to be elected at the annual stockholders’ meeting, somehow precludes ASDC’s shareholders from removing the entire board of directors; interestingly enough, defendants also concede that the shareholders have the authority to remove individual members of the board. In any event, this argument is without any legal basis. The election of members of a board of directors is different than removal of those members, even if the latter results in a special election to choose new directors. That members of a board of directors are elected at an annual meeting by the stockholders does not mean that the former are entitled to hold their offices, without any interference, for their entire terms. Indeed, ASDC Bylaw § 4(b) specifically provides that the stockholders may remove a member of the board of directors.
In short, the election procedures set forth in the statutes, articles of incorporation, and bylaws are just that — procedures by which a corporation regularly selects its officials. These procedural provisions, though, do not confer additional authority on a board of directors, nor do they impose additional limits on the stockholders.
A corporate board of directors has a fiduciary duty to the corporation and its stockholders. See, e.g., Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255, 264 (2d Cir. 1984) (New York law); In re Black, 787 F.2d 503, 506 (10th Cir. 1986) (Utah law); Delano v. Kitch, 663 F.2d 990, 997 (10th Cir. 1981) (Kansas law), cert. denied 456 U.S. 946 (1982); Ohio Drill & Tool Co. v. Johnson, 625 F.2d 738, 742 (6th Cir. 1980) (Ohio law). An attempt by a board to insulate itself from accountability to the shareholders is inconsistent with this duty. "[N]o board can . . . usurp the power of control of the corporation vested by law in the shareholders." Czech Catholic Union v. Satla Realty Corp., 117 N.E.2d 610, 616 (Ohio 1954).
The High Court possesses the statutory authority to issue an injunction if it deems money damages to be an inadequate remedy. A.S.C.A. § 43.1302. This includes an order to hold a special shareholders’ meeting after a board of directors, though lacking any discretion in the matter, fails to call a meeting. See Auer v. Dressel, 118 N.E.2d 590, 592 (N.Y. 1954) (mandamus to compel special stockholders’ meeting); Bartlett v. Gates, 118 F. 66, 71-73 (C.C.D. Colo. 1902) (stockholders supporting the incumbent board of directors *42engaged in a sham suit against the latter and obtained an ex parte injunction enjoining the annual stockholders’ meeting; at trial this injunction was modified to order a stockholders’ meeting and to appoint a special master to supervise the meeting); see generally Annotation, "Remedies to restrain or compel holding of stockholders’ meeting," 48 A.L.R.2d 615 (1956 & Supp. 1986).
Because money damages would constitute an inadequate remedy in this case, this court grants the plaintiff an injunction against the defendants. Mabel Foster, ASDC’s secretary, is hereby enjoined from failing to carry out her duty to call a special shareholders’ meeting as requested by plaintiff. She is to call a special shareholders’ meeting to amend ASDC’s articles of incorporation and to remove and elect members of ASDC’s board of directors, and she is to give the shareholders the requisite sixty-day and ten-day notice, respectively.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486125/ | While working on the main government dock as a security officer for the Department of Port Administration, plaintiff Sánele Ale was struck by a pickup truck on December 19, 1989. The truck belonged to defendant Peter E. Reid Stevedoring, Inc., and it was driven at the time by the defendant Siatu'u Fa'asiu, an employee of the stevedoring company.
On the. evidence, we find that plaintiff was struck while Fa'asiu was backing up the truck; that the truck was loaded high with empty pallets; that Fa'asiu had not seen the plaintiff when he backed up the vehicle; and that shortly after the collision Fa‘asiu, who is now deceased, had told plaintiffs supervisor, Toia Toia Jr., that hé was tired because he had worked around the clock. We also find that the collision occurred while Fa‘asiu was working in the regular course of his employment with Peter E. Reid Stevedoring, Inc.
We conclude on the facts that the driver Fa‘asiu was negligent in the operation of his vehicle. Among other things, he had the statutory duty not to back his vehicle "unless such movement could be made with safety." A.S.C.A. § 22.0324. He obviously failed to observe that duty. Furthermore, Peter E. Reid Stevedoring, Inc. is vicariously liable, under the doctrine of respondeat superior, for any damages arising as a result of the negligence of its employee Fa'asiu.
It was early evident that plaintiff had, as a result of the accident, sustained three fractured ribs on his left side and suffered lung contusion. There is no dispute here. However, the defendants do dispute that aspect of plaintiffs claim which relates to his complaints about debilitating weakness and sensory loss on his left side. While plaintiff claims that this condition of his was also a result of the accident, the defendants counter with the charge of malingering.
On this latter aspect of plaintiff’s damages claim, the medical evidence, which largely consists of written reports by various physicians, is far from conclusive. Following the collision, plaintiff was seen at the *44LBJ Tropical Medical Center’s emergency clinic, where he complained about being struck by a motor vehicle. Although x-rays were apparently taken, radiology initially reported "no fractures," and plaintiff was sent home with analgesics. The following day, plaintiff returned to the hospital and complained about pains in the chest area and in his legs, although the attending physician observed his sitting cross-legged. He also reported that he was knocked out as a result of the collision and that he was coughing up blood in his sputum. Further examination revealed that plaintiff had three fractured ribs on his left side, and he was then referred to the hospital’s surgical clinic, where he was seen by Dr. Te'ariki No‘ovao on December 22, 1989. Dr. No‘ovao’s findings were "(a) [p]ost traumatic left base chest consolidation, with effusion, (b) fractured ribs, (3) left chest wall and lung contusion, (c) left shoulder arthralgia - with pain down left upper limb." Plaintiff was given antibiotics, cough medicine and analgesics, with directions on breathing exercises and to return for follow-up management.
In subsequent follow-up visits, plaintiff began to complain of weakness in his left arm and failing vision. In a letter to plaintiff’s attorney, dated February 14, 1990, Dr. No'ovao noted that plaintiff’s fractured ribs and contusion carried no permanent impairment but that while plaintiff’s prognosis was "fair to good," the complaint of weakness in his left arm required further evaluation. In this regard, Dr. Mo'ovao noted "[l]eft upper limb paresis motor deficits at 2-3/5; the exact nature or pathology here is not determinable at this point in time." As to plaintiff’s failing vision ailment, the hospital’s ophthalmologist examined plaintiff on April 24, 1990, and noted "presbyopia" in his medical records.
On June 4, 1990, Dr. No'ovao wrote another letter to plaintiff’s attorney reiterating his rating of plaintiff’s left-hand grip to be "2-3/5 (5/5 being normal)." He also noted that the patient had expressed a desire for early retirement, which he was inclined to recommend on "medical grounds," based in part "on [left upper-limb] motor impairment" and in part on impaired left-eye vision attributed to age. Dr. No‘ovao again noted that the exact pathology of plaintiff’s weakness was not determined and suggested specialized off-island diagnostic studies-"CT scan and complete neurological evaluation"-to determine the causative factors leading to plaintiff’s weakness.
Plaintiff’s hospital records show that he was also seen on July 17, 1990, by Dr. Victor Williams, a visiting surgeon formerly with the hospital. The court was not supplied with Dr. Williams’ actual report, *45but his findings were reviewed and summarized by Dr. Robert Marvit of Honolulu, Hawaii, who also examined plaintiff and whose written report, dated November 6, 1991, was received into evidence. Reading from Dr. Marvit’s review, Dr. Williams apparently "couldn’t diagnose left sided-weakness without speculation about a mild stroke but there is no evidence of this. He felt that he would recover completely. He didn’t feel that there were any permanent injuries as a result of this accident."
On August 10, 1990, plaintiff consulted Dr. Ronald Vinyard, another surgeon in the hospital’s surgical clinic. In a letter to plaintiff’s counsel dated October 1, 1990, Dr. Vinyard noted symptoms of left upper-limb motor and sensory deficiencies but at the same time concluded that no physical explanation existed for plaintiff’s symptoms. Dr. Vinyard’s impressions were a "conversion reaction (functional overlay)" with "poor prognosis for improvement." He recommended off-island assessment in the way of an "electromyographic study as well psychiatric evaluation."
Certain off-island examinations were eventually undertaken some twenty-two months following the automobile accident. These were funded by the insurer for workmen’s compensation for the government (plaintiff’s employer), pursuant to a provisional decision and order entered by the Workmen’s Compensation Board on May 15, 1991. See Ale v. American Samoa Government, Blue Shield and Oceania Insurance Company, WCC No. 04-91 (1991) (Decision and Order Re Temporary Total Disability Benefits and Off-Island Medical Evaluation). This order resulted from an "informal hearing" convened on April 3, 1991. The order recited, among other things, the cessation of temporary total disability benefits as of October 26, 1990, and a stipulation by the parties to the effect that plaintiffs injuries had "stabilized on or about October 26, 1990." The order further stated that plaintiff was seeking the reinstatement of his temporary total disability benefits but that "the relation of [plaintiff’s] impairment and/or disabilities to the injuries sustained from the motor vehicle accident on the dock is not clear."1 The board denied the reinstatement of benefits but ordered off-island evaluation at the insurer’s expense; this evaluation was to include "an *46electromyographic study, psychiatric evaluation and a neurological evaluation." Consequently, plaintiff was seen by three different physicians in Honolulu, Hawaii.2
In Honolulu, plaintiff was seen by Dr. Michael Okihiro neurologically. Dr. Okihiro found that plaintiffs reflexes were normal, that muscle testing showed "marked giving-way" in his left arm and left leg, and that sensory testing revealed complete sensory loss on his left side. With electromyographic (EMG) testing, Dr. Okihiro concluded that there were no "neurological correlates to [plaintiff’s] signs and symptoms which may very well be on a functional basis."
On October 23, 1991, plaintiff was examined by Dr. Clyde Ishii who, in his report dated October 28, 1991, stated the following:
My examination revealed findings that were inconsistent with the patient’s complaints. The patient claimed to have significant weakness and almost a paralysis of the left upper extremity. However, he showed no muscle atrophy in the left upper extremity. In addition, muscle testing was very inconsistent. At times, a tested muscle group was very strong whereas on repeat examination it was very weak. Grip strength measurements were also very inconsistent. For instance, his grip strength on the left was measured at four pounds, one pound and twenty pounds.
Dr. Ishii concluded, ”[I]t is possible that Mr. Ale is suffering from a conversion type of reaction following his trauma. Also, we need to be concerned about possible factitious illness." He recommended plaintiff’s evaluation by Dr. Robert Marvit, who had treated a number of patients with similar complaints.
On October 30, 1991, Dr. Marvit examined plaintiff to evaluate the latter’s complaints and to investigate whether there was a relationship between his "functional symptomatology" and the accident, among other things. Dr. Marvit dismissed as "practically nonexistent" the possibility *47of a head injury’s being the cause of plaintiff’s problems. Rather, neuropsychiatric examination "clearly" indicated to him "nonanatomical problems." Except for the possibility of pain to plaintiff’s rib-cage area, Dr. Marvit saw plaintiff’s symptoms as the product of his own perception of a disorder, as opposed to their being biomechanical in origin.
Although he noted that plaintiff’s complaints manifested a "hysterical or conversion type pattern," Dr. Marvit was not able to say whether plaintiff’s "symptom production" was voluntary or involuntary. He felt he needed objective data beyond plaintiff’s subjective declarations, which he characterized as a combination of "honest, random, irrelevant and factitious." Additionally, he observed in plaintiff "dissimulation," which he described as "a distortion and misrepresentation of symptoms," and further noted that the "manifestations of [plaintiff’s] complaints [were] utilized through an exaggerated expression." He felt that plaintiff’s subjective responses were of "limited reliability." Consequently, Dr. Marvit only ventured a "differential diagnosis." He opined "factitious illness with Physical Symptoms, Dissimulation with Hysterical Conversion, and ’Post Traumatic Syndrome.’" He further explained "Post Traumatic Syndrome" as "basically a wastebasket term of functional symptoms that result from a sudden onset, life-threatening traumatic experience in an individual who becomes enmeshed in secondary gain problems where the disability far exceeds the biomechanical basis of any complaints."
Finally, plaintiff was most recently examined by the Dr. Aloimoa Anesi in connection with a referral from the government’s retirement office. The latter was reviewing an application by plaintiff for early retirement. In a letter to the retirement office, dated January 10, 1991, Dr. Anesi recommended early retirement after concluding that plaintiff was not capable of any further "meaningful" work. He rated the power in plaintiff’s left arm at 2/6 and that in his left leg at 3/6. From his assessment of plaintiff’s medical history, Dr. Anesi additionally offered a physiological explanation for plaintiff’s left-side complaints~he suggested "cerebral ischaemia" resulting from a cerebral concussion sustained in the accident, caused plaintiff’s left "hemiparesis."
From the foregoing medical history, the possibilities are that plaintiff’s symptoms are either the result of a physical injury or psychological trauma (conversion reaction), that plaintiff is malingering, or that some combination of the above factors are involved. On the side *48of physical causation, we note that Dr. Anesi is singular in his opinion.3 While it appears that both Drs. No'ovao and Williams were not ruling out the possibility of cerebral-related damage, it is clear that neither was willing to commit to such a diagnosis without further evidence. At the same time, Dr. Anesi’s opinion assumes cerebral concussion from the accident as a matter of fact. However, concluding that a cerebral concussion resulted from the accident is not free of doubt.
Similarly, the smidgen of evidence available concerning the accident itself4 is thoroughly conflicting. As noted, plaintiff reported that he was knocked unconscious by the impact. However, this claim is controverted by Ne'emia Tanielu, who testified that he was also working on the wharf on the day of the accident. Tanielu testified that after hearing a voice call out that somebody was hurt, he immediately ran to the scene, where he saw a very-conscious plaintiff sitting upright behind the pickup truck and reacting belligerently towards placating overtures from Fa‘asiu.
Additionally, we note that the entries in plaintiffs hospital records of December 19, 1989, the day of the accident, conspicuously omit any notation about loss of consciousness (there is an entry of "Neuro: physiological"). See T.C.R.Ev. 803(7). It was only for the following day, when plaintiff went back to the hospital, that the medical records reflect a report about loss of consciousness. Based on the foregoing, we find the weight of medical opinion, indeterminate and ambiguous as it is, to preponderate in favor of a non-organic explanation to plaintiff’s symptoms.
We turn to the question of causation. In this, we find the proofs to be insufficient to establish a causal link between the accident and plaintiff’s complaints about weakness and sensory loss on his left side. *49From the very outset, the different doctors consulted locally by plaintiff recognized the need for specialized, off-island, diagnostic evaluation. The off-island evaluation, however, failed to pin-down plaintiffs ailments, and the results thereof have not really enlightened us on the issue of cause-in-fact. In our review of the multiple medical reports which have been presented, the strongest reading of the medical evidence that may be given in favor of plaintiff is that his complaints about left-side deficiency could or might be related to the accident. However, this is insufficient. It is trite law that the burden of proof is on plaintiff, and the standard of proof to which he is held involves "probabilities." That is, plaintiff must furnish evidence which affords a reasonable basis for the conclusion that defendant’s conduct was, more likely than not, the cause-in-fact of the injury; mere possibilities are not enough. See Prosser & Keeton on Torts, § 41, at 269 (5th ed. 1984); see also Annotation, Expert Evidence As To Cause—Sufficiency, 135 A.L.R. 516, 517 (1941 & Supp. 1986). Not only have the experts have failed to sort out the underlying cause or causes to plaintiff’s ailments, but they have, in terms of actually identifying plaintiff’s problems, merely alluded to alternative possibilities (factitious illness versus hysterical conversion, voluntary versus involuntary symptom production) or possible combinations of these possibilities.
Additionally, we are mindful
that where the issue [of causation] is one which lies wholly beyond the range of the experience or observation of the laymen and of which they can have no appreciable knowledge, courts and juries must of necessity depend upon and accept the undisputed testimony of reputable specialists, else there would be no substantial foundation upon which to rest a conclusion.
Kramer Service, Inc. v. Wilkins, 186 So. 627, 628 (Miss. 1939). Thus, in circumstances where a conclusion as to causation is not within common knowledge, the court will not attempt to reach such a conclusion when the experts have failed to provide a basis for such a conclusion. What caused or produced plaintiff’s symptoms is unclear from the medical evidence for the simple reason that the experts did not believe that they had sufficient data before them to permit conclusions beyond the realm of possibilities. It goes without saying that it would be pure conjecture on our part to attempt a conclusion as to whether or not the accident had anything to do with plaintiff’s left-side difficulties, given the *50extent of the medical evidence. Under the circumstances, the law requires us to direct a verdict in favor of defendants with regard to the latter aspect of plaintiffs damages claim.
On the undisputed aspect of plaintiff’s claim, we assess his damages, inclusive of medical expenses, in the sum of $25,000 and enter judgment against the defendants accordingly.
It is so ordered.
But cf. A.S.C.A. § 32.0642 ("In any proceeding for the enforcement of a claim for compensation under [the Workmen's Compensation Act], it is presumed, in the absence of substantial evidence to the contrary, that [] the claim comes within the provisions of the [Act]").
The court was not provided with any background information on these physicians and their respective fields. However, they had each supplied a written report of their findings and conclusions to the government’s workmen’s compensation carrier.
This opinion is not without support. For instance, Dr. Williams alluded to the possibility of a mild stroke as a possible explanation but felt he was unable to say so without further evidence. Also, Dr. No‘ovao seemed to be concerned with head trauma possibilities because he suggested an off-island CAT scan. (For reasons unknown, a CAT scan was not performed.)
Nobody seems to have seen anything, and of the two people involved, plaintiff maintains that he was immediately knocked out, while the driver, Fa'asiu, has since died. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486126/ | On Motion to Dismiss or for Summary Judgment:
Defendants Blue Star Line, Ltd., and Samoa Sofrana Shipping Line, Inc., (hereinafter "movants") have moved for dismissal under T.C.R.C.P. 12(b)(7) for non-joinder of "indispensable parties" in accordance with T.C.R.C.P. 19. Movants argue that plaintiff has failed to perfect service on the defendant United Van Lines and has failed to serve both Mollerup Moving & Storage Co. and Corporate World International; that all three are indispensable to the dispute; and that such failure on the part of plaintiff is tantamount to non-joinder. Alternatively, movants seek summary judgment.1
For the reasons given, we deny the motion. First, it is not entirely clear to us that what we have here is a problem with non-joinder but rather a situation in which plaintiff simply has not gotten around to serving these other defendants. There is a difference between necessary parties who cannot be served process and those who may be subject to process but simply have not been served at all. The record before us does not suggest that service of process on the other defendants is not *52feasible.2 On the other hand, plaintiff’s motion seems to be premised on an assumption of infeasibility, coupled with reliance on the contention that a plaintiff must disprove the indispensability of the unserved party. However, the burden is on the moving party to show that these other defendants are indispensable to the dispute.3
The motion is denied.4
It is so ordered.
Movants are not entitled to summary judgment under T.C.R.C.P. 12(b)(7)); dismissal of the complaint (if supported) is the appropriate method of disposing of a case for failure to join an indispensable party. Ricci v. State Bd. of Law Examiners, 569 F.2d 782, 784 (3d Cir. 1978). The rationale is that summary judgment under Rule 56 is a judgment on the merits and bars the cause of action, whereas an order of dismissal only "abates" the claim and is without prejudice to the institution of a later action. Martucci v. Mayer, 210 F.2d 259, 260 (3d Cir. 1954).
Under Rule 19(a), the court determines whether or not it is feasible to join a person as a party. Lomayaktewa v. Hathaway, 520 F. Supp. 1324, 1326 (9th Cir. 1975); see Nofziger Communications, Inc. v. Birks, 757 F. Supp. 80, 85 (D.D.C. 1991) (Rule 19 motion denied; defendant failed to discuss the feasibility of joinder).
The moving party bears the burden of showing that the absent party would be prejudiced by proceeding with the action. Ilan-Gat Engineers, Ltd. v. Antigua Int’l Bank, 659 F.2d 234, 242 (D.C. Cir. 1981) (citing Meyerding v. Villaume, 20 F.R.D. 151 (D. Minn. 1957); 5 C. Wright & A. Miller, Fed. Pract. & Proc. § 1359 (1969)); Nevada Eighty-Eight, Inc. v. Title Insurance Co. of Minn., 753 F. Supp. 1516, 1522 (D. Nev. 1990) ("the burden of proving that joinder is necessary rests with the party asserting it") (citing Sierra Club v. Watt, 608 F. Supp. 305, 319-21 (E.D. Cal. 1985)); Federal Deposit Ins. Corp. v. Beall, 677 F. Supp. 279, 283 (M.D. Penn. 1987) ("The party raising the defense of failure to join an indispensable party has the burden to show that the person who is not joined is needed for a just adjudication.").
Even if a person is a party who should be "joined if feasible" under Rule 19(a), the court must use Rule 19(b)’s criteria to determine whether to dismiss the lawsuit or proceed without that party. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 108-11 (1968); see Temple v. Synthes Corp., 498 U.S. 5 (1990) (per curiam) (tortfeasors having normal joint-and-several liability are not "indispensable" parties under Rule 19(b)). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486127/ | On Motion to Reconsider:
Defendants move the court to reconsider its decision and order entered May 3, 1993, in the above-entitled matter. Defendants’ submissions are twofold: a) "that the court erred by alluding to possible breach of fiduciary duty owed by Board of Directors to the shareholders," an issue which, while not before the court, was "at least partially" the premise for the decision; and b) that the court "overlooked" defendants’ argument relating to the construction of A.S.C.A. § 30.0141(a).
I. Contrary to defendants’ assertions, the issue before this court at trial was not whether ASDC’s board of directors violated its fiduciary duty as such, but whether it improperly tried to insulate itself from the stockholders’ control by failing to call a special meeting. This court merely noted the fiduciary duty owed by a corporation’s board of *54directors to the stockholders and observed that a board’s attempt to insulate itself from accountability to the shareholders is inconsistent with this duty. A finding that ASDC’s board acted contrary to ASDC’s articles of incorporation and bylaws by failing to call the mandated special shareholders’ meeting is thus separate from an evaluation of the board’s competence regarding the corporation’s management and operation. Thus, the decision did not "rel[y], at least partially," on other matters falling within the general rubric of "fiduciary duty," nor did this court make its decision "armed with the knowledge" that the incumbent board was denied the opportunity to defend its competence.
II. This court did not "overlook]] defendant’s [sic] [construction] argument"; rather, the argument was considered and rejected because it lacked, in our view, a legal and evidentiary basis. Defendants’ assertion that A.S.C.A. § 30.0141 "is subject, at the maximum, to two differing interpretations" simply fails to acknowledge this court’s interpretation-that the statutory requirement of electing members of a board of directors at the stockholders’ annual meeting is distinct from removing and subsequently replacing those members.
Defendants’ "ordinary meaning of language" argument is also baseless. Use of this rationale undermines defendants’ position, as "shall" is clearly not a synonym for "only." Indeed, the absence of the express limitation that elections may "only" beheld at the regular, annual stockholders’ meeting supports the premise that other directors’ elections may be held at special, stockholders’ meetings.
In short, the opinion of this court did not concern the competence of the current board of directors, nor did it conflict with the applicable statutory provisions. Furthermore, the mandate of this court is to decide controversies between adverse parties and their respective viewpoints, not to decide which policies, public or otherwise, would best promote the "smooth operation of the hotel." Such policy decisions are separately and properly placed elsewhere in government. Thus, this court confined itself to ordering ASDC’s secretary to carry out her duty to call, as required by ASDC’s articles of incorporation and bylaws, the special, shareholders’ meeting requested by the plaintiff.
Defendants’ motion for reconsideration is DENIED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486128/ | On Motion for Reconsideration:
Rule 60(b), T.C.R.C.P., enumerates six, specific grounds for relief from a final judgment. The rule also contains two "saving clauses," which state that the rule does not limit a court’s power "[1] to entertain an independent action to relieve a party from a judgment, order, or proceeding, ... or [2] to set aside a judgment for fraud upon the court." T.C.R.C.P. 60(b); Fed. R. Civ. P. 60(b); see generally 7 Moore’s Federal Practice paras. 60.31, 60.33, at 60-348 to 60-362 (1985 & Supp. 1984-85). When an adverse party would not be prejudiced, this independent action for equitable relief may be treated as a Rule 60(b) motion, and vice-versa. Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 n.7 (5th Cir. 1970), cert. denied 399 U.S. 927 (1970); Budge v. Post, 544 F. Supp. 370, 376 n.4 (N.D. Tex. 1982) (citing Bankers Mortgage Co.); H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118 (6th Cir. 1976) (citing Bankers Mortgage Co.).
A successful independent action in equity requires the following elements:
(1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law.
Bankers Mortgage Co., 423 F.2d at 79 (quoting National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir. 1903)).
The fraud which is the basis of an independent action must be "extrinsic;" that is, the fraud must have prevented the raising of an argument or the assertion of a claim or defense at trial. Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1358 (4th Cir. 1982) (citing United States v. Throckmorton, 98 U.S. 61 (1878)), cert. denied 459 U.S. 1128 (1983); Green v. Ancora-Citronelle *57Corp., 577 F.2d 1380, 1384 (9th Cir. 1978) (citing Pico v. Cohn, 25 P. 970, 970-71 (Cal. 1891); Kulchar v. Kulchar, 462 P.2d 17 (Cal. 1969); Kachig v. Boothe, 99 Cal. Rptr. 393 (Ct. App. 1971)) (refusing to set aside state court’s judgment). Depriving a party of his right to a "day in court" also qualifies as "extrinsic" (or "collateral") fraud. Green, 577 F.2d at 1384 (citing Pentz v. Kuppinger, 107 Cal. Rptr. 540, 543 (Ct. App. 1973); Robinson v. Robinson, 17 Cal. Rptr. 786, 788 (Ct. App. 1961)). Perjury and false testimony, though, are inadequate-for many of the same reasons applicable to "fraud on the court." Great Coastal Express, 675 F.2d at 1358 (citing Durham v. New Amsterdam Casualty Co., 208 F.2d 342, 345 (4th Cir. 1953); Aetna Casualty & Surety Co. v. Abbott, 130 F.2d 40, 43-44 (4th Cir. 1942); Chrysler Corp. v. Superior Dodge, Inc., 83 F.R.D. 179, 186 (D. Md. 1979); Prickett v. Duke Power Co., 49 F.R.D. 116, 118 (D.S.C. 1970)).
Furthermore, the parallel "saving clause" permitting a court "to set aside a judgment for fraud upon the court" has been construed very narrowly. Great Coastal Express, 675 F.2d at 1356 (citing Kerwit Medical Products, Inc. v. N & H Instruments, 616 F.2d 833, 836-37 (5th Cir. 1980); Senate Realty Corp. v. Commissioner, 511 F.2d 929, 931-33 (2d Cir. 1975)). "[Ojnly a small number of those acts that can be considered fraud amount to ’fraud upon the court.”' Budge, 544 F. Supp. at 377 (quoting Kerwit Medical Products, 616 F.2d at 836-37). This narrow construction arises from a concern that it could be used to entirely circumvent the time limits of Rule 60(b)(3). Great Coastal Express, 675 F.2d at 1356 (citing Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972); 7 Moore’s Federal Practice § 60.33, at 511 (1971)).
All fraud is not "fraud on the court," but only that which constitutes "a deliberate scheme to directly subvert the judicial process." Great Coastal Express, 675 F.2d at 1356 (citing 11 Wright & Miller, Federal Practice and Procedure § 2870, at 253 (1973)); see Budge, 544 F. Supp. at 377 (citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978)). This type of fraud occurs when "the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted." Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) (enbanc), cert. denied 474 U.S. 1086 (1986); see Budge, 544 F. Supp. at 377 (citing United States v. International Tel. & Tel. Corp., 349 F. Supp. 22, 29 (D. Conn. 1972), aff’d without opinion sub. nom Nader v. United States, 410 U.S. 919 (1973)). Fraud which mainly concerns the opposing parties and *58which does not threaten harm to the public does not meet this standard. Great Coastal Express, 675 F.2d at 1356 (citing Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238 (1944); Comment, 60 Cal. L. Rev. 531, 557 (1972)). Only fraud which normally cannot be exposed during trial will suffice. Nondisclosure of evidence in pre-trial discovery is likewise not "fraud on the court." Bulloch, 763 F.2d at 1121 (citing H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir. 1976)). In short, "[p]erjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible." Great Coastal Express, 675 F.2d at 1357 (citing Hazel-Atlas, 322 U.S. at 245; Pfeizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 193-95 (8th Cir. 1976), cert. denied 429 U.S. 1040 (1977); Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir. 1972), cert. denied 409 U.S. 883 (1972); Porcelli v. Joseph Schlitz Brewing Co., 78 F.R.D. 499 (E.D. Wisc. 1978), aff’d without opinion 588 F.2d 838 (7th Cir. 1978); Koningsberg v. Security Nat’l Bank, 66 F.R.D. 439, 442 (S.D.N.Y. 1975); Lockwood v. Bowles, 46 F.R.D. 625, 630 (D.D.C. 1969)).
Because of the interest in the finality of judgments, fraud sufficient to constitute "fraud on the court" is rarely present. First, "’fraud on the court’ is typically confined to the most egregious cases, such as bribery of a judge or juror, or improper influence exerted on the court by an attorney, in which the integrity of the court and its ability to function impartially is directly impinged." Great Coastal Express, 675 F.2d at 1356 (citing Addington v. Farmer’s Elevator Mutual Ins. Co., 650 F.2d 663, 668 (5th Cir. 1981), cert. denied 454 U.S. 1098 (1981); Lockwood v. Bowles, 46 F.R.D. 625, 630 (D.D.C. 1969)). Second, this fraud must be proven by "clear and convincing evidence . . . , and all doubts must be resolved in favor of the finality of the judgment." Bulloch, 763 F.2d at 1121.
On April 26, 1993, this court decided that respondent’s motion for relief from judgment, though seeking to take advantage of subsection (6), was based on petitioner’s fraud and so was properly categorized under subsection (3). Having been filed more than one year after the judgment, the Rule 60(b)(3) motion was denied as untimely. On May 6, 1993, respondent filed a motion for reconsideration of the order denying relief.
Also on the basis of fraud, respondent seeks to assert an independent action for relief from the judgment. However, he has not proven that he was prevented from raising an issue or defense at trial. *59Indeed, the issue of paternity is frequently a central issue in divorce cases. Rather, respondent merely alleges that petitioner concealed the fact that he was not the child’s natural father. Even if this allegation were true, respondent could and should have raised this issue at trial. He did not to do so. Thus, the fraud alleged does not constitute "extrinsic" fraud and does not overcome the strong public interest in the finality of judgments. Therefore, respondent’s motion for reconsideration is DENIED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486129/ | Opinion and Order Granting Summary Judgment:
I. Standard of Review
Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. Rule 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Celotex Corp. v. Catrett, 477 U.S. 311, 322-24 (1986). In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962); Lokan v. Lokan, 6 A.S.R.2d 44, 46 (1987)).
II. Discussion
Individually and in his capacities as administrator of Siliaga Lang’s estate and as guardian for Nelly Lang, Maanaima Lang (hereinafter plaintiff) has filed a civil suit against the American Samoa Government and Hawaiian Airlines, Inc. to recover money damages. Hawaiian Airlines (hereinafter defendant) has moved for summary judgment under T.C.R.C.P. Rule 56 as to the claims against it.
In the face of a motion for summary judgment supported by affidavits or other evidence, a plaintiff may not rest on his pleadings or the statements of an attorney lacking personal knowledge. However, plaintiff attempts to do just that; in fact, he never filed any evidentiary response to defendant’s motion for summary judgment.
The available evidence supports defendant’s motion. Although plaintiff’s attorney alleges that defendant failed to provide an adequate oxygen supply to Mrs. Lang, he presents no supporting evidence. In fact, Mr. Lang stated that oxygen remained in the bottle. Lang Deposition, pp. 37-38, 53. Registered Nurse Louise Tokumura also *61believed that the oxygen was still flowing. Tokumura Deposition, pp. 16-17.
In asserting plaintiffs claims, his attorney wants this court to hold defendant to a novel standard of care — the duty to "deliver" a passenger in "as good condition" as when he boarded. No such duty exists. Just because an airline passenger suffers illness or death does not mean that the airline is automatically liable. Despite the high standard of care demanded of airlines, "[a] common carrier by air is not an insurer of the safety of its passengers. Liability is based upon negligence." Haley v. United Airlines, Inc., 728 F. Supp. 374, 376 (D. Md. 1989) (quoting Arrow Aviation, Inc. v. Moore, 266 F.2d 488, 491 (8th Cir. 1959)) (granting summary judgment for defendant airline), aff’d without opinion 927 F.2d 595 (1991). The mere fact that an injury occurred is insufficient to raise a presumption of the carrier’s negligence. Id. (citing Wilson v. Capital Airlines, 240 F.2d 492, 494 (4th Cir. 1957)); cf. Air France v. Saks, 470 U.S. 392, 404-06 (1985) (reversing court of appeals, which had reversed district court; the latter had granted summary judgment for defendant airline on the grounds that the mere occurrence of an injury did not constitute an "accident" under the Warsaw Convention, Art. 17); Fischer v. Northwest Airlines, Inc., 623 F. Supp. 1064, 1065 (N.D. Ill. 1985) (heart attack and subsequent death resulted from "an internal disability and was not the result of an unusual or unexpected occurrence connected with the flight," so was not proximately caused by an "accident" under the Warsaw Convention, Art. 17).
Additionally, res ipsa loquitur does not apply to this case. The doctrine applies when the accident’s nature is such that past experience has shown that it probably resulted from someone’s negligence and that the defendant is probably responsible. Brown v. Poway Unified School Dist., 284 Cal. Rptr. 854, 858 (Ct. App. 1991) (citing Newing v. Cheatham, 540 P.2d 33, 124 Cal. Rptr. 193 (1975); Di Mare v. Cresci, 373 P.2d 860, 23 Cal. Rptr. 772 (1962)). The doctrine of res ipsa loquitur applies to an accident only under the following conditions: (1) it ordinarily does not occur without someone’s negligence, (2) it was caused by an agency or instrumentality within defendant’s exclusive control, and (3) it was not due to a voluntary action by the plaintiff. Id. (citing Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944)).
Mrs. Lang’s death does not meet the criteria for applying the res ipsa loquitur doctrine. One, seriously ill persons often die in the absence of negligent conduct. Mrs. Lang was seriously ill even before she *62boarded the plane; indeed, she was leaving American Samoa to be examined at the Tripler Army Medical Center in Honolulu, Hawaii. Two, the cause of Mrs. Lang’s death was outside defendant’s control, as it was merely transporting passengers aboard a regularly scheduled flight. Although defendant provided the oxygen bottles used on the flight, both Mr. Lang and the nurse from L.B J. Hospital changed the oxygen bottles and were solely in control of the flow of oxygen. Lang Deposition, pp. 30-32. Three, plaintiff accompanied his wife and, among other things, controlled the oxygen flow. As such, it is not clear that his voluntary actions were not a cause of his wife’s death.
III. Conclusion
Plaintiff Maanaima Lang has not presented any affidavits or other evidence to contradict defendant airline’s proof that its conduct was not responsible for Mrs. Lang’s death. Furthermore, plaintiff cannot rely on a self-created duty to "deliver in the same condition." For the aforementioned reasons, defendant’s motion for summary judgment is granted, and this action is dismissed with prejudice as to Hawaiian Airlines, Inc.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486131/ | Order Requiring Notice and Further Hearing:
Fogapapa Mamea’s petition for an order changing his name from Fagapapa Mamea to Tua Tauamo came regularly on June 7, 1993, for hearing.
The common law recognizes the right to change one’s name, and in the absence of statutory abrogation of that right, courts should *67encourage petitions to make a public record of these changes. Courts abuse their discretion in denying such petitions without any substantial reason. In re Useldinger, 96 P.2d 958 (Cal. 1939).
Petitioner was the sole witness in this case and did not state any reason clearly justifying denial of his petition. However, the court has reservations about immediately granting the petition without further evidence. Petitioner, a Western Samoa citizen, is age 58, is married, and has nine children, four of whom were born in American Samoa and are still minors. His birth certificate, marriage certificate, and his minor children’s birth certificates indicate that Mamea is his wife’s and minor children’s surname. His principal reason for wanting to change his name is to accommodate the name by which he apparently uses within his extended family in Alao, American Samoa and the name of the matai whom he serves. However, he did not satisfactorily address the potential complications the change may pose, after all these years, in his and his immediate family’s future dealings.
At the very least, an affirmative record should be made to show that the wife and minor children, and probably the matai as well, have been notified of this proceeding and are in agreement with the objective, or at least have had reasonable opportunity to present any opposition to the name change. This extra effort will also provide the basis for making any order changing his name a record of other persons whose names are affected by the change.
The court notes that petitioner’s counsel has taken the advisable precautionary step of publishing notice of this proceeding in a newspaper of general circulation in the Territory. This action at least provides some notice to possible creditors and others who may be negatively affected by a name change and is a common statutory requirement in other jurisdictions. However, it is not an adequate substitute for personal notice to readily identifiable persons, such as his immediate family, who may be impacted by the name change.
The court also notes the lack of any statutory direction for change-of-name proceedings and suggests that the Legislature should enact appropriate guidelines for their conduct.
Petitioner will be required to personally serve his wife, minor children, and matai with copies of his petition and the notice of a further hearing to afford them an opportunity to respond and make their wishes in this proceeding known to the court.
*68It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486132/ | *69Order Denying Preliminary Injunction:
Plaintiffs’ application for a preliminary injunction came regularly on June 11, 1993 for hearing. The court, having heard testimony and considered the evidence, makes the following findings, conclusions, and order.
FINDINGS OF FACT
This action has been brought by several high-ranking matais of Ta‘u Village in the Manu‘a Islands against several other matais of the same village to enjoin the second group from (1) further publicizing and preparing for, and from holding the dedication of the Malamalama o le Lalolagi Church in the village, scheduled to take place on June 24-25, 1993; and (2) continuing to spend public funds of the Village Council for purposes of the church dedication.
The first group of matais wishes to restrain the second group from these activities until the factions within the village have settled their differences and a consensus is established on the dedication dates and on further expenditure of Village Council funds for this purpose. This sentiment is noble. The key immediate element in these differences appears to be the second group’s refusal to recognize the titles of three matais, awarded judicially under the laws of American Samoa, and their membership on the Village Council accepted during a faleula, or customary installation ceremony, at the Malaetele, or traditional meeting ground, in the village on May 19, 1993. The first group characterizes this refusal as disrespect for the judicial process in this court and the institutional norms of the village. Thus, this aspect of their differences takes on a decidedly secular character involving quarreling matais.
While such disregard of fundamentals erodes the very fibers of a peaceful and civilized society and is to be abhorred, the solution to this particular grievance is not now before the court. Fortunately, there are still indications by both factions to this issue of willingness to discuss and find that solution within the process of the traditional village political system. The court wants to believe and certainly hopes that a sufficient reservoir of good will and adaptability exists among the village residents to accommodate that end.
The issue immediately before the court concerns a religious event. Church government and secular politics involve different *70considerations from the perspective of legal principles. While the interplay between the religious issue and the temporal issue is evident in this case, neither issue can, under law, be used as the platform for the redress of the other issue.
The church is part of the family of churches within the Congregational Christian Church of American Samoa. The power to govern a congregational church vests in the whole congregation, or in such other person(s) or entity(ies) as the majority of the congregation may select as the governing authority for general or particular purposes. The evidence in this case does not persuasively establish any authoritative delegation of governing power over the church dedication by the congregation either to the first group of matais, individually or collectively, or to any other grouping or persons or entities described as plaintiffs, or for that matter to the second group of matais, individually or collectively, named as defendants.
CONCLUSIONS OF LAW
Sufficient grounds for the issuance of a preliminary injunction requires a showing of: (1) a substantial likelihood that the applicant will prevail at the trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury resulting to the applicant before a full and final trial can be held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j).
Where the identity of the governing authority or authorities within a church is substantially at issue, as in this case, civil courts must refrain from delving into ecclesiastical laws and practices that may be paramount to resolving the controversy. Tele'a v. Savea, 8 A.S.R.2d 110, 118 n.3 (Trial Div. 1989). As enunciated in Tele'a, such authority in congregational churches is the congregation’s exclusive province to define.
Under these circumstances, plaintiffs have not shown a substantial likelihood that any individual plaintiff or grouping of plaintiffs will prevail at trial on the merits and be entitled to a permanent injunction against any or all defendants. The members of the church congregation, not this court, must decide by majority rule, whether by vote or consensus, when the church dedication takes place and other matters related to it, or who will make those decisions.
*71Although the issue need not be analyzed now, the apparent involvement of the Village Council as a governmental entity and public funds in the church-dedication program may also be a matter of concern. This involvement may well raise questions about transgressions of the constitutional principle of separation of church and state, which is embodied in the Bill of Rights, Section 1 of Article I of the Revised Constitution of American Samoa of 1967. The religious decisions at issue are also not, legally, the domain of secular politics.
Since plaintiffs have not met their burden on the likely outcome issue of the two-pronged prerequisites for issuance of a preliminary injunction, the court also does not need to definitively weigh the interim harm to either plaintiffs or defendants. Suffice it to observe that defendants’ harm is significantly more measurable in quantitative terms. Moreover, the resiliency of the Samoan way is certainly able to constructively deal with and vigorously outlast this situation.
ORDER
Plaintiffs’ application for a preliminary injunction is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486133/ | On Motion to Dismiss:
On February 12, 1993, plaintiffs Samoana Fellowship, Inc. and Raymond and Sese McMoore filed suit for injunctive, declaratory, and monetary relief. Defendants American Samoa Power Authority, Abe Malae, and Mike Dworsky filed a motion to dismiss on March 9, 1993. Referencing the "Project Notification and Review System Stop Order Notice," dated February 25, 1993, and "Notice of Termination and Demand for Delivery of Possession,” dated March 4, 1993, defendants argue that the stop order was proper and that the lease was terminated, making plaintiffs’ lawsuit moot. The motion was heard on May 12, 1993.
I. Motion to Dismiss Treated as a Motion for Summary Judgment
A motion to dismiss (under T.C.R.C.P. Rule 12(b)(6)) will be treated as a summary judgment motion (under T.C.R.C.P. Rule 56) when evidence extrinsic to the complaint is presented to and considered by the court. ”[I]f matters outside the pleadings are presented to the [] court on a motion under Rules 12(b)(6) or 12(c), and the court does not exclude them, the motion must be considered as one under Rule 56 and determined in accordance with summary judgment principles." Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992) (quoting 6 Moore’s Federal Practice ¶ 56.02[3], at 56-27 (1991)); see Mauga v. Lutu (Mem.), 10 A.S.R.2d 115, 117 (Trial Div. 1989) (moving papers supplemented by affidavits referring to matters outside the complaint); Smith v. United States, 362 F.2d 366, 367-68 (9th Cir. 1966) (per *73curiam) (copy of lease at issue was attached to motion as an exhibit and not excluded by court); Young v. Biggers, 938 F.2d 565, 568 (5th Cir. 1991) (because defendants submitted matters outside the pleadings, district court properly characterized motion as one for summary judgment and dismissed suit with prejudice).
Defendants have attached a copy of the stop order and the termination notice sent to the plaintiffs to their motion to dismiss. Defendants cite these documents as evidence that plaintiffs’ entire lawsuit is moot. Because this assertion requires an adjudication on the merits as to the validity of the stop order and the notice of the lease’s termination, this court will treat the motion to dismiss as a motion for summary judgment.
H. Summary Judgment
Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. Rule 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962); Lokan v. Lokan, 6 A.S.R.2d 44, 46 (1987)). That is, the facts must be "beyond dispute," and the non-moving party’s factual assertions, supported by evidence such as affidavits, are presumed to be true. Ah Mai v. American Samoa Gov’t (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989). However, the parties’ differing in their characterization of the facts but not the facts themselves does not create a "genuine issue of material fact." Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d 162, 163 (Trial Div. 1987) (syllabus).
The parties disagree over the validity of the stop order and whether the lease was properly terminated. As to the termination of the lease, plaintiffs challenge whether the termination notice conformed to the lease’s provisions. Although a notice of termination was filed with the territorial registrar more than 30 days after the prerequisite notice to plaintiffs, the latter is arguably inadequate. The notice to plaintiffs said that the lease was terminated, the defaults were incurable, and plaintiffs had ten days to leave. However, the lease gives 30 days to cure the default, or a longer period if the parties make a written agreement regarding defaults whose cure would take longer than 30 days. Because *74the sufficiency of the notice is a matter of law, this argument is not, in itself, a bar to granting summary judgment.
However, "genuine issues of material fact" do exist. Although defendants believe that the stop order was properly issued, plaintiffs assert that the stop order was unlawful and issued in bad faith. On this issue, defendants fail to carry the burden of proof required for a motion for summary judgment. Also, the parties disagree as to whether the stop order’s conditions must be met before the provision of utilities or only before final occupancy of the site and building.
Furthermore, plaintiffs also claim that defendants knew or should have known that halting the building’s construction would result in damages and that defendants’ actions constituted an abuse of authority. Also, plaintiffs attack defendants’ motives, alleging that defendants acted in bad faith in refusing to provide utilities and that the latter’s claimed grounds for their actions are a "sham." Since "genuine issues of material fact" exist, a motion for summary judgment is inappropriate.
III. Mootness
Even if the lease were validly terminated, plaintiffs’ lawsuit would not be moot. In addition to injunctive and declaratory relief, plaintiffs seek compensatory and punitive damages. Even if one issue is moot, the other issues are still subject to judicial resolution. As such, "damage claims are seldom moot." Gibson v. DuPree, 664 F.2d 175, 177 (8th Cir. 1981) (per curiam) (citing 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3533, at 272-73 (1975)); see Gulf Publ. Co. v. Lee, 679 F.2d 44, 46 n.2 (5th Cir. 1982) ("Claims for money damages ordinarily preclude a finding of mootness unless the parties have settled the case."); Washington v. James, 782 F.2d 1134, 1137 (2d Cir. 1986) (seeking punitive damages preserved a "legally cognizable interest") (quoting Patrick v. Le Fevre, 745 F.2d 153, 156 n.2 (2d Cir. 1984)); see, e.g., Powell v. McCormack, 395 U.S. 486, 496, 498 (1969); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 478 n.1 (1989) (citing Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8-9 (1978)). In short, plaintiffs’ lawsuit remains viable.
IV. Conclusion
Although styled a motion to dismiss, defendants’ motion is properly regarded as a motion for summary judgment. In this context, defendants have not met their burden of proving that no "genuine issue *75of material fact" exists. Plaintiffs’lawsuit is thus not moot. Therefore, the motion is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486594/ | OPINION
Because of illness, death, and perhaps, sheer fatigue, the field of candidates presently before this court is much smaller than that in 1994 when we last reviewed this controversy over the selection of a successor to the Faumuina title. After being remanded for retrial by the land and titles division in 1994, the matter proceeded to trial during January 22-24, 1997, with three candidates remaining: Fautua L.T. Faumuina (“Fautua”), since deceased, appellant Saunoa S. Vaouli (“Saunoa”), and appellee Suafa'i P. Satele (“Suafa'i”). The trial court, in a lengthy decision, awarded the title to Suafa'i. For reasons detailed below, we affirm that decision.
Discussion
A. Motion to Dismiss Candidate Fautua
Appellant Saunoa contends that because Fautua failed to join in the appeal of the trial court’s 1992 decision, he should have been dismissed from the retrial of this controversy upon remand by this court. We agree with the trial court’s decision that allowed Fautua to participate in the retrial. The Legislature has specifically exempted proceedings before the land and titles division of the High Court from the mies of civil procedure and specifically authorized that division to act in each case in such a manner as it considers to be most consistent with natural justice and convenience. A.S.C.A. 8 3.0242.
In a matai title case all candidates must first comply with the statutory requirements outlined under A.S.C.A. §§ 1.0401-.0414, which include the filing of a petition signed by at least 25 blood members of the title claimed. In the absence of any clear legislative intent to preclude otherwise qualified candidates from participating in the retrial of a matai title controversy, we find no compelling reason to impose a mle precluding such participation. Even were we to consider applying this mle of civil procedure to a land and titles case, the instant controversy does not present a case in which any part of the trial court’s decision remained valid and binding upon those parties not joining in the appeal.
*8This court’s opinion in Saunoa v. Lutali, 26 A.S.R.2d 1 (App. Div. 1994) effectively voided the entire opinion and order of the trial court and remanded the controversy to that court for a new trial.
For the above reasons we find Saunoa’s reliance upon Security Pacific National Bank v. Conquest, 4 A.S.R. 2d 59, 64 (Trial Div. 1987) to be misplaced. We find no error in the trial court’s decision to allow Fautua to participate in the retrial of this controversy.
B. Motion to Disqualify Trial Judges at Retrial
Saunoa challenges the impartiality of the associate judges who sat at both the first trial and at the retrial and urges this court to remand this controversy for yet another trial before a brand new panel of associate judges. Contrary to Saunoa’s contention that “partiality is one of the very reasons why the appellate court remanded this case for a new trial”, this court’s decision in Saunoa centered on the appearance of impartiality in a situation where a governor who had appointed the associate judges appeared in court before such judges in his individual capacity.
We further noted that no specific accusations of impartial conduct were made against those judges and that their conduct was honorable. The problem, however, was that those judges had been appointed by Governor Lutali and the Governor was ultimately selected as the new titleholder at the conclusion of the first trial. The appearance of impartiality in such circumstances was simply too great to be allowed to stand. Prior to the second trial, however, Governor Lutali withdrew his petition which effectively resolved the appearance of impartiality which his presence had engendered.
Saunoa has provided no legal basis for his assertion that a judge who presided at the trial of a case which was reversed and remanded on appeal is automatically disqualified to retry the case. Indeed, absent special circumstances, the general rule is to the contrary. 46 Am. Jur. 2d § 178, Judges — Retrial of case reversed by higher court '(2d ed. 1994)
The trial court, in rejecting Saunoa’s motion for a new trial, stated that it had denied Saunoa’s motion to reconstitute a new panel of associate judges to retry the case, inter alia, due to the Rule of Necessity and because appellant failed to timely object to the judges on the panel. Notwithstanding the court’s order of September 9, 1994 that all parties submit within 60 days any written objections to any judges that might be assigned to rehear this controversy, the record indicates that Governor Lutali did not withdraw his candidacy until just prior to the second trial which occurred in January 1997. Lutali’s withdrawal from the controversy effectively removed the disqualification of any associate judges who had been appointed by him while governor, as required by *9this court’s opinion in Samoa.
We need not decide whether Saunoa had effectively waived his right to address this late development in this case, because we agree with the trial court’s denial of his motion to reconstitute the panel of associate judges with judges that had not heard the first trial. As discussed above, this Territory has no statutory or constitutional prohibitions against the same judges retrying cases and controversies upon remand from the appellate division. Nor does the statutory scheme enacted by the Legislature indicate any other legal option for resolving a matai title controversy.
Article III of the Revised Constitution of American Samoa (R.C.A.S.) vests the judicial power in the High Court, District Court and other courts established by law as an independent branch of government, with the Chief Justice and Associate Justices appointed by the U.S. Secretary7 of the Interior, The Legislature implemented this constitutional language under A.S.C.A. §§ 83.0101-.0103 providing for the administration of the independent judicial branch by the Chief Justice, and specifying generally the jurisdiction of the courts. Under A.S.C.A. § 3.0208(b), the land and titles division has exclusive jurisdiction over all matters relating to matai titles and land. In matai cases, the controversy is heard by one justice and four associate judges. A.S.C.A. § 3.0240. Appeals from the land and titles division, unlike other appeals, afford the associate judges equal voice in such appellate decisions. A.S.C.A. § 3.0221. Associate judges are appointed by the Governor upon recommendation of the Chief Justice and confirmed by the Senate, with the panel of available, sitting judges to be no less than five members. A.S.C.A. § 3.1004. Upon reaching retirement age of 65, associate judges normally are added to the panel of temporary associate judges until mandatory separation from the court at age 70. A.S.C.A. § 3.1006.
In the event of inadequate numbers of associate judges to sit at trial or on appeal, the Chief Justice may appoint temporary associate judges from a panel of persons recommended by the Chief Justice, found qualified by the Governor, and confirmed by the Senate. A.S.C.A. § 3.1006. No judge or justice may sit on the appellate division and determine an appeal from a decision in which that judge or justice made or joined in at the trial court. A.S.C.A. § 3.1007.
As stated by the presiding justice at the second hearing in January 1997, the only associate judges available to rehear this controversy were assigned to do so. No additional judges remained from the panel of temporary judges and the other active associate judges were either off-island or self-recused.
*10Saunoa contends that another, entirely new panel could have been appointed and suggests that the U.S. Secretary of the Interior could have fulfilled that duty. We find no legal basis to support this assertion. The Legislature has carefully constructed a statutory scheme for associate judges to decide matai title controversies, and for the exclusive means of such judges’ recommendation, appointment, and confirmation. The Revised Constitution of American Samoa authorizes the Secretary of the Interior to appoint the Chief Justice and such Associate Justices as necessary. R.C.A.S. Art. Ill Sec. 3. Congress has prohibited any amendments to or modifications of the R.C.A.S. except by Act of Congress. 48 U.S.C. 1662(a) (1983). Although the legal ramifications of 48 U.S.C. 1662(a) have not been fully developed in caselaw, it appears clear that the Secretary of the Interior’s present judicial appointment powers extend only to the Chief Justice and Associate Justice(s). To judicially extend that power of appointment to include associate judges, whose role in matai title controversies is to hear and decide matters pertaining to the Samoan culture, presumably enacted under the policy-protective legislation section of the R.C.A.S. (Article I, Section 3), would appear neither prudent nor legally possible without the prior consent of Congress. We therefore concur with the trial court’s decision to deny Saunoa’s motion to appoint a new panel of judges to retry this case.
C. Recusal of Associate Judges under A.S.C.A. § 3.1007
Saunoa also argues that two of the associate judges assigned to the retrial in this matter should have recused themselves, because either through marriage or family history, such judges were distantly related to Suafa'i. We have reviewed the affidavits filed to verify these allegations and examined the language of A.S.C.A. § 3.1007, which states in pertinent part that “[n]o judge shall sit in any case in which he, or family of which he is a member, has a substantial interest or in which he ... is a member of the same family with any party to the case.”
Even assuming the hearsay statements contained in the submitted affidavits are accurate, we do not find that these alleged family relationships would trigger either judge’s recusal under the statute. The alleged family ties are simply too tenuous to override either judge’s duty “not to recuse himself . . . unless there is a need to do so.” Pens v. A.S.P.A., 10 A.S.R.2d 23 (Trial Div. 1989); Uiagalele v. Ulufale, 17 A.S.R. 2d 158 (App. Div. 1990). Although we stressed the importance of avoiding the appearance of partiality in our opinion in Saunoa, we noted at page 5 of that opinion that the test for this standard is “whether a disinterested observer would entertain significant doubt that justice would be done” (emphasis added).
*11We find no significant doubt as to the impartiality of the individual judges hearing this matter being affected by family or social ties. Saunoa’s Position far exceeds the judicial standards embraced in the statutes and Canons of Judicial Ethics. In one instance, Saunoa alleges that one judge, though his half-sister, is related to an extended family to which Suafa'i belongs. In the second instance, Saunoa alleges that another judge’s wife may be a first cousin by marriage to Suafa'i’s stepfather. Absent additional circumstances tending to indicate that either judge’s family members had a personal or financial interest in the outcome of this case, these alleged relationships are too distant to support even an inference of the appearance of impartiality.
We also reject Saunoa’s argument that because the trial court invoked the Rule of Necessity in denying the motion for new trial, that the trial court was somehow acknowledging that some degree of partiality was present in the panel of associate judges. As discussed in United States v. Will, 449 U.S. 200, 213-216 (1980), this ancient rule of common law requires the adjudication of a controversy by a judge who is, by statute, canon, or other direct interest, disqualified from hearing that matter when no provision is made for calling in another judge or no other judge can take the disqualified judge’s place. The basis for the rule is that unless a judge, even an interested one, can address and resolve the case, the litigants may be deprived of their constitutional right to seek judicial resolution of their controversy.
The trial court did not invoke this common law rule to justify the associate judges’ hearing the retrial of this controversy even though they were disqualified. Rather, the trial court held that even if there was an appearance of partiality, there were no other available associate judges to hear the case. Order Denying Motion For Reconsideration at 3 (May 19, 1997)
Because we have determined that the associate judges who participated in the retrial were not, ipso facto, disqualified from sitting because of their participation in the first trial, and that the individual judges challenged by Saunoa were not otherwise subject to recusal because of allegations of tenuous or remote family ties to the litigants, we need not reach the issue of whether the Rule of Necessity applies to the facts of this case.
D. Trial Court’s Findings of Fact
Our review of this issue is governed by statute, which prohibits this court from setting aside findings of fact by the land and titles division unless such findings are “clearly erroneous.” A.S.C.A. § 43.0801(b). This court may determine that the trial court’s findings are clearly erroneous when, “although there is evidence to support it, the reviewing *12court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsorn Co., 333 U.S 364 (1948).
In matai title controversies, the trial court’s decision as to the best candidate is determined by its findings relative to the four categories of statutory criteria prescribed by statute. A.S.C.A. § 1.0409. Not only did the Legislature prescribe what the trial court was to determine, but also the priority of these considerations. Further, by prohibiting any justice of the High Court from participating in the ultimate decision of the four-member associate judge panel unless to break a tie, the Legislature has strongly indicated that in the absence of an uncontested family consensus as to who should succeed to a vacant matai title, the next best selectors of the successor are associate judges, who historically have been ranking titleholders within their own extended families. To insure that culturally experienced jurists also fairly participate at the appellate level, the Legislature has further provided that associate judges sitting in the appellate division on appeals from the land and titles division have equal decision-making power with the justices assigned to that case. A.S.C.A. § 3.0221.
The statutory dispute resolution scheme adopted by the Legislature for deciding matai title controversies is unique, both in the composition of the judicial panel and the criteria of title succession which such a panel must assess and determine. The carefully developed statutory plan indicates clear legislative intent to insulate such trials from the strict application of arguably inapposite judicial rales, practices, and procedures applicable to nearly all other civil controversies within the jurisdiction of the High Court.
Candidates are guaranteed by statute a panel of judges neutral in act and appearance and an assessment and determination of the statutorily established and prioritized criteria of consideration for selecting the successor to the vacant title. It is worth stressing, however, that this selection process is a statutory alternative to the preferred historical selection process in which the extended family meets and, by consensus, selects a successor based upon that family’s particular traditions and practices.
In order to preserve the broad discretion afforded by statute to the associate judges to determine the best qualified successor to a matai title, this court must resist the imposition of broad invariable rules of preference for certain individual attributes of the candidates. For example, regardless of some matai title controversies having been resolved in favor of the candidate possessing the higher degree of formal education or the greatest disposable income or personal wealth, such cases cannot be interpreted, as Saunoa urges, to invariably require the *13land and titles division to hold that such attributes always outweigh the accomplishments of other candidates. To establish such broad rales of law would at once frustrate the broad grant of discretion given by the Legislature to the trial court in matai title cases and unduly encroach upon the specific, constitutional powers of the Legislature to preserve and protect the Samoan way of life.
By way of example, Saunoa argues that Suafa'i’s use of an unregistered matai title must necessarily be fatal to any positive evaluation on the criterion of his “forcefulness, character, personality and knowledge of Samoan customs” under A.S.C.A. § 1.0409(a)(3). Saunoa claims that Suafa'i used an unregistered matai title in violation of A.S.C.A. § 1.0414 and that this “crime” allowed Suafa'i to acquire his knowledge of Samoan customs.
A.S.C.A. § 1.0414, in pertinent part, reads as follows:
A person who uses any matai title or permits the use of any matai title in his behalf before the same has been registered in accordance with the provisions of this chapter . . . shall be sentenced as for a class B misdemeanor.
This statute prohibits at least three types of conduct with respect to matai titles. It prohibits the actual or permitted use by individuals of matai titles that have not been duly registered and recorded in the matai title registry prior to January 1, 1969 with the territorial registrar. A.S.C.A. § 1.0401. Also prohibited is the actual or permitted use of any matai title appearing in the registry by an individual who has not fully complied with the statutes governing succession to a vacant, registered matai title, or the actual or permitted use of a registered matai title by an individual who is not the present legal titleholder.
The record contains sparse mention of Suafa'i’s alleged criminal activity in the use of an unregistered matai title. See R.T. p. 182, lines 14-20. Suafa'i did not contest in his brief or during oral arguments that the talking chief title “Moasili” was conferred upon him by the previous Faumuina titleholder or that the title is not recorded in the matai title registry. Suafa'i contends, however, that it is a common practice for senior matais, and especially paramount chiefs, to create and confer new matai titles upon members of their families for the limited purpose of serving the higher-ranking matai of the family. Because of this practice, Suafa'i argues that the statutory prohibitions against the illegal use of a matai title should be narrowly construed to apply only to the actual or permitted use of a matai title which is listed in the matai title registry by a person when the title is vacant or legally held by another.
*14As discussed above, the Legislature clearly prohibited the actual or permitted use of unregistered matai titles when enacting the broad language of A.S.C.A. § 1.0414, to halt the proliferation of new niatai titles because that practice would “tend to deminish (sic) the dignity and degrade the matai titles now existing.” Mailo v. Fuimaono, 4 A.S.R. 757, 761-62 (Trial Div. 1967). Current practices to the contrary notwithstanding, the fact that a paramount chief breaks the law by bestowing an unregistered matai title within his family does not legally excuse the person using that prohibited title from the statute’s application.
We are not presented with any particulars with respect to the creation or use of the unregistered matai title “Moasili.” Both parties concede, however, that Suafa'i was never charged or convicted for using this title under A.S.C.A. § 1.0414. Indeed, Suafa'i, when asked if he knew that for 20 years he had violated the law responded, “Nobody has told me that.” R.T., p 182, lines 18-20.
Saunoa contends that it was clearly erroneous for the trial court to rank Suafa'i ahead of the other candidates in terms of character and knowledge of Samoan customs because of Suafa'i’s alleged illegal use of the unregistered matai title “Moasili.” Saunoa cites several cases to buttress his assertion that title candidates who have used unregistered matai titles have invariably lost in matai title controversies. We have carefully reviewed those cases and find that although the losing candidates in each cited case had indeed used an unregistered or vacant title, the court found that the losing candidates had also been convicted of committing additional and separate crimes ranging from larceny (Tooto'o v. Faea, 2 A.S.R. 94 (Trial Div. 1940), Fa'agau v. Tulei, 4 A.S.R. 490 (Trial Div. 1964)) to adultery (Tuinei v. Ieliko, 2 A.S.R. 117 (Trial Div. 1964)), and evidenced other personal shortcomings indicating character flaws. In the instant case, Saunoa had ample opportunity at trial to demonstrate his present contention that Suafa'i’s prohibited conduct indicated a character flaw sufficiently significant to find him unfit to assume the contested matai title. Upon reviewing the evidence as a whole on this matter, however, we do not find the trial court’s findings of fact on the issue of Suafa'i’s character or knowledge of Samoan custom to be clearly erroneous.
Although we agree with Saunoa that a prior criminal conviction of a crime, especially an infamous crime or one involving moral turpitude, would likely prove fatal to any candidate’s favorable assessment as to character, prior statutes which automatically disqualified certain convicted felons from registering matai titles have been repealed and not reenacted. See Akemo v. Mulu, 2 A.S.R. 89 (Trial Div. 1940). We must construe this statutory history as reflecting the Legislature’s intent to allow the panel of associate judges in matai title cases broad discretion to *15weigh all attributes — both positive and negative — in evaluating each candidate’s character. We do not find that the trial court exceeded the limits of that discretion in its evaluation of Suafa'i’s character in this matter.
We have also reviewed Saunoa’s allegations of error in the trial court’s evaluation of clan support. The trial court found that Suafa'i’s residence in the village; coupled with active tautua (service) in meeting the family’s commitments, allowed him to prevail within this single-clan family. Despite Saunoa’s spirited arguments to the contrary, we do not find these findings of fact to be clearly erroneous when reviewing the record as a whole.
Conclusion
Based upon the foregoing, we find no error of law or fact in the trial court’s decision requiring a new trial. The decision of the trial court is therefore affirmed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487004/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re WHEELER/MARREL/FARMER, Minors. November 17, 2022
No. 360929
Oakland Circuit Court
Family Division
LC No. 2019-870341-NA
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Respondent-mother appeals as of right the trial court’s order terminating her parental rights
to the minor children, KW, SM, KM, and DF, pursuant to MCL 712A.19b(3)(c)(i), (g), and (j).
We affirm.
I. BACKGROUND
Respondent came to the attention of Child Protective Services (“CPS”) when her failure to
follow medical advice resulted in a life-threatening condition for one of her children. Services
were provided by Families First Services, but respondent failed to make any progress and became
homeless. In October 2019, petitioner filed a petition to remove the children from respondent’s
care. Petitioner alleged that respondent had an extensive history with CPS, dating back to 2011,
which included allegations of domestic violence, homelessness, substance abuse, and physical
neglect and abuse. Respondent entered a plea of no contest to the petition, the court exercised
jurisdiction over the children, and respondent was offered a treatment plan to address the barriers
to reunification. In June 2021, respondent had yet to establish suitable housing and had not
benefited from other services, so petitioner filed a supplemental petition requesting termination of
respondent’s parental rights. Following separate hearings, the trial court found that statutory
grounds for termination were established under MCL 712A.19b(3)(c)(i), (g), and (j), and that
termination of respondent’s parental rights was in the children’s best interests.
II. STATUTORY GROUNDS FOR TERMINATION
Respondent argues that the trial court erred by finding that the cited statutory grounds for
termination were established by clear and convincing evidence.
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To terminate parental rights, the trial court must find that at least one statutory ground
under MCL 712A.19b(3) has been established by clear and convincing evidence. In re Moss, 301
Mich App 76, 80; 836 NW2d 182 (2013). This Court reviews for clear error a trial court’s finding
whether a statutory ground for termination has been proven by clear and convincing evidence.
MCR 3.977(K). A finding is clearly erroneous if the reviewing court is left with a definite and
firm conviction that a mistake has been committed. In re Miller, 433 Mich 331, 337; 445 NW2d
161 (1989).
The trial court terminated respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i),
(g), (j), which permits termination of parental rights under the following circumstances.
(c) The parent was a respondent in a proceeding brought under this chapter,
182 or more days have elapsed since the issuance of an initial dispositional order,
and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is
no reasonable likelihood that the conditions will be rectified within a reasonable
time considering the child’s age.
* * *
(g) The parent, although, in the court’s discretion, financially able to do so,
fails to provide proper care or custody for the child and there is no reasonable
expectation that the parent will be able to provide proper care and custody within a
reasonable time considering the child’s age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of the
child’s parent, that the child will be harmed if he or she is returned to the home of
the parent.
Termination is appropriate under § 19b(3)(c)(i) when the conditions that brought the child
into care continue to exist despite that respondent was given “time to make changes and the
opportunity to take advantage of a variety of services. . . .” In re White, 303 Mich App 701, 710;
846 NW2d 61 (2014). Termination of parental rights is proper under § 19b(3)(c)(i) when “the
totality of the evidence amply supports that [the respondent] ha[s] not accomplished any
meaningful change in the conditions” that led to the adjudication. In re Williams, 286 Mich App
253, 272; 779 NW2d 286 (2009). At the time of termination, more than 182 days had elapsed
since issuance of the initial dispositional order and there was evidence that the conditions that led
to the adjudication continued to exist.
Although the children were brought into care at different times, they were all brought into
care because respondent was unable to provide proper care due to a lack of stable housing and
income. Initially, KW, SM, and KM were placed in their grandmother’s home as a safety plan
because respondent no longer had the funds to pay for their hotel room. However, once they were
placed with their grandmother, KW began opening up about physical abuse that respondent had
inflicted on SM and KM. KW also reported that she had witnessed respondent engaging in sexual
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intercourse with her live-in partner and domestic violence between the two. KW also reported that
the family often lacked food to eat and resorted to panhandling for money. DF was also removed
from respondent’s care because she had run out of funds to keep living in a hotel room. At the
time of the termination hearing, respondent still did not have safe and stable housing.
Respondent argues that petitioner did not establish by clear and convincing evidence “that
there is no reasonable likelihood that the conditions will be rectified within a reasonable time
considering the child’s age” because petitioner failed to make reasonable efforts to reunify her
with the children. Respondent did not raise any challenge to the adequacy of petitioner’s
reunification efforts until closing argument at the termination hearing, which was too late to
preserve the issue for appeal. In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000). Therefore,
respondent’s challenge to the adequacy of petitioner’s reunification efforts is unpreserved.
This Court generally reviews for clear error a trial court’s factual finding that petitioner
made reasonable efforts to reunify a respondent with the child. In re Atchley, ___ Mich App ___,
___; ___ NW2d ___ (2022) (Docket Nos. 358502 & 358503); slip op at 3. “A finding is clearly
erroneous if, although there is evidence to support it, this Court is left with a definite and firm
conviction that a mistake has been made.” Id. However, this Court reviews unpreserved issues
for plain error affecting substantial rights. In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019).
Respondent “must establish that (1) error occurred; (2) the error was ‘plain,’ i.e., clear or obvious;
and (3) the plain error affected [her] substantial rights.” Id. Further, the error must have “seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings[] . . . .” Id., quoting
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Petitioner “has an affirmative duty to make reasonable efforts to reunify a family before
seeking termination of parental rights.” In re Hicks, 500 Mich 79, 85; 893 NW2d 637 (2017).
“While [petitioner] has a responsibility to expend reasonable efforts to provide services to secure
reunification, there exists a commensurate responsibility on the part of respondents to participate
in the services that are offered.” In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012).
“The adequacy of the petitioner’s efforts to provide services may bear on whether there is sufficient
evidence to terminate a parent’s rights.” In re Rood, 483 Mich 73, 89; 763 NW2d 587 (2009).
Respondent argues that petitioner failed to make reasonable efforts toward reunification
because of a delay in KW’s court-ordered trauma assessment and the failure to initiate family
therapy. At the initial disposition in May 2019, the trial court suspended respondent’s visitation
with KW until she could undergo a trauma assessment. KW did not complete the trauma
assessment until March 2020, which resulted in recommendations for trauma focused cognitive
behavioral therapy before family therapy with respondent could begin. In its decision addressing
the statutory grounds for termination, the trial court noted that it was not respondent’s fault that
family therapy had not taken place, but that it was respondent’s fault that her past neglect had
resulted in a broken bond between her and KW.
Just as respondent was never able to address her underlying mental health issues in therapy
because of immediate environmental stressors, such as lack of income and housing, KW never
progressed to family therapy because of the stressors she experienced. KW was forced to address
many difficulties throughout the case, such as grief over the death of her older sister, the difficult
situation she experienced in her paternal grandmother’s home, including her grandmother’s
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ultimate decision to have KW removed from the home. In addition, KW’s maternal grandmother,
who initially had expressed to KW her interest in guardianship, changed her mind. After leaving
her paternal grandmother’s home, KW had to leave another foster home after that family decided
they did not want to participate in fostering any longer. KW experienced a bout of depression and
anxiety, not bathing or changing her clothing regularly, and isolating herself in her bedroom.
Reasonable efforts were made to assist respondent and KW in stabilizing their mental health
throughout the case. However, KW was not able to overcome the difficulties of her past trauma
and her experience in foster care to a degree where she could begin family therapy with respondent.
Respondent fails to explain what additional services or assistance should have been offered to
rebuild the bond between KW and respondent in light of the ongoing trauma that KW faced, which
indefinitely delayed family therapy.
Respondent also argues that petitioner failed to make reasonable efforts to bring the
children and respondent closer together for services and parenting time. However, Samantha
Andrus, the foster care worker, testified that respondent participated in all the services required
under her parent-agency treatment plan and she regularly attended parenting time. There was no
evidence that respondent did not substantially participate in services because of transportation
issues and the trial court did not make any finding to that effect.
Finally, respondent argues that petitioner failed to meaningfully assist her in obtaining
housing beyond offering housing resources. Andrus and the previous worker had made referrals
for respondent for housing. Her therapist also made referrals for housing and helped respondent
apply for Section 8 and low-income housing. Respondent’s therapist, Dr. Hernandez, continuously
encouraged respondent to submit all the documents she needed for Section 8 housing, and she was
willing to provide additional resources if needed. Andrus testified that she walked through every
parent-agency treatment plan with respondent and consistently questioned respondent regarding
her progress and the steps respondent needed to take toward services. Andrus believed that
respondent understood their conversations because respondent was able to read the plans and
converse regarding the steps she was taking toward reunification and ask appropriate follow-up
questions.
Andrus testified that she thought that respondent displayed a lack of urgency toward
establishing housing. Andrus reported that respondent was very slow in submitting her documents
and she consistently reported to Andrus that “she was going to make progress and she was going
to pick up documents or submit documents,” but she did not always do what was required. Rather
than a lack of reasonable efforts by petitioner, there was testimony that respondent was
comfortable with her children’s placements and became complacent in her efforts to obtain
housing.
There was clear and convincing evidence that petitioner made reasonable efforts toward
reunification. There was also clear and convincing evidence that there was no reasonable
likelihood that the conditions that led to the adjudication would be rectified within a reasonable
time considering the children’s age. Respondent’s children had been in care for three years,
respondent had moved six different times during the case, and still did not have safe and suitable
housing. The trial court did not clearly err by finding that clear and convincing evidence supported
termination under § 19b(3)(c)(i).
-4-
Section 19b(3)(g) requires the trial court to consider the respondent’s financial ability to
provide proper care and custody. The trial court’s findings regarding respondent’s finances were
contradictory in regard to § 19b(3)(g). The court first indicated that it “heard no testimony that
they do not have the means to take care of these children.” However, the trial court also stated
that although respondent had an income, “I think the testimony is clear that she does not have
sufficient income to buy housing, which again, the two of those are linked.” The trial court also
indicated that respondent was struggling with “lack of income, which then leads to a lack of
housing.” Considering the trial court’s findings, and the testimony that respondent had only been
working part-time for a temporary staffing agency since November 2020, and that her lack of
income was a stressor, the trial court clearly erred by finding that § 19b(3)(g) was established by
clear and convincing evidence. However, this error is harmless because it is only necessary to
establish one statutory ground for termination. In re VanDalen, 293 Mich App 120, 139; 809
NW2d 412 (2011). The trial court did not clearly err by finding that clear and convincing evidence
supported termination under §§ 19b(3)(c)(i) and (j).
With respect to § 19b(3)(j), the trial court did not clearly err by finding that there was a
reasonable likelihood, based on respondent’s conduct or capacity, that the children would be
harmed if they were returned to respondent’s care. There was clear and convincing evidence that
respondent did not have an appropriate home for the children to live if they were returned to her
care. She had moved many times during the case and sometimes lived in unsafe and unsanitary
conditions. In addition, respondent had been living with a man whom Andrus had informed her
was inappropriate to have around the children because of his criminal history. Although
respondent agreed that her children could not live with him and she was not planning with him,
she continued to live with him. There was also evidence that the children, particularly KW, were
traumatized because of their prior experiences living with respondent, and the children were
adamant about not wanting to be returned to her care. Considering this evidence, the trial court
did not clearly err by finding that clear and convincing evidence supported termination under
§ 19b(3)(j).
III. BEST INTERESTS
Once a statutory ground for termination has been established, the trial court must find that
termination of parental rights is in the child’s best interests before it can terminate parental rights.
In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). Whether termination is in the
best interests of the child must be proved by a preponderance of the evidence. In re Moss, 301
Mich App at 90. This Court reviews for clear error the trial court’s determination regarding a
child’s best interests. In re White, 303 Mich App at 713.
The trial court must terminate a parent’s rights to a child if the petitioner establishes a
statutory ground for termination by clear and convincing evidence and a preponderance of the
evidence on the whole record demonstrates that termination of parental rights is in a child’s best
interests. MCL 712A.19b(5). As explained in In re White, 303 Mich App at 713-714:
To determine whether termination of parental rights is in a child’s best
interests, the court should consider a wide variety of factors that may include ‘the
child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality, and the advantages of a foster home over the
-5-
parent’s home.’ The trial court may also consider a parent’s history of domestic
violence, the parent’s compliance with his or her case service plan, the parent’s
visitation history with the child, the children’s well-being while in care, and the
possibility of adoption. [Citation omitted.]
A preponderance of the evidence showed that termination of respondent’s parental rights
was in the children’s best interests. There was no evidence of a strong bond between respondent
and any of her children, or that she had the ability to properly care for them. During the case,
respondent never reached out to inquire about the children’s schooling or services. Indeed, she
did not know where the children went to school. Respondent never asked about KW and her well-
being even though she had not seen or talked to KW since the case began. Although respondent
testified that she had secured a one-bedroom apartment, she did not have any furniture, did not
check the nearby schools for the children’s enrollment, and she did not know where she would
find childcare while she was working.
The evidence was clear that KW did not have any bond with respondent. From the outset
of the case, KW expressed an unwillingness to pursue a relationship with respondent because of
the past trauma and neglect that she had experienced. KW had lived in several different homes
throughout the case and was finally placed with her paternal grandparents. She expressed that she
was now living in a home in which she was comfortable and thriving, and she wished for her
grandparents to adopt her. During respondent’s testimony, it became clear that respondent did not
plan for KW to be returned to her care. She testified at the statutory-grounds hearing that she had
written a letter in support of her application for Section 8 housing explaining that KW would not
be living with her. At the best-interest hearing, respondent was trying to secure a one-bedroom
apartment, indicating that KW would not live there.
Although SM and KM continued to visit with respondent and enjoyed their visits with her,
they continually made it known that they did not want to live with her. SM and KM were doing
very well in their foster home. They referred to their foster parents as “mom” and “dad,” and they
wanted to live with them long-term. SM and KM expressed fear that they would be removed from
their foster home and returned to respondent’s care.
Christy Elling Shillings, a foster care supervisor, testified that the relationship between
respondent and DF was more of a babysitter relationship, rather than a mother-child relationship.
During visits, DF referred to respondent as “[SM’s] mom.” DF called the aunt he lived with
“mom.” After visits with respondent, DF exhibited negative behaviors, including biting and
incontinence, that he did not exhibit at other times.
Although KW and DF were in relative placements, it was important for them to have
stability, safety, and reassurance that they would not have to move again. Mariah Harden, a foster
care worker, thought it would be a traumatic setback for the children if respondent’s parental rights
were not terminated. Considering the children’s lack of bond with respondent, respondent’s lack
of parenting skills, the children’s need for permanency, stability, and finality, and the advantages
of their foster homes over placement in respondent’s care, the trial court did not clearly err by
finding that termination of respondent’s parental rights was in the children’s best interests.
-6-
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
-7- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494082/ | MEMORANDUM OPINION
STEPHEN S. MITCHELL, Bankruptcy Judge.
This matter is before the court on the chapter 7 trustee’s Final Report and Account with Compensation. A hearing was held on September 19, 2006. The chapter 7 trustee, H. Jason Gold, requests approval of $64,878.89 as compensation. The United States Trustee (“U.S. Trustee”) objected to the application, arguing that the trustee is only entitled to $12,631.48. The issue is whether a credit bid may be included in the calculation of the trustee’s compensation under § 326(a), Bankruptcy Code, as “moneys disbursed or turned over in the case by the trustee.” For the reasons stated below, the court determines that Congress did not intend to include a credit bid in the calculation of a trustee’s compensation under § 326(a). Thus, the maximum compensation to which the Trustee is entitled is $12,631.48.
Background
American Canadian Investments, Inc. filed a voluntary petition under chapter 11 of the Bankruptcy Code in this court on May 5, 2004. The case was converted to a chapter 7 on July 5, 2005, and H. Jason Gold was appointed as the chapter 7 trustee. The debtor’s schedules reflect that its primary asset was three adjacent parcels of land in Baltimore, Maryland, described as 5810 Reistertown Road, 4200 Primrose Avenue, and the Northwest side of Primrose Avenue. The debtor valued the property at $1,800,000, subject to a deed of trust in favor of Pikes, Inc. (“Pikes”) in the amount of $1,010,040 and tax liens in the amount of $142,007.
Following the conversion to chapter 7, the court granted the trustee’s motion to approve the sale of the property to the mortgage holder, Pikes, for $1,300,000 “in cash and credit,” with the cash portion, according to the sales contract, to be determined by Pikes, but to be in an amount sufficient to pay the administrative expenses of the case plus $10,000. The amount of cash actually received by the trustee from the sale was $121,298.1 The *854trustee earned an additional $380.98 in interest. On August 25, 2006, the Trustee filed his Final Account and Report with Compensation requesting $64,878.89 in compensation based on what was asserted to be $1,387,629.65 in total disbursements.2 As part of his application, the trustee included time records reflecting 170.3 hours of his own time, 50.6 hours of a legal assistant’s time, and 4 hours of an associate’s time expended in administration of the estate.3 The amount the trustee actually has on hand for distribution (after payment of $39,000 already made to the sales agent) is $83,785.72, which he proposes to distribute as follows:
To Be Paid Balance
Trustee’s compensation $64,878.89 $18,906.83
Trustee’s expenses $ 68.40 $18,838.43
Attorney for trustee $12,795.78 $ 6,042.65
Accountant for trustee $ 2,195.75 $ 3,846.90
Priority tax claims (15.7%) $ 3,846.90 4 0.00
The $1,387,629.65 in disbursements upon which the trustee’s compensation request is based includes the $1,200,000 credit allowed to Pikes against the sales price of the property.5 The U.S. Trustee objected to the trustee’s requested compensation, arguing that the $1,200,000 credit bid should not have been included in the calculation of the trustee’s compensation under § 326(a), Bankruptcy Code, because it did not qualify as money disbursed by the trustee. An objection was also filed by the law firm of Tyler, Bartl, Gorman & Rams-dell, P.L.C., which has an approved claim for professional fees as counsel for the debtor in possession in the amount of $19,863.95, seeking payment of its claim.6
Discussion
Compensation of chapter 7 trustees is governed by §§ 326 and 330, Bankruptcy Code. Section 330 permits a court to award a trustee “reasonable compensation” and reimbursement for actual, necessary expenses based on the “nature, the extent, and the value of [the] services” and a consideration of five statutory factors.7 § 330(a)(3), Bankruptcy Code. That com*855pensation, however, is capped by § 326, which provides in relevant part as follows:
In a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed 25 percent on the first $5,000 or less, 10 percent on any amount in excess of $5,000 but not in excess of $50,000, 5 percent on any amount in excess of $50,000 but not in excess of $1,000,000, and reasonable compensation not to exceed 3 percent of such moneys in excess of $1,000,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.
§ 326(a), Bankruptcy Code (emphasis added).
The U.S. Trustee’s position is that the maximum compensation to which the trustee is entitled is $12,631.48 based on total actual disbursements of $187,628.55.8 The trustee — relying primarily on a nearly century-old decision of the Fourth Circuit construing an analogous provision in the former Bankruptcy Act of 1898 — -rejoins that the credit bid should be included in the calculation because, regardless of whether Pikes had paid the $1,200,000 in cash or by credit bid, the end result is the same- — ■ there was an exchange of value. The trustee is therefore asking this court to adopt a constructive disbursement theory.
Whether a credit bid should be included in the § 326(a) calculation turns on the scope of the word “moneys” in the phrase “all moneys disbursed.” Statutory interpretation begins with the plain language meaning of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). However, where the plain meaning of a statute is ambiguous, the court must look to the legislative history to determine Congress’s intent. United States v. Pub. Util. Comm’n of Cal., 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020 (1953).
In literal terms, it is difficult to see how the term “moneys disbursed” could be construed as anything other than the writing of a check to the creditor. At least one court, however, has found the term “moneys” as used in § 326(a) to be ambiguous given the various sophisticated ways monetary value is transferred in our modern economy. See Staiano v. Cain (In re Lan Assocs. XI, L.P.), 192 F.3d 109, 116 (3rd Cir.1999). To the extent the term is actually ambiguous, it is appropriate to look to the legislative history in interpreting § 326(a). That history rather clearly reflects that Congress intended for the term “moneys” to mean actual money, not property or any other type of constructive disbursement. Specifically, in addressing § 326(a), the legislative history explains:
[T]he base on which the maximum fee is computed includes moneys turned over to secured creditors, to cover the situation where the trustee liquidates property subject to a lien and distributes the proceeds. It does not cover cases in which the trustee simply turns over the *856property to the secured creditor, nor where the trustee abandons the property and the secured creditor is permitted to foreclose.
H.R.Rep. No. 95-595, at 327 (1977), as reprinted in U.S.C.C.A.N. 5963, 6283-84 (emphasis added). Thus, it is quite clear that Congress intended for “moneys disbursed” to mean actual money, not property, turned over by the trustee to secured creditors.
Although only a few courts have addressed this issue, the majority of them have reached the same conclusion and have rejected the constructive disbursement theory under which “moneys disbursed” includes property turned over by the trustee. In Lan Associates, the Third Circuit persuasively addressed this issue on facts very similar to those before this court. In that case, the chapter 7 trustee sold a piece of property, with an appraised fair market value of $9,727,000, to the mortgagee via a credit bid for the liquidation price of $7,781,200. Lan Associates, 192 F.3d at 111-12. The trustee then sought compensation and included the $7,781,200 credit bid in his § 326(a) calculation, which the bankruptcy court approved. Id. at 112-13. The U.S. Trustee appealed, and the United States District Court for the District of New Jersey found that the plain meaning of “moneys disbursed” did not include the value of a credit bid. Id. at 114. The trustee then appealed to the Third Circuit, arguing that the encumbered property was actually sold to the mortgagee, resulting in an exchange of value, and was not simply abandoned or turned over. Id. at 114-15. The trustee urged that distinguishing a credit bid sale from a sale free and clear of liens simply elevated form over substance. Id. at 115.
The Third Circuit rejected the trustee’s argument and began its analysis by looking at the legislative history of § 326(a). The Court noted that, “[i]n this day and age when we exchange by a keystroke or series of keystrokes what we used to handle only in cash, we do not think that the term ‘moneys’ is so clear....” Id. at 116. After examining the legislative history, the Court concluded that Congress intended to distinguish between money and property in § 326(a). Id. at 117. According to the Third Circuit, the sale of property by the trustee through a credit bid was no different from a situation where the trustee turns over or abandons the property to the secured creditor. Although the trustee may have participated in negotiating the sale, the bottom line is that the trustee did not disburse anything to the secured creditor except the property. Id. “Whether the secured creditor purchases the property through a credit bid or whether the property is turned over or abandoned to it by the trustee, the end result is the same — in either case, the secured creditor receives the property in satisfaction of its secured claim.” Id. (emphasis in original). Recognizing that Congress, if it wanted to include property in the calculation of a trustee’s compensation under § 326(a), knew how to do so, the Third Circuit held that Congress did not intend for a credit bid to be included in the § 326(a) calculation. Id. at 117-18.
In rejecting the trustee’s constructive disbursement theory, the Third Circuit noted that it was following the Fifth Circuit decision in Pritchard v. United States Trustee (In re England), 153 F.3d 232 (5th Cir.1998), as well as the majority of district and bankruptcy courts that have considered the issue. Id. at 118-19. The Court explained that the constructive disbursement theory conflicted with the interpretation of “ ‘moneys’ in the narrow sense, i.e., in the sense of ‘sums of money,’ *857‘something generally accepted as a medium of exchange,’ or ‘assets or compensation in the form of or readily convertible to cash.’ ” Id. at 118. The Court found further support for its position in the consistent holding of bankruptcy courts that trustees should not ordinarily sell fully-encumbered assets. Id. at 119-120. “It follows,” the Court stated, “that a trustee who expends time and effort administering fully encumbered assets should not receive compensation except to the extent that his actions provide an actual benefit to the estate.” Id. at 120 (emphasis added). That benefit is properly measured in terms of money actually disbursed to creditors. Id. at 120-21.
This court adopts the Third Circuit’s reasoning in Lan Associates. In the present case, the trustee sold the property to Pikes for $1,300,000, of which $1,178,701 represented a credit bid. As in Lan Associates, Pikes received the property in satisfaction of its secured claim against the estate. The trustee’s act of conveying the property to Pikes — at least to the extent of the credit bid — secured no benefit to the estate. The only benefit realized by the estate from the sale arose from the $121,298 cash paid by Pikes.
While this court agrees with the Third Circuit’s interpretation of the legislative history, there are other cases that reach the same result without relying on legislative history. Those courts have found that § 326(a) is not ambiguous and did not look beyond the plain language of “moneys disbursed,” yet still found that the phrase means actual money, not property or other value transferred. See, e.g., Pritchard v. United States Trustee (In re England), 153 F.3d 232, 235-37 (5th Cir.1998) (rejecting the constructive disbursement theory and holding that the plain language of § 326(a) indicates that the trustee’s compensation is based solely on money disbursed and not on property disbursed); In re The Landing, Inc., 142 B.R. 169 (Bankr.N.D.Ohio 1992) (following prior decisions giving § 326(a) a narrow meaning and holding that only the cash actually disbursed by the trustee could provide the basis for his compensation under § 326(a)); In re Barnett, 133 B.R. 487, 489 (Bankr.N.D.Iowa 1991) (explaining that Congress chose to use the more limited term “money” rather than “property” or “value” and money means coins or paper currency).
Only one case, on facts similar to those presented here, has included a constructive disbursement in calculating a trustee’s compensation under § 326(a). In re Stanley, 120 B.R. 409 (Bankr.E.D.Tex.1990). In Stanley, the United States Bankruptcy Court for the Eastern District of Texas considered whether $13,115.43 in lien assumptions should be included in the § 326(a) calculation as a constructive disbursement. Id. at 410. Stating that it was motivated primarily by the consideration that a strict reading of § 326(a) may leave a trustee without compensation despite the great efforts the trustee may have exerted to dispose of property of the estate, the court held that a strict reading of § 326(a) is only appropriate where the trustee tries to sell property that is fully encumbered or has only slight equity. Id. at 413. In all other cases, the court stated, a strict reading of § 326(a) must be balanced against the policy considerations of providing a trustee with fair and reasonable compensation. Id.
Stanley is neither binding on this court, nor persuasive. Even if this court were inclined to adopt Stanley’s two-pronged approach to § 326(a), the property sold by the trustee here was substantially encum*858bered and had little, if any, real equity. But even if the situation had been otherwise, this court can see no principled way to construe § 326(a) one way when the property is fully or largely encumbered and another way if the property has substantial equity. The statutory language can only have one meaning, one that applies in all situations. While the motives of the Stanley court were well-intentioned, the fact remains that the opinion simply ignores Congressional intent in order to provide the trustee with what the court considered fair and reasonable compensation.
In addition to Stanley, the trustee relies on a pre-World War I opinion by the Fourth Circuit construing an analogous provision in the Bankruptcy Code of 1898. Varney v. Harlow (In re Columbia Cotton Oil & Provision Corp.), 210 F. 824 (4th Cir.1913). Columbia Cotton did not involve trustee compensation but rather a separate provision for compensation of the bankruptcy referee. § 40(a), Bankruptcy Act of 1898.9 The statute, which had been amended some ten years earlier, allowed the referee a commission of one percent “on all moneys disbursed to creditors by the trustee.” Columbia Cotton, 210 F. at 827. In that case, the bondholders of a bankrupt corporation whose bonds were secured by the company’s property bought the property from the trustee for $90,000, which was $10,000 less than the face value of their lien claim. Id. at 825. The only cash the bondholders actually paid to the trustee was $2,044 to cover the costs and expenses of the sale. Id. The trustee then “indorse[d] on the bonds as a payment thereon the difference between the purchase price and the cash paid to him for costs and expenses, or $87,955.” Id. The district judge, on his own motion, declined to allow the referee a commission on that amount because he did not think that any money had been disbursed to the bondholders by the trustee. Id. at 826. The referee filed a petition to superintend and revise, and the Fourth Circuit reversed.
As a preliminary matter, the Court noted that payment of the referee’s commission would be borne by the bondholders for whose benefit the property was sold, and they were not objecting to the payment. Id. at 826. On the merits, the Court reasoned that the referee’s compensation should not differ simply because the parties executed a more convenient transaction through a credit bid rather than requiring the bondholders to pay money to the trustee who would then turn around and pay the money back to them. Id. at 827. As the Court explained,
It would hardly seem that the referee’s rights should be different merely because for the convenience of the bondholders they were excused from paying in $90,000 and getting $87,955 back. The payment of the latter sum was as effectually made to them by crediting it on their bonds as it could have been in any other form. It does not seem wise *859to make substantial rights depend on such unessential differences.
Id.
The equitable considerations articulated in Columbia Cotton are indeed weighty. The question is whether they can be squared with the language of the statute. While the words being construed in Columbia Cotton — “all moneys disbursed”— are the same words used in § 326, the specific statutory provision in that case— indeed, the very notion of paying bankruptcy referees (now bankruptcy judges) from the estate being administered' — has no direct counterpart in the current Bankruptcy Code. Although the statutory reference to “moneys disbursed ... by the trustee” may be seen as implicating the calculation of the trustee’s commission as well, the fact remains that § 326, though it has its roots in the Bankruptcy Act of 1898,10 is nevertheless an independent statute that was enacted 65 years after the Columbia Cotton decision. The present statute, moreover, is accompanied by legislative history indicating that Congress intended to include only disbursements of actual money in calculating a trustee’s compensation. H.R.Rep. No. 95-595, at 327 (1977), as reprinted in U.S.C.C.A.N. 5963, 6283-84.
Furthermore, Congress had the opportunity to change the language of § 326(a) to include property and other value as “moneys disbursed” in the calculation of the trustee’s compensation, but chose not to. In re New England Fish Co., 34 B.R. 899, 901 (Bankr.W.D.Wash.1983) (noting that when Congress adopted the Bankruptcy Code and chose to keep the same basic language from the Bankruptcy Act, it presumably knew of the split of authority under prior case law and easily could have included the value of properties turned over, assumed claims, and compromised claims in the § 326(a) calculation, but did not); In re Barnett, 133 B.R. 487, 489 (Bankr.N.D.Iowa 1991) (explaining that if Congress wanted the term “moneys” as used in § 326(a) to include anything other than actual money disbursed, it could have included the words “property” or “value.”). For that reason, the court cannot agree with the trustee that Columbia Cotton controls the interpretation of § 326(a). Although the court recognizes that not including the credit bid in the § 326(a) calculation may reach an inequitable result in those cases where the trustee has expended considerable effort in obtaining a distribution for unsecured creditors,11 the court cannot ignore the intent of Congress simply to reach a pre*860ferred result in a particular case. Lan Associates, 192 F.3d at 120-21; Pritchard, 153 F.3d at 237; In re The Landing, Inc., 142 B.R. at 172; In re Barnett, 133 B.R. at 489.
Accordingly, the Court concludes that Pikes’s credit bid cannot be included in the calculation of the Trustee’s compensation under § 326(a). The trustee’s compensation must be calculated based on actual money disbursed — here, $187,628.55. Therefore, the trustee’s compensation shall be reduced from $64,878.89 to $12,631.48. A separate order will be entered consistent with this opinion.
. Following the sale, Pikes filed an amended proof of claim asserting an unsecured deficiency claim in the amount of $406,273.
. The account also included provision for payment of $12,795.78 in compensation and expenses to Joel S. Aronson, Esquire, as attorney for the trustee, and $2,159.75 in compensation to Thompson Greenspun & Co., Inc., as accountant for the trustee. Having reviewed the applications for compensation submitted by those professionals, the court will approve the compensation to the accountant in the amount requested and to the attorney in the slightly reduced amount of $11,376.94 in fees and $427.95 in expenses.
. At the requested hourly rates of $350.00 for the trustee, $75.00 for the legal assistant, and $200.00 for the associate, the trustee’s compensation, if calculated on an hourly fee basis, would come to $64,200.00.
. As will be noted, the amount available for unsecured claims is considerably less than even the meager $10,000 represented in the motion to sell.
. On the settlement statement, the “credit to buyer for previous lien” is shown as $1,200,000. However, since the trustee actually received $121,298 in cash, the true benefit to Pikes from its credit bid was only $1,178,702.
. Although chapter 11 administrative expenses are subordinate to the administrative expenses of a superceding chapter 7 case, § 726(b), Bankruptcy Code, they would still be entitled to payment before the priority tax claims. Neither the trustee nor the U.S. Trustee takes issue with the Tyler, Bartl objection, and accordingly any final distribution will have to provide for payment of the chapter 11 administrative claim before payment of priority tax claims.
. This case was filed before the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (2005) and is therefore governed by the law as it existed prior to the amendments made by the Act. In particular, *855the amendments to § 330 remove the reference to compensation for a chapter 7 trustee being based on the nature, extent, and value of the trustee’s services and instead require that the court “treat such compensation as a commission, based on section 326.” § 330(a)(7), Bankruptcy Code.
. This figure includes $64,000 in rent payments received by the trustee from the tenant but paid over to Pikes as adequate protection payments.
. At the time of the opinion, § 40(a) read as follows:
a. Referees shall receive as full compensation for their services, payable after they are rendered, a fee of fifteen dollars deposited with the clerk at the time the petition is filed in each case ... and twenty-five cents for every proof of claim filed for allowance, to be paid from the estate, if any, as a part of the cost of administration, and from estates which have been administered before them one per centum commissions on all moneys disbursed to creditors by the trustee, or one-half of one per centum on the amount to be paid to creditors upon the confirmation of a composition.
Act of February 5, 1903, Pub.L. No. 62, § 9, 32 Stat. 797 (1903) (emphasis added).
. Trustee compensation under the Act was governed by § 48(a), which, at the time Columbia Cotton was decided, read in pertinent part as follows:
a. Trustees shall receive for their services, payable after they are rendered, a fee of five dollars deposited with the clerk at the time the petition is filed in each case ... and such commissions on dll moneys disbursed or turned over to any person, including lien holders, by them, as may be allowed by the courts, not to exceed six per centum on the first five hundred dollars or less, four per centrum on moneys in excess of five hundred dollars and less than fifteen hundred dollars, two per centum on moneys in excess of fifteen hundred dollars and less than ten thousand dollars, and one per centum on moneys in excess of ten thousand dollars.
Act of June 25, 1910, Pub.L. No. 294, § 9, 36 Stat. 838 (1910) (emphasis added).
. In any event, such equitable considerations would hardly apply to the present case, since once the Tyler, Bartl chapter 11 administrative claim is taken into account, there would be no distribution to unsecured creditors, and the sole result of the trustee’s efforts would have been the payment of administrative expenses — an unfortunate example of a bank*860ruptcy case being administered only for the benefit of the professionals. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486134/ | Order Dismissing Plaintiffs’ Action:
This motion to dismiss plaintiffs’ complaint for failure to state a claim upon which relief could be granted, failure to properly plead a class action suit, and failure to join a necessary party came regularly for hearing on June 13, 1993. Defendants’ separate motion to disqualify plaintiffs’ counsel was heard and denied at this hearing. We are, however, unable to treat the motion to dismiss in a like manner.
Plaintiffs’ complaint suffers from several serious flaws, which the defendants have ably noted in their memorandum in support of dismissal. First, the defendants point out that the plaintiffs failed to join the American Samoa Government (ASG) as a defendant, but this seems to be an oversight; ASG is named as a defendant in the body of the pleading but is omitted in the caption. In any event, the plaintiffs would be free to amend their complaint to correct this omission, as no responsive pleading has been filed. Given our decision today, however, amending the complaint would be pointless, as there are other, more grievous problems with the pleading.
The plaintiffs seek declaratory relief, which is inappropriate in the present situation, as it would necessitate a lengthy factual inquiry on the part of the court and would not address adequately the wrongs to which the plaintiffs feel they have been subjected. While the court has an obligation to liberally construe pleadings to avoid injustice, this does not extend to refashioning plaintiffs’ theory of relief.
In addition, the plaintiffs have not begun to lay the detailed, technical foundation required to bring a class action suit. Mere assertions, such as "[t]he local newspapers estimated that over 400 people were laid off," are insufficient. A class action suit is neither lightly nor casually plead. It requires much greater research than the mere reading of a local newspaper.
For these reasons, the defendants’ motion to dismiss is GRANTED. The complaint is dismissed without prejudice; should the plaintiffs succeed in clarifying their form of relief and establish a proper *77class, there is nothing to prevent them from bringing this before the court at a later date.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486135/ | Order Denying Motions for Reconsideration or New Trial and for Stay of Execution:
The motion by defendant Eric Groves ("defendant") for reconsideration or new trial came regularly for hearing on June 14, 1993. His motion for a stay of execution, which had been scheduled for hearing on June 16, 1993, was also heard upon counsel’s stipulation.
Defendant has cited as error the admission in evidence of two documents, a general power of attorney and a promissory note, together with the attached loan-disbursement instruction and receipt ("loan disbursement"), which are key to the judgment against him. The power of attorney gave defendant’s daughter, Lorina Meredith ("Lorina"), authority to obtain the loan from plaintiff Amerika Samoa Bank ("ASB"). The promissory note, with the loan-disbursement instruction and receipt, memorialized this indebtedness to ASB. Both of the admitted documents are photocopied duplicates.
I. Power of Attorney
Defendant challenged the power of attorney by claiming that a genuine question was raised as to the original’s authenticity, and under that circumstance evidentiary admission of the duplicate was unfair to him. Thus, authenticity, specifically the genuineness of defendant’s signature, became the issue as to this document during the trial.
Indeed, under T.C.R.Ev. Rule 1003, while duplicates are generally admissible in lieu of originals, genuinely contested authenticity requires production of the original document. Mere assertion, however, does not create a genuine question. Defendant relied on his answer to the first question, which pertained to defendant’s signature on the power of attorney, in ASB’s request for admissions: "The signature appears to be mine but I contest the contents of this document."
While not totally unambiguous in and of itself, this answer is reasonably interpreted as defendant’s admission of the genuineness of his *79signature on the power of attorney. Moreover, defendant’s answers to the third and fourth questions in the request for admissions unambiguously admit that he signed two other documents. When the signatures on the three documents are compared, a recognized means of authentication by the court as the trier of fact under T.C.R.Ev. Rules 901(a) and (b)(3),1 the genuineness of defendant’s signature on the power of attorney is evident.
Urging the original’s availability to ASB, defendant has also now argued in his motion that T.C.R.Ev. Rule 1004 limits the admissibility of photocopied duplicates to situations in which the original cannot be produced. This argument overlooks the preferential rather than exclusionary nature of the rules on the production of documents. The rules are aimed at obtaining the best available evidence when the contents of a document are intimately related to governing issues but not at hamstringing the presentation of a p'arty’s case. See the discussion on underlying policy in McCormick on Evidence § 237, at 570 (E. Cleary 2d ed. 1972).
T.C.R.Ev. Rule 1004 provides guidelines for the use of other evidence of the contents of a document upon a showing of the practical unobtainability of preferred evidence. Photocopied duplicates are accurate and implicitly minimize, and usually eliminate, error, and thus, they are substantially given the status of originals by T.C.R.Ev. Rule 1003. See the Advisory Committee’s Notes on the 1972 proposed, comparable Fed. R. Ev. Rules 1001(4) and 1003 in Federal Civil Judicial Procedure and Rules, at 372 and 373 (West, rev. ed. 1991). T.C.R.Ev. Rule 1004 does not override that status.
The photocopy duplicate of the power of attorney was properly admitted in evidence.
II. Promissory Note
Defendant’s principal argument on the inadmissibility in evidence of the promissory note and loan disbursement is based on lack *80of adequate foundation established for admission as an exception to the hearsay rule.
The applicable exception to the hearsay rule pertains to records of regularly conducted activity, as se.t forth in T.C.R.Ev. Rule 803(6). Under this exception, any writing made as a record of acts, events, conditions, opinions or diagnoses may be admitted in evidence, when offered to prove those acts, events, conditions, opinions, or diagnoses, if the writing: (a) was made at or near the time of the acts, events, conditions, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) is kept in the course of a regularly conducted activity; and (d) was made as the regular practice of that activity. These criteria must be shown by the testimony of the custodian of the writing or other qualified witness. The writing will be rejected if the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
The foundational witness for the promissory note and loan disbursement was ASB’s senior loan-collection officer, who was certainly qualified to testify about ASB’s loan-making policies and practices. His testimony persuasively confirmed the facial appearance of the promissory note and loan-disbursement instruction and receipt, both dated August 15, 1986, that these documents and the loan were made as contemporaneous events by or at the direction of ASB employees who processed the loan transaction. Further, as a banking institution, ASB regularly did and still does make loans and require the promissory note and loan-disbursement documents as an integral part of such transactions. Nothing in evidence suggests any untrustworthiness about these documents.
Since the borrower was identified in the promissory note and loan disbursement as Groves Service Station and the signatures on these documents were not legible, authenticity of the originals of these documents was also at some issue. ASB dealt with this question by presenting an original promissory note and loan-disbursement instruction and receipt for a separate loan by ASB to defendant Arthur Meredith and Lorina, his wife. Their signatures on these second loan documents are clearly the same as the signatures on the Groves Service Station loan documents. These second loan documents were equally admissible as records of regularly conducted activity and satisfactorily authenticated the promissory note and loan disbursement at issue.
The photocopy duplicates of the promissory note and loan disbursement were also properly admitted in evidence.
*81III. Stay of Execution
There are no legitimate issues on appeal in this action. The injustice involved would be to further prolong ASB’s opportunities to satisfy the judgment. Thus, a stay of execution is inappropriate.
IV. Orders
The motions for reconsideration or new trial and for stay of execution are denied.
It is so ordered.
This approach is consistent with 28 U.S.C. § 1731: "The admitted or proved handwriting of any person shall be admissible for purposes of comparison, to determine genuineness of other handwriting attributed to such person." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486136/ | On Motion to Stay:
Defendants seek a stay, pending appeal, of the court’s final order entered herein enjoining the defendant Mabel Foster, Secretary of the American Samoa Development Corporation (ASDC), from failing to call certain shareholders’ meetings as demanded by plaintiff, the majority shareholder of ASDC. In these matters, where the order sought to be stayed is an injunction, "the decision to grant or deny a stay pending appeal is similar to that on a preliminary injunction, depending partly on the ’balance of equities’ and partly on the likelihood that the appeal will be successful." Asifoa v. Lualemana, 17 A.S.R.2d 10, 13 (App. Div. 1990). At the same time,
[a] court should not grant a stay of judgment pending appeal automatically or casually. To do so would encourage losing litigants to file appeals in which they had no serious hope of prevailing, simply in order to postpone the effective date of judgment. The court’s discretion to grant a stay should therefore be exercised only "for cause shown."
Id. at 12 (citing A.S.C.A. § 43.0803; T.C.R.C.P. 62(a), (c); A.C.R. 8).
On the first consideration, balancing equities between the parties, the defense claims that their appeal will become moot if the injunction is not stayed. In this regard, counsel at the hearing explained irreparable injury to his clients in terms of economic loss to the current *83directors1 if in fact they are voted out of office before the time the appeal can be heard.
The immediately glaring problem with this ground is that the directors are not parties in these proceedings, and hence are without standing, nor are their individual economic interests coincidental with or necessarily those of ASDC. In any event, a prospective monetary loss as a result of an injunction is insufficient ground to suspend the injunction. Stop H-3 Association v. Volpe, 353 F. Supp. 14 (D.C. Haw. 1972).
As to likelihood of prevailing on appeal, the defendants here simply submit, without further evidence, that they will prevail on appeal. They essentially premise this submission upon the "conviction" that the appellate court will opt for their legal position (or construction argument) over that of the trial court. Indeed, at the hearing on the motion, counsel’s submission was simply that the appellate court "might" see things otherwise.
As alluded to above, the burden in these matters is on the movant to show "cause" as to why the court’s injunctive order should be stayed. A.S.C.A. § 43.0803. Part and parcel of that burden requires some sort of showing that movant is likely to prevail on the merits of the appeal. Asifoa v. Lualemana, supra; T.C.R.C.P. Rule 62(c). Defendants’ subjective and self-serving declaration, upon mere "conviction," hardly meets this aspect of the required showing.
We conclude that the defendants have failed to show "cause," A.S.C.A. § 43.0803, and accordingly exercise our discretion against granting a stay. The motion is, therefore, DENIED.
It is so ordered.
The testimony on record reveals that the various benefits and fees presently accruing to the ASDC directors and officers include: a director’s fee of $200 per "regular" board meeting and $100 per "special" board meeting; attorney’s fees for such legal services as may be rendered at these board meetings by the chairman of the board, who is also an attomey-at-law; an additional remuneration package for the president consisting of $1000 per month, a credit allowance of $500 per month for "promotional" purposes, a room at the hotel, and access to a corporate vehicle. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486139/ | Order Granting Special Appearance, Setting Briefing Schedule and Hearing, and Deferring Extraordinary Relief:
On June 23, 1993, intervenor Byron Blocker ("Blocker") moved to specially appear for the purpose of raising jurisdictional and venue issues with respect to the limitation of liability proceedings initiated by complainant Voyager, Inc. ("Voyager") through this action. At the hearing on Blocker’s motion on July 6, 1993, Voyager raised no opposition to Blocker’s special appearance, and the motion was granted by bench order. This order confirms the bench order. However, since two distinct legal processes are ongoing in this appeal, the setting of a *91briefing schedule and hearing was taken under advisement to consider the most appropriate scheduling.
The first process is the direct appeal of the Trial Division’s decision in 23 A.S.R.2d 47 (Trial Div. 1992), denying Voyager’s ex parte motion for issuance of a notice to claimants and dismissing the action. The ex parte motion was denied on November 16, 1992. Voyager’s motion for reconsideration or new trial was filed on November 25, 1992, and on December 14,. 1992, this motion was denied and the action was dismissed, nunc pro tunc, as of November 16, 1992. Voyager appealed this decision on December 24, 1992, and filed an appellant’s brief on February 24, 1993.
Meanwhile, on January 28, 1993, Voyager petitioned this court to mandate the Trial Division to issue the notice to claimants. On February 4, 1993, this petition was denied on the grounds that the petition did not set forth any basis upon which this court could conclude that the remedy by appeal was inadequate, an essential prerequisite for extraordinary relief by mandamus.
On June 21, 1993, Voyager again petitioned this court for the same extraordinary relief. In essence, it was alleged in the petition that the remedy by appeal was no longer adequate because trial of the action by Blocker and his wife ("the Blockers") against Voyager had already commenced in the Superior Court of California, County of San Diego. The complaint and plaintiffs’ statement of damages filed in the California state action seek approximately $17.5 million in damages. The letter of undertaking filed in this present limitation of liability action stipulates to a marine surveyor’s valuation of the Fishing Vessel Voyager at $3.0 million.1
On July 6, 1993, both counsel advised the court that the state-court trial was concluded. Blocker’s counsel indicated that the Blockers were awarded $2.3 million in. damages. Voyager’s counsel thought that the award might be $3.2 million. In either event, it is probable that *92either the Blockers or Voyager, or both, will appeal the result. Under these circumstances, the adequacy of the remedy by appeal is still viable. Should the situation materially change, Voyager can renew its effort to obtain an alternative writ setting a hearing on the order to show cause.
Resolution of substantive issues in this court, other than in connection with any preliminary or supplementary matter, requires a quorum of two justices and one associate judge. A.S.C.A. §§ 3.0209, 3.0220. At the present time, only a single justice will be available in this action until either the next appelláte session is held (tentatively scheduled for the first full week in October 1993), or the present District Court judge is appointed as an acting associate justice by the Secretary of the Interior. While a single justice has authority to issue an alternative writ and set a hearing on the order to show cause, Blocker clearly intends to raise substantive issues, whether the hearing is scheduled in the context of the petition for extraordinary relief or the appeal. The practical direction, under the present circumstances, is to establish a briefing schedule consistent with the anticipated appellate session in October 1993 and, in due course, set oral arguments during that session.
Therefore, Blocker is directed to file an appellee’s brief no later than 30 days after this order is issued, and Voyager is directed to file any reply brief no later than 14 days after Blocker’s brief is submitted. Oral arguments, along with those in other pending appeals, will be scheduled in due course to take place during the next appellate session.
Any definitive decision on the present petition for extraordinary relief will be deferred until required or otherwise justified by the circumstances, vis-a-vis the pending appeal.
It is so ordered.
The surveyor’s affidavit and undertaking are not. clear as to whether or not this sum includes the value of freight on board at the end of the voyage at issue. Note is also taken of the undertaking’s stipulation of interest on the limitation fund at the rate of 4% per annum. T.C.R.C.P. Supplemental Rule F(l) requires an interest rate of 6% per annum. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486140/ | Order Permitting Service by Publication or Registered Mailing:
On July 9, 1993, in light of the engagement of petitioner’s counsel in a criminal trial by jury and nonappearance by respondent’s counsel, the hearing on petitioner’s "motion for leave to file an amended summons" was taken off calendar. Upon representation by respondent’s counsel that respondent did not oppose petitioner’s motion, the hearing was rescheduled and conducted on July 13, 1993.
The styling of the motion for "an amended summons" is directed at correcting the English version of the original summons, which omitted reference to the usual 20-day period, under T.C.R.C.P. Rule 12(a), in which respondent may serve an answer to petitioner’s petition for divorce, by utilizing an alternative means of service of process.
T.C.R.C.P. Rule 12(a) also permits a different time, prescribed by court order, in which to appear and defend when, under T.C.R.C.P. Rule 4(e), service is to be made upon a party who is not an inhabitant or *94found in American Samoa. When a party is outside the Territory, T.C.R.C.P. Rule 4(e) authorizes service of a summons, notice, or order in lieu of a summons in the manner prescribed by statute or order.
When an affidavit is filed that personal service cannot be made upon a respondent in a divorce action within American Samoa, due to nonresidency or unknown residency, A.S.C.A. §43.0501, complemented by A.S.C.A. § 43.0504, permits service of process by publication or registered mailing after issuance of a court order authorizing service of process pursuant to A.S.C.A. §§ 43.0501-43.0504.
Hence, petitioner’s motion is treated as an application for an order authorizing issuance of a notice for service of process by publication or registered mailing, pursuant to statute and supplemented by court order.
Petitioner’s verified petition for divorce, alleging respondent’s residency in Hawaii, meets the affidavit requirement and justifies issuance of a court order allowing service of process by publication or registered mailing, as contemplated by T.C.R.C.P. Rules 12(a) and 4(e), by further compliance with A.S.C.A. §§ 43.0502 and 43.0503 or 43.0504.
Accordingly, good cause appearing, IT IS ORDERED that:
1. Service of process by publication is permitted. Petitioner’s notice shall contain and inform respondent of the following, as required by A.S.C.A. § 43.0502(b): (a) petitioner’s name; (b) this court’s name and that the petition is on file in this court; (c) a statement of the cause of action in general terms; and (d) a statement that unless respondent appears and defends within two months and 10 days from the date of the first publication, which date shall be published as part of the notice, a default will be entered against her and a decree rendered thereon.
2. In accordance with A.S.C.A. § 43.0502(a) and T.C.R.C.P. Rule 4(e), service of process by publication shall be accomplished only by: (a) publication of the notice once each month for two consecutive months in a newspaper of general circulation, genuinely calculated to notify respondent, in this case in Hauula, Hawaii; (b) posting the notice in front of the court house in Fagatogo, American Samoa, for the same two-month, 10-day period; (c) mailing the notice and the petition by registered United States mail to respondent at her last known address; and (d) filing with the court proof of service by publication by affidavits *95prepared in accordance with A.S.C.A. § 43.0503. See Memorandum of the Justices, 3 A.S.R.2d 33 (1986).
3. Alternatively, in accordance with A.S.C.A. § 43.0504 and T.C.R.C.P. Rule 4(e), service of process by publication is not necessary if this order and the petition are served on respondent by registered United States mail at least two months and 10 days before trial and an official return receipt signed by respondent is attached to an affidavit of service by registered mail. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486141/ | *96On Motion to Dismiss:
On January 15, 1993, the Workmen’s Compensation Commission (WCC) filed its order denying petitioner’s claim for reinstatement of "total disability benefits," which the employer had suspended pursuant to A.S.C.A. § 32.0661. On February 26, 1993, petitioner filed his petition for judicial review and sought an immediate hearing for a "briefing schedule." Since the petition sought an "AP" number, the clerk assigned an appellate docket number and calendared the requested hearing, for a briefing schedule, before the appellate division. On March 3, 1993, the matter came before a single judge of the appellate division, who ordered that the matter be transferred to the trial division and re-docketed accordingly. The Clerk thereafter assigned a "CA" docket number. On March 17, 1993, petitioner filed with the trial division a document styled "Petition For Review."
Having previously intervened, the real party-in-interest subsequently moved, through its insurer, to dismiss on the following grounds: 1) that the petition was untimely as it was not filed before the proper forum, the trial division, within the 30-day limitation period provided by A.S.C.A. § 32.0651; and 2) that the petition did not conform with the requirements of A.S.C.A. § 32.0652, which provides for review proceedings "through injunction proceedings, mandatory or otherwise, brought by any party in interest against the commissioner, and instituted in the High Court of American Samoa."
We hold that the filing of February 26, 1993, which was timely, was operative to toll the statute of limitations. That the petition was mislabeled with an "AP" number, as opposed to a "CA" number, is an insufficient reason to dismiss; "the appropriate remedy is not to dismiss the case, but simply to give it a new number." Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20, 24 n.2 (1990); see also In re Beaver Family Trust, 17 A.S.R.2d 9 (1990) (Mem.) (motion to dismiss denied where petition sought relief from a non-existent probate division of the High Court).
Movant’s second ground for relief essentially advances form over substance; dismissal is sought for defective pleadings. While petitioner did not exactly cast his petition in terms of "injunctive" relief, dismissal is hardly appropriate given our liberal rules of pleading. These rules require that "pleadings shall be so construed so as to do substantial justice." T.C.R.C.P. Rule 8(1); Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 110, 115 (1987). Under A.S.C.A. § 32.0652, *97judicial review is the only available manner of appeal to the courts. Haleck v. Scanlan, 4 A.S.R. 998 (1975); Waite v. Workmen’s Compensation Commission, AP No. 106-75 (1975). Thus, petitioner’s generally framed petition for judicially review may be liberally construed as seeking the "injunctive" remedy statutorily provided. As the court noted in Development Bank of American Samoa v. Ilalio:
Litigation is not an art in writing nice pleadings. . . . The pleading rules are designed to eliminate delay, and reduce the pleading requirement to a minimum. . . . The real importance of the Rules dealing with pleadings is that they make pleadings, in and of themselves, relatively unimportant. Cases are to be decided on the merits.
5 A.S.R.2d at 115-16 (quoting 2A Moore’s Federal Practice ¶ 8.02, at 8-9). For the reasons given, we deny the motion.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486142/ | Order Denying Petition for Writ of Mandamus:
On July 13, 1993, Alamoana S. Mulitauaopele petitioned for a writ of mandamus to require the Acting Territorial Auditor and the Territorial Audit Office to audit alleged overexpenditures and misuse of public funds by the House of Representatives of the Legislature of American Samoa. On July 21, 1993, proceedings were suspended, pending compliance with the service and proof of service requirements under T.C.R.C.P. Rule 91 and the complete filing of requisite documents under T.C.R.C.P. Rule 89. With substantial compliance with these court rules achieved as of July 27, 1993, the court will act to grant, partially grant or deny the petition in accordance with T.C.R.C.P. Rule 92.
The extraordinary writ of mandamus will not be issued unless "(1) the plaintiff has a plain right to have the act performed; (2) the defendant has a plain duty to perform it; and (3) there is no other adequate remedy available to the plaintiff." Gifford Pinchot Alliance v. Butruille, 742 F. Supp. 1077, 1082-83 (D. Or. 1990); see Siofele v. Shimasaki, 9 A.S.R.2d 3,11 (Trial Div. 1988); Beckless v. Heckler, 622 F. Supp. 715, 720 (N.D. Ill. 1985) (citing Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); City of New York v. Heckler, 742 F.2d 729 (2d Cir. 1984), aff’d sub nom. Bowen v. City of New York, 476 U.S. 467 (1986)). As such, "[t]he common-law writ of mandamus ... is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984) (citing Kerr v. United States Dist. Court, 426 U.S. 394, 402-03 (1976); United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543-44 (1937)).
First, mandamus is available only if other forms of relief are unavailable. Ringer, 466 U.S. at 616 (citing Kerr, 426 U.S. at 402-03; Helvering, 301 U.S. at 543-44); American Samoa Gov’t v. District Court, 10 A.S.R.2d 18, 19 (Trial Div. 1989); Siofele v. Shimasaki, 9 A.S.R.2d 3,11 (Trial Div. 1988). Petitioner states that he has exhausted "all prerequisite administrative procedures," which would fulfill this requirement. As a taxpayer, petitioner also has the requisite standing to pursue this matter. "As a broad proposition, state taxpayers have *99standing to challenge the legality of the expenditure of public funds by any governmental agency . . . and, unlike federal courts, most states permit such citizen-taxpayer suits even on nonfiscal issues." Carsten v. Psychology Examining Comm. of the Bd. of Medical Quality Assurance, 614 P.2d 276, 279 (Cal. 1980) (citing 3 Davis, Administrative Law Treatise 245, 249 (1958)).
Second, the alleged duty must be "mandatory or ministerial," not "discretionary or directory." Maczko v. Joyce, 814 F.2d 308, 310 (6th Cir. 1987), cert. denied 484 U.S. 828 (1987). Thus, if the application or interpretation of a statute is discretionary, a writ of mandamus will not be issued. Beckless, 622 F. Supp. at 720 (citing Mid-American Regional Council v. Mathews, 416 F. Supp. 896 (W.D. Mo. 1976)). Furthermore, the party seeking mandamus bears the "burden of showing that [his] right to issuance of the writ is ’clear and indisputable.’" Kerr, 426 U.S. at 403 (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953); United States v. Duell, 172 U.S. 576, 582 (1899)). Thus, mandamus is appropriate only if "the claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt." Elliott v. Weinberger, 564 F.2d 1219, 1226 (9th Cir. 1977) (quoting Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir. 1970)), modified on other grounds sub nom. Califano v. Yamasaki, 442 U.S. 682 (1979); see Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) ("clear nondiscretionary duty") (quoting Ringer, 466 U.S. at 616); Beckless, 622 F. Supp. at 720 ("clear and unmistakable" duty) (citing Gillis v. IRS, 578 F. Supp. 69, 71 (D.N.H. 1983)); Butruille, 742 F. Supp. at 1083.
The Territorial Audit Office, headed by the Territorial Auditor, exists as an independent agency of the American Samoa Government. A.S.C.A. § 4.0402. This statutory independence guarantees that any agency of the government is subject to audit, unimpeded by the head of that agency or any other government official. See A.S.C.A. § 1.0419 (auditor’s access to records). Decisions to audit and the conduct of each audit must be uninfluenced and unfettered by partisanship or bias. A.S.C.A. § 4.0411(b). Clearly, petitioner’s allegations that the American Samoa House of Representatives overspent its budget for four consecutive fiscal years, 1989 through 1992, and misused public funds could justify an independent audit.
Nevertheless, the decision as to whether this or any other audit is warranted in light of the circumstances is one of policy. Neither the Territorial Audit Office nor the Territorial Auditor is statutorily *100compelled to undertake any particular audit; instead, the statute gives them discretion to conduct audits as they deem appropriate. See A.S.C.A. §§ 4.0401-4.0420. Even if this audit is desirable, this court does not have the power to order the Territorial Audit Office or the Territorial Auditor to take discretionary action. Mandamus is not a remedy available to petitioner.
Therefore, the petition for a writ of mandamus must be and is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486143/ | *101Order Dismissing Action and Remanding to Territorial Registrar:
A motion to dismiss this action by defendants, The Congregational Christian Church of American Samoa and Ierusalamafou Congregational Christian Church of American Samoa in Tafuna ("the church"), came regularly for hearing on July 19, 1993. Plaintiff Tuioti K. Lokeni ("Tuioti”) appeared pro se. Defendant Fonoti Tafa'ifa ("Fonoti") did not appear.
This is the church’s second motion to dismiss on the grounds of Tuioti’s failure to prosecute this action. In his notice, dated March 3, 1993, the clerk of courts notified Tuioti that this action would be dismissed if he, as an objector to the land transaction at issue, failed to move forward within 20 days after receiving the notice. The notice was served on March 5, 1993. On May 7, 1993, the first motion was heard and, in view of Tuioti’s appearance and expressed intention to participate in this action, was denied. At the same time, Tuioti was afforded 20 additional days to retain counsel and/or file an appropriate pleading.
Tuioti’s failure to meet this deadline prompted the church’s second motion to dismiss. Although a further extension of time to Tuioti is warranted due to two deaths in his family during May 1993 and his actual but so far unsuccessful efforts to retain counsel, the church correctly pointed out at the second hearing that this controversy is not ripe for judicial determination.
The underlying transaction at issue is the alienation, pursuant to A.S.C.A. §§ 37.0201 et seq., of approximately one acre of a portion of the Fonoti family’s communal land, known as "Alatutui," in Tafuna, American Samoa. In a deed of conveyance dated October 29, 1992, Fonoti, as the senior matai ("sa‘o") of the family, granted the land to the church. On the same day, the Territorial Registrar issued a notice of a hearing before the Land Commission on December 28, 1992, to formulate the commission’s recommendation to the Governor on this proposed alienation of communal land, as required under A.S.C.A. § 37.0203.
On December 21, 1992, Tuioti filed his objection to the conveyance with the Territorial Registrar. Instead of proceeding with the scheduled hearing before the Land Commission, the Acting Territorial *102Registrar1 referred the matter on January 7, 1993, to the Secretary of Samoan Affairs for dispute resolution proceedings under A.S.C.A. § 43.0302. In due course, on February 11, 1993, the Acting Secretary issued a certificate of irreconcilable dispute, and on February 23, 1993, the Acting Registrar submitted the matter for judicial determination.
This procedural misdirection effectively converted the issue from one of alienation/document registration to one of title registration, thus circumventing the Land Commission’s recommendation process and depriving the Governor of his authority over approval of the conveyance. Under these circumstances, the issue is prematurely before the court. Thus, this action must be dismissed and remanded to the Territorial Registrar for proper referral to the Land Commission and the Governor.
It is so ordered.
Under A.S.C.A. § 37.0202, the Territorial Registrar is statutorily both a member and the secretary of the Land Commission. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486144/ | On Motion for New Trial:
Defendant has brought a motion for new trial on several grounds.
I. Fair and Impartial Jury
Defendant reasserts his pre-trial argument that he was entitled to a jury containing foreign citizens (namely, Western Samoans) in proportion to their demographic presence in American Samoa. He restates his opinion that the absence of such foreign citizens prevented him from receiving a trial by a fair and impartial jury of his peers, as guaranteed by the Sixth Amendment of the United States Constitution. Defendant, rather unsurprisingly, can cite no precedent, statutory or Constitutional authority for such an unusual (and somewhat strained) argument.1 As we held before, so shall we hold now. There simply is no right for a citizen of another country to be tried in this territory in front of a jury of his compatriots.
II. Severance
Defendant claims fatally prejudicial error in the failure to completely sever his trial from those of his co-defendants. He repeats the same arguments made earlier in pre-trial motions. We repeat our opinion on that motion and find no prejudicial error.
III. Photographic Evidence
The trial court exercised its discretion in ruling on the admissibility of the photographs of the deceased — rejecting some, admitting others. We found the admitted photographs to be not overly prejudicial at trial. Defendant brings forward nothing which would cause us to reform that opinion.
*104
IV. Evidence of DUI Judgment
The DUI judgment obtained in a separate action against one of the prosecution’s witnesses was properly excluded under T.C.R.Ev. Rule 609. Defendant asserts no abuse of discretion in the decision to exclude this evidence. Absent an allegation of abuse of discretion, the decision remains firm.
V. Coerciveness of Jury Deliberations
The essence of Defendant’s argument is that the jury was coerced into handing down a verdict because they were afraid that they would have to ruin their weekend by spending it in the courthouse, deliberating. We have greater faith in the ability of the jury to fully appreciate the severity and gravity of their charge and to carry it out with diligence. The jury is entitled to this presumption, and nothing defendant states is sufficient to overcome this presumption.
VI. Lack of Factual Basis for Finding of Guilt
This final argument rests on speculation of the jury’s thoughts. The jury has, however, handed down its verdict. How it reached that decision, what it believed or did not believe, is not for the court to question, absent an allegation of corruption or the like. Defendant makes no such suggestion.
The motion for new trial is, therefore, DENIED.
It is so ordered.
A.S.C.A. § 46.1504(1) disqualifies non-United States nationals from jury service. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486145/ | Order Denying Motion for Reconsideration or New Trial:
The Opinion and Order in this case was entered on March 11, 1993. On March 22, 1993, defendant Alamoana Mulitauaopele filed a *106motion for reconsideration or new trial, raising as error the imputation of the negligent operation of a motor vehicle by defendant Alamoana K. Mulitauaopele ("Mulitauaopele I") to the owner of the vehicle, his father, defendant Alamoana Mulitauaopele ("Mulitauaopele II"). Following the hearing on this motion on May 3, 1993, the court ordered a further hearing for thorough consideration of this issue, as one which was not fully argued at the trial or discussed in the opinion and order and which involved an unsettled area of the law in this jurisdiction. This second hearing on the motion was held on July 15, 1993.
I. Family Purpose Doctrine
The owner of a vehicle may be held liable for the driver’s negligence under the family purpose (or family car) doctrine. Under this doctrine, when "the head of a family owns, furnishes and maintains a vehicle for the general use, pleasure and convenience of a family, he is liable for the negligence of a member of the family having general authority to drive it while the vehicle is being so used." Sweatt v. Norman, 322 S.E.2d 478, 480 (S.C. App. 1984) (citing Lucht v. Youngblood, 221 S.E.2d 854 (S.C. 1976)); see Parries v. Lobato, 597 P.2d 356, 361 (Or. App. 1979) (quoting Kraxberger v. Rogers, 373 P.2d 647, 651 (Or. 1962)); Tolbert v. Murrell, 322 S.E.2d 487, 489-90 (Ga. 1984) (explaining statutorily adopted "family purpose car doctrine") (quoting Phillips v. Dixon, 223 S.E.2d 678 (1976)). As an extension of respondeat superior principle of liability, the owner is liable for the negligence of a driver who is using the vehicle "with the express or implied consent of the owner for purposes of the business or pleasure of the owner’s family." Staroba v. Heitkamp, 338 N.W.2d 640, 641 (N.D. 1983) (citing Lauritsen v. Lammers, 161 N.W.2d 804 (N.D. 1968)); see Bartz v. Wheat, 285 S.E.2d 894, 896 (W. Va. 1982) (though family purpose doctrine is analogous to agency, it has a different rationale and so cannot be used as a defense technique to bar recovery). The purpose of the family purpose doctrine is to permit an injured person to recover damages from a vehicle’s owner if the driver is "financially irresponsible." Bartz, 285 S.E.2d at 895 (citing Freeland v. Freeland, 162 S.E.2d 922, 925 (W. Va. 1968); Watson v. Burley, 143 S.E. 95 (W. Va. 1928)); Staroba, 338 N.W.2d at 641-42 (citing Michaelsohn v. Smith, 113 N.W.2d 571 (N.D. 1962)).
Legal title to a vehicle is an important, though not necessarily conclusive, factor in determining whether a head of household is an "owner" sufficient to apply the family purpose doctrine. See Staroba, 338 N.W.2d at 643-44 (court did not decide whether head of household’s *107legal title, in itself, is sufficient to apply doctrine); Parries, 597 P.2d at 361 (father’s title to automobile driven by son sets forth a prima facie case of agency). Other factors used in determining whether the head of a household furnished the vehicle for a family member’s use include the following: (1) who paid for the vehicle, (2) who controlled the vehicle’s use, (3) the intent of the vehicle’s buyers and sellers, (4) the intent of the parents and child regarding who was the vehicle’s owner, (5) who received delivery of the vehicle, and (6) who exercised property rights in the vehicle between the date of purchase and the date of the accident. Staroba, 338 N.W.2d at 644 (quoting Herman v. Magnuson, 277 N.W.2d 445, 459 (N.D. 1979)). In short, an "owner" for the doctrine’s purposes is one who owns, controls, has a property interest in, or supplies the vehicle. Tolbert, 322 S.E.2d at 490 (citing Prosser, The Law of Torts § 73 (4th ed. 1971); Murch v. Brown, 304 S.E.2d 750 (Ga. App. 1983)).
If the child resides with the head of household, the family purpose doctrine may still apply. Many jurisdictions hold that a child reaching the age of majority is nonetheless a family member in regards to the family purpose doctrine. E.g., Garska v. Harris, 109 N.W.2d 529, 535 (Neb. 1961); Cook v. Rafferty, 93 P.2d 376, 378-79 (Wash. 1939); Freeland, 162 S.E.2d at 925; Staroba, 338 N.W.2d at 642; Dunn v. Hemberger, 430 N.W.2d 516 (Neb. 1988).
II. Discussion
Families in American Samoa play a central role in its society. Similarly, its social functions are heavily influenced by the communal social structure. A large number of vehicles are on the road, and vehicles are frequently and routinely driven by various family members for purposes concerning them individually and the family-at-large. Many of these drivers do not have the financial resources to pay a negligence judgment, though the heads of the families often have adequate resources. The family purpose doctrine is thus well-suited to the conditions present in American Samoa.
The pickup truck driven by Mulitauaopele I is owned by and was driven with the permission of his father, Mulitauaopele II. The vehicle was available to be used for family purposes. Indeed, Mulitauaopele II expressly gave his son permission to drive the truck. These facts clearly place the accident within the boundaries of the family purpose doctrine.
*108Mulitauaopele II argues that his son’s negligence should not be imputed to him because his son is over 18 years old. However, Mulitauaopele I still lives at his parents’ residence in the Village of Lauli’i, as a member of the family. Thus, his having achieved the age of majority does not preclude the application of the family purpose doctrine.
Being appropriate for conditions in American Samoa, the family purpose doctrine is hereby adopted in this jurisdiction. Because the facts of this case clearly fit the criteria for applying the family purpose doctrine, Mulitauaopele I’s negligence was properly imputed to his father, Mulitauaopele II. Therefore, Mulitauaopele II’s motion for reconsideration or new trial is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486146/ | Opinion and Interim Orders:
The bifurcated damage phase of this strict products-liability action came regularly for trial on July 14, 1993. Both plaintiff and defendant filed bench briefs on several issues of law, which we feel require clarification prior to the continuance of this trial on September 13, 1993. The defendant has also filed two motions; one for summary judgment and the other for continuance to join a real party in interest under T.C.R.C.P. 17(a). The merits of these motions are considered below.
I. Collateral Source Rule
Defendant asserts in support of its motion for summary judgment that the plaintiff has been compensated for any and all damages incurred due to the explosion on board the Ocean Pearl by its insurer and is, therefore, not entitled to further recovery. Defendant’s theory seems to be that the plaintiff has already been fully reimbursed for all expenses incurred as a result of the explosion, making a showing of damages impossible as a matter of law. Under this reasoning, the only party with a cognizable claim against defendant is the plaintiff’s insurer. We disagree.
Defendant’s argument fails because of the well-established collateral source rule. This rule encourages the use of insurance by denying the tortfeasor the benefits of the plaintiff’s foresight in purchasing insurance. Typically, the rule provides that "if an injured party receives some compensation for his injuries from a source wholly *110independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor." Berg v. First State Insurance Co., 915 F.2d 460, 467 (9th Cir. 1990) (quoting Helfend v. Southern California Rapid Transit Dist., 2 Cal. 3d 1, 6, 84 Cal. Rptr. 173, 175, 465 P.2d 61 (1970)).
The collateral source rule is applicable in virtually all tort cases, and its applicability in admiralty has not been questioned. Cf. Dillingham Tug v. Collier Carbon & Chemical Corp., 707 F.2d 1086, 1091 (9th Cir. 1983) (collateral source rule not applicable to admiralty case only because source was not "independent"). Plaintiffs right to recover from defendant is undisturbed by any insurance payments received. The motion for summary judgment must, therefore, be denied.
II. Subrogation
Defendant cites Shambley v. Jobe-Blackley Plumbing & Heating Co., 142 S.E.2d 18 (N.C. 1965), in support of its position that full payment by the insurer of an insured’s claim makes that insurer the real party in interest and, therefore, the exclusive plaintiff, as mandated by T.C.R.C.P. Rule 17(a). However, that case stands for the proposition that "[a]n insurance company is only a necessary party plaintiff when it has compensated the insured for the insured’s entire loss." Howard v. Smoky Mountain Enterprises, 332 S.E.2d 200, 202 (N.C. 1985) (citing Shambley, supra) (emphasis added).
Plaintiff’s own memorandum in support of its motion for summary judgment reveals that the insurer did not pay for at least two items prayed for as damages: lost profits and attorney’s fees. The payment of only part of the plaintiff’s damages makes the insurer a real party in interest (along with the plaintiff), but not the real party in interest.
While Rule 17(a) does not, in this instance, necessarily mandate that the insurance company be made a party, there is support for the position that T.C.R.C.P. Rule 19 mandates such joinder. See United States v. Aetna Casualty & Surety Company, 338 U.S. 366 (1949). However, the facts before the Supreme Court in Aetna Casualty were quite different from those presently before this court. That opinion considered four consolidated cases; a subrogated insurance company was a party in all of these four. In Braniff Airways v. Falkingham, 20 F.R.D. 141, 144 (D. Minn. 1957), the court noted that in Aetna Casualty,
*111none of the cases had the suit been brought by the insured person alone. Thus, the issue of compelling the joinder as a party plaintiff of a partial insurer subrogee in a suit brought by the insured alone to recover the full loss was not before the Court. This distinction is important because when partial insurer subrogees bring suit and other insurer subrogees are not joined, there is the possibility of a multiplicity of suits being brought against the defendant and the compulsory joinder of all of them is required to avoid such an occurrence and to settle the controversy between them in one lawsuit, but when the insured brings suit alone, to recover for the whole loss, the controversy can be adjudicated completely and finally without the joinder of the insurer subrogees, and the defendant will have only one lawsuit to defend.
Braniff, 20 F.R.D. at 144 (emphasis omitted). Accord, Garcia v. Hall, 624 F.2d 150, 152 (10th Cir. 1980); Dudley v. Smith, 504 F.2d 979 (5th Cir. 1975); Virginia Electric & Power Co. v. Westinghouse Electric Corp., 485 F.2d 78 (4th Cir. 1973).
Aetna Casually may be further distinguished from the instant case in that it interpreted an older version of Fed. R. Civ. P. Rule 19, rather than the current version which T.C.R.C.P. Rule 19 more accurately reflects. See Dudley v. Smith, 504 F.2d at 983. The current Fed. R. Civ. P. Rule 19, like T.C.R.C.P. Rule 19, places explicit emphasis on the threat of multiplicity of suits in guiding the joinder of necessary parties; this emphasis was not present in the Rule 19 the Aetna Casualty court interpreted.
As there is no danger in the instant case that defendant will face future lawsuits from plaintiff’s insurer,1 the motion for continuance to allow the insurer as a real party in interest to join or file action under T.C.R.C.P. Rule 17(a) is denied.
*112
III. Admissibility of Administrative Law Judge’s Ruling
Defendant seeks to admit into evidence a ruling issued by an administrative law judge, suspending the license of Richard Gonsalves, Chief Engineer of the Ocean Pearl at the time of the explosion. Plaintiff asserts that this decision is inadmissible because it was vacated upon appeal by the Vice Commandant of the Coast Guard2 and because the administrative hearing was procedurally flawed.
We agree with plaintiffs position that an order or opinion, once vacated, is of no value to later inquiry. See O’Connor v. Donaldson, 422 U.S. 563 (1975). Having so held, we do not feel the need to consider the alleged procedural deficiencies. The ruling of the administrative law judge is, therefore, inadmissible.
IV. Apportionment of Fault Among Parties Not Present Before the Court and Defendant’s Failure to Plead Third-Party Fault as an Affirmative Defense
Plaintiff argues that defendant has waived its right to offer proof of fault of other contributory parties (namely, the suppliers of the fuel and starter fluid), since it did not raise the issue of third-party fault as an affirmative defense in its answer. Plaintiff also asserts that this court may not decrease defendant’s liability by considering the fault of third parties (namely the fuel and starter-fluid suppliers) not presently before the court.
In support, plaintiff cites Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449 (10th Cir. 1982). However, this case provides support for defendant’s position, rather than plaintiff’s view. The Hardin court, interpreting Kansas substantive law, noted that "[ujnder the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible." Id. at 454 (quoting Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 374, 634 P.2d 1127, 1132 (1981)). The court went on to say that they "reject plaintiff’s contention that the fault of phantom parties cannot be compared [with that of the parties presently before the court]." Id. at 454. Indeed, if it were *113not possible to hold a trial with absent causal parties, then the entire scheme of comparative fault could he frustrated by the private settlement between a plaintiff and any one of several joint tortfeasors.
Plaintiffs procedural objections regarding defendant’s failure to plead third-party fault are similarly discussed in Hardin. In applying Rule 15(b) of the Federal Rules of Civil Procedure,3 the Hardin court said that "[t]he test of consent is whether the opposing party had a fair opportunity to defend and whether he could have presented additional evidence had he known sooner the substance of the amendment." Id. at 457. The court may allow amendment under Rule 15(b) even without consent, but it must be sure to carefully consider the potential for unfair surprise which may result. See 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1491 (1990).
We find no indication that plaintiff would face unfair or prejudicial surprise by allowing the comparison of fault of nonparties. Our first opinion in this matter, dated December 22, 1992, clearly stated that "[t]he causal role of the suppliers of the diesel fuel and the starter *114fluid will be considered [at the time of the trial on damages]." Nearly six months passed between the time of that opinion and the date of the instant trial. Plaintiff requested further clarification as to this issue and was told that the causal role of these "phantom parties" would be considered. In any event, this trial has been continued until September 13, 1993; plaintiff now has over a month to prepare anew for any evidence which defendant may present with respect to the fault of these third-parties. Defendant will be allowed to present further evidence on the diesel fuel and starter fluid suppliers’ fault.
V. Apportionment of Fault to Settling Third Parties
The rule in admiralty is that the burden lies upon the defendant to prove the degree of fault of settling third-parties not present before the court. See, e.g., Leger v. Drilling Well Control, Inc., 69 F.R.D. 358 (D. La. 1976), aff’d 592 F.2d 1246 (5th Cir. 1979). Once this burden has been met, and the exact percentages of fault are established, then liability will be calculated pro-rata. The percentage of fault assigned to defendant will be multiplied by the amount of damages proven at trial. The dollar amount of settlements made by third parties, as opposed to their percentages of fault, will not be considered. See Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir. 1979); In re Incident Aboard D/B Ocean King, 813 F.2d 679 (5th Cir. 1987); United States v. Reliable Transfer, 421 U.S. 397 (1975). Damages will be apportioned according to the pro-rata rule.
It is so ordered.
The court may exercise its equitable power to prevent such perils. See, e.g., Virginia Electric Power, 485 F.2d at 84 & n.15; Braniff, 20 F.R.D. at 145 n.9.
The Commandant of the United States Coast Guard has appellate jurisdiction over such administrative hearings, pursuant to 46 U.S.C. § 7702 and 46 C.F.R. § 5.30-1.
Fed.R.Civ.P. 15(b) tracks T.C.R.C.P. 15(b). T.C.R.C.P. 15(b) reads
Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may by necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to [sic] amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486147/ | Defendant W. Scott Barrett scheduled a deposition of defendant William Cravens for August 9, 1993, in Logan, Utah. Plaintiff Beaver admits receiving notice of this deposition on August 3. In response to the scheduled deposition, plaintiff filed a motion for a stay of the deposition and for expedited hearing and notice on August 4, 1993. For the following reasons, plaintiff’s motion is denied.
First, "the deposition-discovery rules are to be accorded a broad and liberal treatment" in order to accomplish the purposes of discovery. Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (5th Cir. 1977) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)), cert. denied 435 U.S. 996; see generally 8 C. Wright & A. Miller, Federal Practice & Procedure § 2101, at 366 (1970 & Supp. 1993).
*116Second, the examining party may set the deposition of a party at any place which he desires, subject to the power of the court to grant a protective order if deemed necessary. Pinkham v. Paul, 91 F.R.D. 613, 614 (D. Maine 1981) (quoting 8 C. Wright & A. Miller, Federal Practice & Procedure § 2112, at 403). Upon a showing of good cause, though, a court may issue a protective order specifying the time and place of a deposition. Such an order may be issued to protect the party from "undue burden or expense." In re Standard Metals Corp., 817 F.2d 625, 628 (10th Cir. 1987) (citing Fed. R. Civ. P. 26(c)), on rehearing sub nom. Sheftelman v. Standard Metals Corp., 839 F.2d 1383, cert. dismissed 488 U.S. 881 (1988).
Third, what constitutes "reasonable notice" under T.C.R.C.P. 30(b)(1) is quite flexible, depending on the circumstances. See 8 C. Wright&A. Miller, Federal Practice & Procedure § 2111, at 400. Even a one-day notice may be "reasonable." See, e.g., Natural Organics, Inc. v. Proteins Plus, Inc., 724 F. Supp. 50, 52 n.3 (E.D.N.Y. 1989) (citing Radio Corp. of America v. Rauland, 21 F.R.D. 113, 124 (N.D. Ill. 1957)); State v. Superior Court of Pima County, 416 P.2d 435, 435-36 (Ariz. App. 1966) ("Twenty-four hours[’j notice is not necessarily unreasonable.").
In short, scheduling a deposition when a witness is in the area is a reasonable way to save time and money. Thus, Barrett’s taking Cravens’ deposition in Utah is quite appropriate. The six-day notice is reasonable in that Barrett’s counsel sent plaintiff a notice of the deposition as soon as he learned that Cravens would be in the area. Also, plaintiff’s rights would not prejudiced in light of the availability of telephone and fax services during the deposition and plaintiff’s option of conducting his own deposition of Cravens in the future.
The motion is DENIED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486148/ | This protracted proceeding for selection of the next registrant of the matai title "Le'aeno" of the Villages of Matu'u and Faganeanea, American Samoa, began in 1987. Claimant Fagafaga Daniel Langkilde ("Fagafaga") submitted his claim of succession to the territorial registrar on April 21, 1987. The 60-day notice of the proposed registration of this matai title was posted on the same date. Counter-claimants Uiagalelei Gafoa Le'aeno ("Uiagalelei") and Frank W. Reed ("Falani") presented their claims on June 18 and 22, 1987, respectively.
Pursuant to A.S.C.A. § 43.0302, the matter was referred to the Secretary of Samoan Affairs on June 24, 1987, for dispute resolution, and the secretary’s certificate of irreconcilable dispute was issued by the deputy secretary on February 15, 1989. On February 16, 1989, the Territorial Registrar referred the matter for judicial settlement, and this judicial proceeding was commenced. On July 8, 1993, Uiagalelei withdrew his candidacy. Trial finally began on the following day, July 9, 1993, and was concluded on July 12, 1993.
ADEQUACY OF THE PETITIONS FOR REGISTRATION
The adequacy of the petitions filed by Fagafaga and Falani with the Territorial Registrar for registration of the matai title Le'aeno must be addressed first. Fagafaga’s petition was signed by 17 persons. One signer is eliminated as a non-blood member of the Le’aeno family. The remaining 16 are members of Fagafaga’s clan, the extended Amio family. Falani’s petition was signed by 11 members of his clan, the same extended Amio family. Uiagalelei’s petition was signed by 53 members of his clan, the extended Ugaloto family.
A.S.C.A. § 1.0405(b) sets forth the requirements for valid petitions. Among other elements, the petition must be signed by 25 blood members of the matai title claimed. These persons must be at least 18 years of age and residents of American Samoa at the time the petition is filed with the Territorial Registrar. If the family has less than 25 qualified members, the petition is still valid when it is supported by the claimant’s affidavit of an insufficient number of blood members. Under A.S.C.A. § 1.0405(c), the Territorial Registrar, if not satisfied with the *119information provided in the petition, must require proof of blood relation to the title, age, residency, or insufficiency of blood members. A.S.C.A. § 1.0407(b), (c) and (d) essentially establishes the same requirements for petitions submitted by counter-claimants or objectors.
An important factor for present purposes is the interpretation of the word "family" in the context of an insufficient number of qualified blood members. The plain meaning of the word connotes all such persons in the entire, extended family related to the title. However, this definition virtually renders a very small-clan member’s aspirations to a title futile when candidates come forth from each clan in a family and his or her clan has fewer than 25 adult, resident blood members. The problem becomes even more difficult when, as in this case, more than one aspirant comes from the same small clan.
To serve as a guide until there is further legislated direction, we equate the word "family" with the claimant’s or counter-claimant’s clan for purposes of testing the validity of the petitions. Cf. In re Matai Title "Mauga", 4 A.S.R. 616, 619-622 (Trial Div. 1965) ("intention of the Legislature is not and should not be to frustrate or make impossible the selection of a matai when a title becomes vacant").
Nevertheless, since the Amio clan had at least 27 members qualified to sign petitions to register matai titles, this interpretation does not definitively resolve the issue in this case. We are tempted to further interpret the statutes to allow two or more candidates from the same clan to file petitions with less than 25 signatories whenever the clan has fewer than 49 qualified members. However, judicial constraint precludes such creative construction.
Instead, we will simply follow the precedent of In re Matai Title "Mauga”, 4 A.S.R. at 619-22, which dealt with similar factual matters and inadequate statutory guidance, and proceed with awarding this title. We believe that both candidates’ affidavits stating that there were less than 25 qualified family members were made in good faith. In any event, the family is entitled to the judicial resolution it seeks after so many years without a Le'aeno titleholder.
FINDINGS ON STATUTORY CRITERIA
Based on the evidence submitted to the court, the following findings of fact are made with respect to the four criteria set forth in A.S.C.A. § 1.0409.
*1201. Best Hereditary Right
This factual determination is traditionally guided by the percentage of the candidates’ blood relationship to a former holder of the matai title (though in unusual cases it may be appropriate to calculate blood relationships from the original titleholder or from the nearest common ancestor, the so-called "Sotoa" rule and its variant). See In re Matai Title "Iuli", 14 A.S.R.2d 116, 117-18 (Land & Titles Div. 1990); In re Matai Title "Tuiteleleapaga", 15 A.S.R.2d 90, 90-91 (Land & Titles Div. 1990); In re Matai Title "Sotoa", 2 A.S.R.2d 15 (Lands & Titles Div. 1984); see also In re Matai Title "Mulitauauopele", 17 A.S.R.2d 75, 80 (Land & Titles Div. 1990). By the traditional measure Falani, as the son of Le'aeno Viliamu Reed, has 1/2 or 50% Le'aeno blood. On the other hand, Fagafaga is the great-great-grandson of Le'aeno Fagafaga and, on this basis, has 1/16 or 6.25% Le'aeno blood.
No circumstances in this case justify application of the "Sotoa" rule. However, even under this approach, Falani possesses a superior hereditary right to the title. The candidates concur on the names of the original Le'aeno and his successors, including their nearest common ancestor, Le'aeno Fagafaga. While Fagafaga is four generations removed from the nearest common ancestor, Falani is only three generations removed from this ancestor.
Indeed, Fagafaga readily conceded that Falani prevails on the hereditary right criterion.
2. Wish of Majority or Plurality of the Clans of the Family
This consideration seeks to weigh the candidates’ support within the family by accounting for the wish of the majority or plurality of the customarily recognized clans in the family at the time of trial. A.S.C.A. § 1.0409(c)(2); In re Matai Title "Tauala", 15 A.S.R.2d 65, 68 (Land & Titles Div. 1990). The candidates also at least partially agree on this issue. The family has two clans established through Le'aeno Galeva'a’s progeny, his daughter Amio and son Ugaloto. Both candidates are members of the Amio clan. However, their respective assessments of the wish of the clans diverge at this point.
During this vacancy in the Le‘aeno title, the Amio clan met either separately or with the Ugaloto clan some eight or nine times in efforts to choose a successor for the title. The last time was after a *121continuance of the trial for this purpose and only a few days before trial. One overall result of these meetings is that both Fagafaga and Falani still want to be the Amio clan’s choice, and each refuses to concede to the other. Apparently, Fagafaga can command a numerical majority within the clan. However, clan support can not be evaluated by counting heads and is traditionally measured by consensus. In re Matai Title "Tauala", 14 A.S.R.2d 83, 88 (Lands & Titles Div. 1990). Amio’s and her offsprings’ marriages have produced several genealogical lines. Most of these lineages favor and, thus, forge consensus for Falani. Viewed in this traditional perspective, Falani has the Amio clan’s support.
During the last few days before trial, Uiagalelei made his decision to withdraw his candidacy and conveyed to Fagafaga and Falani that they and the Amio clan should decide upon the title registrant. This turn of events could be interpreted as signifying that the Ugaloto clan does not support either Fagafaga or Falani. It could also mean that the Ugaloto clan supports either of them upon selection by the Amio clan. At one time, a minister’s blessing, ava cup ceremony, and related rituals were held for Uiagalelei and Falani jointly. This event certainly indicates that the Ugaloto clan supports Falani if he is the Amio clan’s choice.
Given the Amio’s clan consensus support for Falani and the reasonable inference of the Ugaloto clan’s support for Falani if he is the Amio clan’s choice, Falani has dominance on this issue.
3. Forcefulness, Character, and Personality; Knowledge of Samoan Customs
Leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai are some of the factors which aid in meeting this criterion. See, e.g., In re Matai Title "Tauala", 14 A.S.R.2d at 89-93; In re Matai Title "Tuiteleleapaga", 15 A.S.R.2d at 90-93; In re Matai Title "Mauga", 4 A.S.R. at 628-29 (predecessor Code Amer. Samoa § 6.0107 (1961 ed.)).
Unquestionably, Fagafaga is a highly visible member of the generation that must succeed to leadership in American Samoa in the foreseeable future. He sought out educational goals, having graduated at the secondary level, attended institutions of higher learning off-island, and completed specialty training for radio broadcasting and disaster emergency communications. He has hands-on experience in supervisory and managerial roles. He is an accomplished master-of-ceremonies and. broadcaster of events. He has served in the House of Representatives of *122the Legislature of American Samoa, on various governmental committees, boards and commissions, and in several diverse church functions. He demonstrated initiative in enabling his fellow villagers to cope with the hurricane disasters in 1990 and 1991 and in dealing with other village needs. He has also been a matai for some 14 years. On the other hand, his matai title was created by a former Le‘aeno after the matai title registration process closed on January 1, 1969, and, thus, is not legally recognizable.
Falani’s record is less impressive in some particulars. He did not complete secondary education, where his formal education ended. He admitted to a serious violation of the law outside of American Samoa while still a juvenile. Although he worked in several responsible occupational positions, both in the private sector and with the American Samoa Government, they largely lacked supervisory or managerial functions. The prime exception is his eight years of service as a member of the House of Representatives, including chairmanship of the House Rules Committee and vice-speakership of the House. His other activities also include service on various government committees, boards and commissions, and in several church positions. He has never been a matai, but he turned down several requests to accept a title in the Village of Matu'u because he was then residing in another village and representing that area in the House of Representatives.
Both contenders confirmed their knowledge of Samoan customs well. Both honor those customs and rendered loyal and respectful service, or tautua, to Le'aeno titleholders.
Fagafaga’s educational and career accomplishments give him a distinct but not overwhelming advantage in this category. Falani has overcome in maturity and humility any deficiencies from his younger years. However, Fagafaga does slightly prevail on this standard.
4. Value to Family, Village, and Country
This consideration seeks to evaluate the candidates’ prospective value to his family, village, and American Samoa as holder of the title, in light of the first three criteria and their leadership potential and plans. See In re Matai Title "Tauala", 14 A.S.R.2d at 93-94; In re Matai Title "Sala", 4 A.S.R. 21, 23 (Land & Titles Div. 1971) (predecessor Code Amer. Samoa § 6.0107 (1961 ed.)).
*123As indicated above, both aspirants’ projected a high-minded willingness to undertake responsibilities and a resolute devotion to duty, including plans to unify the family after the court’s decision. Fagafaga’s activities tend to be publicly noticeable, while Falani proceeds more quietly and less ostentatiously. Both manifest potential for greater leadership roles, though Falani’s older, generational position in the family must also be taken into account. Overall, each contestant is prepared and well-suited to assume the obligations of this title. They are ranked equally on this criterion.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact, the following conclusions of law are reached.
1. Falani has the best hereditary right to the Le’aeno title.
2. Falani enjoys the support of the majority of the clans of the family.
3. While both candidates are relatively equal on knowledge of Samoan custom, Fagafaga has the edge on forcefulness, character and personality. Fagafaga prevails by a narrow margin on this consideration.
4. Despite different leadership styles, both candidates are evenly matched in their potential value to family, village and country. Neither one is superior in this category.
5. A.S.C.A. § 1.0409(b) gives statutory priority to the four considerations in the order listed. More weight is given to each criterion than to those following it, taking into account the relative margins by which the candidates may win on each of the four categories. In re Matai Title "Tauala", 15 A.S.R.2d at 69. Recognizing the priority assigned to the best hereditary right over majority clan support, and majority clan support over forcefulness, character and personality and knowledge of Samoan customs, as well as the relatively narrow advantage Fagafaga has over Falani in the latter consideration, the matai title Le‘aeno is awarded to Falani.
The territorial registrar shall register the Le‘aeno title in the name of Frank W. Reed.
Judgment shall enter accordingly. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486149/ | On Petition for Review:
Petitioner seeks relief from an order of the Workmen’s Compensation Commissioner ("Commissioner") issued December 16, 1992. This order in effect set aside an earlier order of the Commissioner, dated December 9, 1992, which purported to award petitioner temporary total disability payments with 10% penalty, *125retroactive to March 1, 1990. The earlier order was in fact proposed and submitted by petitioner and issued upon ex parte application. The second order explained that the earlier order was issued on the Commissioner’s mistaken impression that the employer, VCS Samoa Packing Company ("VCS"), did not contest petitioner’s claim for provisional benefits, and that in fact VCS had filed an objection and requested a hearing.
Petitioner contends that the Commissioner could not "set aside" the earlier order arguing that only the court may do so in the context of judicial review proceedings. Among other things, petitioner cites to A.S.C.A. § 32.0653(c), which provides that "[proceedings for . . . setting aside ... a compensation order . . . may not be instituted otherwise than as provided in this section and 32.0652."
Both enactments, §§ 32.0652 and 32.0653, however, talk about review proceedings at the judicial level; that is, their purport is the exclusion of other avenues of judicial review — for example, review under the Administrative Procedures Act, A.S.C.A. § 4.0102 et seq. See Haleck v. Scanlan, 4 A.S.R. 998 (1975). Contrary to petitioner’s contentions, these enactments do not purport to preclude reconsideration proceedings at the administrative level — that is, before the Commissioner. Accordingly, we see no basis for the contention that the Commissioner may not reconsider his prior order before it becomes final and unappealable,1 nor any statutory provision which prohibits a petition to reconsider, whether on the Commissioner’s or on a party’s motion.
. The record before us reveals that after the order of December 9, 1993, had been signed, VCS faxed a letter dated December 14, 1993, to petitioner’s counsel, with a copy to the Commissioner. The letter asserted mistake on the part of the Commissioner, claiming that VCS had already filed its objection to petitioner’s request for provisional benefits, and that reconsideration of the order was accordingly sought. The Commissioner apparently accepted VCS’s claim of mistaken determination of fact, since the order here under review was issued two days after. This second order recited that:
*126Due to an oversight, the commissioner was not made aware that a response was filed by the respondent, in which respondent opposed claimant’s application and requested a hearing. Thus the proposed order was mistakenly signed on December 9, 1992.
Order Setting Side Proposed Order Received October 23, 1992 and Signed December 9, 1992; Notice of Formal Hearing, at 2.
In these matters, the standard of review utilized in reviewing the Commission’s orders (whether "in accordance with law") is the same as that used by an appellate court in reviewing a trial court’s decisions — the review court must accept the findings of the trier of fact unless "clearly erroneous." Hartford Fire Ins. Co. v. Workmen’s Compensation Comm’n, CA No. 74-76, slip op. at 2, 4-5 (July 18, 1977), aff’d AP No. 19-77 (April 26, 1978). On the record before us we see no clear error; the Commissioner’s decision is substantially supported. VCS’s objection, dated November 11, 1992, is found handwritten, by counsel, on a copy of petitioner’s "Notice of and Claim for Temporary Total Disability Benefits and Penalties." The original of this document was earlier filed with the Commissioner on October 23, 1992 and apparently transmitted to counsel for VCS on October 28, 1993.
For reasons given, the petition is denied and the matter remanded to the Commissioner for the "formal" hearing anticipated below.2
It is so ordered.
Such order only becomes final at the expiration of the thirtieth day after it has been filed, "unless proceedings for the suspension or setting aside of such order are instituted." A.S.C.A. § 32.0651. Indeed, the institution of reconsideration proceedings at the administrative level also has the effect of tolling the statute of limitations, A.S.C.A. § 32.0651. Haleck v. Scanlan, AP No. 3-76, slip op. at 4-5 (Feb. 16, 1977).
The procedural history of this matter bespeaks the need for promulgating rules, as envisioned by the Workmen’s Compensation Act, e.g., A.S.C.A. §§ 32.067(g) and 32.0628, governing the procedure for processing workmen’s compensation claims. Part of the procedural confusion evident here is due to the apparently ad hoc manner of developing a process. We note that after the filing of petitioner’s claim for workmen’s compensation benefits, the record reflects the scheduling and rescheduling of inter partes hearing opportunities, variously referred to as either "informal" or "formal." The matter was then continued "indefinitely" upon joint stipulation of the parties, although in the interim, a paper flow of letter exchanges as well as ex parte applications and counter-applications to the Commissioner seemed to be the order of business. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486150/ | Trial of this action brought by plaintiff Minareta Thompson ("Minareta") for a permanent injunction preventing interference with her use and enjoyment of certain land was held on July 22, 1993. Minareta' appeared in person and by counsel. Defendants Toluao Fetalaiga *128("Toluao") and Seuta'atia Toluao ("Seuta'atia") also appeared in person and by counsel. The court viewed the land in question and the surrounding area on August 10, 1993.
FINDINGS OF FACT
In 1989, Minareta cleared a small parcel, approximately 0.509 acres, of land ("the small parcel") in preparation for constructing a new home for her present, immediate family. Minareta is a member of the extended Moananu family of the Village of A'oloau, American Samoa. She lived with her parents and other family members on the small parcel and immediately surrounding land during a substantial portion of her childhood until the time she left American Samoa for further education. However, on at least two occasions during the clearing work, Toluao, the senior matai or sa'o of the extended Toluao family of the neighboring Village of Pava'ai'i, told Minareta not to proceed with construction, claiming the small parcel was the Toluao family’s communal land.
The small parcel is within a larger portion of land, approximately 2.0803 acres and known as "Saiaulama-Fita." "Saiaulama-Fita" is within and near the mid-point of the eastern boundary of an even larger area of approximately 353.8697 acres, which was surveyed in 1985 by matais of the Village of A'oloau and designated as "A'oloau-fou, Parcel B-One" ("the A'oloau survey"). The A'oloau survey also included a separate parcel of approximately 66.6936 acres, designated as "A'oloau-fou, Parcel B-Two." A substantial area in the eastern and southern portions of "Parcel B-One" of the A'oloau survey is also within another large area, generally known as "Lago." This portion of "Lago," consisting of some 69.403 acres, was surveyed by matais of the Village of Pava'ia'i in 1988 ("the Pava'ai'i survey").
In 1989, resolution of the A'oloau survey with the Pava'ai'i survey, among other issues, was before this court in consolidated actions LT No. 29-86, LT No. 41-86, and LT No. 12-87. The Village of A'oloau was a plaintiff, and Toluao was the defendant in LT No. 12-87. Toluao, other village matais, and the Village of Pava'ai'i intervened in LT No. 29-86, although their real interest was in the portion of "Lago" within the A'oloau survey, the registration of which was the subject of *129LT No. 41-86.1 Upon the advice of the Village of A'oloau’s legal counsel, Minareta decided to delay her construction project until the outcome of these consolidated cases was known.
As relevant to this action, the court held that almost all of the land within the A'oloau survey that is also within the Pava'ai'i survey is within the Village of A'oloau and, therefore, is subject to title registration by families and others from A'oloau who own land communally or individually. Lualemana v. Asifoa, 16 A.S.R.2d 34, 38-39 (Land & Titles Div. 1990), aff’d Asifoa v. Lualemaga, 21 A.S.R.2d 91 (App. Div. 1992).
The exception was a small strip of apparently uncultivated land along the eastern boundary of the A'oloau survey on the eastern slope of an 1183-foot peak and located immediately uphill from a cinder pit. The cinder pit was held to be separate communal properties of the Tuana'itau and Toluao families of Pava'ai'i ra Leomiti v. Toluao, 11 A.S.R.2d 49, 53 (1989). The small parcel is clearly within the A'oloau survey and is well-removed from the excepted strip of land.
Moreover, Minareta and members of the Toluao family are not immediate neighbors. The Fuimaono, Leota and Lefotu families of the Village of A'oloau occupy the lands immediately bordering "Saiaulama-Fita."
After the decision in the consolidated cases was issued on August 6, 1990, Minareta returned to her construction project. On May 18, 1992, title to "Saiaulama-Fita" was duly registered with the Territorial Registrar as Minareta’s and Moananu Va’s individually owned land. Moananu Va is the sa'o of the extended Moananu family. On August 13, 1992, the small parcel was conveyed to Minareta as her individually owned land by Moananu Va and herself, and the deed was duly registered or recorded with the registrar.
*130In late September of 1992, Minareta commenced actual construction of her new home on the small parcel. Almost immediately, she was stopped by Toluao once and by Seuta'atia on two occasions. Seuta'atia was particularly aggressive and made at least implied threats of physical violence. Some members of her construction crew were convinced that Seuta‘atia carried firearms in the vehicle he was driving to the construction site. Faced with reluctant carpenters and rather than confront Toluao and Seuta‘atia by continuing construction, Minareta opted to protect her legal rights through this proceeding.
On November 18, 1992, the court ordered issuance of a preliminary injunction upon the filing a written undertaking. This injunction, prohibiting interference by any means with the construction of Minareta’s house, was issued on December 1, 1992. When Minareta resumed construction, Toluao and Seuta‘atia once more came to the site and told her to stop construction. Seuta'atia’s manner was again threatening and suggested physical violence as a consequence. Police were called and shown the preliminary injunction. On December 8, 1992, contempt proceedings were commenced, and on December 23, 1992, Toluao and Seuta‘atia were held in contempt.2 A $3,000 fine was *131imposed, but execution was suspended on the condition that they comply with the preliminary injunction. They were required to pay Minareta's counsel $100 in iiiorney's tees.
In January 199 iVimaic-ta once again began construction of her new home, without iimhw direct interference by Toluao or Seuta'aiia, Seuta'aiia did complain that the fence Minareta had erected around her house was too close to a dirt road, crossing a small portion of the contested parcel of land and accessing the cinder pit on the communal lands of the Toluao and Tuana'itau families. However, apparently this dispute was satisfactorily resolved.
Nonetheless, Minareta believes that incidents of vehicles exiting from the dirt road with excessive noise and flying dust are attributable to Toluao family members and vehicles and are intentional acts of harassment. She fears further retaliation from Toluao and other Toluao family members. Indeed, Toluao testified that he might be unable to resist disobedience of any court order to refrain from interfering with Minareta' use and enjoyment of the contested parcel of land if "the devil takes over" control of him.
Minareta also presented evidence of her financial losses resulting from Toluao’s and Seuta'atia’s conduct. Since she was unable to remove her building materials from the American Samoa Government’s port facilities for an extended period of time, she incurred and was billed for $17,600 in storage charges. The prospect of this financial detriment as a result of Toluao’s and Seuta‘atia’s interference with the construction was brought out at the hearing on issuing a preliminary injunction. However, because of this litigation, the government settled this account for $1,500, representing charges to the time of filing this action. Apparently, she is satisfied with this resolution of that problem.
She also paid her carpenters an additional $5,000 due to the delay in proceeding with the work and their giving up other contracts from October 1992 to January 1993. She would like to recoup this expense. Both of these cost items, excess storage and carpenters charges, are reasonably foreseeable effects of Toluao’s and Seuta'atia’s interference with Minareta’s construction project.
Other than moderation of the characterization of their conduct, the evidence presented by both Toluao and Seuta'atia did not contradict Minareta’s testimony. Particularly noteworthy, they did not present any evidence of the Toluao family’s title or defects in Minareta’s title to the *132small parcel. Toluao’s only legitimate interest in this land is retaining access to the cinder pit via the dirt road crossing a comer of the small parcel. This road has existed for a considerable period of time, perhaps from the early 1960s. However, Minareta has neither encroached, threatened to encroach, nor otherwise obstructed passage upon this road.
CONCLUSIONS OF LAW
1. The procedurally valid title and deed registrations, in the absence of any showing of irregularity in the Territorial Registrar’s certificates, clearly and unequivocally establish Minareta’s title to the small parcel. See Vaimaona v. Tuitasi, 13 A.S.R.2d 76, 79-81 (Land & Titles Div. 1989). As between the parties to this action, this conclusion is further buttressed by the res judicata effect of Lualemana v. Asifoa, 16 A.S.R.2d 34 (Land & Titles Div. 1990), aff’d Asifoa v. Lualemaga, 21 A.S.R.2d 91 (App. Div. 1992). Lualemana effectively placed the small parcel within the Village of A‘oloau and determined its ownership by an A'oloau landowner. Toluao was a party to that action. As a member of the Moananu family of A'oloau, Minareta was represented by the A'oloau matais, who were also parties to that action. See Taulaga M. v. Patea S., 4 A.S.R.2d 186, 186-87 (Land & Titles Div. 1987).
2. As an equitable remedy, the most distinguishing prerequisite of permanent injunctive relief is the inadequacy of a remedy at law, usually in the form of money damages. A.S.C.A. § 43.1302; see Nissan Motor Corp. v. Maryland Shipbuilding & Drydock Co., 544 F. Supp. 1104, 1122 (D. Md. 1952); Int’l Union, United Auto., Aerospace & Agric. Implement Workers v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir. 1987); see also Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1527 (D.C. Cir. 1984), vacated 471 U.S. 1113 (1985). Actual physical interference with the use and enjoyment of another’s land, as occurred in this case, constitutes the most obvious and common type of nuisance and is properly subject to the issuance of a permanent injunction. See Ramirez, 745 F.2d at 1527-28 & nn. 119-120; Maryland Shipbuilding, 544 F. Supp. at 1116-17, 1122 & n.21.
Minareta is entitled to an injunction permanently prohibiting Toluao and Seuta‘atia, their officers, agents, servants, employees, attorneys, other family members, and those persons in active concert or participation with them from interfering with the use and enjoyment of the contested parcel of land by Minareta, her other family members, invitees, licensees, servants, and employees through the use or threatened use of physical violence, harassment, or any other means.
*1333. Although equity acts ’specifically, a court having equity jurisdiction will dispose of the entire controversy, granting both specific relief and damages, to avoid a multiplicity of suits. See Samuel v. University of Pittsburgh, 538 F.2d 991, 994 (3d Cir. 1976) (court having equity jurisdiction over injunction claim may also decide "intertwined question of restitution"); Local 391, Int’l Brotherhood of Teamsters v. City of Rocky Mount, 672 F.2d 376, 379 (4th Cir. 1982) (affirming district court’s grant of an injunction and award of damages).
Clearly, Minareta has suffered special damages in the sum of at least $5,000, though she failed to specifically allege and pray for money damages. T.C.R.C.P. Rule 15(b) directs that issues tried with the parties’ express or implied consent shall be treated as if they had been raised by the pleadings and authorizes, but does not require, amendments to pleadings to conform to the evidence. Even over objection, amendments to the pleadings should be freely made in the interest of full consideration of the merits, unless the objecting party is prejudiced by lack of notice and surprise. 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1491, at 6-7 (West, 2d ed. 1990); see Ah Ching v. Ah Ching, 13 A.S.R.2d 34, 37 (Trial Div. 1989) (denying a collateral, unpled claim in divorce proceedings for possible additional renumeration that might be sought by carpenters who constructed a family home under a fa‘a Samoa arrangement).
Despite Minareta’s focus on injunctive relief in her complaint, the prospect of money losses resulting from Toluao’s and Seuta'atia’s interference with her construction project was raised during the hearing on the preliminary injunction and was, in any event, a reasonably foreseeable issue. Moreover, objection was not interposed to the evidence on money damages but only during argument. An award of money damages in this case is just and is granted in the sum of $5,000.
4. The testimony during trial on Toluao’s and Seuta'atia’s conduct after they were held in contempt on December 23, 1992, with respect to Minareta’s use and enjoyment of the small parcel, sufficiently raises for purposes of constructive contempt proceedings under H.C.R. Rules 114 and 115 the issue of setting aside the suspended execution and requiring payment of the $3,000 fine imposed for the violations of the preliminary injunction. An order to show cause will be issued, and the hearing on the order is scheduled on October 7, 1993, at 9:00 a.m.
5. A plaintiff’s attorney’s fees are ordinarily excluded from judgments for injunctive relief in the absence of statutory authorization *134or special circumstances. See Chambers v. NASCO, Inc., 501 U.S. _, _, 115 L. Ed. 2d 27, 45 (1991) (citing Alyeska Pipeline Serv. v. Wilderness Soc., 421 U.S. 240, 259 (1975)); Ruckelshaus v. Sierra Club, 463 U.S. 680, 683-84 (1983) (citing Alyeska Pipeline). Attorney’s fees have been permitted by statute in connection with injunctions against harassment in at least one jurisdiction. See Cal. Civil Proc. Code § 527.6(h) (West 1985). They were awarded in a land case involving res judicata in this jurisdiction. Taulaga M., 4 A.S.R.2d at 187.
Given the undue interference and harassment without any legitimate claim or color of title, recovery of attorney’s fees are also appropriate in this action. In addition to her costs of suit, Minareta is awarded reasonable attorney’s fees in an amount to be approved by court upon her verified application. The hearing on attorney’s fees is also scheduled on October 7, 1993, at 9:00 a.m.
Judgment shall enter accordingly. It is so ordered.
The Pava'ai'i matais had missed the statutory 60-day deadline for filing objections to the proposed title registration of the A'oloau survey and, rather than alleging lack of notice in Pava'ai'i as an excuse for their untimely objection, sought intervention through LT No. 29-86, an injunctive relief action. Hearing no objection, the court allowed this intervention and proceeded on its merits, even though LT No. 29-86 dealt with land at the western end of the A'oloau survey not claimed by the Pava'ai'i matais.
The decision of August 6, 1990, in the consolidated cases also declared that another portion of the land, about 2.076 acres within the A'oloau survey and south of the contested parcel of land in this case, was the communal land of the Utu family (represented by Lepuapua Stanley Massey Utu). The court enjoined Toluao from further activities within the A‘oloau survey area. As amended on August 9, 1990, Toluao and the Toluao family were given until September 10, 1990, to harvest their crops within the A'oloau survey; but Toluao and the Toluao family, acting principally through Pepe Lam Yeun, continued to occupy and cultivate the Utu family land. On April 24, 1991, when both were in court, Toluao and Lam Yeun were held in contempt. Although their counsel at that time, a legal practitioner or his unlawfully practicing associate, may have misled Toluao and Lam Yeun into thinking the decision in the consolidated cases was not final, their contemptuous conduct continued unabated, even after Toluau’s present counsel was retained on or about September 14, 1992. On October 7, 1992, sanctions were imposed for their continuing contempt. These contempt proceedings in the consolidated actions clearly confirm that Toluao was well aware of the significance of the August 6, 1990, decision with-respect to the A'oloau survey when the hearing on issuance of a preliminary injunction took place in this case on November 16, 1992. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486151/ | Order Denying Motion for Reconsideration:
On August 2, 1993, this court issued its order denying petitioner’s request for a writ of mandamus. Petitioner filed a motion for reconsideration on August 4, 1993. For the reasons enumerated below, his motion for reconsideration is denied.
First, mandamus is inappropriate in this case. As this court previously noted, mandamus will not be issued if the application or interpretation of a statute is discretionary. Beckless v. Heckler, 622 F. Supp. 715, 720 (N.D. Ill. 1985) (citing Mid-American Regional Council v. Mathews, 416 F. Supp. 896 (W.D. Mo. 1976)). The party seeking a writ of mandamus bears the "burden of showing that [his] right to issuance of the writ is ’clear and indisputable.’" Kerr v. United States Dist. Court, 426 U.S. 394, 403 (1976) (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953); United States v. Duell, 172 U.S. 576, 582 (1899)). Petitioner has failed to show that the statute mandates certain types of audits, let alone the particular audit which he has requested. Indeed, petitioner bases one of his challenges on the premise that the statute purports to give the Territorial Audit Office the discretion as to which audits to conduct. Because petitioner has failed to show that the statute is not discretionary, mandamus was properly denied.
Second, petitioner’s due process rights have not been violated. See Rev. Const. Am. Samoa Art. I, § 2. Procedural due process *136constrains government decisions which deprive an individual of some "property" or "liberty" interest. Furthermore, due process does not prohibit the government’s taking of property but requires that a person have an opportunity to be heard before his property is finally taken. Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976); see Parratt v. Taylor, 451 U.S. 529, 540 (1981); Ferstle v. American Samoa Gov’t, 7 A.S.R.2d 26, 49 (Trial Div. 1988). Petitioner has neither shown the existence of a property interest nor that his property has been taken. Thus, petitioner has not demonstrated a due process violation of any sort.
Third, this court rejects petitioner’s argument that the statutory provision giving the Territorial Audit Office the discretion to conduct audits is unconstitutional. A court exercising judicial review starts with the presumption that a statute is valid. Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 944 (1983) (citing TVA v. Hill, 437 U.S. 153, 194-95 (1978)). Similarly, "it is the duty of [] courts to construe a statute in order to save it from constitutional infirmities." Mistretta v. United States, 488 U.S. 361, 406 n.28 (1989) (quoting Morrison v. Olson, 487 U.S. 654, 682 (1988)); see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 595 (1952) (Frankfurter, J., concurring). As such, this court will not find a statute unconstitutional unless it cannot be plausibly construed otherwise.
Petitioner also repeatedly states his belief that the statute operates unfairly. However, the job of this court is not to determine public policy. A statute’s "wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained" because courts "do not sit as a committee of review." Chadha, 462 U.S. at 944 (citing TVA, 437 U.S. at 194-95); see also Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 223 (1983) ("The courts should not assume the role which our system assigns to Congress."); Mistretta, 488 U.S. at 415 ("the basic policy decisions governing society are to be made by the Legislature") (Scalia, J., dissenting). In short, separation of powers is a fundamental constitutional doctrine, which constrains each governmental branch from intruding into the legitimate functions of the others. See Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. _, _, 115 L. Ed. 2d 236, 256-57 (1991); Chadha, 462 U.S. at 951.
The legislation creating the Territorial Audit Office, including the discretionary audit provision, was properly enacted by the territory’s duly-chosen Legislature and Governor. These policymaking branches of *137government rationally decided the structure and powers of this office. Even if petitioner is correct that the law is badly written, he should turn to the lawmaking branches for rectification. If this court were to accept his invitation to intrude into the policymaking decisions of the legislative and executive branches, this action would itself violate the separation of powers. Petitioner’s attempt to have the statute declared unconstitutional is therefore unwarranted.
Accordingly, petitioner’s motion for reconsideration is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486152/ | Order Remanding Appellant’s Motions to Permit Counsel’s Withdrawal, Declare Appellant Indigent, and Appoint Counsel on Appeal for Determination in the Trial Division Pursuant to A.C.R. Rule 24(a):
*138Appellant’s motions to permit his counsel’s withdrawal from further representation in this criminal action, to declare appellant indigent, and to provide appellant with court-appointed counsel for this appeal came regularly for hearing on September 1, 1993. Appellaát appeared in person and by counsel. Appellee appeared by counsel.
After considering counsel’s comments and the documents filed in connection with the motions, the court by bench order granted appellant’s motions and directed preparation of the transcripts of the proceedings in the Trial Division.
However, appellant’s motions are, in essence, a motion for leave to proceed on appeal informa pauperis, which is governed by H.C.R Rule 24(a) and requires consideration of both financial inability and the issues on appeal. H.C.R. Rule 24(a) directs that a forma pauperis motion, for purposes of this action, shall in the first instance be filed in the Trial Division. Although a notice of appeal was simultaneously filed with appellant’s motions, H.C.R. Rule 24(a), when read as a whole, clearly contemplates that the Trial Division, with first-hand knowledge, should first address the propriety of forma pauperis proceedings on appeal, logically before the appeal is initiated, but it does not absolutely preclude consideration of this issue by the Trial Division after a notice of appeal has been filed.
Accordingly, upon reconsideration, this court’s bench order is set aside, and appellant’s motions are remanded to the Trial Division for initial consideration and determination as a motion for leave to proceed on appeal informa pauperis.
Counsel’s attention is directed to the requirement in H.C.R. Rule 24(a) for an accompanying affidavit, "in the detail prescribed by Form 4 of the Appendix of Forms, to the Federal Rules of Appellate Procedure," setting forth appellant’s financial inability, his belief in redress, and the issues on appeal.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486153/ | This action for damages for personal injuries arising out of a motor vehicle accident was tried on June 29, 1993.
FINDINGS OF FACT
This three-vehicle accident occurred about noon on June 29, 1990, on the public highway in front of the Methodist church in Lauli'i, American Samoa.
Plaintiff Sieni Euta ("Sieni") was a passenger, riding in the right front seat of one of the vehicles, a Suzuki jeep. The driver of this vehicle was Ipipaea Taliva‘a ("Ipipaea"). A Ford commercial, family or diga bus, owned by defendant Continental Travel Services ("CTS"), was also involved. Defendant Rini Etimani ("Rini") operated this vehicle *140while employed by CTS. Defendant Insurance Company of the Pacific ("ICP") provided the liability insurance coverage for this vehicle. The third vehicle, a taxi, was a Toyota sedan.
Sieni, her husband, and one minor child live in Lauli'i with Ipipaea’s family. At the time of the accident, Ipipaea was taking Sieni to the American Samoa Government’s medical center at Faga‘alu to take care of an itching hand. The rear seat of the jeep was occupied by Peti Tuia and two minors, Jerry Leung Wai, Jr. and Wayne Leung Wai.
They left home, which was inland of the public highway. When they reached the intersection with the highway, the CTS bus was stopped to the right of the jeep, unloading and loading passengers along the westbound side of the highway. The jeep turned right onto the westbound lane of the highway and passed the bus. The bus then followed the jeep.
Heading westward from this intersection, the road in this area malees an extended right-hand curve, somewhat sharp and blind at one point. Then it curves left into a short straight section before it reaches the Methodist church. At that point, a relatively steep uphill incline begins. At the time, the road was dry, and the weather was clear.
As the two vehicles approached the Methodist church, located on their right-hand side and north of the highway, the bus was in the eastbound lane attempting to pass the adjacent jeep in the westbound lane. The taxi was in the eastbound lane in the immediate vicinity of the church.
When Rini became aware of the situation, he tried to return the bus to the westbound lane. He also instinctively braked the bus. Some testimony indicated that the taxi driver was about to turn the taxi left towards the church, but he probably intuitively slowed down and otherwise reacted to try to avoid the impending impact. However, the bus, jeep and taxi collided almost instantly. The bus and truck essentially hit head-on. Whether the bus also struck the jeep, as Sieni and Ipipaea claimed but Rini disclaimed, the jeep swerved out of control to the left and slammed into the taxi. In colloquial terms, the taxi and the jeep were "totalled."
Significant differences exist in the testimony on events during the interval from the jeep’s entry onto the main road until the point of impact of the three vehicles, approximately one-quarter mile in distance.
*141Sieni was aware that the bus was behind the jeep. She testified that Rini sought to bring the bus past the jeep three times, the last ending in the accident. Ipipaea did not slow the jeep to give way to the bus at any time, and Sieni did not tell Ipipaea to slow down the jeep. Ipipaea testified that she noted the bus about one car-length behind the jeep in her rear-view and side-view mirrors, but she was only once aware that the Rini was seeking to overtake the jeep-the last attempt beginning near the Roman Catholic church, about 600 feet east of the Methodist church. She and Sieni were conversing, which she thought might possibly have diverted her attention from other passing attempts by Rini.
Rini testified that at first the jeep was moving slowly ahead of the bus. He cautiously tried to overtake the jeep three times, but each time Ipipaea first increased and then decreased the jeep’s speed. During the last attempt to pass, he saw the taxi ahead of the bus, but when the jeep slowed, he thought he had room to return to the westbound lane. However, Ipipaea again accelerated the jeep, and Rini could not return to the westbound lane before the bus struck the taxi.
Rini was convicted by his plea of guilty to careless driving, a misdemeanor, in connection with the accident. However, recognizing that convenient disposition rather than guilt frequently motivates guilty pleas to traffic citations, we do not assign major significance to this conviction. This decision certainly does not turn on that fact.
Rather, we are persuaded that under either version of the sequence of events, Rini’s conduct was negligent and proximately caused Sieni’s injuries. Under Ipipaea’s account of these events, Rini used poor judgment when he attempted to pass the jeep less than one-eighth of a mile before the relatively steep uphill incline begins and where the three vehicles collided. The visible presence of the taxi, either at or shortly after the time he started overtaking the jeep, further confirms his subnormal decision.
If, on the other hand, Rini’s recitation of these events is accurate, and Sieni’s testimony endorsed at least the multiple passing attempts in this version, Rini’s judgment was even more inferior. Under this scenario, Ipipaea engaged in a "cat and mouse" game with the bus, and Rini’s continuing attempts at overtaking were, at best, imprudent. Starting the third passing effort was a serious error on his part. His failure to back off from passing when the taxi appeared or Ipipaea accelerated the jeep was inexcusable.
*142Whichever way events truly unfolded, and we are inclined to believe that Rini’s account is closer to fact, his operation of the bus at the moment of and immediately before the accident was not the conduct of a person of ordinary prudence in the same situation and possessing the same information. Under either set of circumstances, a reasonably prudent person would have foreseen or anticipated that someone might be injured as a result of driving a bus in Rini’s maimer. Rini was negligent, without which Sieni would not have been injured.
At the time of the accident, Rini was clearly performing the duties for which he was employed by CTS and was acting within the scope of his employment.
While riding in the jeep, Sieni was conversing to some extent with Ipipaea, but she acknowledged awareness of Rini’s several, unsuccessful attempts to overtake the jeep. A reasonably prudent person would have told Ipipaea to slow down or take some other precaution. Sieni’s failure to speak up contributed at least slightly to her injuries, for which we attribute a proportionate 5% reduction in her recoverable damages.
Sieni’s right hand was severely injured. An extensive and dirty, third-degree avulsion, or tearing away of tissue, occurred on the dorsum, or back, of the hand. This degree of avulsion is the most serious, exposing in this instance metacarpi, or the bones of the hand to which the bones of the fingers are attached.
At about 5:00 p.m. on June 29, 1990, in the operating room at the government medical facility, the wound was cleansed, and dead- or devitalized tissue was debrided or removed by Dr. Vaiula Tuato'o, chief of surgery. Sieni remained an inpatient and was regularly given medications to reduce pain and the risk of infection, until her discharge on July 1, 1990. She was advised but declined to undergo skin-grafting procedures as soon as possible and to have whirlpool treatments and regular dressing changes to resist infection.
Sieni missed visits, and infection developed. On July 6, 1990, she was readmitted due to the infection and to further consider skin grafting, which she ultimately refused. She was last seen by Dr. Tuato'o on September 28, 1990. At that time, contracture restricting hand flexion and extension was pronounced, but only a small area was still raw. In the doctor’s opinion, her right arm was 50% disabled from the impairments in her hand and wrist joints, excluding disfigurement from *143the deformed hand and permanent scar. Based on her inability to hold objects, he considered her right hand to be useless. She did not make her doctor’s appointment for a final examination three months later.
In the courtroom, Dr. Tuato‘o observed that Sieni had regained some wrist movement and ability to hold things. He opined that her present hand disability was in the 70% to 80% range and that her arm disability was about 40%. However, if the skin grafting had been done immediately, as he had recommended, the present disabilities would probably be 20% to 30% better than they are today.
Skin grafting is still possible today and would improve the appearance of Sieni’s hand significantly. Orthopedic surgery is also still an option, but the probability of success would first require special examination and assessment. These operations can be done locally at no cost, except for inpatient charges. However, Dr. Tuato‘o recommended that these procedures, if now undertaken, be done off-island. In this event, surgical expenses would be approximately $50,000, excluding costs associated with a proper recovery and rehabilitation program after each of the surgeries were completed. We also sense, resorting to a slang expression, that the doctor’s "nose was bent out of shape" somewhat by Sieni’s rebuff of his surgical expertise.
Unquestionably, Sieni experienced acute immediate pain from her injury. This fact was vividly substantiated by her and Ipipaea’s testimony. In some mitigation, Dr. Tuato'o explained that while a third-degree avulsion is the most severe, it tends to be less painful than first-degree and second-degree avulsions, which expose nerves and bleed profusely. Certainly, physical pain has persisted, and Sieni has endured considerable suffering over her substantial disability and disfigurement. General damages are assessed at $40,000.
The evidence affirmatively authenticated only four days of hospital inpatient care. Given Sieni’s staunch rejection of skin grafting and Jack of firm total-cost estimates, we are not disposed to award damages for future and, at best, conjectural surgical procedures. Resident inpatient care at the government medical facility is $7.50 per day. Thus, special damages for medical expenses are $30.
Sieni was employed by StarKist Samoa, Inc. when the accident occurred. Her hourly wage was $2.92. She customarily worked 7.5 hours per day, five days per week. As a result of the accident, she did not work from June 29, 1990, until October 17, 1990. It was not until *144Dr. Tuato'o’s examination on September 28, 1990, that she was advised that she could return to work with light duties for the next six months. Based on her usual work-week and taking into account one week of company down-time in July 1990, she missed 547.5 hours of work. At $2.92 per hour, her special damages for lost wages are $1,598.70.
CONCLUSIONS OF LAW
1. Rini and CTS, his employer, are jointly and severally liable for Sieni’s damages for personal injuries. See Saufo'i v. American Samoa Gov’t, 14 A.S.R.2d 15, 19, 22 (Trial Div. 1990); Kim v. Star-Kist Samoa, Inc., 7 A.S.R.2d 12, 15 (Trial Div. 1988), aff’d in part and rev’d in part on other grounds, 8 A.S.R.2d 146 (App. Div. 1988). The comparative-negligence statute, A.S.C.A. § 43.5101, does not alter the common-law rule of joint and several liability in this type of case. See generally 57B Am. Jur. 2d, Negligence § 1243, at 147-48 (1989 & Supp. 1993). This statute cannot be reasonably construed to require apportionment of negligent conduct by a defendant and a non-party so as to reduce a defendant’s liability. See generally 57B Am. Jur. 2d, Negligence § 1239, at 143-44; see, e.g., Peterson v. Pittman, 391 N.W.2d 235, 238 (Iowa 1986); Blocker v. Wynn, 425 So. 2d 166, 168 (Fla. App. 1983).
2. ICP, as CTS’ insurer, is directly liable for $10,000 of Sieni’s damages for personal injuries. A.S.C.A. §§ 22.2003(3)(A), 22.2018.
3. Sieni’s general damages for pain and suffering, including disfigurement, are $40,000, and special damages for medical expenses and lost wages are $1,628.70. Thus, her total damages are $41,628.70.
4. In accordance with A.S.C.A. § 43.5101, Sieni’s damages are reduced by 5%. Thus, she is entitled to receive and is awarded $39,547.27 in damages.
Judgment shall enter accordingly. It is so ordered.
(As corrected per order of October 3, 1993) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486154/ | Opinion and Interim Orders:
Defendant’s motions for reconsideration and continuance and plaintiff’s motion to amend the complaint came regularly for hearing on August 20, 1993. We consider them below.
I. Motion to Amend Complaint
Plaintiff asks the court’s permission to amend its complaint to include the major shareholder and president of Samoan Gases as an additional defendant, under the theory that he is the "alter ego" of *146defendant corporation. Plaintiff provides numerous citations indicating that the court has the authority to allow amendment of a complaint to include an alter ego defendant, if such amendment should be found to be proper. We also note that the doctrine does have its place in admiralty law. See, e.g., Swift and Company Packers v. Compania Colombiana Del Caribe S.A., 339 U.S. 684 (1950); Talen’s Landing, Inc. v. M/V Venture, 656 F.2d 1157 (5th Cir. 1981). But plaintiff has failed to convince us, at this time, that the alter ego doctrine is applicable in the instant case. "Whether a corporate entity will be disregarded depends upon the trial court’s findings of fact." Talen’s Landing, Inc. v. M/V Venture, 656 F.2d at 1160. Plaintiff has not proved such facts .as would be necessary to the application of the doctrine. Contrary to assertions by plaintiffs counsel, the alter ego doctrine is not simply a "collection matter" but is an equitable doctrine which disregards the legal theory upon which "large undertakings are rested, vast enterprises are launched, and huge sums of capital attracted." Anderson v. Abbott, 321 U.S. 349, 362 (1944). As such, it is to be applied cautiously and only upon a proper showing, which has not yet been done. The motion to amend the complaint, therefore, is denied.
II. Motion for Reconsideration of Denial of Summary Judgment
Defendant notes that we misread the previous memorandum in support of its motion for summary judgment.1 We apologize. We also deny his motion for reconsideration.
Having carefully reread, as requested, the memoranda in support of the initial motion and the motion for reconsideration, we find no serious error in the result of our August 3, 1993, opinion and interim orders. While it is true that we misinterpreted the basis of defendant’s initial motion, our further discussion in that opinion on the matter of subrogation supported our ultimate decision. We will restate our reasoning.
. Defendant’s position, as we understand it, is that there are five separate areas of claimed damage: 1) seamen injury and death settlements; 2) seamen maintenance-and-cure payments; 3) repairs for the *147vessel Ocean Pearl; 4) lost profits; and 5) attorney’s fees. Defendant argues that items one and two have been fully paid by the plaintiff’s insurer, transforming the latter into the real party in interest with respect to those two items of damages and thus rendering plaintiff unable to claim them. Defendant would have item three fall into this category as well, but for the fact that plaintiff had to pay a deductible amount of $20,000 or $30,000 on the policy. Defendant then states that the amount of this payment should be treated identically to item four; that settlement payments from other tortfeasors be applied against these amounts pro tanto. The result, by defendant’s calculus, is that plaintiff has received an impermissible "windfall," i.e. a greater amount than its damages.2
Defendant’s arguments fail to persuade. With respect to items one and two, defendant states that we misinterpreted, "without justification, or authority of any kind," Shambley v. Jobe-Blackley Plumbing and Heating Co., 142 S.E.2d 18 (N.C. 1965). Defendant argues that when the Shambley court said that an insurer becomes the real party in interest when it has compensated a plaintiff for its "entire loss," it meant by "entire loss" the entire amount of any single item of damages prayed for by a plaintiff. Therefore, the argument continues, with respect to the first two items of plaintiff’s damages, the real party in interest, and thus the only party entitled to recover these damages, is the insurer and not plaintiff. Defendant seeks to distinguish our citation of Howard v. Smoky Mountain Enterprises, 332 S.E.2d 200 (N.C. 1985), on the basis that it was "about one particular claim," implying that Shambley was, in contrast, "about" more than one claim. We ask defendant’s counsel to read Shambley once again.3
*148Defendant further argues that if "entire loss" means the full amount claimed by a plaintiff, then all a plaintiff would need do to defeat the right of a defendant to confront the real-party insurer would be to invent an additional claim of damages not directly related to the actual loss. However, this approach would make an insurer a necessary party to virtually every action involving an insurance settlement. Confronted by this dilemma, the court chooses to remain with its original holding.
With respect to the third and fourth areas of damages, defendant takes exception to our application of the pro rata rule to the apportionment of damages. Defendant cites a legal encyclopedia for the general statement that damages are to be apportioned pro tanto among joint tortfeasors. However, the rule in this area of admiralty is that damages are to be shared pro rata. Defendant has not attempted to distinguish the cases cited in our previous decision, nor has it cited other applicable case law to the contrary. The practice of law would be easier, and law libraries much smaller, if all legal research could begin and end with Am. Jur. Unfortunately for defendant’s argument, it does not. In this matter, damages are to be awarded in direct proportion to percentage of liability, regardless of the dollar amounts paid by other settling parties.
The motion for reconsideration is, therefore, denied.
III. Motion for Continuance
Defendant has made a motion to continue the remainder of this trial beyond September 13, 1993, stating that it requires additional time to locate and depose witnesses. Defendant professes "complete surprise" that it is required to bear the burden of showing the degree of fault of other alleged tortfeasors. Counsel for defendant have filed a memorandum in support of this motion, in which they have threatened to withdraw from representation if the court does not grant the continuance.
First, it should not be a "complete surprise" to such competent counsel that their client bears the burden of proof of an affirmative *149defense.4 This sudden realization of the law can hardly be "unexpected." This action commenced nearly eight years ago, and there has been more than ample time to prepare an adequate defense. That "[t]he Court gave no indication of its concern or interest in this issue during the trial on liability, or at any time in the hearings in the prior 8 years," as defendant states, is hardly dispositive and barely relevant. The court cannot, at the outset of or during any litigation, inform parties of all of the legal rights and duties involved in their particular theories of the case and litigation strategies. Our legal system assigns such responsibilities to attorneys, not courts.
Plaintiffs June 28, 1993, "Request for Clarification," evinced nothing more than that party’s uncertainty, at that time, of the court’s view of the applicable law.5 Defendant asserts that this document created confusion. Even so, such confusion could have arisen only eight to ten weeks prior to the scheduled conclusion of this trial. In addition, defendant claims to have realized that it carried the burden of proof on this issue on August 3, 1993; thus, if it was indeed misinformed, it was only for a period of five weeks, at most. This time is insignificant in comparison with both the inception of this action in 1985 and the beginning of the instant trial in December of 1992.
Furthermore, the threat by defendant’s counsel to withdraw from defendant’s representation if the court refuses to grant the requested continuance is grossly inappropriate. It evinces a sorely deficient understanding of the ethical and legal responsibility an attorney bears towards his client and to the court. It is also poor trial strategy.
High Court Rule 104, as amended on May 17, 1993, states that the conduct of attorneys in American Samoa shall be governed by the *150American Bar Association Model Rules of Professional Responsibility. Model Rule 1.16 discusses the withdrawal of counsel. It states, inter alia, that an attorney acting without permission from his client must either show good cause for withdrawal or show that withdrawal can be accomplished without a material, adverse effect on the client’s interests. Good cause does not include an inability to persuade a court to rule favorably on a motion. Casting a client adrift on the eve of trial has serious adverse consequences.
Model Rule 1.16(c) states that "[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." See Permissive Withdrawal/Representation, Law. Man. on Prof. Conduct (ABA/BNA) 31:1101 (1984), and cases cited infra. See also Rakhshan v. Fuimaono, 18 A.S.R.2d 77 (Trial Div. 1991). The court has discretion in granting motions to withdraw. See, e.g., Hodcarriers, Building and Common Laborers Local Union No. 89 v. Miller, 53 Cal. Rptr. 251 (1966); Goldsmith v. Pyramid Communications, 362 F. Supp. 694 (S.D.N.Y. 1973). Improper withdrawal of representation may expose counsel to liability for the resultant harm to the client. In addition, any intentional breach of the Model Rules of Professional Responsibility is sufficient grounds for the imposition of disciplinary sanctions. H.C.R. Rule 155.
Setting aside these questionable trial tactics, defendant has plainly not presented any justification to continue the final stages of this trial. The motion for continuance is, therefore, denied. This further trial has been scheduled for September 13, 1993, at 9:00 a.m. Both of defendant’s counsel shall then personally appear.
It is so ordered.
Defendant has retained additional counsel, who appeared on his behalf at the hearing on the present motions and who, from the change in tone and approach, we assume has prepared the concomitant memoranda.
A necessary element in arriving at this solution is that item five (attorney’s fees) are not recoverable. We mention here, to avoid misunderstanding, that we have not yet ruled on the recoverability of attorney’s fees in this action.
We note that counsel was given several days to provide the court with additional authority for its arguments. Since we assume counsel capably researched the matter, the failure to provide such additional authority gives us that much more confidence in our "plain meaning" interpretation of the instant case law, as opposed to defendant’s rather strained interpretation. In the future, when confronted with a valid difference of interpretation, it would be wise for defendant’s counsel to find additional authority for his position, rather than baldly assert plain error on the court’s part. We remind counsel that the court is not *148opposing counsel.
It seems somewhat ironic that the court’s first opinion and interim orders issued on August 3, 1993, rejected plaintiff’s argument that, having failed to raise the affirmative defense of third-party fault, defendant should be precluded from making a showing of such fault at trial.
Defendant’s memorandum suggests that the court and the plaintiff were in collusion, keeping silent as to the issue of burden of proof that they had mutually agreed to place upon the defendant. However, at this time at least, we decline to read into that document any deliberate intent by defendant to make such a serious, grave and blatantly false accusation. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486715/ | OPINION AND ORDER
Trial of this action began on August 23, 2001, and ended the same day in remarkable and dramatic fashion, with defendant Tu'ugaolo Logotaeao (“Tu'ugaolo”) reaffirming her fidelity and pledging tautua (“traditional service”) to plaintiff Tuiagamoa T. Tavai (“Tuiagamoa”) as the sa'o (“senior chief’) heading the Tuiagamoa family of the Village of Malaeola, American Samoa. We memorialize this result, and in the process will summarize the essence of the situation, to encourage lasting effect for the benefit of both parties and counsel.
Tuiagamoa brought this action to evict Tu’ugaola, a member of the Tuiagamoa family, from a portion of the family’s communal land named “Toeleve” in Malaeloa (“the land at issue”), based on alleged lack of *240compliance with her obligations to the sa 'o under the traditional Samoan customs pertaining to the Tuiagamoa family.
Tu’ugaolo initially defended in large measure on a claim that the land at issue is her individually owned land. This Court, however, in a case involving the same parties and issue regarding land ownership, has previously adjudicated the land at issue to be communal land of the Tuiagamoa family. Logotaeao v. Tuiagamoa, LT No. 14-84, slip op. at 3-4 (Land & Titles Div. Nov. 20, 1984).
Moreover, she did not pursue this claim at trial. Accordingly, we need not address this issue further than to recognize the res judicata effect of Logotaeao and to reinforce the holding that the land at issue is the Tuiagamoa family’s communal land.
Tu’ugaolo has lived on the land at issue for most of her life. Her possession is, however, tantamount to a traditional assignment of a family’s communal land by the family’s sa'o. See Coffin v. Mageo, 4 A.S.R. 14, 17 (Land & Titles Div. 1970). Because of that assignment, and as member of the Tuiagamoa family, she is obligated to render tautua (“traditional service”) to Tuiagamoa in order to protect and preserve her right to occupy and use the land at issue. Id.; see also Seventh Day Adventist Church of Am. Samoa v. Maneafaiga, 23 A.S.R.2d 150, 154-55 (Land & Titles Div. 1993); Toleafoa v. Tiapula, 7 A.S.R.2d 117, 120 (Land & Titles Div. 1988).
During the 1970s, Tu'ugaolo and her husband Aofetalaiga Logotaeao (“Aofetalaiga”), now deceased, were strong supporters of Tuiagamoa’s candidacy to fill the then vacant Tuiagamoa title. In the ensuing matai title action, this court awarded the title to the present titleholder. In re Matai Title “Tuiagamoa”, LT No. 1394-74, slip op. at 5 (Land & Titles Div. Dec. 26, 1974). Tuiagamoa and Tu'ugaolo differ in the role and significance of this support, both during the pendency of the title action and the investiture ceremony in its aftermath. The differences are not now, however, an important factual issue.
After Tuiagamoa assumed the title, Tu'ugaolo and Aofetalaiga provided unfailing tautua to Tuiagamoa as the family sa 'o until 1983. Then, in reference to construction of a building, Tu’ugaolo, claiming to own the land at issue as her individually owned land, and Aofetalaiga, as the owner of the building entered an agreement to separate the building from the land at issue, pursuant to A.S.C.A. §§ 37.1501-.1506,, and Tuiagamoa objected. These actions precipitated Logotaeao, LT No. 14-84, and the ultimate declaration of the Tuiagamoa family’s communal ownership of the land at issue. After Logotaeao was decided, ' there was, in Tuiagamoa’s estimation, a precipitous decline in the rendering of *241acceptable tautua by Tu'ugaolo and Aofetalaiga to Tuiagamoa.
Tuiagamoa attributes this backsliding principally to the outcome of the Logotaeao case. He describes the lessening of tautua especially in terms of Tu’ugaolo^ failures on several occasions to obtain his permission as the family’s sa'o for significant construction or remodeling of improvements on the land at issue, and to regularly provide foodstuffs and similar measures of traditional support and respect. He indicates that after Tu'ugaolo left in 1987 to reside outside of American Samoa, except for occasional brief return visits, she essentially ceased to contribute tautua and continually offended the dignity of his office as the head of the Tuiagamoa family.
Tu'ugaolo explains her actions, first saying that she understood from the staff of the Building Branch of the American Samoa Government’s Department of Public Works that the sa'o’s approval signature was not required for the kinds of construction work she had done on the land at issue. She further states that until Aofetalaiga joined her outside American Samoa for health reasons in 1994, he continued to regularly provide tautua to Tuiagamoa, such as providing traditional foodstuffs to him on Sundays, and that since then, she has done her best to provide appropriate tautua to him, within her limited financial resources, when she was notified of family affairs requiring the support of family members.
Nonetheless, after expressing her viewpoint on the situation, Tu'ugaolo apologized to Tuiagamoa and reaffirmed her loyalty to him. She promised to obtain Tuiagamoa’s permission before she undertook any new construction or remodeling activity on the land at issue and appropriately provide tautua to him. Though Tuiagamoa then took issue with certain aspects of Tu’ugaolo’s explanations, he accepted her apology and agreed to permit her continued occupancy and use of the land at issue so long as she kept her promises. Tu’ugaolo stood steadfast by her apology and promises. On this note, we concluded the trial.
Order
Tu'ugaolo shall obtain Tuiagamoa’s consent before she begins new construction or remodeling of improvements on the land at issue. She shall also render tautua to Tuiagamoa to the best of her ability in a maimer satisfactory under the traditions of the Tuiagamoa family Tu'ugaolo shall remain in possession of and have use the land at issue so long as she complies with her promises and fulfills her obligations to the Tuiagamoa title.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486716/ | OPINION AND ORDER
On November 20, 2000, plaintiffs Lila Pefu Pomare (“Lila”), Kaisara Pefu (“Kaisara”), and Asaua Fuimaono (“Asaua”) filed this action to enjoin defendant Anisi Pefu (“Anisi”) from completing the construction of a new building until the court can determine the parties’ rights in the underlying land. The complaint also seeks to void a trust agreement, executed by Pefu Fania (“Pefu”), which provides Anisi with control over the land; to require Anisi to restore about $18,000 of Pefu’s funds; to judicially recognize a deed of a portion of the land by Pefu to Asaua; and to divide the rest of the land among Pefu’s four children.
Pefu’s four children include two sons, Kaisara and Anisi, and two daughters, Lila and Rasela Pefu (“Rasela”). Asaua and Pefu also have a blood relationship — a brother of Pefu’s mother is Asaua’s grandfather.
A hearing was scheduled on December 7, 2000, on the Court’s order to Anisi to show cause why he should not be preliminarily enjoined pending the Court’s final decision in the action from further construction of the building, exercising ownership rights in the land, expending funds from sales of the land, and evicting Lila or her siblings from Pefu’s present *244house on the land and the land. The hearing was postponed several times — to permit Anisi further time to obtain counsel, afford his counsel time to prepare, and accommodate hearing schedules — and was held on February 9, 2001, with the parties and their counsel present. During this interim, we enjoined Anisi from engaging in further construction of the building.
We heard testimony and received other evidence on February 9 and 12, March 12, and May 22, 2001. In the process, we invoked T.C.R.C.P. 65 and consolidated the hearing on the preliminary injunction application with the trial on the merits.
Discussion
A. T .and atTssne
The particular land at issue is a portion of approximately 8.898 acres, named “Mosooi,” located in the Village of Ili'ili, American Samoa. The 8.898 acres was the subject of extensive litigation between Pefu, his brother Sipili Atualevao (“Sipili”) and his nephew Atoa Atualevao (“Atoa”), Sipili’s son. The decisions in Fania v. Sipili, 14 A.S.R.2d 70 (Land & Titles Div. 1990) and LT No. 38-91 (Land & Titles Div. Oct. 21, 1992) (order on application for partition), are quite relevant to the present action. Thus, we take judicial notice of and begin by reviewing these past actions.
B. Previous Litigation
We first summarize the findings in Fania, 14 A.S.R.2d 70. Pefu began to clear a portion of the 8.898 acres in the 1950s. In the 1960s, Pefu permitted Sipili to go on the land, and Sipili and Atoa cultivated the cleared area. During Pefu’s absence on a missionary assignment to Swains Island from 1968 to 1973, Sipili and Atoa extended the cleared area. After Pefu’s return, conflicts arose over claims to the land but were temporarily resolved until Pefu initiated Fania in 1989.
Pefu surveyed 7.567 acres of the cleared land in 1975. Apparently, however, Sipili and the family sa'o (“head chief’) prevailed on him not to register the land. Then, in 1979, Sipili offered to register as his individually owned land his survey of 2.05 acres within the cleared land. Atoa objected, claiming that the land was communal land of Pefu, Sipili, and himself. Upon mediation at the Office of the Secretary of Samoan Affairs, it was agreed that Sipili would withdraw his registration offer, the land would be registered in the names of Pefu, Sipili, and Atoa, and then equally divided among the three of them. This agreement was not, however, carried out.
*245Next, in 1981, Atoa attempted to register Pefii’s 1975 survey as his individually owned land. Sipili objected, complaining of his son’s disobedience and claiming that he cleared the land first. Again, after mediation at Samoan Affairs, the issue was settled by Atoa withdrawing his registration offer. Then, in’ 1983, Sipili offered to register as his individually owned land his survey of 8.67 acres of the cleared land. This time Pefu objected, citing his many years of working the land. He withdrew his objection, claiming that he and Sipili settled their differences, but allowed the title to be registered in Sipili’? name alone. In 1985, Sipili persuaded the Territorial Registrar to amend the registration to show that he and Atoa owned the land in common by misrepresenting that Atoa was an original co-applicant for the 1983 registration offer.
Pefu withdrew his objection to Sipili’s registration offer in 1983 with Atoa’s assurance that the 8.67 acres would be divided between Sipili, Atoa, and himself. He was-unaware of the amendment adding Atoa as an owner with Sipili. In fact, he continued to have free access to the land, constructed a house there with Sipili signing the building permit, and believed the three-way division of the land was in process. He did not discover the actual status of the land until he learned that Atoa was selling parcels of the land without his knowledge and consent. During a verbal altercation in 1989, Atoa told Pefu that Pefu had no interest in the land. Pefu then commenced Fania, 14 A.S.R.2d 70.
The Trial Court in Fania found that Sipili and Atoa fraudulently deprived Pefu of his title in the 8.67 acres and imposed a constructive trust on the proceeds from sales of the land and on the remaining acreage to correct the unjust enrichment resulting from the fraud. 14 ASR 2d at 76-77. The Court also permanently enjoined further sales of the land without Pefu’s consent, and directed the Territorial Registrar to reregister the title to the land in the names of Pefu, Sipili, and Atoa as tenants in common to reflect their original agreement on ownership. Id. The Appellate Division affirmed this decision. See generally Sipili v. Fania, 17 A.S.R.2d 96 (App. Div. 1990).
The Fania Trial Court left any division of the proceeds from the land sales and of the remaining land to Pefu,. Sipili, and Atoa. However, they failed to amicably settle these matters, and in 1991, Pefu commenced LT No. 39-91 to require partition-of the tenancy .in common. Lengthy efforts, including those promoted by the Court, still did not result in voluntary resolution of the issues. Thus, by order entered on October 21, 1997, the Court imposed a solution.’ Under this order, Pefu was awarded 2.647 acres of the cleared land. The full size of the cleared land was 8.898 acres under the survey then before the. Court. Sipili and Atoa were given the remaining land as tenants in common, subject to existing *246encumbrances and other rights of third parties. In addition, Sipili and Atoa were held jointly and severally liable to Pefu in the sum of $18,032.80, plus 6% post-judgment interest, as Pefii’s share of the proceeds from the prior land sales. The parties were also ordered to obtain at their own expense legal descriptions for registration of their allotted parcels. The stage was then set for the current legal controversy.
C. Current: Controversy
In the first place, lacking a complete legal description, Pefu has never registered the 2.647 acres awarded to him. Likewise, Sipili and Atoa have not registered the portion awarded to them as tenants in common. This lack of proper follow-up, for whatever reasons, appears to be habitual of the parties to the present action as well as the feuding relatives in the earlier actions.
On March 15, 1990, two days after the decision in Fania was entered, Pefu executed an affidavit expressing his intent to convey to Asaua at least a half-acre within the 8.67 acres. Pefu’s affidavit stated that he wanted to reward Asaua for his financial and moral support and legal advice in winning a share of the land. Asaua is an attorney. He testified that, as Pefu’s relative, he provided Pefu cash, food and other items from time to time, and arranged for Pefii’s legal representation in the 1989 land case. It is also stated in the affidavit that, in the immediate presence of Asaua and Kaisara, Pefu had already pointed out the location of the half-acre to be conveyed. Lila was aware of Pefu’s action, but she was in the nearby house at the time and did not directly witness Pefu’s designation of land for Asaua. Though Pefu’s 2.647 acres were still not precisely defined, the identified half-acre was near the house where Pefu lived and still lives and was well within the apparent location of Pefu’s 2.647 acres. Asaua testified to this demonstration.
According to Asaua, a half-acre was surveyed in February 1991 pursuant to Pefu’s instructions. On March 1, 1991, Pefu executed a deed conveying the half-acre to Asaua. Asaua knew as an attorney, of course, that he could not register his title to the half-acre until the title to Pefu’s 2.647 acres was registered as Pefii’s individually owned land. Asaua did not vigorously pursue the registration issue until now. He testified that he felt unwelcome at Pefu’s house after Anisi, Pefu’s eldest son, returned to American Samoa in 1995. He had, in 1994, prepared Pefu’s power of attorney giving Kaisara authority to conclude the pending litigation and perfect the title to Pefii’s 2.647 acres. Otherwise, however, he let the matter languish until the present situation arose last year.
Anisi was a career soldier, having enlisted in the U.S. Army in 1974 and retired in 1995. He regularly provided support from his military pay for *247his parents when both were living and then for his father after his mother died. It is evident that upon his return in 1995, he took over care of Pefii’s personal needs, though not by any means exclusive of the contributions of Kaisara and particularly Lila. Anisi did, however, take control of Pefii’s affairs. In addition, friction developed between Anisi on one hand and Kaisara and Lila on the other, and the alienation remains in the picture.
Anisi either was unaware of or disregarded the power of attorney given to Kaisara. He certainly knows of this document now and testified that, not long after his return in 1995, Pefii told Anisi that he did not trust Kaisara, feared that Kaisara would sell his 2.647 acres, and wanted Anisi to handle all of his affairs.
Kaisara claimed that he wanted to avoid further confrontation with Anisi, and he moved to Hawaii, at least in part for this reason, where he has lived since the mid-1990s. . By his relocation to Hawaii, Kaisara voluntarily abandoned his authority to act for Pefii under the 1994 power of attorney — having left on his own accord, Kaisara’s power of attorney was effectively terminated and could not be restored without Pefii executing a new power to him. See Fletcher v. Matthew, 448 N.W.2d 576, 581 (Neb. 1989) (power of attorney creates an agency relationship); Prezier v. Dudley, 314 P.2d 138, 144 (Cal. App. 1957) (an agent who abandons the principle or his duties as an agent has terminated the agency relationship); 3 Am. Jur 2d Agency § 49 (2000) (an agent conducting himself in a manner incompatible with his duties as an agent can be found to have willfully terminated the agency relationship).
Anisi also treated Lila at least irreverently. In 1994, Lila took Pefii to the states for a visit lasting approximately a year. Not long after she and Pefii returned, Anisi compelled Lila to leave the home on the 2.647 acres where she was living with him and Pefii. Lila attributed Anisi’s conduct to his disrespect of her religious practices, but he claimed that she irresponsibly disregarded his instructions on housekeeping and Pefii’s personal care. There have been at least two other occasions of similar sparring, the latest occurring last year. Anisi also refused to participate in Lila’s recent wedding. She now lives with her husband in another structure within the 2.647 acres. During the trial, Anisi also falsely intimated that Pefii was not Lila’s natural father.
We have no doubt that each of the three siblings contributed to the estrangement between Anisi on one side and Lila and Kaisara on the other. However, based on their demeanor throughout the trial, it is apparent that Anisi has a strong adversarial attitude towards his sister and brother and was the principal antagonist in causing the continuing rifts among them.
*248In this background of strained relationships, the cause of the present litigation erupted in 2000. Anisi started to construct a house apparently within the half-acre that Pefu conveyed to Asaua in 1991. Lila, Kaisara, and Asaua then learned of other actions taken by Anisi.
First, on April 10, 1998, Pefu, as grantor, and Anisi, as trustee, signed a trust agreement. Under this agreement, title to the 2.647 acres, improvements on the land, and the furniture and furnishings in Pefu’s home were transferred to Anisi. Relevant to this action, AnfSi, as trastee, must pay any income derived from the trust to Pefu for life, and may apply the principal of the trust as Anisi, in his discretion, deems necessary to provide for Pefu’s support. In essence, Anisi was given full authority to enter transactions regarding the 2.647 acres within the parameters of this direction for Pefu’s care. Anisi testified that the attorney who prepared the trust agreement explained in the Samoan language all the terms of the agreement to Pefu, and that Pefu understood the terms. Although, on May 28, 1998, the Attorney General advised the Territorial Registrar to withhold registration of the trust agreement until the 2.647 acres was registered, the trust agreement was recorded on November 18, 1999. We have no evidence on the reason the Registrar disregarded the Attorney General’s recommendation.
Second, on January 6, 2000, Pefu signed a power of attorney giving Anisi broad authority to conduct Pefu’s affairs, including transactions affecting the 2.647 acres. Anisi testified that this power of attorney replaced one that Pefu gave him upon his return in 1995 so that Anisi rather than Kaisara would handle Pefu’s affairs. Anisi testified that the second power of attorney was necessary because the first one became wet and unreadable.
Third, on August 22, 2000, Pefu signed a warranty deed conveying to Anisi 0.133 of an acre, ostensibly within Pefu’s 2.647 acres. The 0.133 of an acre appears to be substantially within the one-half acre that Pefu deeded to Asaua in 1991. Anisi testified that the house he had under construction on the 0.133 of an acre would be Pefu’s new home for the rest of his life. Anisi claimed that he made plans to build this house even before he retired, and that after returning in 1995 he discussed his plans with Pefu, who then approved this project.
Lastly, Sipili or Atoa, or both of them, paid to Anisi the $18,032.80 that the court required them to pay Pefu as his share of the proceeds of sales of portions of the 8.898 acres prior to the Court’s order of October 21, 1997. There is no evidence on whether or not the amount actually given to Anisi included the amount of the 6% interest accruing after October 21, 1997. Anisi testified that he spent .$6,000 to repair a vehicle Anisi owns but was imported for Pefu’s use, $6,000 to repair Pefu’s house, and *249most of the balance on family affairs, emergencies, and attorney’s fees. He did not recall if any amount remained unexpended. Anisi claimed that Pefu wanted to buy a new vehicle, but Anisi felt that other needs had priority. Anisi denied contracting for the sale of any portions of the 2.647 acres and receiving funds from any such transactions.
Pefu’s mental state when he entered these recent contractual transactions is of serious concern. Evidence is present that Pefu lacked the mental capacity to contract or was unduly influenced, or both, when he signed the trust agreement naming Anisi as trustee, made Anisi his attorney in fact, and conveyed the 0.133 of an acre to Anisi.
D. Mental Tncapacily to Contract
Mental capacity to contract is presumed until it is proven by a preponderance of evidence that actual unsoundness of mind existed at the time of contractual act. 53 Am.Jur.2d Mentally Impaired Persons, § 5 at 161 (1996). The legal standard is whether the person fully understood the nature, purpose, and effect of the particular transaction. Id. at 160.
Pefu is now about 88 years of age. When Fania was an active action during 1989 and 1990, Pefu was apparently in reasonably good mental health. Asaua and Kaisara supported that action and, based on age alone — then about 77 years — we do not doubt that Pefu required some encouragement and assistance to pursue that action successfully. However, Pefu testified during the trial in January 1990. His signatures on documents in the Court’s Fania file appear to be clear and firm. Nothing in the court records suggests that Pefu’s mental condition had significantly deteriorated before or during the course of the proceedings in Fania.
Similarly, the evidence does not show any marked degeneration in Pefu’s mental faculties when he signed the affidavit expressing his intent and reasons for conveying the one-half acre to Asaua in 1990 or when he signed the deed carrying out that intent in 1991. Likewise, the evidence indicates that Pefu remained mentally alert when he commenced LT No. 38-91 to partition the 8.898 acres later in 1991. It may be noteworthy that while Pefu was present during the trial of LT No. 38-91 in October 1997, he did not testify. Anisi was then Pefu’s only lay witness on personal and family matters. The decision not to have Pefu testify may have been solely trial tactics. On the other hand, it may confirm other evidence of Pefu’s lessening acumen during the intervening and subsequent years.
It is noteworthy that Pefu’s signature has degenerated over time. His signatures affixed to the power of attorney to Kaisara in 1995, trust *250agreement in 1998, and especially to the power of attorney and deed to Anisi in 2000, while legible, are visibly shaky. The gradual deterioration is evident.
The testimonial evidence on Pefu’s mental state is directly conflicting. Pefu’s children did agree that Pefu suffers from loss of hearing. It appears that this condition started to develop many years ago. At one time, Pefu used a hearing aid, but apparently he has refused to use one for some years, perhaps since 1995 or so. Anisi and Rasela Pefu, another sister, said that Pefu can read lips. Lila stated that Pefu does not understand what others are saying to him unless the message is written and simple. In any event, the siblings usually communicate with Pefu by writing notes, using sizeable printed letters.
Lila testified that beginning in 1995, Pefu became very deaf and showed signs of senility that is characterized today by repeated and random statements, misconception of communications, walking about aimlessly, and similar inappropriate behavior. She also asserted that Anisi yells and swears at Pefu, and Pefu now fears Anisi. Anisi denied that Pefu fears him and claimed he has always treated his father with utmost respect.
Anisi testified that he usually communicates with Pefu by means of written notes that Pefu understands. He also said that Pefu knows where he is when they drive around the island, knows what he is eating, uses the bathroom properly, though he takes about two hours to shower, can read Anisi’s lips, and is otherwise aware of immediate circumstances. Anisi emphasized that he, not Lila, is constantly taking care of Pefu. Lila pointed out, however, that after Anisi returned in 1995, he was enrolled at the American Samoa Community College for awhile, frequently played golf, and was off-island due to illness for about a month, dining which times she was Pefu’s primary caretaker. She also pointed out that Anisi spends considerable time in such activities as playing golf and bingo. Lila insisted that Anisi prevents her from helping more with Pefii’s care, and when she and Anisi are together, Anisi is frequently contentious with her.
Rasela, Lila’s and Anisi’s sister, gave her opinion that Pefu needs close attention and is forgetful due to his elderly age, but that he is still aware of his surroundings, eats and bathes without much help, and responds appropriately to written notes. She confirmed that Pefu also can read lips. She also indicated that Pefu did not attend the trial because he experiences back pains if he sits too long and was not well in general. To Rasela’s knowledge, Anisi has never mistreated Pefu. She believed that Pefu trusts Anisi.
Beginning at least in 1995, Pefu has manifested signs of progressive *251mental deterioration associated with old age, commonly referred to as senile dementia when unsoundness of mind sets in. See 10 Am. Jur. Proof of Facts 374-77 (1961). The evidence does not, however, sufficiently preponderate to establish that Pefu’s mental condition reached the stage of actual incompetency at the time he favored Anisi with a power of attorney in 1995, the trusteeship in 1998, and a second power of attorney and the land deed in 2000. It appears that Pefu was fully aware of and understood the nature and effect of those transactions.
E. Undue Influence
As a general rule, the making of a contractual transaction is presumed free of undue influence until it is established by a preponderance of evidence that unfair persuasion was actually exerted. 25 Am. Jur. 2d Duress and Undue Influence § 38 (1996). A presumption of undue influence arises, however, when the parties to an improvident transaction have a confidential or fiduciary relationship. Id. Once interjected, the presumption can be rebutted only by clear and convincing evidence. Id. at § 40. The legal standard is whether the questioned act was done by a person who had lost his free will and would not have entered the transaction but for another imposing compulsion. Id. at § 30.
The parent-child relationship can constitute the type of confidential relationship necessary to show undue influence. Id. at § 38; 13 A.L.R.3d 381 (1998). The situation in this case is fairly characterized in this manner. Clearly, Anisi returned from military service bound and determined to take over his father Pefu’s personal care and affairs, essentially to the exclusion of his siblings Lila and Kaisara. Undoubtedly, Anisi was motivated by good intentions and had in mind Pefu’s best interests. However, when Anisi unilaterally took on this role in Pefu’s life, he necessarily assumed Pefu’s confidence and a mantle of fidelity in the conduct of Pefu’s affairs.
Anisi systematically went about solidifying his authority over Pefu and his affairs. The power of attorney in 1995, immediately substituting Anisi for Kaisara as Pefu’s attorney in fact, the trust agreement in 1998 giving Anisi as the trastee further authority over Pefu’s 2.67 acres and other property, and the second power of attorney in 2000, ostensibly replacing the physically spoiled first power of attorney, attest to his efforts. Using his authority, Anisi then, also in 2000, obtained Pefu’s signature to the deed of 0.133 of an acre to Anisi without any monetary consideration.
Under these circumstances, a presumption of undue influence unfolds with respect to all four transactions, the two powers of attorney, trust *252agreement, and land deed. Even without the presumption, however, it is readily apparent that Anisi used undue influence to gain Pefu’s acquiescence to these transactions. Though we find that Pefu had not totally lost his mental competency at the time of any of the four transactions, Pefu had clearly reached a stage of mental and physical weakness due to his advancing age. Pefu lacked independent advice and was vulnerable to external pressures and unfair persuasion. Anisi was singularly focused on controlling Pefu’s life and used his domineering personality to secure his objectives. *
We hold that Pefu was unable to resist Anisi’s oppressive insistence and entered the four transactions as a result of Anisi’s undue influence. The remedy to cure the unjust consequences of undue influence is to undo the transactions. 1 B.E. Witkin, Summary of California Law Contracts § 423 (9th ed. 1987). We therefore rescind the four transactions, the power of attorney in 1995, trust agreement entered on April 10, 1998, second power of attorney granted on January 6, 2000, and the land deed executed on August 22, 2000.
F. 1991 Land Deed and Unfinished House
Strictly, Pefu as a tenant in common with Sipili and Atoa had no legal right, without the co-tenants’ consent, to convey to Asaua any specific or distinct portion of the 8.67 acres in 1991. 20 Am. Jur. 2d Cotenancy and Joint Ownership § 107 (1995). However, as an equitable principle, title to a tract of land held jointly may still inure to the grantee of such a conveyance in the event the tract is partitioned to the grantor in subsequent proceedings and if recognition of the prior conveyance can be done without prejudice to the other co-tenants. See Seavey v. Green, 1 P.2d 601, 603 (Or. 1931); Annotation, Grant of Part of Cotenancy Land, Taken from Less Than All Cotenants, as Subject of Protection through Partition, 77 A.L.R.2d 1376 (1961). If the half-acre conveyed to Asaua lies within the Pefu’s partitioned 2.647 acres, as appears to be the case, we do not find prejudice to Sipili and Atoa or any other impediment to equitable recognition of the transfer in light of the judicial partition in 1997.
Anisi claims that he intends to provide Pefii with a new home for remainder of Pefu’s life in the house under construction within the rescinded deed of 0.133 of an acre unjustly transferred to Anisi. The unfinished house also appears to be within the half acre deeded to Asaua on March 1, 1991. Construction of the house is well along to completion, and under the circumstances, it may be inappropriate and unnecessary to fully thwart Anisi’s intent. It appears that Asaua’s half-acre can be resurveyed and relocated within Pefu’s 2.647 acres outside of the new house site. We will, therefore, further enjoin the construction of the new *253house only long enough to complete the survey work described below and determine the feasibility of mutually accommodating both the new house site and the half-acre within Pefu’s 2.647 acres.
G. Restitution
We are unable to satisfactorily ascertain, on the basis of Anisi’s imprecise accounting, and lack of any other definitive evidence, whether Anisi expended for his own devices some portions, and if so how much, of the $18,032.80 paid to him by Sipili or Atoa as Pefu’s share of the proceeds from previous sales of parcels within the 8.67 acres. We are satisfied that Anisi spent some of the funds for selfish ends. However, it is probably a practical impossibility at this juncture without any retained records to order Anisi to provide an adequate accounting or any other means to fix an amount of restitution for improper expenditures.
We will, therefore, only require Anisi to obtain, at his expense, from L.P. French, the professional surveyor who did the survey work prerequisite to the partitioning in LT No. 39-91, the completed legal description necessary to record Pefu’s 2.647 acres as directed by the court’s partition order of October 21, 1997. The survey shall also depict the location of the new house under construction and surrounding 0.133 of an acre, and the potential relocation of the one-half of an acre conveyed to Asaua within the 2.647 acres but outside of the 0.133 of an acre. This survey work must be done expeditiously.
Order
1. The power of attorney granted by Pefu to Kaisara in 1994 is terminated
2. The power of attorney granted by Pefu to Anisi in 1995, the trust agreement entered on April 10, 1998, under which Pefu designated Anisi as trastee having management and control of Pefu’s 2.647 acres and other property, the power of attorney granted by Pefu to Anisi on January 6, 2000, and the deed of August 22, 2000, under which Pefu gave 0.133 of an acre within Pefu’s 2.647 acres to Anisi are rescinded.
3. Pefu’s deed a half-acre to Asaua, to the extent it is within Pefu’s 2.647 acres, is valid.
4. Anisi shall, at his expense, employ professional surveyor L.P. French to complete the previously undertaken survey work and legal description necessary for recording with the Territorial Registrar of Pefu’s 2.647 acres. The completed survey shall depict the location of the new house under construction and surrounding 0.133 of an acre, the location of the *254half-acre conveyed on March 1, 1991, by Pefu to Asaua, and the potential location of the resurveyed half-acre within the 2.647 acres but outside of the 0.133 of an acre. The survey shall be completed, paid for, and filed with this court within 120 days of the entry of this order. Upon receiving the completed survey, the court will schedule a hearing to consider further appropriate orders in this action.
5. The temporarily enjoined construction of the new house is now permanently enjoined until further order of the court.
6. The Clerk of the Court shall cause this opinion and order to be served on the Territorial Registrar.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486719/ | OPINION AND ORDER
Following the trial of these consolidated actions on July 13 and 14, 2000, the Court’s Opinion and Order was entered on August 3, 2000. Plaintiff Faumuina Suafa'i Satele (“Faumuina”) filed a timely motion for reconsideration or new trial. We heard this motion on August 31, 2000, and granted partial reconsideration without a new trial on November 6, 2000. Defendant Tautolo Galosa (“Tautolo”) then filed a timely motion for reconsideration or new trial. We heard this motion on February 15, *2632001, and granted a limited rehearing on March 1, 2001. The rehearing was held on April 23 and 27, 2001. Then, on June 28, 2001, we inspected the land at issue. All counsel were present at the hearing and site inspection.
Discussion
We initially held that as between Faumuina and Tautolo, the entire land at issue, named “Agaoleatu” and located on the Island of Aunu'u, American Samoa (“the land at issue”), was the Tautolo family’s communal land. We reconsidered this finding, following Faumuina’s motion for this purpose, and revised the decision to hold that a particular portion of the land at issue was the Faumuina family’s communal land. We were then persuaded, upon Tautolo’s motion for reconsideration or new trial, that further evidentiary development was required on the specific factual issue of how the Faumuina family acquired title, if any, to any portion of the land at issue, as claimed by Faumuina and disputed by Tautolo.
At the time of granting filis limited evidentiary hearing, the only associate judge previously serving on the panel for this case had fully retired to become a newly selected Senator in the Legislature of American Samoa. A new panel of associate judges was therefore constituted for the evidentiary rehearing. We further apprised the parties that the new panel of judges would review the entire record, and that we would amend or make new findings of fact and conclusions of law, as may be appropriate, and issue a new decision.
The newly constituted Court has considered the evidence presented at the evidentiary rehearing, its inspection of the land at issue, and the record of previous proceedings. We are persuaded that the Court’s decision in effect upon entry of the Order Partially Granting Motion for Reconsideration and Denying New Trial on November 6, 2000, is correct with respect to the ultimate holding of the Faumuina family’s title to a portion of the land at issue as its communal land.
It is now clear to us, however, that the Faumuina family did not acquire this portion of the land at issue from a Tautolo titleholder, but rather that a Faumuina titleholder on the family’s behalf acquired this portion of the land, principally for the titleholder’s sleeping quarters during visits to Aunu'u, in the customary maimer of the time, by authority higher than the Tautolo title within the historical matai hierarchy of the original settlers of Aunu'u. We therefore reaffirm the Faumuina family’s ownership of this portion of the land at issue as its communal land in accordance with the court’s decision that became effective on November 6, 2000.
*264We are also persuaded that the Tautolo family originally came upon the land at issue, or the remaining portion of the land at issue, in a similar historical manner, perhaps even before the Faumuina titleholder was there. However, even if this occupancy preceded the Faumuina family’s presence on the land at issue, the Faumuina family was given the right, by customary means, to succeed to the portion of the land at issue where the former Faumuina sleeping quarters and now a former Faumuina ’titleholder’s grave are located, which we hold to be the Faumuina family’s communal land. The Tautolo matai title is of lesser rank among the matai of Aunu'u and in relation to the Faumuina matai title in the county and territory.
Eventually, however, a Tautolo titleholder permitted members of the Fa'i family to share use of the remaining portion of the land at issue that the Tautolo family occupied after Faumuina titleholder entered the scene. The Tautolo and Faumuina families are not blood related. Neither are the Tautolo and Fa'i families. However, the Fa'i family is blood connected with the Faumuina family and owes ultimate allegiance to the Faumuina titleholder.
Nonetheless, the Tautolo and Fa'i families have, for the most part over a long period of time, lived together peacefully and harmoniously under this shared occupancy and use arrangement. The houses and other structures of both families on the remaining portion of the land at issue attest to this mutual accommodation. These improvements are also interspersed to an extent that defies finding any logical pattern of present control by either family of large contiguous portions of the remaining portion of the land at issue. Under these circumstances, while we are not satisfied by a preponderance of the evidence that the remaining portion of the land at issue is the Faumuina family’s communal land, we are also not satisfied that this remaining portion continues to be solely the Tautolo family’s communal land.
We are not about to create or recognize a new form of communal land ownership that might be styled, in common law terms, as a tenancy in common of two or more families. Rather, under the evidence, we only find that the Tautolo and Fa'i families have mutually assented to jointly or commonly occupy and use the remaining portion of the land at issue. On this basis, we will direct a proportionate sharing of the rent paid by the American Samoa Power Authority (“ASPA”) under the leases for the water well and refuge disposal sites within the remaining portion of the land at issue. Evaluating the extent of occupancy and use by each family, we will direct ASPA to pay 60% of the rent to Tautolo and 40% of the rent to the Fa'i family.
During these proceedings, Faumuina surveyed and offered for title *265registration approximately 6.301 acres of the land at issue. The Faumuina survey encompasses the portion of the land at issue that we are holding to be the Faumuina family’s communal land. It also encircles ASPA’s well site, but not ASPA’s refuge disposal site. There were no objectors to Faumuina’s offer to register the title except by Tautolo. In addition, though generally described, we left, in our order of November 6, 2000, the precise location of the boundary between the Faumuina family’s communal land portion of the land at issue and the remaining portion of the land at issue undetermined until the parties successfully negotiated the boundary location or we established the location should the negotiations fail, and necessary resurveying was done. Accordingly, the Faumuina family’s communal land, as determined by this decision, may be registered but only after the exact boundary issue is resolved.
Tautolo surveyed the entire land at issue, approximately 23.333 acres, but he has not yet offered to register the title. The Tautolo survey surrounds both the water well site and refuge disposal site. As of now, we will not, and cannot on the evidence presented, determine the ownership of the land at issue outside the portion recognized as the Faumuina family’s communal land, either within or outside of Faumuina’s survey. Therefore, no one may register the remaining portion of the land at issue at this time. Tautolo can, of course, offer to register the title to the remaining portion of the land at issue included within his present survey and attempt perfect his claim of title by this means.
Order:
1. As between Faumuina and Tautolo, the portion of the land at issue where the foundation of former sleeping quarters of Faumuina titleholders and a former Faumuina’s grave are located is the Faumuina family’s communal land.
2. Faumuina and Tautolo are directed to attempt to agree on the exact location of the boundary between the area determined to be the Faumuina family’s communal land and the remainder of the land at issue, and if they reach agreement, to have this boundary surveyed, each paying one-half the cost. If they are unable to agree on the boundary within 90 days of entry of this order, we will determine this boundary, provided that Faumuina or Tautolo, or both of them, at their respective cost, submit a survey of his proposed boundary.
3. The Tautolo and Fa'i families may continue indefinitely to jointly occupy and use the remaining portion of the land at issue.
4. ASPA shall divide and pay the accrued and future rent for the water well site and disposal site on the remaining portion of the land at issue as *266follows: (a) 60% to Tautolo; and (b) 40% to the Fa'i family.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486721/ | OPINION AND ORDER
Introduction
This longstanding matter had its beginnings in May 13, 1998, when Tuilefano M. Vaela'a (Tuilefano) filed his claim to succession to the vacant matai title Mauga of Pago Pago. The Territorial Registrar posted the claim publicly for the requisite 60-day period in accordance with the requirements of A.S.C.A. § 1.0406. The claim in turn drew the filing of succession counterclaims from Valentino Mauga Taufa'asau (“Taufa'asau”) on July 10, 1998; from Utaifeau Tasi Mauga Asuega (“Utaifeau”) and Fanene Fetaiaiga Kava (“Fanene”) on July 13, 1998; and from Lavea Seali'iutu F. Mauga (“Lavea”) and Mailo Atonio (“Mailo”) on July 14, 1998.
The Territorial Registrar then referred the matter to the Secretary of Samoan Affairs who duly convened the parties for settlement conferences pursuant to A.S.C.A. § 43.0302. Without a family settlement, the Secretary of Samoan Affairs certified an irreconcilable dispute to the Land and Titles Divisions under A.S.C.A. §43.0302(a).
Trial commenced herein on February 28, 2000,1 with the evidentiary presentation of the parties concluded on March 3, 2000. However, on March 6, 2000, the date and time anticipated for rebuttal evidence and final arguments, the parties jointly requested the Court to postpone the proceedings to allow them one more opportunity to attempt a family *272resolution. Given the relative importance of the matai title Mauga,2 the motion was granted, and the proceedings adjourned sine die, with the high expectation of a fa 'a Samoa conclusion.3
The effort was to no avail. The communal will to move forward and select a new Mauga titleholder was, it seems, nonexistent or, at best, feeble from the outset. After some six months of family inertia, one of the parties felt compelled to file a motion to reinstate judicial proceedings citing the family’s unwillingness to at least call a meeting as previously represented to the Court. The motion was denied and the parties were advised that the Court would not reconvene unless the family met, as promised, to meaningfully reconsider a successor matai. Following a further four months of family inaction, one family member then took it upon himself to publicly advertise the calling of a family meeting. This action finally prompted a family gathering at Gagamoe4 on February 3, 2001.5 As above noted, the extrajudicial exercise proved futile.
Discussion
The Court, having heard the evidence and considered the parties’ post-trial written arguments, makes the following findings pursuant to the criteria set out in A.S.C.A. § 1.0409:
1. Hereditary Right — A.S.C.A. § 1.0409(c)(1)
In the vast majority of matai title disputes before the Court, a candidate’s hereditary right has been calculated by tracing his lineage to *273his nearest ancestor holding the title. See In re Matai Title Leiato, 3 AS.R.2d 133, 134 (App. Div. 1986). This formula was almost universally applied until 1984 when the Court in In re Matai Title Sotoa, 2 A.S.R.2d 15 (Lands & Titles Div. 1984), suggested an alternative method of calculation as being more desirable. Under the rale in Sotoa, a candidate’s blood relationship is to be determined'by reference to his relationship to the original titleholder, and not by descent to the nearest past titleholder.6 The Court’s reasoning was that “every new titleholder does not start a new line of heredity.” Id. at 15.7
The Sotoa rale, however, is not of general application, particularly where family genealogical understanding is contentious, In re Matai Title Lolo, 25 A.S.R.2d 175, 176 (Land & Titles Div. 1994); In re Matai Title Tuaolo, 28 A.S.R.2d 137, 140 (Land & Titles Div. 1997), and where family history suggests a contrary tradition and understanding of entitlement. In re Matai Title Tauaifaiva, 5 A.S.R.2d 13, 14 (Land & Titles Div. 1987); see also In re Matai Title La'apui, 4 A.S.R.2d 7, 10 (App. Div. 1987) (Murphy, J., concurring) (“Whether a family traces hereditary rights directly to the original title holder or to the last living holder of the title is ... a matter of custom and tradition.”).
With the matter at bar, we note that in past Mauga succession disputes before the Court, hereditary entitlement was determined by using the traditional formula, namely, percentage of a candidate’s blood relationship to a former titleholder, as opposed to the original titleholder. See Asuega v. Manama, 4 A.S.R. 616, 624 (Trial Div. 1965); Sialega v. Sal, MT No. 04-82 (Land & Titles Div. 1983). Secondly, contemporary Mauga family history suggests two family branches separate and distinct to the lineage established by the original titleholder Mauga Mulivai. See Asuega, 4 A.S.R. at 625. Further, it is clear on the evidence that this family development evolved prior to the establishment of the government and the enactment of A.S.C.A. § 1.0409(c), which restricts eligibility only to those candidates with blood ties. As this Court previously noted in In re Matai Title “Mulitauaopele”, 16 A.S.R.2d 63, 82-83 (Land & Trial Div. 1990), the legislative adoption of the “best hereditary criterion of § 1.0409(c) did not empower the Court to disenfranchise a family line *274who obtained the title hundreds of years prior to the enactment of the [A.S.C.A. § 1.0409(c)], even if the title was not acquired through blood.”
Using then the familiar rale of heredity, we find that Taufa'asau is the son of Mauga Iulio Taufa'asau, and is therefore 1/2; Lavea is the grandson of Mauga Palepoi and is therefore 1/4; Tuilefano is the great-grandson of Mauga Lei and is therefore 1/8; Utaifeau is also descended from Mauga Lei, who is his second great-grandfather, and is, therefore, 1/16.
Mailo’s blood claim of 1/16, given by tracing his relationship to the original titleholder Mauga Mulivai, is problematic. While there was little dispute from the other parties as to Mailo’s entitlement,, and while the evidence showed that Mailo family members have participated in past affairs of the Mauga family, we find that while Mailo is entitled, his claim, however, to 1/16 entitlement is unsupported. His claim of heredity makes him the second great-grandson of the original titleholder. This is implausible when viewed against the intervening generations attested to by genealogy supplied by the other parties. Moreover, Mauga family history, as alluded to by Mailo, pegs the original titleholder Mauga Mulivai to a time frame around the conclusion of the Tongan wars, circa A.D. 1600.8 (See Mailo’s Closing Arguments, at 7.) There are clearly generational gaps in the family tree supplied us. Moreover, Mailo’s pedigree also lists an intervening titleholder, Mauga Sivauea Sagaiga, a view which is singularly held and conspicuously at variance with the genealogy submitted by the other candidates. While widely varying versions of family history are not uncommon in matai title disputes, especially when dealing with oral tradition that approaches the realm of legend, the discrepancy in this instance is . nonetheless noteworthy.
We conclude on this criteria that Taufa'asau prevails over Lavea, who prevails over Tuilefano, who prevails over Utaifeau, who prevails over Mailo.
2. Clan Support — A.S. C.A. § 1.0409(c)(2)
On this issue, the parties are in agreement on the number of clans; there are three. The evidence further bears out another important point of consensus; that is, the Mauga clans, as they are known today, are not defined in terms of the lineage(s) started by children of the original titleholder. Although there is some divergence in view as to labels assigned to identify each clan, the evidence clearly shows common *275awareness of three distinct family branches labeled in terms of geographic distribution. Conveniently, reference was freely made to one family branch identified as being those pertaining to Gagaxnoe, while another as being those family members pertaining to Siufaga, and yet another as being those family members pertaining to Maiva. Each of these locations also contains a family guest-house site.
The Gagamoe side gave rise to titleholders from the lineage established from Mauga Mulivai, the reputed original titleholder; the Siufaga side identifies those from the Mauga Pulumatala line, who are said to have obtained the title as a reward for past heroic service; while the Maiva side, identifies those from the Mauga Manuma line which came into being through adoption. See generally Asuega v. Manuma, 4 A.S.R. 616.
While there were many family meetings’ called to select a matai, none of these meetings produced a majority of clan support for any one candidate. If there was anything to be seen from the evidence on the issue of clan support, it is that family meetings were not exactly utilized to select a successor matai. With each unyielding stance taken, the goal at these family meetings simply appeared to be ensuring against a family consensus on any one candidate. Indeed, some candidates did not even bother to attend any pre-court family meetings, while others attended only sporadically. Moreover, the parties’ exercise in continuing judicial proceedings in this matter proved to be nothing more than unproductive posturing as family meetings were not even called until there was prodding from the Court.9
*276We find that no candidate garnered the support of the majority of clans of the Mauga family.
3. Forcefulness, Character and Personality, and Knowledge of Samoan Customs —A.S.C.A. § 1.0409(c)(3)
Under this criterion, evaluation and assessment of the candidates is necessarily a comparative exercise, varying in emphasis from case to case. The task is not always easy especially when presented with a slate of very capable people, while at the same time the Court is statutorily directed to examine personal traits that, in part, appeal to personal observation. See Reid v. Tafalele, 4 A.S.R. 458, 463-64 (Trial Div. 1964); Fagau v. Tulei, 4 A.S.R. 490, 493 (Trial Div. 1964); Asuega v. Manuma, 4 A.S.R. at 629 (The Court’s consideration includes “personal demeanor, presence of mind, the clarity, speed and correctness with which answers were given, candidness, the ability to stand up to rigorous cross-examination, the education, the self-confidence, and other qualities which are reflected from the speech and behavior of the candidates, matters which can be assessed only from the personal observation of each individual candidate . . . .”). However, “[(leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai are some of the factors which aid in meeting this criterion.” In re Matai Title Leaeno, 25 A.S.R.2d 4, 8 (Land & Titles Div. 1994).
To these ends, the Court here has not only had the benefit of firsthand observation of each of the candidates as they testified, but of reviewing each personal history as recounted both on the stand and in final written arguments, in some cases not without a sprinkling of self-aggrandizement. Each candidate testified as to his particular contribution and service to church, family, and village, as well as to educational and vocational background. We have also seen certain shortcomings as developed on cross-examination and from personal observation.
Claimant Tuilefano pointed to, among other things, his early career with the United States Marine Corp, together with various commendations he *277received, including a citation for meritorious action during the Vietnam war; his succession to, and service as, the ranking orator Tuilefano of Malaeloa; his three terms as Aitulagi County’s Senator in the Legislative Branch; his various government board memberships; and his appointment to the political post of Commissioner of Public Safety. Additionally, Tuilefano lists business enterprises with which he is involved.
Counter-claimant Taufa'asau, who appearing pro se acquitted himself admirably in his own representation, appraised the Court of his 32 years of “outstanding and creditable” service to the United States Government, National Weather Service, attaining the “Gold Medal” award, and his education towards attaining his career goals. He now enjoys a well-earned retirement. He argues that while certain of the other candidates can similarly lay claims to having held good government positions with the territorial government, he contends that their positions were more an incident of leading matai status rather than indices of personal merit.
Utaifeau urges an assessment of his character and personal qualities against his background of a stable family life, successful family business enterprises, together with his longstanding and continuing presence and service within the family and village. In his service to the family, he has given generously of his own time, money, equipment, and assets to, among other things, the family guesthouse and many fa'alavelave (family affairs). Likewise, he has equally donated time, money, equipment and assets to village community projects. As the Utaifeau, appointed by Mauga loane, he has been instrumental in promoting the village’s standing, and pride, in the world of fautasi (longboat) racing and intra-village mgby. While conceding the breadth of Mailo’s knowledge of Samoan culture, Mailo having published a book on the subject, Utaifeau contends that, because of his continual firsthand experience with family matters, he is better situated with respect to the more pertinent customs and traditions of the Mauga family, and he is more familiar with the family’s communal landholding and assets.
Lavea directs us to a personal resume which includes his successful completion of a ‘college education, Bachelor of Arts, his short military service, his leadership skills with the Aoa village aumaga (untitled men’s organization), resulting in three consecutive Samoan cricket crowns. He has also had a varied career with the American Samoa Government in all its three branches, serving three terms in the House of Representatives, Probation work with the High Court of American Samoa, and as liaison officer for the Department of Public Safety. In his capacity as the Lavea he has served as family spokesman for his many extended family ties, including the Mauga family. In all his endeavors, Lavea stresses his commitment to service.
*278Counter-claimant Mailo’s background is varied. His early career was education related, involved with both teaching and administration. As a product of the early government scholarship program, where he successfully completed postgraduate studies, Mailo experienced firsthand the program’s shortfalls. Later he was appointed by Governor Haydon to reassess and revamp the whole program to make it more student-friendly. His extensive government career ended with his serving a term as Associate Judge of the High Court, from which he recently retired. Throughout his work life, Mailo has also operated a number of businesses, including a grocery store, a building contractor, a restaurateur and tavern operator, taxi operator, apartment owner and, more recently, commercial taro farming in the State of Hawaii. He has held the Mailo title of Fagatogo for many years and is a leading official of the Roman Catholic Diocese of Pago Pago, Samoa.
In our assessment, we find that while Mailo prevails on the consideration of knowledge of Samoan custom, we rank Utaifeau slightly ahead of a very strong field on the considerations of forcefulness, character, and personality. His superior business skills and industry; his leadership record with the village aumaga as the Utaifeau; his benevolence as evidenced by the regularity of his significant contributions in time, property, and money to family and village, his honesty and 'integrity, his unassuming manner and his sense of humility, has, in our view, spoken most persuasively in terms of his personal traits and personal potential.
We find that Utaifeau prevails on this consideration.
4. Value to Family, Village, and Country — A.S.C.A. § 1.0409(c)(4)
Under this heading we find that no one candidate stands out decisively from the others in terms of value to country. In their own career paths and endeavors, we are satisfied that all of the candidates have contributed creditably to the general welfare of the people and country. With regard to the considerations of value to family and village, while each candidate is able to point to specific instances of tautua (traditional, service) to either family, church, or village, we find that Utaifeau’s contribution to both the Mauga family and the village of Pago Pago stands out as more consistent and conspicuous over the claims of the other candidates. Utaifeau, in our view, better personifies the proverb “O le ala i le pule o le tautua.” Moreover, he has lived in the village for most of his life and has been actively involved in the affairs of the village and family. His familiarity with family needs and members is preferred. See Aano v. Sitau, 2 A.S.R. 107, 110-11 (Trial Div. 1940); Tuinei v. Ieliko, 2 A.S.R. 117, 123 (Trial Div. 1940). Although Taufa'asau grew up, and has returned to live, in the village after an extensive absence because of education and off-island duty stations, he has been involved in village *279and family affairs to a much lesser extent than Utaifeau.
We rate Utaifeau first on this criterion.
Conclusion.&.Order
Based on the foregoing, we hold that Utaifeau is qualified to hold the title Mauga as he prevails on the third and fourth statutory criteria although preceded by Taufa'asau, Lavea, and Tuilefano on the first. The second criterion is discounted.
The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Mauga, attached to the village of Pago Pago, in candidate Utaifeau Tasi Asuega.
It is so ordered.
By this time, Fanene had withdrawn her counterclaim, which was previously dismissed in open court, but she continued to file additional material with the Clerk.
See Taufa'asau v. Manuma, 4 A.S.R. 947, 949 (App. Div. 1967) (“Historically, the Mauga is known to be among the oldest and most influential matai titles of American Samoa. Available historical records dating from the earliest contacts of the Europeans with eastern or American Samoa contain numerous references to the Mauga.”) The preeminence of the Mauga title is, according to one account, traced to the time of the Tongan occupation in Samoa, some seven centuries ago. See Amerita Samoa, Capt. J.A.C. Gray, United States Naval Institute, 1960.
Under A.S.C.A. § 3.0242(b), the Land and Titles Division is accorded certain procedural flexibility consistent with the exigencies of justice and convenience.
One of the Mauga family’s traditional meeting sites.
Candidate Mailo explains family inertia in terms of “sub-family” politics over the issue of who should call family meetings. The matter, however, appears quite clearly to have become a non-issue after somebody took the initiative to use the public media to call a family meeting.
A variation of the rale employs blood relationship to the nearest common ancestor titleholder.
It has also been suggested that the “Sotoa rale” is more equitable in 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.” In re Matai Title “Laie”, 18 A.S.R.2d 35, 37 (Land & Titles Div. 1991).
This history, incidentally, coincides with some written accounts. See fin. 2, infra.
This sort of strategy, now prevalent with most ranking matai succession disputes, seems to underscore one thing only, and that is the common reality that there is the well-beaten path to the courthouse. But the converse of this observation is the emerging reality that the Judicial Branch is more and more evolving into being the preferred “matai picker,” with Samoan families increasingly abdicating their traditional role.
Law reform efforts recurrently come and go before the Fono without any readily apparent solution to the present avowedly unsatisfactory state of affairs; judicial appointments and the rank suspicion that goes along with an unpopular, albeit legally correct, court determination. For this reason, law reform efforts could at least be redirected to explore matai selection alternatives. The focus does not have to be centered on the option of removing the decision-making function from an indecisive family in favor of the courts, but on keeping decision-making within the family by way of an alternative decision-making process.
If a family, for any reason, is unable or unwilling to utilize the selection process handed down by their forebears, where the model is open *276discussions upon discussions until a consensus is reached, than an alternative selection process geared to keeping the decision within the family might perhaps be more appropriate, rather than passing the buck onto the court.
Undoubtedly, an alternative selection process will be critically viewed as un-Samoan, but such would be no more Samoan than the current process of leaving it to a panel of non-family members, Associate Judges, who are guided in part by statutory criteria that essentially appeal to the subjective. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486722/ | OPINION AND ORDER
Appellant Fa'atui Isaia (“Isaia”) appeals his conviction for Possession of a Controlled Substance, in violation of A.S.C.A. § 13.1022 (1992). Isaia petitions this Court to review four issues: (1) the trial court’s discretion to consider different sentencing options under the drug possession statute, A.S.C.A. § 13.1022; (2) the propriety of the prosecutor’s in-court statements concerning Isaia’s pre-Miranda silence; (3) the ineffective assistance of trial counsel; and (4) his guilt beyond a reasonable doubt.
Factual and Procedural Background
On the evening of December 15, 1998, Isaia arrived in the Territory via Samoa Air flight 4175, en route from the Independent State of Samoa. A customs officer, Patrick Tuvale (“Tuvale”), noticed Isaia acting agitated and proceeded to search his luggage at the customs counter. Isaia responded to primary questions at customs inspection. (Trial Tr. 11) During the search of his belongings two aluminum foil packages were found containing what appeared to be marijuana. Tuvale asked Isaia if he “knew the things that had fallen out?” Isaia appeared “nervous” and “scared.” Isaia made no other reaction. (Trial Tr. 12) He remained silent. Isaia was then escorted into the custom’s office. (Trial Tr. 13)
In the course of conducting their preliminary investigation, Tuvale and Detective Fe'a of the Department of Public Safety (“Fe'a”) performed the Duquenois-Levine field tests on the seized substance. These tests indicated the presence of tetrahydrocannibinols (THC), the active ingredient of marijuana. Isaia was taken into custody and was charged with unlawful possession, pursuant to A.S.C.A. §§ 13.1022 and 13.1006.
On August 11, 1999, the seized substances were submitted to a forensic analysis, consisting of both microscopic and chemical examination, by a Lieutenant Laumoli. (Trial Tr. 70-72) The substance was identified as marijuana. (Trial Tr. 71-72) This case was tried on September 14 and 15, 1999, before a jury.
On September 15, 1999, the jury in this cause returned a verdict finding *5Isaia guilty of unlawful possession of the controlled substance, marijuana, in violation of A.S.C.A. § 13.1022 (1992) (amended by P.L. No. 25-34 (1998)). Isaia was sentenced to imprisonment for five years on October 15, 1999.
A Motion for Reconsideration (New Trial) was denied on December 14, 1999, and Isaia filed a Notice of Appeal on December 17, 1999.
Discussion
A. Trial court’s Sentencing Options Under A.S.C.A. § 13.1.022 (1992)
Isaia alleges error by the trial court in its construction of the mandatory sentencing provision of A.S.C.A. § 13.1022 (possession of a controlled substance). He urges this Court to interpret the much amended sentencing language of this statute in light of the standard court dispositional options as outlined under A.S.C.A. § 46.1902, thereby allowing a person convicted under the possession of controlled substance statute to receive a term of conditional and revocable probation rather than a mandatory minimum term of imprisonment.
The meaning of a statute must be ascertained in light of its purpose. Am. Samoa Govt v. Gatoloai, 23 A.S.R.2d 65, 68 (Trial Div. 1992). Absent contrary legislative intention, a statute should be interpreted according to its plain meaning. Am. Samoa Govt v. Alo, 2 A.S.R.3d 91, 92 (Trial Div. 1998) (citing United States v. Turkette, 452 U.S. 576 (1981)). An interpretation should be avoided which construes a statutory provision to be meaningless or nugatory. Id. (quoting 73 Am. Jur. 2d, Statutes § 249 at p.492 (1974)).
The Statute under which Isaia was convicted, and is at issue before this Court, reads as follows in pertinent part:
13.1022 Possession of controlled substance unlawful.
(a) Except as authorized by the director, it is unlawful for a person to possess a controlled substance.
(b) A person who violates this section is guilty of a felony and shall be punished as follows:
(1) for a first offense, a fine not less than $5,000 and not more than $20,000 or not less than 5 years and not more than 10 years in prison, or both;
* * *
There shall be no parole for a conviction under this section. (c) The above penalties are mandatory.
*6This statute was amended to its current form by .the Fono in 1998.1 This amendment doubled, the maximum possible penalties for a first time offense and explicitly denied parole to one convicted thereunder. These changes are reflective of a legislative intent2 to toughen the punishment for possession of controlled substances.
Isaia submits that the statute allows the: Court to punish a guilty defendant by imposing a fine and probation, with a term of detention, or such other appropriate provisions, as conditions of probation. (Appellant’s Br. 6) Isaia points to the use of the disjunctive “or” and “or both” in the statute to justify this interpretation and to allow the *7application of A.S.C.A. § 46.2203 (defining eligibility for probation) and A.S.C.A. § 46.2206 (allowing detention as a condition of probation).
The sentencing court’s general sentencing options under 46 A.S.C.A., § 46.1902 for criminal case disposition are limited to “any appropriate combination.” (Emphasis added) The term “appropriate” as used in that section limits the trial court’s dispositional options in criminal cases arising under the criminal code, A.S.C.A. §§ 46.0101 et seq. (“Title 46”), to those term limits, definitions, and classifications which generally apply to most criminal cases. Where not otherwise specifically directed by the Fono in the penalty enactments of Title 46, the sentencing court may, in its sound discretion, find that an appropriate disposition of a particular case should involve probation rather than a straight sentence of imprisonment. See A.S.C.A. § 46.1902.
The instant case falls outside of the general dispositional approach, in that the underlying possession statute is codified outside of Title 46. The possession statute’s specific penalty provisions include a mandatory minimum sentence of imprisonment without parole and a requirement that such penalties are mandatory. With respect to “appropriate” dispositional treatment of non-Title 46 convictions, A.S.C.A. § 46.1901 specifically provides:
Every person found guilty of an offense, whether defined in this title or in the American Samoa Code Annotated in accordance with the classifications in this chapter, shall be dealt with by the court in accordance with the provisions of this chapter, except that for offenses defined outside this title and not in accordance with the classifications of this chapter and not repealed, the term of imprisonment or the fine that may be imposed is that provided in the statute defining the offense.
An “appropriate” disposition of a conviction under the possession statute therefore requires the sentencing court to impose at least a mandatory minimum fine of fine of $5,000.00 or a mandatory minimum prison term of 5 years or both. The prison term is to be served without parole, as specified by the Fono. Reiterating its intent that at least a substantial minimum fine or prison term be imposed (as an “appropriate” disposition for a conviction of this offense), the Fono concludes the penalty section of that statute with: “(c) The above penalties are mandatory.”
Although the Fono has utilized other terms of art in establishing specific, mandatory prison sentences for other offenses which preclude the sentencing court from imposing probation as an “appropriate” disposition, the language utilized in this drag possession statute is sufficiently clear to impart a specific and substantial limitation upon the *8sentencing court’s general dispositional options under A.S.C.A. § 13.1022. Under this statutory scheme, probation, is not an “appropriate” disposition. See also 1998 P.L. 25-19, Preamble.
B. Propriely of Prosecutor’s Statements
Isaia was taken into custody by customs officials and later read his rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966). Prior to being taken into custody, and while he was being searched by a customs agent at the airport, Isaia chose to remain silent when questioned. Additionally, he did not testify at trial. During the prosecuting attorney’s closing arguments, the following statement was made to the jury:
Now, when Officer Tuvale picked up this package, this package wrapped in the shorts, he told you that some green material fell out. And he turned to the defendant and said, what’s this? Now, put yourself, Ladies and Gentlemen, in the position of an innocent person confronted with this situation. I submit there are all sorts of answers that this innocent person could give, but he definitely would give an answer. What did the defendant do? Silence.
(Trial Tr. 109) Isaia argues that the Trial court erred by admitting evidence of his silence during the government’s case.
We review Isaia’s claim of misuse of his silence under the plain-error standard, because trial counsel did not properly object during trial. See United States v. Whitehead, 200 F.3d 634, 638 (9th Cir. 2000) (citing United States v. Plunk, 153 F.3d 1011, 1019 (9th Cir.), amended by 161 F.3d 1195 (9th Cir. 1998)). Under the plain-error standard there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s] substantial rights.” If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error “seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.” Whitehead, 200 F.3d at 638 (quoting Plunk, 153 F.3d at 1019)). We note that Isaia’s silence occurred pre-arrest and pre-Miranda and was not protected as a Fifth Amendment privilege, therefore the Trial court did not commit plain error in allowing its use.
Use of a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt at trial does not violate defendant’s privilege against self-incrimination nor his right to due process. United States v. Oplinger, 150 F.3d 1061, 1066 (9th Cir. 1998). The mle of Oplinger applies to the period of time “prior to custody,” id., “when a citizen is under no official compulsion whatever, either to speak or to remain silent.” Id. (quoting Jenkins v. Anderson, 447 U.S. 231, 241 (1980) (Stevens, J., *9concurring)). Applying Oplinger,. we find that Isaia’s silence was pre-arrest, pre-Miranda and not made at time where there was “official compulsion” to speak or remain silent-. As such, use-of the silence as substantive evidence of guilt at trial does not violate Isaia’s privilege against self-incrimination and as it was not “error,” it can clearly not be “plain error.” '’ •'
C. Ineffective Assistance of Counsel
In order to demonstrate ineffective assistance of counsel, a defendant must show (1) specific unreasonable errors, and (2) a reasonable likelihood that absence of those errors would have changed the result of the case. Suisala v. Moaali'.itele, 6 A.S.R.2d 15,- 20:21 (Trial Div. 1987). The Court there cited to Strickland v. Washington, 466 U.S. 668 (1984).3
We find that this claim of appellant has no merit as Counsel Penn’s representation was neither deficient nor prejudicial. See Pua'a v. Am. Samoa Gov’t, 3 A.S.R.3d 39, 46 (App. Div. 1999). She cross-examined witnesses when she deemed it necessary to do so, she engaged in proper voir dire of the government’s expert and made a tactical decision not to extensively cross-examine this witness. She properly conducted trial based on her experience and the result was certainly not a “breakdown in the adversarial process”4 such, as - to warrant a finding of error. Additionally, with the Court satisfied that Isaia’s privilege against self-incrimination was not violated, see above, counsel’s failure to object to the.use of Isaia’s silence as- substantive' evidence -of guilt by the prosecutor was not in error. As such, this Court finds no error básed upon Counsel’s actions.
D. Sufficiency of the Evidence
The evidence presented at trial was sufficient to support a finding of guilt. .There was sufficient evidence’that-Isáiá was' “knbwingly” in possession of marijuana. In addition, there was sufficient evidence that the substance Isaia possessed wáS--marijuana.’■ (Trial Tf."-32-53, Lt. ’ Laumoli’s testimony) ’ • ‘ • • ■ :! • •••* '
*10. Conclusion
For reasons stated abo.ve, the judgment appealed from will be AFFIRMED.
It is so ordered.
P.L. 25-34, 25th Legislature of American Samoa, 4th Regular Session (July 13, 1998). .
A brief overview of legislative history on this subject matter, is illustrative of this legislative intent. The crime of possession of marijuana originally appeared in the Territory’s law books as 21 A.S.C. § .2553, with the enactment of P.L. 13-56, § 3, effective Nov. 5, 1974. As originally, enacted, possession was a misdemeanor punishable by a term of imprisonment of up to one year or a fine of not more than $500. Additionally, 21 A.S.C. § 2555 allowed for “deferred proceedings” treatment of first offenders. In 1984, the Fono amended the law upgrading the prime of possession to a Class D Felony for the first offense,- a Class C Felony.for a second offense, and a Class B Felony for ,a. third or more offenses. See 1984 P.L. 18-40, § 1. .Deferred proceedings, .however, were nonetheless maintained at this time. See A.S.G.A. ■§ '13.1024. ,
In 1998, the Fono repealed § 13.1024, doing away altogether with “deferred proceedings.” See 1998 P.L. 25-19, § 1; In the preamble to this repealer, the Fono made the following legislative findings:
Some 23, .years, ago, the Legislature - did not. realize that possession of controlled substances, such as . . . marijuana .. . can threaten the health and natural attributes of our children. In 1974, our lawmakers were conceived [sic,] with the notion that mere possession of a small amount of [sic] illegal drugs could affect just the user. Present day. possession of-controlled substance no longer consists of a small amount but contains a large quantity and are dispersed regularly to our people, and has found its way to our younger population. A serious threat to the well being of our.children is clearly manifested.
The preamble then concluded:
The “deferred proceedings” provisions of section 13.1024 has definitely outlived its purpose if there was one. The Court must proceed to enter its judgment and impose sentencing regularly pursuant to 13.1022 A.S.C.A.
(Emphasis added.)
Strickland put forth the basic test that defendant must show (1) counsel’s performance was deficient, in other words, he made “errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment” and (2) that the errors wbre so Seridus that defendant was denied a fair trial. ■v : •; . '
Strickland v. Washington, 466 U.S. 668, 696 (1984). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486723/ | OPINION AND ORDER
Appellant Laumata Lafoga Faifaiese appeals his conviction for Possession of a Controlled Substance, in violation of A.S.C.A. § 13.1022 (1992), amended by P.L..No. 25-34 (1998). Appellant petitions this Court to review three issues: (1) the Trial court’s discretion to consider different sentencing options under the drag possession statute, A.S.C.A. § 13.1022; (2) the failure to suppress appellant’s statements to the police; and (3) his guilt beyond a reasonable doubt.
Standard of Review
An appellate court will not set aside a trial court’s findings of fact in the absence of clear error. A.S.C.A. § 46.2403(b); Toleafoa v. Am. Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994). “[T]he test is not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.” Id.
*13Factual and Procedural Background
On April 24, 1999, at about 9:30 a.m. two police officers, Lt. Leuma and Sgt. Clemens, responded to a call to the Department of Public Safety’s Substation West in Tafuna from Alice Faifaiese (“Alice”), appellant’s wife, reporting that she had been beaten up by appellant. The officers arrived in the village of Vaitogi and observed Alice approximately 10 minutes after the phone call had been made. She was crying and shaking. Her face was reddened and she told the officers that appellant had slapped her several times and ripped her shirt. While talking to Alice the officers observed the appellant emerging from his home. Lt. Leuma approached the appellant and asked him to remain with Sgt. Clemens while he continued to talk with Alice. Lt. Leuma, accompanied by Alice, then proceeded inside the appellant’s home. Lt. Leuma asked and received permission to search the house from Alice.
Lt. Leuma entered the appellant’s bedroom and saw what appeared to be a marijuana cigarette and appellant’s passport in a plastic bag on a night table. Alice picked up and handed these items to Lt. Leuma. The cigarette was later tested and found to contain marijuana. Alice then pulled out a bag from under the bed. Inside the bag Lt. Leuma found seven ziplock baggies containing what appeared to be marijuana and a package of Zig-Zag rolling papers. Forensic testing established the substance inside the baggies to be marijuana.
Lt. Leuma then left the house and had appellant placed under arrest. Appellant was taken to Substation West and advised of his Miranda rights using the Samoan language printed departmental form. Appellant indicated that he understood his rights and was willing to waive them, both verbally and in writing at appropriate places on the form. Appellant, in his statement, said that Alice had “begged [him] to go and buy marijuana,” and that he had “rolled four cigarettes and used three of them, and one cigarette remained and it is now in the hands of the police,” and that these were “marijuana cigarettes.”
Alice arrived at the police station that same day at approximately 12:20 p.m. and submitted a “voluntary statement” form to Sgt. Clemens. Sgt. Clemens interviewed her regarding the full details of the incident, and as a result an additional written statement was given by Alice, which included details of the assault and her consent to the search of the house. Sgt. Clemens then obtained an immediate arrest warrant for appellant.
The following day, April 25, 1999, and thereafter, Alice tried to have the case dropped. Later, at trial, Alice testified to engaging in a “war of words” with appellant and denied any physical contact. She also denied giving consent to Lt. Leuma to search the house, and claimed she went to *14the police station against her will and that Sgt. Clemens made her write the additional written statement at the police station.
Appellant was charged on April 30, 1999 with possession of a controlled substance and assault in the third degree. The case was tried on August 18 and 19, 1999 before a jury. The jury found the appellant guilty of unlawful possession of the controlled substance of marijuana and not guilty as to the assault. On September 10, 1999, the Trial court denied probation as a sentencing option for a defendant convicted of possession of a controlled substance. On October 5, 1999, appellant was sentenced to five years in prison. On November 8, 1999, the Trial court denied appellant’s motion for reconsideration or new trial. Appellant filed a notice of appeal on November 10, 1999, and an amended notice of Appeal on November 17, 1999. This appeal was heard on December 5, 2001.
Discussion
A. Trial Court’s Sentencing Options under A.S.C.A. § 13.1022
Appellant alleges error by the Trial court in its construction of the mandatory sentencing provision of A.S.C.A. § 13.1022, the possession of a controlled substance statute. He urges this Court to interpret the much amended sentencing language of this statute in light of the standard court dispositional options as outlined under A.S.C.A. § 46.1902, thereby allowing a person convicted under the possession of controlled substance statute to receive a term of conditional and revocable probation rather than a mandatory minimum term of imprisonment.
The meaning of a statute must be ascertained in light of its purpose. Am. Samoa Gov’t v. Gatoloai, 23 A.S.R.2d 65, 68 (Trial Div. 1992). Absent contrary legislative intention, a statute should be interpreted according to its plain meaning. Am. Samoa Gov’t v. Alo, 2 A.S.R.3d 91, 92 (Trial Div. 1998) (citing United States v. Turkette, 452 U.S. 576 (1981)). An interpretation should be avoided which construes a statutory provision to be meaningless or nugatory. Id. at 92 (quoting 73 AM. JUR. 2d Statutes § 249 (1974)).
The statute under which appellant was convicted, and is at issue before this Court, reads as follows in pertinent part:
13.1022 Possession of controlled substance unlawful.
(a) Except as authorized by the director, it is unlawful for a person to possess a controlled substance.
(b) A person who violates this section is guilty of a felony and shall be punished as follows:
*15(1) for a first offense, a fine not less than $5,000 and not more than $20,000 or not less than 5 years and not more than 10 years in prison, or both;
There shall be no parole for a conviction under this section.
(c) The above penalties are mandatory.
The current wording of the statute was enacted in P.L. No. 25-34 (1998). The amendment doubled the maximum possible penalties for a first-time offense and explicitly denied parole to one convicted thereunder. These changes aré reflective of a legislative intent to toughen the punishment for possession of controlled substances.1
Appellant submits that the statute allows the Court to punish a guilty defendant by imposing a fine and probation, with a term of detention, or such other appropriate provisions, as conditions of probation. Appellant *16points to the use of the disjunctive “or” and “or both” in the statute to justify this interpretation and to allow the application of A.S.C.A. § 46.2203 (defining eligibility for probation) and A.S.C.A. § 46.2206 (allowing detention as a condition of probation).
The sentencing court’s general sentencing options under A.S.C.A. § 46.1902 for criminal case disposition are limited to “any appropriate combination” (emphasis added). The language “appropriate” as used in that section limits the trial court’s dispositional options in criminal cases arising under A.S.C.A. Title 46 to those term limits, definitions, and classifications which generally apply to most criminal cases. It is true that where not otherwise specifically directed by the Legislature in the penalty enactments of Title 46, the sentencing court may, in its sound discretion, find that an appropriate disposition of a particular case should involve probation rather than only imprisonment. See A.S.C.A. § 46.1902.
However, the instant case falls outside of this general dispositional approach because the possession statute is codified outside of Title 46. The possession statute’s specific penalty provisions include a required minimum sentence of imprisonment without parole and a requirement that such penalties are mandatory. With respect to “appropriate” dispositional treatment of non-Title 46 convictions, A.S.C.A. § 46.1901(a) specifically provides:
46.1901 Authorized Dispositions
(a) Every person found guilty of an offense, whether defined in this title or in the American Samoa Code Annotated in accordance with the classifications in this chapter, shall be dealt with by the court in accordance with the provisions of this chapter, except that for offenses defined outside this title and not in accordance with the classifications of this chapter and not repealed, the term of imprisonment or the fine that may be imposed is that provided in the statute defining the offense.
An “appropriate” disposition of a conviction under the possession statute therefore requires the sentencing court to impose at least a mandatory minimum fine of $5,000.00 or a mandatory minimum prison term of five years, or both. The prison term is to be served without parole, as specified by the Legislature. Reiterating its intent that at least a substantial minimum fine or prison term be imposed, the Legislature concludes the penalty section of that statute with “(c) The above penalties are mandatory.”
The legislative intent and the language of the qualifying and applicable statutes clarify the language utilized in this drug possession statute. The *17result makes it sufficiently clear to impart a specific and substantial limitation upon the sentencing court’s general dispositional options under A.S.C.A. § 13.1022. Under this statutory scheme, probation is not an “appropriate” disposition. See also Preamble to P.L. 25-19 (1998).
B. Evidentiary Admission of Appellant’s Statements
Appellant argues that his statements to the police were improperly admitted at trial. This argument is based upon the assertion that appellant was subject to an illegal warrantless arrest and that, therefore, the fruits of that unlawful arrest are excludable. See Costello v. United States, 365 U.S. 265 (1961).
The exclusionary rule allows the suppression of evidence obtained through the use of unreasonable searches and seizures. Mapp v. Ohio, 367 U.S. 643 (1961). The Revised Constitution of American Samoa, Article 1, Sec 5, prohibiting unreasonable searches and seizures, tracks the language of the Fourth Amendment to the United States Constitution but then includes the following:
Evidence obtained in violation of this section shall not be admitted in any court.
This last sentence explicitly entrenches the exclusionary rule in the American Samoa Constitution. Am. Samoa Gov’t v. Samana, 8 A.S.R.2d 1, 3 (Trial Div. 1988). This provision is implemented through A.S.C.A. §§ 46.0801-.0807. To arrest a suspect, an arrest warrant is generally required, however, the statute describes a number of situations in which a warrant is unnecessary. See Am. Samoa Gov’t v. Gotoloai, 23 A.S.R.2d 65, 67 (Trial Div. 1992). One of these instances is when there is a felony committed in the presence of the arresting officer. A.S.C.A. § 46.0805(1). Oddly, appellant does not contest the warrantless search of the premises where the drugs were found. Regardless, it would have been a fruitless claim as the police had the voluntary and intelligent consent of appellant’s wife Alice, a person with apparent rights to use or occupy the property equal to those of the appellant. See United States v. Matlock, 415 U.S. 164, 171 (1974); Frazier v. Cupp, 394 U.S. 731, 740 (1969).
With the consent to the warrantless search being judged to surpass the objective standard required in such an instance, see Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the police in this matter were properly and legally inside the appellant’s residence. When Alice gave the narcotics to the police officer, he was immediately presented with the commission of a felony, possession of a controlled substance, in violation of A.S.C.A. § 13.1022. Therefore, under the exception of A.S.C.A. § 46.0805(1), the *18appellant’s warrantless arrest was proper and his statements once in custody were not “fruit of the poisonous tree.” Rather, they were voluntary and informed statements relevant to the police investigation, and were hence properly admitted into evidence by the Trial court.
The Government puts forth two further procedural arguments to justify the denial of suppression of appellant’s statements to police. First, that the appellant failed to provide the Appellate Division with an adequate record permitting fair and adequate review under A.C.R. 10(b)(2). Second, that the appellant’s motions to suppress his statements were correctly denied as being untimely under T.C.R.Cr.P 12(b)(3). These claims are both, in our opinion, meritorious. However, with this claim being denied on the merits, we will not delve any deeper into these mattefs.
C. Sufficiency of the F.vidence
The evidence presented at trial was sufficient to support a finding of guilt beyond a reasonable doubt. Beyond a reasonable doubt should not be treated as an impossible hurdle. See generally Am. Samoa Gov’t v. Uo, 4 A.S.R.2d 14 (Trial Div. 1987) (burden of proof beyond a reasonable doubt in criminal cases does not prohibit trier of fact from drawing inferences from the evidence). If, upon review of the facts, it is determined that a rational trier of fact could find guilt beyond reasonable doubt, the verdict must stand. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Appellant claims reversible error in two particulars. First, he points out that he was charged with possessing a controlled substance “on or about March 21, 1999,” but convicted of possessing the substance “on or about April 24, 1999.” Appellant makes a technically correct assertion. The information filed against appellant does allege in Count I commission of the offense of possession of a controlled substance “on or about March 21, 1999.”
However, Count II of the information, charging a related misdemeanor offense, lists “[o]n or about April 24, 1999,” as the date of incident. Furthermore, the criminal complaint that initiated the prosecution against appellant, as filed in District Court on April 26, 1999, listed “[o]n our [sic] about April 24, 1999,” as the date the alleged unlawful possession occurred. Relevant testimony and statements of counsel at trial all reflect the “April 24, 1999,” date of when the charged offense occurred.
Appellant has provided no threshold showing of prejudice by what the record reveals as a typographical error in the information. No objections are apparent in the record as to the relevancy of testimony concerning *19appellant’s actions on or about April 24, 1999, and appellant did not otherwise raise and preserve this issue at trial. This Court may not presume prejudice where the appellant has failed to demonstrate any.
Appellant next challenges admission of Sgt. Clemens’ testimony as an expert and the introduction of the results of his forensic analysis of the substance seized as reversible error. Admission of this evidence was not reversible error.
The determination whether an expert witness has sufficient qualifications to testify is a matter within the trial court’s discretion. United States v. Garcia, 7 F.3d 885, 889 (9th Cir. 1993). A trial court’s decision to admit expert opinion is reviewed for abuse of discretion. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); United States v. Burdeau, 168 F.3d 352, 357 (9th Cir. 1999); United States v. Cruz, 127 F.3d 791, 800 (9th Cir. 1997); United States v. Webb, 115 F.3d 711, 713 (9th Cir. 1997); United States v. Ortland, 109 F.3d 539, 542 (9th Cir. 1997); United States v. Cordoba, 104 F.3d 225, 229 (9th Cir. 1997). An abuse of discretion is “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Wing v. Asarco Inc., 114 F.3d 986, 988 (9th Cir. 1997); Int’l Jensen, Inc. v. Metrosound U.S.A. Inc., 4 F.3d 819, 822 (9th Cir. 1993). Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors. Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998) (sanctions); Solomon v. N. Am. Life and Cas. Ins. Co., 151 F.3d 1132, 1138-39 (9th Cir. 1988) (motion to amend complaint); In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir. 1996) (sanctions); Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir. 1996) (denial of attorney’s fees).
The standard for admission of expert testimony is governed by T.C.R.Ev. 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
This rule mirrors the language of Fed. R. Evid. 702, and as such on this issue this Court will apply the law as applicable to a federal trial. The application of Fed. R. Evid. 702 is controlled by the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993), which established the test to be employed by a trial *20judge in-deciding on the admission of expert scientific testimony and evidence.
Under the Daubert test, the trial judge is to decide whether the evidence offered both rests on a reliable foundation and is relevant to the task at hand. Id. at 590. The reliability standard comes from the Rule 702 requirement that an expert’s testimony pertain to “scientific . . . knowledge,” since the adjective “scientific” implies a grounding in the methods and procedures of science, and the term “knowledge” connotes a body of known facts or of ideas inferred from such facts or accepted as true on good grounds. Id. The Rule then examines relevance by insisting that the testimony “assist the trier of fact to understand the evidence or to determine a fact in issue,” which therefore requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Id. When assessing the reliability of any expert’s testimony, not just a scientific expert’s, the trial court may consider the Daubert factors to the extent relevant, which will depend upon the nature of the issue, the expert’s particular expertise and the subject of his testimony. Kumho Tire, 526 U.S. at 151.
This inquiry is a flexible one. Daubert, 509 U.S. at 594. The Trial court was within its discretion to admit Sgt. Clemens as an expert witness, to allow his expert opinion testimony, and to include the results of the Duquenois-Levine Field Test. Sgt. Clemens had a particular expertise in this field and testing procedure as demonstrated through his over six years of experience in narcotics investigations, having been involved in over sixty narcotics cases, having been trained in visual, microscopic and chemical identification of marijuana by the Drug Enforcement Administration, U.S. Customs, and the Federal Bureau of Investigation, and having been previously admitted by the High Court as an expert in forensic analysis. These factors establish the reliability of the testimony. Therefore, the trial judge’s determination allowing his expert testimony was well within the granted discretion under T.C.R.Ev. 702 and the Daubert test.
As to allowing the results of the Duquenois-Levine Field Test that was conducted by Sgt. Clemens, the Trial court was again within its discretion. The inquiries to determine whether a technique qualifies as scientific knowledge under Daubert are whether the technique has been tested, whether it has been subject to peer review and publication, the known or potential rate of error, and the old common law test of general acceptance.2 Daubert, 509 U.S. at 593-94. The trial judge is granted *21wide latitude in making this determination. Kumho Tire, 556 U.S. at 152. The Duquenois-Levine test is one of the conventional tests for the identification of marijuana. See In re Robert B., 218 Cal. Rptr. 337, 342 (Cal. Ct. App. 1985). It has been used by law enforcement for many years, has been tested for reliability and is the subject of scholarly review.3 While the test is not completely free of error and its use has been a matter of scholarly dispute, neither of these factors rises to the level of being an abuse of discretion for its acceptance by the trial judge. Further, Sgt. Clemens performed visual and microscopic tests on the substance, which in conjunction with the forensic analysis results rises above the rational trier of fact standard on appeal.
Appellant’s final claim also fails as there was sufficient evidence the Faifaiese was knowingly in possession of marijuana. Appellant’s claim that the evidence fails to prove that the substance seized was in fact marijuana does not overcome a clear error standard. The substance seized was subject to forensic analysis and the results of this analysis were admitted through the testimony of a Sgt. Clemens. Appellant’s claim that what was found was only Tetrahydrocannabinol (“THC”) and not marijuana is a distinction this court does not accept. See United States v. Barton, 995 F.2d 931, 936 (9th Cir. 1993) (including male marijuana plants that do not contain THC as drugs in order to calculate a defendant’s offense level under the Sentencing Guidelines). Additionally, A.S.C.A. § 13.1006 includes THC as a controlled substance prohibited under the statute, possession of which is therefore a crime. The evidence as present at trial was sufficient to support the jury’s findings of fact.
Conclusion
For the reasons stated above, appellant’s conviction and the judgment are affirmed.
It is so ordered.
The legislative history on this subject illustrates this intent. The crime of possession of a controlled substances was first enacted in P.L. 13-56 (1974), codified at 21 A.S.C. § 2553, and punishable as a misdemeanor by imprisonment for not more than one year or a fine of $500.00. Additionally, 21 A.S.C. § 2555 allowed for “deferred proceedings” treatment for first offenders. The crime of possession was upgraded by amendment in 1984 to a Class D felony for the first offense, a Class C felony for the second offense, and a Class B felony for a third or more offenses. P.L. 18-40 (1984), codified at A.S.C.A. § 13.1022. Deferred proceedings, however, remained permissible in 1984, codified at A.S.C.A. § 13.1024.
The Legislature did away with deferred proceedings by repealing A.S.C.A. § 13.1034 in P.L. 25-19 (1998). The Legislature made the following findings in the preamble to P.L. 25-19:
Some 23 years ago, the Legislature did not realize that possession of controlled substances such as marijuana can threaten the health and natural attributes of our children. In 1974, our lawmakers were conceived with the notion that mere possession of a small amount of illegal drugs could affect just the user. Present day possession of controlled substance no longer consists of a small amount but contains a large quantity and are dispersed regularly to our people, and has found its way to our younger population. A serious threat to the well being of our children is clearly manifested.
The preamble then concluded:
The “deferred proceedings” provisions of section 13.1024 has definitely outlived its purpose if there was one. The Court must proceed to enter its judgment and impose sentencing regularly pursuant to 13.1022 A.S.C.A. [Emphasis added.]
Evidence of scientific test is admissible when the technique has received general acceptance by recognized experts in the field, with the *21determination of general acceptance being a question of fact for the trial court, which we review on an abuse of discretion standard, as above. People v. Marx, 54 Cal. App. 3d 100, 109 (Cal. Ct. App. 1975).
See, e.g., comments in Stein, Laessig, and Indriksons, An Evaluation Of Drug Testing Procedures Used by Forensic Laboratories and the Qualifications of Their Analysts, WlS. L. REV. 727 (1973); Fochtman and Winek, A Note on the Duquenois-Levine Test for Marijuana, 4 CLINICAL TOXICOLOGY 287 (1971); See also State v. Wind, 208 N.W.2d 357, 360-61 (Wis. 1973). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486724/ | OPINION AND ORDER
Procedural History
Appellant was tried by jury in the Trial Division of the High Court from August 22 to 25, 2000, for the charge of possession of a controlled substance. The jury returned a guilty verdict. On October 13, 2000, appellant was sentenced to 18 years in prison. Appellant moved for a new trial on October 3, 2000, and this motion was denied on November 28,2000. On December 1, 2000, appellant filed a notice of appeal. Oral argument was heard on December 5, 2001.
Standard of Review
An appellate court will not set aside a trial court’s findings of fact in the absence of clear error. A.S.C.A. § 46.2403(b); Toleafoa v. Am. Samoa Gov't, 26 A.S.R.2d 20, 21 (App. Div. 1994). The test is not whether facts in the record may support a decision for the appellant, but whether sufficient evidence supported the decisions in the trial court. Toleafoa, 26 A.S.R.2d at 21.
Discussion
*24Appellant has raised five points of alleged error in his appeal. The first two involve hearsay statements. The third involves the court’s decision not to allow expert testimony concerning variants of the contraband. The fourth involves the court not allowing discussion in closing argutnents concerning the hearsay statement excluded in point two. The final point is a challenge as to whether sufficient evidence was produced to convict beyond a reasonable doubt.
Appellant’s first two points of alleged error are challenges to Trial court decisions concerning hearsay statements. In the first, appellant argues that a police officer’s testimony as to a specific statement made by appellant’s wife concerning possession of contraband was allowed under the excited utterance exception in error. In the second, appellant argues that a police officer’s testimony as to the statements made by appellant at the time of the arrest was not allowed under the excited utterance exception in error.
To apply the excited utterance exception to a hearsay statement, the trial court must make a preliminary factual determination that the declarant was so excited or distraught at the moment of the statement that he or she did not 'reflect or have opportunity to reflect on what was said. United States v. McLennan, 563 F.2d 943, 948 (9th Cir. 1977). The trial court is vested with “reasonable discretion” in determining whether statements come within the excited utterance exception. People v. Farmer, 765 P.2d 940, 950 (Cal. 1989); People v. Provencio, 258 Cal. Rptr. 330, 336 (Cal. App. 1989) (the trial court’s ruling on an excited utterance exception will not be disturbed on appeal unless the facts on which it relied are not supported by a preponderance of the evidence). Of course, the facts upon which the trial court relies must support its acceptance or denial of the exception, based upon the exception’s requirements. Lovett v. State, 491 So. 2d 1034, 1037 (Ala. 1986) (for a statement made at the scene of the crime to be admissible under excited utterance, it must relate to a “startling event,” “be instinctive and spontaneous, and not be deliberate or retrospective”).
Regarding appellant’s first point of contention, as discussed above, the standard of review requires that the preponderance of the evidence support the facts upon which the trial court relied. Showing the facts could plausibly have supported another finding will not overturn the trial court’s previous decision. The trial court allowed the testimony as to the hearsay statement of appellant’s wife upon the evidence of the surrounding circumstances — the wife’s frightened demeanor, a recently occurred violent confrontation, an excited call to the police. The preponderance of the evidence supports these facts and the trial court was within its discretion to rely upon them in applying the excited utterance exception.
*25Regarding appellant’s second point of contention, the trial court denied application of the exception upon two factors: (1) appellant’s statement to the police came several minutes after he knew he was “in trouble” while the police were searching the premises, giving him time and motive to fabricate, and (2) appellant’s statement was in a sense a response to questioning, and not entirely “spontaneous” in the sense of being purely self-generated.
As to the first factor, the trial court did not act outside of its discretion in holding that the notice appellant was on from the moment the police arrived provided time to reflect and fabricate. Appellant can plausibly argue that a “startling occurrence” was continuing throughout the police visit, but the trial court held otherwise, and the evidence does not clearly outweigh the trial court’s finding. In fact, the preponderance of the evidence supports the trial court’s theory that appellant had sufficient time and motive to fabricate his response. Certainly, the evidence supports this theory and this likelihood removes the inherent reliability of the statement, which is necessary for the excited utterance exception to apply.
As to the second factor, the fact that a statement was made in response to questioning suggests deliberation, though it does not preclude applying the excited utterance exception. Farmer, 765 P.2d at 950. Appellant’s statement was self-serving, given the circumstances under which it was made. However, the speaker’s mental state, not the nature of the statement, is the crucial factor in applying the exception. Id.; People v. Hughey, 240 Cal. Rptr. 269, 272 (Cal. App. 1987) (“spontaneous” does not mean the statement was made at the time of the incident, merely that it was made in circumstances such that it was made without reflection).
While appellant’s argument that his response to being confronted with the bag was made without reflection — and sprung from his startled mental state — is certainly plausible, the preponderance of the evidence supports the facts on which the trial court reasonably relied. Appellant’s statement was made in response to questioning (confronting him with the bag), evidence of reflection. The trial court was within its discretion to base its decision on this evidence.
Appellant’s third point arguing alleged error concerns the trial court’s refusal to allow expert testimony as to the different species of marijuana, and that the police tests could not distinguish one species from another. Appellant argues that this information as relevant as the statute under which he was charged mentions only one species of marijuana— Cannabis Sativa L. A.S.C.A. § 13.1001(h). Accordingly, appellant urges that the prosecutor’s failure to establish which species of marijuana *26was found in his possession should cause failure of the government’s case, and that testimony establishing this position should have been allowed.
Appellant’s argument has been raised and rejected in the past. The Trial Division ruled on the issue of marijuana “species” in Am. Samoa Gov’t v. Tavili (aka) Stucka, 1 A.S.R.2d 72 (Trial Div. 1983). As that court made clear, “the United States Supreme Court has flatly held that there is only one species of Marijuana” for the purposes of possession statutes. Id. at 72 (citing Leary v. United States, 395 U.S. 689 (1957)). “The term Cannabis Sativa L. must be construed as a general term which includes all plants popularly known as Marijuana that contain the toxic agent THC.” Id. at 72; see also United States v. Walton, 514 F.2d 201, 203 (D.C. Cir. 1975); United States v. Honneus, 508 F.2d 566, 575 (1st Cir. 1974). The Tavili court correctly pointed out that the legislated intent of A.S.C.A. § 13.1001 was to criminalize possession of any type of marijuana. Accordingly, the testimony of appellant’s witness was irrelevant and properly excluded.
Appellant’s fourth point of alleged error is tied closely to the second. Appellant argues that the trial court erred when it did not allow discussion of appellant’s hearsay statement during the closing argument. The discussion and authorities discussed above address the statement itself — the trial court properly prevented the hearsay statement from coming into evidence. Accordingly, as the statement was not in evidence, appellant did not have the right to discuss the statement in argument to the jury.
Appellant was not prevented from arguing the absence of any confession or admission, and was certainly not prevented from challenging the sufficiency of the government’s proof. However, in arguing whether there was ample proof of a connection between appellant and the contraband, appellant was certainly not free to discuss facts not properly introduced into evidence. To allow such argument would flaunt the very purpose of the rules of evidence.
Appellant’s fifth, and final argument of reversible error is the catchall assertion that insufficient evidence was presented to prove guilt beyond a reasonable doubt. The most telling evidence indicates otherwise. Appellant was found alone at home. Marijuana was found next to where he had been sitting. More marijuana was found in a bag in the yard. Appellant’s driver’s license was found in this bag.
Beyond a reasonable doubt should not be treated as an impossible hurdle — it is not “beyond all doubt.” See generally Am. Samoa Gov’t v. Sale Uo, 4 A.S.R.2d 14 (Trial Div. 1987) (burden of proof beyond a *27reasonable doubt in criminal cases does not prohibit trier of fact from drawing inferences from the evidence). If, upon review of the facts, it is determined that a rational trier of fact could find guild beyond reasonable doubt, the verdict must stand. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Contraband was found both where appellant had been in the living room and in appellant’s yard — with his driver’s license in tow. A rational review of these facts could certainly lead to a finding of guilt without reasonable doubt. The jury as the finder of fact did not err.
Conclusion
The trial court determined that the appellant’s wife’s statement to the police met the requirements of the excited utterance exception, and that the defendant’s statement did not. It follows that the trial court did not err in disallowing appellant’s discussion of the excluded statement during closing argument. The trial court also determined that the appellant’s expert witness testimony was irrelevant according to application of the relevant law. These decisions were within the trial court’s discretion, and sufficient evidence supported these findings. Finally, the jury had sufficient evidence to rationally determine there was no reasonable doubt as to the essential elements of the crime. Accordingly, appellant’s conviction is affirmed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486156/ | On Motion for Reconsideration:
Plaintiff seeks reconsideration of the court’s decision and order denying plaintiff’s motion for "default judgment in rem." Among other things, plaintiff argues clear error on the court’s part "in concluding that the Plaintiff’s claim for moorage charges is not maritime in nature and that a maritime lien against the vessel does not therefore exist."
The court did not, as plaintiff seems to argue, hold that moorage charges may not give rise to maritime liens.1 Rather, the court found on the evidence that the M/V Kwang Myong #71 was not a vessel in *154navigation and therefore concluded under the dead-ship doctrine.that plaintiff’s moorage charges were not maritime in nature and enforceable under in rem process.
Under the dead-ship doctrine, a vessel which has been permanently removed from navigation (and so is a "dead" ship) does not attract liens of a maritime nature, and any watercraft deemed to be "dead" are outside a court’s admiralty jurisdiction. Annotation, What Is a "Vessel" Subject to a Maritime Lien Under 46 USC § 971, 3 A.L.R. Fed. 882, 891-95 (1970 & Supp. 1990); see Goodman v. 1973 26 Foot Trojan Vessel, 859 F.2d 71, 73 (8th Cir. 1988) (citing Mammoet Shipping Co. B.V. v. Mark Twain, 610 F. Supp. 863, 866-67 (S.D.N.Y. 1985)).2
Additionally, plaintiff argues clear error on the court’s part in finding that the M/V Kwang Myong #71 was not a vessel in navigation. This is essentially a quarrel with the trial court’s findings of fact. Even under the newer, broadened definition of a vessel in navigation,3 the evidence on record is ample to support the court’s finding that the M/V Kwang Myong #71 was, at all relevant times, no longer a vessel in navigation. The vessel was abandoned by her owner — after the crew left, *155the ship lay tied to the wharf and was "substantially deteriorating . . . [and accumulating] heavy rust all over the decks and decking machinery" and posed a "hazardous threat" to navigation. Order of March 22, 1993, at 2. This ship sat through two hurricane seasons without even the necessary maintenance to her hull, decking, or machinery. Id. at 4. Furthermore, as pointed out by defendants (in personam), plaintiff previously obtained a judicial sale of the ship by proving her abandonment, decay, and threat to shipping. To argue the contrary now is rather disingenuous. Having been abandoned and progressively deteriorating, the M/V Kwang Myong #71 is a "dead" ship, meeting the description of a vessel which has been withdrawn from navigation.
Plaintiff also argues clear error on the court’s part "in failing to award judgment (in personam and in rem) to Plaintiff for the indebtedness arising after October 23, 1992 judgment in Civil Action No. 15-92."
With regard to moorage charges accruing after the date of judgment in Civil Action No. 15-92, the dead-ship doctrine is equally applicable in this instance to deny plaintiff’s claim of maritime liens. With regard to plaintiff’s in personam claim against the vessel’s owner for wharfage accruing after October 23, 1992, to the date of the vessel’s sale, February 22, 1993, this matter was not addressed as the parties were preoccupied in the argument with the "in rem" issue.4 The ensuing order accordingly responded only to the in rem issue.
However, upon reconsideration of the record, and given the owner’s default, we see no reason why plaintiff’s in personam claim may not be addressed at this time. On the evidence, we fix moorage charges at the rate of $4,340 per month. Plaintiff Southwest Marine of Samoa, Inc. shall, therefore, have judgment in the sum of $17,360.00 against defendant Korea Wonyang Fisheries Co. Ltd. Plaintiff’s claim for "contractual" interest is not supported on the evidence and is, therefore, disallowed.
Judgment will enter accordingly.
It is so ordered.
Indeed, we cited to Miles v. States Marine & Commercial Co., 286 F. 286, 288 (E.D.N.Y. 1922), and 1 Benedict on Admiralty § 233, at 15-26 to 15-27, for the exact opposite proposition, to wit; "[wjharfage charges can give rise to a maritime lien." 23 A.S.R.2d 156, 158 (Trial Div. 1993) (emphasis added). However,
[n]ot every contract for wharfage . . . will provide a sufficient ground to invoke the admiralty jurisdiction. The agreement must, additionally, aid or abet maritime commerce or navigation. Illustrative of this is Boera Brothers v. United States, (ED NY 1924) 1924 AMC 1474, where the admiralty court rightly refused jurisdiction of an action to recover compensation for wharfage furnished a vessel laid up and withdrawn from navigation. The soundness of this decision cannot be questioned when it is remembered that the only justification for the existence of a separate body of admiralty laws is to further maritime commerce or, arguably, navigation. Most certainly providing wharfage to a structure withdrawn from navigation for an indefinite future period does not measurably enhance either maritime commerce or navigation and, consequently, cannot logically be deemed maritime.
7A Moore’s Federal Practice ¶ .230[4.-4], at 2822-2823.
Adapting to new conditions, "[ajdmiralty jurisdiction has . . . changed as ’new conditions give rise to new conceptions of maritime concerns.’" American E. Dev. Corp. v. Everglades Marina, Inc., 608 F.2d 123, 125 (5th Cir. 1979) (quoting Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 179 (5th Cir. 1977), cert. denied 434 U.S. 903 (1977)). It thus appears that the rule concerning what is a "vessel" subject to maritime jurisdiction has been liberalized. Over the years, courts have departed from "an older, more restrictive interpretation of the maritime lien" by broadening the definition of a "vessel" in navigation. See City of Erie v. S/S North American, 267 F. Supp. 875, 878-79 (W.D. Pa. 1967) (comparing The Poznan, 9 F.2d 838 (2d Cir. 1925), with The Artemis, 53 F.2d 672 (S.D.N.Y. 1931), and The Showboat, 47 F.2d 286 (D. Mass. 1930)). Nevertheless, while courts are now more reluctant to find that a ship has been withdrawn from navigation, the dead-ship doctrine remains viable. See, e.g., Goodman, 859 F.2d at 73; Mercereau v. M/V Woodbine, 551 F. Supp. 811, 815 (N.D. Ohio 1982); Mammoet Shipping Co., 610 F. Supp. at 866-67; American E. Dev. Corp., 608 F.2d at 125.
See Footnote 2
Although the res only realized $1000 upon interlocutory sale, the "in rem" issue apparently had some significance to the parties’ respective concern for collateral claims either pending or in the pipeline. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486159/ | On Motion to Prepare Free Transcript:
Defendant requests the court to order, free of charge, the preparation of the complete transcript of the first trial in this matter (which was declared a mistrial on August 26, 1993, owing to the jury’s inability to arrive at a unanimous verdict), to be made available by November 30, 1993, the date set for retrial. No reasons are given for the request; however, the related proceedings involved some two weeks of testimony.
The defendant is an indigent, and while he is not to be prejudiced in his defense because of his indigent circumstances, see Roberts v. LaValle, 389 U.S. 40 (1967), this certainly does not mean that he is entitled to a transcript as of right simply upon demand. The judicial branch has only three court reporters to cover the needs of two justices and one district court judge. Besides their daily reporting of court proceedings, the reporters are also involved with the preparation of trial transcripts requested by parties in anticipation of the pending appellate session in the month of November. At the same time, they are the only reporters on island available to attend to the discovery needs of attorneys. These are the realities in American Samoa which furnish context to Roberts v. LaValle.
The equal protection concerns of Roberts v. LaValle merely ensure that an indigent defendant shall not be disadvantaged in his defense simply because he cannot afford the usual money charge for the production of a transcript. These equal protection concerns are not the same thing as an unrestricted license to burden the court’s resources without question and without regard to need. Roberts v. LaValle stands for the proposition that an indigent defendant is not to be disadvantaged by his financial status; it does not mean that he is to be favored because of his status. Certainly, the equal protection concerns of Roberts v. LaValle do not translate into defense counsel’s convenience.
*163Both counsel and the defendant were present throughout the course of the proceedings thus far; they ought to know what transpired below and, therefore, what it is they are specifically looking for in order to prepare for trial.
These requests for transcripts from indigent defendants, as compared to non-indigent defendants, are becoming rather routine. The habitual expectation of the entire transcript of an earlier proceeding, even in the vague hope that something may come up, is thoroughly discouraged. Additionally, the need for a transcript should be seasonably discovered by counsel, and motions should be seasonably made rather than impose unnecessarily pressing deadlines on the reporters.
On showing made, the motion is DENIED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486160/ | *164Order Dismissing Appeal:
On May 11, 1993, Curtis Emmer filed an appeal of CA No. 52-92, which concerns a forfeiture claim of the yacht "Shadow." However, the Trial Division has not rendered a decision in this matter.
An appeal in a civil case is only permitted after an entry of judgment. A.C.R. Rule 4(a). As such, the jurisdictional requirements of A.C.R. Rules 3 and 4 must be followed. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988); cf. Bandag, Inc. v. Al Bolser Tire Stores, Inc., 719 F.2d 392, 393 (Fed. Cir. 1983) ("the time for filing notice of appeal under Rule 4(a) begins to run only upon ’entry’ of the ’final judgment’").
Because no judgment has been rendered in this case by the Trial Division, and for good cause shown, the limitation in A.C.R. Rule 27(c) on dismissal of an appeal by a single justice is suspended, in accordance with A.C.R. Rule 2, and this appeal is dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486725/ | ORDER AND OPINION
Procedural History
On June 3, 1997, appellant pled guilty to one count of rape in violation of A.S.C.A. § 46.3604(a)(2), as a Class B felony. As such, the offense is punishable by a sentence of imprisonment of not less than five years and not more than 15 years, in accordance with A.S.C.A. § 46.3604(b) and A.S.C.A. § 46.2301(2). On June 27, 1997, appellant was sentenced to 10 years’ imprisonment. Execution of the sentence was suspended, and appellant was placed on a five-year term of probation.
The probation was under certain conditions. Appellant was to serve the first 30 months in detention, at the end of the detention period depart and remain outside of the Territory during the balance of the probation term, and conduct himself as a law-abiding citizen.
Appellant departed the Territory hi August of 1999 after completing the 30-month detention period. However, he was found in the Territory on July 28, 2000, in violation of the “remain outside” condition of his probation. On August 11, 2000, appellant admitted to violating the conditions of his probation. On September 7, 2000, the trial court modified or enlarged the detention condition of appellant’s probation by requiring him to serve an additional 30 months of detention.
On September 18, 2000, appellant moved for reconsideration or new trial with respect to the September 7 modification. The trial court denied this motion on December 5, 2000, and this appeal followed.
*30Discussion
Appellant raises two issues of error. He first argues that the imposition of additional detention time within his term of probation constitutes a double jeopardy violation of the Fifth Amendment of the U.S. Constitution and the comparable provision set forth in Article I, Section 6 of the Revised Constitution of American Samoa. Appellant also contends that application of the September 7, 2000 modification will create a period of detention beyond the original five-year term of probation, purportedly a statutory violation.
A. Double, Jeopardy
As both parties agree, the double jeopardy provision of the U.S. CONST. Amend. V applies to alterations in sentencing. United States v. Benz, 282 U.S. 304, 356 (1930). At the core of the double jeopardy clause, however, is the principle that a defendant must not be punished more than once for the same offense. See, e.g., Brown v. Ohio, 432 U.S. 161, 164 (1977); North Carolina v. Pearce, 395 U.S. 711, 718 (1969). Appellant’s argument fails this test. The trial court’s order of September 7, 2000, did not alter the punishment for appellant’s conviction for rape, and thus he was not punished more than once for the same offense.
We characterize the arguments advanced by appellant’s counsel in his opening brief as “good paper spoilt” and are left to speculate as to why and how he perceives that the double jeopardy prohibitions apply to the facts of this case. We suspect counsel was intending to argue that because a prisoner who has served his term of imprisonment has constitutional protection against that sentence being later expanded by the sentencing court, a probationer under a court monitored revocable and conditional term of probation may reasonably expect his condition of detention, once served, will likewise not be expanded by the sentencing court.
We find the facts of this case do not support appellant’s novel legal position. Rather, a closer analogy would be to that of a defendant who has served the prison term of his sentence of imprisonment and was released on parole subject to certain conditions, and who then violated the conditions of his release from confinement. In response to such violations, the parole board may revoke the defendant’s parole and reincarcerate him to serve out the balance of his original sentence of imprisonment. Under the applicable statutes, misconduct by a probationer who has served a period of detention but not completed his full term of probation may likewise be sanctioned by the supervising court, and the probationer may be required to serve all or part of the remaining probation term in detention.
*31We agree with and therefore affirm that part of the trial court’s holding the double jeopardy provisions of the U.S. Constitution and the Revised Constitution of American Samoa do not apply to the facts of this case. We next consider appellant’s claim that a condition of probation may not extend beyond completion of appellant’s maximum legal probation term of five years.
B. Detention Beyond the Probation Term
Appellant next ascribes error to the trial court’s decision to impose an additional 30 months’ detention, the completion of which will extend five months and some days beyond the end of the original five-year term of probation imposed by the trial court.
Before discussing this issue, we note that the continuing use of the inexact phrase “terms and conditions of probation” has caused some confusion among defendants, the general public, and the bar. The “term” of probation is the length of a defendant’s probation as determined by the sentencing court within the maximum limits established by statute. “Conditions” of probation are those requirements established by the court for the defendant to follow during part or all of the term of probation. Detention during the term of probation is designated by statute as a permissible condition of probation. By statute, conditions of probation may generally be revoked or modified at any time by the court. In those specific cases where a defendant violates a condition of probation prior to the expiration or termination of his probation term, the court may revoke probation and either require execution of a previously suspended sentence or impose an authorized sentence upon a defendant, or may continue the defendant on probation with existing or modified or enlarged conditions of probation. The statutes do not provide any clear grant of authority for the court to enlarge the probation term, which, unless earlier terminated by the court, generally expires at the end of its duration. A more detailed analysis follows.
The statutes governing the trial court’s authority to impose a term of probation upon a defendant convicted of a crime in the Territory are found in A.S.C.A. §§ 46.2201-.2215. Only one section in the probation statutes — A.S.C.A. § 46.2206 Detention condition of probation — has been amended by the Legislature since enactment in 1979. Originally, § 46.2206 authorized a 60-day maximum period of detention as a condition of probation in felony cases. The Legislature increased the maximum period in 1983 from 60 days to one year. The Legislature in 1987 enacted the present language of the statute, which now limits detention of a defendant on probation for a felony conviction to no more than one-third of the maximum term of imprisonment which could be imposed by the trial court for that particular felony, or 15 years when the maximum *32term prescribed is life imprisonment. A.S.C.A. § 46.2206(2).
Appellant bases this allegation of error on the language in A.S.C.A. § 46.2206 as last amended, which allows the trial court to impose “a condition of probation that the defendant submit to a period of detention in an appropriate institution at whatever time or intervals within the period of probation, consecutive or nonconsecutive, the court shall designate.” A.S.C.A. § 46.2206 (emphasis added). Appellant argues that because the original five-year term of probation was not altered by the trial court, the enlargement of the detention period to extend beyond his original five-year term of probation is prohibited by this language.
The applicable sections of the probation statutes, for the purpose of this inquiry, may be grouped under two main and one minor heading. A.S.C.A. §§ 46.2204-.2207 contain provisions generally applicable when the trial court imposes a probated sentence. A.S.C.A. § 46.2208 specifically authorizes the court under certain circumstances to discharge a defendant from the conditions of probation prior to the expiration of his term of probation. A.S.C.A. §§ 46.2209-.2215 address the powers and procedures of the trial court in those situations where, as in the instant case, the defendant has violated a condition of his probation.
Appellant’s position implicitly relies upon the statutory language in the first group of statutes addressing the imposition of the probated sentence, particularly A.S.C.A. § 46.2204(a)(1) which, standing alone, appears to limit a term of probation for a felony conviction to “a term of years not less than 1 year and not to exceed 5 years for a felony.” This maximum term limit of probation must, however, be interpreted in light of the preceding subsection which modifies its application. A.S.C.A. § 46.2204(a) prefaces subsection (1), stating that “[ujnless terminated under 46.2207 through 46,2215, the terms during which probation shall remain conditional and be subject to revocation are.” (emphasis added).
Because this case does involve probation violation proceedings under A.S.C.A. §§ 46.2209-.2215, we need not fully consider the balance of subsection (a) above except to note it facially limits conditional and revocable terms of probation to not more than five years for felonies. Whether or not this language would therefore preclude a trial court from imposing a term of probation in excess of five years for a felony, that was either non-conditional or non-revocable after its fifth year, must await a case presenting those particular facts to be determined.
This case must be reviewed under the beginning clause of A.S.C.A. § 46.2204(a), “[ujnless terminated under 46.2207 through 46.2215.” The Legislature’s use of the word “terminated” and reference to the last nine sections of the probation statutes do not present, on their face, a clear *33exception to the limits of probation terms found in the balance of that subsection. Although “termination” is used in a specific sense in A.S.C.A. § 46.2208, under which the trial court, with good cause, may truncate the term of probation prior to the expiration date of the imposed term of probation, the Legislature obviously intended “terminated,” as used in § 46.2204(a), to have a broader meaning than the “termination and discharge” provision of § 46.2208. Otherwise, only that section, rather than nine other sections of law, would have been referenced. This strongly indicates the Legislature intended “terminated” to be used in its broader sense to include both “termination and discharge,” which relieves a defendant from his probation with no further punishment, and “revocation” of probation, which subjects the defendant to regular institutional confinement to serve any balance owing on his sentence from the trial court.
As we understand the trial court’s decision in this matter, the court relied upon the special procedures and powers of the sentencing court in conducting hearings with respect to defendants arrested for violations of probation, found in A.S.C.A. § 46.2213, when enlarging appellant’s period of detention to the maximum statutory limit of five years for this offense. Although that language does provide for somewhat different procedures for a trial court presented with a probation violator, we do not find that these procedures alter the limited options facing the court in probation revocation hearings as set forth in A.S.C.A. § 46.2209. Under § 46.2209 the trial court may continue the probationer “on the existing conditions, with or without modifying or enlarging the conditions, or, if the continuation, modification or enlargement is not appropriate, may revoke probation and order that any sentence previously imposed be executed.” Notwithstanding the special proceedings under § 46.2213, § 46.2209 only allows modification or enlargement of conditions of probation, not the length of the term of probation.
As originally imposed by the trial court on June 27, 1997, execution of appellant’s 10-year sentence for felony rape was suspended, and appellant was placed on the five-year maximum period of a conditional and revocable term of probation. Appellant was required by conditions of probation imposed by the court to serve a 30-month detention period (well within the maximum period of one-third of the maximum 15-year prison sentence authorized by statute for this offense), to depart the Territory immediately after the detention period (which, with credit for time served, occurred in August 1999) and not return to the Territory during the balance of the five-year probation term, and to be a law abiding citizen.
Appellant served his detention period and departed the Territory in August 1999, only to return some months later and be arrested on July *3428, 2000, well before the five-year period of conditional and revocable probation was to expire on June 26, 2002. After a hearing conducted under A.S.C.A. § 46.2213, the trial court modified or enlarged appellant’s condition of detention to an additional 30 months with credit for time served since the arrest in July 2000. As this action does not involve an imposition of sentence of imprisonment, the trial court correctly denied appellant’s demand to reduce the period of the probation detention condition for all or part of the time appellant had been on probation. A.S.C.A. § 46.2209.
Clearly, the trial court sought the delicate balance between punishing this probation violator while showing leniency by enlarging or modifying the detention condition of his term of probation, rather than revoking probation and requiring appellant to serve the balance of his 10-year sentence of imprisonment. However, under the specific facts of this case, the particular sentence and probationary term, and the conditions imposed, the enlarged detention condition of probation may not exceed the lawful expiry date of appellant’s five-year term of probation.
The trial court imposed the maximum felony term of probation of five years “during which probation shall remain conditional and subject to revocation.” A.S.C.A. § 45.2204(a). The statutory powers of the court to enforce conditions of probation must be initiated (or made manifest) prior to the expiration of the term of probation. See A.S.C.A. § 46.2215. Because the trial court may not extend the maximum term of appellant’s five-year probation, it will lose statutory authority to enforce the enlarged condition of detention at the conclusion of the term of probation. As a matter of law, appellant’s probation cannot remain “conditional” beyond the maximum term.
The trial court, on remand, may either limit its enlargement of appellant’s period of detention condition to the expiration date of the probationary term or earlier, or may revoke his probation and require execution of the imposed but suspended sentence of 10-years’ imprisonment, which with time served credited, would afford appellant mandatory parole sometime in September 2004, unless earlier paroled by the parole board. We note, however, and draw appellant’s attention to the fact that unlike the case of a probation violator, the Legislature has specifically provided that upon revocation of parole, the parole violator serves not only the balance of his unexpired prison term but also, as an additional prison term, all the parole term. A.S.C.A. § 46.2308(e).
Order
Appellant’s appeal claiming double jeopardy is denied. His appeal based on the probation statutes is granted. The portion of the additional 30 *35months’ detention period extending beyond the five-year probation term is set aside, and this case is remanded to the trial court to impose consequences of appellant’s violation of the departure condition of his probation consistent with this opinion and order.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486726/ | OPINION AND ORDER
Appellant Suafala Williams appeals his convictions of two felony counts of possession of a controlled substance, one involving methamphetamine, the other marijuana, in violation of A.S.C.A. § 13.1022, and of one misdemeanor count of discharge of a firearm, in violation of A.S.C.A. § 46.4231. Appellant petitions this Court to review two issues: (1) whether the trial court has discretion to consider different sentencing options under the drag possession statute, A.S.C.A. § 13.1022; and (2) whether the evidence was sufficient to convict appellant of the marijuana possession and of discharge of a firearm.
Standard of Review
An appellate court will not set aside a trial court’s findings of fact in the absence of clear error. A.S.C.A. § 46.2403(b); Toleafoa v. Am. Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994). “[T]he test is not whether facts in the record may support a decision for the appellant, but whether sufficient evidence supported the trial court’s decision.” Toleafoa, 26 A.S.R.2d at 21.
Factual and Procedural Background
Shortly before 2:00 A.M. on August 21, 1999, outside the Koreana Lounge near Atu'u, police officers observed the appellant raise his hand into the air holding an object and then saw a flash of light and heard a gun shot. The appellant fled on foot from the police and was caught and apprehended with a .22 caliber automatic pistol in his possession. A lawful search subsequent to appellant’s arrest found him in possession of marijuana and methamphetamine, two controlled substances.
*37Appellant was charged on August 25, 1999, with possession of methamphetamine (Count I), possession of marijuana (Count II), assault in the first degree (Count III), and discharge of a firearm (Count IV). The case was tried before a jury on Febniary 9th, 10th, and 11th, 2000. The jury convicted appellant on Counts I, II, and IV. On February 23, 2000, appellant was sentenced to 10 years’ imprisonment as to Count I, 10 years’ imprisonment as to Count II to be served concurrent with the sentence on Count I, and one year imprisonment as to Count IV to be served consecutively. On March 7th, 2000, appellant filed a motion for reconsideration or new trial. On April 22, 2000, the motion was denied. Appellant filed a notice of appeal on May 1, 2000.
Discussion
A. Trial Court’s Sentencing Options under A.S.C.A. § 13.1022
Appellant alleges error by the trial court in its construction of the mandatory sentencing provision of A.S.C.A. § 13.1022, the possession of a controlled substance statute. He urges this Court to interpret the amended sentencing language of this statute in light of the standard court dispositional options as outlined under A.S.C.A. § 46.1902, thereby allowing a person convicted under the possession of controlled substance statute to receive a term of conditional and revocable probation rather than a mandatory minimum term of imprisonment.
We addressed the identical legal argument earlier in this term as raised and decided in Faifaiese v. American Samoa Gov’t, 6 A.S.R.3d 10, 14-17 (App. Div. 2002). We are of the same opinion in this case and affirm the trial court’s decision that A.S.C.A. § 13.1022 excludes probation from the court’s sentencing options as both mandated and limited by this statute.
B. Sufficiency of the Evidence
The evidence presented at trial was sufficient to support a finding of guilt beyond a reasonable doubt for appellant’s convictions of possession of a controlled substance (marijuana) and for discharge of a firearm. Beyond reasonable doubt is not treated as an impossible hurdle. See generally Am. Samoa Gov’t v. Uo, 4 A.S.R.2d 14 (Trial Div. 1987) (burden of proof beyond a reasonable doubt in criminal cases does not prohibit trier of fact from drawing inferences from the evidence). If, upon review of the facts, it is determined that a rational trier of fact could find guild beyond reasonable doubt, the verdict must stand. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Appellant challenges admission of police Sgt. Ta'ase Sagapolutele’s *38testimony as an expert and the introduction of the results of his forensic analysis of the marijuana seized as reversible error. Admission of this evidence was not reversible error. We note that appellant has not challenged the sufficiency of evidence for his conviction for possession of methamphetamine.
Appellant claims the trial court erred in admitting the results of the Duquenois-Levine Field Test conducted by Officer Sagapolutele upon the substance seized from appellant. This court was also presented with nearly identical arguments on this issue by the appellant in Faifaiese, differing only in the identity of the police officer administering the field test. Based upon the standard of review set forth in Faifaiese as applied to the facts of the instant appeal, we affirm the admissibility of the Duquenois-Levine Field Test results into evidence at appellant’s trial as being well within the confines of the trial court’s discretion.
We also apply the same standard as set forth in Faifaiese with respect to the trial court qualifying Sgt. Sagapolutele as an expert witness and admitting the results of his forensic analysis. The trial court was within its discretion to qualify Officer Sagapolutele as an expert witness and to allow his expert opinion testimony. Sgt. Sagapolutele had a particular expertise in this field and testing procedure, as demonstrated through his many years of experience in narcotics investigations, having been involved in over sixty narcotics cases, having been trained in visual, microscopic and chemical identification of marijuana on numerous occasions since 1987, including a recent training course in 1997. These factors establish the reliability of the testimony. Therefore, the trial judge’s determination allowing his expert testimony was well within the granted discretion under T.C.R.Ev. 702 and the test established by U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993).
Appellant’s next claim of insufficient evidence that appellant was knowingly in possession of marijuana also fails. Again, this identical issue was raised in Faifaiese, and we determined that the demonstrable presence of Tetrahydrocannabinol (“THC”) in the substance possessed was sufficient to prove that substance to be marijuana. We so hold here.
Appellant’s final claim was that there was insufficient evidence to support a conviction on Count IV (discharge of a firearm), under A.S.C.A. § 46.4231, which provides that: “It is unlawful for any person to discharge, explode, or set off any arms within 30 yards of any public road or highway, house, building, or airport in American Samoa.” Under the provisions of A.S.C.A. § 46.3203(b), a defendant must act with the requisite mens rea, either “purposely or knowingly or recklessly,” to be guilty.
*39Credibility of witnesses is uniquely a matter for determination by the trier of fact. See Nat’l Pac. Ins. Co. v. Oto, 3 A.S.R.2d. 94, 95 (App. Div. 1986). The jury chose to believe Officer Seva'aetasi’s testimony as to appellant’s discharging of the firearm. We will not substitute our judgment for that of jury and weigh the credibility of this testimony. Id. We only need to determine whether the evidence, as presented, supported the jury’s finding. The officer’s testimony supports the finding that appellant acted with the required mens rea to commit this offense. Therefore, this court will not find that the jury’s decision on this charge was “clearly erroneous” as would be needed to find reversible error.
The evidence as presented at trial was sufficient to support the jury’s findings.
Order
For reasons stated above, the judgment in the trial court is affirmed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487026/ | 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
SURESH STAMPWALA, UNPUBLISHED
DHARMISTA STAMPWALA, and November 17, 2022
SHOBHA STAMPWALA,
Plaintiffs-Appellants,
v No. 358634
Oakland Circuit Court
MARK KARABAJAKIAN, D.O., NORMAN LC No. 2018-169812-CB
MARKOWITZ, M.D., and
LAWRENCE DELL, M.D.,
Defendants-Appellees,
and
STAMP CLINICAL LABORATORY, INC., doing
business as PREMIERE DIAGNOSTICS
LABORATORY, RAJ & ASSOCIATES, M.D., PC,
and PRAKASH GANDHI,
Defendants.
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s order granting defendants Mark Karabajakian,
D.O., Norman Markowitz, M.D., and Lawrence Dell, M.D.’s motion for summary disposition
pursuant to MCR 2.116(C)(10) and dismissing plaintiffs’ breach of contract claim.1 Plaintiffs also
1
Stamp Clinical Laboratory Inc., Premiere Diagnostics Laboratory, Raj & Associates, M.D., P.C.,
and Prakash Gandhi are not parties to this appeal. On December 14, 2018, the parties entered a
stipulated order to dismiss Prakash Gandhi. On September 26, 2021, the trial court entered the
stipulated order dismissing plaintiffs’ claims against Stamp Clinical Laboratory, Inc. On
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appeal the trial court’s order denying their motion to extend the case evaluation deadline and the
trial court’s order awarding case evaluation sanctions in favor of defendants. We affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
This case arises from personal guarantee agreements between defendants and plaintiffs,
where defendants guaranteed the contractual obligations of Raj & Associates, M.D., P.C.,
following its purchase of plaintiffs’ laboratory, Stamp Clinical Laboratory (SCL). As discussed
below, the background to these guarantees entailed several earlier transactions.
A. STAGE INVESTMENT PARTNERS
On April 18, 2017, Prakash and Milan Gandhi (collectively referred to as “the Gandhis”)
conferred with defendants about entering into a proposed business venture to purchase SCL and
merge the laboratory and defendants’ separate medical practices into a multi-specialty group called
NextGen Physicians (NextGen). To effectuate the sale, the Gandhis recommended that defendants
each invest some dollar amount into a limited liability company that would then loan funds to
another entity, Raj & Associates, M.D., P.C. Raj would then use those funds to purchase the stock
of SCL. In consideration for doing so, defendants would collect interest on their loan amount, and
if defendants ultimately joined NextGen, and referred their business to SCL, then defendants
would also collect any profits. On April 20, 2017, Prakash executed the operating agreement for
Stage Investment Partners, LLC (Stage). Defendants agreed to join and invest in Stage and issued
checks to the Gandhis for their respective investments; defendants Dell and Karbajakian each
contributed $110,000 (25%), and defendant Markowitz contributed $27,500 (6.25%). The next
day, Stage, as “lender,” entered into a loan agreement with Raj & Associates, as “borrower,” where
Stage agreed to loan to Raj & Associates up to the purchase price of all the issued and outstanding
shares of the common stock of SCL. The loan agreement was signed by Ramegowda Rajagopal,
M.D., on behalf of Raj & Associates and by Prakash on behalf of Stage, effective April 21, 2017.
Defendants subsequently signed a membership interest subscription and joinder agreement,
indicating their corresponding membership interests. The record shows that the Gandhis
controlled all transactions related to SCL’s acquisition from that point forward.
B. PURCHASE OF SCL BY RAJ & ASSOCIATES
Following negotiations with the Gandhis, plaintiffs agreed to sell their shares in SCL to
Raj & Associates for $850,000 pursuant to a stock purchase agreement, requiring that half of the
purchase price be paid immediately, and the other half be paid in three equal and annual
installments. The stock purchase agreement was signed by Prakash, as administrator on behalf of
Raj & Associates, and by plaintiffs on behalf of SCL, effective May 1, 2017. The installment
payments were attached as promissory notes to the stock purchase agreement and signed by
Prakash on behalf of Raj & Associates. Plaintiff Shobha testified that after plaintiffs’ demand that
the installment payments be guaranteed as a precondition of sale, Prakash determined that he and
defendants would be the guarantors for the transaction. The promissory notes provided that in the
event of a default, plaintiffs would have the right to declare the outstanding principal immediately
September 1, 2021, the trial court granted plaintiffs’ motion for entry of default judgment against
Raj & Associates, M.D., P.C., in the amount of $465,566.58.
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due. Plaintiffs also conditioned the sale on a management services agreement, which provided
that plaintiffs would continue to manage SCL through their management company, Vision
Technology USA (Vision), but that Vision could terminate and demand the full remaining balance
of the stock sale if the new owners failed to generate $1 million in new business within the
agreements first year.
C. PERSONAL GUARANTEES
The record shows that on the morning that SCL’s stock sale transaction was closed, on
April 28, 2017, Milan and plaintiffs received from their counsel, Keith Soltis, the final execution
copies of the stock purchase agreement, management services agreement, four personal guaranty
agreements listing Prakash and defendants as guarantors, and other related documents. Defendants
were not included in this email. On that same day, plaintiffs went to the Gandhis’ office to close
the stock sale transaction, and the stock purchase agreement was executed by plaintiffs and
Prakash, as administrator for Raj & Associates. Defendants were not present at the closing. The
Gandhis provided plaintiffs with only one personal guaranty, signed by Prakash, at the time of
closing. However, Shobha testified that Prakash gave verbal assurances that Milan possessed the
remaining guarantees signed by defendants, but that Milan would deliver them to plaintiffs at a
later time.
The record reveals that aside from defendants’ initial contribution to Stage, they had little
to no involvement in the negotiations for SCL’s stock sale. Defendants consistently testified that
they were not privy to or even made aware of the documents related to the transaction, including
the loan agreement between Stage and Raj & Associates, the stock purchase agreement and its
conditions to the sale, and the management services agreement. Plaintiffs also concede that the
price and terms of the sale were negotiated strictly by the Gandhis, not defendants, with plaintiff
Shobha testifying that defendants were “ghosts” to plaintiffs.
Raj & Associates failed to make the first installment payment under the promissory note,
and SCL failed to generate $1 million in new business within the first year of the agreement. As
a result, on April 19, 2018, plaintiffs elected to terminate its management services and sent written
notice of termination to the Gandhis, demanding the remaining balance of the purchase price,
$425,000, pursuant to the management services agreement.
D. CASE EVALUATION
On November 18, 2018, plaintiffs filed their complaint, alleging breach of contract,
promissory estoppel, and requesting declaratory relief. On August 29, 2019, the trial court granted
the parties’ joint motion to amend the scheduling order and ordered case evaluation to occur in
late October of 2019, but shortened the response period to accept or reject the case evaluation
award to seven.
On October 11, 2019, plaintiffs filed a motion for summary disposition pursuant to MCR
2.116(C)(10), arguing that there was no genuine issue of material fact that defendants breached
their personal guarantees. Defendants filed their motion for summary disposition two weeks later,
arguing that plaintiffs failed to state a claim upon which relief could be granted for declaratory
relief pursuant to MCR 2.116(C)(8), and that no genuine issue of material fact existed as to
plaintiffs’ breach of contract and promissory estoppel claims under MCR 2.116(C)(10). Case
evaluation occurred that same day, October 23, 2019, making the response deadline October 30,
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2019, pursuant to the amended scheduling order. However, plaintiffs did not submit their response
to the case evaluation award until November 15, 2019, and defendants did not respond at all.
Accordingly, the trial court found that both parties rejected the case evaluation award.
Plaintiffs subsequently filed their motion to extend the case evaluation deadline, arguing
that due to internal docketing errors, plaintiffs mistakenly believed that the response period was
28 days after case evaluation. The trial court denied plaintiffs’ motion for lack of merit on the
grounds presented.
The trial court subsequently granted defendants’ motion for summary disposition, finding
that plaintiffs failed to state a claim for declaratory relief because plaintiffs’ alleged injuries had
already occurred and, therefore, no “actual controversy,” a condition precedent to invoking
declaratory relief, existed. The trial court further determined that summary disposition was
appropriate as to plaintiffs’ breach of contract claim because there was no evidence of
consideration between the parties, nor mutuality of agreement or meeting of the minds on all
essential terms of the personal guarantees. The court also dismissed plaintiffs’ promissory
estoppel claims due to the absence of any evidence of a promise made by defendants to plaintiffs.
And finally, with respect to plaintiffs’ motion for summary disposition, the trial court granted
summary disposition in favor of defendants, pursuant to MCR 2.116(I)(2),2 for the same reasons.
The court later awarded case evaluation sanctions in favor of defendants, including
reasonable attorney fees amounting to $11,000. On appeal, plaintiffs only challenge the trial
court’s dismissal of their breach of contract claim, and also raise procedural challenges to the case
evaluation award.
II. BREACH OF CONTRACT
Plaintiffs argue that the trial court erred by granting summary disposition in favor of
defendants because the personal guarantees signed by each defendant were unambiguous,
enforceable contracts.
We review de novo a trial court’s decision on a motion for summary disposition. BC Tile
& Marble Co, Inc v Multi Bldg Co, Inc, 288 Mich App 576, 583; 794 NW2d 76 (2010). A motion
for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the claim, and
in reviewing such a motion, this Court must consider the evidence in the light most favorable to
the nonmoving party. Id. at 582-583. Likewise, we review de novo issues related to contract
interpretation. American Home Assurance Co v Mich Catastrophic Claims Ass’n, 288 Mich App
706, 717; 795 NW2d 172 (2010).
“A party asserting a breach of contract must establish by a preponderance of the evidence
that (1) there was a contract (2) which the other party breached (3) thereby resulting in damages
to the party claiming breach.” Miller-Davis Co v Ahrens Constr, Inc, 495 Mich 161, 178; 848
NW2d 95 (2014). “Contracts of guaranty are to be construed like other contracts, and the intent
of the parties as collected from the whole instrument and the subject-matter to which it applies is
2
MCR 2.116(I)(2) provides that “[i]f it appears to the court that the opposing party, rather than
the moving party, is entitled to judgment, the court may render judgment in favor of the opposing
party.”
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to govern.” In re Landwehr’s Estate, 286 Mich 698, 702; 282 NW 873 (1938), quoting Morris &
Co v Lucker, 158 Mich 518, 520; 123 NW 21 (1909). A guaranty contract “is a special kind of
contract[,]” where a guarantor promises “to answer for the debt or default of another” and whose
“liability depends on an independent collateral agreement by which he or she undertakes to pay
the obligation if the primary payor fails to do so.” Bandit Indus, Inc v Hobbs Int’l, Inc (After
Remand), 463 Mich 504, 507 n 4, 511–512; 620 NW2d 531 (2001), citing 23 Michigan Civil
Jurisprudence, Surety, § 14, p 50. Although the general rule is that separate agreements are treated
separately, “when parties enter into multiple agreements relating to the same subject-matter, we
must read those agreements together to determine the parties’ intentions.” Wyandotte Electric
Supply Co v Electrical Technology Sys, Inc, 499 Mich 127, 148; 881 NW2d 95 (2016).
A. MUTUAL ASSENT
The trial court held that the underlying personal guarantees lacked mutuality of agreement
or meeting of the minds on all essential terms. To form a binding contract, there must be mutual
assent or a meeting of the minds on all essential terms. Kloian v Domino’s Pizza, LLC, 273 Mich
App 449, 453; 733 NW2d 766 (2006). “A meeting of the minds is judged by an objective standard,
looking to the express words of the parties and their visible acts, not their subjective states of
mind.” Kloian, 273 Mich App at 454 (quotation marks and citations omitted). A personal
guarantee cannot be imposed without the guarantor’s unambiguous expression and intention to
accept that responsibility. Bandit, 463 Mich at 514. However, a lack of certain nonessential terms
is not fatal to a contract. Opdyke Investment Co v Norris Grain Co, 413 Mich 354, 369; 320 NW2d
836 (1982). Further, “judicial avoidance of contractual obligations because of indefiniteness is
not favored under Michigan law, and so when the promises and performances of each party are set
forth with reasonable certainty, the contract will not fail for indefiniteness.” Calhoun Co v Blue
Cross Blue Shield Michigan, 297 Mich App 1, 14; 824 NW2d 202 (2012).
The trial court found that the personal guarantees failed to include any reference to the
alleged indebtedness in the contract. Each of the personal guarantee agreements provided:
This Personal Guaranty Agreement (the “Guaranty”) is made this ___ day of
_______, 2017, by the undersigned, [] (“Guarantor”), for value received.
Undersigned unconditionally and absolutely guarantees to each of Suresh
Stampwala, Dharmista Stampawala and Shobha Stampwala (collectively “Sellers”)
payment when due of the indebtedness of Raj & Associates, M.D., P.C., a Michigan
professional services corporation (the “Purchaser”) pursuant to Promissory Notes
between each of the Sellers and Purchaser dated ___________, 2017 (the “Notes”).
The personal guarantees of defendants Dell and Karabajakian were both dated April 1, 2017, in
terms of the execution date, while defendant Markowitz’s personal guaranty did not provide an
execution date. However, it is undisputed that the agreements were not signed by April 1, 2017,
considering that defendants did not agree to join Stage until late April. All three of defendants’
personal guarantees failed to include the date of the promissory notes referenced in the agreements.
Plaintiffs argue that the trial court erred by overlooking the express language contained in
the first clause of the personal guarantees, which provided that each guarantor “absolutely and
unconditionally, guarantees to the Sellers the full and prompt payment and performance when due,
whether at maturity or earlier by reason of acceleration or otherwise,” a designated percentage “of
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the Purchaser’s obligations under the Notes up to” a set amount.3 In other words, the guarantees,
as written, explicitly identified the maximum amount potentially owed by the guarantors.
Plaintiffs further argue that although the specific date of the referenced promissory notes was
missing from the personal guarantees, failure to include a nonessential term was not fatal to the
contract. Opdyke, 413 Mich at 369.
The personal guarantee agreements, by their own terms, indicated that there was mutual
assent. On its face, the guarantees explicitly identified the parties and the extent of their obligations
under the agreement, stating that defendants as guarantors “unconditionally and absolutely
guarantees” payment to plaintiffs, as sellers, “when due of the indebtedness of Raj & Associates,”
the purchaser, “pursuant to Promissory Notes between each of the Sellers and Purchaser.” Based
on this language, it was clear that defendants agreed to be liable for any indebtedness that Raj &
Associates owed to plaintiffs. While the personal guarantees conditioned the amount potentially
owed by the guarantors to the purchaser’s obligations under the promissory notes, the guarantees
themselves still specified the designated percentage and maximum amount guaranteed by each
defendant.
Notably, even if the promissory notes were attached to the guarantees, the exact amount of
indebtedness would have varied based on when the default occurred. Raj & Associates paid half
of the purchase price at the time of closing, and the other half was set to be paid in three equal and
annual installments. Assuming Raj & Associates paid the first installment but defaulted before
the next installment came due, the amount of indebtedness guaranteed would have lessened, and
defendants would have only been liable for a percentage of the remaining indebtedness but never
more than the set amount identified in each of the guarantee agreements. The plain language of
the guarantees, standing alone, included the material terms necessary to put defendants on notice
of their obligations under the agreement and contained an unambiguous expression of the
defendants’ intentions to accept that responsibility. Bandit, 463 Mich at 514.
Additional facts establish that mutual assent existed. While it may be true that defendants
had practically no involvement in any of the negotiations concerning the sale, it is also undisputed
that each defendant signed the personal guarantees. Prakash and Milan both testified that
defendants were given copies of the personal guarantee agreements and other related documents
for review before signing. Milan further testified that defendants Dell and Markowitz both
acknowledged the personal guarantees but only briefly reviewed the documents, at best, before
signing them. The mere failure to read a contract is not enough to avoid a contract. Vandendries
v Gen Motors Corp, 130 Mich App 195, 200; 343 NW2d 4 (1983). See also Liebelt v Liebelt, 118
Idaho 845, 848-849; 801 P2d 52 (App, 1990) (“As a corollary, a written contract cannot be avoided
by one of the parties to it on the ground that he signed it without reading it and did not understand
it; failing to read the contract or to have it read to him or to otherwise inform himself as to the
nature, terms and conditions of the contract constitutes nothing more than gross negligence on the
part of that party and is an insufficient ground upon which to set the contract aside.”). Accordingly,
the language of the personal guarantees indicated that there was a meeting of the minds between
3
The designated percentage and fixed amount varied between defendants’ personal guarantees.
According to the personal guaranty agreements, defendant Markowitz guaranteed 6.25% of the
purchaser’s obligations, up to $27,500, while defendants Dell and Karabajakian each guaranteed
25% of the purchaser’s obligations, up to a total of $110,000 each.
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the parties and that the promises and performances of each party were set forth with reasonable
certainty. Calhoun, 297 Mich App at 14.
B. CONSIDERATION
Plaintiffs argue that defendants received consideration for signing the guarantees in the
form of SCL’s expected future revenue and the expectation of NextGen’s creation and its attendant
benefits.
Contracts of guaranty must be construed like other contracts and, therefore, must be
supported by consideration. First Nat’l Bank v Redford Chevrolet Co, 270 Mich 116, 121; 258
NW 221 (1935). “The essence of consideration—whatever form it takes—is that there be a
bargained-for exchange between the parties.” Calhoun, 297 Mich App at 13-14. However, past
consideration does not constitute legal consideration for a subsequent agreement. Shirey v
Camden, 314 Mich 128, 138; 22 NW2d 98 (1946).
The record shows that the parties entered into multiple agreements related to the same
subject matter, the sale of SCL. Therefore, those agreements should be considered together. See
Wyandotte Electric Supply Co, 499 Mich at 148. Prior to the sale of SCL, defendants entered into
an agreement to invest money into Stage with the understanding that Stage would loan that money
to Raj & Associates and Raj & Associates would purchase SCL. In exchange for defendants’
investments in Stage, defendants received the expectation of future profits from SCL and SCL’s
potential merger into NextGen. Plaintiffs sold SCL to Raj & Associates pursuant to the stock
purchase agreement. At some point after SCL’s closing, defendants signed the personal guarantee
agreements. However, the membership interest subscription and joinder agreements defendants
signed to effectuate their investment in Stage contained no expression of any intention for that
agreement to govern the subsequent transactions related to SCL, and nor did they contain any
mention of a personal guarantee. Stage’s operating agreement (which defendants did not sign)
also made no mention of its intended loan to Raj & Associates or any personal guarantees, nor did
it include information regarding Raj & Associates’ acquisition of SCL. Therefore, the personal
guarantees and defendants’ agreement to join and invest in Stage were separate and distinct
contracts requiring independent consideration.
We cannot accept plaintiffs’ argument that defendants received legal consideration in the
form of SCL’s expected future revenue and SCL’s potential merger in NextGen, as defendants
bargained for the same when they invested in Stage in the months preceding the guarantees. The
consideration exchanged in defendants’ prior agreement to invest in Stage cannot form the basis
of the guarantee contracts; additional consideration for the subsequent guarantees was required.
Shirey, 314 Mich at 138 (concluding that past consideration does not constitute legal consideration
for a subsequent agreement). Moreover, the guarantees themselves failed to identify any
obligation undertaken by plaintiff in exchange for defendants’ guarantees. Just as plaintiffs did
not incur any detriment, defendants received no additional benefit by entering into the personal
guarantees. Dep’t of Natural Resources v Bd of Trustees of Westminster Church of Detroit, 114
Mich App 99, 104; 318 NW2d 830 (1982) (“Consideration for an agreement exists where there is
a benefit on one side or a detriment suffered, or services done, on the other.”).
Relying on RL Polk Printing Co v Smedley, 155 Mich 249, 251; 118 NW 984 (1908), the
trial court also found that the underlying personal guarantees lacked consideration because the
guarantees solely secured a pre-existing debt. We agree with the trial court that the personal
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guarantees also fail for want of consideration because the personal guarantees were signed
sometime after SCL’s sale occurred and were executed solely to secure Raj & Associates’ pre-
existing indebtedness.
On April 28, 2017, Prakash and plaintiffs signed the stock purchase agreement, promissory
notes, and other related documents, indicating an effective date of May 1, 2017. At the closing,
the Gandhis provided plaintiffs with only one personal guaranty, signed by Prakash, but promised
plaintiffs that they were in possession of defendants’ executed guarantees that would be delivered
at a later time. However, it was not until earlier that day that Soltis sent the final execution copies
of the four personal guarantees and other related documentation to Milan and plaintiffs. The record
contains no evidence of any contact with defendants on the date of closing from any of the parties,
as defendants were not present at the closing, nor were they included in Soltis’ email sent earlier
that day. Moreover, while the personal guarantees of defendants Dell and Karabajakian were dated
April 1, 2017, Milan admitted that the date was incorrect and that the guarantees were signed
sometime in May of 2017 or later. Although defendant Markowitz’s guarantee was undated, Milan
testified that Markowitz was the last of defendants to sign. While the exact date that defendants
signed the personal guarantees remains unclear, it is undisputed that the execution of the
guarantees occurred after SCL’s stock sale closing date.
Plaintiffs argue that even if guaranty contracts require new consideration when they are
executed after the principal agreement, an exception to this rule exists and requires no new
consideration in support of a guarantee “where it is executed pursuant to an understanding had
before and is an inducement to the execution of the principal contract.” United States v Interlakes
Mach & Tool Co, 400 F Supp 59, 61 (ED Mich, 1975), citing 38 CJS, Guaranty § 26b, p 1164.
While this may be true, the exception necessitates that defendants execute the guarantees with an
understanding they had before the guarantees were required as part of the overall deal, which is
clearly not the case here. The record includes copious evidence of defendants’ phantom
involvement in the sale of SCL, including plaintiff Shobha’s testimony that defendants were
“ghosts” to her. Defendants did not engage in any negotiations of the price and terms of the sale
with plaintiffs, and each testified that they were not made aware that personal guarantees were a
precondition to the sale. More importantly, none of the documents establishing the purchase of
SCL contain a request for personal guarantees. And while a presumption of adequate consideration
arises when there is an admission of “value received” in a contract, there is no genuine issue of
material fact that defendants overcame the presumption. The trial court did not err in holding that
the personal guarantees lacked consideration.
III. CASE EVALUATION
Plaintiffs next argue that the trial court abused its discretion when it denied their motion to
extend the case evaluation acceptance/rejection deadline and awarded case evaluation sanctions in
favor of defendants.
A trial court’s interpretation of a court rule and ultimate decision to award case evaluation
sanctions are questions of law and are subject to de novo review on appeal. Smith v Khouri, 481
Mich 519, 526; 751 NW2d 472 (2008). See also Ayre v Outlaw Decoys, Inc, 256 Mich App 517,
520; 664 NW2d 263 (2003). However, the amount of sanctions awarded, including those awarded
as reasonable attorney fees, is reviewed for an abuse of discretion. Peterson v Fertel, 283 Mich
App 232, 239; 770 NW2d 47 (2009). Arguments alleging that the trial court failed to exercise
discretion are also reviewed for an abuse of discretion. Rieth v Keeler, 230 Mich App 346, 348;
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583 NW2d 552 (1998). An abuse of discretion occurs when the trial court’s decision is outside
the range of reasonable and principled outcomes. Khouri, 481 Mich at 526.
A. CASE EVALUATION DEADLINE EXTENSION
Plaintiffs argue that the trial court failed to exercise its discretion with respect to plaintiffs’
motion to extend the case evaluation deadline following its counsel’s failure to timely respond due
to an internal docketing error. Plaintiffs contend that the denial of their motion prevented them
from accepting the award and avoiding case evaluation sanctions and that granting the motion
would not have prejudiced defendants.
The trial court did not abuse its discretion in denying the motion to extend the response
deadline. On August 29, 2019, the trial court granted the parties joint motion to amend the
scheduling order, granting them an additional 30 days to complete discovery. Although under
MCR 2.403(L)(1), a party has 28 days to accept or reject an award, and the amended order
shortened the case evaluation acceptance/rejection period to seven days. Because both parties
wanted and received a 30-day extension to conduct discovery, the trial court presumably shortened
the case evaluation response period to keep the case on the original schedule. The court acted
within its discretion in furtherance of case management.
Additionally, had the trial court allowed the deadline extension, it would have undermined
the fundamental goals of case evaluation “to encourage settlement, deter protracted litigation, and
expedite and simplify the final settlement of cases.” Rohl v Leone, 258 Mich App 72, 75; 669
NW2d 579 (2003). The trial court’s conclusion was consistent with the purpose of the court
rules—a fair and efficient resolution of the matter. Nothing in the case evaluation rules required
the court to permit plaintiffs’ untimely acceptance of the case evaluation award, particularly when
plaintiffs were aware that defendants had not accepted the award. This call is left to the trial court’s
discretion, and we cannot conclude that this denial amounted to an abuse of discretion. 4 Rieth,
230 Mich App at 349-350.
Plaintiffs are incorrect to suggest that defendants would not be prejudiced if the deadline
had been extended. The well-established rules of case evaluation are designed to prevent
gamesmanship by not disclosing each party’s acceptance or rejection of the case evaluation until
after the deadline has expired. MCR 2.403(L)(2). Had the court granted the extension, plaintiffs
would have known that defendants rejected the panel’s evaluation. If plaintiffs were allowed to
retroactively change their rejection to an acceptance, then the case evaluation process would have
been tainted. We cannot conclude that the trial court abused its discretion in denying the motion
to extend the response deadline.
B. CASE EVALUATION SANCTIONS
4
By analogy, the Michigan Court Rules do not require that a trial court set aside an order due to a
docketing error. Under MCR 2.612(C)(1)(a), a trial court is authorized to relieve a party from an
order upon a showing of mistake, inadvertence, surprise, or excusable neglect. However, MCR
2.612(C)(1)(a) was not “designed to relieve counsel of ill-advised or careless decisions.” Limbach
v Oakland Co Bd of Co Road Comm’rs, 226 Mich App 389, 393; 573 NW2d 336 (1997) (citation
and quotation marks omitted).
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Plaintiffs next argue that the trial court abused its discretion in awarding case evaluation
sanctions when the award was not in the interests of justice, considering that it was plaintiffs’
counsel’s own error of failing to respond within the required seven days to accept the award.
Plaintiffs contend that by sanctioning plaintiffs for failing to timely accept the case evaluation
award, the trial court was rewarding defendants, who intended to reject the case evaluation award;
these actions thwart the purpose of the rule, which is to encourage settlement by rewarding parties
who accept case evaluation awards.
In particular circumstances, “[t]he court may, in the interest of justice, refuse to award an
attorney fee under this rule.” MCR 2.405(D)(3).5 The interests of justice exception may apply to
“cases involving an issue of first impression or an issue of public interest.” MCR 2.405(D)(3)(ii).
The “interests of justice” exception will be invoked only in “unusual circumstances,” and absent
these “unusual circumstances,” the general rule would apply. Reitmeyer v Schultz Equip & Parts
Co, Inc, 237 Mich App 332, 338; 602 NW2d 596 (1999). Examples constituting unusual
circumstances necessary to invoke the exception are “ ‘where the law is unsettled and substantial
damages are at issue, where a party is indigent and an issue merits decision by a trier of fact, or
where the effect on third persons may be significant . . . .’ ” Haliw v Sterling Heights, 266 Mich
App 444, 448; 702 NW2d 637 (2005), quoting Luidens v 63rd Dist Court, 219 Mich App 24, 36;
555 NW2d 709 (1996). “The common thread in these examples is that there is a public interest in
having an issue judicially decided rather than merely settled by the parties. In such cases, this
public interest may override MCR 2.405’s purpose of encouraging settlement.” Luidens, 219 Mich
App at 36. While the trial court must use its discretion to deny an award, “few situations will
justify denying an award of costs under MCR 2.405 in the ‘interest of justice.’ ” Hamilton v Becker
Orthopedic Appliance Co, 214 Mich App 593, 596; 543 NW2d 60 (1995) (quotation marks and
citations omitted).
Here, plaintiffs do not suggest that the law is unsettled, nor do they argue that a significant
issue of public policy exists. While the circumstances of when the interest of justice exception
may apply are not exhaustive, the common thread in the provided examples is centered on public
interest. Luidens, 219 Mich App at 36. Plaintiffs’ counsel missing the accept/reject case
evaluation deadline due to an internal docketing error does not impact the public welfare nor
present any of the “unusual circumstances” necessary to invoke the exception. Absent the
“unusual circumstances” needed to trigger the interest of justice exception, we cannot conclude
that the trial court abused its discretion by awarding sanctions.
Plaintiffs also argue that if the decision to award case evaluation sanctions is upheld, the
trial court abused its discretion in awarding attorney’s fees. “[T]he burden of proving the
reasonableness of the requested fees rests with the party requesting them.” Khouri, 481 Mich at
528-529. Plaintiffs are only liable for those “attorney fees directly flowing from [their] rejection
of the case evaluation—those that accrued after the rejection and which were caused by defendant
5
Our Court has previously looked at how the interest of justice exception under MCR 2.405(D)(3)
is applied when applying the interest of justice exception under MCR 2.403(O)(11). See Sabbagh
v Hamilton Psychological Services, PLC, 329 Mich App 324, 365; 941 NW2d 685 (2019). The
interest of justice exception under MCR 2.403(O)(11) was eliminated through a court rule
amendment effective January 1, 2022. See Administrative Order No 2020-06 (2021).
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having to defend against plaintiff’s theory of liability and damage claim.” Ayre, 256 Mich App at
528, citing MCR 2.403(O)(6)(b).
Defendants requested attorney fees amounting to $21,147.50. Defendants provided their
counsel’s billing ledgers, which detailed the services provided and at what rate. The trial court
noted at the sanctions hearing that defendants’ attorney fees included billings for repeatedly
reviewing case file materials, such as deposition transcripts, and preparing for oral arguments for
their motion for summary disposition well before the scheduled hearing date. Defendants
explained that their attorneys had to repeatedly prepare for the case because of the continuous
adjournments and delays due to state and local restrictions to combat COVID-19. Moreover,
defendants’ counsel justified the reasonableness of the hourly rate by explaining that the attorneys
handling this matter were in good professional standing and each had over 35 years of legal
experience. The trial court addressed each of plaintiffs concerns methodically and ultimately
awarded case evaluation sanctions in the amount of $11,000. There is no evidence to suggest that
the trial court abused its discretion.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
-11- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487007/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re C. M. GUERRERO, Minor. November 17, 2022
No. 360432
Isabella Circuit Court
Family Division
LC No. 2020-000055-NA
In re M. A. ESPINOSA, Minor. No. 360433
Isabella Circuit Court
Family Division
LC No. 2020-000054-NA
Before: M. J. KELLY, P.J., and SHAPIRO and PATEL, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to the
two minor children pursuant to MCL 712A.19b(3)(b)(i), (c)(i), (g), and (j). Because there are no
errors warranting reversal, we affirm.
I. REASONABLENESS OF SERVICES
A. PRESERVATION AND STANDARD OF REVIEW
Respondent first argues that reversal is required because petitioner did not satisfy its
statutory obligation to provide reasonable services toward reunification. Specifically, she argues
that petitioner failed to provide her with mental health services to assist her in overcoming her
dependency on controlled substances. Respondent acknowledges that she did not preserve this
issue below by either objecting to the services offered or requesting additional services. See In re
A Atchley, ___ Mich App ___; ___ NW2d ___ (2022) (Docket No. 358502); slip op at 2; In re
Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). Accordingly, we review this issue for plain
error affecting respondent’s substantial rights. In re Pederson, 331 Mich App 445, 463; 951 NW2d
704 (2020). To show plain error warranting reversal, respondent must demonstrate: (1) that an
error occurred, (2) that the error was plain, i.e., clear or obvious, and (3) that the error affected her
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substantial rights. Id. at 463 (citations omitted). A clear or obvious error is one that is not subject
to reasonable dispute, and an error affects a party’s substantial rights “when there is a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. (quotation
marks and citation omitted).
B. ANALYSIS
Petitioner has a statutory obligation to make reasonable efforts to reunify a respondent with
her children. MCL 712A.18f(4); In re Terry, 240 Mich App 14, 26; 610 NW2d 563 (2000). Thus,
reversal of an order terminating parental rights may be appropriate if petitioner fails to offer a
respondent a reasonable opportunity to participate in services. In re Mason, 486 Mich 142, 158-
160; 782 NW2d 747 (2010). However, a respondent also has a commensurate responsibility to
participate in and benefit from the services offered by petitioner. In re Frey, 297 Mich App at 248.
On appeal, respondent asserts that mental health services were not offered to her. The
record does not support her assertion. At the November 4, 2020 review hearing, the caseworker
testified that respondent enrolled in an inpatient substance abuse treatment program in California.
Respondent also told the caseworker that she was attending counseling sessions twice a week, once
with her therapist and once with her counselor. At the January 25, 2021 review hearing, the
caseworker explained that respondent was receiving services at Behavioral Health through the
Saginaw Chippewa Indian Tribe for an “intensive community treatment program.” The program
was scheduled to last for at least 60 days, but could be extended to 90 days. The caseworker also
testified that respondent had been assigned a counselor, was receiving counseling through
Behavioral Health, and that respondent had met with a psychiatrist. Similarly, at the termination
hearing, another caseworker testified that respondent had “been enrolled in counseling through
Behavioral Health through the Saginaw Chippewa Tribe on a couple different occasions.” That
caseworker also stated that respondent had been referred to a Behavioral Health psychiatrist to
obtain medication.
Further, to demonstrate that petitioner failed to provide reasonable services, respondent
must establish that she would have fared better if other services had been offered. See In re Fried,
266 Mich App 535, 543; 702 NW2d 192 (2005). The testimony at the termination hearing
indicates that respondent failed to participate in or benefit from the services that were offered to
her. At the April 12, 2021 review hearing, the caseworker testified that respondent’s counselor at
Behavioral Health reported that respondent had made only minimal progress. Respondent’s
counselor also reported that respondent had been discharged from counseling services on
December 13, 2021, because of multiple no-shows and missed visits, despite that they had kept
the case open longer than usual because of respondent’s substance abuse history. Additionally,
although respondent had been scheduled to see a Behavioral Health psychiatrist to obtain
medication, she failed to attend the scheduled appointments and petitioner could not force her to
follow through with these services. Next, in November 2021, after respondent had again relapsed,
her caseworker offered to assist respondent in getting admitted to another inpatient program, but
respondent stated that she was not interested in enrolling in a rehabilitation program. A week
before the termination hearing, respondent told her caseworker that she was considering entering
another inpatient program through the Saginaw Chippewa Indian Tribe, but respondent had also
reported that she was considering entering White Pine, a mental hospital, “to get her medications
stabilized.” She did not follow through.
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Respondent also failed to participate in other services. An in-home parent educator
testified that respondent missed approximately half of the meetings and the service was terminated
early on February 2, 2021, because of respondent’s noncompliance. A foster care supportive
visitation coach testified that she met with respondent in September 2021 for parenting classes,
but the classes were discontinued because of respondent’s missed visits.
In sum, the record does not support respondent’s assertion that petitioner failed to make
reasonable efforts to reunite respondent with her children. And, considering respondent’s failure
to participate in and benefit from the services provided, respondent has not demonstrated that she
would have fared better if additional services had been offered. Accordingly, respondent is not
entitled to relief with respect to this issue.
II. FAILURE TO ADJOURN THE TERMINATION HEARING
A. PRESERVATION AND STANDARD OF REVIEW
Respondent next argues that the trial court erred by failing to adjourn the termination
hearing on January 6, 2022, after becoming aware that she had recently used drugs and may be
experiencing withdrawal symptoms. This issue is unpreserved because neither respondent nor her
lawyer objected to continuing the hearing and neither requested an adjournment. Indeed, upon
inquiry by the trial court, respondent and her lawyer both assured the court that respondent was
“okay” to continue and wished to proceed with the hearing. Because this issue is unpreserved, our
review is limited to plain error affecting respondent’s substantial rights. In re Pederson, 331 Mich
App at 463.
B. ANALYSIS
Respondent presents this argument as a variation of a due-process claim that the trial court
erred by continuing the termination hearing without her “presence.” The record does not support
this claim. MCR 3.923(G) provides that an adjournment of “trials or hearings in child protective
proceedings should be granted only (1) for good cause, (2) after taking into consideration the best
interests of the child, and (3) for as short a period of time as necessary.” “Good cause” means “a
legally sufficient reason and a substantial reason amounting in law to a legal excuse for failing to
perform an act required by law.” In re Utrera, 281 Mich App 1, 10-11; 761 NW2d 253 (2008)
(quotation marks and citations omitted). A trial court cannot deny a party’s right to attend a
hearing, but the court rules applicable to child protective proceedings do not require the court to
secure the respondent’s physical presence at a hearing. See generally MCR 3.973(D); In re
Vasquez, 199 Mich App 44, 49; 501 NW2d 231 (1993).
With respect to respondent’s due-process concerns, this Court analyzes such a claim
applying the three-part test in Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18
(1976). See In re Vasquez, 199 Mich App at 50. As explained in Mathews, 424 US at 335, the
relevant considerations are:
First, the private interest that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally,
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the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.
Here, the trial court’s decision to proceed with the hearing was not plain error.
Adjournments in child protection proceedings are disfavored and must be supported by good
cause. Moreover, respondent was physically present at the termination hearing, and she was
represented by a lawyer, who was also present. When concerns arose about respondent’s ability
to meaningfully participate in the proceeding, the court investigated the situation.
The court ordered respondent to submit to a drug test, and when the results came back
positive for multiple controlled substances, the court took additional steps to determine whether
the results affected respondent’s ability to understand and participate in the proceeding. The
probation officer who administered the drug test explained that the test did not reveal the actual
levels of any substances in respondent’s system, and that some substances can remain in a person’s
system for up to five days after use. The court then questioned respondent, who stated that she
had not used any substances for three or four days before the hearing and denied that she was under
the influence of any substances at the time of the hearing. On the suggestion of respondent’s
lawyer, the trial court then held a lunch recess before again questioning respondent, who again
denied that she was currently under the influence of any substances. Respondent also confirmed
that she understood what was occurring and she agreed that she felt “okay to proceed.” Later,
when the trial court noticed that respondent had put her head on the table, it asked her whether she
would like a break to get some water. Respondent denied that she was sleeping and said that she
was listening to the testimony and wished to continue.
Under the circumstances, considering the trial court’s efforts to investigate the situation,
and that respondent was represented by a lawyer, repeatedly denied that she was under the
influence of any substances, and stated that she could proceed, the trial court did not violate
respondent’s right to due process by continuing the hearing. Moreover, respondent does not
explain how her condition affected the proceedings, or how the proceedings would have been
different if the court had continued the hearing to another date. Accordingly, respondent has failed
to demonstrate that she is entitled to relief on the basis of this issue.
Affirmed.
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
/s/ Sima G. Patel
-4- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486162/ | On Appellants’ "Verified Petition for Extraordinary Relief from Order Granting Intervention of United States Small Business Administration":
On September 28, 1993, Roy T. Chikamoto, counsel for appellants, filed a "Verified Petition for Extraordinary Relief from Order Granting Intervention of United States Small Business Administration." Counsel seeks an extraordinary writ requiring the trial court to vacate its order of July 19, 1993, which granted the United States Small Business Administration (hereinafter SBA)’s motion to intervene.
"Review of acts or failures to act by the Trial Division is had in the Appellate Division of the High Court." T.C.R.C.P. 88. In the Appellate Division, procedures for extraordinary writs are to conform with T.C.R.C.P. 87-102. A.C.R. 21. The respondents and real parties-in-interest must file any memoranda in opposition within 15 days of the service of the petition on them. T.C.R.C.P. 93. The court may grant, partially grant, or deny the petition. T.C.R.C.P. 92. If the petition is granted, a hearing is subsequently scheduled. T.C.R.C.P. 94-96.
Regarding a petition for relief, "a single justice of the appellate division may entertain and may grant or deny any request for relief . . . [except to] dismiss or otherwise determine an appeal or other proceeding." A.C.R. 27(c). Because either granting or denying the petition for an extraordinary writ would not determine the status of the appeal, a single justice may decide this petition. Pursuant to A.C.R. 27(c), this decision may be reviewed by the Appellate Division at the November appellate session.
Mandamus is available only if other forms of relief are unavailable. Heckler v. Ringer, 466 U.S. 602, 616 (1984) (citing Kerr v. United States Dist. Court, 426 U.S. 394, 402-03 (1976); United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543-44 (1937)); *168American Samoa Gov’t v. District Court, 10 A.S.R.2d 18, 19 (Trial Div. 1989); Siofele v. Shimasaki, 9 A.S.R.2d 3, 11 (Trial Div. 1988). However, appellants’ counsel has not shown that other remedies are •unavailable or even that SBA was improperly allowed to intervene.
SBA’s motion to intervene was granted in accordance with A.S.C.A. § 37.1102. Order Granting Motion to Intervene, CA No. 25-92 (July 19, 1993); see Order Relating to Motions [to] Cancel or Postpone Foreclosure Sales, Vacate Judgments, Dismiss Complaints, and Terminate Receivership, CA No. 25-92, slip op. at 2 (May 10, 1993). Likewise, appellants/defendants did not object to SBA’s intervention in this action; though contrary to appellants’ statements, the trial court did not state that defendants/appellants agreed to intervention but that counsel Gurr stated that he could not stipulate to SBA’s intervention before consulting with counsel Chikamoto. Order Denying Motion for Stay Pending Appeal, CA No. 25-92, slip op. at 2 (July 22, 1993). Furthermore, appellants/defendants themselves raised the issue of SBA’s nonjoinder by arguing that SBA was a statutorily indispensable party. Defendants’ Memorandum in Support of Motion to Vacate Judgments [of January 29, 1993] (filed April 26, 1993), at 1-3.1
Likewise, appellants have failed to show that an extraordinary writ would be the proper remedy. Even if the trial division’s decision were erroneous, appellants’ counsel has not shown that other forms of relief are unavailable.
Therefore, appellants’ petition for extraordinary relief is denied.
It is so ordered.
On May 20, 1993, an order was issued which postponed the judicial sale until SBA was notified of the proceedings but denied defendants’ motions to vacate judgments, cancel sale, and dismiss complaints. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486163/ | Opinion and Order:
This matter came on regularly for hearing on January 15, 1993, upon the natural parents’ petitions to relinquish their parental rights to their three minor children to enable the children’s availability for adoption by their paternal grandmother.
The three children are, respectively, ages four, five and six years. They live with their father, age 37 years, and mother, age 30 years, who love their children and provide significantly for their children’s emotional and physical care. Their grandmother, age 68 years, lives nearby. At this time, this family group’s income is derived principally, if not entirely, from the grandmother’s retirement pay and Social Security benefits, and another, unmarried son’s earnings. Clearly, she contributes financially and in immeasurable ways to her grandchildren’s upbringing.
The parents’ desire to relinquish their parental rights appears to be voluntarily motivated in recognition of the grandmother’s kindness towards their children and their impecunious situation. The father apparently suffers from an emotional disorder and does not maintain steady employment. The mother is unemployed.
The grandmother appears to still be in good health. However, she foresees the day in due course when her grandchildren will return to their loving parents’ total care. She also knows that the family members presently living together are close-knit in the Samoan way of life. She *2admits that the real purpose for the adoption is enhancement of Social Security benefits.
Relinquishment of parental rights must be predicated on the best interests of all concerned. A.S.C.A. § 45.0402(e). The circumstances here are factored on the grandmother’s and parents’ immediate best interests. Higher Social Security benefits are not, as such, detrimental the children’s interests. However, disruption of the natural relationships existing in this situation is not in the children’s more important, long-term best interests.
The petitions should be and are denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486165/ | This protracted proceeding for selection of the next registrant of the matai title Leaeno of the Villages of Matu‘u and Faganeanea, American Samoa, began in 1987. Claimant Fagafaga Daniel Langkilde ("Fagafaga") submitted his claim of succession to the territorial registrar on April 21,1987. The 60-day notice of the proposed registration of this matai title was posted on the same date. Counterclaimants Uiagalelei Gafoa Le'aeno ("Uiagalelei") and Frank W. Reed ("Falani") presented their claims on June 18 and 22, 1987, respectively.
Pursuant to A.S.C.A. § 43.0302, the matter was referred to the secretary of Samoan affairs on June 24, 1987, for dispute resolution, and the secretary’s certificate of irreconcilable dispute was issued by the deputy secretary on February 15, 1989. On February 16, 1989, the territorial registrar referred the matter for judicial settlement, and this judicial proceeding was commenced. On July 8, 1993, Uiagalelei withdrew his candidacy. Trial finally began on the following day, July 9, 1993, and was concluded on July 12, 1993.
ADEQUACY OF THE PETITIONS FOR REGISTRATION
The adequacy of the petitions filed by Fagafaga and Falani with the territorial registrar for registration of the matai title Leaeno must be addressed first. Fagafaga’s petition was signed by 17 persons. One signer is eliminated as a non-blood member of the Leaeno family. The remaining 16 are members of Fagafaga’s clan, the extended Amio family. Falani’s petition was signed by 11 members of his clan, the *6same extended Amio family. Uiagalelei’s petition was signed by 53 members of his clan, the extended Ugaloto family.
A.S.C.A. § 1.0405(b) sets forth the requirements for valid petitions. Among other elements, the petition must be signed by 25 blood members of the matai title claimed. These persons must be at least 18 years of age and residents of American Samoa at the time the petition is filed with the territorial registrar. If the family has less than 25 qualified members, the petition is still valid when it is supported by the claimant’s affidavit of an insufficient number of blood members. Under A.S.C.A. § 1.0405(c), the territorial registrar, if not satisfied with the information provided in the petition, must require proof of blood relation to the title, age, residency, or insufficiency of blood members. A.S.C.A. § 1.0407(b), (c) and (d) essentially establishes the same requirements for petitions submitted by counterclaimants or objectors.
An important factor for present purposes is the interpretation of the word "family" in the context of an insufficient number of qualified blood members. The plain meaning of the word connotes all such persons in the entire, extended family related to the title. However, this definition virtually renders a very small-clan member’s aspirations to a title futile when candidates come forth from each clan in a family and his or her clan has fewer than 25 adult, resident blood members. The problem becomes even more difficult when, as in this case, more than one aspirant comes from the same small clan.
To serve as a guide until there is further legislated direction, we equate the word "family" with the claimant’s or counterclaimant’s clan for purposes of testing the validity of the petitions. Cf. In re Matai Title "Mauga", 4 A.S.R. 616, 619-622 (Trial Div. 1965) ("intention of the Legislature is not and should not be to frustrate or make impossible the selection of a matai when a title becomes vacant").
Nevertheless, since the Amio clan had at least 27 members qualified to sign petitions to register matai titles, this interpretation does not definitively resolve the issue in this case. We are tempted to further interpret the statutes to allow two or more candidates from the same clan to file petitions with less than 25 signatories whenever the clan has fewer than 49 qualified members. However, judicial constraint precludes such creative construction.
Instead, we will simply follow the precedent of In re Matai Title "Mauga", 4 A.S.R. at 619-622, which dealt with similar factual matters *7and inadequate statutory guidance, and proceed with awarding this title. We believe that both candidates’ affidavits stating that there were less than 25 qualified family members were made in good faith. In any event, the family is entitled to the judicial resolution it seeks after so many years without a Leaeno titleholder.
FINDINGS ON STATUTORY CRITERIA
Based on the evidence submitted to the court, the following findings of fact are made with respect to the four criteria set forth in A.S.C.A. § 1.0409.
1. Best Hereditary Right.
This factual determination is traditionally guided by the percentage of the candidates’ blood relationship to a former holder of the matai title (though in unusual cases it may be appropriate to calculate blood relationships from the original title holder or from the nearest common ancestor, the so-called "Sotoa" rule and its variant). See In re Matai Title "Iuli", 14 A.S.R.2d 116, 117-18 (Land &Titles Div. 1990); In re Matai Title "Tuiteleleapaga", 15 A.S.R.2d 90, 90-91 (Land & Titles Div. 1990); In re Matai Title "Sotoa", 2 A.S.R.2d 15 (Lands & Titles Div. 1984); see also In re Matai Title "Mulitauauopele", 17 A.S.R.2d 75 (Land & Titles Div. 1990). By the traditional measure Falani, as the son of Leaeno Viliamu Reed, has Vi or 50% Leaeno blood. On the other hand, Fagafaga is the great-great-grandson of Leaeno Fagafaga and, on this basis, has 1/16 or 6.25% Leaeno blood.
No circumstances in this case justify application of the "Sotoa" rule. However, even under this approach, Falani possesses a superior hereditary right to the title. The candidates concur on the names of the original Leaeno and his successors, including their nearest common ancestor, Leaeno Fagafaga. While Fagafaga is four generations removed from the nearest common ancestor, Falani is only three generations removed from this ancestor.
Indeed, Fagafaga readily conceded that Falani prevails on the hereditary right criterion.
2. Wish of Majority or Plurality of the Clans of the Family.
This consideration seeks to weigh the candidates’ support within the family by accounting for the wish of the majority or plurality of the *8customarily recognized clans in the family at the time of trial. A.S.C. A. § 1.0409(c)(2); In re Matai Title "Tauala", 15 A.S.R.2d 65, 68 (Land & Titles Div. 1990). The candidates also at least partially agree on this issue. The family has two clans established through Leaeno Galeva'a’s progeny, his daughter Amio and son Ugaloto. Both candidates are members of the Amio clan. However, their respective assessments of the wish of the clans diverge at this point.
During this vacancy in the Leaeno title, the Amio clan met either separately or with the Ugaloto clan some eight or nine times in efforts to choose a successor for the title. The last time was after a continuance of the trial for this purpose and only a few days before trial. One overall result of these meetings is that both Fagafaga and Falani still want to be the Amio clan’s choice, and each refuses to concede to the other. Apparently, Fagafaga can command a numerical majority within the clan. However, clan support can not be evaluated by counting heads and is traditionally measured by consensus. In re Matai Title "Tauala", 14 A.S.R.2d 83, 88 (Lands & Titles Div. 1990). Amio’s and her offsprings’ marriages have produced several genealogical lines. Most of these lineages favor and, thus, forge consensus for Falani. Viewed in this traditional perspective, Falani has the Amio clan’s support.
During the last few days before trial, Uiagalelei made his decision to withdraw his candidacy and conveyed to Fagafaga and Falani that they and the Amio clan should decide upon the title registrant. This turn of events could be interpreted as signifying that the Ugaloto clan does not support either Fagafaga or Falani. It could also mean that the Ugaloto clan supports either of them upon selection by the Amio clan. At one time, a minister’s blessing, ava cup ceremony, and related rituals were held for Uiagalelei and Falani jointly. This event certainly indicates that the Ugaloto clan supports Falani if he is the Amio clan’s choice.
Given the Amio’s clan consensus support for Falani and the reasonable inference of the Ugaloto clan’s support for Falani if he is the Amio clan’s choice, Falani has dominance on this issue.
3. Forcefulness. Character, and Personality: Knowledge of Samoan Customs.
Leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai are some of the factors which aid in meeting this criterion. See, e.g. In re Matai Title "Tauala", 14 A.S.R.2d at 89-93; In re Matai Title *9"Tuiteleleapaga", 15 A.S.R.2d at 90-93; In re Matai Title "Mauga", 4 A.S.R. at 628-29 (predecessor Code Amer. Samoa, 1961 ed, § 6.0107).
Unquestionably, Fagafaga is a highly visible member of the generation that must succeed to leadership in American Samoa in the foreseeable future. He sought out educational goals, having graduated at the secondary level, attended institutions of higher learning off-island, and completed specialty training for radio broadcasting and disaster emergency communications. He has hands-on experience in supervisory and managerial roles. He is an accomplished master-of-ceremonies and broadcaster of events. He has served in the House of Representatives of the Legislature of American Samoa, on various governmental committees, boards and commissions, and in several diverse church functions. He demonstrated initiative in enabling his fellow villagers to cope with the hurricane disasters in 1990 and 1991 and in dealing with other village needs. He has also been a matai for some 14 years. On the other hand, his matai title was created by a former Leaeno after the matai title registration process closed on January 1, 1969, and, thus, is not legally recognizable.
Falani’s record is less impressive in some particulars. He did not complete secondary education, where his formal education ended. He admitted to a serious violation of the law outside of American Samoa while still a juvenile. Although he worked in several responsible occupational positions, both in the private sector and with the American Samoa Government, they largely lacked supervisory or managerial functions. The prime exception is his eight years of service as a member of the House of Representatives, including chairmanship of the House Rules Committee and vice speakership of the House. His other activities also include service on various government committees, boards and commissions, and in several church positions. He has never been a matai, but he turned down several requests to accept a title in the Village of Matu‘u because he was then residing in another village and representing that area in the House of Representatives.
Both contenders confirmed their knowledge of Samoan customs well. Both honor those customs and rendered loyal and respectful service, or tautua, to Leaeno titleholders.
Fagafaga’s educational and career accomplishments give him a distinct but not overwhelming advantage in this category. Falani has overcome in maturity and humility any deficiencies from his younger years. However, Fagafaga does slightly prevail on this standard.
*104. Value to Family, Village, and Country.
This consideration seeks to evaluate the candidates’ prospective value to his family, village, and American Samoa as holder of the title, in light of the first three criteria and their leadership potential and plans. See In re Matai Title "Tauala", 14 A.S.R.2d at 93-94); In re Matai Title "Sala," 4 A.S.R. 21, 23 (Land & Titles Div. 1971) (predecessor Code Amer. Samoa, 1961 ed, § 6.0107).
As indicated above, both aspirants’ projected a high-minded willingness to undertake responsibilities and a resolute devotion to duty, including plans to unify the family after the court’s decision. Fagafaga’s activities tend to be publicly noticeable, while Falani proceeds more quietly and less ostentatiously. Both manifest potential for greater leadership roles, though Falani’s older, generational position in the family must also be taken into account. Overall, each contestant is prepared and well-suited to assume the obligations of this title. They are ranked equally on this criterion.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact, the following conclusions of law are reached.
1. Falani has the best hereditary right to the Leaeno title.
2. Falani enjoys the support of the majority of the clans of the family.
3. While both candidates are relatively equal on knowledge of Samoan custom, Fagafagahas the edge on forcefulness, character and personality. Fagafaga prevails by a narrow margin on this consideration.
4. Despite different leadership styles, both candidates are evenly matched in their potential value to family, village and country. Neither one is superior in this category.
5. A.S.C.A. § 1.0409(b) gives statutory priority to the four considerations in the order listed. More weight is given to each criterion than to those following it, taking into account the relative margins by which the candidates may win on each of the four categories. In re Matai Title "Tauala," 15 A.S.R.2d at 69. Recognizing the priority assigned to the best hereditary right over majority clan support, and majority clan support over forcefulness, character and personality and *11knowledge of Samoan customs, as well as the relatively narrow advantage Fagafaga has over Falani in the latter consideration, the matai title Leaeno is awarded to Falani.
The territorial registrar shall register the Leaeno title in the name of Frank W. Reed.
Judgment shall enter accordingly.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486166/ | In this proceeding, the natural parents petitioned to relinquish their parental rights and obligations to their five-months old daughter and allow for the child’s adoption by her maternal grandparents. An evidentiary hearing was conducted on September 10, 1993.
The interested parties, child, parents and grandparents, live in the same household. The parents were married shortly after their daughter’s birth. Both are in their twenties, are educated, and recently acquired employment. Their prospects for the future are bright.
The grandfather is 63 years old and retired. The grandmother is 65 years of age and also retired. They enjoy a substantial retirement income from pensions, Social Security benefits, and contributions from sons overseas.
*12The interested parties are also promoting a loving, caring relationship between granddaughter and grandparents. Eventually, however, complete and intimate familial contacts between the child and her parents will be essential. Legal disruption of the child’s parental relations is not in her present, long-term best interests.
This petition should be and is properly denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486168/ | Order Denying Motion for Default Judgment: •
Plaintiff’s motion for a default judgment against defendant ye Ahn Moolsoan, Ltd. ("YAM"), doing business as Polynesian Tradjng Company ("PTC"), came regularly for hearing on September 23, 1R93. Plaintiff appeared by counsel. Neither named defendant was present,
Plaintiff served the summons and complaint and the notice of (he hqariqg on this motion pn defendant Ralph Tuia ("Tuia"), in hi^ individual capacity and as thp agent of YAM doing business as PTC. The issue tp resolve in deciding the motion is Tuia’s agency relationship with YAM-
At this point, the evidence clearly shows that YAM and Tuia conducted business in American Samoa as a partnership, joint venture or some other form of unincorporated association, using PTC as the entity's business name, Service is made on a partnership or other unincorporated association "by delivering a copy of the summons apd of the complaint to an officer, a managing or general agent, or to any other agent authorize^ by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant." T.C.R.C.P. Rule 4(d)(3). As such, a partnership may be served by serving a person with substantial authority and responsibility over its activities. Shakopee Mdewakanton Sioux Community v. Pan American Management, 616 F. Supp. 1200, 1214 (D. Minn. 1985), appeals dismissed 789 F.2d 632 (8th Cir. 1986).
However, service on such representatives is only valid regarding the partnership anfl does not confer jurisdiction over a partner. Jurisdiction *16over each partner must be acquired by service on a person or other entity representing the partner for process purposes. Id. at 1215 (citing Olsen v. Puntervold, 338 F.2d 21, 22 (5th Cir. 1964); Ford Motor v. Sylte, 248 N.W. 55, 56 (Minn. 1933); Antiel v. V.W.E. Investments, 353 N.W.2d 681, 683 (Minn. App. 1984), review denied Minn. Sup. Ct. (Jan. 9, 1985)).
The evidence available also shows that Tuia took an active role in Polynesian Trading., According to the records at the American Samoa Government’s Office of Development Planning, the agency regulating the issuance of business licenses, PTC’s business license was in his name. As such, tire service on Tuia was sufficient regarding both himself and the partnership.
However, YAM and PTC are not identical entities. Ostensibly, YAM is a corporation existing under the laws of the Republic of Korea. Tuia’s agency connection with YAM is limited tp representations in the promissory note and personal guaranty, which form the basis for this litigation and were signed by Tuia on September 6, 1991. Tuia signed the note as a principal of YAM as the maker of the note. He signed the guaranty as a principal of PTC and agent of YAM. According to Tuia’s answer, September 1991 is the month during which Kyu Won Kim, allegedly YAM’s owner, permanently departed American Samoa, perhaps leaving his brother in charge of YAM’s affairs here for awhile. Apparently, the beginning of PTC’s financial difficulties preceded Kim’s departure, and these events combined to lead to Tuia’s execution of the note and guaranty, at plaiptiff’s urging. While clearly the YAM/Tuia association did business as PTC, the evidence fails to show that YAM as a separate entity did so.
Under these circumstances, Tuia cannot be recognized as YAM’s agent for service of process. The evidence of his authority in this capacity is simply ' unconvincing. Plaintiff has presented no other evidence • establishing that jurisdiction over YAM was accomplished by service on an authorized agent in American Samoa or Korea. Thus, YAM has not been properly served with process or notice of the hearing on this motion.
Because plaintiff has not served YAM, plaintiff’s motion for a default judgment must be denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487032/ | 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
ENCOMPASS HEALTHCARE, PLLC, FOR PUBLICATION
November 17, 2022
Plaintiff-Appellant, 9:05 a.m.
v No. 357225
Oakland Circuit Court
CITIZENS INSURANCE COMPANY, LC No. 2019-177749-CZ
Defendant-Appellee.
Before: GLEICHER, C.J., and SERVITTO and YATES, JJ.
GLEICHER, C.J.
The goals of Michigan’s no-fault insurance system include promptly compensating victims
of motor vehicle accidents for covered losses and reducing the need for litigation. When an insurer
denies a claim, the one-year-back rule serves another goal by encouraging claimants to file suit
when the evidence is fresh, limiting recovery for improperly denied claims to losses incurred
during the year before the action is filed.
But when is a claim denied, thereby triggering the one-year-back rule’s damage-limiting
provision?
For decades, our courts equitably tolled the one-year damage-limiting provision until the
date the insurer formally and explicitly denied liability. Our Supreme Court eradicated this judicial
tolling of the one-year-back rule in Devillers v Auto Club Ins Ass’n, 473 Mich 562; 702 NW2d
539 (2005), holding that because the statute did not include a tolling mechanism, none could be
engrafted. In 2019, however, the Legislature amended the no-fault act by adding a tolling
provision. Now, the one-year-back period is tolled until the date of the insurer’s formal denial of
a claim. Applying the new statutory language here, we hold that because Citizens Insurance
Company never formally denied Encompass Healthcare, PLLC’s requests for reimbursement, the
application of the one-year-back rule remained tolled until this lawsuit was filed. We reverse the
circuit court’s contrary finding and remand for further proceedings.
-1-
I. BACKGROUND
The facts are undisputed. In December 2017, Ronald Mannor was injured in a motor
vehicle accident and required surgery to repair a cervical fracture. Mannor later developed a
pressure sore. Encompass provided treatment for the pressure sore from June to October 2018.
Encompass sought reimbursement from Citizens of $921,828.44, but Citizens paid only
$177,655.25. In May 2019, Mannor assigned his right to benefits and recovery to Encompass.
On November 4, 2019, Encompass filed a complaint in the Oakland Circuit Court, asserting
breach of contract and seeking declaratory relief against Citizens for unpaid no-fault benefits.1
Encompass alleged that Citizens improperly refused to reimburse it for the reasonably necessary
services it provided to Mannor. Encompass requested a declaration concerning Citizens’
obligation to pay and a judgment for the unpaid reimbursement claims, plus costs, interest, and
fees.
Following initial discovery, Citizens moved for summary disposition under MCL
2.116(C)(7), (8), and (10). Citizens contended that the one-year-back rule of MCL 500.3145(2)
abrogated any further obligation of payment because Encompass’s November 4, 2019 complaint
was filed more than a year after the losses at issue were incurred, as Mannor’s treatment ended in
October 2018. Citizens requested that the court grant its motion and either (1) dismiss
Encompass’s complaint in its entirety with prejudice, or (2) dismiss Encompass’s complaint with
respect to any expenses incurred before November 4, 2018 (which would account for all of
Encompass’s expenses).
Encompass conceded that its expenses were incurred more than a year before it initiated
this action, but argued that reimbursement was nevertheless warranted because of the recently
adopted tolling provision within MCL 500.3415(3). According to Encompass, because Citizens
never formally denied its reimbursement claims, the one-year-back rule remained tolled and
Encompass was not required to preserve its claims with an earlier complaint.
Citizens countered that MCL 500.3145(2) requires strict compliance and is not subject to
tolling under MCL 500.3145(3), at least not under the circumstances here.
The circuit court partially granted Citizens’ motion as follows:
Pursuant to MCL 500.3145(2), “the claimant may not recover benefits for
any portion of the loss incurred more than 1 year before the date on which the action
was commenced.” [Encompass’s] Complaint was filed on November 4, 2019.
Therefore, [Citizens] argues that pursuant to the “one-year-back[ ]rule,” as set forth
1
The no-fault act, MCL 500.3103 et seq., was substantially amended by 2019 PA 21, effective
June 11, 2019. Because Encompass’s complaint was filed after these amendments took effect, this
case is governed by the newly adopted statutory language. See George v Allstate Ins Co, 329 Mich
App 448, 451 n 3; 942 NW2d 629 (2019) (“This case was commenced before the [2019]
amendment[s] and, therefore, it is controlled by the former provisions of the no-fault act.”).
-2-
in MCL 500.3145(2), supra, any portion of the loss incurred by [Encompass] before
November 4, 2018 is not recoverable.
However, the Court finds that MCL 500.3145(3) acts to toll the limitations
period in 500.3145(2) for any losses which were not formally denied by [Citizens]
prior to November 4, 2018. The Court finds that [Citizens’] [EORs] serve as formal
denials within the purview of MCL 500.3145(3) because [Citizens] denied portions
of [Encompass’s] claims. The Court finds that summary disposition is appropriate
regarding all claims that were denied via an [EOR] prior to November 4, 2018.
However, summary disposition is inappropriate as to any claims that were denied
via an [EOR] dated on or after November 4, 2018.
The court later clarified this ruling at Encompass’s request, stating:
The Court’s May 14, 2020 Opinion & Order was clear. All claims which were
denied by an [EOR] prior to November 4, 2018 are barred by the limitations period
in MCL 500.3145(2). The Court’s ruling made it clear that an [EOR] serves as a
formal denial within the purview of MCL 500.3145(3). Therefore, the limitations
period in MCL 500.3145(2) began[, for each reimbursement claim,] upon the
issuance of the first [EOR] denying the claim in whole or in part.
On April 30, 2021, the circuit court entered a stipulated order dismissing Encompass’s
complaint without prejudice so that Encompass could file the instant appeal challenging the court’s
May 14, 2020 and January 8, 2021 orders.
II. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a motion for summary disposition. El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). We also review issues
of statutory interpretation de novo. People v Zajaczkowski, 493 Mich 6, 12; 825 NW2d 554 (2012).
Under MCR 2.116(C)(7), summary disposition is warranted when a claim is barred by the
applicable statute of limitations. Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 288; 731 NW2d
29 (2007). Additional documentary evidence beyond the pleadings may be submitted by the
parties, but is not required; if provided, such evidence must be considered. Maiden v Rozwood,
461 Mich 109, 119; 597 NW2d 817 (1999). Whether a statute of limitations applies in a case is a
question of law we review de novo. Ferndale v Florence Cement Co, 269 Mich App 452, 457; 712
NW2d 522 (2006). In contrast, motions under MCR 2.116(C)(8) “test[] the legal sufficiency of a
claim based on the factual allegations in the complaint.” El-Khalil, 504 Mich at 159. “When
considering such a motion, a trial court must accept all factual allegations as true, deciding the
motion on the pleadings alone.”2 Id. at 160.
2
Because the circuit court evaluated documents outside of the pleadings, we consider the motion
as granted under MCR 2.116(C)(7) and/or (10). See Spiek v Mich Dep’t of Transp, 456 Mich 331,
338; 572 NW2d 201 (1998).
-3-
MCR 2.116(C)(10) provides that summary disposition is appropriate when “[e]xcept as to
the amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” A motion brought under MCR
2.116(C)(10) tests the factual support for a party’s action. Pioneer State Mut Ins Co v Dells, 301
Mich App 368, 377; 836 NW2d 257 (2013).
III. ANALYSIS
“The primary goal of statutory interpretation is to identify and give effect to the intent of
the Legislature. We first look to the specific language of the statute in determining the intent of
the Legislature.” Port Sheldon Beach Ass’n v Dep’t of Environmental Quality, 318 Mich App 300,
308; 896 NW2d 496 (2016). “We accord to every word or phrase of a statute its plain and ordinary
meaning, unless a term has a special, technical meaning or is defined in the statute.” Guardian
Environmental Servs, Inc v Bureau of Constr Codes & Fire Safety, 279 Mich App 1, 6; 755 NW2d
556 (2008). Relevant here, Michigan courts have recognized that statutory amendments directed
at a particular judicial decision can be remedial in nature by “reinstat[ing] the state of the law as it
existed prior to the judicial decision.” Buhl v Oak Park, 329 Mich App 486, 505-506; 942 NW2d
667 (2019), rev’d on other grounds, 507 Mich 236 (2021).
Encompass contends that the circuit court committed reversible error in partially granting
Citizens’ motion for summary disposition regarding any reimbursement claims that were “denied”
by its provision of “explanations of review” (EORs) to Encompass before November 4, 2018.
Specifically, Encompass argues that the court erroneously determined that the EORs constituted
“formal denials” as contemplated under MCL 500.3145(3).
Encompass particularly faults the circuit court for “effectively reading into the amended
statute language that did not exist and ignoring longstanding case law that clearly explained an
insurance company’s obligation when formally denying a claim.” Relying on various cases,
Encompass asserts that a formal denial is a legal term of art demanding that such expressions be
explicit and unequivocal, requirements that were allegedly lacking in the EORs (or satisfaction of
which is at least subject to a question of fact). Encompass also notes that Citizens’ practices in
responding to the claims allowed for reevaluation of particular expenses even after the initially
stated “Approval Date” in each EOR.
Encompass argues further that because Citizens never formally denied the reimbursement
claims, the one-year-back rule remained tolled up to the filing of its complaint in November 2019
and did not prohibit relief for any of its claims. Accordingly, Encompass requests that this Court
reverse the circuit court’s May 14, 2020 order partially granting Citizens’ motion for summary
disposition (as well as the court’s related January 8, 2021 order clarifying this earlier ruling) and
remand for further proceedings.
Citizens counters that the circuit court correctly determined that the EORs constituted
formal denials under MCL 500.3145(3), thereby ending the tolling period for each reimbursement
claim. Noting that the no-fault act does not define “formal denial,” Citizens claims that its EORs
clearly met this standard based on the normal dictionary definitions of “formal” and “denial.”
Citizens also argues that the EORs otherwise complied with separate caselaw requiring that such
expressions be sufficiently explicit.
-4-
A. THE ONE-YEAR-BACK RULE AND THE 2019 NO-FAULT AMENDMENTS
Before the recent no-fault amendments, MCL 500.3145, as amended by 2019 PA 21,
provided, in relevant part:
(1) An action for recovery of personal protection insurance benefits payable
under this chapter for accidental bodily injury may not be commenced later than 1
year after the date of the accident causing the injury unless written notice of injury
as provided herein has been given to the insurer within 1 year after the accident or
unless the insurer has previously made a payment of personal protection insurance
benefits for the injury. . . . However, the claimant may not recover benefits for any
portion of the loss incurred more than 1 year before the date on which the action
was commenced. . . .
(2) An action for recovery of property protection insurance benefits shall
not be commenced later than 1 year after the accident. [Emphasis added.]
Until 2005, Michigan courts interpreted the one-year-back rule to incorporate a judicially
created tolling provision that remained in effect until a no-fault claim was formally denied by the
insurer. This Court first applied this tolling rule to former MCL 500.3145 in Richards v American
Fellowship Mut Ins Co, 84 Mich App 629; 270 NW2d 670 (1978).3 See id. at 635 ([R]running of
the 1 year statute of limitations was tolled from the day [the] plaintiff gave notice of loss . . . until
liability was formally denied by [the] defendant. . . .”) (emphasis added). Despite that no such
tolling exception was explicitly included in the statute, the Richards Court reasoned:
[Section] 3145 must be construed in accordance with the Legislature’s purpose in
enacting no-fault insurance, i.e., that persons injured in automobile accidents be
promptly and adequately compensated for their losses arising out of the motor
vehicle mishap.
[Without tolling], we would in effect be penalizing the insured for the time
the insurance company used to assess its liability. To bar the claimant from judicial
enforcement of his insurance contract rights because the insurance company has
unduly delayed in denying its liability would run counter to the Legislature’s intent
to provide the insured with prompt and adequate compensation.
3
Although this Court is not required to follow cases decided before November 1, 1990, see MCR
7.215(J)(1), a published case decided by this Court “has precedential effect under the rule of stare
decisis,” MCR 7.215(C)(2). See also Woodring v Phoenix Ins Co, 325 Mich App 108, 114-115;
923 NW2d 607 (2018) (stating that although this Court is not “strictly required to follow
uncontradicted opinions from this Court decided before November 1, 1990,” those opinions are
nonetheless “considered to be precedent and entitled to significantly greater deference than are
unpublished cases”).
-5-
* * *
[Allowing tolling under] § 3145 would effectuate the legislative intent in
enacting the no-fault act. Unable to profit from processing delays, insurance
companies will be encouraged to promptly assess their liability and to notify the
insured of their decision. At the same time, the insured will have a full year in
which to bring suit. [Id. at 634-635 (citations omitted).]
Our Supreme Court upheld Richards in Lewis v Detroit Auto Inter-Ins Exch, 426 Mich 93;
393 NW2d 167 (1986), while adding a requirement that an insured seek reimbursement with
reasonable diligence for tolling to take effect. Id. at 101-103. See also Johnson v State Farm Mut
Auto Ins Co, 183 Mich App 752; 455 NW2d 420 (1990) (asking whether the plaintiff pursued her
claim with sufficient diligence to allow for tolling); Mousa v State Auto Ins Co, 185 Mich App
293; 460 NW2d 310 (1990) (concluding that the insurer’s formal denial of benefits acted to cut off
tolling). But our Supreme Court overruled Lewis and discarded judicial tolling in Devillers, 473
Mich 562. Devillers criticized Lewis and the cases applying it as wrongly decided, propounding
that the cases manifested judicial policy-making contrary to the plain and unambiguous language
of former MCL 500.3145. Id. at 581-584. The Devillers majority overruled these cases and
concluded that former MCL 500.3145 must be strictly applied as written, without any tolling
provision. See id. at 586.
Following the 2019 no-fault amendments, MCL 500.3145 now reads, in relevant part, as
follows:
(1) An action for recovery of personal protection insurance benefits payable
under this chapter for an accidental bodily injury may not be commenced later than
1 year after the date of the accident that caused the injury unless written notice of
injury as provided in subsection (4) has been given to the insurer within 1 year after
the accident or unless the insurer has previously made a payment of personal
protection insurance benefits for the injury.
(2) Subject to subsection (3), if the notice has been given or a payment has
been made, the action may be commenced at any time within 1 year after the most
recent allowable expense, work loss, or survivor’s loss has been incurred.
However, the claimant may not recover benefits for any portion of the loss incurred
more than 1 year before the date on which the action was commenced.
(3) A period of limitations applicable under subsection (2) to the
commencement of an action and the recovery of benefits is tolled from the date of
a specific claim for payment of the benefits until the date the insurer formally
denies the claim. . . . [Emphases added.]
The central difference between the pre and post-amendment MCL 500.3145 is the insertion
of the phrase “until the date the insurer formally denies the claim.” No published authority has yet
addressed the interplay of these amendments with the earlier discussed caselaw. Therefore, we
take this opportunity to conclude that these amendments to MCL 500.3145, particularly the
addition of Subsection (3), act to supersede our Supreme Court’s ruling in Devillers and return the
-6-
state of law to that provided in Lewis and its progeny. Critically, the tolling exception adopted in
MCL 500.3145(3) is identical to that embraced in the cases overruled, demonstrating the
Legislature’s intent to impose a tolling exception to the one-year-back rule in the form it existed
before Devillers.
B. FORMAL DENIAL UNDER MCL 500.3145
Resolution of this appeal turns on whether the trial court properly determined that Citizens’
EORs serve as formal denials of Encompass’s reimbursement claims. First, we note that, as
explained in Lewis, 426 Mich 93, a formal denial ends tolling (and commences the running of the
one-year-back rule) because it “unequivocally impresse[s] upon the insured that the extraordinary
step of pursuing relief in court must be taken.” Id. at 101. Despite Citizens’ reliance on the normal
dictionary definitions of “formal” and “denial” to support its argument, both parties recognize that
Michigan courts have provided specific guidance for what may qualify as a formal denial of claims
in insurance disputes. There is no need to resort to dictionary definitions.
In Mousa, 185 Mich App 293, applying the pre-Devillers tolling exception to former MCL
500.3145, this Court explained that while a formal denial need not be in writing, it must be
“sufficiently direct.” Id. at 295. We again interpreted the meaning of a formal denial, albeit
regarding tolling under a separate statutory provision, in McNeel v Farm Bureau Gen Ins Co of
Mich, 289 Mich App 76; 795 NW2d 205, 225 (2010). While the McNeel majority addressed the
timing of a purported formal denial without specifically mentioning its requirements, id. at 86-87,
the dissent clarified the applicable standard as follows:
Our appellate courts have already parsed the meaning of the term “formal denial.”
A denial of liability need not be in writing to be formal, but it must be explicit.
Although the best formal notice is a writing, notice may be sufficiently direct to
qualify as formal without being put into writing. Accordingly, under this state’s
jurisprudence, a “formal denial” must be explicit and direct. [Id. at 111 (KELLY, J.,
dissenting; quotation marks and citations omitted).]
Justice KELLY’s formulation was later embraced by this Court. See also Smitham v State Farm
Fire & Cas Co, 297 Mich App 537, 545, 549; 824 NW2d 601 (2012) (“[A] formal denial such as
is necessary to end tolling must be explicit and unequivocally impress upon the insured the need
to pursue further relief in court[,] . . . [and] an insurer may end the tolling period by explicitly
indicating that the insurer is denying all liability in excess of what it has paid.”). We now readopt
this explanation of “formal denial” detailed in the pre-Devillers line of cases.
We conclude that Citizens’ EORs did not provide the explicit and unequivocal expression
of finality required to constitute formal denials under our pre-Devillers jurisprudence.
Accordingly, tolling remained in effect under MCL 500.3145(3) until Encompass filed its
November 4, 2019 complaint, and its reimbursement claims were not time-barred by the one-year-
back rule. The circuit court erred in dismissing Encompass’s claims arising from the EORs issued
before November 4, 2018. Summary disposition should have been denied without qualification.
The EORs included no language clearly stating that the claims were denied, at least not
with the finality and clarity required to end the tolling period. The EORs essentially stated only
-7-
the amount of each claim that was “[a]llowed” versus “[r]educ[ed],” with little additional detail.
While the EORs provided “[c]omments” for most bills, most simply read, “Professional Review
Completed by [various medical personnel abbreviations].” A limited number requested that
Encompass submit additional documentation regarding a claim or claims4 (e.g., “Please send an
updated signed specific Dr. order that should include the to and from dates of service for the IV
infusion medications and supplies for a review consideration. Thank you, Professional Review
Completed, SE, RN”). Given the nature of the comments requesting additional information,
Encompass could not reasonably infer that the EORs were denials. For EORs lacking a request
for more information, Citizens argues that Encompass should have assumed that Citizens had
issued a formal and final denial. But no information ever “explicitly indicat[ed] that the insurer
[wa]s denying all liability in excess of what it ha[d] paid.” Smitham, 297 Mich App at 549
(emphasis added). A direct and forthright denial of coverage puts the claimant on notice that the
clock is ticking. Relying on inferred denials invites disagreements and litigation, undermining one
of the goals of the no-fault act.
Most of Citizens’ EORs included the following disclaimer:
This bill has been evaluated against the prevailing billing practices for
healthcare providers within your geographic area. The reimbursement rate may
therefore be different than the amount billed.
Please be advised that this bill may have been adjusted pursuant to the
provisions of any applicable statute or any applicable policy of insurance. Based
upon the adjustment of the bill pursuant to any applicable statute or any applicable
policy of insurance, the payment for this bill may different that the amount billed.
This general disclaimer was merely included as boilerplate and did not afford Encompass with an
explicit and unequivocal denial of benefits. Given the generality of these statements, like that of
the information relating to the amounts approved and any reductions made, Citizens’ EORs simply
lacked the clarity to unequivocally convey a need for Encompass to seek redress in court and make
them formal denials under MCL 500.3145(3).
We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Deborah A. Servitto
/s/ Christopher P. Yates
4
A single comment provided a more explicit denial of liability for the claims in that EOR, stating,
“Reevaluation completed and further reimbursement is not supported.” But this EOR was
completed in December 2018 and therefore would not have barred relief under the one-year-back
rule even if considered a formal denial.
-8- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486173/ | MUNSON,
Acting Associate Justice:
This matter comes before the Appellate Division on appeal from the August 7, 1992, opinion and order of the Land and Titles Division concerning title to land known as "Vaoto." The history of the dispute and the facts are set out in detail in the decision below, and will not be repeated here.
The sole issue raised by appellant is whether the findings of fact of the Land and Titles Division were clearly erroneous.
American Samoa Code Annotated § 43.0801(b) directs that we not disturb the findings of fact of the Land and Titles Division unless we find them to be clearly erroneous. A finding of fact is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum, 333 U.S. 364, 395 (1948); Willis v. Willis, 2 A.S.R.2d 102 (App. Div. 1986), Suapilimai v. Musu and Faleafine, 9 A.S.R.2d 16, 18 (App. Div. 1988).
In its decision below, the land and Titles Division presented its findings of fact in a thorough and methodical exposition of the testimony and evidence presented at trial. It is clear from a reading of the Decision and Opinion that the court found witnesses for both sides sincere, but concluded that years of misinterpretation and miscommunication had obscured and confused, as between the members of the competing families, their respective claims of ownership to the land known as "Vaoto."
Appellant presents on appeal portions of the transcript which support the position he took below. Essentially, however, appellant simply asks us to substitute our judgment for that of the Land and Titles Division. The trial court was uniquely situated to observe the demeanor of the witnesses, to judge their credibility, to examine the evidence, and to deduce the facts upon which it ultimately based its decision. Given the record before us from the Land and Titles Division, and our lack of a definite and firm conviction that a mistake has been made, we cannot say that the findings of fact below were clearly erroneous.
*33Accordingly, we must AFFIRM. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486174/ | MUNSON,
Acting Associate Justice:
This is an appeal of a judgment of the Land and Titles Division in which that court held, among other things, that apy power line poles erected to supply electrical power to Defendant/Appellant’sproperty may constitute a continuing trespass to Plaintiff Appellee’s land if those poles are located in a certain right of way. The trial court also ordered that Appellant "remove or cause to be removed any power- line poles" that occupy the right of way. Appellant argups that the trial court’s conclusions with respect to the power line poles were erroneous. We agree and modify that portion of the court’s Order.
FACTS
The trial court in jts Opinion and Order set forth the facts of this case in great detail. Because Appellant only questions a portion of the trial court’s order, we will only recite those facts relevant to this appeal.
Appellee owned a parcel of land encompassing approximately 44 acres in a roughly triangular shape. The land was bounded on the north by a paved road, running east and west. The- ocean comprised the northeast-southwest boundary, and a dirt road running south from the paved road to the ocean served as the third boundary. Appellee’s residence is located at the northeast pomer of his parcel in an area known as "Freddie’s Beach."
In 1977, Appellee conveyed a three-acreparcel on the western edge of his property to Ethel T.W. Fujii. In 1978, Appellee conveyed two acres of land to Oliver Moors by a deed containing "grants of the land, together with all rights, easements, and appurtenances belonging or in any way incident or appertaining to the land." Order of Sept. 4, 1992, at 2. Mr. Moors’ two-acre parcel was just to the north of the Fujii parcel and separated from that parcel by a 12-foot right of way. Both the Fujii and the Moors parcels were accessible via the 12-foot right of way, as well as the dirt road that formed the western boundary of Appellee’s original plot.
Mr. Moors subsequently subdivided his two-acre parcel into five lots. One of those lots is^t the southeastern comer of Mr. Moors parcel and is accessible only via the 12-foot right of way between the Moors and *35Fujii parcels. On August 5, 1983, Mr. Moors sold that lot to Appellant, who intended to build a residence on the property. The deed from Mr. Moors to Appellant provided that the grant included "all rights, privileges, and easements held or enjoyed in connection with, or appurtenant to the land." Order of Sept. 24, 1992, at 3.
On February 8, 1989, Appellant and Appellee signed a document entitled "Deed of Easement for the American Samoa Power Authority ("ASPA") an easement as was "necessary for the safe maintenance and operation of electrical power and water lines on, over, under, ánd across the land of the Grantor described below: [handwritten] ’Self-owned land bought fr. Oliver Moors.’" The deed correctly designated ASPA as "Lessee." These designations are confusing, because the land described in the deed belonged to Appellant, and not Appellee. Nevertheless, ASPA installed power line poles along the boundary line between Appellant’s land and the right of way, presumably pursuant to the February 8, 1989 deed.
In February 1991, Appellate hired an independent contractor to clear his parcel with a bulldozer to prepare the land for construction of his residence. In addition to clearing Appellant’s land, the bulldozer operator also cleared a large portion of Appellee’s land from Appellant’s southern boundary line to the ocean, greatly improving the ocean view from Appellant’s property.
On March 14, 1991, Appellee sued Appellant claiming damages for trespass due to the power poles and the bulldozing activities, and seeking an injunction to require Appellant to remove the power poles. After a two-day trial, during which the trial court visually inspected the land in question, the court issued an "Opinion and Order" on September 4, 1992. In that Order, the court found Appellant was liable for trespass as a result of the bulldozing activities in February 1991, and awarded Appellee compensatory damages of $1.00 and punitive or exemplary damages of $1,500. Appellant does not contest this finding or the amount of damages awarded.
The Court also held that an implied easement across the 12-foot right of way was created in favor of Appellant by the 1978 conveyance of the land to him form M. Moors, the court found, however, that although Appellant was entitled to the use of the 12-foot right of way for ingress and egress to his property, that right of way "is not well suited for handling both motor vehicles and power lines poles . . . ." Order of Sept. 4, 1992, at 12. The court stated that despite its visual inspection, it was unable to determine whether or not the poles were actually on *36Appellant’s land or on the right of way. Id. at 8. The court, however, found that Appellant "can readily determine whether or not any of the power line poles are located with the 12-foot right of way, "and went on to order Appellant to "remove or cause to be removed any power line poles erected within the 12-foot right or way." Id at 15, 16. Appellant takes issue with this finding and the injunctive relief imposed.
DISCUSSION
The trial court’s grant of permanent injunctive relief is reviewed for an abuse of discretion or application of erroneous legal principles. Amwest Mortgage. v. Grady, 925 F.2d 1162, 1163 (9th Cir. 1991). Appellant argues that the trial court applied erroneous legal principles to reach its conclusion that the easement cannot be used for utility poles. We agree.
A review of the record and the relevant case authority supports the trial court’s finding that Appellant owns an implied easementby necessity over the 12-foot right of way.1 We hold, however, that the trial court improperly limited the use of that easement by Appellant to only ingress and egress.
The extent of an implied easement must be inferred from all of the circumstances of the case, including those uses- that can be reasonably expected. Kytasty v. Godwin, 162 Cal.Rptr. 556, 562 (Cal. Dist. Ct. App. 1980). It is assumed that the parties contemplated such uses of the easement as might reasonably be required by normal development of the land. Fristoe v. Drapeau, 215, P.2d 729, 732 (Cal. 1950). "An easement by necessity can include not only the right to erect poles along that road on which may be strung wires for the transmission of electricity to and from that habitation").
*37Balanced against these principles is the rule that the grantee of an easement by implication may not materially increase the burden on the servient estate. Schwob v. Green, 215 N.W.2d 240, 244 (Iowa 1974).
The trial court found that it was foreseeable that Mr. Moors would subdivide his lots leaving at least one lot "landlocked." We find that it was also foreseeable that a purchaser of one of those landlocked lots, such as appellant, would want to build a residence or any other structure on that lot. In these modem times, the installation of utility lines, if not an absolute necessity, is a practical necessity incident to the use or property as a residence.
Moreover, because the trial court was unable to determine which power line poles, if any, are in the right of way, it cannot be said that the current placement of the poles "materially increases the burden" on Appellee’s estate. Thus, we are persuaded that the trial court’s decision to limit the easement to only ingress and egress to Appellant’s property is not justified on this record.2
CONCLUSION
For the foregoing reasons, the judgment of the Land and Titles Division is MODIFIED to delete the restriction of the use of the 12-foot right of way for ingress and egress and to allow appellant to use the easement as is reasonable necessary to provide utilities to his land. The trial court’s injunction ordering appellant to remove any power line poles from the 12-foot right of way is VACATED.
The trial court stated that:
the unobjected use of the 12-foot right of way by Moors for some 13 years and by [Appellant] for some 8 years, along with the foreseeability of landlocked subdivision lots, is indicative of not only mutual intent to allow use of the 12-foot right of way for the benefit of both the Fujii parcel and the Moors two-acre parcel, but also of the practical and, therefore, reasonable necessity for use of this passage to [Appellant’s] lot.
In so holding, we find it unnecessary to construe the "Deed of Easement for the American Samoa Power Authority" executed by the parties on February 8, 1989. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486176/ | KRUSE,
Chief Justice
On November 8, 1993, this court heard the appeal of the trial court’s denial of relief from judgment under T.C.R.C.P. 60(b). At that time, attorneys Chikamoto, Reardon, and Ashley presented their respective oral arguments.
To appeal the trial division’s decision in a civil case, a motion for a new trial must be filed within ten days after the judgment is announced. A.S.C.A. § 43.0802. The High Court’s procedural rules likewise state that "a motion for a new trial as required by 43.0802 A.S.C.A. shall be filed with the clerk of court within 10 days after the date of entry of the judgment or order appealed from." A.C.R. 4(a)(1) (emphasis added). The denial of a motion for relief under Rule 60 qualifies, in our view, as an "order" within the meaning of this rule. The purpose of requiring a motion for new trial, which sets forth "with particularity" the grounds for reversal, is to avoid unnecessary appeals by giving the trial court an opportunity to correct any errors it may have made. Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990) (citing Government of American Samoa v. King, AP No. 19-1970, slip op. at 3). Whether styled a motion for new trial or a motion to reconsider, the statute’s requirement is met as long as the motion is filed within ten days and clearly informs the trial court of the claimed errors in its decision. Lualemana v. Asifoa, 17 A.S.R.2d 151, 152-53 (Land & Titles Div. 1990); see Taulaga v. Patea, 17 A.S.R.2d at 35.
Furthermore, filing a motion for a new trial is a mandatory, jurisdictional prerequisite for an appeal. Taulaga v. Patea, 17 A.S.R.2d 206, 207 (App. Div. 1990); Lualemana v. Asifoa, 17 A.S.R.2d at 152-53; In re Matai Title Mulitauaopele, 17 A.S.R.2d 75, 79 (Land & Titles Div. 1990); In re Matai Title Muagututi'a, 15 A.S.R.2d 1, 2 (Land & Titles Div. 1990); Gi v. Temu (Mem.), 12 A.S.R.2d 33 (Land & Titles Div. 1989). This is explained as follows:
The requirement of a motion for new trial or reconsideration of judgment is jurisdictional. See, e.g., Fai'ivae v. Aumavae, AP 2-76 (decided December 9, 1977); Government of American Samoa v. King, AP No. 19-1970; Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). If no timely motion for reconsideration or new trial conforming to the "particularity" requirement of Rule 7(b)(1) is filed within the statutory *42ten-day deadline, then "the Appellate Division ... has no jurisdiction to entertain an appeal in such a case — regardless of any arguments, equitable or otherwise, to the contrary." Judicial Memorandum, supra, 4 A.S.R.2d at 174 (citing Fai'ivae, supra). Taulaga v. Patea, 17 A.S.R.2d at 35. Since this requirement is jurisdictional, the consequences of noncompliance are quite serious:
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.
Taulaga v. Patea, 17 A.S.R.2d at 207.
Appellants failed to file a motion for reconsideration or new trial prior to filing an appeal, in violation of A.S.C.A. 43.0802 and A.C.R. 4(a)(1). Therefore, this court is without jurisdiction to consider their appeal.1
This appeal is hereby dismissed.
It is so ordered.
Although this matter is dismissed on jurisdictional grounds, the appeal, in our view, lacks merit. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486177/ | KRUSE,
Chief Justice
After the demise of Mulitauaopele Tamotu, Leaana L. Fuata filed his claim to succession to the matai title Mulitauaopele, attached to the village of Lauli‘i. Leaana’s claim attracted the objection of appellee Fofogaotumua K. Mulitauaopele, who in turn filed his claim to succession. Appellant I. S. Mulitauaopele also objected, but not as counter-claimant to the title; rather, he sought the dismissal of the succession claims of Leaana and Fofogaotumua, contending that there *44was actually only one Mulitauaopele family of Lauli‘i and that he and his predecessors-in-title are the only rightful holders of the matai title Mulitauaopele. Appellant contends that the Mulitauaopele side headed by the late Mulitauaopele Tamotu (referred to below as the "Leaana" line) was essentially a temporary arrangement, which was "tolerated" by his predecessors, but that he and his relatives have the customary and legal right to have it discontinued.
The trial court declined to interfere with the status quo, being satisfied on the evidence of the existence of two separate and distinct Mulitauaopele families in the village of Lauli‘i. The court found that neither was related to the other by blood nor descended from the original titleholder, and that both families had separately evolved after the original descendants of the title had died out over one hundred years ago. While appellant’s family traces its connection to the title by collateral descent, the appellees’ side is related to the title either through marriage, adoption, or traditional appointment (igagato or matu ‘upalapala). The court also thought it significant that each family had its own communal lands and has had its own registered titleholders, who not only have separate guest houses but have separately enjoyed traditional recognition at the village, county, and national level-further indicia of separate and distinct identity.
Appellant has essentially restated his arguments made below on his motion for new trial. Appellant’s tact on appeal, as it was below, has been to pose a number of rhetorical questions quite unrelated to the findings and conclusions of the trial court. For example, appellant asks whether the court can create a new kind of matai, whether a non-heir can succeed to a family’s title over that family’s objection, and whether there can be split titles in American Samoa. Having answered "No" to these, appellant next argues that the trial court did or sanctioned these things and that, therefore, the court had erred "as a matter of law."
The trial court, however, neither created a new title, split a title, nor allowed the appointment of a non-heir to another family’s title. Rather, it gave effect to something which substantial evidence had demonstrated had been in existence for over a century, after coming into being through the very same evolutionary process that gave rise to the "Tutuila" customs and traditions which appellant alluded to on the stand and in argument. As the trial court unambiguously stated:
We are not . . . creating anything at all; we are merely declining to destroy something that has existed *45for at least a hundred years and that has been thoroughly integrated into the traditional institutions of the village, the Eastern District, and throughout Samoa.
MT No. 05-89, slip op. at 10 (Trial Div. August 8, 1990). Quite clearly, the trial court did not find it appropriate to abolish, by way of judicial fiat, a Samoan development which has endured for many generations and which has not only been "thoroughly integrated into the traditional institutions" but has also been recognized by the formal or legal institutions of the land. For instance, appellee’s family title has been accepted for registration with the Territorial Registrar’s office, and we additionally noted testimony on the record to the effect that the late Mulitauaopele Tamotu represented the Sua County in the territorial Senate.
Consequently, the trial court did not attempt to appoint a stranger to hold appellant’s family title; rather it concluded on the evidence that Fofogaotumua was qualified to succeed the title left vacant by the death of Mulitauaopele Tamotu. Similarly, the trial court did not purport to "split" the title of appellant’s family. It merely addressed the realities which exist today, and which developed not by the judicial process but by the evolutionary process that ultimately defines Samoan custom.
Appellant’s "bottom line" argument about the court’s creation of a new matai title, splitting a title, and/or appointing an adopted branch to co-hold his family’s title is thus entirely without foundation. In matters of fact, the appellate division reviews for clear error. A.S.C.A. § 43.0801(b). We find the record replete with testimony about the existence of two separate and distinct Mulitauaopele families with separate sa‘o. The trial court had substantial grounds upon which to base its findings, and they are, therefore, not to be disturbed.
Appellant alternatively argues that one of the Samoan Associate Judges was biased. There is no evidentiary support to the claim, which is premised solely on certain questions posed by the judge to the appellee Fofogaotumua. We see no basis for the claim of judicial bias against the appellant upon the strength of the questions posed. In any event, the questions complained of were asked at a stage in the proceedings after appellant’s motion to dismiss had been denied in open court.
For reasons given, we affirm.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486178/ | Order Denying Motion for Stay of Execution Pending Appeal, Dismissing Appeal, and Remanding Matter for Further Proceedings:
RICHMOND,
Associate Justice:
On November 9, 1993, appellants filed a motion for a stay of execution pending appeal of the Trial Division’s denial of a temporary restraining order. Appellants requested an expedited hearing. A.C.R. Rule 8(a) contemplates that an application for a stay must ordinarily be made in the first instance to the trial court. However, in view of the immediate availability of a full panel of judges for Appellate Division proceedings, an expedited hearing was granted and held on November 10, 1993, to entertain the motion.
This action concerns the assessment and collection of taxes imposed on employers and employees, in support of the federal Social Security program, under the Federal Insurance Contributions Act ("FICA"). It was filed by appellants on September 14, 1993, to obtain injunctive and monetary relief. In essence, appellants sought immediate release of existing levies on assets and permanent prevention of further such levies and closure of their business by appellees, in connection with assessment and collection of FICA taxes. They also claimed both compensatory and punitive damages with respect to these enforcement actions.
The Trial Division denied appellants’ application for a temporary restraining' order on September 16, 1993, and their motion for reconsideration of this denial on October 29, 1993. On November 9, 1993, appellants appealed these decisions and applied for a stay of execution, in effect an injunction during the pendency of appeal under A.C.R. Rule 8(a), to release existing levies and enjoin further levies.
Two factors are dispositive of appellants’ motion and this appeal. First, the federal Anti-Injunction Act prohibits this court from restraining the assessment or collection of any federal tax. 26 U.S.C.A. § 7421(a). This limitation is applicable to the High Court of American Samoa. 26 U.S.C.A. § 876.
In no event, due to the Anti-Injunction Act, can either the Trial Division or the Appellate Division grant the temporary injunctive relief *48sought by appellants. The Anti-Injunction Act was enacted to allow, with very narrow exceptions inapplicable to this case, "the United States to assess and collect táxes alleged to be due without judicial intervention . . . ." J.L. Enochs v. Williams Packing and Navigation, 370 U.S. 1, 7 (1962), reh den 370 U.S. 965 (1962). The Act is applicable to temporary, as well as permanent, pleas for injunctive relief. Sipkoff v. Whinston, 354 F. Supp. 683 (M.D. Penn. 1973). We cannot deal with any risk of harm pending a final decision in this case.
Second, the Trial Division holdings at issue are not appealable. These decisions only relate to a temporary restraining order, which by nature is based on an incomplete hearing process, is short-lived, and is subject to review at the hearing on the concurrent preliminary injunction request. A.S.C.A. §§ 43.1304 and 43.1305(a). Decisions on temporary restraining orders are only appealable when the evident risk of harm cannot be corrected by the preliminary injunction review, or when the decisions are effectively final dispositions of the case. See WRIGHT, et al., Federal Practice and Procedure, § 3914.3 at 522 (2d ed. 1992).
Clearly, the Trial Division’s decisions are not a final disposition. Such a decision will not occur, at the earliest, unless and until the Trial Division grants appellee American Samoa Government’s pending motion to dismiss for lack of jurisdiction. The other' appellees have not yet joined in that motion, but they may do so before the hearing on it, scheduled for 9:00 a.m., on November 22, 1993.
We can understand appellants’ perspective regarding the harshness of appellee United States Internal Revenue Service’s FICA tax assessment and collection procedures in American Samoa. Apparently, this activity is managed by the Internal Revenue Service office at Hato Rey, Puerto Rico. Sheer distance, mail service delays, and lack of locally-maintained federal tax records and locally-stationed tax personnel, as examples, certainly can contribute to frustrating and unsatisfactory personal contacts and poor communications. Forums within the federal judiciary for such matters are inconveniently located.
However, under the restraint of the Anti-Injunction Act and given the nonappealability of the decisions at issue, appellants motion must be denied. Furthermore, this appeal must be dismissed, and the case must be remanded to the Trial Division to continue with the proceedings properly pending in that court.
*49It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486180/ | Opinion and Order on Petition to Terminate Parental Rights:
The natural mother of the male child before the court is the sister of the proposed adoptive mother. They had agreed prior to the birth of the child that the natural mother would, upon birth, surrender the child to the proposed adoptive mother and her husband to raise as their own. The child, who is now seven years of age, has been raised and cared for by the proposed adoptive parents since birth. The adoption of the child is highly recommended by the Child Protective Services, Social Services Division of the Department of Human Resources.
This matter was first initiated by the natural parents, who filed their petition to relinquish their parental rights to the child on November 6, 1990, pursuant to A.S.C.A. § 45.0115(a)(5). However, since the filing of their petition, the natural parents moved to the mainland, and their petition remains pending as of this date.
One year later, the proposed adoptive parents filed their own petition, under the same docket number, to terminate the parental rights of the natural parents, pursuant to A.S.C.A. § 45.0115(a)(3). With the filing of the subsequent petition, the natural parents filed a form acknowledging service of the proposed adoptive parents’ petition, giving their consent to the termination of their parental rights in the child and waiving any right to further notice of the proceedings. It is this latter petition by the proposed adoptive parents which is now before the court.
*53The petition of the proposed adoptive parents is not supported by the evidence presented. Termination proceedings under § 45.0115(a)(3) "may only [be had] when the child has been neglected by his parents or is homeless." In Re Three Minor Children, 3 A.S.R.2d 4, 7 (1986) (emphasis in original); A.S.C.A. §§ 45.103(19), 45.0401(1). Here the evidence simply does not demonstrate that the child before the court is "dependent and neglected" under any of the definitions provided in A.S.C.A. §45.0103(19). The petition for termination should, therefore, be denied.1
It is so ordered.
In contrast to relinquishment proceedings, under A.S.C.A. § 45.0115(a)(5), which are voluntary in nature and wherein the natural parents are the petitioners, termination proceedings,A.S.C.A. § 45.0115(a)(3), are adversarial in nature with the natural parents being the respondents. In Re Two Minor Children, 8 A.S.R.2d 75 (1988).
What the evidence points to here is a situation of voluntary relinquishment and quite obviously the apparent purpose behind the filing of the subsequent petition by the proposed adoptive parents was to avoid the necessity of requiring the attendance of the absent natural parents — the natural parents’ attendance at relinquishment proceedings is effectively required by A.S.C.A. § 45.0402. See In Re Three Minor Children, supra; DCR 23. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486181/ | *55Order Granting in Part Motions to Stay Execution of Judgment Pending Appeal:
Defendants/appellants’ motions to stay execution of the judgment pending appeal of this action came regularly for hearing on November 16, 1993. For purposes of these motions, plaintiff/appellee appeared by her counsel, and all three defendants/appellants appeared by counsel Roy J.D. Hall, Jr.
These motions were properly made in the first instance in this court. A.C.R. Rule 8(a). A judgment cannot be stayed pending appeal except by court order for cause shown. A.S.C.A. § 43.0803; T.C.R.C.P. Rule 62(a); Asifoa v. Lualemana, 17 A.S.R.2d 10, 12 (App. Div. 1990). Under T.C.R.C.P. Rule 62(d), the court has discretion to stay a judgment pending appeal when a bond or undertaking is given. See Asifoa, 17 A.S.R.2d at 12; see also Fed. R. Civ. P. Rule 62(d).
This decision depends partly on weighing the harm to the party prevailing at the trial if a stay is granted and the hardship to the losing party if a stay is not granted, often called the "balance of equities," and partly on the likelihood of success on appeal. Asifoa, 17 A.S.R.2d at 13; In re Matai Title Mulitauaopele, 17 A.S.R.2d 71, 73 (Land & Titles Div. 1990).
Equity factors to consider when the judgment is solely for the recovery of money may include: (1) the complexity of the collection process; (2) the time it may take to collect a judgment after affirmance on appeal; (3) the availability of funds to pay the judgment; and (4) the ability to pay the judgment. See Olympia Equip. Leasing Co. v. Western Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986).
Defendants/appellants’ success on appeal is highly improbable. The issues raised are largely, if not exclusively, related to the findings of fact. Those findings will not be set aside on appeal unless they are clearly erroneous. A.S.C.A. § 43.0801(b); Uiagalelei v. Ulafale, 17 A.S.R.2d 158, 160 (App. Div. 1990); Moea'i v. Alai'a, 12 A.S.R.2d 91, 92 (1989). The evidence in support of those findings is, in our view, sufficient.
Concerning the equities, on the one hand, plaintiff/appellee is certainly entitled to expeditiously recover and presently enjoy her judgment, obtained some three years after this serious and inexcusable accident. Losing litigants should not be encouraged to bring hopeless *56appeals simply to delay a judgment’s effect. However, plaintiff/appellee’s best interest is also to be able to readily collect her judgment. The negative effects of further delay can be at least partially neutralized by an undertaking and post-judgment interest.
On the other hand, defendant/appellant Continental Transport Services is one of the major aiga bus companies providing public transportation in American Samoa and could effectively use proper accounting procedures to accommodate this expense. However, it does not have unlimited financial resources. Moreover, at the hearing on this motion, defendant/appellant Insurance Company of the Pacific offered to immediately pay $10,000 of the judgment, its maximum statutory liability in this case.
Considering these circumstances, as they relate to the elements of both the probability of success on appeal and the equities, execution of the amount of the judgment in excess of $10,000 will be stayed, effective when the following two conditions are met.
1. Defendant/appellant Insurance Company of the Pacific has paid its $10,000 share of the judgment to plaintiff/appellee.
2. Defendant/appellant Continental Transport Services has deposited with the clerk of courts a bond or undertaking, with one or more sureties approved by the court, in double the amount of the judgment unless the surety is a corporate surety insurer authorized to do business in American Samoa, in which event the amount shall be one and one-half times the amount of the judgment. The bond or undertaking shall be on the condition that if the judgment, or any part of it, is affirmed or the appeal is withdrawn or dismissed, and if defendant/appellant Continental Transport Services is ordered to pay the judgment, or any part of it, and fails to pay the entire amount, including post-judgment interest and costs, within 30 days after the filing of the remittitur from the Appellate Division, the surety(ies) shall forthwith pay the entire amount then owing, not to exceed the amount of the bond or undertaking, and liability on the bond or undertaking may be immediately enforced. In accordance with A.C.R. Rule 8(a), the bond or undertaking shall also stipulate that, with respect to liability on the bond or undertaking, each surety is subject to the jurisdiction of the Trial Division and that the clerk of courts is irrevocably appointed as each surety’s agent for service of process and other papers.
*57Defendants/appellants shall have 60 days from the entry of this order to meet the two conditions required to implement the stay of execution of the judgment pending appeal. During this 60-day period, plaintiff/appellee is enjoined from execution of her judgment. If defendants/appellants fail to meet the two conditions required to implement the stay of execution of the judgment pending appeal, this entire order shall terminate, and plaintiff/appellee may proceed with execution of her judgment.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486182/ | This action began as a land document registration case and evolved to also become a land title registration case. In both respects, land ownership was the underlying issue. Opportunity is also provided for interpretation and comment on the application of certain land tenure laws, as modified in 1989.
*59Trial took place on September 23, 24, and 27, 1993. Plaintiff Toilolo Fereti ("Toilolo") was present with counsel throughout the trial. Defendants Lauofo T. Kitiona ("Lauofo") and Amituanai N. Iosefa ("Amituanai") were also present with counsel.
FINDINGS OF FACT
On or immediately before August 1, 1991, Lauofo, as lessor, and Amituanai, as lessee, signed a lease of a 0.22-acre plot within communal land named "U'utafeuua," situated in the Village of Malaeloa, American Samoa. The survey of this plot was approved on July 24, 1991. The term of the lease was 55 years, commencing August 1, 1991, and ending July 31, 2046. Lauofo is the senior matai or sa‘o of the Lauofo family and signed the lease for himself and on behalf of the family. The plot was leased for residential purposes, and the parties intended to have the leasehold serve as collateral for a bank construction loan.
The lease was filed with the Territorial Registrar on August 1, 1991. The Land Commission’s notice of the lease was posted on four utility poles in Malaeloa and on the front of the courthouse for a period of 61 days, beginning August 5, 1991, and ending October 4, 1991. Because the affidavit of posting was sworn to and subscribed by a member of the Territorial Registrar’s staff on August 5, 1991, the beginning day of the period, it proves nothing more than that the notice was posted on that day.
The notice provided for the filing of objections to the lease with the Territorial Registrar in his capacity as secretary of the Land Commission during the notice period, before the Commission forwarded a recommendation to the Governor respecting his approval or disapproval of the lease. Miriama N. Tuitasi filed an objection on August 28, 1991. Toilolo filed one on October 2, 1991.
As the Territorial Registrar has been accustomed to doing for a long time, according to Chief Assistant Territorial Registrar Starr Schuster, the lease was referred to the Secretary of Samoan Affairs on October 29, 1991, for dispute resolution proceedings under A.S.C. A. §43.0302. On January 21, 1992, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. On February 3, 1992, the Territorial Registrar forwarded the matter to this Court, and this action was commenced by the notice issued by the Clerk of Courts on August 5, 1992.
*60A second survey of 0.349 acres, encompassing the same plot, was approved on July 1, 1993. The accompanying surveyor and pulenu'u certificate was issued on June 30, 1993, and the proposed title registration was offered to the Territorial Registrar on July 9, 1993. On July 12, 1993, the Territorial Registrar posted the notice of this proposed registration on three telephone poles in Malaeloa and at the courthouse for a 60-day period, beginning July 12, 1993 and ending September 10, 1993.
The first affidavit of posting for this notice was also executed by a member of the Territorial Registrar’s staff at the beginning rather than at the end of the notice period. A second affidavit, signed by the same staff member on November 2, 1993, confirmed the posting for the 60-day period. The notice was published in the Samoa Journal & Advertiser, a local newspaper, on July 20, 1993, and September 28, 1993. The affidavit of this publication was signed on October 22, 1993.
On September 7, 1993, Toilolo also objected to this registration, and on September 17, 1993, it was referred for dispute resolution to the Secretary of Samoan Affairs. Although this process has not been separately completed for this registration, the parties stipulated that the certificate of irreconcilable dispute already on file in connection with the lease registration, and encompassing the same underlying land ownership issue, would serve to enable the Court to decide both registration matters.
Physically, "U'utafeuua" lies along the north side of the semi-circular, public road that extends northward from the main public road in Lepuapua towards the eastern part of the Village of Leone, through Malaeloa, and then back southward to the main public road near the population center in the western part of Leone.
Across a stream, east of "U'utafeuua" lies communal land, known as "Pulemaava," of the Toilolo family, as determined by Malepeai v. Faatupu, LT No. 10-81 (Land & Titles Div. 1983), aff'd Faatupu v. Malepeai, AP No. 7-84 (App. Div. 1984). East to west, "U'utafeuua" is occupied by Lauofo family members, the Malaeloa Congregational Christian Church, Amituanai (the plot at issue), and Lauofo. Continuing eastward is land named "Talitiga," which is separated from "U'utafeuua" by a road leading to the mountain and which, east to west, is occupied by Toilolo, Taulapapa, and Amituanai’s guest house. Next westward is communal land of the Tuilefano family. Across the north or mountain side of "U'utafeuua" and "Talitiga" stretches communal land of the *61Amituanai and Nanai families, called "Asipapa" and occupied by members of these families.
Toilolo and his witnesses claimed that Lauofo is a talking chief or tulafale under the Toilolo title of Malaeloa, even though the present Lauofo refuses to render traditional service or tautua to him, and that all lands occupied by Lauofo and his family are under Toilolo’s control or pule. This claim is based substantially on Toilolo family history, which holds that the Lauofo title and Lauofo’s right to use certain lands, including "U'utafeuua," was created by the present Toilolo’s grandfather, when he held the Toilolo title, as a reward for the original Lauofo’s friendship and tautua.
On the other hand, Lauofo and Amituanai claimed that the Lauofo title has a background in Tafuna and before that in the Manu'a Islands. It became a recognized title in Malaeloa through the marriage of a male member of the Lauofo family with q female member of the Amituanai family and marital residency in that village. Amituanai family tradition holds that the extended Amituanai family of Malaeloa includes the Amituanai, Nanai and Lauofo families and that the Lauofo title is under and renders tautua to the Amituanai title. In addition, each of these three families owns separate communal lands, but the members of the other two families have mutual rights to use these lands with the permission of the sa‘o exercising immediate pule over the land.
Unquestionably, Lauofo titleholders have exerted pule over "U'utafeuua" in significant ways for many years, until now without any objection from the Toilolo in office. Transactions of record include separation agreements that were entered by a Lauofo and, in one instance, a Nanai and recorded with the Territorial Registrar in 1963, 1965, 1967, and 1968, pursuant to A.S.C.A. §§ 37.1501 et seq. or their predecessor statutes. Lease agreements were entered and recorded with the Registrar in 1990 and 1991, pursuant to A.S.C.A. §§ 37.0201 et seq.
In 1993, under A.S.C.A. §§ 37.0101 et seq., title to the plot of "U‘utafeuua" where the Malaeloa Congregational Christian Church is located was registered as Lauofo communal land. At the time of this trial, pursuant to A.S.C.A. §§ 37.0201 et seq., Lauofo’s deed of conveyance of this plot to the Church was ready to be considered at a Land Commission hearing, following completion of the public notice period. During this period, Toilolo did not object.
*62Toilolo attributed his silence in the face of these transactions to the positive relationship between the former holders of the Lauofo and Toilolo titles. Toilolo took office in 1971 and Lauofo in 1977. Thus, this explanation does not hold up for the 1990 and 1991 leases. We believe that Toilolo’s antagonism towards Lauofo and Amituanai, which was reciprocated, and not any legitimate Toilolo claim to the title of "U'utafeuua" brought about this lawsuit.
In sum, the evidence of family histories and traditions and of pule, occupancy, and use convincingly established that the plot within the land "ITutafeuua" at issue is the communal land of the Lauofo family.
CONCLUSIONS OF LAW
1. Having found that "U'utafeuua" is owned by the Lauofo family as communal land, Lauofo may register the title to the plot at issue and a lease of that plot. However, we still need to review the validity of the land title and document registration procedures followed with respect to both registrations.
2. In this case, land title registration was initiated after rather than before seeking document registration of the proposed lease. While title registration is not a prerequisite to the validity of a document alienating an owned interest in land, it is a logical first step. We will consider the title registration process first.
The problem here was the adequacy of the notice given after the plot was duly surveyed and the title to it was offered for registration. The offered title registration must be noticed for 60 days by posting at the courthouse in the Village of Fagatogo and at two public places in the village in which or nearest to which the land is located, and by publication of the notice in a local newspaper at least once every 30 days during the 60-day period. A.S.C.A. § 37.0103(a). The applicant must provide the territorial registrar with "notarized statements," which we interpret to mean affidavits, by the Clerk of Courts and village mayor or pulenu'u and from the newspaper, each stating that within his or her sphere the required notice was given. A.S.C.A. § 37.0103(c).
Strict compliance with these requirements was not achieved. The posting and publishing were done, but the second publishing occurred after the 60-day period. In addition, affidavits by the Clerk of Courts and Pulenu‘u are lacking, being replaced by the affidavits by a member of the Territorial Registrar’s staff. The staff member’s original affidavit *63certifying to posting at the courthouse and in the village was, as already noted, deficiently executed on the day of posting rather than after the 60-day notice period.1
However, substantial compliance was realized. The notice of proposed title registration was given by the three methods required. It was posted for the prescribed time period and published once during this period. The affidavit of posting was executed by a public official accustomed by long-standing practice to carrying out this role. The affidavit of publication was signed by the publisher of the newspaper.
Most importantly, the principal objector, Toilolo, knew of the proposed title registration and timely made an adverse claim. Moreover, the dispute was properly referred to the Secretary of Samoan Affairs for dispute resolution procedures under A.S.C.A. § 43.0302. Finally, Toilolo stipulated to using the failed dispute resolution proceedings and the Secretary of Samoan Affairs’ certificate of irreconcilable dispute in connection with the proposed lease registration process as satisfying this requirement for purposes of the title registration dispute. He also did not interpose any objections to any other procedural irregularities or the factual foundations for these steps.
Therefore, we conclude that the title registration process has been adequately completed and that Lauofo is entitled to have the Territorial Registrar register the title to the plot of the land "U'utafeuua" at issue as the communal land of the Lauofo family.
This is not to say, however, that the public authorities handling these procedures can expect to ordinarily receive judicial recognition of their faulty acts. The Territorial Registrar is well-advised to adopt revised, separate affidavits of posting and publications for each of the three, required means of notice, to replace the outmoded affidavit form still in use. In the public interest, the Registrar should also establish procedures that will ensure that the Clerk of Courts, pulenu'u, and newspaper actually post or publish the necessary notices and provide the *64required affidavits,2 executed after the fact. The registrar should continue to oversee proper initiation and completion of the notice requirements.
3. Next, we turn to the land document registration process. Here, the concern is with the procedures regarding notice and the referral to the Secretary of Samoan Affairs.
The document registration and title registration laws are materially different. Strictly, no statute requires either posting or publication of any notice when a document alienating an interest in communal land is proposed for registration under A.S.C.A. § 37.0210. Wisely, the Territorial Registrar has followed the same 60-day posting procedure as required for title registration. Perhaps this practice originated from or before the time when all laws related to private real property rights were codified in one chapter. See Code of American Samoa §§ 901 et seq. (1949).3 Posting for 60 days was done in this case,' but again the affidavit of posting was executed on the day posting began and not after the period was completed.
Apparently, the Registrar has also implemented, the 1989 newspaper publication law for document registrations as well, even though this procedure is not statutorily required. However, publication was not accomplished in this case. Both posting and publication could be required by administrative rules adopted under the Administrative Procedures Act. A.S.C.A. § 4.1001 et seq. The Land Commission has rule making authority pursuant to A.S.C.A. § 37.0203(d). However, according to the Chief Assistant Territorial Registrar, the Land Commission has never exercised this authority, and no such rules exist.
*65In any event, without statutory mandate, any lack of notice or notice deficiency is meaningless for purposes of registering the proposed lease. Moreover, Toilolo did object to the proposed lease, and his objection did not go unheeded but was directed by the Registrar, without the Land Commission’s involvement, to the Secretary of Samoan Affairs for dispute resolution proceedings.
The propriety of this reference to the Secretary requires discussion and clarification. It appears from the evidence that, again for many years, the Territorial Registrar has also been automatically making this referral when an objection to a proposed document registration is filed within the 60-day, posted notice period. Since no statute compels such routine referral in document registration matters, the Registrar should not do so habitually. Objections are properly forwarded to the Secretary only if referrals are required by administrative rules promulgated or orders issued on a case-by-case basis by the Land Commission, or pursuant to specific authority delegated by the Commission to the Registrar. See A.S.C.A. § 4.0131.
The Land Commission should establish the policies on such matters as to whether referrals to the Secretary of Samoan Affairs are made only when a disputed title underlies the document sought to be registered or in other circumstances as well, or whether the intent is to facilitate prerequisites to litigation under A.S.C.A. § 43.0302 or to simply promote settlement. Ultimately, however, the process must not frustrate A.S.C.A. §§ 37.0203, 37.0204, 37.0221, and 37.0222, which require the Commission to formulate recommendations to the Governor and the Governor’s final approval or disapproval of the proposed transaction.
ORDER
1. The plot within the land "U'utafeuua" at issue is the communal land of the Lauofo family, and Lauofo may lease this plot.
2. The Territorial Registrar is directed to register the title to this plot as the communal property of the Lauofo family.
3. The proposed lease of this plot by Lauofo, as lessor, to Amituanai, as lessee, is remanded to the Land Commission for a hearing to develop a recommendation to the Governor, consistent with the Lauofo family’s communal ownership of this plot, and to forward that recommendation to the Governor for his approval or disapproval of the proposed lease.
*66Judgment is entered accordingly.
It is so ordered.
Affidavits of posting were also executed on the first day of posting in connection with both of the other two leases admitted into evidence in diis action. The records of the various separation agreements admitted do not include affidavits of posting.
A.S.C.A. § 37.0103(c) does not identify the newspaper representative who should execute the affidavit of publication. Presumably, in the absence of more explicit direction, the newspaper owner, publisher, editor, or some other employee or agent stating his or her authority should sign the affidavit.
The land alienation and title registration laws were separately codified at lease as early as the effective date of the Revised Code of American Samoa, Chapters 9 and 10 (1961 ed.). These laws were readopted in this separate manner by the Legislature of American Samoa by enactments during the 16th and 17th Legislatures and the Governor’s approvals, in conformance with Article 1, Section 3, and Article II, Section 9, of the Revised Constitution of American Samoa. P.L. 16-88 (1980) and P.L. 17-31 (1982). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486183/ | *67Transpac Corporation (hereafter "Transpac"), a local corporation, filed suit to evict the defendant Chande Drabble (hereafter "Chande"), as the "sole proprietor" of Beachcomber, a clothing shop, and TJ’s, a bar and restaurant, from its Nu'uuli Shopping Center. These two establishments were lately managed and operated (unsuccessfully) by Chande. Beachcomber is no longer in business, and the space it once occupied has, since July 1993, reverted to Transpac. TJ’s, on the other hand, is attempting some sort of comeback after several months of dormancy.
Besides its prayer for eviction, Transpac also seeks back rent from Chande. For Beachcomber, Transpac claims unpaid rent from January 1, 1988, to October 31, 1992, in the amount of $96,362.34. This amount is said to be inclusive of interest calculated at the rate of 6 % per annum.1 For TJ’s, Transpac similarly claims rental arrears in the amount of the $83,935.71. Additionally, Transpac’s complaint prays for unspecified rent to date; however, its evidence in this regard was tentative and approximate.
There are no written leases; however, Transpac claims oral leases and has tendered rental- arrearage statements on the basis that its figures are what third-party, arm’s-length transactions would have yielded for comparable space at the Nu'uuli Shopping Center.
DISCUSSION
I. Rents
We find the claims for rent and arrearage to be unfounded and, therefore, deny the same. First, there is a domestic aspect to the alleged leases which thoroughly taints any claim to arm’s-length dealings. Chande is married to Tom Drabble (hereafter "Tom"), who testified that he is both president and majority shareholder of Transpac. The Drabbles’ marriage has in fact failed, and Chande and Tom have gone their separate ways since January 1989, after the latter left the marital home in Iliili. Their respective attempts to obtain a divorce have been unsuccessful; the domestic court dismissed their cross-petitions, pursuant to A.S.C.A. §42.0206(a)(5), after sustaining each party’s claim of fault against the other. See Drabble v. Drabble, DR No. 69-90 (1992). With *68the dismissal of the divorce case, the domestic court did not therefore address the usual ancillary issues regarding the division of marital property. See A.S.C.A. § 42.0210. Consequently, these proceedings have taken on the unmistakable flavor of a continuing, and as yet unresolved, domestic dispute.
In Beachcomber’s case, the evidence shows that this business had its inception in the pursuit of a marital purpose. This business was conceived and set up by Tom in 1975, to be run by his wife, to provide a source of income to meet the family’s needs and expenses. Chande testified that she essentially ran the marital household from Beachcomber earnings without having to ask Tom for money. She further testified that Beachcomber had contributed the sum of $30,000 towards the construction of the marital home. Although Tom now claims that Beachcomber is Chande’s "sole proprietorship," the evidence showed that Tom had, until quite recently, treated and held out Beachcomber as a marital asset for purposes of personal income tax filings, personal financial statements, and property settlement proposals during the divorce action. The evidence also revealed that while Beachcomber had in the past paid rent to Transpac, it further showed that it was Tom, and not Chande, who created the clothing shop and set up some sort of a tenancy arrangement with Transpac, According to Chande, Transpac at one time was also utilizing Beachcomber’s attic for storage.
A lease, like any other bilateral contract, requires at least two parties to agree to something. Chande was not a negotiating party to any leasehold arrangement with Transpac, until quite recently, when the latter began to make demands upon her for a written leasehold relationship — these demands, which arose after the Drabbles’ separation, have yet to be accepted by Chande. Tom’s mere renunciation of interest in Beachcomber and his insistence that the now-defunct Beachcomber is Chande’s "sole proprietorship" does not make Chande any more a Transpac lessee than Tom.2 That Chande is the sole defendant in this matter has, in our view, more to do with the fact that Tom is Transpac’s chief executive officer rather than any arm’s-length dealings between Transpac and Chande.
*69In the case of TJ’s, the evidence is also lacking with respect to a lease between Transpac and Chande. Indeed, the evidence has been to the contrary; Transpac’s recent lease proposal to Chande has yet to be accepted. In these circumstances, it is not for the court to fabricate an agreement, under the guise of reasonable inferences, where clearly the parties have either failed to agree or have yet to agree. Furthermore, TJ’s was another idea of Tom’s that started out either as a Transpac venture, a Sadie’s Restaurant (an affiliate) venture, or a personal venture, at a time when the Drabbles were still a domestic unit. All that may be gleaned from the testimony is that the intentions were ill-defined at the outset, and they became even more so as the Drabbles’ marital situation deteriorated. What is clear now is that Tom wants nothing more to do with TJ’s. We conclude that there are no oral lease agreements express or implied, between Transpac and Chande.
II. Eviction
On this count, Chande’s only defense is that she needs the space occupied by TJ’s in order to support herself, as she has no other source of income. Although plaintiff may be a closed corporation and may well be part of the marital assets subject to equitable distribution at the appropriate proceeding, see Rocha v. Rocha, 20 A.S.R.2d 63 (App. Div. 1992), Chande’s self-help resort to corporate assets cannot be sustained. Her need for support is no defense; her remedy lies at common law against her husband,3 not the plaintiff corporation. The petition for eviction should thus be granted.
For reasons given, judgment will enter for defendant Chande Drabble on plaintiff’s claim for rent and arrearage and for plaintiff Transpac Corporation on its petition for eviction.
It is so ordered.
Interest at the rate of 6% per annum may be presumed on overdue debts when there is no written agreement. A.S.C.A. § 28.1501.
Chande contends that if she is liable to Transpac for rent then Tom, as her husband, is responsible for her debt under the ancient common law doctrine of coverture. Because of the result we reach, we need not confront the question whether this obsolete, and statutorily abolished, marital convention of old England squares with the modern day fa'a Samoa on le nofotane (the married woman).
See e.g. Garlock v. Garlock, 18 N.E.2d 521 (N.Y. App. 1939); Guthrie v. Bobo, 43 So.2d 871 (Miss. 1950). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486184/ | Order Denying Motion for Rehearing or Reconsideration:
Petitioners’ motion for rehearing or reconsideration came regularly for hearing on October 27, 1993. Petitioners appeared by counsel.
The best interests of all persons concerned, and especially those of the minor child, must be served by the outcome of a proceeding for the relinquishment a parent-child relationship. A.S.C.A. § 45.0402(e); In re a Minor, 14 A.S.R.2d 54, 55 (Trial Div. 1990); In re a Minor Child, 14 A.S.R. 82, 83 (Trial Div. 1990).
In this case, the grandparents’ attention and devotion to their eight-month old granddaughter is apparent. This relationship can continue to be nurtured. Indeed, if all concerned continue to agree, the grandparents are certainly free to remain the child’s primary care-givers, as is often done traditionally. However, this is different than a legal termination of the natural parental relationship, which could leave the child without legal recourse for support during her still long period of dependency. The grandparents are in their sixties, while the natural parents are in their twenties. All five persons live in the same household. Under these circumstances, it is not in the long-term best interests of the child, regardless of present financial circumstances, to *71have her relationship with her natural parents legally severed at such a tender age.
The motion is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486187/ | Order Directing Motion for Order in Aid of Judgment to Trial Division:
*76Appellee’s motion for an order in aid of judgment came regularly for hearing on July 6, 1993. Both appellants and appellee appeared by counsel.
The motion is improperly before the Appellate Division of the High Court of American Samoa. Once jurisdiction over a matter is within the province of a cqurt, that jurisdiction continues to be in fprce regarding judgments arising out of the litigation. As stated in State v. Pritchard, 138 N.E.2d 233, 235 (Ind. 1956): "It is well established that once a court acquires jurisdiction over parties, the jurisdiction continues until the final disposition of the litigation including the enforcement of the judgment or decree." In Central National Bank v. Stevens, 169 US 432, 459 (1898), the ¡Supreme Court noted: "It is a doctrine of law too long established to require a citation of authorities, that, where a court has jurisdiction, it has a right to decide every question which occurs in the cause . . . ." This authority clearly extends to enforcing judgments, and removing obstacles to that judgment, Akers v. Stephenson, 469 S.W.2d 704, 706 (Ky 1970).
This motion rightfully belongs in the province of the Trial Division. Therefore, without expressing an opinion on the merits, this motion is hereby directed to the Trial Division for further proceedings.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486188/ | MUNSON,
Acting Associate Justice:
This appeal1 concerns title to approximately 3.5 acres of land in Pava’ia’i, on the island of Tutuila. the trial court held in favor of Jack and Eliza Thompson.2
A recitation of the facts is necessary for a full understanding of all that has transpired. On December 13, 1948, Pule, Matai of the Pule family, for himseif and Pule family, conveyed title to the disputed land to Jack Thompson, as his individually-owned land, for the sum of $800. Jack Thompson is three-quarters Samoan blood. On April 25, 1949, the Land Commission recommended to the Governor that he approve the sale, which he did, in accordance with then-existing law. The deed was recorded with the Territorial Registrar.
On July 31,1950, Jack Thompson signed a Deed of Conveyance, transferring the land to his father-in-law, Alexander Eli Jennings, as Alexander’s indiyidually-owned land, for consideration of one dollar, Alexander Jennings, Eliza’s father, was one-half Samoan blood. Neither the Land Commission nor the Governor approved this deed, but it was *79somehow recorded with the Territorial Registrar. Jack Thompson testified that he did not realize that he was signing a deed. He claimed that Alexander had always told him that he would watch over the land when Jack, who was serving with the U.S. Navy, was assigned elsewhere. Jack Thompson said that Alexander only showed him the second page of what later proved to be a deed; and told him he needed to sign it to give Alexander permission to look after the land in Jack’s absence.
Between July, 1950, and his death in 1958, Alexander built a small house on the land, but it was never used as his family’s primary dwelling.
Probate of Alexander’s estate began in 1958 and the subject land was included as an asset of his estate, by court order dated July 26, 1962, the final distribution was made. Each of Alexander’s surviving children received an undivided 2/15s interest in the property (including appellant Tinousi’s husband, David), as did the heirs of Alexander’s daughter Zilpher, who had predeceased him.3
Jack Thompson testified that he did not know the land was included in Alexander’s estate until 1962, when the estate was probated.
A transcript of the proceedings in the 1962 probate shows that both Eliza (appellee) and her brother, David (appellant’s deceased husband), were present and from their comments at the hearing both knew , that the property was included in Alexander’s estate.
David and Tinousi Jennings married in July, 1962. From 1964 until 1967 they lived in the small house which Alexander had built on the disputed land. Tinousi testified that David had told her that it was Alexander, not Jack, who had purchased the land for $800 from Pule in 1948. David told her Alexander could not register the land because he was only half Samoan blood and thus could not own land in 1948. David claimed Alexander had the land registered in Jack’s name, because Jack was three-quarters Samoan. Shortly after the law changed in 1949, Alexander asked Jack to reconvey the land to him, which Jack did by the 1950 deed.
Eliza and Jack Thompson returned to American Samoa to live in 1968 and 1969, respectively. When Eliza preceded Jack to Samoa she moved *80in to the house on the land. She and Jack have lived on the land continuously since 1968, and have built two more houses, a small store, and a tennis court.
Tinousi claimed that she first learned of Jack and Eliza’s claim to the land in 1968. However, the evidence at trial showed that neither she nor any other member of her family objected to the Thompson’s claim until 1975, when Tinousi sought to build a house on the land but was refused buy the Thompson.
After the dispute with Tinousi arose in 1975, Jack Thompson in 1976 obtained a deed to the land, executed by Wallace H. Jennings, on e of Alexander’s sons, as "Trustee of the Estate of Alexander E, Jennings, Deceased."
After trial, the court made several rulings based on its findings, the trial court first found the 1976 deed invalid, the court held that because Wallace was not the trustee of his father’s estate he had no legal authority to execute the 1976 deed to Jack and Eliza Thompson.
In considering the conflicting versions of the facts relating to thp 1948 and 1950 deeds, the trial court found that the evidence supporting Jack Thompson’s version of events was clear and convicting, Tl|e court found that under the law in 1948, Jack Thpmpsop could own land but Alexander could not, since the former was thrpe-fourths Samoan blood and the latter only one-half (and the court found no compelling evidepce to support appellant’s claim that Jack and Alexander had conspired in 1948 to circumvent Samoan land ownership law). The fact that Alexander had access to other, family-owned land upon which to build and live and Jack did not also favored Jack’s account of thp acquisition of the land in 1948, as did the fact that the 1950 deed had never been approved by the Land Commission or the Governor.
The coprt found that Alexander’s 195Q acquisition of thp land had come about in ope of two ways. Either Alexander had induced Jack to sign the deed through constructive fraud or undue influence by playing on the family tips, or there was an implied promise by Alexander to reconvey to Jack and Alexander had reneged on the agreement. The court deemed the evidence sufficient to support either construction of the facts. Having found that, the trial court imposed a constructive trust on Alexander to convey to Jack. The court found that upon Alexander’s death the constructive trust was borne by his estate and, in turn, by the distributees after the 1962 probate.
*81Having concluded its analysis, the trial court canceled the 1950 deed and ordered that title to appellant’s undivided 2/15s interest in the title should be vested in Jack Thompson through the valid 1948 deed.
ISSUES ON APPEAL
Appellant raises five issues on appeal: whether or not the trial court erred by treating the constructive trust (which had been dominated an affirmative defense) as a counterclaim; whether the trial court failed to join indispensable parties; whether estoppel by deed should have prevented Jack Thompson from denying the validity of the 1950 deed; whether the equatable doctrine of laches should have been applied to this fact situation; and, whether the evidence establishing fraud and the existence of a fiduciary duty was sufficiently clear and convincing to warrant imposition of the constructive trust.
ANALYSIS
As to the first issue, appellant concedes that it is within the court’s discretion to treat the claim for imposition of a constructive trust, misdesignated as an affirmative defense, as if it had been properly pleaded as a compulsory counterclaim. Trial Court Rule of Civil Procedure 8(c) provides for such treatment and there was no real prejudice to appellant. Accordingly, we find that the trial court did not abuse its discretion and the decision is AFFIRMED as to this issue.
In its July 22, 1992, decision on appellant’s motion for reconsideration or a new trial, the court agreed with appellant’s assertion that the court’s order was too broad, because it affected property rights of persons not before it, to wit, all the remaining heirs of Alexander whose interests in the land, derived from the 1962 probate of Alexander’s estate, would be affected by the court’s decision. Appellant’s lawsuit had sought an adjudication only of her 2/15s interest in the land. The court deemed it appellees’ responsibility to attempt to join all other interested parties or the court’s order regarding the land would of necessity be limited to the undivided 2/15s interest claimed by appellant Tinousi Jennings.
We find that the trial court’s judgment as to any interest of appellant in the land is final, and that she lacks standing to argue the *82indispensability of other parties.4 A court may refuse to determine the merits of a claim on the ground that, even though the claim may be correct, the litigant advancing it is not properly situated to be entitled to its judicial determination. See, e.g. DKT Memorial fund Ltd. v. Agency for Int. Dev., 887 F.2d 275, 283 (D.C. Cir. 1989). Standing focuses on the party and not the issue to be adjudicated. Flast v. Cohen, 392 U.S. 83, 99, (1968). The issue of possible claims by other heirs of Alexander, while potentially problematic, must remain for another day, as we discuss below.
Appellant argues that the trial court erred by basing its decision on equitable estoppel, rather than estoppel by deed. However it is characterized, the estoppel argument is not persuasive. Appellant asks us to find estoppel by deed when the trial court found that Jack Thompson’s signature on the 1950 deed had been obtained through trickery. We accept appellant’s argument we would be countenancing an illegal transaction, since accepting her version of the facts would compel us to ratify Jack and Alexander’s purported 1948 attempt to circumvent the blood requirements of Samoan law.
Appellant next argues that the doctrine of laches should have been applied to prevent appellees from claiming title to this property. Laches is an equitable doctrine and, as such, its application depends on the facts of each case. Brown v. Continental Can, 765 F.2d 810814 (9th Cir. 1985). Generally, laches will be found where there is an unexcused or unreasonable delay by one party in asserting his or her rights, and a concomitant prejudice to the other party.
The time-honored equity maxim that one who seeks equity must do equity applies forcefully here because the laches argument cuts both ways: Appellant failed to pursue her alleged right to the property for several years (from at least 1968 to the filing of her first lawsuit in 1983), which certainly acted to the prejudice of appellees, appellees’ open and notorious possession of the land from 1968 onward put appellant on notice of their claim. As an equitable defense, laches is committed to the sound discretion of the trial court, and reviewed for an abuse of that discretion. A.C. Aukerman Co. v. Chaides Const., 960 F.2d 1020 (Fed. Cir. 1992). We will not reverse unless we have a definite and firm conviction that the court below committed a clear error *83of judgment in the conclusion it reached upon a weighing of relevant factors, United States v. Plainbull, 957 F.2d 724, 725 (9th Cir. 1992), and we will not substitute our judgment for that of the lower court. United States v. BNS., 858 F. 2d 456, 464 (9th Cir. 1988).
We cannot say that, given the facts before it, the trial court committed a clear error of judgment in the conclusion it reached. Equity aids the vigilant. Neither appellant nor appellees zealously pursued their competing claims to the property through legal channels, but appellees’ presence on the property since 1968 certainly put appellant on notice of their claim. We will not alter the trial court’s conclusion on that issue.
Finally, the trial court imposed a constructive trust on Alexander and, in turn, his estate and its distributees, after having found that Alexander had either a fiduciary duty to reconvey the land or that he had breached an implied promise to do so.
A constructive trust is a remedy used by a court of equity to compel a person who has acquired property to which he is not justly entitled to transfer it to the person entitled thereto. See, e.g., Haskel Eng. & Supply Co. v. Hartford Accid. & Indem., 144 Cal.Rptr. 189 (Cal.App.1978); Calistoga Civic Club v. City of Calistoga, 191 Cal.Rptr. 571 (Cal.App. 1983). "The wrongful act giving rise to a constructive trust need not amount to fraud or intentional misrepresentation. All that must be shown is that the acquisition of the property was wrongful and that the keeping of the property by the defendant would constitute unjust enrichment." Calistoga Civic Club, 191 Cal. Rptr. at 576. A constructive trust may arise from violation of a fiduciary duty, such as where the property is obtained by constructive fraud or undue influence. See Witkin, Summary of California Law §308 (9th ed. 1990). Where there is a preexisting fiduciary relationship between the parties, a person whose property has been taken is entitled to restoration of the property itself. Heckmann v. Ahmanson, 514 Cal.Rptr. 177 (Cal.App. 1985). Roth Restatement of Trust 2d §44 and Restatement of Restitution §182 approve the imposition of a constructive trust where the transfer was procured by fraud or where the transferee was in confidential relation to the transferror.
CONCLUSION
Given the facts as the trial court found them to be, we cannot say that the court erred as a matter of law in fashioning the remedy of constructive trust to undo a forty-year-old wrong and finally clear at least a portion *84of the title to the land. Our consideration of this issue is constrained by our recognition that the judges in the trial court had the opportunity to listen to the witnesses, to observe their demeanor as they testified, and to make judgments as to their veracity and credibility.
FOR THE REASONS SET FORTH ABOVE, the judgment of the trial court is AFFIRMED as to appellant. We join in the trial court’s admonition to appellees to promptly resolve, whether by quitclaim deed, further litigation, or otherwise, any and all questions concerning the remaining undivided interests. We note, again, however, that appellees’ victory is but a partial one. As the trial court ruled, appellees must expeditiously seek to quiet title to the remaining undivided interests which have not yet been adjudicated in this proceeding. Until they have done so, they will continue to suffer uncertainty as to their full ownership.
It is so ordered.
Two separate actions were consolidated below for trial, Civil Action No. 11-84, and Land and Titles No. 54-90.
The trial court denied appellant’s request to award her an undivided 2/15s interest ip the land, to evict appellee, to change the Territorial Registrar’s records regarding ownership of the lapd, to impose a constructive trust on appellee’s property, and to enjoin appellees from making further improvements on the land and for $10,000 in punitive damages,
Alexander’s wife apparently received the remaining 5/J5s interest in the land.
Indeed, appellant’s argument about the indispensability of the other parties rings somewhat hollow, given the fact that she could have included them in her lawsuit and, for whatever reason, did not do so. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486189/ | Order on Motion Compelling Discovery and for Sanctions:
Plaintiff Johnson requested the production of certain documents to be made at the deposition of defendant Coulter and one Katherine Lindgren. Coulter and Lindgren refused to produce documents relating to events after June 1990. Johnson now seeks an order under T.C.R.C.P. 37 compelling production and the award of sanctions. Coulter, in his memorandum in opposition to plaintiffs motion, makes three points: (1) that Coulter and Lindgren were improperly noticed, (2) that insufficient notice was afforded Coulter and Lindgren, and (3) that the materials sought are not relevant or are subject to restrictions. Coulter also objects to the request for sanctions as being outside the court’s discretion.
DISCUSSION
1. Improper Notice
Coulter correctly states that a request to produce under T.C.R.C.P. 34 may only be directed to parties to the action. However, the rule also talks about the production of documents or things in the "possession, custody or control" of a party. Thus, documents in the possession of a party’s subsidiary were found to be within the party’s control and were required to be produced under T.C.R.C.P. 34’s federal counterpart, F.R.C.P. 34. Georg Hantscho v. Miehl-Goss-Dexter, 33 F.R.D. 332 (1963 S.D. N.Y.). In Standard Insurance v. Pittsburg Electrical Insulation, 29 F.R.D. 185, 188 (1961 D.C. Pa) the court ruled that a motion for production of documents was not defective even though it requested documents from a corporation not a party to the action. The *86court held that because the corporate defendant owned 100% of the non-party’s stock, both corporations occupied the same premises, and the defendant’s corporate manager was also in charge of the records, the corporations were "substantially one."
In this case, Coulter is a party, and the suit itself names Coulter personally and "doing business as" South Pacific Equipment and Repair, South Pacific Equipment and Repair, Inc., and Samoa Napa, Inc. Additionally, in defendant’s answers to plaintiff’s interrogatories, question 25, Coulter lists only himself as the shareholder of Spear or Samoa Napa (Defendant’s Answers to Interrogatories at 7). The deposition as regards Coulter was, therefore, proper.
Lindgren, on the other hand, is not a party to the action.1 She was identified by Coulter in his answers to plaintiff’s interrogatories as an expert witness whom he intends to call at trial (Defendant’s Answers to Interrogatories at 7). Johnson could have sought, pursuant to T.C.R.C.P. 26(b)(4)(A), a court order to obtain further information from Lindgren in her capacity as an expert witness, but he has not. If Lindgren’s expertise relates only to matters not in preparation for trial, that is; in the course of her employment, she is to be treated as a regular witness in any case. Therefore, Lindgren could have been deposed as an employee of the defendants. If Lindgren is an officer of Coulter’s, and we do not now have enough information to state that she is, the notice given would have been sufficient. However, assuming that Lindgren is not an officer of Coulter’s, her attendance is properly sought through T.C.R.C.P. 45, as a non-party witness. "A mere witness ... attendance may be compelled only by subpoena issued and served in accordance with Rule 45(d)" Sekely v. Salkind, 10 F.R.D. 503 (S.D.N.Y. 1950). Therefore, the deposition as regards Lindgren was improper.
II. Insufficient Notice
Coulter claims that insufficient notice was afforded Coulter and Lindgren (although brief refers only to "defendants" we assume Coulter meant himself and Lindgren, although he is also arguing that Lindgren *87is a non-party). The notice of "deposition duces tecum” was forwarded to defendant’s lawyer 3 days in advance of Lindgren’s deposition and 4 days in advance of Coulter’s deposition. As per Coulter, who was deposed according to rule 30(b)(5), the proper procedure is that of rule 34. Rule 34(b) states that "the party upon whom the request is served shall serve a written response within 30 days after the service of the request . . . ." The court may allow a shorter length of time. Here Coulter choose not to produce the asked for documents and there is no showing that he was unable to produce the documentation because of insufficient time. Additionally, in plaintiffs’ requests for production of documents and things, served June 5, 1991, plaintiff requested all documents that related to the lawsuit. While this was a broad request, plaintiff did begin seeking relevant documentation over 2 years ago.
As Lindgren was improperly noticed, we need not address whether or not the 3 days notice she was afforded was sufficient.
III. Issue of Relevancy
Discovery is a liberal process. T.C.R.C.P. 26(b)(1) states that, in general:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party .... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Coulter claims, for several reasons, that the information sought is irrelevant or subject to restrictions. First, Coulter claims that Spear and Samoa Napa are not partnerships, but separate business entities. However, this question is central to the lawsuit and discovery here is an attempt to answer this question. Materials so related are obviously relevant. Coulter next submits that sought materials are confidential business information whose withholding would not prejudice Johnson. Again, it is this business information that is relevant to determining the central questions of the suit. The materials sought here are relevant and "not privileged" and, therefore, not exempt from disclosure, although certain items (such as tax returns) do contain confidential information. If reasonable protective measures are needed, relief can be sought under *88T.C.R.C.P. 26(c)(7)~indeed, Johnson "agrees to reasonable terms regarding selective non-disclosure." Additionally, Coulter states that it is "irrelevant" whether or not partnership funds were used to capitalize the corporations named herein. However, this information may be relevant to issues of the dissolution of any partnership, and the possible constructive trust. Relevance is liberally construed to encompass matters that could lead to matters that bear on the case. Therefore, the items sought are relevant.
IV. Sanctions
As stated by defendant, sanctions (save costs, as discussed below) would be inappropriate at this time. However, plaintiff has not requested sanctions under 37(b) (available only after a court order has not been obeyed). Plaintiff has only requested attorney’s lees and costs, sanctions that are available under rule 37(a).
Under rule 37(a) the court may require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay reasonable expenses incurred in obtaining the order, including attorney’s fees. Expenses may also be awarded to the non-movant if the motion is denied, or allocated if the motion is granted in part. The court may find that opposition to the motion, or other circumstances, make an award of expenses unfair.
In this case both sides have made a good faith showing for their respective arguments, and an award of expenses is, in our view, not warranted.
CONCLUSION
Coulter was properly noticed. He was afforded insufficient time, although there is no showing that because of this he was unable to produce the requested items. As the items asked for are relevant to the suit at hand, Coulter is directed to produce them, provided that Johnson abides by his agreement to reasonable terms regarding selective non-disclosure.
Lindgren was not properly noticed. Relief sought against her is denied.
Sanctions appear inappropriate at this time and thus plaintiff’s request for costs and attorney’s fees is denied.
*89It is so ordered.
The notice of deposition to Lindgren merely certifies that ''plaintiff’s counsel" was served through his court box; there is no indication that Lindgren herself, a non-party, was at all served in accordance with the rules. TCRCP 30(a) provides that "the attendance of witnesses may be compelled by subpoena as provided in 45 TCRCP, ” and where production is sought from the person to be deposed, TCRCP 30(b)(1) provides for the use of a subpoena duces tecum. A subpoena, however, has to be served personally. TCRCP 45(c). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486190/ | Order Denying Petition for Voluntary Relinquishment:
The natural parents have filed a petition for voluntary relinquishment in seeking to terminate their parental rights to their nine year old daughter, whose adoption is being sought by her maternal grandparents. As in most petitions anticipating grandparent adoption, the principal ground advanced for termination is that the child has been in the primary care of the grandparents since birth.
In these matters, the court has been loathe to sever a child’s legal relationship to his or her parents unless it is satisfied that the child’s best interests are enhanced by the drastic action of changing his or her legal status. Thus, the Court has taken care to ensure that there be some "net benefit" to the minor before severing his legal ties to his natural parents and their corresponding obligations of support. In re Two Minor Children, 11 A.S.R.2d 108, 109 (1989); 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).
*90While the law does not discourage adoption in accordance with Samoan custom, a change in legal status is not necessary to facilitate customary fa ‘a Samoa.
Here, the evidence simply does not tell us that the parents are less equipped than the grandparents, who have undoubtedly proven fit and capable caregivers, to provide for the child. Especially in terms of her "future" interests, the child is better off remaining legally dependent on her younger and able-bodied parents.
We are unable to say that the child’s interests would be better served by changing her legal status and thereby terminating her right to look to her parents for future support. The petition is, therefore, dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486192/ | KRUSE,
Chief Justice
Order on Motion for Rehearing:
On November 29, 1993, appellants filed a petition for rehearing under A.C.R. 40. For the following reasons, their petition is denied.
The allegations of error are essentially arguments rejected by the Appellate Division in its Opinion and Order of November 15, 1993. Appellants continue to dispute the requirement that a motion for a new trial is a jurisdictional prerequisite for an appeal, under A.S.C.A. § 43.0802; A.C.R. 4 (a)(1). Merely disagreeing with the court’s reading of the applicable statutes, rules, and case law, though, is not a basis for granting a rehearing.
Appellants do point out that an associate judge on the appellate panel also heard the case at the trial level, in violation of A.S.C.A. § 3.1007(b). However, this does not justify the petition for rehearing. First, a quorum for the appellate division consists of two justices and one associate judge. A.S.C.A. § 3.0220. A quorum was present even without Judge Mailo. Second, the decision of the court was unanimous, so his participation was not determinative. In any event, it is the vote of two of the justices which is controlling if any differences exist among the justices and associate judges of an appellate panel (with the exception of land and matai-title cases). A.S.C.A. § 3.0221.
Finally, appellants failed to object to the presence on the appellate panel of a judge who also sat on a portion of the proceeding below. In these circumstances, it is difficult to resist the conclusion that appellants’ counsel wanted to see the outcome of the appeal before deciding to raise this violation. Such a posture is improper. As such, some courts have even stated that a failure to timely raise such an objection until after the appellate decision was announced constituted a waiver. See Lee v. United States, 91 F.2d 326, 332 (5th Cir. 1937) (regarding predecessor to 28 U.S.C. § 47); see also Delaney v. United States, 263 U.S. 586, 589 (1924) (while perhaps not a waiver of a law intended to keep courts unbiased, "yet it would seem that [appellant] should not be permitted to assume the competency of the tribunal to decide for him and its incompetency to decide against him."). Thus, appellants have failed to demonstrate prejudice, so any error was harmless.
Appellants’ petition for rehearing is denied.
*96It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486727/ | OPINION AND ORDER
The trial court awarded summary judgment to appellees finding that appellant’s cause of action for' fraud was barred by the statute of limitations. Specifically, the court found that .appellant “knew or should have known” the evidentiary basis of his claim by a certain time frame. Stancris Sales Co., v. Yong, CA No. 47-99, slip op. at 4 (Trial Div. Sept. 9, 1999) (Order Granting Defense Motion for Summary Judgment).
We find that the statute of limitations presents a triable issue of fact and therefore conclude that summary judgment is not appropriate; T.C.R.C.P. Rule 56. We accordingly reverse and remand.
Appellee’s motion for T.C.R.C.P. Rule 11 sanctions is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486728/ | OPINION AND ORDER
Introduction
This appeal, which arises out of numerous consolidated cases involves a land dispute between the Estate of Ioane Fe'afe'aga Ene (“Ioane Fe'a”) and Timu Levale, who is acting on behalf of the Timu family (“Timu family”).
“Palatoga,” the property allegedly belonging to the Timu family and “Tualepipi,” the property Ioane Fe'a claims as his own, overlapped in surveys by the Timu family and Ioane Fe'a. Ioane Fe'a claimed ownership of 10.37 acres. The Timu family claimed ownership of 3.7879 acres in the southwest portion of the 10.37 acres claimed by Ioane Fe'a. Faced with evidence supporting both claims to the disputed 3.7879 acres, the trial court determined that the disputed land belonged to Ioane Fe'a. The Timu family has appealed that decision, arguing that the court’s determination was clearly erroneous and against public policy. We affirm.
Standard of Review
Appellants who seek to overturn a trial court’s findings of fact on appeal bear the “heavy burden of showing that these findings were ‘clearly erroneous.’” Toleafoa v. Tiapula, 12 A.S.R.2d 56, 57 (App. Div. 1989); A.S.C.A. § 43.0801(b). A finding of fact is clearly erroneous “when the entire record produces the definite and firm conviction that the court below committed a mistake.” E.W. Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992).
In reviewing for clear error, “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 (App. Div. 1989). The appellate court will not disturb the trial court’s findings when they are supported by substantial evidence, even if the appellant’s position is also supported by substantial evidence. Afoa v. Asi, 20 A.S.R.2d 81, 83 (App. Div. 1992). “It is not within the province of the appellate court to reweigh the evidence and interfere with a decision based on the lower court’s choice of one version of the facts over another.” Utuutuvanu v. Mataituli, 12 A.S.R.2d 88, 90 (App. Div. 1989). Credibility of witnesses is “uniquely the prerogative of the trial court.” Id.; accord Afoa, 20 A.S.R.2d at 83. In other words, substantial evidence exists to support a finding of fact *43when a reasonable person could reach the factual determination based on the evidence presented.
Analysis
A. The Court’s Findings of Fact are, not Clearly Erroneous Because They are Supported by Substantial Evidence.
The Timu family first argues that the court’s finding that the land belonged to Ioane Fe'a was clearly erroneous because it was not supported by substantial evidence. We disagree, as the trial court had evidence in the record from which it could have reasonably reached that finding. There was testimony that, since 1955, Ioane Fe'a, his brother, and their families cultivated and lived on the land, which was previously virgin bush. Moreover, there was no evidence that the Timu family objected to this occupancy or cultivation over the years.
The Timu family does not argue on this appeal that the evidence supporting Ioane Fea’s claim to the land was false. Instead, the Timu family merely argues that the trial court should have weighed the evidence differently and made contrary credibility determinations. This court will not disturb the trial court’s findings when they are supported by substantial evidence, even if a contrary finding would also be supported by substantial evidence. Afoa, 20 A.S.R.2d at 83. This court will not reweigh the evidence and interfere with a decision based on the lower court’s choice of one version of the facts over another.1 Utuutuvanu, 12 A.S.R.2d at 90.
B. The Trial Court’s Decision is Not Against Public Policy
Based on the Cession of Tutuila and Aunu'u (April 17, 1900) and the American Samoa Revised Constitution, the Timu family argues that the *44government has a duty to protect American Samoan land. The Timu family argues that the court’s decision to award the lands to Ioane Fe'a violates this duty. We disagree. The government’s duty applies when land is taken from American Samoans and given to foreigners. Here, the lands are remaining in the hands of American Samoans. Accordingly, the government did not violate its duty to protect the land of American Samoa when the court mled that the land belonged to Ioane Fe'a.
It is so ordered.
Before trial, the Fe'a family claimed ownership of the 10.37 acres that Ioane Fe'a said belonged to him individually. However, the Fe'a family withdrew its claim before trial. The trial court found that the 10.37 acres had been virgin bush that was cleared, cultivated, and continuously used by bone Fe'a. his brother, and their immediate families. This finding supported Ioane Fe'a’s individual claim. See Sese v Leota, 9 A.S.R.2d 25, 32 (Land & Titles Div. 1988) (citing Leuma v. Willis, 1 A.S.R.2d 48 (1980)). That finding is not before this court, as the Fe'a family is not challenging it and the Timu family lacks standing to challenge it. This court recognizes that, when faced with the issue, it must examine individual claims of ownership carefully to ensure that families do not agree to apportion their communal lands for short-term gains and thereby wrongfully deprive future generations of these lands. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486729/ | OPINION AND ORDER
Appellants, members of the extended Alo family of Fagasa village, and Appellees, the Tupuola family also of Fagasa, each lay claim to substantially overlapping parcels of land within the village. This is an appeal from a judgment of the Land and Titles Division awarding the overlap to appellees.
Background
The factual backdrop to these proceedings is as follows: On December 12, 1993, Tupuola Petelo, then the sa'o (senior chief) of the Tupuola family, filed LT No. 42-93 against appellants Su'esu'emanogi Williams and Mary Keleti to enjoin them from constructing a house and trespassing on the disputed land. Shortly thereafter, Tupuola Petelo moved to dismiss the case, asserting that the parties had settled their differences. On January 11, 1994, the court thereupon dismissed LT No. 42-93 without prejudice.
Two weeks later, Petelo filed LT No. 7-94, for the very same purposes he had filed LT No. 42-93. The Land and Titles Division ordered both parties to survey their respective land claims. The Tupuola family completed their first survey of 2.322 acres in March 1994 and offered to register this parcel of land as their communal land. The appellants duly filed their objection with the Territorial Registrar, and subsequently completed their own survey of 2.819 acres in December 1994. They in turn sought to register title to their surveyed parcel.
*46On January 9, 1995, the Territorial Registrar referred the matter to the Secretary of Samoan Affairs. The requisite statutory mediation effort failed and the Secretary of Samoan Affairs accordingly certified, on March 10, 1995, an irreconcilable dispute for referral to the High Court, where it became docketed as LT No. 12-95. Subsequently, LT No. 12-95 and LT No. 7-94 were consolidated.
In 1997, the Tupuola family completed another survey, this one for 5.22 acres, which completely engulfed the area claimed by appellants. The matter then lay dormant until October 1999, when appellees moved for trial date. After two further continuances at appellants’ request, trial was finally held on April 25 and 26, 2000, albeit over appellants’ objection and request for yet another continuance. Just prior to trial, Tupuola Satete had, by affidavit dated April 19, 2000, notified the court that he was now the sa 'o replacing Tupuola Petelo, who had died. At trial, he moved to be substituted in lieu of his predecessor-in-title, Tupuola Petelo. Appellants, however, argued that this substitution request warranted a further continuance. The court granted the substitution request and denied the motion for continuance, citing, among other things, the longstanding dormancy of the matter on its docket.
At trial, each party put on witnesses and introduced their respective surveys. Appellees asserted that they had occupied the entire area of their approximately 5-acre survey since before 1900, and that appellants’ presence in the area was only intermittent and by permission of various Tupuola titleholders. Appellants, on the other hand, argued that they had been on the land since time immemorial and without any permission from the Tupuola family.
In its order dated July 6, 2000, the trial court found appellees’ evidence in support of their claim to be credible. It also found that appellants’ presence on the land had not only been intermittent but was with the Tupuola family’s permission. Pointing to the corroborating presence of a Tupuola cemetery and the lack of an Alo cemetery on the contested land, the history of Fagasa village, as well as to its assessment of credibility of the testimony, the court found for appellees. It ordered, inter alia, registration of title to the overlap as part of Tupuola communal land, and enjoined appellants from building on the land without the Tupuola sa 'o’s permission.
Standard of Review
The decision to grant or deny a continuance is in the discretion of the trial court and will only be overturned upon a clear showing of abuse of that discretion. Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1102 (9th Cir. 1998). The findings of fact of the trial court may not be *47set aside by the Appellate Division unless clearly erroneous. 43 A.S.C.A. § 43.0801(b). The trial court’s findings of fact are not clearly erroneous where supported by substantial evidence in the record. Suapilimai v. Faleafine, 9 A.S.R.2d 16, 19 (App. Div. 1988). The test for clear error is not whether appellant presented substantial evidence, but whether there was substantial evidence to support the trial court’s findings. Moea'i v. Alai'a, 12 A.S.R.2d 91, 93 (App. Div. 1989). The clear error standard applies to the lower court’s evaluation of witnesses’ credibility. Paolo v. Utu, 26 A.S.R.2d 18, 19 (App. Div. 1994); In re Matai Title Tauaisafune, 6 A.S.R.2d 59, 61 (App. Div. 1987) (appellate court must defer to the trial court on factual determinations turning on the credibility of witnesses).
Discussion
Appellants claim error in the trial court’s refusal to grant a continuance and in allowing appellees to substitute party names just before trial. Secondly, they contend that the court’s findings were in error and not substantially supported. In the alternative, appellants submit that they have established title through adverse possession.
A. Substitution of Parties
Appellants' argue that the trial court’s order allowing appellees to substitute Tupuola Satete for the deceased Tupuola Petelo, and its denial of their continuance request after allowing the substitution, was an abuse of discretion. Appellants specifically point to the different surveys presented by the two sa 'os as being prejudicial to their claims.
The trial court noted that the death of Tupuola Petelo was first indicated on the record of these proceedings when Tupuola Satete filed his motion seeking sanctions against the appellants, for alleged dilatory and delaying tactics. In his affidavit in support, dated April 19, 2000, Tupuola Satete averred that he was the family sa 'o succeeding Tupuola Petelo, who had passed away. In addition, the trial court further noted that appellee’s second survey in 1997 was commissioned by Tupuola Satete, who was thus known to appellants as the new sa 'o of the Tupuola family for several years before the trial. In light of this early notice well before trial, the trial court was not persuaded on appellants’ claim of prejudice.
Appellants, notwithstanding direct questions by members of this Court to counsel dining oral argument, have neither been able to articulate nor demonstrate just what that prejudice might be.1 In our view, the trial *48court did not abuse its discretion in granting the substitution of parties and in denying the proposed continuance. There was ample evidence that the change was not a surprise and no prejudice has been demonstrated by appellants.
B. Trial Court’s Factual Findings
Appellants challenge the trial court’s factual findings as being in clear error. The findings below specifically challenged by appellants are that the Alo use of the land has only been with the permission of the Tupuola family, that the Alo presence on the land has been intermittent, and that the Tupuola family has established ownership of the entirety of their survey.
Appellants urge that these findings were based “solely on the hearsay testimony of Tupuola Satete.” The main thrust of the argument here is that the Tupuola testimony was based primarily on family history, and that acts of dominion, such as controlling and cultivating the land, are a better indicator of ownership than family histoiy.
Ironically, appellants’ evidentiary support likewise rested in part on the hearsay value of oral tradition and family history, with their claim to ownership from time immemorial and in their reference to a Alo Taisi as the originál cultivator of the disputed land. In the same maimer, appellants’ case was also principally footed on the testimony of one man, Alo Sila Williams.
Be that as it may, when a factual issue comes down to credibility of the witnesses, the appellate court must defer to the trial court’s judgment. See also Reine v. Taotoai, 25 A.S.R.2d 136, 138 (App. Div. 1994) (it is for the trial court to resolve conflicts in the evidence, and to judge the credibility of witnesses); Utuutuvanu v. Mataituli, 12 A.S.R.2d 88, 90 (App. Div. 1989) (the credibility of witnesses is uniquely the prerogative of the trial court); Nat‘l Pac. Ins. Co. v. Oto, 3 A.S.R.2d 94, 95 (App. Div. 1986). Here, the trial court clearly stated in its opinion that it found appellees’ claim to be credible; conversely, the court clearly did not believe appellants’ version of the facts.
Contrary to appellants’ position, the trial court’s findings were also *49supported by factors that went beyond family history and oral tradition— the presence of a Tupuola graveyard and the absence of Alo family burials on the disputed area. Under local law, family graves tend to indicate ownership of the burial site. See, e.g., Malaepule v. Fa'agau, 29 A.S.R.2d 152, 155 (Land & Titles Div. 1996) (the significance of family graves is a traditional indicia of land ownership); Uiagalelei v. Fuimaono, 14 A.S.R.2d 49, 50 (Land & Titles Div. 1990) (“the general and long standing custom is to place family graves on family land... and to rely on them as evidence of land ownership”). While the Alo family has claimed that their lack of graves was due to their use of a graveyard outside the contested land, the court found that the Alo family did attempt to bury a family member on the contested land but withdrew when the Tupuola family objected.
Finally, there was no error in the trial court’s finding that the Alo family’s use of the land was by the permission of the Tupuola family. Because appellants’ claim that the Alo family owns the land due to adverse possession was therefore not reached by the trial court, we will not consider it now. However, even if the trial court believed that the Alo family had continuous use and possession of the land, its acceptance of the appellee’s testimony that the Alo members’ occupation of land was founded on the permission of various Alo titleholders simply renders the Alo family’s actions insufficient to establish ownership. Permission defeats a permittee’s claim of adverse possession and grants him only a personal license. Utu v. Fuata, 17 A.S.R.2d 104, 106-07 (Land & Titles Div. 1990).
In our view, the trial court considered the full set of circumstances and weighed the credibility of the testimony in reaching its decision, and its findings are substantially supported on the record. Under the applicable standard of review, we must uphold these findings. These findings establish title for appellees to the disputed land.
For reasons discussed, we affirm.
It is so ordered.
Appellants’ argument tends to overlook the legal and Samoan reality *48that in American Samoa, communal lands are not actually owned by the sa'o, but by the family. See, e.g., Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87 (Land & Titles Div. 1989). A matai merely acts as a trustee of family land, not as an owner. The substitution of the named party sa 'o in the family’s efforts to maintain communal land is really of no import in this matter. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486193/ | Order on Motions for Permanent Injunction and Enforcement of Foreign Judgment:
On August 25, 1993, a Judgment and Decree of Dissolution of Marriage was filed in the Circuit Court for Multnomah County, Oregon. Subsequently, defendant entered American Samoa aboard the yacht "Pangaea," a marital asset. On November 19, 1993, the High Court issued a preliminary injunction barring defendant from "entering onto, interfering with, or damaging the yacht." On December 16, 1993, a hearing was held concerning plaintiff’s motion for enforcement of a foreign judgment and her motion for a permanent injunction.
*97The High Court is empowered to enforce a judgment of any United States court or other court entitled to full faith and credit in American Samoa under the "Uniform Enforcement of Foreign Judgments Act." A.S.C.A. §§ 43.1701-43.1709; see 28 U.S.C. § 1738. In this, regard, the general rule is that a court may not relitigate the merits of the original action or consider a defense that could have been raised in the original action. Bahr v. Bahr, 180 N.W.2d 465, 467 (S.D. 1970) (citing Picking v. Local Loan Co., 44 A.2d 462, 468 (Md. App. 1945)); see Klee v. Cola, 401 So. 2d 871, 872 (Fla. App. 1981) (citing Whiteside v. Dinkins, 97 So. 517 (Fla. 1923)).
In granting the divorce decree, the Oregon court made a factual finding that DeStael was a resident under the residency/domicile requirement of Or. Rev. Stat. § 107.075. This court is thus precluded from questioning the Oregon court’s findings of fact and its corresponding interpretation of Oregon law. Therefore, plaintiff’s motions are granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486194/ | Order on Motions to Dismiss:
PROCEDURAL HISTORY
On October 26, 1993, defendant American Samoa Government filed its motion to dismiss. Defendants Melendez, Internal Revenue Service, and Department of the Interior filed their motion to dismiss on November 19, 1993. A hearing on ASG’s motion, scheduled on November 22, 1993, was continued to permit both motions to be heard on December 17, 1993.
*99FICA’S APPLICATION TO AMERICA SAMOA
As noted in the "Opinion and Order Denying Petition for Temporary Restraining Order," FICA applies to any employment performed within the U.S. or outside the U.S. if performed by U.S. citizens or residents. 26 U.S.C. § 3121(b). For purposes of the FICA chapter, Congress explicitly defined "state" and "United States" to include American Samoa. 26 U.S.C. § 3121(e). As such, employers and employees in American Samoa must pay the mandated Social Security taxes.
Furthermore, plaintiff Mulitauaopele’s argument that the federal laws must be passed by the American Samoa legislature in order to be effective in the territory is clearly wrong. The Supremacy Clause declares that" [t]his Constitution, and the laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land." U.S. Const, art. VI. Furthermore, "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property of the United States." U.S. Const. Art. IV, § 3.
Likewise, American Samoa’s constitution itself proclaims that it was promulgated under the authority of Congress and the President of the United States, as delegated to the Secretary of the Interior. Revised Const, of American Samoa Preamble and Art. V, § 11 (1967); see 48 U.S.C. § 1662(a) ("Amendments of, or modifications to, the constitution of American Samoa, as approved by the Secretary of the Interior . . . may be made only by Act of Congress."). Under the Deeds of Cession between the chiefs of Eastern Samoa and the United States, all vestiges of sovereignty passed from the former to the latter. See 48 U.S.C. §§ 1661, 1662; Cession of Tutuila and Aunu'u, April 17, 1900, A.S.C.A., Historical Docs. & Consts.; Cession of Manu’a Islands, July 14, 1904, A.S.C.A., Historical Docs. & Consts.; Bell v. Commissioner, 278 F.2d 100, 102 (4th Cir. 1960) ("rulers of Samoa ceded absolutely all rights of sovereignty over these islands to the United States"); Vessel Pacific Princess v. Trial Division of the High Court of American Samoa, 2 A.S.R.2d 21, 23 (App. Div. 1984) ("American Samoa is still legally governed by executive fiat and administered by the Secretary of the Interior"). Thus, Social Security taxes may be collected without the Fono’s approval.
JURISDICTION AND VENUE
*100Plaintiff Mulitauaopele has once more requested a temporary restraining order and an injunction barring enforcement of the FICA assessment. He also seeks damages for alleged injury resulting from his business’ closure. However, the High Court is powerless to grant the desired relief, even if proper.
First, as this court observed in denying a temporary restraining order, the prohibitions of the Anti-Injunction Act are comprehensive. This statute states that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." 26 U.S.C. § 7421(a) (emphasis added); see Enochs v. Williams Packing & Navigation, 370 U.S. 1, 5, 8 L. Ed. 2d 292, 295 (1962). Thus, the High Court lacks jurisdiction to block enforcement of federal tax laws.
Second, the High Court lacks jurisdiction over plaintiff’s request for money damages. Although Congress has authorized suits to collect damages for "unauthorized collection actions" by the Internal Revenue Service, these suits must be brought in a "district court of the United States." 26 U.S.C. § 7433(a). However, the High Court is not a U.S. "district court," nor has it been given the authority to act as a district court for purposes of this statute. This conclusion is supported by the fact that Congress explicitly named American Samoa in a number of places in the tax code (including the definitions of "state" and "United States") but did not do so when it mentioned "district courts." This situation is similar to that of the High Court’s admiralty jurisdiction, in which the High Court is not a "district court" for purposes of the federal Limitation of Liability Act but has been given the authority to act as one for purposes of the federal preferred mortgage lien statute. Compare In re Complaint of Interocean Ships, Inc., 2 A.S.R.2d 76, 79 (App. Div. 1985) (no jurisdiction under Limitation of Liability Act, 46 U.S.C. § 185) with United Airlines Employees’ Credit Union v. M/V Sans End, 15 A.S.R.2d 95, 100 (Trial Div. 1990) (46 U.S.C. § 31301(2)(E) defines the High Court as a "district court" for the purposes of enforcing preferred mortgage liens under 46 U.S.C., Chapter 313). In any event, plaintiff has not shown that he has exhausted his administrative remedies, and the request for damages exceeds the $100,000 statutory limitation. See 26 U.S.C. § 7433(b), (d)(1).
If plaintiff was denied any opportunity for review by a federal court created under Article III, serious constitutional problems could arise. See Guam v. Olsen, 431 U.S. 195, 204, 52 L. Ed. 2d 250, 258 (1977) (denying appellate review of territorial-court decisions by Article III courts "might present constitutional questions"); King v. Morton, 520 *101F.2d 1140, 1144 (D.C. Cir. 1975) ("availability of remedies in the Samoan courts [to persons challenging actions of United States Government officials] . . . cannot act as a complete bar to district court proceedings"). A rational basis, though, may exist to justify Congress’ failure to provide for direct review by an Article III court. Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v. Hodel, 830 F.2d 374, 386 (D.C. Cir. 1987). So while the High Court lacks jurisdiction in this case, plaintiff is not precluded from litigating in a federal district court.
Regarding civil suits against an officer or agency of the United States, the federal venue statute reads as follows:
A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action.
28 U.S.C. § 1391(e); see generally Annotation, Construction and Application of 28 USC § 1391(e) Providing for Venue and Process in Civil Actions Against Federal Officers, Employees, or Agencies, 9 A.L.R. Fed. 719 (1971 & supp. 1990); 1 Moore’s Federal Practice ¶ 0.142[7] (1985). Under this provision, proper venue could at least be established under subsection (1). While such a forum may not be convenient, it is no more so than appeals of the High Court’s decisions in federal court, which is accomplished by suing the Secretary of the Interior in his official residence in Washington, D.C. See King, 520 F.2d at 1144 ("Secretary [of the Interior] is within the geographical jurisdiction of the United States District Court for the District of Columbia"); Presiding Bishop, 637 F. Supp. at 1416 ("litigants in *102American Samoa may obtain review in this Court via the mechanism of suing the Secretary of the Interior").1
CONCLUSION
First, Congress has mandated that Social Security taxes be assessed in American Samoa. The absence of approval by the Fono is irrelevant. Second, the High Court lacks jurisdiction to enjoin the collection of FICA or to hear a suit for damages resulting from unauthorized collection actions. Therefore, defendants’ motions to dismiss are granted.
It is so ordered.
Nevertheless, the absence of a court which can handle all federal matters arising in American Samoa has not only led to great inconvenience to plaintiffs and defendants but has also resulted in confusion as to the High Court’s jurisdiction over questions of federal law. The piecemeal approach of giving the High Court authority to act as a federal district court for tire purposes of specific laws has also been shown to be unsatisfactory. See Pacific Princess, 2 A.S.R.2d at 24 (Gardner, C.J., concurring) ("lack of access by the residents of this territory to a court with federal jurisdiction is troublesome"); Interocean Ships, 2 A.S.R.2d at 81-82 (Murphy, Acting C.J., concurring) (lack of access to a federal court is probably the "result of Congressional oversight").
The current jurisdictional and forum problems again bespeak the need for revisiting the question of access to the federal courts. However, in the absence of territorial initiative, Congressional attention will continue to remain uncertain, while American Samoan litigants are left having to look to the federal courts located some 7,500 miles away in Washington D.C., in order to avail themselves of their federal remedial rights. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486195/ | Order Denying Motion to Suppress Evidence:
On October 1, 1993, defendant filed his motion to suppress evidence obtained during the execution of a search warrant issued by the district *104court judge on July 20, 1993. A hearing on this motion was held on November 15, 1993.
.In deciding whether to issue a search warrant based on a confidential informant’s information, a magistrate makes "a practical, common-sense decision" whether all the circumstances set forth in the supporting affidavit provide a "substantial basis" that probable cause exists. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); Massachusetts v. Upton, 466 U.S. 727, 732-33 (1984); American Samoa Govt. v. Lam Yuen, 13 A.S.R.2d 49, 51 (Trial Div. 1989).' A finding of probable cause is to be given "great deference" on review, because of the "strong preference" that, under the Fourth Amendment to the U.S. Constitution, police conduct searches pursuant to a warrant. Gates, 462 U.S. at 236; Upton, 466 U.S. at 733. The wording of the Fourth Amendment is repeated verbatim in the first sentence of Article I, section 5 of the Revised Constitution of American Samoa.
In determining probable cause, a "totality of circumstances" approach is used. A confidential informant’s "veracity" or "reliability" and his "basis of knowledge" are weighed as two elements in the "totality of circumstances", analysis but not as two independent tests which must be separately satisfied. As such, "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, 462 U.S. at 233. Thus, information given by a highly reliable informant can support probable cause, even if he fails to thoroughly set forth the basis for his knowledge. Likewise, information given by an informant with questionable motives can be sufficient if he gives a detailed description based on a claimed first-hand observation. Id.
Furthermore, an otherwise insufficient statement by an informant can support the issuance of a search warrant if the police have corroborating evidence. Id. at 241-42, 76 L. Ed. 2d at 550; Lam Yuen, 13 A.S.R.2d at 50. Contrary to the defense position in this case and in Lam Yuen, though, corroborating evidence is not necessary if the informant’s credibility and basis of knowledge are sufficient. See Lam Yuen, 13 A.S.R.2d at 50-51 (citing Upton, 466 U.S. at 730-31, 80 L. Ed. 2d at 725-26).
Applying the "totality of circumstances" analysis, the search warrant executed against defendant and his family was supported by sufficient evidence. In his affidavit, the police officer stated that he knew the confidential informant, who was knowledgeable about marijuana and had *105provided, on two occasions in the past, accurate information leading to arrests for felony narcotic offenses and seizure of narcotic paraphernalia. The informant said his knowledge was based on observations during several personal visits to defendant’s residence over a period of some three years, beginning in 1990. In October 1991, the informant visited defendant’s residence and saw 30 to 40 marijuana plants growing within the boundaries of a 15-foot high, wooden fence attached to back of the house and covered with a black fishing net. He also purchased four bags of suspected marijuana for $100. The police tested samples from this purchase, which proved positive for THC (the active ingredient in marijuana). During the last visit, in June 1993, the informant stated that he saw defendant and his family selling marijuana and observed about 40 marijuana plants growing in the same fenced-off area. The informant also described the sales procedure in detail. As for the timeliness of the facts supporting the search warrant, determining "whether information is too stale to establish probable cause depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized." United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986). Here, the criminal activity was ongoing, and the marijuana was being cultivated rather than merely possessed or distributed. This information, as a whole, constituted probable cause for issuance of the search warrant.
A defendant challenging the validity of a search warrant must overcome the deference which is to be given to a magistrate’s finding of probable cause. The defendant has failed to show that the district court judge’s finding of probable cause lacked a sufficient basis in the evidence. Therefore, defendant’s motion to suppress evidence is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486197/ | CANBY,
Acting Associate Justice:
*111This appeal arises from a decision of the trial division determining heirship in the estate of Tuinanau Fuimaono.1 Tuinanau died intestate in 1984. Those claiming to be heirs include: Fa'alua Fuimaono, who was held out as Tuinanau’s wife for a period of 37 or 38 years prior to his death; Saumaleato ("Ato") Fuimaono, Fa'alua’s son by a prior marriage, who had been raised as a son of Tuinanau and Fa'alua; and Sapati Fuimaono, a son of Tuinanau’s by a prior marriage. The disputed claims are those of Fa'alua and Ato; there is no dispute over Sapati’s claim, although the amount of his inheritance is necessarily increased if either of the other claims are defeated.
DISCUSSION
I. Fa'alua’s Claim
It appears from the evidence that Tuinanau was originally married to one Selepa, and Sapati was bom of that relationship in 1940. The couple separated in approximately 1945, and it is not clear whether they were ever legally divorced.
Tuinanau and Fa'alua began living together in 1946 or 1947. There is no marriage certificate in the files of the Registrar of Vital Statistics of American Samoa, and no other certificate was entered into evidence. Several other documents were admitted into evidence and referred to by the trial court: a church document purporting to show a marriage in 1946, performed by a person named "Morrow" — apparently a reference to former Chief Justice Arthur A. Morrow; a Certificate of Identity travel document, issued to Fa'alua on September 8, 1976, by the American Samoa Attorney General’s Office, stating that she was married; an American Samoa Birth Certificate, issued as a late registration of January 28, 1971, and appended to the Certificate of Identity, stating that Fa‘alua was bom in Fagatogo, American Samoa, on January 11, 1905; and an Alien Registration Form issued by the Attorney General, which Fa'alua completed under oath on February IT, 1964, using her maiden name of Letuli and stating that she was bom on March 14, 1930, in Western Samoa, that she was a citizen of Western Samoa, and that she had entered American Samoa at Fagatogo on June 22, 1947, and was living with the Fuimaono family in Nu'uuli.
*112The trial court found that not all of these documents could be genuine, and that only the Alien Registration Form was accurate (except for its recited date of birth). As a consequence, the court found that the union of Tuinanau and Fa'alua had never been solemnized by a marriage ceremony. The court further found that, despite their having held themselves out as married for some 38 years, Tuinanau and Fa'alua both knew that the relationship was not a legal marriage. The court therefore concluded that, because common law marriages are not recognized in American Samoa, see A.S.C.A. § 42.0101(e), Fa'alua was not a spouse of Tuinanau for purposes of inheritance.
On appeal, Fa'alua argues that the trial division gave insufficient force to the presumption of the validity of a marriage derived from long cohabitation and holding out as man and wife. See e.g., Trower v. Board of County Commissioners, 75 N.M. 125, 401 P. 2d 109 (1965). She relied on the fact that the community had recognized her marriage to Tuinanau for 38 years, that she and Tuinanau executed deeds and other documents as husband and wife, that Tuinanau would not have been appointed a deacon of his church if he had not been married to her, that the immigration service issued her an identity document with the last name Fuimaono, and that the Social Security Administration had satisfied itself that she was entitled to benefits as Tuinanau’s widow.
We conclude that Fa'alua’s contentions have merit, and that the ruling that she was not entitled to inherit as Tuinanau’s widow must be reversed.
We are aware that the question of the existence of a marriage is one of fact, see 52 Am. Jur. 2d, Marriage, § 127, but we are satisfied that, in making its rulings of fact, the trial division gave too little force to the presumptions applicable to a case like this, and to the evidentiary force of the exceptionally long period during which Tuinanau and Fa'alua held themselves out as being married, and acted wholly consistently with that status. Cohabitation and reputation as husband and wife are not only relevant for purposes of common-law marriage; they constitute evidence that a marriage ceremony in fact took place. "[P]ersons living together in apparent matrimony will ordinarily be presumed to have been married ceremonially in states rejecting the doctrine of common-law marriages." Id. at § 132; see Suddeth v. Hawkins, 202 S.W.2d 572, 575, 577-78 (Mo. App. 1947). The strength of the presumption depends on the circumstances of the case, 52 Am.Jur.2d at 132, and in this case the circumstances are unusually strong in favor of marriage. Not only did Tuinanau and Fa'alua consistently hold themselves out as married for 37 *113or 38 years, they appear to have been accepted almost universally as being legitimately married. Tuinanau’s position as deacon of his church is perhaps the weightiest indication of community belief in the validity of the marriage.
We agree with those cases holding that the presumption arising from this long and consistent pattern of behavior bears weight of its own, see, e.g., In re Nidever’s Estate, 181 Cal. App. 2d 367, 5 Cal. Rptr. 343, 350-51 (1960). The length and consistency of this relationship and of the community understanding compel, in our view, a finding that a ceremony had occurred; it is not overcome by the representations in the Alien Registration Document — the sole document suggesting that Fa‘alua was not married, and one that misstates Fa'alua’s birth date by some 25 years. We also note that the uncertainty whether Tuinanau had been divorced from his prior wife is no bar to recognizing Fa'alua’s marriage to Tuinanau; there is a strong presumption that the prior of two marriages has been dissolved. See 52 Am. Jur.2d, Marriage, § 140.
The trial division, while recognizing that Tuinanau and Fa'alua consistently acted as a married couple for 37 or 38 years, found that they both knew that their marriage was not a legal marriage. This finding, however, depended on the earlier finding that there had been no marriage ceremony — a finding that we have determined to be erroneous.
We accordingly reverse the ruling of the trial division to the extent that it determined that Fa'alua was not entitled to inherit as the spouse of Tuinanau.
II. Ato’s Claim
The trial division originally found that Ato was the child of Tuinanau and Fa'alua, but it modified this finding in its amended order. There it determined that Ato was Fa'alua’s son by a previous relationship, not Tuinanau’s son, but that he had been raised from infancy by Fa‘alua and Tuinanau "as their genuine son." Recognition of Ato as their child extended expressly and implicitly to several legal documents. The Fuimaono family "essentially accepted the practical, day-to-day, father-son relationship between Tuinanau and Ato."
On the strength of these findings, the trial division held that Tuinanau had effected an "equitable" or "de facto" adoption of Ato for inheritance purposes. See 97 A.L.R.3d, Adoption by Estoppel, 347, 353-55, 359-65 *114(1991). Ato was accordingly held to be entitled to inherit from Tuinanau’s estate as if he had been a natural son.
Sapati appeals this ruling, raising several arguments, all of which we reject. First, Sapati contends that adoption is entirely a creature of statute, and that Ato cannot have been adopted because the statutory requirements of American Samoa for adoption were neither followed nor attempted to be followed. See Title 45, chapter 4, American Samoa Code Annotated. Sapati relies on cases refusing to recognize the doctrine of equitable adoption. See, e.g., Clarkson v. Bliley, 185 Va. 82, 38 S.E.2d 22 (1946); Brassiel v. Brassiell, 228 Miss. 243, 87 So.2d 699, 722 (1956). There is, however, a line of authority to the contrary, that recognizes equitable adoption despite the existence of statutory procedures for adoption. See 97 A.L.R.3d, Adoption by Estoppel, supra. The question is an open one in American Samoa, and the trial division was not compelled to follow the cases on which Sapati relies. We agree with the trial division that the more just approach is to permit equitable adoption upon a showing of long and consistent treatment of the claimant as the "genuine son" of the decedent. We conclude that the law of American Samoa may recognize equitable adoption for purposes of inheritance from the individual estate of the equitable adoptive parent. As the trial division recognized, this doctrine may be applied in the absence of proof of a specific contract to adopt. Wheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369, 373-74 (W. Va. 1979).
Sapati next argues that Ato failed to plead a claim of equitable adoption, and that the trial division erred in recognizing that claim sua sponte. We disagree. The underlying facts were adequately placed in issue by Ato’s claim that he was the son of Tuinanau, and there was ample evidence that he was held out as Tuinanau’s son. The trial court retains discretion to adjudicate claims that were not pleaded. See T.C.R.C.P. 15(b). Sapati has not shown that he had additional relevant evidence on the question that he was deprived of an opportunity to present when the trial court entertained the equitable adoption claim. As for Sapati’s argument that there was a failure of evidence of a specific agreement to adopt, we have already pointed out that no such evidence is needed under the rule of Wheeling Dollar Savings, supra.
Finally, Sapati argues that the doctrine of equitable adoption runs counter to Samoan public policy and custom, in that it gives recognition to numbers of individuals who may be known as "sons" in an extended family. Sapati overstates the trial court’s ruling, however. The trial court was well aware that in Samoa a head of family may refer to many persons as "sons" when those persons are not biological sons and are not *115intended to inherit from the putative father’s individual estate. The trial court, however, required and found that in the present case there was much more of a relationship than that. Tuinanau held Ato out as his "genuine" (z'.e., biological or statutorily adopted) son during the many years that commenced with Ato’s infancy. The rule adopted by the trial court, and affirmed here, requires a finding that the equitably adopted child "has stood from an age of tender years in a position exactly equivalent to a formally adopted child." Wheeling Dollar Savings, 250 S.E.2d at 373-74 (emphasis in original). The trial court’s ruling was a narrow one, and does not encompass the many looser "father-son" relationships found in a customary extended family. We note as well that the trial court’s ruling holds Ato to have been equitably adopted for purposes of inheritance from his father’s individual estate. No other effect of equitable adoption was adjudicated, and no other effect is affirmed here. All that we conclude is that Ato is entitled to share in his father’s inheritable estate as an equitable adopted son.
CONCLUSION
The ruling of the trial division that Fa‘alua is not entitled to inherit as Tuinanau’s surviving spouse is REVERSED. The ruling that Ato is entitled to inherit as an equitably adopted son is AFFIRMED. The case is REMANDED to the trial division.
It is so ordered.
The trial court modified the title of this case to "Estate of Tuinanau Fuimaono, Deceased." The court observed that all proceedings for the administration of the estates should bear such a simplified caption. We follow the practice of the trial court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486198/ | Order on Motion to Dismiss:
Tipisone Manu Aoelua filed with the Territorial Register his claim to succession to the matai title Paulualo of the village of Afono. His claim *117was objected to by Folau 1‘aulualo, Mataiumu Siofaga and Naiuli L. Ma‘ileoi, who each filed his respective counterclaim to succession. Following the requisite hearings before the Office of Samoan Affairs, the Secretary of Samoan Affairs certified an irreconcilable dispute to the court in accordance with the provisions of A.S.C.A. § 43.0302. This matter accordingly came on regularly for trial on December 29, 1993.
Prior to trial, candidates Tipisone Manu Aoelua and Naiuli L. Ma'ileoi withdrew their respective claims to succession. That left the two remaining candidates, Mataiumu Siofaga (hereinafter "Mataiumu") and Folau 1‘aulualo (hereinafter "Folau"). Mataiumu moved at the outset to dismiss Folau’s succession claim on the grounds that the latter’s objection and counterclaim did not comply with the requirements of A.S.C.A. § 1.0407.11 At the conclusion of Mataiumu’s case, Folau moved for the dismissal of his rival’s claim to succession on the grounds that Mataiumu was not "born on American soil" and therefore did not meet all of the eligibility requirements for matai-title succession as set out in A.S.C.A. § 1.0403.2 The motions are here addressed.
*118
I. Motion to Dismiss Folau’s Succession Claim
Contrary to the requirements of A.S.C.A. § 1.0407(b), Folau’s counterclaim or objection only contained ten supporting signatures, as opposed to the mandated twenty-five. Also, contrary to the affidavit which he executed before the Territorial Registrar, Folau conceded that the Faulualo family had more than twenty-five members who are qualified petitioners. He explained, however, that the affidavit which he had executed was something which was prepared and presented to him for signature by the Territorial Registrar’s office without his being clear on the document’s significance. He explained the inadequate number of supporting signatures on his objection and counterclaim as the result of his not having sufficient time to gather the required signatures. He testified that he was off-island when Tipisone Manu Aoelua had offered the title for registration and that by the time he had returned and decided to object, the sixty-day statutory period for the filing of objections, as required by A.S.C.A. § 1.0407, had almost expired. The ten signatures were all that he could manage.
The statute clearly requires at least twenty-five qualified, supporting family signatories to an objection or counterclaim to matai-title succession.3 The exception to this legislative requirement is the small family that has less than twenty-five qualified members. The Faulualo family of Afono does not come within the exception. Folau’s counterclaim to the matai title Faulualo is not sufficiently supported under A.S.C.A. § 1.407(b) and should, therefore, be dismissed. The motion is granted.
II. Motion to Dismiss Mataiumu’s Succession Claim
While Mataiumu admits that he was born in FaleasFu, Western Samoa, he argues that he is otherwise qualified for matai succession. He claims that he may be considered as having been born on American soil under *119the provisions of A.S.C.A. § 1.0403(b)(2), since he has lived in the territory for a period in excess of ten years preceding the filing of his claim. Additionally, Mataiumu points out that he is now a naturalized United States national, as a result of the recent federal "one-parent" law, 8 U.S.C. § 1408(4).
We find that Mataiumu has indeed lived in American Samoa for a continuous period in excess of ten years preceding the filing of his claim. However, in addition to this residency requirement, the statute also requires that Mataiumu’s parents have been "inhabitants" of American Samoa who were either traveling or residing temporarily outside of American Samoa at the time of their son’s birth.
The evidence did not establish this latter requirement. If anything, it tended to show that Mataiumu’s parents were not, at the time of his birth, "inhabitants” of American Samoa but of Western Samoa. Mataiumu’s testimony reveals that while his father was an American Samoan, his mother’s village was Faleasi'u, Western Samoa. This was also the place of his birth, which occurred in 1930. He first visited American Samoa when he was 27 years of age and moved permanently to the territory in 1966, when he would have been 36 years of age. In 1979, he went to live in Afono.
The fact that Mataiumu was born and raised in Western Samoa strongly suggests, without anything further, that his parents were not just living there on a transitory, short-term basis at the time of his birth. At the same time, no evidence was presented from which it may be reasonably concluded that his parent’s stay in Western Samoa was otherwise than indefinite and long-term. Contrary to Mataiumu’s argument, "temporarily residing outside of American Samoa" connotes a short time, or at least having a definite intention to return. Here, unlike Mataiumu’s "missionary" hypothetical, his parents appear to have intended to stay in Western Samoa indefinitely.4
The crux of Mataiumu’s argument is that being a U.S. national from American Samoa is equivalent to being an "inhabitant" of American Samoa. However, this does not necessarily follow, since the place where one lives may be different than the place of one’s legal nationality. Also, for a court to construe "inhabitant" as different than "national" is not *120"absurd and discriminatory." The territorial legislature appears to have been more concerned with a candidate’s having a certain level of connection with the territory than with his legal nationality.5 Likewise, no conflict with federal law exists. Contrary to Mataiumu’s position, 8 U.S.C. § 1408(4) does not operate so that he "is considered to have been born on American soil" (or state that any U.S. national may succeed to a matai title), but rather defines a person who is a U.S. national but not a U.S. citizen.
On the foregoing, we conclude that Mataiumu is not eligible to matai succession under A.S.C.A. § 1.0403. Therefore, the motion is granted, and the claim of Mataiumu Siofaga is also dismissed.
Accordingly, the matter of the selection of a titleholder to the matai title 1‘aulualo of the village of Afono is remanded to the 1‘aulualo family.
It is so ordered.
A.S.C.A. § 1.0407 provides in pertinent part:
(b) A counterclaim or objection [to succession to a matai title] must be supported by a petition signed by no less than 25 persons related by blood to the title in question. The petitioners must be at least 18 years of age and residents of American Samoa at the time the petition is filed.
(d) In the event the family does not have the number of members qualified as required to support the counterclaim or objection, the counter-claimant or objector shall so state in a signed affidavit.
A.S.C.A. § 1.0403 provides in pertinent part:
A person not possessing all of the following qualifications is ineligible to succeed to a matai title:
(b) He must have been born on American soil; provided that a person born of parents who were inhabitants of American Samoa, but temporarily residing outside of American Samoa or engaged in foreign travel, at the date of birth of such child, may, for the purposes of this subsection, be considered as having been born on American soil if:
(1) While actually residing in American Samoa, and at anytime within one year after he attains the age of 18 years, he files with the territorial registrar a renunciation, under oath, of allegiance to the country of his birth; or
(2) he has resided in American Samoa for a continuous period of not less than 10 years prior to the time of filing his application to be *118registered as the holder of a matai title.
Among other tilings, the Legislature is attempting to ensure that the family is not totally displaced from the matai-selection process by a mere handful of family members seeking access to the courts in the first instance. Thus, the Fono has, in effect, said that at least twenty-five or more qualified family members constitutes a serious enough contention within a family to warrant access to the judicial process. Counsel’s argument that this legislative requirement is only a "formality" that should not affect the validity of his client’s objection is not convincing.
His post-trial brief in response to the motion to dismiss states that "Siofaga [Mataiumu’s father] spent much of his life in Western Samoa, but returned home to Vatia where he died in 1961 and is buried on family land in said village.'1
Cf. A.S.C.A. § 1.0404(a) (requiring one calendar-year’s residency "immediately preceding the date of the claim or objection"); A.S.C.A. § 1.0412(a) (absence of one year from the territory may constitute grounds for removal of the matai upon petition of any member of the family). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486199/ | VAIVAO J.,
with whom BETH AM J. joins,
concurring:
I concur with the court’s decision and its interpretation of A.S.C.A. § 1.0403. However, if an avowed purpose of the law is the preservation of Samoan customs and traditions, then I have serious reservations with a statute that effectively disenfranchises a blood heir of American Samoan ancestry to a matai title simply because he was not born on American soil. If, as the court has said, the legislative purpose behind A.S.C.A. § 1.0403 is to ensure that a matai have some "level of connection" to the territory, then that legislative purpose would, in my view, be equally achieved by merely imposing a lengthy residency requirement, such as is provided by A.S.C.A. § 1.0403b(2). I fail to see how the additional element of temporal off-island status of one’s parents at the time of one’s birth enhances or promotes the fa ‘a Samoa in any significant way. If anything, the seemingly needless disqualification of a blood heir from his family’s matai title would seem to run counter to the fa ‘a Samoa. I respectfully submit that it may be timely for the Fono to reevaluate A.S.C.A. § 1.0403. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486202/ | Opinion and Order:
Plaintiff Pemasa Afemata ("Afemata") brought this action, for himself and the Afemata family, to permanently enjoin defendant Faga Pasa ("Faga") from constructing a house on certain land in the Village of Alao, American Samoa.
The court approved the parties’ stipulation to permit construction of the house and to let the court decide after trial whether the house would remain or be removed from the land. The parties were also mutually enjoined from interfering or harassing each other. However, certain persons allegedly interfered with Faga’s survey. One, Taua Efi ("Taua"), was then joined as a necessary party. He agreed to allow the survey to continue. He failed to defend, though, and trial proceeded without his participation.
Trial began on September 29, 1993, and testimony was concluded on September 30, 1993. Afemata and Faga were personally present with counsel on both days. The parties were advised that the court desired to inspect the land and surrounding area. This was done on December 8, 1993.
Alao is located at the eastern end of the Island of Tutuila. Its principally populated part is situated along the ocean shoreline. The disputed Faga house is located westward, north and east of streams flowing from the nearby mountains, in a small, inland valley. The area south and west of the streams rises steeply within a short distance. The area is accessed from the east by a dirt road beginning in populated Alao and ending at an undisputed Afemata family house. As the road reaches the area, it connects with another dirt road leading to a house occupied by a daughter of Faga and her family. The disputed Faga house is located near this intersection towards the stream at the south end of the area.
*134The boundaries of Afemata’s survey of 1.2364 acres, more or less, which the American Samoa Government approved for registration on September 21, 1992, encompasses the Afemata house and disputed Faga house and runs through Faga’s daughter’s house. The boundaries of Faga’s survey of 0.5385 acres, more or less, which the Government approved for registration on September 29, 1993, generally follow the streams at the south and west ends of the land and parallel, a short distance below, the road to the Afemata house along the north side. The eastern boundaries are substantially the same in both surveys. The two surveys create a triangular-shaped overlap below the Afemata house, enclosing the disputed Faga house and a portion of Faga’s daughter’s house.
Considerable hearsay testimony was offered, not only by Afemata and Faga, but also by Taua family members, other than Taua himself, on the long-term historical use of the disputed land and nearby surrounding area. Other Alao elders contributed their memories as well. By its detail, Faga’s discourse on these matters was the most impressive of these recitations. However, while hearsay evidence of family histories and traditions is admissible in communal land disputes, such evidence must always be viewed with caution. See Tupuola v. Moali'itele, 1 A.S.R.2d 80, 81 (App. Div. 1983).
In this case, when compared to each other, these historical compilations standing alone were essentially inconclusive. The three families, Afemata, Faga and Taua, have long occupied and used this general area, and each family has apparently included the area of the disputed house within its domain at one time or another. Agreements have been reached and modified on their families’ respective rights in the area. The three families are also interrelated by marriages. Additionally, family members have left and returned. We can not definitely discern from this evidence alone rights ripening into title to the land under and immediately surrounding the house at issue. Rather, these histories do indicate confusion and misunderstanding among living family members and others about the persons who, in the past, worked the land and what authority permitted them to do so.
Faga’s history is corroborated by recent, actual occupancy and use of land immediately adjacent to the disputed house. Unquestionably, Faga’s family has been there continuously since at least 1982, without strenuous objection by Afemata and without any objection by Taua. Faga’s daughter’s house, now potentially bisected, is there. Construction of this house began in 1982 and was completed in 1984. It also consists of the *135primitive road leading to this house and cultivation by the Faga family.
During 1982, Faga pointed out to another Afemata the boundary between the Afemata and Faga lands, as was shown to Faga by his father and is depicted in Faga’s survey. Afemata disputed this second Afemata’s authority to accede to this demonstration. Afemata stated that he was invested with the Afemata title in 1974 and that the second Afemata, who died in 1984, was unregistered and recognized by the family solely to handle family affairs but not to enter land agreements, except with his consent, during his extended, medical absences from American Samoa. He further stated that while away he learned of the Faga family’s presence on the land but knew nothing of the boundary discussion with the second Afemata until the time of trial. However, Afemata waited until he returned, after the house was built, to raise the issue with Faga, at which time he claimed to have agreed to let this house remain. From his perspective, Faga continued with unauthorized uses, such as the house now in dispute, whenever he was absent, and the present litigation became necessary.
We are unpersuaded by Afemata’s effort to establish that the Faga family’s presence on the land was by his sufferance. We are convinced that their presence corroborates Faga’s history of the land and was by right of title.
The physical features of the area further corroborate the Faga family’s history of the title to the land. Development of the land west and south of the streams is restricted by the steeply ascending rise of the mountains. The area east and north of the streams is relatively level and large enough to accommodate usage by the Afemata, Faga and Taua families. We are satisfied that these natural characteristics were recognized by the three families long ago when they mutually established areas for each family’s use.
We conclude that the Faga house in dispute is on the Faga family’s communal land. This house shall remain on the land as Faga property.
It is so ordered. | 01-04-2023 | 11-18-2022 |
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