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https://www.courtlistener.com/api/rest/v3/opinions/8486203/ | CANBY,
Acting Associate Justice:
*137This appeal is from a decision of the Trial Division determining the ownership of a house separated from communal land under the separation-of-structures laws of American Samoa, A.S.C.A. §§ 37.1501-37.1506. The separation agreement was executed in 1967 by Fa’agata Mano, then senior matai of the Fa’agata family, and Sinatala T. Reine, as the building owner. The loan that financed most of the acquisition of the house was taken out in the name of Sinatala and her husband, Wilbur J. Reine, Sr. In August 1978, Reine, Sr. and Sinatala were divorced, and the divorce decree awarded the house to Sinatala for life, with remainder in Wilbur J. Reine, Jr., the appellant here. Sinatala died in 1987.
Appellant contended in the Trial Division that he was the sole owner of the house. The Trial Division determined, however, that the original intent at the time of the separation agreement had not been to vest the entire title in Sinatala or her husband. On the contrary, Sinatala’s parents, Fesuiai and Lana Taotoai, had intended the house to be for the benefit of their family, and had contributed substantially to its construction costs, as had their adoptive son, Falani Taotoai. Their adoptive daughter, Maimau Toatoai, had been the means of obtaining the original separation agreement; she provided the blood relationship to the Fa’agata family because she was the natural daughter of Fa’agata Mano and his wife. Fesuiai and Lana Taotoai, the Trial Division found, had considered the land to be owned by their three children. In light of that intention, and the understanding and contributions of all three children, the Trial Division concluded that the house was owned by the estate of sinatala, Falani, and Maimau equally, as rental income from the house and paid off a part of the loan, depended on descent from Sinatala, and could not be determined until Sinatala’s estate was settled.
Reine, Jr. first argues that the decision of the Trial Division was invalid because the court had no power to amend the provisions of the divorce decree, which awarded the remainder interest in the house to Reine, Jr. Appellant contends that the divorce decree was final and could not be altered except upon proper motion.
The divorce decree was certainly final between the parties, Reine, Sr. and Sinatala, but it did not, and could not, foreclose the possibility of ownership interests by others who were not parties to the decree. See Reid v. Puailoa, 1 A.S.R.2d 85, 89, ( App. Div. 1983); Puailoa v. Lagafuaina, 11 A.S.R.2d 54, 76, 78 (Land & Titles Div. 1989). The Trial Division therefore did not lack the power to adjudicate those *138additional interests, and to find that Sinatala’s interest in the house amounted only to one-third.
Reine, Jr. next attacks the sufficiency of the evidence, arguing that the only evidence to support the claims of appellees was their self-serving testimony. The trier of fact may properly approach self-serving testimony with caution, but there is no requirement that it be disbelieved; the day is long past when interest parties were disqualified as witnesses. See I McCormick, Evidence, § 65. Here there was unrebutted testimony that Falani contributed $3,000 to the construction of the house, and that he and his wife contributed $60 fortnightly for an indeterminate period of time. There was also testimony that Fesuiai had furnished $10,000 for construction, and that Fesuiai’s and Lana’s Social Security checks for an extended period of years were contributed primarily toward the repayment of the construction loan. The plausibility of these multiple contributions was supported by the trial court’s finding that, whether or not sinatala’s estimate of $50,000 construction costs (as testified to by Falani) was accurate, the size of the house made clear that construction costs had been substantial.
There was also unrebutted testimony that, for various periods of years, the house was occupied by Falani and his family (the first occupants), Reine, Sr., Sinatala and Reine, Jr., and Maumai. The house was divided into two self-contained living units, which permitted multiple occupancy. Indeed, Falani, who lived in the house from 1968 to 1971 and then again from 1974 at least to the time of trial, testified that it was not until 1987, during a heated dispute, that he was made aware of Reine, Jr. ’s exclusive ownership claim.
In light of the ample testimony about the family understanding concerning shared ownership, the multiple contributions by family members, and shared occupancy of the house over many years, there was ample evidence to support the trial court’s finding of common ownership among the three children of Fesuiai and Lana Taotoai. It is true that there was no documentation supporting common ownership, and that the separation documents and loan documents could have been viewed as supporting sole ownership in Sinatala and Reine, Sr. But it was for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witnesses. We will not overturn the trial court’s resolution of conflicting evidence, when substantial evidence supports its ruling. Faatea v. Taua, 12 A.S.R.2d 88, 90 (App. Div. 1989).
The judgment of the Trial Division is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486205/ | RICHMOND, Justice:
On December 19, 1989, appellant Sánele Ale ("Ale") was struck by a pickup truck while working as a security officer in the American Samoa Government’s dock area. The truck was driven by appellee Siatu’u Fa’asiu ("Fa’asiu"), an employee of appellee Peter E. Reid Stevedoring, Inc. ("Reid Stevedoring"), during the regular course of his employment.
In its opinion issued May 7, 1993, the trial court found that Fa’asiu, by then deceased, was negligent in the operation of the pickup truck. Reid Stevedoring, under the doctrine of respondeat superior, was found vicariously liable for damages arising as a result of Fa’asiu’s negligence. The trial court found that Ale, as a result of the accident, had sustained three fractured ribs on his left side and suffered lung contusion. The court awarded damages for these injuries, inclusive of medical expenses, at $25,000. The court, however, found in appellees’ favor as to Ale’s claimed injuries of debilitating weakness and sensory loss on his left side. It is this aspect of the trial court’s findings that Ale now challenges.
The type of injury that Ale seeks compensation for is what is most commonly known as a conversion reaction, although other descriptive terms are frequently used. This type of injury occurs when an individual suffers a particularly traumatic and unusual event. Following the incident, by days or months, the person "converts" the mental and emotional anguish into physical symptoms. Therefore, while the physical aspects of a conversion reaction are real, their origin lies in the individual’s psychological make-up. These reactions are generally held to be compensable, as both parties to this appeal agree, particularly when coupled with a physical injury. In this case, the trial court has already established Fa'asiu’s negligence. The questions remaining on this appeal *144are whether or not Ale did indeed exhibit a conversion reaction, and, if he did, whether or not the accident was its proximate cause.
From this court’s review of the record, medical reports and counsel’s briefs, it appears that Ale did indeed exhibit symptoms of physical injury after the accident in addition to his three fractured ribs and lung contusion. The physicians that examined Ale at the LBJ Tropical Medical Center after the accident noted motor deficiencies in Ale’s left side and recommended off-island follow-up to determine the cause of this weakness.1 Ale was subsequently examined by three additional physicians during off-island treatment in Hawaii;2 Although these doctors, who represent a variety of medical specialties, did not agree on many aspects of Ale’s injuries, they did observe varying levels of sensory loss and weakness on his left side.
Lastly, Ale was examined by a seventh physician, Dr. Aloimoa Anesi, who definitively noted both Ale’s weakness and sensory loss. Dr. Anesi testified at trial that these symptoms were part of Ale’s conversion reaction. While the reports of the other doctors, who did not testify at trial, did not wholeheartedly support Dr. Anesi’s conclusions, none positively ruled out this possibility. Therefore, the trial court was faced with ample evidence of Ale’s physical symptoms and evidence that he either had, or may have had, a conversion reaction. The court could only find that the proffered evidence clearly established the existence of Ale’s physical symptoms.3
*145We turn now to the question of causation. As stated by the trial court, the burden of proof in this regard lies with Ale, who must establish a reasonable basis for the conclusion that Fa'asiu’s conduct was, more likely than not, the cause-in-fact of the injury (Decision and Opinion issued May 7, 1993 at 2, citing Prosser and Keeton on Torts, § 41 at 269 (5th ed. 1984)). In light of our holding that the trial court was obliged to find definite evidence, of Ale’s symptoms of weakness and sensory loss (regardless, for the moment, of their origin) we examine the issue of causation in that light.
Ale submitted that he was in fine health prior to the accident, and that he had never before experienced the symptoms at issue. While Ale’s testimony, in this regard, appears to be uncontroverted, there is dispute as to his level of health prior to the accident. About seven months prior to the accident, Ale was involved in an altercation with some youths in Pago Pago, after which he received medical treatment. While Ale submitted that he had fully recovered from this incident prior to the accident, appellees implied that the head injuries received during this earlier incident contributed to the symptoms now being exhibited. This dispute was left unresolved by the trial court.
The parties also differed as to the issue, if any, of Ale’s malingering. Ale submitted that he was a faithful worker who had never malingered. Appellees noted Ale’s varying levels of weakness, as shown by medical tests, and his contradictory responses to questions by medical personnel. This issue, another aspect of causation, was also left unresolved at the trial level.
The third aspect of causation is evinced by the testimony and written reports of the physicians who examined Ale prior to trial. In this regard, Ale relied heavily on Dr. Anesi’s testimony that, without qualification, Ale’s symptoms were the result of the accident. Dr. Anesi also testified that the written reports submitted by other physicians documented real problems and were consistent with his own evaluation. Appellees, in *146turn, submitted that the medical reports were inconclusive and incomplete and that Dr. Anesi’s testimony did not itself establish a causal link. At trial, the court found that it would be "pure conjecture" to attempt to conclude whether or not the accident was the cause of Ale’s symptoms.
Examining the parties respective submissions and the holding at trial, this court is unable to rule on the causal connection between Ale’s demonstrated symptoms and the accident. This is an issue that needs to be examined in greater depth, most appropriately at the trial level. Both parties would then have the opportunity to submit further evidence and briefs on the extent of Ale’s symptoms and the possible causal connection between the accident and Ale’s symptoms of weakness and sensory loss on his left side.
Accordingly, the trial court’s decision is hereby remanded for further proceedings consistent with this opinion.
It is so ordered.
While none of the three LBJ physicians was sure as to the extent or cause of Ale’s injuries all agreed that he did exhibit sensory loss and weakness on his left side. Dr. Te'ariki No’ovao noted that further evaluation was necessary and that Ale’s grip strength was weak. Dr. Ronald Vinyard, while stating that there was no physical explanation, noted symptoms of motor and sensory deficiencies. Dr. Victor Williams, whose finding were only available to the court via another doctor’s summary, found he was unwilling to diagnose without speculation.
Dr. Michael Okihiro noted complete sensory loss on Ale’s left side, with no neurological correlates. Dr. Clyde Ishii found Ale’s grip and muscle strength weak and concluded that Ale might be ". . . suffering from a conversion type reaction. ..." Dr. Ishii recommended further testing by Dr. Robert Marvit. Dr. Marvit viewed the majority of Ale’s symptoms as products of Ale’s own perceptions, and noted weakness in Ale’s left side.
Although die opinion of the trial court does not definitively state whether or not if felt Ale had established the existence of his physical symptoms, its decision alludes to the existence of those symptoms. It is true that on page 2 of the trial transcript, die court states that the dispute was over Ale’s claims that his weakness was a result of the accident, while *145appellees claimed that it was the result of malingering. But on pages 8-9 of the transcript, the trial court, seemingly assuming the existence of Ales’s symptoms, wonders only at their cause (conversion reaction, malingering, or some combination). On page 10, the trial court states that "... we find the weight of medical opinion ... to preponderate in favor of a non-organic explanation to plaintiffs symptoms. Therefore, we can conclude from the trial court’s own statements, taken together with the available medical evidence, that the trial court did indeed find that Ale had some undetermined level of weakness and sensory loss on his left side. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486206/ | Order on Motions to Dismiss or in the Alternative to Dissolve Stay:
DISCUSSION
I. Procedural History
On May 3, 1991, appellants James McGuire and Charles Ala'ilima and appellee Zoning Board stipulated to a stay of the zoning variance granted to the Ottoville Development Corporation (hereinafter ODC) on February 14, 1991. This court granted ODC’s motion to intervene on December 6, 1993, and the order was filed on January 26, 1994. Appellant AlaTlima entered into a stipulation to dismiss as to himself with appellee Zoning Board and appellee/intervenor ODC on February 2, 1994.
Appellee/intervenor ODC then filed its "Motion to Dismiss or in the Alternative to Post a Bond" on February 7, 1994. Along with its motion to dismiss, ODC also requested that this court dissolve the stay of the variance. Appellant McGuire filed his memorandum in opposition on March 2, 1994. Appellee Zoning Board filed its response and "Motion for Summary Judgment and Support Memorandum" on the morning of March 3, 1994, just before a hearing on the parties’ motions.
II. Motion to Dissolve Stay
*148Appellee/intervenor ODC’s motion to dissolve the stay of the zoning variance is granted. At the time appellant McGuire and appellee Zoning Board stipulated to the stay, ODC was not a party to this lawsuit. However, this court later granted ODC’s request to intervene because ODC had sought and obtained the zoning variance for its project. By dissolving the stay, which was stipulated to without ODC’s consent, this court is merely returning the parties to the status quo ante. Of course, any of the parties remains free to seek another stay of the variance.
Furthermore, due to the stipulation, this court never made a factual evaluation in determining whether and on what conditions to grant a stay of the variance. See A.C.R. 18; see also A.S.C.A. § 4.1041(b) ("the court may order[] a stay on appropriate terms"). Dissolving the stay permits this court to properly evaluate any future requests for a stay.
III. Motion to Dismiss
On the other hand, a number of issues deserving the court’s attention have been raised in the parties’ memoranda. For this reason, dismissal of this action is inappropriate. In light of the existing factual disputes, appellee Zoning Board’s motion for summary judgment is also inappropriate.
IV. Absence of the Agency’s Record
Appeals of the Zoning Board’s decisions proceed "in like manner" to appeals under the Administrative Procedure Act. A.S.C.A. §26.0341 (citing A.S.C.A. §§ 4.1040-4.1044). Within 30 days from the service of the petition for appellate review, an agency is to send the court the record of the agency’s proceedings in the matter under review. A.S.C.A. § 4.1042; A.C.R. 17(a). Indeed, appellate review is confined to the agency’s record, though the court may receive evidence to supplement the record. A.S.C.A. § 4.1043(a); see A.C.R. 16(a). Thus, the statute presupposes that a record has been filed with the court. However, no record of the hearing on the request for the variance has been received by this court. Before the Zoning Board’s actions in this matter can be reviewed, it must transmit the record of the proceedings to the court.
CONCLUSION
Therefore, appellee/intervenor ODC’s motion to dissolve the stay of the zoning variance is granted, though its motion to dismiss is denied.
*149Likewise, appellee Zoning Board’s motion for summary judgment is denied.
This matter concerning the zoning variance has languished without much activity by the parties. With an eye toward moving this process along, this court sets a hearing on the appeal for April 29, 1994.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486207/ | This matter came on regularly before the Court on March 11, 1994, on Plaintiffs Motion to Suppress Evidence.
The Court heard testimony from Sgt. Mikaele and Officer Fuifatu. The Defendant also gave limited testimony on the extent of his injuries.
The essential facts are as follows: Sgt. Mikaele came upon Defendant’s vehicle in a ditch near Vaitogi. Defendant was injured, (a cut above his eye), and Sgt. Mikaele radioed the O.M.V. substation and the E.M.S. that Defendant would be transported to the O.M.V. substation for treatment. After being treated by the E.M.S. at the O.M.V. and after Sgt. Mikaele had left, field sobriety tests were conducted by Officer Fuifatu. Upon Defendant’s failure to pass these tests, Defendant was subjected to a breathalizer test after being arrested for driving under the influence.
At some later time in the evening, Defendant and his family members were allowed to push his vehicle out of the ditch. This is, at least, what the Court understood to be Officer Fuifatu’s testimony. Also, at some point after the arrest, Officer Fuifatu inspected the accident scene, most likely at the time the vehicle was removed from the ditch.
The issue before the Court is whether the arrest for D.U.I. was valid.
By way of discussion the Court notes that Officer Fuifatu has information from Sgt. Mikaele that Defendant’s vehicle was involved in an accident and that Defendant was injured by that accident. As this Court has previously ruled, a motorist stopped by a traffic officer may be detained briefly by that Officer, upon a reasonable belief that the driver was under the influence, until a qualified officer may be summoned by radio to administer field sobriety tests. This Court has also previously ruled that a person who was pursued for a traffic offense by a police officer, apprehended, identified, and taken into custody by another officer, taken to the Police Station, and subsequently *151administered field sobriety tests and then arrested for D.U.I. could not have been legally arrested at the Police Station.
The instant case appears to fall precisely midway between the Court’s prior rulings. This Defendant was in the custody of the police and at the police sub-station when the field sobriety tests were administered. Yet, Sgt. Mikaele was not qualified to administer field sobriety tests and upon first procuring medical .attention for the Defendant, turned him over to Officer Fuifatu for further investigation. Counsel have argued that the previous rulings of this Court support their respective positions on the validity of this arrest. Indeed, both are equally correct in that regard.
This case is different, however, since it involves a motor vehicle accident. The Legislature has specifically set forth its requirements for a valid arrest of a driver involved in an accident under A.S.C.A. § 22.0803. The requirements are that an officer at the scene of an accident must conduct a personal investigation, and upon reasonable and grounds to believe a misdemeanor traffic offense, (or infraction), has occurred, issue a traffic citation.
This Court has interpreted this statute as authorizing an investigating officer to view the accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist, to issue that driver a traffic citation.
In the present case only the sequence of the arrest is at odds with the statute. Officer Fuifatu viewed the accident scene after, not before issuing the traffic citation. In a case not involving personal injury caused by a traffic accident, this sequence would likely prove fatal to the validity of the arrest. And, only a valid arrest for D.U.I. invokes the implied consent to chemical testing under A.S.C.A. § 22.0601 et. seq.
Yet A.S.C.A. § 22.0803 does not apply to felonies. Under 22.0708 A.S.C.A. the injury to any person resulting from the operation of a motor vehicle by a person under the influence of intoxicating liquor creates a felony offense. Officers may upon reasonable grounds, arrest persons found near the scene of a felony within a short time after its commission, A.S.C.A. § 46.0805(3).
Under all of the circumstances, Defendant’s arrest for driving under the influence was valid. The breathalizer results are therefore admissible as evidence lawfully obtained.
*152As a logical consequence of this decision, the Court is compelled, however, to dismiss, without prejudice, UTC#131687. The validity of the arrest being predicated upon a felony having been committed, A.S.C.A. § 22.0803 does not authorize a uniform traffic citation to serve as a valid summons, complaint, and affidavit for initiating or sustaining a criminal action. See A.S.C.A. §§ 22.0801, 22.0803, and 22.0810(d).
Nothing prevents the government from refiling a summons, complaint and affidavit in this matter, but uniform traffic citation #131687, issued in violation of A.S.C.A. § 22.0803, can not sustain the present action.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486208/ | Opinion:
This matter came on regularly before the Court on 11th of March 1994, upon Defendant’s Motion To Suppress Evidence.
The Court heard testimony from the arresting officer, Officer Puifatu and his supervisor, Inspector Mika Kelemete. At issue was whether or not the D.U.I. roadblocks conducted by the Department of Public Safety during the Christmas 1993, and New Years Holidays were in violation of the 4th Amendment search and seizure provisions.
The testimony from the police officers may be summarized as follows: The Christmas and New Years Day roadblocks were publicized in advance in the two local newspapers of the Territory. The roadblocks were at 3 locations and conducted from 6:00 p.m. to 6:00 a.m., as ordered in writing by the Commissioner of Public Safety. The locations were selected based upon public safety, officer safety, and space requirements. Each location was duly marked with traffic cones, reflectors, flashing lights and additional lighting provided by A.S.P.A., all officers were in uniform and the roadblocks conducted according to written procedures.
Every vehicle passing the roadblock was stopped and its driver briefly questioned by an officer. On average, such stops took 20 seconds each. In those instances where the driver, based upon the reasonable suspicion of the interviewing officer, was directed off the roadway for subsequent investigation by other uniformed officers, that investigation proceeded in the same fashion as a traffic stop. Driver’s license and registration were required to be produced and, if during that process the Officer had reasonable grounds to proceed, field sobriety tests were conducted. The failure of which lead to an arrest for D.U.I. (A.S.C.A. § 22.0707).
In the 1993 - 1994, Holiday Season, no fatal traffic accidents related to alcohol were recorded. The roadblocks averaged 15% of the drivers passing through being arrested for D.U.I. In previous years when roadblocks were not in force alcohol related traffic fatalities in the Holiday season totaled three in 1991 and one in 1992.
Defendant contends that the 4th Amendment to the U.S. Constitution prohibits D.U.I. roadblocks as unreasonable, warrantless seizures unless the government has followed all of the procedures set forth in Michigan *154State Police v. Sitz, 496 U.S. 44, 110 S. Ct 2481, 110 L. Ed.2d 412 (1990). The Government argues that only those procedures necessary to demonstrate that such seizures are not unreasonable, considering all of the circumstances, are required, and the Government has met that burden in the instant case.
DISCUSSION AND OPINION
It is beyond dispute that a stop of a motor vehicle at a check point or roadblock is a seizure within the meaning of the 4th Amendment. The precise issue for the Court to decide in such cases is whether or not the seizure is unreasonable, and therefore, prohibited.
In the instant case, by either a subjective or objective measure, the intrusion upon the freedoms of the motoring public was slight. Most drivers passed through the roadblock in a brief period, the average interview taking 20 seconds. The questioning also appeared to the of low intensity - the Officers explaining the purpose of the roadblock and advising drivers to drive safety.
Although the Executive Branch, not the Court, had the authority to decide between alternative law enforcement approaches, the Court notes in passing that a 15% D.U.I. offense rate of drivers stopped at the roadblock, does provide empirical evidence in support of the roadblock as an effective tool in promoting highway safety.
The D.U.I. roadblock advanced a legitimate government interest with minimal intrusions upon the rights of the motoring public. Its effectiveness is borne out by the arrest rate and the decline in alcohol-related traffic accidents and fatalities. The procedures leading up to, and at, the roadblock demonstrate it was safety and uniformly conducted.
Although not all of the procedures used by the Michigan State Police, (see Michigan State Police v. Sitz, supra), were used in the instant matter, there were substantial similarities in the local procedures utilized for the D.U.I. Roadblock. The Court notes, however, that the U.S. Supreme Court did not expressly require identical procedures be used in all roadblock or checkpoint situations. Judicial review proceeds from the determination of whether the seizure was reasonable, considering, and balancing the government’s compelling interest in protecting the motoring public from alcohol related traffic accidents, with the individual’s constitutional right to be free from unreasonable seizures.
*155The D.U.I. roadblock conducted by the Department of Public Safety was not prohibited by the 4th Amendment. Evidence obtained pursuant to this roadblock will not be suppressed solely because it was obtained as a result of the D.U.I. Roadblock.1
The motion is denied.
It is so ordered.
The other cases affected by this decision are: UTC# 137339 (Junior Mageo); UTC# 136889 (Susana Correia); and UTC# 135723 (Tofl Taimanini). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486210/ | Order Granting Motion for Summary Judgment:
The motion by defendant United Parcel Service ("UPS") for summary judgment came regularly for hearing on February 28, 1994.
The essential facts of this case are not disputed. On March 13, 1990, UPS picked up a package from plaintiff Amerika Samoa Bank ("ASB") destined for the First Hawaiian Bank in Honolulu, Hawaii. Unknown to *160UPS, the package contained a cash letter containing negotiated checks worth, at least to ASB, $417,313.05. This was, approximately, the nineteenth such package sent by ASB via UPS. When the package was picked up from ASB, UPS’s local agent Don Fuimaono prepared waybill #819 084 — and this waybill was appropriately signed by an ASB employee. The waybill indicates that the package was a "document only" with no declared value. Because there was no value assigned to the package ASB was charged $25.00 for shipping. The waybill also states drat, unless a greater value is declared by the shipper, the released value of the shipment is $100.00.
Previously, there had been two separate meetings between UPS and ASB employees to discuss UPS’s available services. UPS has alleged, without contradiction, that release value limitations and available insurance were among the topics discussed. In fact, ASB had purchased insurance from plaintiff National Pacific Insurance Co. ("NPI") to protect against the loss or damage to packages sent via express courier.
While there remains some question as to what ultimately became of the package, both parties agree that it did not arrive at its intended destination. Once that determination was made there was a meeting between Hal Fielding, ASB’s president, and Don Fuimaono on April 25, 1990, to discuss the disappearance of the package. While ASB was eventually able to reconstruct and account for $394,715.13 of the loss, there remained an outstanding loss of $22,597.92. NPI settled ASB’s claim in the amount of $7,597.92 (the claim less a $15,00.00 policy deductible). A claim for this amount was then made to UPS, who responded by sending NPI a check in the amount of $100.00~the released value of the shipment. ASB and NPI now seek full reimbursement for the $22,597.92 loss and allege breach of contract, negligence, misrepresentation and tortious breach of contract. UPS has responded with the motion currently at issue.
There is also very little disagreement between the parties as to the law regarding this dispute. UPS, in a well-prepared brief, has carefully laid out the law that controls, and ASB and NPI have acquiesced to UPS’ view of the law. We briefly recite the applicable law.
At federal common law, carriers may partially limit their liability pursuant to the "released valuation" doctrine, whereby the shipper does not declare a value and the released value (here $100.00) is presumed. First Pennsylvania Bank v. Eastern Airlines, 731 F.2d 1113 (3rd Cir. 1984). While there are several instances in which a released valuation *161would not apply (i.e., where there is no opportunity to choose between higher and lower liability coverage or where the shipper does not have reasonable notice of such an opportunity), neither party has asserted that there was any difficulty in this area. Neither ASB nor NPI has disagreed with UPS’s assertions that the limitation of liability on the waybill was adequate and reasonably communicative. This aspect of the governing law is not in dispute.
There is, in fact, only one point of contention between the parties. While ASB and NPI agree with UPS on the facts and law thus stated, they argue that UPS is not protected under the released value doctrine if the package was appropriated by a UPS employee and UPS failed to cooperate in recovering the latter. Unfortunately for ASB and NPI, the case law is overwhelmingly to the contrary.
In ruling on a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 369 U.S. 654 (1962), treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (1987). Therefore, for the purposes of this motion, we will assume that the package was in fact appropriated improperly by a UPS employee, and that UPS was uncooperative in recovery efforts. However, even these assumptions cannot rescue the case for ASB and NPI.
Fatal to the argument by ASB and NPI is their lack of distinguishing between appropriation by UPS itself and an employee of UPS. When a package is taken by, or for, the carrier, the shipper may not be contractually bound under the released value doctrine. However, this is not the case when an employee of the carrier appropriates a package for him or herself. In Tishman and Lipp, Inc. v. Delta Airlines, 275 F. Supp. 471 (S.D.N.Y. 1967), aff’d 413 F.2d 1401 (2nd Cir. 1969), the court granted the plaintiff only the minimum liability of $50.00 when jewelry (in a sample case) was lost when checked as air freight baggage and its contents were not known to the defendant, nor was any value declared (in violation of air freight tariffs against jewelry as air freight baggage). The plaintiff alleged that if the defendant or its employees were guilty of gross negligence or conversion, the defendant could not take advantage of tariff provisions. In responding, the court, citing Glickfield v. Howard Van Lines, 213 F.2d 713 (9th Cir. 1954), said:
The litigants agree that if the property has been converted by the carrier, it would be against public *162policy to permit the carrier to limit its liability and thus to profit from its own misconduct. However, the cases are uniform in holding that the conversion doctrine is pertinent only when there has been a true conversion, i.e., where the carrier has appropriated the property for its own use or gain. The carrier may properly limit its liability where the conversion is by third parties or even by its own employees. In the latter circumstance, where the carrier may have been guilty of negligence in the selection of its employees, it has not been unjustly enriched, nor has it been guilty of any misconduct.
In Rafaello Gallery v. UPS, 818 F. Supp. 53 (S.D.N.Y. 1993), a case with obvious similarities to the one now before us, UPS was to deliver two tapestries with a combined worth of $52,000.00 to plaintiff. Deviating from standard UPS procedure, the driver left the packages in the building’s vestibule and signed the delivery receipt himself with a fictitious name. The plaintiff had not declared the value and UPS contended it was limited to the presumed declared value of $100.00 per package. Referencing the Carmack Amendment to the Interstate Commerce Act, the court was unpersuaded that the misdelivery negated the contract, stating that this was not a case where the carrier itself misappropriated the goods.
In Nippon Fire and Marine Ins. v. Holmes Transp., 616 F. Supp. 610, 611 (D.C.N.Y. 1985), a case based on the Interstate Commerce Act, the plaintiff (as a subrogee) filed an action seeking to find a limitation of liability ineffective when one of six cases of data processing equipment failed to arrive at its destination. Noting that the shipper had not stated that the value of the case was in excess of that on the shipping order, the court stated: "There is no proof of an actual conversion of the carton by either defendant for its own use. Absent affirmative proof of such conversion, the rule of law is that plaintiff’s recovery is limited to the agreed release value of the carton .... As this court held ... in order to recover against a carrier, the plaintiff must present ’evidence of conversion by the defendant itself for its own use.’" (emphasis added).
In Maraohn v. Burnham Van Lines, 478 F. Supp. 49, 52 (N.D. Ill. 1979), a serviceman, whose goods were destroyed in transit, sued the shipper. In granting summary judgment for the defendant, the court said the limitation of liability was binding as, among other things, this was not a case "where the carrier has purposely converted the entrusted property *163for its own use or gain, in which case public policy would not permit the carrier to limit its liability and thus profit from its own misconduct". The cases so holding are numerous. See also Deiro v. American Airlines, 816 F.2d 1360, 1366 (9th Cir. 1987) ("Under the federal common law, only an appropriation of property by the carrier for its own use will vitiate limits on liability.'1); Glickfield v. Howard Van Lines, 213 F.2d 723 (9th Cir. 1954) (affirming limitation of liability on goods lost on interstate carrier); Neal v. Republic Airlines, Inc., 605 F. Supp. 1145 (N.D. Ill. 1985).
There has been no contention by ASB and NPI that UPS in any way appropriated the package in question for its own use. Thus, even assuming the truth of the assertion by ASB and NPI that the package was stolen by a UPS employee, ASB and NPI remain bound by the released value doctrine. Whether or not UPS made a poor selection of its employees, or gave them sufficient instructions to satisfy ASB and NPI, is immaterial. ASB was charged a low rate for delivery because the package had no declared value, a choice that in hindsight was not wise. However, ASB and NPI have not forwarded a theory which would shift the liability of this decision on to UPS.
Also without merit is the contention by ASB and NPI that UPS’s failure to assist them in recovery releases them from the contract. While it may be poor business practice not to aid customers in locating missing packages, it is not the kind of behavior that voids a contract.
In Gibson v. Greyhound Bus Lines, Incorporated, 409 F. Supp. 321 (M.D. Fla. 1976), aff’d 539 F.2d 708 (3rd Cir. 1976), the court granted a summary judgment motion where a raccoon head, having no intrinsic value except to the plaintiff, was carried by the defendant but never reached its destination. The court found that even if the defendant was liable, it was entitled to the limitation of liability, and that the defendant assumed no special duty towards the goods. The limitation of liability was not applicable only when the carrier was not liable. Even Greyhound’s refusal to trace the package was found not actionable, as this was inaction, but not a deliberate act. And in Nippon Fire, 616 F. Supp. at 612, the court, under federal law, rejected the plaintiff’s claim that the defendants had an obligation to establish what happened to a missing carton.
Therefore, even assuming the truth of all the assertions by ASB and NPI, they have presented nothing entitling them to a trial on the merits. The motion for summary judgment is therefore granted.
*164It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486211/ | Opinion and Order:
Plaintiff Ioelu F.C. Pen seeks a permanent injunction against the defendant Faima Lavata'i and his son Malakai, alca Mel, Lavata'i, to enjoin them from interfering with his use and enjoyment of a certain parcel of land leased to him by the late Lavata'i Natia, then senior matai of the Lavata'i family of Nu'uuli. The lease agreement, dated July 6, 1989, stipulates a term of 55 years and relates to an area approximating .389 of an acre of Lavata‘i communal land known as "Lepine." The agreement also provides for an initial monthly rental of $150 during the first year of the lease and $200 per month for the remainder of the lease.1 The lease agreement was presented to and approved by Acting Governor Galea‘1 Poumele on October 3, 1989, pursuant to A.S.C.A. § 37.0221.2
Plaintiff is a not a member of the Lavata'i family; the defendants are. Plaintiff claims that he filed suit after several encounters with defendants’ attempts to interfere with his business activities on the leased site. On the other hand, Faima Lavata'i, a brother of the late senior matai, claims that the area leased to plaintiff constitutes a part of Lepine which has been assigned to him for his use and livelihood in accordance with custom. Defendants also charge that plaintiff’s use of the land for furniture making has been both noxious and noisome and often undertaken without regard to time of day. Malakai Lavatafi complained on the stand about strong fumes emanating from plaintiff’s workshop and his noisy machinery’s being particularly bothersome in the early hours of the morning and even on Sundays.
After hearing the evidence, the court visited the location of the disputed site. Although plaintiff claimed that Faima was not on Lepine when he first went onto the land in 1983, we are satisfied that the leased area had *166already been assigned to Faima, for the following reasons: Faima testified that he first entered this part of Lepine prior to the Second World War and established extensive cultivations with which he served the matai and family. He further testified that he then built a number of houses there. Faima’s claim to extended use and occupation was corroborated by Valasi Gaisoa, his niece and daughter of the late Lavata’i Natia. From our visual inspection of the disputed site, we noted that the area is surrounded by the homes of Faima and his immediate family, together with a garage which, according to the testimony, was located on Lepine at Faima’s instance. Visual inspection also supported Faima’s testimony about his having once bulldozed and enlarged the general area, from the direction of the main highway towards the base of mountain inland. He additionally submitted corroborating government job orders, evidencing his hire of heavy equipment in 1980 for use on a site referred to as "Lepine," together with building permits which related to his subsequent building of a number of "European"-type housing throughout the 1980s on Lepine. At the same time, plaintiff conceded that in the process of his setting up his business yard on Lepine, he had to clear certain subsistence crops that were growing on the site. These were crops that Faima had claimed were his. Finally, the court could not help but notice on its site-visit that Faima’s settled occupation was very distinct from the similarly settled occupation to the west of Tuinei Lavata'i, another of Faima’s brothers, and Lavata'i Natia.
Plaintiff, on the other hand, was recently brought onto the site by Tuinei Lavata'i. He acquired the extended leasehold from the senior matai sometime shortly thereafter. Why the senior matai executed such a lease in favor of a non-family member, in derogation of a family member’s claim, was not made clear on the evidence. Like the senior matai, Tuinei Siaki has also since passed away. All that we could gather from the evidence was that plaintiff, as he had testified, had sought out the lease from the senior matai in order to "secure his future." Faima, on the other hand, testified that the matter of plaintiff’s presence on the land and his dealings with Tuinei Siaki was earlier brought up at a family meeting presided by the senior matai. At this meeting, he expressed his objection with plaintiff’s presence and he pleaded with the matai to relocate plaintiff to Tuinei’s side of the property, since it was the latter who had invited plaintiff onto the land.
Subsequent to that family meeting, a lease was executed and presented for gubernatorial approval, all without Faima’s knowledge or consent. He, as well as other family members, only learned of the existence of a lease when these proceedings arose.
*167The evidence further revealed that certain third parties, who were not before the court, took mortgage interests on the lease as collateral for certain loans made to plaintiff. Amerika Samoa Bank apparently gave plaintiff a secured loan on October 5, 1989, in the amount of $30,000.00, as evidenced by plaintiff’s mortgage instrument filed with the Territorial Registrar on October 10, 1989, and recorded in Native Leases, Volume 4 at pages 167-68. The United States Small Business Administration subsequently loaned plaintiff the sum of $174,400.00, as evidenced by plaintiff’s mortgage instrument dated October 19,1992, and received by the Territorial Registrar’s Office on October 23, 1992.
DISCUSSION
Plaintiff’s principal argument is that he has a valid and enforceable lease. He contends that the lease was within the matai’s exclusive competence, and he cites Vaimaona v. Tuitasi, 13 A.S.R.2d 76 (Land & Titles Div. 1989) (motion for new trial denied), aff’g 12 A.S.R.2d 68 (Land & Titles Div. 1989), aff’d 18 A.S.R.2d 88 (App. Div. 1991), for the proposition that "the Samoan custom that major family decisions [by the sa ‘o (senior matai)] should be made with consultation with the whole family is not among those incorporated into statutory restrictions on the otherwise plenary powers of a ’sa‘o’ over family lands." Plaintiff’s Post Trial Brief, at 2 (emphasis in original). He further argues that "the offer to register the [leasehold] instrument does not require ’Notice’ of any sort • by the statutes of American Samoa." Id. (emphasis in original). As we understand plaintiff’s contention, it is that the Samoan custom requiring a matai to consult with his family before making any major decisions concerning family lands was not a substantive requirement of the law which regulates the leasing of communal lands. Furthermore, it is argued, the lease in question was given favorable recommendation by the Land Commission and then duly approved by the Governor in accordance with applicable statutes; these applicable statutes did not require prior notice of this process to family members.
Defendants, on the other hand, contend that the subject lease is invalid because it was, among other things, entered into without their knowledge and approval. Citing Fairholt v. Aulava, 1 A.S.R.2d 73, 74 (Land & Titles Div. 1983), defendants claim that their right to family lands, as Lavata'i family members, is a property right protected by both the United States and American Samoa Constitutions.
The issue in this case is not simply the question of whether or not a matai can enter into a lease of communal land without family *168consultation. Instead, the issue before us is whether the senior matai can effectively lease family lands to a third party and thereby effectively disseise a family member from use of family land assigned to him. After all, a matai’s authority or pule over family lands is not unfettered when it comes to dealing with the rights of family members; rather, "it is a pule which must be used for the benefit of family members and justly and fairly. It must not be used unreasonably and unjustly." Tali v. Tupeona, 4 A.S.R. 199, 206 (Land & Titles Div. 1961). The court has recognized "the unquestioned right of a family member to use communal land [as being] a property right under the due process clause of either the U.S. or Samoan constitutions." Fairholt, 1 A.S.R.2d at 74 (discussing U.S. Const. Amend. V; Rev’d Const. Am. Samoa Art. I, § 2); see Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87 (Land & Titles Div. 1989) (citing Tuanaitau v. Pagofie, 4 A.S.R. 375, 381 (1963); Fairholt, 1 A.S.R.2d at 74); Gi v. Temu, 11 A.S.R.2d 137, 143 (Land & Titles Div. 1989) (citing Lutu). On the other hand, a non-family member "by definition has no such right." Gi, 11 A.S.R.2d at 143 (quoting Lutu, 11 A.S.R.2d at 87). Furthermore, a family member is ordinarily entitled to possess land assigned to him for his lifetime. Gi, 11 A.S.R.2d at 142 (citing Taesali v. Samuela, 3 A.S.R. 359, 361 (Trial Div. 1958).
Having "the general ability to administer the family lands but at the same time he has no authority to alienate land in his own right," a matai’s authority is like that of a trustee in that he is to act for the benefit of the family. Lutu, 11 A.S.R.2d at 88. "It thus follows that when a matai undermines the rights of a family member (a beneficiary of family property) to favor a non-family member, he is surely acting inconsistent with, and is in breach of, that duty to exercise his pule for the benefit of the family members." Lutu, 11 A.S.R.2d at 88. Hence, a family member may, in certain circumstances, seek judicial review of matai action, and the court will enjoin "arbitrary, capricious, or illegal actions or those in which there has been an abuse of discretion on the part of the of the matai." Fairholt, 1 A.S.R.2d at 79; see Lutu, 11 A.S.R.2d at 88; Gi, 11 A.S.R.2d at 142; cf. Vaimaona, 12 A.S.R.2d at 70-71 (although land title could not be invalidated when matai sold land without consulting family, thus violating Samoan custom, affected family members could file suit to (1) obtain an accounting from the matai, (2) obtain compensation for their assigned lands, and (3) possibly remove the matai’s title).
Thus, a matai cannot revoke an assignment of land, made in accordance with Samoan customs, for a family member’s use and thereby deprive that family member of its possession, "except for good cause." *169Taesali, 3 A.S.R. at 361; Gi, 11 A.S.R.2d at 142 (citing Taesali).3 "Good cause" for removal includes a failure to render tautua (traditional service to the matai and family) and an overriding family purpose. See, e.g., Leapaga v. Masalosalo, 4 A.S.R. 868, 872 (App. Div. 1962) {tautua not rendered); Tiumalu v. Lio, 3 A.S.R. 176, 179-80 (Trial Div. 1955) (possible use of land for a family graveyard). However, with regard to a family purpose, a matai can order a person’s removal only after:
a. A family meeting at which all parties are permitted to be heard.
b. A decision by the matai, reasonable under the circumstances, that the removal is for an important family purpose.
c. Provision of specific alternate land for erection of a dwelling unit if desired, or other arrangement reasonable under the circumstances. . . .
d. Allowance of such time as is reasonably necessary to construct the new house or complete the other reasonable arrangements.
Coffin v. Mageo, 4 A.S.R. 14, 18 (Land & Titles Div. 1970).; see Gi, 11 A.S.R.2d at 141-42 ("[A] matai should ordinarily consult with the family, including especially those family members directly affected, before taking land assigned to a family member in order to use the land for some other family purpose."). Thus, if a person has expressly or implicitly been assigned the "communally-owned house and appurtenant areas," a matai may not remove him without meeting the aforementioned requirements. Coffin, 4 A.S.R. at 18.
In short, plaintiff’s suggestion that the matai’s power over family lands is "plenary," and thus without limits, is erroneous. Plaintiff’s citing of Vaimaona to support his argument is also misplaced. Vaimaona involved a family’s challenge to a matai’s alienation of communal land without his consulting the family, as well as a claimed lack of notice. However, that case makes no mention of the disputed communal land’s being assigned to an individual. In contrast, the case now before this court involves more than the matters of a family’s being consulted or given notice. Defendants were assigned their land and so have a property interest which is protected under the due-process clauses of the United States and *170American Samoa Constitutions. See U.S. Const. Amend. V; Rev’d Const. Am. Samoa Art. I, § 2.
As such, the defendants are entitled to possess the family’s land which has been assigned to them. The evidence does not show that the matai had good cause, such as defendants’ failure to perform their traditional service, to revoke their land assignment. Likewise, the evidence has not demonstrated an overriding family purpose; plaintiff’s lease certainly does not qualify. In light of inflation and the increasing scarcity of unassigned land in the territory, the $200-a-month rental payments, set for a 55-year term, at best provides only a marginal benefit to the family.
However, the lease was agreed to by the family’s matai, approved by the Governor, and registered by the Territorial Registrar. Immediately canceling the lease would cause plaintiff, and thus his mortgagees, significant financial hardship. The third-party lending institutions were not before this court to raise their own respective arguments against canceling the lease. Therefore, this court will exercise its equitable powers in not terminating the lease during the term of plaintiff’s aforementioned mortgages. In order to ensure, however, that no future encumbrances be placed on this property, a copy of this judgment shall be placed with the copy of the lease in the Territorial Registrar’s records. Also, because the lease concerned a portion of land which has been assigned to the defendants, all future rental payments, as well as any rental arrearages, are to be paid directly to the defendants. With these conditions in mind, plaintiff’s request for injunctive relief is granted; that is, defendants shall refrain from any further self-help measures against plaintiff’s business activities on the leased land. Judgment shall enter accordingly.
It is so ordered.
Plaintiff admits that since the death of the senior matai, he has not being paying the stipulated rent.
A.S.C.A. § 37.0221(a) permits the leasing of native land "with the approval of the Governor."
This right is not absolute, though — the matai can reallocate communal land as long as he provides the displaced family members with equivalent land. Talili v. Satele, 4 A.S.R.2d 23, 27 (Land & Titles Div. 1987). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486213/ | Opinion and Order:
Four of the candidates in this matter had withdrawn their respective matai-succession claims at different times during these proceedings. When the matter was finally submitted to the court for its deliberation, the following parties remained: Tafea F. Seui, Si‘itua Savini, Letalu M. Moliga, and Segila P. Vaeao.
In these matters, we are guided by the four criteria set out in A.S.C.A. § 1.0409(c):
*1761. Hereditary Right
All the candidates traced their respective lineages to a common ancestor, the first titleholder, Lolo Ututautu'u aka Tautu‘u, aka Nu‘uto‘a. Their respective family histories were also in agreement on the number of issue of the original titleholder; to wit, three. These children, in turn, gave rise to the three customary clans of the Lolo family.
In these, albeit infrequent, circumstances in which family history is by and large harmonious, it seems that the "Sotoa rule"1 is the less arbitrary method of assessing hereditary entitlement. In our review of the gafa (genealogies) submitted, we find that candidate Savini is two generations ahead of the other candidates. We conclude that Savini prevails on the issue of hereditary right.
2. Wish of the Clans
As alluded to above, the preponderance of the evidence showed that the Lolo family has three clans. The evidence also revealed that the family title has been vacant for more than thirty years, after Lolo Lauvao resigned the title to assume the Lutali title of Aunu‘u. Following Lauvao’s resignation, the family held numerous meetings, both within and without Sili, to select a matai successor. After several meetings, without any of the then-candidates yielding any ground whatsoever, the family directed the candidates to meet for the purpose of selecting a titleholder from among themselves. A subsequent series of meetings by the candidates likewise failed to produce a consensus. The issue was then apparently left in abeyance until Sualevai L. Sea decided to bring the matter to a head by offering the title for registration on December 4, 1992. This offer attracted a number of objections and counterclaims, which not only included objections from some of the original candidates, but also from a new set of candidates altogether. The only candidate remaining from the days of those earlier meetings of the family who is before the court today is Letalu.
Subsequent to the registration offer, the resulting candidates attempted to meet on a number of occasions to narrow the field. Those efforts did not produce a unanimous decision; however, a number of candidates *177subsequently withdrew their succession claims in favor of Letalu after participating at one particular meeting, which resulted in the presentation of the Lolo title’s kava cup to Letalu. Two of the parties, Savini and Vaeao, were not present at that meeting, and thus they continue to seek judicial determination of the matter. Likewise, Tafea seeks judicial resolution, even though he participated in the kava-presentation ceremony and accepted the appropriate customary presentations made by Letalu.
While each party can claim some family support, we find that candidate Letalu had the most credible claim to support from the majority, if not from all, of the clans of the family. Letalu was a candidate before the family in its deliberations. When the family had earlier instructed Letalu and his fellow contenders to meet and decide on a holder, we can infer from that family decision that Letalu was at least acceptable to the family to hold the Lolo title. As testified to by High Talking Chief Sualevai, before he moved to withdraw his claim, none of the candidates before the court, except himself and Letalu, were even considered by the family in any of its many deliberations. Furthermore, we find that the presentation of the kava cup to Letalu by family members, which included all but two of the claimants who sought registration of the title, is significantly indicative of family support favoring Letalu. The presentation of the kava cup roughly equated compliance with the family’s decision to leave it to the various contenders to select a titleholder from among themselves.
We conclude that candidate Letalu prevails on the issue of clan support.
3. Forcefulness. Character and Personality, and Knowledge of Samoan Customs
Candidates Tafea and Letalu present the stronger credentials. They are both college graduates, with Tafea having additionally completed postgraduate studies, which culminated in his obtaining his doctoral degree in education. Both have held responsible white-collar positions within the Department of Education. We rank Letalu, however, ahead of Tafea in forcefulness, character and personality. While Tafea has dedicated his life to the education of the children of American Samoa, Letalu’s varied career experience has exposed him to policy and managerial roles outside the field of education. After eight years with the Department of Education, Letalu was elected to four terms as a representative in the House of Representatives. As a legislator, he chaired the important Ways and Means and Budget Committees of the House of Representatives. He then resigned from the Fono in 1984 to *178join the executive branch as the Governor’s budget director. He has since left government and is now in private business as a construction contractor.
Tafea, Letalu, and Savini are matai, with Tafea purporting to hold, unlawfully, a second matai title. Although they have all been matai for. several years now, Letalu stands out in his service to his village as a matai. Furthermore, the Associate Judges found Letalu to be noticeably ahead of all of the candidates on matters of Samoan customs.
We conclude that Letalu prevails on the question forcefulness, character and personality, and knowledge of Samoan customs.
4. Value to Family. Village, and Country
In our evaluation of the parties, we rate candidate Letalu ahead of the other candidates on this criterion. His education, career history, and participation and experience in the affairs of the village of Tau as a leading matai of some 14 years’ standing speak strongly for his capacity for leadership and thus potential value to family, village, and country. Although Tafea has also been a matai for an equal amount of time, it was evident on the testimony that his attempt to hold two titles necessarily compromised his effectiveness to serve two different families at same time. He conceded that he was not always responsive to his obligations as a matai of Sili village. Significantly, the Lolo family has been leaderless for too many years, with the result that the family has become very much fragmented. It goes without saying that strong, effective leadership is critical. Letalu impresses us as best fitting that role.
CONCLUSIONS
Based on the foregoing, we hold that Letalu M. Moliga is qualified to hold the title Lolo. Although Savini prevails on hereditary considerations, Letalu prevails on the second, third, and fourth criteria. The Territorial Registrar shall accordingly register the Lolo title from the village of Sili in candidate Letalu M. Moliga, in accordance with the requirements of A.S.C.A. § 1.0409(b).
It is so ordered.
The court in In re Matai Title Sotoa, 2 A.S.R.2d 15 (Lands & Titles Div. 1984), calculated blood relationship to the original titleholder, as opposed to the nearest titleholder in a candidates genealogy. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486214/ | Order Denying Motions For Judgment of Acquittal:
PROCEDURAL HISTORY
*180On March 10, 1994, defendant was convicted by the verdicts of the jury of four counts of stealing (A.S.C.A. § 46.4103) and four counts of embezzlement (A.S.C.A. § 46.4104) and renewed his motions for a judgment of ¿cquittal on all eight counts. He filed his "Memorandum in Support of Motions for Judgment of Acquittal" on March 14, 1994, and the Government’s response was filed on March 17, 1994. On March 22, 1994, a hearing was held on defendant’s motions.
STANDARD OF REVIEW
After the jury returns a guilty verdict, a defendant may move that the court set aside the verdict and enter a judgment of acquittal. T.C.R.Cr.P. Rule 29(c). In considering a motion for acquittal, a trial court must "determine whether, viewing all the evidence in the light most favorable to the Government and drawing all reasonable inferences and credibility choices in favor of the jury’s verdict, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." United States v. O’Keefe, 825 F.2d 314, 319 (11th Cir. 1987) (internal citation omitted) (citing United States v. Brand, 775 F.2d 1460 (11th Cir. 1985); United States v. Cole, 755 F.2d 748 (11th Cir. 1985)); see also United States v. Dreitzler, 577 F.2d 539, 545 (9th Cir. 1978) (citing United States v. Figueroa-Paz, 468 F.2d 1055, 1058 (9th Cir. 1972)), cert. denied 440 U.S. 921. Indeed, the trial court is to keep in mind that "it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts." Dreitzler, 577 F.2d at 545 (quoting United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977)).
DISCUSSION
Under the embezzlement statute, a "person commits the crime of embezzlement if he knowingly misappropriates property of another which has been entrusted to him or which has lawfully come under his control." A.S.C.A. § 46.4104(a). For purposes of this prosecution, a "person commits the crime of stealing if he appropriates property ... of another with the purpose to deprive him of it, . . . by means of deceit." A.S.C.A. § 46.4103(a). Embezzlement is a class C felony, as is stealing property valued at $100 or more. A.S.C.A. §§ 46.4104(b); 46.4103(b)(1). Sufficient evidence existed for the jury to find that defendant "misappropriated" and "appropriated" the Government’s TAOA vouchers.
*181As for defendant’s assertion that the vouchers did not have any value, this is incorrect. "’Property’ means anything of value, whether real or personal, tangible or intangible . . . A.S.C.A. § 46.41010. Normally, "value" is determined by the market value of the thing taken at the time and place of the crime. A.S.C.A. § 46.4102(a). However, when the thing taken is an instrument evidencing debt (e.g., a check, draft, or promissory note~or a TAOA voucher), that value is the amount due or collectible on it. See A.S.C.A. § 46.4102(b)(1); see also United States v. Bauer, 713 F.2d 71, 73 (4th Cir. 1983) (rejecting argument that since stolen U.S. Savings Bonds had been replaced, they had no value, defined by 18 U.S.C. § 641 as "face, par, or market value, or cost price, either wholesale or retail, whichever is greater"). Defendant’s arrangements to exchange the vouchers for cash and later authorizing the territorial treasury’s reimbursement of the vouchers held by the stores demonstrate that the vouchers have value. See Bauer, 713 F.2d at 73 (defendant’s "expectation that he could sell the [savings] bonds, and his attempt to do so . . . belie the contention that they were without value or were worth not more than $100").
CONCLUSION
Viewing the evidence in the light most favorable to the Government, this court finds that ample evidence supported the jury’s factual findings. Defendant engaged in "appropriating" and "misappropriating" the TAOA vouchers, which have a cash value of $100 or more at the time and place of each crime charged, in violation of the statutes defining embezzlement and stealing. Therefore, defendant’s motions for a judgment of acquittal on each of the eight counts are denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486215/ | Opinion:
For 20 years various candidates have been legally pursuing the Faumuina title. This appeal is the latest chapter in a case that will be, we fear, ongoing. Most recently, the case was heard before this court's Land and Titles Division on March 18, 1992. The trial court, in a very brief decision, awarded the title to appellee A. P. Lutali.1 For the reasons detailed below, we must remand for a new trial.
INSUFFICIENT FINDINGS ON CLAN PREFERENCE
Both appellants pursuing this appeal, Saunoa S. Vaouli and Saufa'i P. Satele, assert that the trial court erred in law by failing to comply with all provisions of A.S.C.A. § 1.0409. The relevant part of that section reads:
(c) In the trial of title cases, the High Court shall be guided by the following considerations, in the priority listed:
* * *
(2) the wish of the majority or plurality of those clans of the family as customary in that family;
* * *
(d) The court shall issue a written decision that must contain findings of fact and conclusions of law on each issue under (c) above.
In addressing A.S.C.A. § 1.0409(c)(2), the trial court stated: "None of the *3claimants were supported by a majority of the clans of the Faumuina family" (Opinion and Order at 2). Nowhere in the trial court's decision was a finding made on the make-up or number of clans in the Faumuina family. In fact, the only other reference to clans is found in the conclusion, where the court, citing In re Matai Title "Galea'i", LT No. 1050 slip op. at 3 (1971), states: "[W]hen claimants are closely matched, it is conducive to family harmony to make the selection from a different clan than the clan which last held the title." Yet the court never indicated which clan candidate Lutali, or indeed any former title-holder, represents.
We note that the language of A.S.C.A. § 1.0409(d) is clear- the trial court shall issue a decision that covers each factor enumerated in A.S.C.A. § 1.0409(c). We note that use of the word "shall" has traditionally been interpreted as a mandatory direction, inconsistent with the idea of discretion. Hill v. United States I.N.S., 714 F.2d 1470 (9th. Cir 1983); In Re Thrift Shoe Co., Inc., 502 F.2d 1211 (9th Cir. 1974); United States v. Machado, 306 F. Supp. 995 (N.D.Cal. 1969).
Absent any clearly expressed legislative intention to the contrary, "shall" has been found to be significantly commanding. Escoe v. Zerbst, 295 U.S. 490, 493 (1935) ("shall ... is the language of command, a test significant, though not controlling); MCI Telecommunications Corp. v. F.C.C., 765 F.2d 1186, 1191 (D.C.Cir. 1985) (courts ordinarily regard such statutory language as "shall" as conclusive). In Woodrum v. Donovan, 544 F. Supp. 202, 206 (Ct. of Int'l. Trade 1982), the court noted under what circumstances a statute's procedural directive might be considered to be mandatory. Citing French v. Edwards, 80 U.S. 506 (1872), the court said: "(W)hen the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory". In this case, it is clear that a failure to follow the clear meaning of A.S.C.A. § 1.0409(d) results in prejudice to all involved, as substantive rights are clearly at issue. The legislature has required that the judiciary issue written findings of fact and conclusions of law. The trial court has no discretion to ignore that legislative mandate.
The court's obligation to render a decision on each of the four considerations has also been found to be mandatory by this court. In In re Matai Title "Gaoteote", AP No. 103-75 (1975), the court found that failure to enter a finding on what the clans of a family are and who they support was an error of law. The court stated:
*4The Fono has determined that only a serious review of the claimants in light of each of the four factors can result in an informed selection by the court. . . . Naturally, the trial judges must determine what the clans of the family are before they can be guided by the desire of the majority or plurality of those clans (citation omitted). It makes no difference that this determination is difficult; it is the function of the Court to resolve difficult questions.
The Gaoteote case is directly on point.2 While we acknowledge the often-difficult task of determining clans and whom they support,3 we are precluded by law from allowing the decision below to stand, since the trial court failed to make the required findings. Because the trial court did not make a finding on the number, identity and preference of the clans in the Faumuina family, the decision cannot stand.
APPEARANCE OF JUDICIAL IMPARTIALITY
We perceive a second problem with the trial court's decision. At the onset of trial, a motion was made to disqualify two of the associate judges that had been appointed by appellee A.P. Lutali in his capacity as the Governor of American Samoa. That motion was denied. The issue was reasserted, and again rejected, at the hearing on the motion for reconsideration or new trial. We feel this issue merits further consideration.
In the federal courts, the method for raising the issue of a judge's possible bias or prejudice and the grounds for disqualification are set out in 28 U.S.C. §§ 144 and 455, respectively. Section 144 allows a party to file an affidavit raising the issue of a judge's possible personal bias or prejudice against the party, and the steps to be taken once such an affidavit has been filed. Section 455, revised in 1974, reads, in pertinent part: "(a) Any justice, judge ... of the United States shall disqualify himself in any *5proceeding in which his impartiality might reasonably be questioned".4 Section 455(a) focuses not on whether or not there is actual prejudice, but on whether or not there is an appearance of partiality. United States v. Ritter, 540 F.2d 459, 462 (10th Cir. 1976) (disqualification is appropriate under section 455(a) when the circumstances are such that the judge's impartiality might be reasonably questioned); Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978) (the question is not whether the judge is impartial in fact, it is whether another might reasonably question his impartiality in the circumstances). This standard has been interpreted by reference to the reasonable person. SCA Services, Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir. 1977); Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985) (the test for appearance of partiality is whether a disinterested observer would entertain significant doubt that justice would be done).
The appearance of partiality is also a matter of concern in the territory. American Samoa's High Court Rule 103 reads, in pertinent part: "The conduct of all judges shall be governed by the Canons of Judicial Ethics". Canon 2 states: "A Judge should avoid impropriety and the appearance of impropriety in all his activities" (emphasis added). Canon 3 states: "A Judge should perform the duties of his office impartially and diligently". Canon 3C(1) states: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . ."
A.S.C.A. § 3.1007(a) reads:
(a) No judge shall sit in any case in which he, or a family of which he is a member, has a substantial interest, or in which he has been counsel,is or has been a material witness, or is a member of the same family with any party to the case.
We interpret the words of A.S.C.A. § 3.1007(a) "a case in which he ... has a substantial interest" not to mean only that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere. We interpret the words of A.S.C.A. § 3.1007(a) "a case in which he ... has a *6substantial interest" not to mean only that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere. Meredith v. Atualevao, AP No. 06-79 (1979) (the appearance of impartiality is an operative standard as much as the fact of impartiality; it is irrelevant whether a judge was in fact impartial or whether actual prejudice was shown); In re Matai Title "Tauala", 15 A.S.R.2d 65, 66 (1990) (disqualification may, in other cases, be appropriate to avoid the appearance of impropriety). Recusal should never be undertaken lightly, but there are certain instances in which recusal is proper. We think that this is one of those times.5
The standard of review is, in accordance with A.S.C.A. § 43.0801(b), "clearly erroneous". Federal courts also apply the clearly erroneous standard to such issues. See Laxalt v. McClatchy, 602 F. Supp. 214, 217 (D. Nev. 1985) (citations omitted).
A judge has an obligation not to recuse himself or herself unless there is a need to do so. Pene v. American Samoa Power Authority, 10 A.S.R.2d 23 (mem.)(1989); see also Uiagalelei v. Ulufale, 17 A.S.R.2d 158 (1990). If recusals were easily obtained, parties might use them as a means of "judge-shopping." Ouachita Nat. Bank v. Tosco Corp., 686 F.2d 1291, 1300 (8th Cir. 1982) ("Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice," citing Blizard v. Fielding, 454 F. Supp. 318, 320 (D. Mass. 1978)).
The two associate judges in question were appointed to the bench by appellee A.P. Lutali during his first term as the Governor. While we do not wish to say that a governor, having appointed an associate judge, may never come before that individual in court, there are instances when this is so. We think that when a governor is before the court in his or her official capacity, the chance of any appearance of partiality is slim, and there is, absent special circumstances, no reason for an associate judge to *7have to recuse themself.6
However, when an appointing governor appears in his capacity as an individual citizen before an appointee judge, it is even more important that the appearance of partiality be avoided. Particularly in a small community where most people know one another, it is critically important for the courts to avoid the appearance of favoritism to a party. The appearance of partiality can be as corrosive to the judiciary as actual partiality; the courts must always maintain absolute independence and integrity.7 Under the particular facts and circumstances of the case before us: its history, the title at stake and the relationship between the two judges and appellee, we feel that recusal of the two associate judges involved was required.
We make special mention of the fact that no party to thi~ appeal has raised any specific accusation against either of the judges involved herein. Nor are we in any way suggesting that either judge acted in any but the most honorable way. However, to insure the public's continuing confidence in the fairness of our courts, we must be as vigilant regarding the appearance of this court as we are regarding its actual functioning. For the future; we note that, save special circumstances not here present,8 there is a duty of recusal incumbent on an associate judge who finds himself or herself assigned to a case in which a g5vernor who appointed the judge appears in his or her personal capacity.9
In summary, based on the clan issue dealt with above, as well as the issue of recusal discussed herein, we are, obligated to remand this case for a new trial consistent with this opinion.
*8It is so ordered.
That decision, dated April 23, 1992, also contained a dissent. However, our grounds for remand are not related to the reasons for that dissent.
We point out that 19 years have passed since the decision in the Gaoteote case was issued. If the legislature disagreed with the reasoning therein, it has had ample time to clarify A.S.C.A. § 1.0409. Its silence on this matter is yet another indication of the mandatory nature of the provision.
See In re Matai Title "Tauala", 14 A.S.R.2d 83 (1990).
The 1974 revision of section 455 was based on the ''appearance of justice” standard adopted by the House of Delegates of the American Bar Association in 1972. See SCA Services, Inc. v. Morgan, 557 F.2d 110, 113 (7th Cir. 1977) (citations omitted).
We take notice of the fact that when this court was called upon to select a successor to the Faumuina title in 1973, there were also questions regarding the composition of the original panel assigned to the trial. At that time, the entire panel recused itself and "The Chief Justice then collected a pool of all the names of permanent, temporary, and retired associate judges, and submitted those names to the parties...". The names that remained then proceeded to sit at trial. In re Matai Title "Faumuina", LT No. 1265-72 (1973).
The question of what may constitute these special circumstances is not now before this court, and we therefore decline to comment on it.
Federal cases concluding that the governor-appointee relationship is too tenuous and remote to in and of itself justify recusal are not persuasive here, because the population of American Samoa is small and the citizens are generally well-known to each other.
We particularly heed the Rule of Necessity-- when a case cannot be otherwise heard, even an interested judge has a duty to sit on that matter, See United States v. Will, 449 U.S. 200, 66 L.Ed.2d 392 (1980) (the Rule of Necessity is at least five and a half centuries old and has been recognized by many state and federal courts).
Because of our decision on the points above, there is no need to reach appellants' other issues of contention. However, we do note that the trial court found candidate Lutali to have 1/128 hereditary right to the title. In In re Matai Title "Faumuina", LT No. 1265-72 (1973), this court stated that hereditary claim is `far too remote to warrant serious consideration in the absence of special circumstances." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486218/ | RICHMOND, Justice:
In February and March of 1993, appellee Governor A.P. Lutali ("the Governor"), on behalf of appellee Development Bank of American Samoa ("DBAS"), made three written requests to appellant Mabel Foster ("Foster"), secretary of appellant American Samoa Development Corporation ("ASDC"), to call a special shareholders' meeting. The Governor's first demand letter, dated February 11, requested a meeting for *17the purpose of voting on whether or not to remove the then-current board of directors. His second demand letter, dated February 25, reiterated this request and added a request to vote on a bylaw amendment adopted February 5. Both these demands went unsatisfied; and the president of the ASDC responded to the Governor in writing that the requested purpose of these meetings would cause a conflict between the corporations bylaws and articles of incorporation.
On March 15, the Governor made his third written demand for a special meeting, here adding a request for an additional special meeting to vote on amending the ASDC's articles of incorporation. This demand went unanswered, and appellees subsequently sought and were granted a temporary restraining order. Upon appellees' claim for injunctive relief, the trial court issued an order on May 3, instructing Foster to call the special meetings requested for the purposes sought.
In its decision, the court below was confined to considering whether or not 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 (Decision and Opinion issued May 3, 1993, at 2). The court found that ASDC's articles of incorporation permit amendments by a majority of stockholders, and that special meetings may be called for any purpose by at least 10% of the common stock entitled to vote (DBAS owns 80% of ASDC). The court noted that even if removing and electing directors was at the time prohibited, and the court did not state that it was, the removal would be proper if the proposed changes were duly adopted. The court found defendants argument that corporate directors are only to be elected at the annual meeting to be without merit, and that election of directors is notably different than removal of same. This is true even if removal necessarily results in a special election to choose replacement directors. In any event, the courts ruling was specifically directed to enjoining Foster from failing to carry out her duty to call the requested meetings.
On appeal, appellants, in essence, assume a legal connection between the court's ruling that the meetings be called and the actions that transpired at those meetings. Appellants continue to assert that the trial court's ruling necessarily led to the removal of the then-present board of directors, even though they acknowledge that the purpose of the injunction was simply to compel Foster to call the requested meetings. There is simply no legal nexus to these separate contentions. Appellants' appeal is restricted to the final decisions of the trial court. This court is not in the position of continually supervising legal and internal shareholder decisions of the *18ASDC, however badly they may rest with appellants.
Appellants also argue that the trial court's finding that the board improperly attempted to insulate itself from accountability is not supported by the evidence. Contrary to appellants' assertions, this was not a finding of the trial court. The court’s order of June 3, denying appellants' motion to reconsider, specifically stated:
This court merely noted the fiduciary duty owed by a corporation board of directors to the stockholders and observed that a board's attempt to insulate itself from accountability to the shareholders is inconsistent with this duty.
The court, as it said itself, merely pointed out the board's fiduciary duty, an issue that was not before the court. Nor was the court basing its conclusions on the then-board's assumed motives. As this was clearly not part of the lower court's findings upon which it based its ruling, appellant's arguments must necessarily fail.
Appellants' last asserted issue on appeal, the alleged employment and due process rights of the removed directors, also fails as a matter of law. As appellants are restricted on appeal to contesting the lower court's final judgments, they cannot assert positions outside those parameters. This contention is firmly outside the scope of this appeal.
Accordingly, having fully reviewed appellant's arguments in support of their appeal, and finding none compelling, the trial court's decision is hereby affirmed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486219/ | RICHMOND, Justice:
On November 10, 1993, oral arguments were heard in the appeal of the October 28, 1993, decision of the trial court. This decision found that the land at issue belonged to appellee Urn family and enjoined appellants from further construction on that land.
In reviewing a decision of the Land and Titles Division or the Trial Division, the Appellate Division utilizes a "clear error" standard. A.S.C.A. § 43.0801(b); T.C.R.C.P. 52(a); see Moea'i v. Alai'a, 12 A.S.R.2d 91, 92 (App. Div. 1989); Tuileata Family v. Amituana'i, 8 A.S.R.2d 173, 175 (App. Div. 1988). This standard of review applies to the lower court's evaluation of witnesses' credibility. Moea`i, 12 A.S.R.2d at 92 (quoting T.C.R.C.P. 52(a)); National Pac. Ins. Co. v. Oto, 3 A.S.R.2d 94, 94-95 (App. Div. 1986). When conflicting testimony has been presented, "believ[ing] the witnesses favoring the appellee and disbelieving those favoring the appellant . . . is the prerogative of the trial court which saw and heard the witnesses." National Pac. Ins., 3 A.S.R.2d at 94.
Appellants' arguments essentially consisted of asserting thai their witnesses *20and not appellees' witnesses should be believed, as well as claiming that landmarks and construction on the land supported their ownership claim. However, these arguments only dispute the trial court's evaluation of the evidence. Determining the credibility and weight of the evidence is the function of the trial court, and its findings were amply supported by the evidence. Therefore, the decision of the Land and Titles Division is affirmed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486220/ | Opinion and Order:
PROCEDURAL HISTORY-
On January 12, 1994, the District Court convicted appellant of Speeding (A.S.C.A. § 22.0323) and Driving Under the Influence of Alcohol or Other Drugs (A.S.C.A. § 22.0707), although he was found not guilty of Reckless Driving (A.S.C.A. § 22.0702). Appellant's motion for new trial or reconsideration was denied on January 31, 1994. On February 2, 1994, his notice of appeal and his motion to stay execution of sentence were filed with the High Court. A hearing on his motion to stay execution of sentence was held on March 9, 1994, and the appeal was heard on March 28, 1994.
JURISDICTION AND STANDARD OF REVIEW
Final decisions of the District Court may be appealed to the High Court. A.S.C.A. § 3.0309. An appellate court will not set aside a trial court's findings in the absence of clear error. A.S.C.A. § 43.0801(b); Uiagalelei v. Ulufale, 17 A.S.R.2d 158, 160 (App. Div. 1990); Utuutuvanu v. Mataituli, 12 A.S.R.2d 88, 90 (App. Div. 1989). That is, the 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. Moea'i v. Alai'a, 12 A.S.R.2d 91, 93 (App. Div. 1989); *22Afualo v. Puailoa, 21 A.S.R.2d 115, 117 (App. Div. 1992); Taeleifi v. Willis, 21 A.S.R.2d 118, 121 (App. Div. 1992); Afoa v. Asi, 20 A.S.R.2d 81,83 (App. Div. 1992) (citing Moea'i, 12 A.S.R.2d at 93).
DISCUSSION
At trial,, appellant stipulated tp a number of facts, including his (1) speeding, which was clocked by radar at 55 mph; (2) failing to stop after Officer Maifea activated hik'cruiser's lights; (3) having red and bloodshot eyes; (4) having the strong smell of alcohol; (5) admitting drinking alcoholic beverages; (6) failing three field sobriety tests; and (7) having a breathalyzer' test result of 0.17% blood-alcohol level. Under the applicable statute, a driver Háving a blood-alcohol level of 0.08% or more is presumed to be "under the influence of intoxicating liquor." A.S.C.A. § 22.0607(a)(3). Additional evidence regarding driving under the influence may also be presented at trial. A.S.C.A. § 22.0607(b).
Appellant stipulated to driving with a blood-alcohol level which was more than twice the statutory level creating a presumption of driving under the influence (DUI). Additional evidence supporting the finding that appellant was driving under the influence included his failing the three field sobriety tests and his operating the vehicle 30 mph over the speed limit.
Once a driver is found to have a'blood-alcohol level of O'.08% or more, the statute presumes that he is under the influence and so'is incapable of operating a vehicle safely. This statutory presumption reflects the proven medical fact that ingesting substantial quantities of alcohol impairs one's driving ability. Indeed, the role of alcohol consumption in traffic fatalities demonstrates' the rational connection between the statute's presumption and the proven fact of impaired driving ability. People v. Schrieber, 119 Cal. Rptr. 812, 813 (Cal. Ct. App. 1975).
In contrast, appellant has not presented any evidence which contradicts this presumption. See People v. Schumann, 458 N.E.2d 182, 188 (Ill. App. Ct. 1983) ("defendant has the burden of producing evidence in his favor sufficient to rebut the presumption" of driving under the influence). Contrary to appellant's arguments, the offense of reckless driving is neither a lesser-included offense of DUI nor an element of a DUI offense. As in this case, a driver can be under the influence of alcohol without a finding of "reckless" driving. As for appellant's contention that his not getting in an accident supports a finding that he was capable of safe driving, this is a "specious argument." See State v. Corkran, 448 So. 2d *231346, 1352 (La. Ct. App. 1984) ("The fact that the defendant was skillful enough to stay on the road during this [115 mph chase] episode is insufficient to rebut the presumption [of intoxication]."). The whole point of traffic laws is to prevent accidents, not just to punish drivers after an accident.
Finally, this court desires to make it clear that only two elements constitute the offense of Driving under the Influence of Alcohol or Other Drugs: (1) the defendant was driving a motor vehicle, (2) while under the influence of alcohol or other drugs. Being a legal and not a medical term, "under the influence" means a person's intoxication has reached "a degree which renders him incapable of safely driving." A.S.C.A.. § 22.0707(a) (emphasis added).
The means of proving "under the influence" varies with each case and may include (1) observations of the defendant's manner of driving, his physical symptoms, and his performance of field sobriety tests; (2) his blood-alcohol level as shown in test results; and (3) admissible statements made by the defendant. Thus, a DUI prosecution need never prove an accident's occurrence or another incident of unsafe driving, when the totality of circumstances convinces the trier of fact beyond a reasonable doubt that the defendant was incapable of driving safely.
CONCLUSION
The District Court found that appellant was driving while under the influence of alcohol, and sufficient evidence existed to support that finding. Therefore, appellant's conviction for driving under the influence is affirmed. The order staying execution of sentence hereinbefore entered is vacated.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486221/ | Order Granting Plaintiffs' Motion for Sujnmary Judgment and Denying Defendant's Motion for Summary Judgment:
Both parties have moved this court for summary judgment with respect to the issue of liability on the insurance policy underlying this case. For the reasons detailed below we deny the motion by defendant National Pacific Insurance, Co., Ltd. ("NPI") but grant the cross-motion by plaintiffs Sosene Asifoa and Moli Asifoa ("the Asifoas").
Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. 56. In ruling on such a motion, the court must view all pleadings and *25supporting papers in the light most favorable to the opposing party, United States v. Diebold, 369 U.S. 654 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44,45 (1987).
This dispute centers on property insurance policy number XCF001/70019414 ("the policy") issued to the Asifoas for a consideration of $475.00 by NPI in March, 1991. NPI entirely prepared the policy. On December 6-10, 1991, when the policy was in force, Hurricane Val damaged the property and its contents. While the parties have settled on the amount due from NPI as regards the building, there remains a dispute as to the actual coverage of the aforesaid policy.
The Asifoas allege that the policy insured their building and its contents from fire or cyclone in the amount of $50,000.00, and NPI contends that no coverage for the contents of the insured structure was obtained. NPI moved for summary judgment and submitted an affidavit from Arnold Carter, branch manager of NPI, stating that the Asifoas had paid no additional consideration in order to insure the building's contents. As part of its response to the Asifoas' cross-motion, NPI later submitted the affidavit of Anna Auvaa, an underwriter for NPI, who stated that she was the one who assisted Mr. Asifoa and that he never mentioned an intention to have the buildings contents insured.
The Asifoas submitted Mr. Asifoa's affidavit in support of their cross-motion, stating that Paul Gray received plaintiff's application and was informed of their desire to have insurance coverage for both the building and contents. Additionally, this affidavit points out that it was the Asifoas' intention to insure the contents in order for them to receive the balance of their loan from the U.S. Small Business Administration ("SBA"), and that NPI knew of this requirement, listing SBA in the policy as the loss payee. The affidavit points out that the building was worth only $20,000.00, and the Asifoas contend, therefore, that the coverage obtained would have been unjustifiably high for merely the building itself.
An insurance policy is a contract and the same rules of construction applicable to other contracts are applicable to insurance policies. Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437, 439 (8th Cir. 1986), cert. den'd 94 L. Ed.2d 761 (1987), citing 2 Couch, Cyclopedia of Insurance Law § 15:1, 15:3 (2nd Ed. 1984); Commercial Union Ins. v. State Farm Fire & Cas., 546 F. Supp. 543, 545 (D.C. 1982) (citations omitted). If an insurance contract is unambiguous, the vast majority of U.S. jurisdictions require that a court follow the prescriptions of the policy *26as written, and need look no further in resolving any disputes. Berne v. Aetna Ins. Co., 604 F. Supp. 958, 960-962 (D.C.V.I. 1985), aff'd 782 F.2d 1026 (1985); St. Paul Fire & Mar. Ins. v. U.S. Fire Ins. Co., 655 F.2d 521 (3rd Cir. 1981).
Once a policy is found to be ambiguous, however, further inquiry is generally allowed by the court. Allstate Ins. Co. v. Ellison, 757 F.2d 1042 (9th Cir. 1985) ("Intent is an issue ... if the contract is ambiguous."). As stated by a Connecticut court, only if the court "makes a preliminary finding that the policy language at issue, taken either on its face or in the context of the entire policy, is ambiguous, should the Court consider the reasonable expectations of the insured ... ,11 Jarrius v. Maccabees Mut. Life Ins. Co., 587 F. Supp. 1301, 1305 (D. Conn. 1984).
We agree with this reasoning, and only if the insurance policy at issue is ambiguous will further inquiry by this court be necessary. If the policy is not ambiguous, the parties intent will be gleaned from the four corners of the contract and the dispute may be resolved as a matter of law: See Rauch v. Underwriters at Lloyd's of London, 320 F.2d 525, 531 (9th Cir. 1963); Transamerica Ins. v. State Farm Mut. Auto. Ins., 492 F. Supp. 283 (D. Nev. 1980).
Many courts have struggled with, and defined, what constitutes "ambiguity" in the context of an insurance contract. Kansas law states that in construing an insurance policy courts may consider the language, the parties situation and the purpose to be accomplished when ascertaining parties intentions from the instrument as a whole. Dronge v. Monarch Ins. Co. of Ohio, 511 F. Supp. 1, 4 (D. Kan. 1979). "Contracts are not rendered ambiguous by the mere fact that the parties do not agree on the meaning of a specific policy term .... Ambiguity exists only when the policy terms at issue are subject to reasonable differing interpretations." Potter v. Ranger Ins. Co., 732 F.2d 742, 743 (9th Cir. 1984) (citations omitted). "The language of the policy is examined from the viewpoint of one trained neither in law nor in insurance." Combined Communications Corp. v. Seaboard Sur. Co., 641 F.2d 743, 745 (9th Cir. 1981) (citation omitted). "The fact that a lawyer is able to make an argument as to the proper construction of any given language does not make the language ambiguous." Transamerica Ins. at 287. Courts may not "create" ambiguity, even if the outcome would otherwise be harsh. Combined Communications Corp. at 745.
In the case before us, the dispute focuses on the body of the policy and an attached endorsement. Endorsements are forms added to basic policies *27to address a situation's particular coverage needs.. Endorsements become part of an insurance contract and must be construed with it. Kalmbach, Inc. v. Ins. Co. of State of PA., Inc., 529 F.2d 552 (9th Cir. 1976), on remand 422 F. Supp. 44 (D. Alas. 1976). A policy and an endorsement should be construed together to give effect to all provisions. Buntin v. Continental Ins. Co., 437 F. Supp. 132, 135 (D.C.V.I. 1977), rev'd 583 F.2d 1201 (3rd Cir. 1978), on remand 525 F. Supp. 1077 (D.C.V.I. 1981). .
In this case, the first page of the policy states that the property insured is "ON BUILDING OF GENERAL STORE". The word "CONTENTS" is included in the endorsement on the sixth page of the policy, as being covered when damaged by a cyclone and enclosed by a building permanently in place. On the seventh page of the policy, under "Deductible," the endorsement to the policy outlines the deductible for the building. Under this provision, the wording says "CONTENTS - Same as Above," referencing for purposes of the contents the language used for the building's deductible.
A conflict exists between the first page of the policy and the wording of the endorsement. It is clear that under the policy's first page, damage to the building's contents is not covered, while under the endorsement, such damage is covered. When faced with this type of contrast, courts have consistently held that the wording of the endorsement holds sway, and a party's undisclosed intentions, particularly those of the insurer that prepared the document, cannot prevail. "If there is a conflict between the terms of the endorsement and those in the body of the main policy, then the endorsement prevails, particularly when it fávors the insured." St. Paul Fire & Mar. Ins. at 524. "It is the general rule that an endorsement . . . attached to an insurance policy becomes and forms a part of the contract; . . . and that where the provisions in the body of the policy and those in the endorsement or rider are in irreconcilable conflict the provisions contained in the endorsement or rider will prevail ..." Farmers Ins. Exchange v. Ledesma, 214 F.2d 495, 498 (10th Cir. 1954); see Price v. Zim Israel Navigation Co., Ltd., 616 F.2d 422 (9th Cir. 1980).
This course has been followed because endorsements are considered to be tailored to the particular needs of the insured. Unlike the more standardized general forms, endorsements are to reflect the needs and intentions of the parties. See St. Paul Fire & Mar. Ins., supra at 524. This resolution of intrinsic language differences does away with any ambiguity. Long v. Adams, 312 S.E.2d 262, 265 (S.C. App. 1984). In this case, the endorsement governs, and liability on the insurance policy *28is properly resolved as a matter of law in favor of the Asifoas.
We hold that the policy covers the contents of the building in question. Therefore, we deny summary judgment to NPI and grant summary judgment to the Asifoas.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486223/ | Order on Motions for New Trial:
On March 23, 1994, the Court issued its Opinion and Order adjudging Letalu M. Moliga to be most qualified candidate to hold the matai title "Lolo," pertaining to the village of Sili, Manu'a. On March 30, 1994, Segila P. Vaeao filed his motion for new trial basically on the contention that the evidence favored his candidacy. Likewise, Tafea F. Seui, filed his identical motion.
We first note that both motions are mere disagreements with the Associate Judges' weighing of the evidence. Second, neither motion *47hardly complies with the "particularity" requirements of T.C.R.C.P. 7(b)(1) ("An application to the court for any order shall be by motion which . . . shall state with particularity the grounds therefor. ..."). In the context of a motion for a new trial, the purpose of this particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made. Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990). See also American Samoa Government v. Falefatu, 17 A.S.R.2d 114, 119-120 (Trial Div. 1990) ("What is essential [to a motion for a new trial] is that it be filed within the statutory period and that it fully apprises the court of the asserted errors in the judgment or sentence, so that the trial court may consider for itself whether any such errors occurred and make .appropriate corrections."). The grounds for the motions are simply couched in the way of conclusionary statements, and we were without the benefit of argument elaborating on the positions respectively asserted. The motions for new trial are, therefore; denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486226/ | Opinion and Order on Motion to Dismiss Petition for Declaratory Relief:
*53Petitioner filed his request for declaratory relief on January 5, 1994. Respondent filed his motion to dismiss on January 24, 1994. On April .29, 1994, a hearing was held on respondent's motion. For the following reasons, respondent's motion is granted.
First, petitioner claims that a conflict exists between the Attorney General's "verbal opinion" and A.S.C.A. § 1.0405(a). This provision says that "[a]ny person claiming succession to a matai title shall file with the territorial registrar a written claim of succession to the title." However, the Attorney General is clearly not trying to claim a matai title. Thus, this statute on its face is inapplicable to this case.
Second, American Samoa's declaratory-judgment statute limits such relief to a person "interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property." A.S.C.A. § 43.1101. Petitioner is not disputing his rights under a written document or in regards to property, nor are his rights or duties with the Attorney General or another person at issue. As such, petitioner falls outside the scope of the statute. In any event, this court retains the discretion not to grant declaratory relief if "not necessary or proper." A.S.C.A. § 43.1102.
Third, petitioner lacks standing to pursue this case. The doctrine of standing is derived from the "case or controversy" requirement in Article III of the United States Constitution. This limitation imposed by a standing requirement is based on the separation of powers which underlies the federal government. Northeastern Fla. Chapter of the Assoc. Gen. Contractors of America v. City of Jacksonville, Fla., 508 U.S. _, _, 124 L. Ed. 2d 586, 595 (1993) (citing Lujan v. Defenders of Wildlife, 504 U.S. _, _, 119 L. Ed. 2d 351, 364 (1992); Allen v. Wright, 468 U.S. 737, 750, (1984)). Because the government and constitution of American Samoa are based on the U.S. model, those principles generally apply to the judiciary of this territory.
To establish standing, a party must demonstrate the following:
(1) "injury in fact," by which we mean an invasion of a legally protected interest that is "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;" (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury "fairly can be traced to the *54challenged action of the defendant," and has not resulted "from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the "prospect of obtaining relief from the injury as a result of a favorable ruling" is not "too speculative." These elements are the "irreducible minimum" required by the Constitution.
Id. at _, 124 L. Ed. 2d at 595-96 (internal citations omitted); see Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472, (1982). In addition to these constitutional minima, the Supreme Court has added the following limits:
First, the Court has held that when the asserted harm is a "generalized grievance" shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction.. Second, even when the plaintiff has alleged injury sufficient to meet the "case or controversy" requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Without such limitations— closely related to Art III concerns but essentially matters of judicial self-governance — the courts would be called upon to decide abstract questions of . wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.
Warth v. Seldin, 422 U.S. 490, 499-500, (1975) (internal citations omitted); see Valley Forge, 454 U.S. at 474-75, (plaintiff's complaint must also fall within "zone of interests" protected or regulated by a statute or constitutional provision); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 & n.6, (1979).
Petitioner has failed to show that his petition for declaratory relief meets the requirements for standing, as he has not shown that he has suffered any actual, particular, and imminent harm. Neither his positions as "a duly elected member" and "Vice-Chairman of Government Operations" in the territorial House of Representatives nor his status as "a voter, resident and *55taxpayer" confer standing on petitioner. At most, his pleadings merely seem to assert a "generalized grievance" or the legal rights of others.1
Furthermore, many of petitioner's arguments appear premised on his assertion that there is only-one Mulitauaopele family and title. See, e.g., Petitioner's "Supplemental Pre-Hearing Memorandum," at 3. However, this court has recognized the existence of two distinct Mulitauaopele families and matai titles. In re Matai Title Mulitauaopele, 16 A.S.R.2d 63 (Land & Titles Div. 1990), aff'd 25 A.S.R.2d 43 (App. Div. 1993). Insofar as petitioner may be attempting to relitigate this court's decision, the judgment stands and is binding on him.
Petitioner lacks the requisite standing to maintain his lawsuit. Therefore, respondent's motion to dismiss is granted.
It is so ordered.
Those family members who claim entitlement or right to the Mulitauaopele title, left vacant at the demise of Mulitauaopele Tamotu, would have standing; their representative to the Fono does not gain standing vicariously by virtue of his office. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486227/ | Order on Motion to Suppress Identification:
The defendant was identified by the complainant and her husband following a showup-an identification process where only one person is shown to the eyewitness. Defendant contends that his pre-charge identification by the complainant and her husband was undertaken in overly suggestive circumstances, and that any subsequent attempts at in-court identification by these two individuals would therefore be in violation of his rights to due process.
Contrary to proper police procedure, the complainant and her husband were taken by Officers King Talamoni and Afimuao Leota to the Tafuna Correctional Facility (TCF) for the purpose of their viewing the defendant, an inmate at the TCF. The complainant, while sitting with her husband and Officer Leota in a police vehicle outside one of the TCF cell-blocks, *57identified the defendant as she observed him exiting the cell-block to cross the yard. Her husband then similarly identified the defendant as the culprit.
A one-on-one showup is inherently suggestive; however, suggestiveness of the identification process does not, by itself, merit suppression. United States v. Hamlin, 684 F2d 380 (6th Cir. 1982). In Manson v. Braithwaite, 432 U.S. 98 (1977), the Supreme Court elaborated on the standards to be used in determining the admissibility of identification testimony. The Court put the focus of inquiry on reliability of the identification and applied the "totality of the circumstances" standard of Stoval v. Denno, 388 U.S. 393 (1967), to test reliability. In this regard, the factors to be considered are:
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.
Manson, 432 U.S. at 114.
With regard to the complainant's identification, the evidence suggests that she had the opportunity to view the defendant. She testified that she struggled in the bedroom with the intruder while he attempted to hold her down with one hand on her neck and threatened a stabbing motion with the other. Although the incident happened during the hours of darkness, the complainant testified that there was sufficient light from a nearby streetlight to enable her to see the person she was struggling with that morning. While the opportunity to identify her assailant may well have been momentary and at a time of heightened anxiety, these are factors that go to weight rather than admissibility.
Additionally, the fact that the complainant implored the officers to take her to the TCF that very morning, corroborates her claim of an opportunity for positive identification. She lives near the TCF. She was determined in her request to the officers to be taken immediately to the TCF because she realized that she had seen the intruder's face before; she was certain in her own mind that the intruder was an inmate whom she had seen around the prison area.
Her recollection of having seen the intruder before also bespeaks her degree of attention. Furthermore, she had the presence of mind to race *58after the intruder to the front door, after the latter had bolted from the bedroom, so that she could turn on the outside light. At the same time, the description of the intruder which she and her husband had given to the police, together with certain telltale evidence of a peculiar, but well known, modus operandi, caused at least one of the officers to suspect the defendant and relent to complainant's insistence to be taken to the TCF. At the TCF, complainant's level of certainty was demonstrated by her immediate and excited identification of the defendant. Finally, the prompt confrontation with defendant actually enhanced reliability.
Notwithstanding the suggestiveness of the procedure employed, we are satisfied that the complainant's identification of the defendant had an independently reliable origin.
As to her husband's identification of the defendant, we conclude that his identification of the defendant cannot be sustained. The complainant's husband did not have the opportunity to positively identify the defendant. The best that he had in the way of opportunity was a fleeting side-view of the intruder, although in his ensuing chase with the intruder, he was able to observe the latter's size, hair length, complexion, and clothing. In actuality, all that this witness can really attest to is that the defendant "resembled" the person he was chasing that morning.1
His identification of the defendant at the TCF was, we believe, based upon his wife's sense of assuredness that she had seen the intruder as the defendant walked out of the cell-block. We are affirmed in this conclusion by this witness's demonstrated inability to recognize the defendant at the preliminary examination stage. At the same time, his ineffective attempts on the stand to reconcile certain inconsistencies with his earlier testimony at the preliminary examination clearly pointed to his inability to sort out what it was that he had seen, and what it was that he had deduced.
We conclude that any in-court attempts at positive identification of the defendant by this witness would be improperly tainted by his pre-trial identification of the defendant at the TCF.
On the foregoing, the motion to suppress identification by the complainant is DENIED. The motion to suppress identification by the complainant's husband is GRANTED.
*59It is so ordered.
Although falling short of positive identification, such testimony is admissible. 29 Am.Jur.2d, Evidence § 267. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486228/ | Opinion and Order:
PROCEDURAL HISTORY
On February 14, 1991, appellee Zoning Board granted a zoning variance to appellee Ottoville Development Corporation (hereinafter ODC). On May 3, 1991, the Zoning Board and appellants Charles Ala'ilima, who has since withdrawn as a party, and James McGuire stipulated to a stay of the zoning variance. ODCs motion to interven? was granted on December 6, 1993, and the order was filed on January 26, 1994. On March 8, 1994, Appellate Division granted ODC's motion to dissolve the stay but denied its motion to dismiss; the Zoning Board's motion for summary judgment was also denied.
JURISDICTION GENERALLY
Appeals to the High Court from the Zoning Board "may be taken in like manner to appeals under the Administrative Procedure Act [described in A.S.C.A. §§] 4.1040 through 4.1044." A.S.C.A. § 26.0341. Within 30 days from the service of the petition for appellate review, an agency is to send the court the record of the proceedings in the matter under review. A.S.C.A. § 4.1042; A.C.R. 17(a). Appellate review is confined to the record. On a party's request, "the court shall receive briefs and hear oral argument"; and the court has the discretion to receive evidence to supplement the record. A.S.C.A. § 4.1043(a). However, the court is not to reweigh the evidence on factual questions and is to give "appropriate weight to the agency's experience, technical competence, and specialized knowledge." A.S.C.A. § 4.1043(b).
FAILURE TO EXHAUST ADMINISTRATIVE
*61Judicial review is available to a "person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case." A.S.C.A. § 4.1040(a) (emphasis added). Regulations promulgated by the government further, state that u[w]ithin 10 days after receipt of tjie decision the applicant or any other interested party may file a written motion for reconsideration." A.S.A.C. § 26.0320(h). Thus, this statute requires that all available administrative remedies be pursued before this court can grant judicial relief.
Whether compelled by statute or exercised as a matter of judicial discretion, the "long settled rule of judicial administration [is] that no one is entitled to judicial relief ,for a supposed or threatened injury until the prescribed administrative remedy had been exhausted." LaVallee Northside Civic Ass'n v. Virgin Islands Coastal Zone Management Comm'n, 866 F.2d 616, 620-21 (3d Cir. 1989). (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)). The rationale for this requirement is as follows:
[T]he doctrine. [of exhaustion of administrative remedies] (1) insures against preiqature interruption of the administrative process; (2) allowed the agency to develop the necessary factual background on which to base a decision; (3) allowed exercise of agency expertise in its area; (4) provided a more efficient process; and (5) protected the administrative agency's autonomy by allowing it to correct its own errors and insuring that individuals were not encouraged to ignore its procedures by resorting tq the courts.
South Hollywood Hills Citizens v. King County, 677 P.2d 114, 118 (Wash. 1984) (citing McKart v. United States, 395 U.S. 185 (1969)). Most importantly, utilizing administrative procedures may eliminate the need for judicial review altogether. LaVallee Northside Civic Ass'n, 866 F.2d at 620 (citing FTC v. Standard Oil Co., 449 U.S. 232, 243-45 (1980)). When a statute prescribes administrative remedies which must be exhausted before judicial review is allowed, these procedures are jurisdictional. See Joelson v. City of Casper, Wyo., 676 P.2d 570, 571-72 (Wyo. 1984) (statute provides for judicial review after administrative remedies have been exhausted; the timely filing of a petition for review.is jurisdictional); American Hog Co. v. County of Clinton, 495 S.W.2d 123, 125 (Mo. Ct. App. 1973) (failure to follow statutory procedure for appeals is a jurisdictional matter); Midland Enterprises, Inc. v. City of Elmhurst, 589 N.E.2d 1019, 1024 (Ill. App. Ct. 1992) (trial court Jacked jurisdiction *62when plaintiff failed to seek review pursuant to state's Administrative Review Law).
Appellant did not file-a motion for reconsideration with the Zoning Board. Since exhaustion Of administrative remedies is required by statute, this court lacks jurisdiction to hear his appeal.
OTHER ISSUES
While petitioner's appeal cannot succeed due to his failure to exhaust-his administrative remedies, this court will nonetheless address a few other matters concerning the Zoning Board'? procedures in deciding requests for zoning variances. These matters are brought to the Zoning Board's attention so that future zoning-variance requests can be handled in conformance with applicable provisions of statutes, administrative regulations, and court rules. Following these provisions.will- also aid future judicial review of the Zoning Board's decisions.
I. A Zoning Variance Lapses 180 Days After Issuance
While the failure to exhaust administrative remedies disposes of this appeal, the variance may have lapsed-. The administrative rule reads as follows:
Unless renewal of a variance is requested, it shall lapse 180 days after its issuance unless prior,to that date . . . if a' building -is to be constructed ... a building permit has been issued, and construction is commenced- and diligently pursued. ... A variance may be renewed by the board for a period of 30 days.
A.S.A.C’. § 26.0320(j). The record of a variance proceeding wquld not necessarily show whether or not a building permit was issued and construction was cothmenced in a timely manner. The record would normally indicate a 30-day renewal of a variance. -This record does not show any renewal. Moreover, this record contains an ODC officer's declaration that"[construction is expected to begin in early March/1994." Affidavit of David O. Halleck, ¶ 4 (Feb. 7, 1994). If indeed there was a failure to comply with A.S.A.C. § 26. 0320(j), the variance may no longer be valid.
11. The Zoning Variance Lacks the Requisite Findings 'of Fact
*63"The Zoning Board may grant a variance ... if it finds that the variance is necessary to make possible a reasonable use of land or a building, or that the refusal of a variance would impose a hardship, and that the variance would hot be injurious to the neighborhood." A.S.C.A. § 26.0340(a). Furthermore, the evidence must show that (1) the use is compatible with other uses in the "general neighborhood area" and does not unduly burden utilities or other services, (2) the site's size can accoipmodate the use, (3) the streets can handle the anticipated traffic voiume, and (4) the use will not adversely affect other property in the area or the territory's welfare. A.S.A.C. § 26.0320(d), Written findings supporting the granting of a variance must be made. A.S.C.A. § 26.0340(b).
However, the findings contained in the Zoning Board's decision granting ODC's request for a variance consisted of the following:
(a) The parking aisles are sufficient in width to provide convenience in vehicular circulation throughput tlie sife and that the required amount [sic] of parking stalls comply with Zoning Requirement.
(b) The proposed use and development is compatible with die existing and anticipated development in the area.
(c) The project will be architecturally compatible with anticipated development in the future.
(d) The project meets all setback requirements.
"Decision of Zoning Board Regarding Variance Application," File No. V-347-90 (Jan, 31, 1991). On its face, these findings are inadequate. Some findings mandated by regulation or statute are omitted entirely, and others merely recite the language of statutes or regulations. As such, the variance lacks the necessary findings of facts.
"[generalized, conclusory, or incomplete findings are not sufficient. . . . [T]here must be findings on each material fact with full reasons given to support each finding.” A.L.W., Inc. v. District of Columbia Bd. of Zoning Adjustment, 338 A.2d 428, 430 (D.C. Ct. App. 1975) (emphasis in original) (quoting Dietrich v. Board of Zoning Adjustment, 293 A.2d 470, 473 (D.C. Ct. App. 1972)). Similarly, a statutory requirement for findings of fact "is not met by parroting the highly generalized statutory *64phrases" of a.variance ordinance. Blair v. Zoning Bd. of App., City of Chicago, 228 N.E.2d 555, 557 (Ill. App. Ct. 1967) (quoting Lindburg v. Zoning Bd. of App., 133 N.E.2d 266, 268 (Ill. 1956)); A.L.W., 338 A.2d at 430 ("no administrative body fulfills its quasi-judicial responsibility by merely repeating the applicable statutory language in making its conclusions"). When findings of fact are not made, a reviewing court cannot ascertain what evidence, if any, was the basis of a zoning board’s conclusion. , Blair, 228 N.E.2d at 557. The Zoning Board should formulate its findings of fact in accordance with the applicable statutes and its own regulations.
III. Inadequacy of the Zoning Board's Record
At minimum, the agency's record is to include (1) the parties' pleadings, motions, briefs, and memoranda; (2) a summary of evidence received and considered; (3) any agency rulings, decisions, or reports; and (4) the final decision or order. A.S.C.A. § 4.1032; see A.C.R. 16(a) (record must include the "order sought to be reviewed or enforced, the findings or report on which it is based, and the pleadings, eviderice and proceedings before the agency"). If a record lacks the information required by the statute and court rule, proper judicial review is impossible. See Penn Township Bd. of Supervisors v. DeRose, 339 A.2d 859, 860 (Pa. Commw. Ct. 1975) (remand to Zoning Hearing Board to develop a proper record due to absence of statutorily-mandated stenographic record and transcript of proceedings); Hot Shoppes, Inc. v. Clouser, 231 F. Supp. 825, 832 (D.D.C. 1964). (zoning regulations required that the zoning board enter "the full reasons for its decisions" in its "minutes book"), aff'd 346 F.2d 834 (D.C. Cir. 1965) (per curiam); see also East Greenwich Yacht Club v. Coastal Resources Management Council, 376 A.2d 682, 687 (R.I. 1977) (judicial review was "impossible,” and certiorari petition was denied, when statutorily-required factual findings were absent and the transcript of hearing was not before the court).
The "record” provided by the government lacks many of the required elements, especially the evidence upon which the Zoning Board decided to grant the variance. As such, the Zoning Board is admonished to comply with all applicable statutes, regulations, and rules in preparing records of its proceedings.
CONCLUSION
Petitioner has failed to exhaust his administrative remedies, so this court lacks jurisdiction to hear his appeal. Therefore, this áppeal is dismissed.
*65It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486229/ | Order Denying Motion for Reconsideration of Default Judgment:
This case began on May 12, 1992, when plaintiff E-C Rental Service ("EC Rental") filed a complaint alleging that Joe Pedro ("Pedro") owed E-C Rental $7,082.50 in rental fees. Pedro was served with this summons and complaint on June 9, 1992. When Pedro had still not responded by November 12, 1993, E-C Rental requested an entry of default, pursuant to T.C.R.C.P. Rule 55(a). Default was entered by the clerk of courts on November 12, 1993. E-C Rental then moved for a default judgment.
After three unsuccessful attempts to hold a hearing, the fourth scheduled hearing took place on March 17, 1994. Although E-C Rental was represented by counsel, Pedro did not appear at the hearing either personally or by counsel. Pedro did send an 'emissary’ in his stead, but this representation was not recognized by the court. After E-C Rental presented its case, witness testimony and receipts, the court granted the motion for a default judgment in the principal sum of $7,082.50, together with reasonable attorney's fees, court costs, and prejudgment and post-judgment interest. This judgment was entered on March 25, 1994, and only then did Pedro make his first appearance.
On March 28, 1994, Pedro, through counsel, filed a motion for reconsideration of the default judgment, along with an affidavit purporting to explain why he had ignored the case for almost two years. This motion for reconsideration of the default judgment came regularly for hearing on April 26, 1994. For the reasons detailed below, we deny defendant's motion.
Although not referenced by the defendant, a judgment of default may be set aside in accordance with T.C.R.C.P. Rule 60(b). This rule, whose language tracks its federal counterpart, reads in pertinent part:
(b) On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, ... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), . . . not more than one year after the judgment . . . was taken. A motion under this subdivision (b) does not affect the *67finality of a judgment or suspend its operation ....1
The standards for relief when a judgment of default has been entered are substantially higher than when an entry of judgment stands alone. Phillips v. Weiner, 103 F.R.D. 177, 179 (D. Maine 1984). "[A] judgment by default may be set aside using the more restrictive provisions of Rule 60(b) for final judgments." Federal Deposit Ins. Corp. v. Francisco Inv. Corp., 873 F.2d 474, 478 (1st Cir. 1989) (italics omitted).
While the court must be slow in granting default judgments, mindful of our partiality for trial on the merits, we must also balance this concern with finality of judgments and protection of the judicial process. "Although we are mindful of the strong policy in favor of trial on the merits, we are equally aware of the district court's duty to protect the integrity of the judicial process." Dolphin Plumbing Co. of Fla. v. Financial Corp. of N.A., 508 F.2d 1326, 1327 (5th Cir. 1975). "In its efforts to alleviate the tension that occasionally arises among the principles of promoting efficient, effective litigation by demanding that litigants conduct their cases reasonably, favoring disposition of cases by trial on the merits, and according full justice to all parties, a court must take care to order default only when it is appropriate and absolutely necessary, but then, consequently, only vacate its decision under Rule 60(b) when the evidence so requires." Inryco, Inc. v. Metropolitan Engineering Co., Inc., 708 F.2d 1225, 1230 (7th Cir. 1983), cert den'd 78 L. Ed.2d 313, 464 U.S. 937 (1983).
"Default judgments are not favored .... This may be why a court must hold a hearing on damages before entering a judgment on an unliquidated claim even against a defendant who has been totally unresponsive." Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980). In general, however, a litigant must make a strong showing to demonstrate that he or she is entitled to relief from a default judgment under T.C.R.C.P. 60(b). "Rule 60(b) relief from a default judgment is an extraordinary remedy and is granted only under exceptional circumstances." United States v. $48,595, 705 F.2d 909, 912 (7th Cir. 1983). "[T.C.R.C.P. Rule 60(b)] allows relief from final judgments under certain extraordinary circumstances." Saufo'i v. American Samoa *68Government, 16 A.S.R.2d 71, 73 (1990).
Additionally, once granted, a default judgment is accorded a high degree of deference, both in the federal courts and in American Samoa. should be noted that the granting or denial of such motions [under Rules 55(c) and 60(b)] is left largely to the discretion of the district court." Savarese v. Edrick Transfer & Storage, Inc., 513 F.2d 140, 146 (9th Cir. 1975). "The decision whether to set aside a default judgment is left to the sound discretion of the trial trial judge Dolphin Plumbing Co. at 1327. "The decision on a rule 60(b) motion is left to the broad discretion of the trial court." Inryco Inc. at 1230.
"[[T.C.R.C.P. Rule] 60(b) empowers the Court to relieve a party other than the party in whose favor judgment is rendered or his legal representative from a final judgment for any of six enumerated reasons. The rule uses the word "may" and thus granting motions under the rule is subject to the Court's sound discretion." Taulaga v. Patea 12 A.S.R.2d 64, 65 (1989). "[[S}uch relief [from a judgment under Rule 60(b)] is discretionary and a denial of a Rule 60(b) motion should only be reversed if the trial court has abused its discretion." Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 56, 57 (1987). See also Tolliver v. Northrop Corp., 786 F.2d 316 (7th Cir. 1986).
With these principles firmly in mind we turn to the case before us. Pedro has never alleged that he was unaware of the case against him or that he was given insufficient opportunity to respond. For 22 months he simply ignored this case. Although Pedro states that he resided for a time in the U.S. mainland this contention which we accept as true for the purposes of this motion does not adequately address the issue. Aside from the obvious problem of Pedro's neglect to inform the court of when and for how long he was absent from the territory his absence does not in any way address his failure to have an answer filed in his behalf or to ensure representation before the court. Furthermore Pedro alleges that due to time and money constraints he was previously unable to contact the court or to procure counsel. Striving to give Pedro every benefit of the doubt this still does not address several key factors. While defendant may have had other matters pressing this does not touch on his inability to ask the court for a continuance. Nor does his inability to hire counsel address his failure to at the least send a note from his employer indicating that he was not allowed to attend the hearing on March 17 1994.
The difficulties with Pedro's showing however do not end here. Even if we were to somehow forgive this egregious delay and we do not *69Pedro has hardly indicated that he would be able to forward a meritorious defense on the issues. It is important, when seeking to overturn a final judgment, that the applicant "[d]emonstrate that he had a meritorious defense . . . United States v. $48,595 at 912. "Traditionally, we have held that relief from a judgment of default should be granted where the defaulting party acts with reasonable diligence . . . and tenders a meritorious defense." United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). Although Pedro alludes to "records and invoices" which would disprove E-C Rental's case, there has been no particularity regarding this proof. While E-C Rental adequately explained the invoices submitted, Pedro has not indicated how he would refute this evidence. In addition, Pedro's counsel, present at the hearing on April 26, 1994, indicated that he has not even seen these records and/or invoices and therefore could not explain what they might show. See Dolphin Plumbing Co. at 1327.
We also take note of E-C Rental's position. E-C Rental has now waited almost two years for this case to progress. It has submitted documentation and appeared at the various hearings held. While its position must not overshadow Pedro's legitimate interests, we must acknowledge the unfairness that endless delay creates upon the other party.
In sum, Pedro has not made á sufficient, threshold showing necessary for this court to overturn a final, judgment under T.C.R.C.P. Rule 60(b). There has been no solid showing sufficient under either Rule 60(b)(1) or (b)(6), and the motion submitted by Pedro was fatally imprecise. In the interests'of finality, the judicial system, and fairness to all parties, we therefore cannot grant this motion.
With all this in mind, we decline to overturn the default judgment. The motion for reconsideration is denied.
It is so ordered.
Although Pedro did not explicitly state under what parts of T.C.R.C.P. Rule 60(b) he was seeking relief, his motion and accompanying affidavit, as well as testimony at the hearing, gave no indication that this motion could fall under the other enumerated reasons for relief in the rule. These reasons include newly discovered evidence, fraud, or a void or satisfied judgment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486230/ | Order Denying Zoning Board’s Petition for Rehearing:
Appellee Zoning Board ("the Zoning Board") has petitioned the court for rehearing pursuant to A.C.R. Rule 40(a), which states, in part: "The petition shall state with particularity the points of law or fact which . . . the court has overlooked or misapprehended." The Zoning Board's petition for rehearing focuses on neither law nor fact, but rather on dicta arising out of the court's statutorily required review of the Zoning Board's agency record. The court ruled it did not have jurisdiction to hear this appeal, based upon its review of the record and the applicable statutes, administrative rules, and court rules.
The court also addressed procedures to be followed in future administrative proceedings involving zoning-variance requests that would aid future judicial review proceedings. Most of these recommendations were intended to highlight what the court would concentrate upon in reviewing an agency record. One such salient point in the judicial review of an agency record spanning a period of approximately three and one-half *71years would be whether or not mandatory lapse provisions of statutes or administrative rules were clearly addressed in that particular agency's record.
The Zoning Board, and not this court, has the jurisdiction to decide, if necessary in the course of the administrative process related to this proceeding, the issue raised in the Zoning Board's petition for rehearing. The petition is therefore denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486231/ | *72Order on Motion for Reconsideration:
PROCEDURAL HISTORY
Appellant was convicted in the District Court of Speeding (A.S.C.A. § 22.0323) and Driving Under the Influence of Alcohol or Other Drugs (A.S.C.A. § 22.0707) on January 12, 1994. His motion for new trial or reconsideration was denied on January 31, 1994. On April 14, 1994, the Appellate Division affirmed his conviction for driving under the influence and vacated the order staying the execution of sentence. Appellant filed his "Motion for Reconsideration" on April 25, 1994.
DISCUSSION
A petition for rehearing "shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition." A.C.R. 40. Appellant's "Motion for Reconsideration" does not meet this standard. His memorandum cites no statute or case law which actually supports his arguments. Instead, he quotes the DUI and blood-alcohol level statutes and states that words should be "interpreted and understood in their ordinary sense."
Appellant essentially reargues the same matters raised on appeal. However, Rule 40 does not permit reconsideration of the same matters addressed in the original appeal "in the absence of demonstrable mistake." United States v. Smith, 781 F.2d 184, 184 (10th Cir. 1986) (citing United States v. Doe, 455 F.2d 753, 762 (1st Cir. 1972) (as modified), vacated on other grounds sub nom. Gravel v. United States, 408 U.S. 606 (1972)). By its very terminology, a motion for "reconsideration" involves arguments previously made and so is not permitted by Rule 40. Doe, 455 F.2d at 762.
Likewise, general allegations and bald-faced assertions do not provide the particularity which Rule 40 requires. Appellant's memorandum, including its rhetoric questioning "our sense of justice," fails to support a petition for rehearing.
Therefore, appellant's "Motion for Reconsideration" is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486232/ | Second Order Denying Motion for Leave to Proceed In Forma Pauperis:
Plaintiff, an inmate at the Tafuna Correctional Facility, submitted his motion for leave to proceed in forma pauperis on March 29, 1994. Plaintiff's motion was denied in an order filed April 4, 1994. On May 11, 1994, plaintiff resubmitted his motion, though this time it was accompanied by an affidavit. He also enclosed $15 to cover a portion of the filing fee. This money is being held by the Clerk of Courts pending the resolution of plaintiff's motion.
Plaintiff has failed to show that he is eligible to proceed in forma pauperis. In his affidavit, plaintiff states that he makes up to $100 per month selling crops. He also has $31.87 in cash and receives cash gifts of $5-$20 from friends and relatives. Furthermore, his mother receives $590 in monthly Social Security payments. In contrast, the territorial government provides plaintiff's food and shelter, sparing him those major costs of living. Although making general statements, he has not shown any necessary expenditures which would preclude his paying the filing fee.
Therefore, plaintiff's second motion for leave to proceed informa pauperis is denied. The Clerk of Courts is to return plaintiff's $15.
*74It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486233/ | Order Granting Motion for Summary Judgment:
On October 25, 1993, plaintiff American Samoa Government Employees *75Federal Credit Union ("EFCU") filed a complaint in the District Court of American Samoa alleging that defendants Fatima Galea'i and Paradise Travel (collectively "Galea'i") were in arrears on a loan issued by EFCU. EFCU sought the principal, $3,952.82 (as of October 20, 1993), accrued interest, prejudgment and post-judgment interest, and attorney fees and costs. In a unverified answer filed pro se, Galea'i denied the allegations in the complaint, forwarded a number of affirmative defenses and sought to have any debt found forfeited and costs awarded.
On February 25, 1994, EFCU moved this court for summary judgment against Galea'i, submitting the affidavit by Vi'i Cho, collection supervisor for EFCU; EFCU later submitted a supplementary affidavit, as well as copies of Galea'i's account history and disbursement check.1 In response to EFCU's summary judgment motion, Galea'i submitted both a sworn statement alleging that there exists a genuine dispute at least as to the amount of money owed to the plaintiff, and an unsworn statement alleging essentially the same defense. Galea'i also alleged that the District Court lacked jurisdiction, and that the interest rate charged by the EFCU of 18% is usurious.
The motion for summary judgment came regularly before this court for hearing on May 9, 1994. EFCU was represented by counsel. Galea'i was not present at the hearing, and sent no representation, despite being properly served.
We can quickly dispose of two of Galea'i's objections. The issue of the District Court's jurisdiction is now moot, as this case was properly transferred to this court on April 12, 1994.
Additionally, Galea'i's objection to the interest rate charged by EFCU must fail as a matter of law. The interest rates charged by a federal lending institution such as the EFCU are determined by the Board of the National Credit Union Administration ("NCUA"). The NCUA determined that for loans originating between May 15, 1987, and September 3, 1994, such as Galea'i's, the interest rate may be as high as 18% per annum. This determination was published in the Code of Federal Regulations, 12 C.F.R. § 701.21 (b)(7)(ii)(1993). The NCUA has exclusive authority to regulate terms of federal credit union loans, and this authority preempts any American Samoan laws affecting such interest rates. 12 C.F.R. § *76701.21(b)(1)(i)(A). Therefore, the ceiling of 15% provided for in A.S.C.A. § 28.1501 is preempted by the federal rate established by the NCUA. See Crissey v. Alaska U.S.A. Federal Credit Union, 811 P.2d 1057 (Alaska 1991); Home Mortgage Bank v. Ryan, 986 F.2d 372 (10th Cir. 1993); Fidelity Fed. Sav. & Loan Ass'n. v. de la Cresta, 73 L. Ed.2d 664 (1982). The interest rate charged Galea'i is neither usurious nor in violation of local law. We now turn to the remaining claims.
Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. Rule 56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 8 L. Ed.2d 176 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (1987).
It is also true that where "[T]he proof in support of the motion ... has a high degree of credibility the opponent must produce convincing proof." Wright, et. al., Federal Practice and Procedure, §§ 2727 at 142 (2nd Ed. 1983). This standard was articulated by the Supreme Court of the United States in "the Celotex trilogy." These three cases stand for the proposition that an inadequate showing cannot defeat a moving party's competent motion for summary judgment. ”[T]he burden on the moving party may be discharged by ... pointing out ... that there is an absence of evidence to support the nonmoving party's case." Bryant v. Southwest Marine of Samoa, Inc., CA No. 41-92 (1993), citing Celotex Corp. v. Catrett, 91 L. Ed.2d 265, 275 (1986).
We are well aware that summary judgment is both final and drastic. We are also cognizant of the need to dispose of meritless disputes at the earliest opportunity and so preserve judicial resources. In this case, EFCU has submitted ample materials of high reliability in order to support its motion. In response Galea'i has submitted no evidence at all, and neglected to either make an appearance at the hearing, or procure a representative to so appear. Galea'i has asserted that there is a genuine dispute but has not made the court privy in any way to the substance of this dispute. A defendant is not entitled to a trial upon the "[unsubstantiated hope that he can produce such evidence at trial." Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 643 (9th Cir. 1969). Galea'i has not submitted check stubs, receipts, any verified statement, or indeed any document whatsoever that we could view in a *77light favorable to Galea'i's case.2
While we strive to give pro se parties every benefit of the doubt, the doubt must provide some benefit to such parties. In this case, none is articulated. Therefore, for the reasons articulated above, EFCU's motion for summary judgment is granted.
It is so ordered.
Vi'i Cho’s supplemental affidavit, submitted by the EFCU on May 3, 1994, attested that the principal refinanced amount of the loan was $4,361.65.
While we have taken note of Galea'i's unsworn statement of April 5, 1994, we also note that it suffers from the same fatal flaws as Galea'i's other submissions. A non-moving party's statement, even in proper affidavit form, may be inadequate opposition to a credible summary judgment motion. See Ashwell & Company, Inc., v. Transamerica Insurance Company, 407 F.2d 762 (7th Cir. 1956). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486234/ | Order Denying Motion for New Trial:
On April 15, 1994, defendant Stanley Snow ("Snow") was found guilty, by a jury, of one count of stealing services with a value of $100,00 or *79more and one count of stealing services with a value of $100.00 or less.
On May 11, 1994, Snow was sentenced by the court. The court suspended Snow's concurrent prison sentences of four years on count one and one year on count two, and placed Snow on concurrent probation terms of five years on count one and one year on count two. As conditions of probation, Snow was ordered to serve four months detention at the Tafuna Correctional Facility, out of a detention period of sixteen months, to begin on June 15, 1994.1 Execution of the remaining 12 months of detention and 600 hours of community service was suspended. Snow was also ordered to pay a fine of $1,500 no later than 60 days after release from the four-month detention period and to make restitution of $1,737.60, in equal monthly payments, which if not paid in full by the end of the initial detention period, is to be paid over the remaining months of the probation term.2
On April 25, 1994, Snow filed a motion for new trial and a motion to treat as an indigent on appeal.3 These motions came regularly for hearing on May 16, 1994. Two aspects of these motions-Snow's assertion of prejudicial error in the motion for a new trial because the court had neglected to rule on his motion for a judgment of acquittal, and his motion *80to be treated as an indigent-were disposed of at the hearing.4
The remaining aspects of Snow's motion for a new trial essentially make two challenges. The first is that Snow was denied a fair trial because of the jury's exposure to media coverage. The second is that the finding of the jury is not supported by the weight of the evidence. T.C.R.Cr.P. Rule 33 provides that the court, on a defendant's motion, may grant a new trial "if required in the interest of justice." When the court considers such a motion, the burden is on a convicted defendant to show that some error was committed and that that error was prejudicial to him. United States v. Simms, 508 F. Supp. 1188, 1203 (W.D. La. 1980). For the reasons detailed below, we deny Snow's motion with respect to both grounds.
In support of the first challenge, Snow argues that the jury, unsequestered throughout the trial until its deliberations, was exposed'to prejudicial news coverage that unfairly prejudiced the jury against him. Snow also asserts that the court erred in not allowing him to voir dire the jury about their exposure to the news coverage, and in not warning the news media to balance their coverage of the trial.
These objections must fail for several reasons. To begin with, Snow has not submitted any evidence whatsoever that the coverage was in fact prejudicial,5 or that any of the jury members were actually prejudiced. Although counsel evinced an intention to poll members of the jury on this question after the verdict, this has not been done. In the absence of any contrary evidence, we will not assume a tainted jury. See Mayola v. State of Ala., 623 F.2d 992 (5th Cir. 1980), cert den'd 451 U.S. 913, 68 L. Ed.2d 303, 101 S. Ct. 1986 (1981).
Nor has Snow mounted a sufficient challenge to the court's trial *81rulings on this matter. The court's denials of Snow's motion to specially voir dire the jury in the midst of trial, and subsequent motion for a mistrial, must stand. United States v. Abascal, 564 F.2d 821 (8th Cir. 1977), cert den'd 435 U.S. 953 (1978); United States v. Jones, 542 F.2d 186 (4th Cir. 1976), cert den'd 426 U.S. 922 (1976). It is the trial court’s province to determine whether or not news media materials have the possibility' of prejudicing the jury. Á special jury voir dire is not' essential to that determination, and a defendant hás no- right to be granted' this procedure. See United States v. Weisman, 736 F.2d 421 (7th Cir. 1984), cert den'd 469 U.S. 983, 83 L. Ed.2d 324, 105 S. Ct. 390 (1984); United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976), cert den'd 426 U.S. 948, 49 L. Ed.2d 1184, 96 S. Ct. 3167 (1976), reh’g den'd 429 U.S. 873, 50 L. Ed.2d 156, 97 S. Ct. 193 (1976).
Snow's demand that the court oversee press coverage regarding this trial is not only impractical but also seeks a constitutionally unsound restraint on the freedom of the press. Nebraska Press Asso. v. Stuart, 427 U.S. 539, 49 L. Ed.2d 683, 96 S. Ct. 2791 (1976). Additionally, Snow, having neglected to request a sequestered jury, cannot now complain of the jury's minimal exposure to daily life. See Martin v. Warden, Huntingdon State Corr. Inst., 653 F.2d 799 (3rd Cir. 1981), cert den'd 454 U.S. 1151, 71 L. Ed.2d 306, 102 S. Ct. 1019 (1982).
We also disagree with Snow's assertion that the evidence fails to support the jury's findings. In the context of a motion for a,new trial, the court-may weigh the evidence presented at trial and assess the credibility of witnesses. However, the court is not free to set aside the jury's verdict even if the court concludes that another result is more reasonable. The evidence must preponderate against the verdict so severely that a' miscarriage of justice-has occurred. United States v. Simms, 508 F. Supp. 1188, 1202-03 (W.D. La. 1980); United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985).
In this case, the jury had ample evidence to find against Snow, and. this was the course the jury chose to take. Although not necessary to this ruling, we also note that the jury, in count two, had the opportunity to hold Snow guilty of a more, serious crime and declined to do so. We are not in the habit of second-guessing decisions properly in the jury's province, particularly decisions with such firm foundations as the one before us.
For the reasons given, neither of Snow's challenges to the jury's verdict establish any prejudice to him that requires a new trial in the interest of justice. Therefore, the motion for a new- trial is denied.
*82It is so ordered.
The postponement was to allow Snow to procure alternative care during the four-month detention period for his one-year old son, who was recently hospitalized at the LBJ Tropical Medical Center with a diagnosis of pneumonia with plural effusion and, upon further testing, juvenile diabetes. Snow is receiving training to administer, and is actually administering, twice-daily insulin injections and other necessary health care for his son. Snow's wife is not yet able to cope with her son's condition and administer these injections.
Snow was also restricted to American Samoa unless he obtained prior permission from the court to travel outside the territory, with the Attorney General retaining his travel documents. He is to be a law-abiding citizen. He is to report monthly to his probation officer and make outstanding restitution payments, and fine payments within the 60 days allowed, after release from the four-month detention period. This reporting requirement is extended to once every three months after both the fine and restitution are fully paid. The probation officer may require more frequent visits at any time. Upon violation of any of the conditions of probation, Snow is subject to further detention and/or community service as an alternative to probation revocation until the full months of detention and hours of community service as ordered are exhausted.
A.S.C.A. § 46.2402(b) states that a motion for a new trial shall be filed within 10 days after the judgment or sentence. Although Snow's motion was filed before the sentencing actually took place, but after the verdict, we treat the motion as if it had complied correctly with all procedural requirements.
The motion for a judgment of acquittal was made at the close of all the evidence, and the court, in accordance with T.C.R.Cr.P. Rule 29(b), reserved the decision on this motion. The court denied this motion on May 11, 1994, before pronouncing the judgment and sentence.
The indigency question is governed by A.C.R. Rule 24, which comes into play when an appeal is taken. Rule 24 also requires a supporting affidavit in the detail prescribed by Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure. No such affidavit has been filed. Since this motion was filed prematurely and without the necessary substantive support, it was withdrawn.
Snow submitted two articles from the Samoa News that describe events during the first two days of the four-day trial. He did not include any later articles. He also submitted an affidavit that gave an extremely sketchy account of a call-in radio show regarding the trial. We cannot by any stretch call this, as Snow does, "extensive coverage." Nor can we at all term the articles as either wholly one-sided or prejudicial. • | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486235/ | *83Order Denying Motion for Summary Judgment:
PROCEDURAL HISTORY
Plaintiff Plaza Department Store filed its complaint on February 19, 1991. On August 23, 1991, plaintiff/intervenor Lumana'i ■ Development Corporation filed a motion to intervene, which was granted on September 19, 1991. On February 15, 1994, Plaza and LDC filed their motion for partial summary judgment on the issue of liability for the warehouse fire. On April 22, 1994, defendants filed their answers opposing the summary judgment motion. A hearing on the motion was held on April 25, 1994.
STANDARD OF REVIEW
Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. 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. King v. Cuyler, 541 F. Supp. 1230, 1232 (E.D. Pa. 1982); 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). If a factual dispute might affect the outcome of a case, a "genuine issue of material fact" exists. United States v. Murphy, 937 F.2d 1032, 1036 (6th Cir. 1991) (citing Liberty Lobby, 477 U.S. at 248); Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Liberty Lobby, 477 U.S. at 248); Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992) (citing Liberty Lobby, 477 U.S. at 248; Matsushita, 475 U.S. at 587).
In short, "the court must recognize that summary judgment is a drastic remedy, resolve all doubts as to the existence of genuine issues of fact against the moving party, and view all inferences from the facts in the light most favorable to the parties opposing the motion." Mid-South Grizzlies v. National Football League, 550 F. Supp. 558, 564 (E.D. Pa. 1982) (citing Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982)). Thus, "summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for *84controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances." United States v. Bachman, 601 F. Supp. 1537, 1540 (E.D. Wis. 1985) (citing Prince v. Pittston Co., 63 F.R.D. 28, 32 (S.D.W. Va. 1974)).
Furthermore, a trial court possesses the discretion to deny a summary judgment motion when it desires an "inquiry into the facts to clarify the application of the law." Bachman, 601 F. Supp. at 1540. Even if technically justified, a summary judgment motion may be denied in order "to give the parties an opportunity to fully develop the case." United States v. Merchants Nat'l Bank of Mobile, 772 F.2d 1522, 1524 (11th Cir. 1985) (per curiam) (quoting Marcus v. St. Paul Fire & Marine Ins. Co., 651 F.2d 379, 382 (5th Cir. Unit B 1981)). Even when the facts are uncontroverted, summary judgment is ordinarily inappropriate in negligence actions. This is so because negligence actions center on the reasonableness of a party's actions. Utu, 9 A.S.R.2d at 94 (citing King v. Avtech Aviation, Inc., 655 F.2d 77, 78 (5th Cir. 1981); Gross v. Southern R.R., 414 F.2d 292, 296 (5th Cir. 1969)).
DISCUSSION
Plaintiffs seek partial summary judgment on the issue of liability for the fire at the Lumana'i Development Corporation's warehouse. They assert that the fire was proximately caused by welding work done by defendant Duchnak and his employees. In this regard, plaintiffs point to .the dangers of flying sparks and falling bits of hot metal connected with the welding. Plaintiffs also state that the welders' precautionary measures, particularly a blue plastic tarp, were inadequate. Furthermore, they note violations of A.S.C.A. Chapter 31 in Duchnak's failing to possess a contractor's certification to do welding for hire and his employees' lack of tradesmen's licenses. In alleging liability, plaintiffs utilize a number of legal theories, including strict liability for the statutory violations, strict liability for the use of an abnormally dangerous or ultrahazardous instrumentality, and pommon negligence.
In contrast, defendants claim that the evidence does not clearly support plaintiffs' theory of causation. First, defendants note that Plaza's employees did not observe a fire before they closed the warehouse. Second, defendants argue that an electrical problem is a likely cause of .the fire. Duchnak stated in his deposition that on the same day as the fire, sparks were flying as Plaza employees attempted to conduct repairs. Third, defendants challenge the qualifications of the fire investigator, on whose findings plaintiffs greatly rely.
*85Additionally, defendants argue that plaintiffs themselves may have'had a duty to confirm Duchnak's qualifications and to take safety precautions, such as removing inventory from the warehouse while the welding was in progress. As such, defendants state that even if the welding caused the fire, plaintiffs were also negligent. Defendants also challenge plaintiffs' legal theories, arguing that the statutory violations are merely "negligence per se" or "evidence of negligence" and that welding is not an abnormally dangerous or ultrahazardous activity.
As previously noted, summary judgment is particularly inappropriate in negligence cases. Not only do the parties disagree as to the cause of the fire, but they also disagree as to the reasonableness of their respective safety precautions (or lack thereof). In light of these disputes and the need for a trial to determine the amount of damages once liability is determined, plaintiffs'motion for summary judgment is. denied. . .
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486236/ | Order on Motion for Default Judgment:
Plaintiff filed his complaint for an overdue debt and pre- and post-judgment interest on December 6, 1993. On December 30, 1993, this court granted defendant Sellers' motion for enlargement of time to file his answer. However, neither defendant has filed an answer. On March 22, 1994, plaintiff filed his motion for default judgment under T.C.R.C.P. 55. On April 22, 1994, a hearing on the default-judgment motion was held. Plaintiff has submitted a "Settlement Agreement" as evidence of defendants' indebtedness and their agreement to make regular payments. The underlying liability recounted in the agreement relates to a purchase of certain equipment by Gorniak from Scalise. The agreement further recites that Sellers subsequently purchased the equipment from Gorniak and assumed responsibility for paying off Scalise. Sellers apparently failed to pay Scalise; however, the "Settlement Agreement" resulted. This suit has arisen on that agreement.
We note from the file that while the complaint and summons was personally served upon Sellers, service upon Gorniak was effected through Sellers as the former's contractually designated agent — the agreement provides, among other things, that Gorniak designates Sellers as his agent for service of process. We note in personam jurisdiction not only over Sellers but also over Gorniak. The contractual appointment of an agent for service of process is proper. T.C.R.C.P. 4(d)(1); National Equipment Rental v. Szukhent, 375 U.S. 311 (1964).
Before a default judgment may be entered, a court must scrutinize the evidence itself. See, e.g., Samoa Products, Inc. v. A'asa, 17 A.S.R.2d 66, 67 (Trial Div. 1990) ("clerk's defaults" abolished in 1986). Furthermore, a default judgment may not be entered merely on the basis of an attorney's affidavit. Rather, at the default hearing the court may examine evidence of the indebtedness, such as bank ledgers. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177, 181 (Trial Div. 1988). In short, "[e]vidence of amount of debt, presented in support of motion for default judgment. . ., should consist not of [a] conclusory affidavit by attorney, but of bank ledgers mid other direct evidence from which [a] court can conclude for itself whether the amount has been correctly calculated." Id. at 177-78 (syllabus).
Plaintiff has, as previously noted, presented the "Settlement Agreement” as evidence of indebtedness and the defendants' agreement to make regular *87payments. He has also submitted a ledger showing defendants' payments to plaintiff's counsel under the "Settlement Agreement.” Plaintiff also requests $480 in legal, fees "for negotiating and drafting" the Settlement Agreement, in addition to collection costs.
On the foregoing, plaintiff's motion for default judgment is granted as follows: Plaintiff shall have judgment in the amount of $ 7,302.91 together with interest accruing thereon at the contract rate of 15% per annum from December 1, 1993, to the date of entry of judgment. Reasonable attorneys fees and costs of collection are allowed (a statement of fees and costs shall be filed with the Clerk of Courts for approval by the Court) together with legal fees in the amount of $480.00 incurred by plaintiff in connection with negotiating and preparing the Settlement Agreement. Judgment shall attract interest at the rate of 15 % per annum until satisfied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486237/ | Order Denying Motion to Dismiss Counterclaims:
These consolidated cases are presently before the court on the motions by plaintiff ASG Employees Federal Credit Union ("EFCU") to dismiss the counterclaims filed by defendant Bernard Gurr, Jr. ("Gurr"). We begin with a brief recitation of the facts, as they have been alleged.by both parties.
EFCU is a federal credit union operating in American Samoa. In July 1991, Gurr signed a promissory note with EFCU for $20,261.63, with interest accruing at 14% per annum on the unpaid principal. Gurr also signed a security agreement to secure this debt, giving EFCU a security interest in Gurr’s 1991 Ford Taurus stationwagon, serial number 1FACP57U5LG260572.
In August 1992, Gurr also signed a Fixed & Mortgage Note with EFCU for a loan of $130,544.28, with interest accruing at 10% per annum on the unpaid principal. In September 1992, Gurr then signed a Mortgage to secure the aforementioned loan. This latter Mortgage gave EFCU a security interest in Gurr's personal residence and land in Maloata, American Samoa, and the right to take and sell this property if Gurr defaulted on the loan.
Additionally, in May 1993, Gurr received a loan from EFCU for $1,565.90. Interest accrued on this promissory note at 18% per annum on the unpaid principal.
In January 1994, EFCU filed three complaints before this court, later consolidated into the present action, alleging that Gurr had in fact defaulted and seeking: (1) the principal and accrued interest due on the debts; (2) prejudgment interest to judgment; (3) post-judgment interest; (4) credit for foreclosure proceeds (or judicial foreclosure), as to the home, *89land and vehicle; and (5) reasonable attorney's fees and costs.
In his answers, Gurr admitted to signing the notes and to his failure to make payments on the loans. He also does not dispute that the EFCU has a security interest in his land and residence, or in his vehicle, or that EFCU has the right to take and sell these properties. Gurr also concurs with EFCU as to the various amounts owing. In fact, Gurr's only divergence with the facts up to this point is his disagreement with EFCU's right to prejudgment interest and post-judgment interest and attorney's fees. However, Gurr has also forwarded a number of counterclaims, and it is these that are now before the court
These counterclaims state that although Gurr has not kept up his payments, he has been wrongfully prevented from doing so by EFCU. Gurr asserts that EFCU has wrongfully kept him from his job and has erroneously failed to issue paychecks to him. Additionally, Gurr states that after he was asked to vacate his office, checks in his possession were rejected by EFCU and this has also prevented him from meeting his obligations. In consequence of these actions Gurr asks this court to dismiss EFCU's complaints and award him damages in the amount of wages due, wrongfully rejected checks, injury to his reputation, and costs.
EFCU responded to these counterclaims with the motions to dismiss under T.C.R.C.P. Rules 12(b)(1) and 12(b)(6). These motions came regularly before the court on April II, 1994. At the hearing, EFCU also, argued that the inclusion of its supplemental affidavit converted the motions to dismiss to ones for summary judgment. It is this aspect of EFCU's argument that we first address.
T.C.R.C.P. Rule 12(b) is identical to its federal counterpart.1 The relevant parts of T.C.R.C.P. Rule 12(b) read as follows:
(b) ... the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, ... (6) failure to state a claim upon which relief can be granted.
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon *90which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in 56 TCRCP, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by 56 - TCRCP.
Conversion of a 12(b)(6) motion into a motion for summary judgment lies squarely with the court. Morris v. Gilbert, 649 F. Supp. 1491, 1493 (E.D.N.Y. 1986) ("Whether or not the motion to dismiss has been converted to a motion for summary judgment is not a topic for debate. The court, and not the parties, decides whether the motion to dismiss is converted to one for summary judgment. The decision whether or not to convert the motion is within the court's discretion.")
In these cases, EFCU introduced, as part of its supplemental memorandum in support of its motion to dismiss Gurr's counterclaims, the supplemental affidavit by Robert McCartney, EFCU's conservatorship manager. This affidavit is clearly outside the ¡pleadings. However, the Rule is clear-all parties "must be given reasonable opportunity to present all material made pertinent to such a motion".
Federal courts have generally been strict on compliance with this notice requirement. "In evaluating the adequacy of notice, this circuit has determined ... whether the party against whom summary judgment was entered was fairly appraised that the court would look beyond ■ the pleadings and thereby transform the 12(b) motion to dismiss into one fof summary judgment." Cool Fuel, Inc. v. Connett, 685 F.2d 309 (9th Cir. 1982). "Before summary judgment may be entered against a party, that party must be afforded both notice that the motion is pending and an adequate opportunity to respond." Portland Retail, Etc. v. Kaiser Foundation, Etc., 662 F.2d 641, 645 (9th Cir. 1981). See also Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979) (holding that in the 5th circuit, when converting a 12(b)(6) motion into one under Rule 56, adherence to notice and hearing requirements must be rigorous).
Adherence to notice requirements is necessary in order to present the opposing party with an adequate opportunity to put forward their best response. "If the conversion [from a Rule 12(b)(6) motion to one under Rule 56] occurs unexpectedly, the nonmoving party is left at the disadvantage of being unprepared to respond; hence notice is required." (citations omitted). Portland Retail, Etc. at 645.
*91In these cases, EFCU filed its motions to dismiss Gurr's counterclaims in the High Court on March 3, 1994. Included as part of these motions, in CA Nos 8-94 and 16-94, was Robert McCartney's initial affidavit. Gurr responded on Friday, April 8, 1994. EFCU also filed its supplemental memorandum, with a supplemental affidavit attached, on April 8, 1994-^-a Friday, just three days before the present hearing on the following Monday. . It was only then that EFCU first sought conversion to a summary judgment motion.
Clearly, this supplemental submission does not comport with necessary, or even reasonable, notice requirements. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979) (the court noted that when converting a 12(b)(6) motion to one for summary judgment, all parties had to be given a reasonable opportunity to present pertinent material; "reasonable opportunity” includes notice that the motion is now one for summary judgment). While Gurr was ready to defend against the motion .to dismiss brought under 12(b)(6), he was neither prepared nor afforded fair opportunity to defend against one for summary judgment.
Because Gurr was given inadequate notice to respond to a summary judgment motion, we explicitly deny the conversion of this 12(b)(6) motion into a T.C.R.C.P. Rule 56 motion. This decision, lying within our discretion, also comports with the widespread view that summary judgment is not made automatic by filing matters outside the pleadings, but occurs only when a court "actually [takes] cognizance of them, or invoke(s) Rule 56." Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 19 (1st Cir. 1992).2 Therefore, we will examine EFCU's motions to dismiss without consideration of matters beyond the pleadings.
We must next address EFCU's motions to dismiss under T.C.R.C.P. Rule 12(b)(1), alleging lack of jurisdiction over the subject matter. EFCU alleges that Gurr's counterclaims are directed against the National Credit Union Administration Board ("NCUA"), and based on actions taken by NCUA. While EFCU states that Gurr may bring suit against NCUA in federal district court, it alleges that EFCU is not the party properly subject to his counterclaim allegations and that his counterclaims should be dismissed on this basis. For the reasons detailed below, we deny the motion to dismiss under T.C.R.C.P. Rule 12(b)(1).
*92Once NCUA placed EFCU into conservatorship, in October 1993, NCUA then'stood in the shoes of EFCU. Rosciti Const. v. Lot 10 of E. Greenwich, Plat 14, 754 F. Supp. 14, 17 (D.R.I. 1991) (!'NCUA, as conservator, stands in the shoes-of the mortgagee ..."). As EFCU itself states, NCUA, as conservator, "took possession and control of the business, assets, and records" (Memorandum in Support of Motion to Dismiss Counterclaim, March 3, 1993, p. 2). Gurr's counterclaims, naming EFCU, therefore directly implicate NCUA. NCUA can now file a motion to be substituted for EFCU as the real party in interest. NCUA may also, if it so desires, file a notice of removal to federal district court. The time limit for removal is 30 days, and this clock begins ticking when NCUA formally intervenes and becomes a party of record, a process that may be initiated by either party. See Savoy v. White, 753 F. Supp. 412 (D. Mass 1990); Putnam v. DeRosa, 963 F.2d 480, 483 (1st Cir. 1992). However, EFCU may not dismiss Gurr's claims on this basis, as NCUA is indeed a party to this action.
We turn next to EFCU's motions to dismiss under T.C.R.C.P. Rule 12(b)(6)-that Gurr's counterclaims fail to state a claim upon which relief can be granted. Insofar as EFCU's objection to the counterclaims rests on the premise that Gurr's counterclaims are directed at the wrong party, it is denied. As we stated when addressing the motion to dismiss under Rule 12(b)(1), NCUA now stands in the shoes of EFCU.
We address separately the two remaining contentions making up Gurr's counterclaims. Both the counterclaims and the motions to dismiss them are fatally unsupported and imprecise.
In his first contention, Gurr states that the termination of his employment by NCUA was wrongful, and that this was a proximate cause of his failure to make the required payments.
12 U.S.C.S. § 1787(c)(1) states, in pertinent part:
In addition to any other rights ... the conservator ... for any insured credit union may disaffirm or repudiate any contract or lease—
(A) to which such credit union is a party;
(B) the performance of which the conservator ..., in the conservator's ... discretion, determines to be burdensome; and
*93(C) the ... repudiation of which the conservator ... determines, in the conservator's ... discretion, will promote the orderly administration of the credit union's affairs.
Later provisions of 12 U.S.C.S. § 1787(c) mandate that this repudiation must be within a reasonable period following the conservator's appointment. Gurr has not alleged that his termination was untimely, choosing instead to challenge it on other grounds.
It is clear from this section that Gurr did not have an unqualified right to maintain his employment. Indeed, the law plainly states that NCUA, as EFCU's conservator, has a legal right to repudiate his type of contract. While Gurr has a right to challenge his termination under 12 U.S.C.S. § 1787(c)(3), the possible success of his challenge on those grounds does not provide an excuse for his failure to make required mortgage payments. Gurr's obligation to EFCU is not vacated even if he successfully challenges his termination of employment.
However, we are unable to glean from the pleadings what Gurr may assert when challenging his dismissal, or if he may have a valid claim. We are also unable to dismiss his counterclaims at the present time, as EFCU has forwarded nothing on which we can base such a ruling. Therefore, the motions to dismiss the counterclaims on this aspect of T.C.R.C.P. Rule 12(b)(6) are denied.3
We now turn to the second basis on which the counterclaims rest — that Gurr was prevented from making timely mortgage payments by EFCU's wrongful rejection of checks he had in his possession at the time he was terminated. Gurr states that these checks were for compensatory time-off that Gurr had not taken, past wages, and his EFCU shares. EFCU claims that there were five such checks and that they, were for accrued compensatory time-off, accrued vacation time, accrued sick leave, and for FICA and American Samoa income tax withholdings. EFCU also states that Gurr was in default prior to these actions and therefore, even if these acts are wrongful, they have no bearing on Gurr's failures to make the *94required payments. Specifically, EFCU states that Gurr had become delinquent, at least as to the notes secured by the vehicle, loan and home, by May 1993. Although EFCU catalogues payments on these notes made by Gurr between May and September 1993, it states in its memorandum in support of the motions to dismiss the counterclaims that these payments did not cure Gurr's delinquencies, and that he remained in default throughout this period. Nowhere does Gurr actually refute the assertion that these defaults had occurred prior to the alleged wrongful stop payments on the checks in question.
We note that "great specificity is ordinarily not required to survive a Rule 12(b)(6) motion." Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 17 (1st Cir. 1992). Moreover, we are again faced with the problem that neither Gurr nor EFCU has asserted enough facts, or any law, for us to rule with assurance on the matter one way or another. Therefore, the motion to dismiss the counterclaims on this aspect . of T.C.R.C.P. Rule 12(b)(6) is also denied. See Chi Shun Hua Steel Co., Ltd. v. Crest Tankers, Inc., 708 F. Supp. 18 (D.N.H. 1989); State of Or. v. City of Rajneeshpuram, 598 F. Supp. 1208 (D. Or. 1984); Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.Y. 1984); Williams v. Gorton, 529 F.2d 668 (9th Cir. 1976). ■
We last address EFCU's motions to dismiss under T.C.R.C.P. Rule 12(b). Here EFCU urges dismissal because Gurr has already asserted identical counterclaims against NCUA in CA No. 117-93, (NCUA v. Gurr, et. al.). In CA No. 117-93, NCUA applied for permanent injunctive relief against defendants named in that action. A default judgment granting permanent injunctive relief against all these defendants, except Gurr, was entered on January 10, 1994. On January 5, 1994, Gurr answered and counterclaimed, alleging that he was illegally removed from his position and that checks in his possession were wrongfully denied payment. Gurr also alleges injury to his reputation and requests damages and reinstatement.
It appears that the counterclaims advanced by Gurr are the same in both CA No. 117-93 and in the cases before us. Although the causes of action are not as identical, we are mindful of the possible waste of judicial time and resources that often springs from repetitive litigation. Both the suit in CA No. 117-93 and the ones before us are essentially based on the same transaction. Additionally, Gurr has forwarded identical counterclaims in all suits.' Therefore, we now consolidate CA No. 117-93 with the cases before us, in order to more expeditiously resolve this matter. See I.A. Durbin, Inc. v. Jefferson Nat. Bank, 793 F.2d 1541 (11th Cir. 1986); *95Walton v. Eaton, 563 F.2d 66 (3rd Cir. 1977).
In addition, this same underlying transaction is also the basis of another suit presently pending before this court, LT No. 13-94. In the interest of addressing this matter in full, we also now consolidate LT No. 13-94 with the cases before us, in order to resolve this matter properly.
In conclusion, we invite further documented and supported submissions that may enable the court to dispose of this matter, or portions of it, in a manner a more expeditious than trial.
It is so ordered.
Like its federal counterpart, T.C.R.C.P. Rule 12 makes no provision for converting a motion to dismiss under 12(b)(1) into a summary judgment motion.
Although we clearly feel that this is the best, and most substantiated, view, we acknowledge that some courts have decided the question in various ways. For a brief overview see Gilbert v. City of Cambridge, 932 F.2d 51, 60 (n.11) (1st Cir. 1991).
Additionally, the conservator's liability for repudiating any contract pursuant to 12 U.S.C.S. § 1787(c)(1) is limited to actual direct compensatory damages as of (1) the date of the conservator's appointment or (2) the date of repudiation of the contract. Section (c)(3)(B) makes it clear that actual direct compensatory damages do not include punitive damages or damages for pain and suffering. Therefore, even assuming Gurr's counterclaims are upheld, his demand for damages related to injury to reputation would be baseless. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486239/ | Order Denying Motion for Reconsideration or New Trial:
.This dispute centers on insurance policy number XCF001/70019414 ("the policy") issued to Sosene and Moli Asifoa ("the Asifoas") for a consideration of $475.00 by National Pacific Insurance Co. Ltd. ("NPI") in March, 1991. While the parties have settled on the amount dup from NPI as regards damage to the building sustained from Hurricane Val in 1991, there remains a dispute as to the actual coverage of the aforesaid policy. In opposing motions for summary judgment, the Asifoas maintained the policy insured the Asifoas building and contents, and NPI contended that no coverage for the contents of the insured structure was obtained.
In an order issued on April 25, 1994, this court denied NPI's motion for summary judgment and granted the Asifoas' cross-motion. Finding a conflict between the body of the contract and the endorsement, the pourt held that the endorsement prevailed. This resolved any ambiguities, and the court was able to decide the issue as a matter of law.
*100Subsequently, NPI' submitted a motion for reconsideration or new trial. The motion came regularly for hearing on June 13, 1994. Both parties were represented by counsel.
NPI contends the court erred in finding a conflict between the wording in the body of the contract and the wording in the endorsement. It is NPI's position that the purpose of the endorsement was merely to set forth (he various perils that the contract covered. NPI asserts that the body of the contract should have prevailed, and that if the dispute was resolved as a matter of law, it should have been in favor of NPI.
We are unable to, agree with-tyPI's position on this matter, As stated in our order on the summary judgment motjons, the policy at issue is to be read from the viewpoint óf a layperson. State Farm Mutual Automobile Ins. Co. v. O'Brien, 535 P.2d 46, 48 (Ct. App. Ariz. 1975). This policy, so read, reveals a conflict between the endorsement and the body of the policy. A resolution of this conflict, properly in favor of the endorsement, leaves no ambiguity. See B.L. Ivey Construction Co. v. Pilot Fire and Casualty Co., 295 F. Supp. 840, 848 (N.D. Ga. 1968); Fireman's Fund Insurance Co. v. Reliance Insurance Co., 291 F. Supp. 618, 620 (D. Or. 1968). The policy is then properly construed, as a matter of law, in favor of the Asifoas.
Contrary to NPI's, assertions, we cannot inquire into the intent of either party unless the policy is ambiguous. See Kline v. The Kemper Group, 826 F. Supp. 123, 127 (M.D. Pa. 1993); Kinnon v. Universal Underwriters Ins. Co., 418 So.2d 887, 888 (Ala. 1982). In this case, it is not. For the reasons given, NPI'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/8486240/ | Decision and Order:
This outstanding njatter originated in the Territorial Registrar’s Office on July 10, 1989, when claimant Uiva Te'o, hereafter "Uiva," filed his succession claim to the matai title Te'o attached to the village of Pago Pago, apparently after failing to secure family endorsement to his attempts to have one of his sons installed as the matai. Mutia Te'o, hereafter "Mutia," and Puia'i Túfele, hereafter "Puia'i," subsequently filed their respective objections/counterclaims. For various reasons, including the *102unavailability and turnover of counsel, and one stipulated continuance for a period of six months owing to Uiva's extended illness, the matter finally came on for trial on June 16, 1994. Uiva's counsel moved on the day of trial lor yet a further continuance, owing to his client's continuing illness. The motion was denied and trial proceeded without the presence of claimant.
In matai title disputes,' the court shall.be guided by the four consideration1; set out in A.S.C.A. § 1.0409(c), in the priority listed. These are (1) the best hereditary right to the title; (2) the "wish of the majority or plurality of those clans of the family as customary in that family"; (3) forcefulness, character, personality, and knowledge of Samoan custom; and (4) value to the family, village, and country. With regard to these criteria, the court makes the following findings and conclusions:
1. Best Hereditary Right
There was no dispute that all three candidates are blood members of the Te'o family of the village of Pago Pago. Each candidate calculated his degree of hereditary entitlement under the traditional formula, that is, descent line to the nearest titleholder in his genealogy. Mutia stated his degree of hereditary right to be 50% in that his father, Te'o Falepopo, was a previous titleholder; Uiva Te'o traced his descent to Te'o Fua'au, his grandfather, which thus gives him a 25% degree of hereditary right; Puia'i Túfele traced'his descent to Te'o Mutiatai, his great, great grandfather, and thus stated his degree of hereditary right to be 6.25%. We conclude that Mutia prevails on this consideration. :
2. Wish of the Majority or Plurality of the Clans
Under this heading, the court is directed to inquire into "the wish of the majority or plurality of those clans as customary in that family." See A.S.C.A. § 1.0409(c)(2). The preponderance of the evidence points to the contemporary family practice of recognizing only two clans; namely, the Si'itia or Manuma clqn, and the Falepopo clan. Puia'i is a member of the former while Uiva and Mutia are members of the latter. While Puia'i's candidacy is supported by his side of the family, the Si'itia or Manuma clan, the Falepopo clan's support is split between its candidates Uiva and Mutia. In these circumstances, all that can be said on this criterion is .that the. Te'o family is divided on the issue of a titleholder since no one candidate can• be said to command support of the. "majority" of the family's customary clans. We therefore conclude that no .candidate *103prevails on this consideration
3.. Forcefulness. Character .and Personality, and Knowledge of ■Samoan Customs
Although Uka has resided largely outside the village of Pago Pago., he has, .as with Mutia and Puia'i, played his expected.part jn significant family fa' alavelave. Uka has been able to call on .the fruits of his sons’ industry to meet all important family obligations. His absence at trial, however., has necessarily precluded in-court .observation of -such .qualities as "demeanor, personality, presence of mind, the clarity speed and -correctness with which the answers were given, the self-confidence and other .qualities reflected from sppech and behavior," which go towards the issue of forcefulness and personality. See Reid v. Talalele, 4 A.S.R. 458, 463-64, (Land and Titles Div. 1964). At ¡the same time, U-iva’s absenpe has also precluded first-hand opportunity for -the judges to assess his knowledge of .Samoan customs. Finally, Uka’s poor health and advanced age, 88 years, also, weigh ¡against Kim-on this consideration. See Tuinei v. Ieliko, 2 A.S.R. 117 (Land and Titles Div. 1940).
Except for educational pursuits, .and occasional off-island visits by Mutia to visit his children, Mutia and Puia'i have hoth spent most of their lives residing in Pago Pago on Te'q family property. They have each proven to be enterprising and industrious individuals .and .are both economically •splf-secure. Mutia is 73 years .of age and proudly boasts to being the father of 20 children--one of whom was a Vietnam casualty whose memory is honored by the U.S. Army’s naming of its reserve compound ■in Tafuna after him. At a time when opportunities were limited, Mutia nonetheless managed to further his education off-island and eventually trained as ,a refrigeration ¡and electrical technician. His varied career life included a stint with the naval government -library as -well as a number of years as a -commercial fisherman-where he gained a reputation as a •skillful seaman as borne -out by the U.S. Navy's commendation of his ■successful .rescue of a number of naval personnel who were swept out to sea in a -storm. Mutia’s .present day source of income are a number of rental houses.
Puia'i, like Mutia, has also built up a number of rpntal properties in Pago Pago; he has -in .addition commercial tenants. After Marist Brothers' School in Atu'u, -Puia'icompleted high school in Hawaii. His career life has included -service with the Department of Education, the Department of Public Safety, and operation of a grocery store until he and his wife ventured into real .estate.
*104Under this heading, we rate Mutia and Puia'i equal on this consideration but ahead of Uiva.
4. Value to Family. Village, and Country
On this issue, we-also find Uiva behind Mutia and Puia'i'because of ill-health and advanced age. As between Mutia arid Puia'i, we find both candidates to be about equal with respect to value to village and country, however, we rate Mutia slightly ahead of Puia'i on family value considerations. The Te'o family has been without a sa'o for several years now; Mutia, who holds the Te'o family's lesser matai title "Mutia," is the only Te'o family matai at present, Thus, Mutia has necessarily had to fill in for the sa'o in terms of the family's relationship to village and county. Furthermore, Mutia is the only candidate with standing as a matái; he has held the Mutia title for 32 yéars. Although Puia'i has given invaluable service to the family as an untifled man and has shown great- leadership potential, Mutia, in our view, with longstanding matai recognition wifhin the village, is more experienced and better qualified to lead the family.
On the foregoing, we conclude that Mutia should be registered the next holder of the matai title Te'o since he prevails over Puia'i on the first and fourth statutory criteria, and over Uiva on the first, third, and fourth statutory criteria. The Territorial Registrar shall accordingly register the Te'o title from the village of Pago Pago in candidate Mutia Te'o, 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/8486241/ | Order onf Petition for Termination-:
The petitioners-are a non-Samoan couple who have been uhshccessful in their efforts to have a- child and are' desirous- of adopting a child; petitioners are currently residing in the territory by reason of short term duty assignment with the federal góvernment; petitioners iritend to return to the United States after completion of- tour duty in American Samoa; through the efforts of op-island friends, petitioners obtained physical custody of a then six month old Samoan baby who was bprn in Western Samoa pf Western Sarhoan domiciled parents; the child has been in the care and custody of petitioners for a period of six months now and petitioners seek to terminate the legal relationship between the child and his natural parents in order that the child be made available for adoption; although one of the natural parents' was on-i'sland on the day before the hearing of this petition, neither natural parent appeared; while the Office of- Child Protective Services has undertaken a home study on the petitioners, the court has learned absolutely nothing on the child's natural circumstances, save hearsay accounts of one of the petitioners that the natural parents have willing surrendered the child and that they are. financial incapable of providing for the minor.
In these circumstances, we decline to exercise jurisdiction. The Western Samoan courts are the courts of domicile and have a more substantial interest ip the minor's welfare. Furthermore, the Western *106Samoan courts are in a better position to, meaningfully assess the child's natural circumstances end, therefore, judge whether it is in his best interests and welfare to sever his legal relationship to his parents.
The petition is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486242/ | Order Denying Motion for Partial Summary Judgment:
The motion now before this court is for partial summary judgment, brought by defendants/cross-defendants Cigna Property and Casualty Company ("Cigna"), against defendant/cross-claimant Marty Duchnak ("Duchnak"). For the reasons detailed below we deny Cigna's motion.
Summary judgment, in whole or in part, is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. Rule 56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 369 U.S. 654 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (1987).
The original complaint in this matter was filed by Plaza Department Store ("Plaza") on February 19, 1991. The motion to intervene was granted to Lumana'i Development Corp. ("LDC") on September 19, 1991.
The genesis of this case is a fire that broke out in Plaza's section of LDC's warehouse in the Tafuna Industrial Park, at about 5 p.m. on September 19, 1990. The exact cause of the blaze has not yet been determined. For some time prior to the start of the fire, Ducimak and several of his workmen had been conducting repairs on this warehouse. Duchnak was *108then carrying a general liability insurance policy with Cigna.1 It is this policy that i~ the subject of the partial summary judgment motion now before us.
Cigna brought this motion claiming that Duchnak' s policy had a general liability limit of $100,000. Cigna states that when Duchnak obtained his first policy with Cigna, Duchnak purchased general liability insurance with a $100,000 limit. That policy allowed Duchnak coverage of $1,000,000 only for the work Duchnak was then performing for the VCS Samoa Packing Company ("SAMPAC"). When this insurance policy expired, its renewal, after a lapse, was not handled by Duchnak but by Bill Maxey (`Maxey"), a third party who had then hired Ducimak to perform construction work. Cigna states that this renewed policy, like its predecessor, had a general liability limit of $100,000. This renewed policy also provided Duchnak with $1,000,000 in contingent automobile liability coverage, an increase that was not requested but was provided according to standard practices at Cigna's home office.
in opposition to Cigna's motion, Plaza and LDC state that Duchnak originally sought $1,000,000 in general coverage and the $100,000 limit in Duchnak's first insurance policy with Cigna was due to error on Cigna's part. Plaza and LDC state that Maxey also sought $1,000,000 coverage for Ducimak and that Cigna mistakenly assigned the request of $1,000,000 to automobile liability coverage that was neither sought nor desired.
An insurance policy is a contract, and the same rules of construction applicable to other contracts are applicable to insurance policies. Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437, 439 (8th Cir. 1986) cert. den'd 94 L.Ed.2d 761 (1987) citing 2 Couch, Cyclopedia of Insurance Law § 15:1, 15:3 (2nd Ed. 1984).
While a court may inquire into the circumstances surrounding an insurance policy if that policy is found to be ambiguous, Allstate Ins. Co. v. Ellison, 757 F.2d 1042 (9th Cir. 1985), Plaza, LDC and Duchnak have not contended that the policy at issue is ambiguous. We agree.2 *109However, Plaza and LDC assert that this policy is subject to reformation on the basis of mutual mistake, as the policy does not express the true agreement of the parties.
Reformation involves rewriting a contract in order to reflect the actual intent of both parties, and an insurance contract may be reformed after a loss has occurred. Rolane Sportswear, Inc. v. United States Fidelity & G. Co., 407 F.2d 1091, 1096 (6th Cir. 1969). Reformation is not appropriate to enforce terms to which the defendant never assented, but is used only to correct a mistake in writing to conform to the actual agreement of the parties. Watson v. United States Fidelity and Guaranty Co., 427 F.2d 1355, 1357 (9th Cir. 1970).
Reformation is an extraordinary remedy, and courts have in general exercised it with caution. Mutual of Omaha Insurance Company v. Russell, 402 F.2d 339, 344 (10th Cir. 1969) cert den'd 394 US 973 753 (1969). However, courts have reformed insurance contracts in regard to the amount of coverage provided. Johnson v. United Investors Life Ins. Co., 263 N.W.2d 770 (Spme. Ct. Ia. 1978).
In the case before us, Maxey asserts that he asked Cigna to provide a policy for Duchnak in the amount of $1,000,000 and that Cigna's representative Rick Petri ("Petri") agreed to this request. LDC and Plaza question Cigna's assertion that the $1,000,000 limit for automobile liability was standard procedure, and point out that this change contradicts Cigna's claim that Duchnak's policy was to be renewed without changes, save for the deletion of the $1,000,000 coverage for work at SAMP AC.
Additionally, LDC and Plaza submit the affidavit of Arnold Carter, branch manager for National Pacific Insurance, stating that Duchnak's premium of $3,000, a significant increase over the previous years policy premium, would have led a reasonable person to conclude that the coverage obtained was for $1,000,000. They also assert that Duchnak's failure to read the policy does not bar reformation.
Cigna has correctly pointed out that the right to reformation of a contract must be proven by clear and convincing evidence. However, this is a summary judgment motion and at this stage of the proceedings, we are obliged to view the pleadings and supporting papers in the light most favorable to Duchnak. All parties have presented reasonable arguments in favor of their respective positions, and differ most glaringly on the factual issues. This case presents several disputes that cannot properly be ruled on at this point. In fact, this is precisely the type of dispute that, *110ordinarily, should not be resolved summarily.
Therefore, the motion for partial summary judgment is denied.
It is so ordered.
This policy was originally procured by Duchnak to cover the 1988-1989 year. The insurance policy at issue is the renewed policy for the 1989-1990 year.
In Duchnak's brief memorandum in opposition to Cigna's motion for partial summary judgment, Duchnak states he is asserting a combination of mutual mistake and ambiguity. However, the language utilized, and facts presented, support only a defense of mutual mistake. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486243/ | Order on Motion to Admit Evidence of Prior Conduct:
The government seeks to admit three previous incidents from the *111defendant's past. These include a conviction for trespassing, a conviction for burglary/assault/attempted rape, and a "peeping" incident that involved no conviction. The government seeks to admit these acts as evidence of the defendants identity. In these matters we look to the probative worth of the offered evidence against the dangers of unfair prejudice, confusion of the issues, and misleading the jury.
In the case before us, the offered evidence certainly has probative value, however, its value speaks more to defendant's proclivity to commit crimes in general, rather than his participation in the crime at hand. This speaks to defendant's character, and has a high probability of instigating the jury to convict because defendant "is a bad person" - an unallowable inference. This holds true even though the prior crimes show propensity to commit crimes of a particular class, rather than in general. See People v. Alcala, 685 P.2d 1126 (Cal. 1984).
Here the government asserts that there are enough commonalities between the current charged offense and the prior acts. We disagree. The three prior incidents occurred
in the Tafuna ASG Housing complex. While the latest incident occurred close to this complex, this geographical proximity is not enough to admit the evidence. Additionally, the bulk of the other similarities forwarded by the government are qualities shared by many would-be rapists. The fact that an attacker is wearing little or no clothing, at night, carrying a weapon and targeting women, is a description that does not take this defendant out of the "general class" of those prone to commit such crimes. Instead of going to the modus operandi/identity of this particular defendant, such evidence tends only to mark him as one of an undesirable, unremarkable sub-class, a distinction that would have a prejudicial effect and tend to mislead the jury. See People v. Rivera, 710 P.2d 362 (Cal. 1985).
Another factor to be considered is the length of time between the prior crimes and acts and the incident at hand. Although evidence that would otherwise fall under this exception may be admitted even though it occurred some time ago, the incidents at issue here are not probative enough to overcome this barrier. See Paulson v. State, 393 N.E.2d 211 (Ind. 1979).
The government's contention that this evidence is "critical to their case" is unpersuasive. The government has the complainant's identification already ruled admissible by this court. Admitting these prior acts, that on balance are more prejudicial than probative, would serve only as cumulative evidence.
*112Therefore, the motion to admit prior crimes, wrongs or acts should be denied for the reasons detailed above.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486244/ | Decision and Order:
The plaintiffs, nationals of Papua New Guinea, initially met the defendants Su'a and Starr Schuster in September 1991, while the latter were attending the South Pacific Games in Port Moresby, Papua New Guinea. At !;he *113time, plaintiffs were working as domestics at the hotel where the Schusters were staying. The evidence1 conflicts as to who first approached whom; but in the course of their contacts, plaintiffs and the Schusters befriended each another, and their encounters eventually led to the idea of plaintiffs' returning with the Schusters to American Samoa. The Schusters then somehow managed to hastily arrange entry permits for the plaintiffs, who accompanied the Schusters on their return to American Samoa, with the rest of the territory's South Pacific Games contingent.
The only clear understanding among the parties that may be gathered from the evidence was that plaintiffs would live with the Schusters who would be responsible for their care; that plaintiffs would be expected to do household chores; that the arrangement would be for a period of one year, to see how things worked out; and that the Schusters would from time to time provide plaintiffs with money for personal use.
Upon arrival, the Schusters immediately had to depart the territory again for a family fa'alavelave on the mainland. Mrs. Schuster arranged with relatives to house-sit with plaintiffs until the Schusters' return. It seems, however, that plaintiffs soon became very homesick; they were on the telephone almost daily to Papua New Guinea. The Schusters were later startled to discover that their telephone bill for the months of November and December 1991 included nearly $4,000 in telephone calls to Papua New Guinea.
Plaintiffs' duties were initially confined to chores around the family home; however, these duties left plaintiffs with a lot of spare time on their hands. So, they were subsequently instructed by Mrs. Schuster to help out with the family video-rental shop, which was being operated by her daughter, and a lunch wagon, which was being run by her son, defendant Glen Schuster. Work at the video shop and lunch wagon was periodic. This was brought about in part by the Schuster children's need for assistance, in part by their need for baby-care help, and in part by the plaintiffs' desire, which was expressed to Mrs. Schuster, to get out of the house. Plaintiffs became increasingly disenchanted with their Samoan sojourn and they soon wanted to be returned home. Mrs. Schuster, on the other hand, told plaintiffs to arrange for their own passage if they wanted to return home early. Relations soured, and plaintiffs, eventually defiant, left the *114Schuster household and filed suit seeking compensation and punitive damages. The Schusters responded by withdrawing their immigration sponsorship, which in turn gave rise to deportation proceedings and the issuance of a deportation order by the immigration authorities. Plaintiffs successfully appealed the deportation order. See Farapo v. American Samoa Government, 23 A.S.R.2d 136 (App. Div. 1993). However, they subsequently decided to depart the territory, which they did at the expense of the Schusters, who as sponsors were ultimately responsible for plaintiffs' return passage.2
Plaintiffs' claim to compensation are based on the contention that the parties had concluded an employment contract. Alternatively, plaintiffs pose a "quasi" employment contract with the Schusters, as "may be imposed under terms the court finds appropriate to secure just restitution to the aggrieved parties for services performed." Plaintiffs' Closing Arguments and Memorandum, at 6.
The evidence does not, in our view, bear out plaintiffs' contract claims. While initially attempting to analyze the evidence in terms of "offer" and "acceptance," plaintiffs readily concede that "the express contract analysis might be . . . stretch[ing] credulity a bit." Plaintiffs' Closing Arguments and Memorandum, at 7. As to an implied contract, we note that plaintiffs' evidence with regard to the issue of employment with the Schusters is not consistent. While Lilly Paumbari, who was introduced to the Schusters by Olive Farapo, deposed that she was recruited by the Schusters for hire, Olive Farapo's and Tekura Alu's depositions tend to support the Schusters' position that their discussions with plaintiffs contemplated a familial-like setup; that is, plaintiffs would live within the Schusters' household, and the latter would care for them as family members. At the same time, the evidence also suggests that plaintiffs' real motivation to leave home and travel to American Samoa was more the result of an impulsive sense of adventure, that unfortunately did not pan out as imagined, rather than prospective employment with the Schusters. Olive Farapo, for example, was keen "to see the country place" and find similar work with a hotel in American Samoa; she responded on cross-examination that Mrs. Schuster did not offer employment nor was Mrs. Schuster made aware of her expectations for hotel-type work in American Samoa. As noted above, plaintiffs very early developed a severe case of homesickness, and their desire to return home much sooner than expected bears out the impulsive nature of their decision to venture away from home in the first place. *115Thus, plaintiffs' contention that an employment contract may be "implied" is likewise without foundation. The evidence simply fails to sustain the desired inference.
Absent a contract-in-fact, plaintiffs alternatively argue a "quasi-contract" theory of liability. Unlike the situation with contracts-in-fact, express or implied, in which liability is based on the apparent intentions of the parties, liability under a quasi-contract theory is implied-in-law by the equitable principle against unjust enrichment. See Schott v. Westinghouse Electric Corporation, 259 A.2d 443 (Pa. 1969). That is:
[i]n quasi-contracts the obligation arises, not from consent of the parties as in the case of contracts expressed or implied in fact, but from the law of natural immutable justice and equity. Where a case shows that it is the duty of the defendant to pay, the law imputes to him a promise to fulfill that obligation. The duty, which forms the foundation of a quasi-contractual obligation, is frequently based on the doctrine of unjust enrichment.
66 Am. Jur. 2d, Restitution and Implied Contracts, § 2, at 943-944 (1973 & Supp. 1993). Thus, plaintiffs are here seeking restitution for services rendered on the claim that the Schusters were unjustly enriched by the value of those services. Nevertheless, this unjust enrichment claim is also unsupported by the evidence.
When an individual lives as a member of a family's household, a presumption arises that the services for which compensation is sought were rendered gratuitously. This is true even when persons living in the same household are not related by blood or affinity. Peoples Nat’l Bank v. Cohn, 110 S.W.2d 42, 45 (Ark. 1937) (stating that, conversely, even close relatives may receive compensation for services if such an agreement actually existed); Wells v. Goff, 239 S.W.2d 301, 303-04 (Mo. 1951) ("Kinship in any degree ... are [sic] not necessarily essential to the establishment of a family relation," which precludes compensation in the absence of an express or implied contract.). When a claimant has provided housekeeping services, courts have considered a claimant's dependence on the services' recipient for support in raising the presumption that the services were rendered gratuitously. Courts have also considered factors such as the legal or moral obligation of a service's recipient to support a claimant and the loyalty, mutual respect, and devotion existing between the parties. Annotation, Establishment of "Family" Relationship to Raise Presumption that Services Were Rendered *116Gratuitously, as Between Persons Living in Same Household but not Related by Blood or Affinity, 92 A.L.R.3d 726, 731, 745, 754 (1979 & Supp. 1991). See, e.g., Smith v. Riedele, 213 P. 281 (Cal. App. 1923) (no implied payment contract was found when claimant lived and ate his meals in respondent's household, never paid for room or board, and occasionally received gifts of clothing and money); Manning v. Driscoll's Estate, 174 S.W.2d 921, 924 (Mo. App. 1943) (a family relationship existed when a woman did household work, a man provided rent money and paid expenses, both persons invited friends and relatives to visit and have meals, and neither kept records of services rendered or expenses paid); Arns v. Disser, 178 N.E. 27, 28 (Ohio App. 1931) (a man who lived in a family and did household work was not entitled to compensation, as a court will not imply an obligation to pay for services performed by a family member).
In short, restitutionary claims under the quasi-contract theory do not apply to family situations. What the evidence here discloses is essentially a familial setup-the widespread practice of extending a Samoan household beyond its immediate family members. Thus, a claim of unjust enrichment is inconsistent with this context. Plaintiffs resided in the Schusters' household and did not pay for room or board. While living there, plaintiffs performed household chores and worked in family businesses. Additionally, plaintiffs occasionally received money for personal use.
On their claim for punitive damages, plaintiffs essentially argue that there is a need to deter exploitation of people like the plaintiffs by those of "influence," such as the Schusters, who are able to "abuse both the territory's immigration process and . . . wage and hour laws." Plaintiffs' Closing Arguments and Memorandum, at 12. We see no basis in fact for this claim and similarly deny the same.
In conclusion, the evidence presented failed to show the existence of an employment contract. Furthermore, plaintiffs are not entitled to compensation on a quasi-contract theory, having failed to present evidence sufficient to overcome the presumption of gratuitous service by family members. Similarly, plaintiffs' punitive-damage claim is baseless. Therefore, this court's decision is rendered in favor of the defendants. Judgment shall enter accordingly.
It is so ordered.
The evidence here included transcripts of depositions of plaintiffs, moved onto the record without objection from the defendants, who had already left the territory by the time of trial.
See A.S.C.A. § 41.0408(e). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486248/ | Order Denying in Part and Granting in part Motion to Dismiss :
Presently, we have before us defendants' motion to dismiss plaintiffs' amended complaint. First, we will briefly state the history of this case.
HISTORY
In March 1994, defendant A.P. Lutali, the Governor of American Samoa ("the Governor"), announced his plan to effectuate salary step increases ("step increases") to American Samoa Government ("Government") career service employees so entitled. These employees had not received such increments between 1989-1991, due to a freeze by gubernatorial executive order, and the Governor proposed bringing these salaries to the levels where they would have been had the step increases become operative throughout those years.
In response, plaintiff Letuli Toloa, the President of the Senate ("the President"), expressed concern that the proposed step increases were not funded through the proper legislative channels and, therefore, could not be lawfully implemented.
On March 4, 1994, the President filed this action and obtained a temporary restraining order. Defendants stipulated to a preliminary injunction. On June 14, 1994, plaintiffs submitted the amended complaint at issue, which added the names of Senators Tuilefano Vaela'a and Tuana'itau Tuia as plaintiffs. The amended complaint also asserted that defendants had authorized the disbursement of funds for the payment of the Government's "past due debts," without proper legislative appropriation.
*127Despite attempts to reconcile their two positions, the parties before us have been unable to reach a definitive resolution of the issues, and trial is scheduled for September 2, 1994.
Defendants raised several points in the motion to dismiss, and we will address each of them in turn.
THE AUTHORITY OF THE SENATE
Defendants allege that plaintiffs lack the legal capacity to sue, and that the individual plaintiffs as Senators cannot represent the Senate and lack the necessary standing to sue.
In support of the proposition that plaintiffs cannot sue, defendants point out that neither the Revised Constitution of American Samoa nor any applicable statutes specifically invest the Senate, or the Senators, with the capacity to sue.
The ability of the House or Senate to maintain a suit against the executive branch is, in the proper circumstances, beyond question. This court has previously entertained such suits. See House of Representatives v. Coleman & Tago, CA No. 38-89 (Trial Div. 1989); House of Representatives v. Coleman, CA No. 93-83 (Trial Div. 1983). Additionally, the federal courts have also held that either house of Congress has the capacity and the standing in suits seeking to protect its lawmaking powers. See Barnes v. Kline, 759 F.2d 21, 26 (D.C. Cir. 1985); Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir. 1979). The suit presently before us involves the protection of just such powers, and the Senate has the requisite standing in its own capacity. In Baker v. Carr, 7 L. Ed.2d 663, 678 (1962), the Supreme Court stated that the test for standing was whether or not the appellants "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . . ." U.S. Senators have also been found to have enough of a personal stake to achieve standing to maintain a suit in their individual capacity.
In Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), an individual senator was found to have standing to sue for a declaratory judgment. The court noted that as the subject of the suit was "legislative power," the individual senator's stake in the controversy was to vindicate the effectiveness of his vote. "No more essential interest could be asserted by a legislator." Kennedy v. Sampson, 511 F.2d at 436.
*128Other cases have also found that one or more legislators interest in maintaining the effectiveness.of their votes is sufficient to give them the capacity and standing to sue. See Coleman v. Miller, 307 U.S. 433, 438 (1939) ("The complaining senators ... have a plain, direct and adequate interest in maintaining the effectiveness of their votes."); Pressler v. Simon, 428 F. Supp. 302, 304 (D.C.D.C. 1976) ("A [single] Congressman has standing to sue by virtue of his office where Executive action has impaired the efficacy of his vote").
The case before us has obvious similarities to those cited. Three Senators have alleged that the executive branch of the Government has overstepped its bounds and attempted to usurp legislative power. The Senators are, therefore, seeking to maintain not only the power of their votes but also a proper definition of the separation of powers in the context of this case. "(W)hen the assertion of authority by one branch interferes with the claim of institutional independence by another branch, it becomes the province and duty of the Judiciary to define the respective spheres of power." U.S. v. Brainer, 515 F. Supp. 627, 630 (D.C. Md. 1981). It is beyond dispute that the Senators have the right, in this type of situation, to maintain such a suit.
Defendants' motion to dismiss on the grounds of either lack of capacity to sue or lack of senatorial standing is denied.
THE TAXPAYERS STANDING
Defendants also challenge the right of the three individual plaintiffs to sue in their capacity as taxpayers. Defendants allege that in this context, these plaintiffs must show a special interest or injury, not common to the public at large, and that they have failed to do so. The individual plaintiffs assert that a direct link exists between the activities of the Government and the consequences of those activities to taxpayers, such that these plaintiffs as taxpayers will suffer a direct burden from the Governor's fiscal management techniques.
It is well established that it is not enough to qualify, for standing purposes, merely as a taxpayer. Citizens must actually prove damage to themselves different from the public generally. Knoxville Progressive Christian Coal. v. Testerman, 404 F. Supp. 783, 788 (E.D. Tenn. 1975) (agency action). A party must establish that the alleged conduct would result in a tax increase or cause other irreparable injury. Belford v. City of New Haven, 364 A.2d 194, 199 (Conn. 1975). This injury must be different than that endured by the citizenry en masse. Additionally, there *129must be a logical nexus between the alleged wrongful behavior and the harm suffered.
Here the individual plaintiffs claim that the Governor's actions have a direct effect on them as taxpayers. Because American Samoa is a relatively small place, they allege that individual tax payments are directly affected by discrete programs. They assert that an increased tax burden due to the Governor's actions is both more probable and more measurable than it might be in other, larger contexts.
Where individuals have sued as both legislators and taxpayers, courts have in general denied the latter. See Pressler v. Simon, 428 F. Supp. at 304. We agree. Although the individual plaintiffs have the requisite standing to sue as legislators, we do not find that they have adequately alleged that right as taxpayers. Indeed, American Samoa has a very small economy relative to other American jurisdictions, but this point does not save the individual plaintiffs' argument. They have not demonstrated links between the programs at issue and any consequential burden sufficient to set them apart from the public at large. Nor have they sufficiently demonstrated a resultant burden that they as taxpayers would incur due to the defendants’ actions.
Defendants' motion to dismiss on the ground of taxpayer standing issue is granted.
MOOTNESS
Defendants assert that the issue of the step increases is now moot, as the Governor has declared that he will not attempt to implement the increases in fiscal year 1994. However, we must disagree with defendants' position on this matter. A case becomes moot when the issues are no longer "live" or the parties lack a legally cognizable interest in the outcome. Murphy v. Hunt, 71 L. Ed.2d 353, 356 (1982) (per curiam); Tuscan Medical Center v. Sullivan, 947 F.2d 971, 977 (D.C. Cir. 1991).
The issue of effectuating salary step increases to career service employees so entitled is arguably moot. However, this case clearly falls into a long articulated exception to the mootness rule. This exception is primarily focused on cases that are "capable of repetition, yet evading review". Murphy v. Hunt, 71 L. Ed.2d at 357. In non-class actions, this exception is limited to cases where (1) a defendant terminates the challenged action before the issue is fully litigated, and (2) there is a reasonable expectation the plaintiff would be subject to the same actions *130in the future. "Reasonable expectation" must go beyond a theoretical possibility of repetition to the same plaintiff. However, the case is not rendered moot simply by the fact that the defendant has, at the moment, ceased the behavior at issue. See Delta Air Lines, Inc. v. Civil Aeronautics Bd., 674 F.2d 1 (D.C. Cir. 1982); Murphy v. Hunt, 71 L. Ed.2d at 357.
The legislative and executive branches of the Government have clashed before over what their respective spheres of funding power entail. We cannot say that the Governor's letter of June 27, 1994, clearly put the matter to rest once and for all — the remaining disagreements over the payment of past due debts, among other indicators, attest to that. In fact, the only factor tending to convince us that the step increase controversy is past is the fact that the Governor has voluntarily said that he will no longer proceed during fiscal year 1994. "A controversy still smolders when the defendant has voluntarily, but not necessarily permanently, ceased to engage in the allegedly wrongful conduct." Hooker Chem. Co., Ruco Div. v. U.S., Etc., 642 F.2d 48, 52 (3rd Cir. 1981) (cite omitted); see also City of Mesquite v. Aladdins Castle Inc., 71 L. Ed.2d 152, 159 (1982).
Because the issues in this case are clearly capable of repetition, yet may evade review, and because defendants ceased their allegedly wrongful conduct before the case could be fully litigated, and because there is a reasonable expectation that plaintiffs will be subjected to the same actions by defendants in the future, the motion for dismissal on the grounds of mootness is denied.
ADDITIONAL DEFENDANTS
Defendants assert that plaintiffs have failed to join a number of potentially necessary parties. Defendants claim that plaintiffs should have joined the Government career service employees who may be entitled to the salary step increases, the various Government vendors who may be owed past debts, and the House of Representatives of the Legislature of American Samoa. We begin with the Government employees.
Joinder is appropriate when the court is asked to adjudicate upon the rights of a party who is not presently before the court. Warner v. Pacific Tel. & Tel. Co., 263 P.2d 465, 467. In this case, the question before the court concerns the proper separation of powers between two branches of government. Regardless of the resolution of this dispute, the career service employees step increases may or may not be awarded. Their pecuniary interests in the step increases are not at the center of this *131lawsuit. What we have before us is a dispute over proper procedure. The career service employees most definitely do not need to be joined, and complete relief can be afforded the parties presently before us without their direct participation.1
The House of Representatives is, likewise, not a necessary party to this lawsuit. As discussed above under standing, the Senate has the capacity to independently sue the executive branch. This is true whether or not the House is designated a party or chooses to intervene.
The question of joining the various Government vendors who are owed past due debts is more questionable. Plaintiffs have not clearly indicated the individual vendors' significance in this suit, but it appears unlikely as of now that these vendors will be central, or necessary, to the trial. We will, however, reconsider the vendors' joinder, should their substantive creditor's rights become at issue.
The motion to dismiss for failure to name necessary parties is, at this time, denied in its entirety.
CONCLUSION
Defendants' motion to dismiss on the lack of the individual plaintiffs' standing as taxpayers is granted. Defendants' motion to dismiss on all other grounds is denied. Trial will proceed, as scheduled, on September 2, 1994.
It is so ordered.
Joinder of necessary parties is governed by T.C.R.C.P. Rule 19. Under this rule, a party is necessary if the disposition of the case would impair that parties' rights, or would subject a present party to inconsistent obligations. Neither situation is applicable in this case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486249/ | Order on Motion for Summary Judgment and Cross Motion to Dismiss:
*133This case concerns competing claims to a parcel of American Samoa Government ("ASG") owned land at the Pago Pago International Airport in Tafuna, American Samoa. This parcel was, all parties agree, leased to South Pacific International Airways, Inc. ("SPIA") by ASG in June 1977. With or without ASG acquiescence, SPIA transferred this lease in March 1985. SPIA then filed for Chapter 11 bankruptcy in 1985 and in 1986 ASG and SPIA amended the lease so as to mortgage it to National Pacific Insurance ("NPI"). At some point, SPIA's bankruptcy was changed from chapter 11 to chapter 7, and its' operations and assets were transferred to Trustee Richard Kennedy ("Trustee”). There is dispute over whether or not the Trustee assumed SPIA's obligations under the ASG lease, and if the property then reverted back to ASG. The parties do agree that ASG and Samoa Aviation Inc., dba Samoa Air ("SamAir") attempted to enter into a lease of the parcel in 1988. ASG then filed for recovery of the parcel against SamAir in CA No. 56-89. The court determined that ASG's lease with SamAir was a valid five-year lease.1 See American Samoa Government v. Samoa Aviation, Inc, 11 A.S.R.2d 144 (1989), rehearing denied 13 A.S.R.2d 65 (1989). Although this lease has ended, there is also a dispute between the parties as to the status of SamAir's use of the parcel, the validity and effect of various documents executed by George Wray ("Wray"), and the entitlements, if any, of SPIA. The parties have also faced each other in CA No. 49-89, where SamAir filed against ASG, Wray and South Pacific Island Airsystems ("Airsystems"). Although a preliminary injunction was stipulated to in May 1989 that case is still pending. In January 1994, ASG filed for declaratory relief in the instant matter, which is now before the court on a motion for summary judgment filed by SamAir. At the same time, Wray presented at oral argument a motion to dismiss on jurisdictional grounds on the basis of an affidavit given by the Governor Lutali's chief of staff which in effect contradicts, to counsel for ASG's bewilderment, factual allegations contained in ASG's complaint for declaratory relief. We address each issue in turn.
THE SUMMARY JUDGMENT MOTION
Defendant SamAir submitted a motion for summary judgment on July 20, 1994. In its motion, SamAir argues that the quitclaim deed signed by Wray on behalf of SPIA and Airsystems did not convey any real interest, as necessary approval from the Governor was never obtained. SamAir then asserts that any leasehold interest remained with SPIA at the time it *134filed for bankruptcy and that this lease was automatically dissolved, with all interests reverting back to ASG. Therefore Wray and Airsystems have no legal interest as a matter of law.
In response, Wray claims that there is a question of fact as to which chapter of the U.S. Bankruptcy Code SPIA was operating under when the Trustee took over. Wray also asserts that SamAir has no present interest in the parcel, that the Governor did approve in writing Airsystems entitlement as an assignee of SPIA's original lease, that SPIA's assignment to Airsystems was effective, and that the lease was reaffirmed by the parties. Wray asserts these mixed arguments of law and fact as evidence that summary judgment is inappropriate at this time.
Defendant Airsystems has also filed a response to the summary judgment motion, alleging that SamAir does not have the requisite standing to seek summary judgment. In addition, Airsystems contends that SamAir's interpretation of the applicable Bankruptcy Code chapter is erroneous, and whether or not the lease was terminated is a question of fact most properly determined at trial.
Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. Rule 56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 8 L. Ed.2d 176 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (1987). This burden on the moving party "may be discharged by ... pointing out ... that there is an absence of evidence to support the non-moving party's case." Bryant v. Southwest Marine of Samoa, Inc., CA No. 41-92 (1993), citing Celotex Corp. v. Catrett, 91 L. Ed.2d 265, 275 (1986).
Summary judgment is a drastic and final remedy that operates to deprive the non-moving jarties of their day in court. Examining this motion, we cannot say that there is no genuine issue of fact. Although the opponents to this motion present a non-differentiated mix of fact and law, their submissions, do rise to the level needed to defeat this particular motion. Whether or not the lease was terminated by the Trustee and, perhaps as importantly, whether or not the lease was reaffirmed, is an issue best not summarily resolved at this juncture. Additionally, the parties raise questions as to intent, an area generally not appropriate for summary judgment, as well as questions going to knowledge, timing, and *135control. See Cross v. United States, 336 F.2d 431 (2nd Cir. 1964). In short, the parties have raised enough factual issues to defeat SamAir’s submission. The motion for summary judgment is therefore denied.
THE JURISDICTIONAL ISSUE
At the hearing, Wray tendered an affidavit of Governor A.P. Lutali's Chief of Staff, Aleni Ripine ("Ripine"), dated August 25, 1994, the very day of the hearing. In this affidavit, Ripine deposes that the Governor has made no decision on whether or not to lease the parcel to SamAir and that the Governor has "expressed no intentions with respect to any leasehold matter on this property". (Affidavit of Aleni Ripine, August 25, 1994). At oral argument Wray alleged that the court has no jurisdiction to hear this case - that since the Governor had not decided to lease the parcel there was no longer any controversy to be decided. We disagree.
In the first instance, the submitted affidavit and its hearsay averments, as the basis of establishing jurisdictional facts, is inadmissible. (We also declined Airsystems request to call Wray to the stand to testify about Ripine's affidavit, and hence compound the hearsay problem.) After five years and three court cases we are unprepared to dismiss this action on the basis of an affidavit testifying to what Ripine reports the Governor's alleged intentions are. The difficulties with this type of submission are both too numerous and too obvious to be dealt with at any length.
Additionally, the case before us does present a case of actual controversy relating to the legal rights and duties of the respective parties, in accordance with A.S.C.A. § 43.1101. As stated in In re High Chief Title "Mauga", 4 A.S.R. 132, 135 (1974), the test generally applied in determining whether a case presents a justiciable issue which can serve as a basis for a declaratory judgment suit is "whether it is relatively certain that coercive litigation will eventually ensue between the same parties if a declaratory judgment is refused."
The plaintiff in this case is faced with the very real possibility of further litigation once it engages in any contemplated course of action. Additionally, this case presents us with a justiciable controversy touching on the parties adverse legal interests. In short, this suit fulfills the requirements of A.S.C.A. § 4.1101 and is exactly the type of controversy contemplated by that statute. The motion to dismiss on jurisdictional grounds is, therefore, denied.
It is so ordered.
Neither SPIA nor Mr. George Wray were parties to this action. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486730/ | OPINION AND ORDER
Before RICHMOND, Associate Justice, WALLACE,* Acting Associate Justice, MOLLWAY,** Acting Associate Justice, MAMEA, Associate Judge, SAGAPOLUTELE, Associate Judge.
introduction
Appellant Virginia L. Gibbons (“Gibbons”) came to American Samoa from the United States in 1989 on a contract to serve as an environmental attorney with American Samoa’s Attorney General. On February 16, 1992 she was attacked and sexually assaulted by Maosi Fuala'au, a prisoner who had escaped from the American Samoa Correctional Facility. Fuala'au had been previously convicted of sexual assault in the very housing complex in which Gibbons lived. Bringing no claim against Fuala'au, Gibbons sued the American Samoa Government (“ASO”) claiming that ASG had negligently allowed Fualaau to escape and that ASG’s negligence caused her injuries. Gibbons won at trial but appeals the damage award issued by the High Court of American Samoa, Trial Division (the “trial court”). We affirm.
Gibbons identifies two errors in the damage award. First, she says.the trial court erred in apportioning only a percentage of fault to ASG and in reducing her damage award against ASG accordingly. We disagree. The doctrine of joint and several liability has developed in the trial courts in this jurisdiction. Under the circumstances of this case, the trial court correctly abrogated that common law in a manner consistent with existing Samoan law.
*52The second error Gibbons assigns concerns the trial court’s reduction of her lost wage damages to account for taxes. We hold that the trial court properly took taxes into account in determining what Gibbons would actually have earned had she not been assaulted.
Analysis
A. The Trial ' Court Properly Apportioned the Damages Assessed Against ASG
The trial court found ASG one-third at fault and held ASG liable for only one-third of Gibbons’ total damages. This is the first time that an appeal to this court has squarely raised the issue of whether courts may apportion damages between or among joint tortfeasor defendants.1 In the absence of any appellate pronouncement on the subject, our trial courts have expressed their belief that, in their search for fairness, they may indeed apportion damages. See, e.g., Masania'i v. Tendrick, CA 121-95, slip op. (Trial Div. Jan. 9, 1995); Fiaui v. Faumuina, 27 A.S.R.2d 36 (Trial Div. 1994) (declining to aportion damages in that instance but noting that the court could apportion in appropriate circumstances). Whether the trial court in this case had the power to apportion damages turns on whether apportionment may be imposed by a court or whether it may only be imposed by statute. This court reviews questions of law de novo. Anderson v. Vaivao, 21 A.S.R. 95, 98 (App. Div. 1992). We hold that the trial court had the power to order apportionment.2
*53The rule widely recognized in American common law was that damages would not be apportioned between or among joint tortfeasors. See, e.g., Roche v. Egan, 433 A.2d 757, 760 (Me. 1981) (“Maine adheres to the widely recognized common law rale that a jury may not apportion damages for a single injury caused by joint, or concurrent, tortfeasors”); Hogan v. City-County Hosp. of LaGrange, 221 S.E.2d 796, 801 (Ga. Ct. App. 1976) (“In Georgia we follow the common law rale that there is no percentage of fault (i.e. no division of liability nor apportionment of damages among joint tortfeasors)”); Mary J. Cavins, Annotation, Propriety & Effect of Jury’s Apportionment of Damages as Between Tortfeasors Jointly & Severally Liable, 46 A.L.R.3d 801, 806 (1972) (“The common-law rale . . . was that a jury had no right to apportion damages as between defendant joint tortfeasors”).
Joint tortfeasors were held jointly liable for all of a plaintiffs damages because it was thought that plaintiffs should not be denied the possibility of collecting the full amount of their judgments when one of the defendants was unable to pay its share of the judgment. 74 Am JUR. 2d Torts § 69 (2001); Cavins, supra, 46 A.L.R.3d at 806.
American Samoa’s trial courts have applied the common law of joint and several liability. See, e.g., Fiaui, 27 A.S.R.2d at 40-42 (applying joint and several liability when concurrent intentional torts caused damage to a vehicle); Euta v. Etimani, 24 A.S.R.2d 139, 144 (Trial Div. 1993) (holding defendants jointly and severally liable for personal injury damages and noting that American Samoa’s comparative negligence statute did not alter the common law of joint and several liability). No appellate decision expressly adopts or rejects this common law, and no statute in this jurisdiction codifies it. This court holds that this judicially created doctrine is subject to judicial modification, provided the modification is consistent with American Samoan law. The trial court’s modification in this case was entirely consistent with American Samoan law.
Abolition of joint and several liability and adoption of a more equitable scheme is in keeping with the adoption of comparative negligence. See, e.g., Laubach v. Morgan, 588 P.2d. 1071, 1075 (Okla. 1978) (“Holding a defendant tortfeasor, who is only 20 percent at fault, liable for [the] entire amount of damages is obviously inconsistent with the equitable principles of comparative negligence”), superseded by statute as stated in Smith v. Jenkins, 873 P.2d 1044, 1047 n.15 (Okla. 1994). American Samoa has implemented comparative negligence by statute. See A.S.C.A. § 43.5101 (contributory negligence by a claimant does not bar recovery, but “damages shall be diminished by the court in proportion to the amount of negligence attributable” to the claimant). That does not mean that apportionment among defendants may only be accomplished in *54this jurisdiction by statute.
We recognize that, in other jurisdictions, joint and several liability has usually been abolished by statute. Statutory modifications of the common law of joint liability have taken many forms. See, e.g., STEIN ON PERSONAL INJURY DAMAGES § 14:25 (Gerald W. Boston, ed., West Group, 3d ed. 1997) (listing various statutory modifications to joint and several liability). It is perhaps the wealth of different apportionment schemes that has led some to conclude that apportionment is an issue best left to the give and take of the legislative process, not to judicial decision. See Battle v. Morris, 93 So.2d 428, 432 (Ala. 1957) (“In the absence of a statute providing otherwise, damages against jointtortfeasors [sic] are not apportioned. Joint tortfeasors are jointly and severally liable for the entire damage sustained”); Grober v. Capital Transit Co., 119 F. Supp. 100, 107 (D.D.C. 1954) (“The rale is well settled that in the absence of a statute authorizing a jury to sever or apportion damages against joint tortfeasors, an assessment of damages against those sued jointly for a wrong must be for one sum against all those found liable, and a verdict which attempts to apportion the liability among the several defendants by directing the amount each shall pay is irregular”); 74 AM. JUR. 2d Torts § 69 (2001) (“In the absence of statutory authorization, no apportionment of compensatory damages may be incorporated in the judgment establishing the liability of joint tortfeasors”); Cavins, supra, 46 A.L.R.3d at 808 (“The traditional and overwhelming weight of authority is to the effect that joint tortfeasors . . . may not, in the absence of statute having a different effect, have apportioned among them the compensatory damages”).
The view that it is the legislature that must adopt apportionment, however, is by no means universal. American Samoa’s trial courts are not alone in developing the law of apportionment through court rulings. In Oklahoma, for example, it was the Oklahoma Supreme Court that abolished joint liability among defendants, concluding that it was “inconsistent with the equitable principles of comparative negligence.” Laubach, 588 P.2d at 1075. The court stated that, in so doing, it was augmenting Oklahoma’s comparative negligence statutes, furthering their intent and the underlying principle of equity. Id. at 1074. The court reasoned that doing away with joint liability allowed a plaintiff to “collect his damages from the defendant who is responsible for them,” not a defendant who is only partially responsible for them. Id. From the various models available to it, the Oklahoma court chose a system under which each defendant was liable for only the percentage of the award attributable to him or her.
Similarly, in Reichert v. Atler, 875 P.2d 379 (N.M. 1994), a case with many similarities to the present one, New Mexico’s Supreme Court *55Similarly, in Reichert v. Atler, 875 P.2d 379 (N.M. 1994), a case witb many similarities to the present one, New Mexico’s Supreme Court approved the judicial imposition of apportionment between defendant tortfeasors.3 Id. at 382. Reichert involved a negligent tortfeasor seeking to avoid having to pay damages caused by an intentional tortfeasor. Id. at 380. Similarly, here, ASG argues that, as a negligent tortfeasor, it should not be liable for all of the damages that Gibbons suffered through Fuala'au’s intentional acts. The New Mexico court held that apportionment was not limited to situations involving only negligent tortfeasors. Id. at 382. The court also permitted apportionment when damages were caused by both a- negligent tortfeasor and an intentional tortfeasor. Id. The court found no reason to expose a negligent tortfeasor to a greater damage award when a joint tortfeasor acted intentionally than the negligent tortfeasor would have been exposed to had the joint tortfeasor acted only negligently. See id.
More than a decade before it judicially abrogated joint and several liability among defendants who were tortfeasors, New Mexico had judicially adopted the doctrine of comparative negligence with respect to negligent plaintiffs. In Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981), the Supreme Court of New Mexico had before it the question of whether New Mexico “should judicially declare that the existence of contributory negligence be no longer a complete bar against a plaintiffs recovery, but that it be replaced by a system of comparative negligence which would assess damage liability directly proportionate with fault.” Id. at 1236. The court examined the argument that comparative negligence could only be adopted by the legislature. See id. at 1238-39. Rejecting what it called this “separation-of-powers” argument, the court noted that contributory negligence had “originated with a judicial decision” and therefore could be changed by a subsequent judicial decision.4
That was precisely the conclusion that courts in Tennessee and California reached in judicially abolishing the concept that a plaintiffs contributory negligence barred that plaintiff from any recovery. The reasoning of those decisions applies to the present judicial amendment of the common *56law.
In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Supreme Court of Tennessee concluded that it was “time to abandon the outmoded and unjust common law doctrine of contributory negligence and adopt in its place a system of comparative fault.”5 Id. at 56. The court implemented a. “49 percent rule” holding that, “so long as a plaintiffs negligence remains less than the defendant’s negligence[,] the plaintiff may recover.” Id. at 57. The court recognized that the Tennessee legislature could have abolished the inequitable common law doctrine of contributory negligence. Id. at 56. However, because the doctrine of contributory negligence was “conceived in the judicial womb,” the court reasoned that the judiciary could abrogate the doctrine. Id. The court noted that ‘legislative inaction has never prevented judicial abolition of obsolete common law doctrines.” Id. Having addressed a plaintiffs comparative negligence, McIntyre went on in dicta to examine comparative liability among defendant tortfeasors. The court reasoned that comparative liability among defendants would promote fairness and complained that joint and several liability could “fortuitously impose a degree of liability that is out of all proportion with fault.” Id. at 58.
California’s Supreme Court reached the same conclusions in Li. v. Yellow Cab Company of California, 532 P.2d 1226 (Cal. 1975). Rejecting charges of judicial activism and violation of “separation of powers,” the court declined to abstain on the issue of a plaintiffs comparative negligence, recognized the practical difficulties and complexities facing a court creating a comparative negligence scheme, and imposed the rule that a plaintiffs recovery would be reduced in proportion to the plaintiffs negligence. See generally id. The court opined that the California legislature had left for “further judicial development” the issue of how to treat a plaintiffs negligence. Id. at 1233.
We hold that, in this jurisdiction, apportionment is a proper subject for judicial development. The trial court’s apportionment decision in this case is consistent with the law of American Samoa. This jurisdiction has no statute requiring joint and several liability in all cases. The trial court’s method of apportionment mirrors the statutory method for determining the effect of a plaintiffs negligence. See A.S.C.A. § 43.5101 (1992). The legislature, having had ample opportunity to react to trial court decisions from several years ago apportioning damages among defendant tortfeasors, has seen fit to do nothing, thereby allowing *57interest in taking the matter away from the judicial arena. Under these circumstances, the trial court in this case correctly imposed apportionment
At least one trial court decision suggests that intentional tortfeasors like Fuala'au may not benefit from apportionment. See, e.g., Fiaui, 27 A.S.R.2d at 40-42 (holding that, even if damages could have been ascertained with reasonable certainty, apportionment would not have been appropriate because “joint and several liability remains the mle for intentional torts”). It may be that there are other situations in which apportionment will be found inappropriate. We need not flesh out the law of apportionment here to address such situations. We do not declare that all judicial permutations of the common law are permissible. We say only that the apportionment ordered by the trial court here was well within what is allowed by the law of American Samoa.
Gibbons also claims error in the trial court’s decision to consider apportionment during the damages portion of her trial, rather than during the liability phase. A trial court’s bifurcation decision is reviewed for abuse of discretion. Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996). We conclude that the trial court did not abuse its discretion in choosing to consider apportionment during the damages phase of the trial.
Gibbons cites to United States v. Alcan Aluminum Corporation, 964 F.2d 22 (3d Cir. 1992), for the proposition that the issue of joint and several liability should be resolved during the initial liability phase of the trial. However, Alcan only suggests in dicta that apportionment of fault “is best resolved at the initial liability phase and not at the [damages] phase since it involves precisely relative degrees of liability.” Id. at 270 n.29. While we appreciate the Third Circuit’s logic, we conclude that the better view is that bifurcation can be at any point that “will minimize the overlap in evidence between the segmented phases or otherwise promote economy and accuracy in adjudication.” Hydrite Chem. Co. v. Calumet Lubricants Co., 47 F.3d 887, 891 (7th Cir. 1995). Furthermore, Gibbons has cited no evidence in the record that the trial court’s decision was so contrary to these concerns of judicial economy and efficiency that it raised to the level of an abuse of discretion. Accordingly, we reject her claim on this issue.
B. The Trial Court Properly Taxed Gibbons’ Damages
Gibbons argues that the trial court erred by deducting taxes from her award of lost past and future wages. She contends that these wages arose from a tort-type physical injury award, and therefore are excludable from her taxable gross income. We agree that ASG may not tax Gibbons’ *58from a tort-type physical injury award, and therefore are excludable from her taxable gross income. We agree that ASG may not tax Gibbons’ award for lost wages. The post-judgment taxability of an award, however, is a matter distinct from the proper calculation of that award in the first instance. We hold that the court properly reduced the award for lost wages so that Gibbons would be accurately compensated for her losses.
American Samoa’s tax laws incorporate by reference the United States Internal Revenue Code, Title 26 of the United States Code. A.S.C.A. § 11.0403(a) (2000) (“The income tax and the income tax mies, in force in the United States of America and those which may hereafter be enacted or adopted, where not clearly inapplicable or incompatible with the intent of this section, are adopted by American Samoa, and shall be deemed to impose a separate territorial income tax, payable to the government”).
The trial court correctly considered income taxes when determining Gibbons’ past and future income damages. Damages for personal injuries are imposed to compensate victims for the losses, expenses, and suffering caused by their injuries. See, e.g., 2 Dan B. Dobbs, Dobbs Law of Remedies § 8.1(1) (2d ed. 1993). A person’s income tax is certainly a “relevant factor” in determining his or her actual monetary loss. See Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 493-94 (1980). When a court fails to reduce a victim’s damage award for lost wages by taxes that he or she would have paid, the victim is overcompensated. Accordingly, we follow those jurisdictions in which the fairer mle of deducting taxes from lost wage awards when practicable is applied. See, e.g., Furumizo v. United States, 245 F. Supp. 981, 1014 (D. Haw. 1965), aff’d, 381 F.2d 965 (9th Cir. 1967). This mle compensates the victim for damages actually suffered.
Had Gibbons not been raped, she would have continued in her employment and her earnings would have been taxed. Had the trial court not deducted for taxes, Gibbons would never have been taxed on her wages, as the award would not have been included in her “gross income.” In the version of 26 U.S.C. § 104(a)(2) applicable to this case, taxable gross income does not include “the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness.” 26 U.S.C. § 104(a)(2) (1999).6
*59The Supreme Court in Commissioner v. Schleier, 515 U.S. 323, 337 (1995), emphasized two guidelines for exclusion under § 104(a)(2). The Court held that an award or settlement could be exempt from taxation under § 104(a)(2) only if: (1) the claim was based on “tort or tort type rights” and (2) the damages were received on account of “personal [physical] injuries or [physical] sickness.” Id. (incorporating the 1996 amendments to 104(a)(2)). That case involved a claim that an employee had been fired in violation of the Age Discrimination in Employment Act of 1961. At issue was the question of whether a “backpay” settlement for age discrimination was entirely “independent of the existence or extent of any personal injury.” The Court held that the “backpay” settlement was attributable to the discrimination, was not on account of personal injury or sickness, and was therefore taxable. Id. at 330-31. In discussing that issue, the court, in dicta, stated that, if a plaintiff were injured in an automobile accident, any settlement compensating that plaintiff for those injuries would not be taxed under § 104(a)(2). Not even the payment for wages lost as a result of the accident would be included in “gross income,” as they would be on account of personal injuries. Id. at 329-30;7
*60damages was based on ASG’s negligence in allowing Fuala'au to escape. Moreover, the lost wages were clearly on account of physical injuries arising from her rape by Fuala'au. Accordingly, the lost past and future wages awarded to Gibbons are excludable from Gibbons’ “gross income” under § 104(a) (2). The trial court’s consideration of taxes in setting the award was therefore the only way to ensure that Gibbons was awarded only what she would have received in wages had she not been raped.
We recognize that many jurisdictions hold, at least in wrongful death actions, that the income tax consequences of an award should not be taken into account. See, e.g., Johnson v. Manhattan & Bronx Surface Transit Operating Auth., 519 N.E.2d 326, 328-29 (N.Y. 1988); Grand Trust Corn Exch. Bank v. Phila. Trans. Co., 190 A.2d 293, 298 (Pa. 1983). These courts reason that a determination of after-tax or net income is too speculative. Johnson, 519 N.E.2d at 328-29. Other courts hold that a deduction of taxes is too speculative for future earnings, but allowable for past lost wages because taxes can actually be determined for past lost wages. See, e.g., Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 178 (3d Cir. 1977) (applying Virgin Islands law). The reasoning in Norfolk & Western Railway Company v. Liepelt is particularly instructive on this point.
Norfolk held that a trial court in a wrongful death suit under the Federal Employers’ Liability Act should have given a requested instruction informing the jury that a victim would not pay taxes on any damage award. Norfolk, 444 U.S. at 498. In so holding, the Court reasoned that determining a victim’s after-tax earnings was not too speculative or complex for a jury. Id. at 494. Determining after-tax earnings was similar to figuring out future employment itself, future health, future personal expenditures, future interest rates, and future inflation. Id. All involved some measure of guesswork for which experts could provide guidance. Id. When an award for lost wages is not subject to post-judgment taxation, we hold, consistent with Norfolk, that a trial court may properly reduce an award for lost wages by such taxes as the court has a reasonable basis for finding the victim would have owed on those wages. Gibbons’ award for lost wages was not subject to post-judgment taxation, and the trial court had before it sufficient evidence on which to base its determination of the taxes Gibbons would have had to pay on her earnings had she continued to be employed. Therefore, the trial court’s reduction of Gibbons’ lost wages to reflect taxes was proper.
.Conclusion
Because we find no error in the apportionment of damages or the reduction of Gibbons’ lost wages by her estimated taxes, we AFFIRM.
*61It is so ordered.
In Saufo 'i v. American Samoa Government, 19 A.S.R.2d 54 (App. Div. 1991), this court had before it an appeal from a damage award in which the proportional fault of each defendant had been determined, with damages correspondingly apportioned among the defendants. However, the propriety of apportionment among the defendants was not an issue on appeal. See id. at 56 (identifying as issues on appeal only whether claims against the government in its proprietary capacity should have been dismissed and whether the plaintiffs should have been found comparatively negligent). After addressing the issues raised by the appeal, this court affirmed the damage award, including the apportionment, without examining the issue of whether apportionment was appropriate. Thus, Saufo'i cannot be said to constitute appellate approval of apportionment.
Gibbons’ appeal presents the purely legal question of whether a court may order apportionment. Gibbons does not challenge the actual percentage assigned to ASG by way of apportionment. To have challenged whether the record supported that percentage by a reasonable certainty, Gibbons would have had to provide a record of the evidence showing that there was no such reasonable certainty. Gibbons provides
After the complaint was filed in Reichert, New Mexico adopted a statute limiting the doctrine of joint and several liability. See N.M. Stat. Ann. § 41-3A-1 (1989). Because the statute was passed after the lawsuit was filed, it was inapplicable to the action. See Reichert v. Atler, 875 P.2d 384, 391 (N.M. Ct. App. 1992), aff’d, 875 P.2d 375 (N.M. 1994).
The holding in Rizzo was subsequently limited by the New Mexico legislature. See Reichert v. Atler, 875 P.2d 384, 391 (N.M. App. 1992) (“Following our Supreme Court’s decision in Scott. . . , our legislature enacted legislation continuing the doctrine of joint and several liability in certain situations”), aff’d, 875 P.2d 379 (N.M. 1994).
This system varied from Tennessee’s common law of contributory negligence which barred a plaintiffs recovery when the plaintiff had any fault in bringing about his or her damages. See McIntyre, 833 S.W.2d at 54.
In pertinent part, the prior version of § 104(a)(2) was amended in 1996 to limit damage exclusions to those awarded for “personal physical injuries or physical sickness.” 26 U.S.C. § 104, Historical & Statutory Notes for 1996 Amendments (noting that “physical” was added before the words “injuries” and “sickness”).
*59Pursuant to Landgraf v. USI Film Productions, 511 U.S. 244, 273 (1994), we apply a two-step analysis to determine which version of a statute applies. We first examine whether Congress has pronounced an amended statute’s proper reach. If it has not, then we apply the “judicial default mies” and examine whether the statute would have an improper retroactive effect, “i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. at 280. Congress explicitly stated that the 1996 amendment was applicable in tax years after August 20, 1996, to amounts received. Small Business Job Protection Act of 1996, Pub. L. 104-188, § 1605 (Aug. 20, 1996). Accordingly, we apply the amended version of 104(a)(2) to this action, although we note that the result would be the same under either version.
In 1996, the Supreme Court was again called upon to examine the scope of 104(a)(2). This time, the issue before the Court was whether punitive damages received in a tort suit for personal injuries were excludable under § 104(a)(2). O’Gilvie v. United States, 519 U.S. 79, 81 (1996). In the course of its discussion, the Court noted that physically injured persons with judgments or settlements were in a better position from a tax perspective than they would have been in had they not been injured. The Court characterized this as an “anomaly.” Id. at 87. Applying Schleier and O’Gilvie, other courts have recognized that lost wages are excluded from “gross income” under § 104(a)(2). See Ervin v. Comm’r of Internal Revenue, TC Memo 2002-134 (United States Tax Court 2002); Collins v. Comm’r of Internal Revenue, T.C. Memo 2002-115. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486732/ | OPINION AND ORDER
Fuimaono was convicted by a jury of unlawful possession of the controlled substance of marijuana and possession of prohibited weapons. On appeal, he argues that his convictions should be reversed because 1) his prosecution was barred by double jeopardy; 2) evidence seized from an illegal Terry Stop was used as the basis of the prosecution; and 3) the evidence was insufficient to sustain a guilty verdict. We affirm Fuimaono’s conviction.
I. Factual Background
This case arose out of a traffic stop by police officers Aitasi Samoa and Abel Penitusi. On March 10, 2000, around 9:15 a.m., the two officers were patrolling the Fagatogo marketplace area. The officers received a radio dispatch from the Central Police Station in Fagatogo directing them to investigate a public peace disturbance at Tufono’s Laundromat and relaying the following information: an argument had occurred between a commercial bus driver and the complainant, the manager of the laundromat; two other men were drinking alcohol inside the bus; and the license number of the bus. The dispatch did not include the complainant’s name, but she had identified herself when she called the police headquarters.
Moments after receiving the dispatch, the two officers spotted a bus entering the main public highway from a direction consistent with having come from file laundromat. The license plate number and the number of occupants matched the complainant’s description, so they pulled the bus over. The officers did not witness the bus driver commit any traffic infractions and stopped the bus based solely on the dispatch information.
Fuimaono was driving the bus. When stopped, he was wearing a waist pouch, and a briefcase was at his left side. Officer Samoa smelled alcohol coming from Fuimaono. Police officers Liusila Brown and Timali Polasi arrived a few minutes later and also smelled alcohol. Officer Brown became the lead investigator. Fuimaono, wearing the *70waist pouch, was still in the driver’s seat of the bus, and the briefcase was at the same location. After Fuimaono failed a field sobriety test, Brown arrested him for driving under the influence of alcohol or other chugs and cited him for licensing violations. During a pat-down search, Brown retrieved a plastic bag protruding from Fuimaono’s pocket containing a substance the officer recognized as marijuana. Brown also removed what he believed to be a marijuana cigarette from the same pocket. Brown kept the removed items in his possession.
Fuimaono resisted further search, was handcuffed, and taken to the Central Police Station. Brown brought along the briefcase. At the station, he removed the waist pouch from Fuimaono and, while putting back the two items taken at the arrest scene into the pouch, he noticed another apparent marijuana cigarette inside. He then turned Fuimaono, the waist pouch and its contents, and the briefcase over to Sgt. Tauama' T. Fe'a, Jr., a police vice and narcotics officer.
Sgt. Fe'a searched the waist pouch and found the two apparent marijuana cigarettes, the plastic bag containing apparent marijuana, other bags, cigarette rolling paper, and rolled up brown paper commonly used to smoke nearly consumed marijuana cigarettes. Sgt. Fe'a also searched the briefcase and found a plastic bag containing apparent marijuana, live bullets for an unlicensable firearm, and 62 explosives known locally as “cherry bombs,” and a long wallet containing an empty plastic bag. He turned over all of these items to the police evidence custodian.
On June 15, 2000, police Lt. Vaito'elau Laumoli performed forensic analysis by microscopic and chemical testing and determined the substances found in the waist pouch and briefcase to be marijuana. Lt. Laumoli is a specially trained drag analyst for the police department.
On April 4, 2000, in the District Court, Fuimaono pled guilty to the misdemeanor offense of reckless driving, A.S.C.A. § 22.0702, in lieu of the driving under the influence charge. The American Samoa Government (“the government”) also dismissed the two vehicular licensing charges. The District Court had jurisdiction over these lesser charges. A.S.C.A. § 3.0302.
On April 28, 2000, the government commenced Fuimaono’s prosecution on the present felony charge of unlawful possession of the controlled substance of marijuana, A.S.C.A. §§ 13.1022, 13.1006, and misdemeanor charge of possession of prohibited weapons, A.S.C.A. §§ 46.4202(a), 46.4220. After Fuimaono was bound over to the High Court, Fuimaono moved in the trial court to dismiss the information on the ground that the charges were barred by double jeopardy. The trial court denied the motion to dismiss, and Fuimaono then moved to suppress the *71evidence obtained as a result of the vehicle stop and his arrest. The trial court also denied this motion, and the action proceeded to trial by jury.
II. Double Jeopardy
Fuimaono argues that A.S.C.A. § 46.3107(4) barred his prosecution for both possession charges since he had already pled guilty to a crime which arose out of the same course of conduct.1 The trial court rejected his argument. We review de novo whether Fuimaono’s double jeopardy rights were violated. United States v. Stoddard, 111 F.3d 1450, 1454 (9th Cir. 1997).
Article I, Section 6 of the Revised Constitution of American Samoa provides in part that “[n]o person shall be subject for the same offense to be twice put in jeopardy of life or liberty.” Similarly, the Fifth Amendment of the United States Constitution provides in part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” We acknowledge what has been implicit in our previous cases: American Samoa’s double jeopardy clause affords the same protections as does the Federal Constitution. See Am. Samoa Gov’t v. Meleisea, 24 A.S.R.2d 32, 35 (Trial Div. 1993); Am. Samoa Gov’t v. Schuster, 24 A.S.R.2d 15, 16 (Trial Div. 1993); Am. Samoa Gov’t v. Fealofa'i, 24 A.S.R.2d 10, 11 (Trial Div. 1993); Am. Samoa Gov’t v. A.famasaga, 17 A.S.R.2d 145, 150 (Trial Div. 1990); Am. Samoa Gov’t v. Moafanua, 4 A.S.R.2d 33, 34-35 (Trial Div. 1987). Both double jeopardy clauses thus protect the accused against “a second prosecution for the same offense after acquittal];] ... a second prosecution for the same offense after conviction];] . . . [and] multiple punishments for the same offense.” Commonwealth v. Arriaga, 691 N.E.2d 585, 587 (Mass. App. Ct. 1998) (emphasis removed) (quoting North Carolina v. Pearce, 395 U.S. 711, 717(1969).
Determination of the “same offense” is the cornerstone of any double jeopardy analysis. The federal and territorial constitutions embrace “]t]he same-elements test, sometimes referred to as the ‘Blocfcburger’ test, [which] inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932); Fealofa'i, 24 A.S.R.2d at 11. However, other tests abound.
*72The short-lived “same conduct” test provides that, in addition to the Blockburger test, “Double Jeopardy bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady v. Corbin, 495 U.S. 508, 521 (1990), overruled by Dixon, 509 U.S. at 704.
Additionally, the “same transaction” test “requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U.S. 436, 453-54 (1970) (Brennan, J., concurring). While some states have adopted these more stringent tests under their constitutions, they are not the federal standard and not necessarily the standard in American Samoa under Article I, Section 6.
Fuimaono maintains, however, that A.S.C.A. § 46.3107 shows a conscious decision by the Legislature of American Samoa to afford an accused more protection in American Samoa than the federal Constitution. A.S.C.A. § 46.3107 provides in part:
When the same conduct of a person may establish the commission of more than 1 offense, he may be prosecuted for each offense. He may not, however, be convicted of more than 1 offense if:
* * * *
(4) the offense is defined as a continuing course of conduct and the person’s course of conduct was uninterrupted unless the law provides that specific periods of that conduct constitute separate offenses.
The essence of Fuimaono’s claim is that A.S.C.A. § 46.3107(4) encompasses the “same transaction” test. He urges that his second prosecution was barred because the offenses charged were committed during the “same course of conduct” previously prosecuted, which was “uninterrupted,” and the law does not provide “that specific periods of that conduct constitute separate offenses.” He concludes that the government could have avoided this problem by charging all the offenses in one prosecution in one tribunal.
The government counters that A.S.C.A. § 46.3107(4) pertains to the common law doctrine of “continuing offenses.” Furthermore, it interprets Fuimaono’s argument as applying the “same conduct” test and dismisses it as having been overruled in Dixon. While we disagree as to how the government classifies Fuimaono’s argument, we agree with its interpretation of A.S.C.A. § 46.3107(4).
*73A.S.C.A. § 46.3107(4) is identical to Model Penal Code § 1.07(l)(e). The Comment to section 1.07 of the Model Penal Code explains:
(e) Continuing Course of Conduct Subsection (l)(e) deals with a continuing course of conduct prohibited by a single statute. It provides that only one conviction is proper based upon a single uninterrupted course of such behavior, unless the statute prescribes that specific periods constitute separate offenses. For example, a person violates an unlawful cohabitation statute only once, no matter how long his unlawful cohabiting continues, where the conduct was not interrupted by the issuance of process or otherwise.
Another good example of when A.S.C.A. § 46.3107(4) is implicated is in the context of sexual offenses. It is possible that a person could violate A.S.C.A. § 46.3611, Sodomy, more than once in a single transaction if he performs a sexual act with the victim on more than one of the defined offending body parts. See A.S.C.A. § 46.3601. In that case, we would rely on A.S.C.A. § 36.3107(4) to determine whether there was an uninterrupted, continuing course of conduct or whether two separate crimes had been committed. See, e.g., Commonwealth v. Arriaga, 691 N.E.2d at 590.
In interpreting Haw. Rev. Stat. § 701-109(l)(e) (1993), which is also identical to Model Penal Code § 1.07(l)(e), State v. Caprio, 937 P.2d 933 (Haw. Ct. App. 1997), observed:
Unlike the double jeopardy clause, which protects a defendant from successive prosecutions after acquittal or conviction, for the “same offense,” and from multiple punishments for the “same offense,” HRS § 701-109 [and A.S.C.A. § 46.3107 are] a multiple offense limitation that protects a defendant from being convicted for certain combinations of offenses arising from the same conduct. 1 P. Robinson, Criminal Law Defenses § 68(a) at 328-29 (1984).
* * * *
The foregoing Commentary and Comments indicate that HRS § 701-109(l)(e) [and A.S.C.A. § 46.3107(4) were] intended to prohibit the State from dividing a crime, defined by statute as a continuing offense, into separate temporal or spatial units, and then charging a defendant with committing several counts of the same statutory offense, each count based on a separate temporal or spatial unit of the continuing offense.
937 P.2d at 944-45 (emphasis removed).
*74It is clear from this discussion that A.S.C.A. § 46.3107(4), contrary to Fuimaono’s argument, does not speak to subsequent prosecutions.2 Indeed, “the performance of a Blockburger analysis completes the judicial task in a successive prosecution case.” United States v. Morris, 99 F.3d 476, 480 (1st Cir. 1996); see also Arriaga, 691 N.E.2d at 587-88 (explaining appropriate state and federal tests applicable when analyzing prohibition against multiple prosecutions and multiple punishments). Instead, A.S.C.A. § 46.3107(4) is applicable only when determining whether one specific statute allows for multiple convictions arising out of one transaction. In this respect, “[i]t is well settled that a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause.” Morris, 99 F.3d at 480, (quoting Albernaz v. United States, 450 U.S. 333, 344 n.3 (1981) (emphasis added)); accord Missouri v. French, 79 S.W.3d 896, 898-99 (Mo. 2002); Caprio, 937 P.2d at 944.
In applying the foregoing analysis to the case at bar, it is clear that Fuimaono’s second prosecution was not barred by double jeopardy. We first apply the Blockburger test and determine that each offense charged in the successive prosecution, unlawful possession of a controlled substance and possession of a prohibited weapon, clearly contain elements not found in the offense of reckless driving. Both possession charges require the government to prove, for example, that Fuimaono possessed a. prohibited contraband, irrespective of whether or not he was operating a motor vehicle. See A.S.C.A. §§ 13.1022, 46.4202, 22.0702. On the other hand, the charge of reckless driving requires the government to prove that Fuimaono was operating a motor vehicle, irrespective of whether or not he possessed a prohibited substance. Id. The Blockburger test is easily satisfied.
Furthermore, A.S.C.A. § 46.3107(4) is wholly inapplicable to this case. As discussed, that section speaks to multiple convictions arising out of the same statute. In this case, however, Fuimaono was charged under three separate statutes.3
III. The Terry Stop
Fuimaono argues that the officers lacked a reasonable articulable suspicion to pull his bus over and, consequently, the evidence obtained *75subsequent to the arrest should be suppressed as fruit of the poisonous tree.4 We review the trial judge’s findings of facts for clear error. United States v. Michael R., 90 F.3d 340, 345 (9th Cir. 1996). On the other hand, we review de novo whether reasonable suspicion existed justifying the stop. Ornelas v. United States, 517 U.S. 690, 699 (1996).
Under Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a temporary investigative stop “if the stop is based upon reasonable suspicion . . . .” United States v. Lopez-Gonzalez, 916 F.2d 1011, 1013 (5th Cir. 1990). “The Terry rationale also permits the investigatory detention of a vehicle.” Id. Reasonable suspicion is based on an objective standard that looks to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the stop].” Terry, 392 U.S. at 21.
The trial judge’s findings in regards to the informant’s tip were not clearly erroneous.5 Because the informant’s tip was reliable, it gave the police officers enough information to warrant a brief investigatory traffic stop. Lopez-Gonzalez, 916 F.2d at 1013. The officers had reasonable suspicion that Fuimaono, who was driving the bus, had recently been engaged in a criminal activity. See A.S.C.A. §§ 27.0532 (Prohibited Places of [Alcohol] Consumption), 46.4501 (Disturbing Public Peace). Because the stop was lawful, nothing found should be suppressed as fruit of a poisonous tree.
IV. Sufficiency of the Evidence
Fuimaono argues that the evidence was insufficient to convict on the count of unlawful possession of a controlled substance because (1) the evidence obtained as a result of the traffic stop should have been suppressed and (2) the government never proved that Fuimaono possessed Cannabis Sativa L, better known as marijuana, but instead only proved he possessed a substance which contained Tetrahydrocannabinols (“THC”). We have already discussed why the evidence obtained from the traffic stop should not be suppressed. We now briefly address Fuimaono’s second contention.
The thrust of Fuimaono’s argument is that the government’s expert, Lt. *76Laumoli, testified only that his analysis detected the presence of THC in the confiscated substances, and not that the substances themselves were marijuana. We have already held that “the claim that what was found was only [THC] and not marijuana is a distinction this court does not accept.” Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10, 21 (App. Div. 2002). Even more importantly, Fuimaono overlooks the entirety of Lt. Laumoli’s testimony.
Lt. Laumoli testified that there are three tests performed in the forensic analysis to identify marijuana. First, the analyst does a visual examination, separating the plants that are clearly not marijuana. Among other things, the analyst looks at the shape and number of leaves on the plant. Second, the analyst performs a microscopic test. This test involves a close examination of the “glandular hairs,” found in the seeds of the plant, to see if their shape is consistent with the glandular hairs found in marijuana. Lastly, the analyst performs a chemical test to detect whether the substance contains THC, a chemical found in marijuana.
In this case, it appears that because the substances seized were not in plant form, the initial visual test was not performed. However, Lt. Laumoli testified that he performed both the microscopic and chemical tests. Therefore, Fuimaono’s claim that the evidence proved, at best, the mere presence of THC fails. Lt. Laumoli’s testimony showed that the chemical test, when conducted in conjunction with the microscopic test, proved that the substance was marijuana. Given the evidence presented in this case, a rational trier of fact could have found Fuimaono guilty beyond a reasonable doubt. Id. at 18 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
V. Conclusion
For the reasons stated above, Fuimaono’s conviction is affirmed.
It is so ordered.
The government does not dispute that “jeopardy normally attaches when the court unconditionally accepts a guilty plea.” United States v. Baggett, 901 F.2d 1546, 1548 (11th Cir. 1990).
We do not here decide what bearing, if any, A.S.C.A. § 46.3107(4) has upon multiple punishment cases, which is afforded different legal treatment.
We note that none of the other provisions of A.S.C.A. § 46.3107 are applicable.
In the trial court, the defendant argued not only that the Terry Stop was invalid but also that the arrest, the search incident to arrest, and incriminating statements should all have been suppressed. He did not renew these additional arguments on appeal.
The trial judge’s findings were based on the testimony from the suppression hearing of Officers Samoa, Penitusi, and Poloai, and the former testimony of Officer Brown, who was unavailable to testify. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486733/ | Fonoti appeals from his conviction for possession of a controlled substance under A.S.C.A. § 13.1022, asserting reversal is required due to the trial court’s denial of his requested “blind mule” jury instruction, the courts failure to sentence him to probation instead of six years in prison, and the insufficiency of the evidence against him. The trial court had jurisdiction pursuant to A.SC.A § 3.0208(a)(2) and we have jurisdiction over this timely appeal under A.S.C.A. § 3.0208(c). We affirm.
In August 2000, Fonoti was stopped by a customs officer as he disembarked a ferry running between Apia, Samoa and Pago Pago, American Samoa. During a search of a locked compartment of a waist pouch Ponoti was wearing, Territorial Customs Officer Pau'ulu Lagai discovered a small amount of marijuana, Fonoti’s expired passport, rubber bands, and his boarding pass for the trip. Despite a “stop order” issued against him to prevent him from leaving American Samoa, Fonoti obtained a travel permit and left the territory. He later returned to American Samoa in October of 2000 for a dentist visit, and was arrested and charged with possession of a controlled substance.
At his trial, Fonoti testified that while he was waiting to board the vessel in Apia, an individual named “Sefo” approached him and gave him the pouch with the marijuana locked out of sight. Fonoti said that Sefo asked him to take the pouch to a person named “Lotu” who would be waiting for it. He stated that Sefo also gave him a beige hat to wear, so that Lotu would recognize him. He emphasized that he had no knowledge of the marijuana, and did not even know where the key to the pouch was. Fonoti testified that he did not even see the contents until a customs agent stopped him before Officer Lagai’s search, found the key, opened the pouch and put Fonoti’s passport into the pouch. Because the marijuana was in an opaque bag, he did not suspect what it was. He testified that he had carried the pouch because he had a “good heart” and did not know of the bag of marijuana until Officer Lagai’s search. As the pouch was opened, he told Officer Lagai the contents were not his.
Officer Lagai testified that to his knowledge he was the only agent who stopped Fonoti that day and that he discovered the marijuana with the *79other items. He stated that no other customs agents were in the area that could have performed the acts of the customs officer that Fonoti described.
Fonoti submitted requested jury instructions, the first of which read: “A ‘blind mule’ is a person used by criminals to carry contraband across a border, who does not know that he is carrying the contraband.” Fonoti based this instruction on a definition statement in United States v. Artero, 121 F.3d 1255, 1259 (9th Cir. 1997). The trial judge ruled at the jury instruction conference that he would not give this instruction, but would instruct the jury that the prosecution bears the heavy burden of proving beyond a reasonable doubt every element in its case, including that the defendant “knowingly” transported the marijuana.
II.
Fonoti first complains that it was error for the trial judge to refuse to give his “blind mule” instruction. Whether the trial court’s instructions adequately presented Fonoti’s theory of the case is a question of law reviewed de novo, United States v. Pierre, 254 F.3d 872, 875 (9th Cir. 2001), and a trial court’s formulation of jury instructions is reviewed for an abuse of discretion. United States v. Vallejo, 237 F.3d 1005, 1024 (9th Cir. 2001). “In reviewing jury instructions, the relevant inquiry is whether the. instructions as a whole are misleading or inadequate to guide the jury’s deliberation.” United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000). “As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Matthews v. United States, 485 U.S. 58, 63 (1988). However, as long as the jury is adequately instructed on a defendant’s theory of defense, that “defendant is not entitled to any particular form of an instruction.” United States v. Faust, 850 F.2d 575, 583 (9th Cir. 1988).
Fonoti presented no testimony explaining the “blind mule” concept to the jury. Moreover, the jury had ample instructions on Fonoti’s theory that his transportation of the marijuana was unknowing. The jury was instructed as to the government’s burden of proving each element beyond a reasonable doubt and as to the concept of acting “knowingly.” Both instructions alerted jurors that they had to find, beyond a reasonable doubt, that Fonoti knowingly brought the marijuana to American Samoa. The trial court did not abuse its discretion in refusing to add the “blind mule” instruction to its instructions on the prosecution’s burden and the concept of “knowingly” committing an act.
*80III.
Fonoti also asserts error in the trial court’s interpretation of A.S.C.A. § 13.1022 as not permitting a sentence of probation as a sentencing option. He argues that because the statute expressly prohibits parole, it must be interpreted to permit probation.
Section 13.1022 states that possession of a controlled substance is unlawful, and that “(b) A person who violates the section is guilty of a felony 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.” We have already rejected the argument that probation is an option under section 13.1022. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10, 14-17 (App. Div. 2002); Isaia v. Am. Samoa Gov’t, 6 A.S.R.3d 3, 5-8 (App. Div. 2002).
IV.
Finally, Fonoti argues that the government did not prove his guilt beyond a reasonable doubt because the government showed neither that Fonoti knew the contraband was present nor that Fonoti knew the identity of the contraband.. This is so, he argues, because he testified that another customs agent had searched him before Officer Lagai and had placed his passport in the locked pouch, which could lead to an inference that Fonoti never opened the pouch and that the presence of his passport next to the marijuana was the result of the first officer’s conduct. Thus, he contends, the Lagai search result could not lead to an inference that he knowingly carried the marijuana.
There is sufficient evidence to support a conviction if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential, elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Fonoti’s argument essentially is that the jury should have believed his testimony instead of the testimony of Officer Lagai. But our test is whether “any rational trier of fact” could have believed the elements of the crime were proven beyond a reasonable doubt. The jury chose to believe Officer Lagai rather than Fonoti, and infer that Fonoti knew he was carrying marijuana in the same locked pouch as his passport. “An appellate court must respect the exclusive province of the jury to determine the credibility of witnesses ... by assuming that the jury resolved all such matters in a manner which supports the verdict.” United States v. Nguyen, 284 F.3d 1086, 1090 (9th Cir. 2002) (quoting United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989)). Fonoti has *81offered no persuasive reason why we should hold that the jury’s finding was irrational. He testified, and the jury considered his testimony and presumably rejected it. A rational jury could and did find that all the elements of the possession charge were proved beyond a reasonable doubt.
AFFIRMED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486251/ | Order Denying Motion for Stay of Enforcement:
On September 23, 1994, petitioner filed, pursuant to A.S.C.A. §§ 4.1041 et seq., for judicial review of respondents' administrative decisions awarding the 1994-95 school milk and juice contract to intervenor, and sought preliminary injunctive relief preventing implementation of these decisions. The hearing on the order to show cause was held on September 29, 1994. Counsel for petitioner, respondents, and intervenor were present, and, without objection, intervenor became a party.
We consider petitioner's application for provisional relief as a request, *140in accordance with A.S.C.A. § 4.1041(b), for a stay of enforcement of the administrative decisions. In the immediate context, petitioner is entitled to a stay of enforcement only on showing (1) a substantial likelihood of ultimately prevailing on the merits and 2) great or irreparable injury if a stay is not issued before a full and final determination can be made. See Leti v. Immigration Board, 8 A.S.R.2d 107, 109 (1988).
Petitioner has failed to show that it will suffer great or irreparable harm if the stay is not issued. Petitioner's contract with respondent American Samoan Government has been terminated. Its losses, if any, can be recovered either administratively or judicially by ascertainable, money damages. Since petitioner will not suffer great or irreparable harm, we need not consider the likelihood of the ultimate result.
Petitioner's request for provisional relief is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486252/ | Order Denying Motions to Dismiss:
Defendant's motions to dismiss count 1 of the original and amended information and count 2 of the amended information came regularly for hearing on September 6, 1994. Both parties appeared by counsel, and defendant was present.
On June 9, 1994, plaintiff filed the original information charging defendant with felony driving while license is suspended, in violation of A.S.C.A. § 22.0223, as count 1. On August 24, 1994, plaintiff filed the amended information, adding the charge of driving under the influence ("DUI"), in violation of A.S.C.A. § 22.0707, as count 2. . *2Defendant was previously charged with DUI in the District Court and was represented by his present counsel in that prosecution. On February 8, 1994, defendant pled nolo contendere, and the court, anticipating the statutory mandate for DUI convictions, and without objection, took away defendant's driving privilege for six months.1 The court suspended defendant's driver's license for that period as part of the formal sentence pronounced on March 9, 1994.
On May 6, 1994, during the six-month period, defendant was cited for 1) another DUI and 2) driving without a driver's license in his possession. This second citation led ultimately to the original information.
On June 14, 1994, in light of T.C.R.Cr.P. 13 and 14, the District Court dismissed the DUI accusation, without prejudice, expressly to permit plaintiff to either refile this charge in that court or join it with the felonious driving charge in this court. Defendant's counsel was present. This dismissal led ultimately to the amended information.
I. Felony Driving While License Is Suspended
Defendant asks this court to dismiss the charge of driving while license is suspended, with the following reasoning. He pled nolo contendere in the District Court on February 8 under a plea agreement calling for his license to be "revoked" rather than "suspended.” These two words describe different concepts. The plea agreement was binding, presumably under T.C.R.Cr.P. 11(e)(C), meaning that once accepted, the court must impose the specific sentence set forth as appropriate in the agreement. Thus, the court legally "revoked" his license. He is now charged under a statute that punishes driving only while a licensed is "suspended."2 Therefore, he cannot be convicted of this offense. Defendant makes a nice try but with an argument that cannot fly.
*3We take note that in the transcript of the District Court proceedings when defendant pled nolo contendere, the court consistently referred to license "suspension" without any correction by defendant's counsel. The court's written judgment and sentence, entered on March 29, 1994, which defendant's counsel approved as to form, unequivocally "suspended" defendant's license. We suspect that defendant's counsel deliberately negotiated the plea agreement and quietly hoped to set up an absolute legal defense, and avoid the mandated 90-days' minimum custody, should defendant later face the present charge. We do not need to decide whether or not the plea agreement in the District Court was binding on that court, perhaps requiring either sentence reformation or plea withdrawal. We also do not need to decide what each of the principals in the District Court proceedings intended to do or thought they were doing with defendant's driver's license.
As a practical matter, the difference between "suspension" and "revocation"- of a driver's license is insignificant for present purposes. When a "suspension" period ends, licensees automatically regain their driving privilege. When a "revocation" period expires, former licensees still cannot drive until they are issued new licenses. In either case, however, they simply cannot operate a motor vehicle during the period when their driving privilege is taken away. "Revocation" may be slightly more onerous than "suspension," but in the immediate context, the two words have exactly the same legal meaning. One cannot lawfully drive a motor vehicle while the judicially-imposed prohibition is in effect.
The Legislature of American Samoa enacted A.S.C.A. § 22.0223 in 1986 as Section 5 of Public Law No. 19-40. The legislative purpose is expressly stated in the Act: "AN ACT STRENGTHENING THE DRINKING AND DRIVING LAWS . . . ." The Legislature declared clear intent. This court should not, and will not, frustrate plain meaning and upset legislative intent merely because a particular word is omitted when the word used contextually means precisely the same as the omitted word. The result would be semantic nonsense.
II. DUI
Defendant also asks this court to dismiss the DUI charge, on the following basis. Allowing plaintiff to add this separate offense violates T.C.R.Cr.P. *47(e).3 The two charges in the amended information are inherently distinct, and the DUI evidence will necessarily prejudice the fact finder, especially a jury. Lodging this charge about three weeks before trial prevents adequate defense preparation. In sum, he will be deprived his constitutional rights to a fair trial and due process under the law. Defendant misreads T.C.R.Cr.P. 7(e) and 8(a).
T.C.R.Cr.P. 8(a) permits joinder if "two or more offenses may be charged in the same information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction . . . Both accusations arise out of defendant's operation of a motor vehicle at the same time and place on March 6, 1994. All evidence tending to show guilt is broadly prejudicial, but does not preclude joinder.4 An information may generally be amended in form or substance at any time prior to verdict as long as the substantial rights of a defendant are not prejudiced. Bigrow v. Hiatt, 70 F. Supp. 826, 829 (M.D.Penn. 1947); United States v. Blanchard, 495 F.2d 1329 (1st Cir. 1974) (amendment allowed where defendant was neither prejudiced nor surprised).
An amendment to an information will be allowed as long as the defendant is well apprised. United States v. Thompson, 230 F. Supp. 530, 535 (D.Conn. 1964); Muncy v. United States, 289 F. 780, 782 (4th Cir. 1923) (after arraignment and plea, plaintiff was permitted, over objection, to add an additional charge where nothing took defendant by surprise).
Although the amended information was filed on August 24, 1994, defendant was given notice no later than June 14, 1994, when the District Court dismissed the DUI prosecution in that court, of plaintiff's intention to amend the information to add the DUI count. Moreover, defendant does not dispute receiving the DUI police report on June 6, 1994, although he still filed formal discovery motions in the District Court on June 10, 1994. Three months is ample time for defendant to prepare a defense and protect his constitutional right to a fair trial.
*5Both motions to dismiss are denied. It is so ordered.
A.S.C.A. § 22.0211 states in part: "(a) A court shall, upon conviction of driving under the influence under 22.0707, suspend or revoke a license as follows: (1) upon first conviction, for a period of 6 months. . ."
A.S.C.A. § 22.0223 states: "Any person who drives a motor vehicle while his license is suspended pursuant to 22.0211 shall be guilty of a class D felony and, upon conviction shall be sentenced to serve at least 90 days in custody."
Rule 7(e) states that "[t]he court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."
Without defendant's request, we will not, at this time, decide on whether or not any relief under T.C.R.Cr.P. 14 is appropriate. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486253/ | Order on Application for Costs:
On July 22, 1994, plaintiff Interocean Ships, Inc. ("Interocean") submitted a memorandum of costs pursuant to T.C.R.C.P. 54(d). In this memorandum, Interocean requested a total of $36,006.75 for the filing fee, witness fees, depositions, expert witness fees and trial exhibits, associated with this action but not claimed and, in the court's Opinion and Decision of May 2, 1994, denied. Interocean submitted numerous, if convoluted, exhibits in proof of these claims.
On September 21, 1994, defendant Samoa Gases ("Samoa Gases") submitted a memorandum in opposition to these costs, claiming that witness fees and deposition expenses should have been approved prior to expenditures, and that attorney travel expenses and expert witness fees are not taxable.
This court has wide discretion in allowance of various cost awards in *6admiralty. Compania Galeana, S.A. v. Motor Vessel Caribbean Mara, 565 F.2d 358, 360 (9th Cir. 1978); Dillingham Shipyard v. Associated Insulation Co., 649 F.2d 1322, 1329 (9th Cir. 1981). In this case, Samoa Gases' objections as to the costs submitted by Interocean must fail. Not only is such an award within our discretion, but also Samoa Gases has submitted no admiralty cases in support of its argument.
In our previously issued decision on damages, we assessed the comparative liability of Interocean, Samoa Gases and two product suppliers, PRI and Radiator Specialty, as follows:1
Radiator Specialty-0 %
PRI — 1%
Samoa Gases-4%
Interocean — 95 %
In our discretion, we grant Interocean's application for costs using the same percentage of comparative liability. "In admiralty in particular, the court has wide latitude in [awarding costs], especially if it is felt that making such an award would produce injustice." Stevens v. F/V Bonnie Doon, 655 F.2d 206, 210 (9th Cir. 1981), appeal after remand 731 F.2d 1433 (9th Cir. 1984).
Interocean is entitled to receive 4% of their allowed costs from Samoa Gases, the same percentage allowed them in all claims in which they prevailed. Therefore, Samoa Gases is liable to Interocean, for costs, in the amount of $1,440.27.
It is so ordered.
Although we are utilizing the percentages of liability assessed to settling non-parties (PRI and Radiator Specialty), we again note that we are disregarding any actual dollar amounts páid by these parties in settlement. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486254/ | Order Granting Motion for Summary Judgment:
On March 21, 1987, plaintiff Fuifatu Sefo Patau suffered an amputated forearm while working as an employee of Samoa Packing Company. In June of that same year, plaintiff filed a workmen's compensation claim and retained defendants Donald F. Hildre, Luis Casillas-Robles, and Kennedy Crockett Dougherty & Hildre, Attorneys at Law, (hereafter the "Firm") who negotiated and settled plaintiff's workmen's compensation claim. On November 22, 1988, the Firm contacted defendant William H. Reardon regarding representation of plaintiff. Reardon accordingly filed suit on behalf of plaintiff in this Court on March 22, 1989, two years and one day following plaintiff's injury. We held that the action was barred by a two-year statute of limitations, A.S.C.A. § 43.0120(2), and summarily dismissed on May 13, 1991. See Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (Trial Div. 1991). The dismissal was upheld on appeal *8on March 13, 1992. See Patau v. Rosendahl Corp., 20 A.S.R.2d 77 (App. Div. 1992). On March 14, 1994, two years and one day following the decision of the Appellate Division, plaintiff filed an action in this Court, claiming professional negligence by defendants for failure to file his claim within the prescribed limitations period.
The defendants here move for summary judgment arguing that plaintiffs claim against each of them is also time barred. We are, ironically, presented with the question of whether plaintiff's filing of the malpractice claim is, itself, within the applicable prescribed limitation period. For reasons given, we conclude that it is not.
The threshold issue is whether the applicable limitations period is two years or three years. With respect to legal malpractice, this is a case of first impression in the territory. The American Samoa Code Annotated makes no explicit reference to a limitations period for legal malpractice claims. We must, therefore, determine which broad category the present case falls under, and apply the appropriate limitations period.
It is possible to argue, as the plaintiff does, that the relationship between attorney and client is an unwritten contract, that professional negligence is a breach of that contract, and thus to apply A.S.C.A. § 43.0210(3), which provides:
(3) actions founded on unwritten contracts, or brought for injuries to property, within 3 years.
It is also possible to view a professional negligence claim as a personal injury matter, placing it squarely within the meaning of A.S.C.A. § 43.0210(2). The present case, however, does not require a judgment about the legal theory underlying professional malpractice actions. Since the lawsuit underlying the malpractice claim rested on an injury to the person, the two-year limitations period is, in our view, applicable regardless of whether a tort or a contract theory is used to characterize malpractice. A.S.C.A. § 43.0210 provides in relevant part:
Actions may be brought within the following times after their causes accrue, and not afterward, except as otherwise especially declared:
... (2) actions founded on injuries to the person . . . including injuries to relative rights, whether based on contract or tort. . . within 2 years.
*9(emphasis added). The right to recover damages for a personal injury is a right which is "relative" to the personal injury. Professional negligence that undermines the right to recover personal injury damages is, therefore, an injury to a "relative rightQ," or a right which is related to the personal injury. Accordingly, the two-year limitation period applies regardless of the characterization of malpractice as a contract or tort action.2
The motion for summary judgment is, therefore, granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486255/ | Order Denying Motions for Mistrial:
Defendant Tulafono Solaita is on trial for charges brought by plaintiff American Samoa Government ("the government") consisting of two counts of felony stealing, two counts of embezzlement, and three counts of forgery.
On September 29, 1994, during the government's rebuttal evidence, defendant twice moved for a mistrial. The court took these motions under advisement. At the conclusion of final arguments, the court took the entire case under advisement. On September 30, 1994, defendant filed a written motion for a mistrial, supplementing his earlier oral motions. A further hearing on the motions was held on October 7, 1994, with defendant and both counsel present.
*11Today, the court is making a general finding that defendant is not guilty of all counts. Ordinarily, this decision would obviate any need to rule on the motions for a mistrial. However, the court will use this opportunity to discuss significant issues raised by defendant's motions. Thus, we will formally deny his motions for a mistrial before issuing our general finding.
GROUNDS FOR A MISTRIAL
Defendant has based his motions for a mistrial on discovery issues. He claims that he was unfairly prejudiced by the government's (1) unreasonable delay in providing him with a questioned document examiner's report and (2) failure to disclose to him two witnesses' identities before their rebuttal testimony.
RF.UF.VANT FACTS
On September 8, 1994, a U.S. Secret Service questioned documents examiner completed a report for documents relevant to this case. On September 12 or 13, while here on a police training mission, the examiner gave his report to the government’s chief investigator, who in turn gave it to the government's counsel on September 14 or 15. The report was transmitted by facsimile to defendant's counsel on September 16, and again on September 19, when defendant's counsel first saw it. The examiner left the territory on September 18. Defendant objected on the ground that he was deprived of an opportunity to speak with the examiner regarding the report while the examiner was here.
Defendant also objected to the introduction of testimony by two undisclosed rebuttal witnesses. The first witness, a staff member of the government's development planning office, refuted defendant's denial or lack of recollection of personal knowledge of a letter concerning problems with an indirectly relevant federal grant. The second witness, the accounts payable manager at the government's department of treasury, testified to the procedures involved in the preparation of the government's purchase orders and having personally seen the purchase order, the government's "exhibit 5," prepared in her office and, elicited on defendant's cross examination, signed by defendant, who had denied signing this document. Although the accounts payable manager was subpoenaed before defendant testified, the government did not notify defendant of the names and addresses of these witnesses before either one *12testified in rebuttal.1 Thus, defendant did not have opportunity to interview these witnesses prior to their testimony in this rebuttal role.
DETERMINATION CRITERIA
Mistrial issues are usually fact intensive, and, therefore, are largely within the trial court's discretion. United States v. Sanford, 673 F.2d 1070, 1073 (9th Cir 1982); United States v. Gardner, 611 F.2d 770, 777 (9th Cir. 1980). A mistrial is a last resort and should not be declared absent a showing of a "high degree" of necessity, or "manifest necessity." Arizona v. Washington, 434 U.S. 497, 505-07 (1978); United States v. Starling, 571 F.2d 934, 937 (5th Cir. 1978). In granting a mistrial, a trial court must explicitly find no reasonable alternatives. United States v. Grosso, 552 F.2d 46, 52-53 (2d Cir. 1977).
Failure to disclose, or late disclosure of, evidence is prejudicial when the evidence would provide a significant chance of establishing a reasonable doubt that would not otherwise exist. United States v. Agurs, 427 U.S. 97, 112, 49 L. Ed. 2d 342, 354-55 (1975); United States v. Rhodes, 713 F.2d 463, 471 (9th Cir. 1983); United States v. Gardner, 611 F.2d 770, 774 (9th Cir. 1980). The prosecution need not disclose every piece of potentially exculpatory evidence, unless such evidence meets this test for materiality. Agurs, 427 U.S. at 109-10; Gardner, 611 F.2d at 774-75. The materiality test is more rigorous and difficult for the defense than the customary "harmless error standard." Agurs, 427 U.S. at 112.
DISCUSSION
1. The Questioned Document Report
Under T.C.R.Cr.P. 16(a)(1)(D), defendant was clearly entitled to inspect and copy, and did receive, the questioned document examiner's report. However, he urges that the government's late production of the questioned document report infringed upon his right to a fair trial. The report itself is inconclusive as to his guilt or innocence. Nonetheless, defendant argues that the delay deprived him of an opportunity to discuss the report with the *13examiner and potentially discover exculpatory material which he has a right to examine under Brady v. Maryland, 373 U.S. 83 (1963).
To establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence that was favorable to the defense or exculpatory and was material. United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir. 1983). It is not clear that defendant would have elicited any additional exculpatory information if he had been given the chance to speak with the examiner in person. Defendant argues that he could not know how the lost opportunity might have resulted in prejudice without knowing what the examiner might have told him. Potential prejudice alone, however, is not grounds for a mistrial. The Agurs court enunciated the principle that suppression of a. mere possibility does not deprive a defendant of due process of law.
The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.
Agurs, 427 U.S. at 109-10. A defendant must show a "significant chance" that the evidence suppressed by the government would have produced a "reasonable doubt" as to the guilt. Id. at 112.
Defendant shows no more than a "mere possibility" of prejudice, since he cannot establish what the examiner might have revealed if his counsel had interviewed the examiner. Defendant had a copy of the report at least eight days prior to trial. In those eight days, and during the trial, defendant did not seek a telephonic deposition, make any other effort to interview the examiner, or move for a continuance for this purpose. Defendant failed to pursue any alternative, prior to or during trial, which might have provided other explanations of the report more favorable to him and established genuine prejudice.
Defendant encourages the court to declare a mistrial as a deterrent to the suppression of evidence by the government. This court has no evidence of bad faith by the government, other than a possible inference from the delay in transmitting the report. However, we would not infer this fact without more evidence and are not required to consider it in the absence of any showing of actual prejudice. Prosecutorial bad faith is not enough, by itself, to deprive a defendant of a fair trial without a showing that the suppressed evidence meets the materiality test. At issue is the character of the suppressed evidence, not the prosecutor's character:
*14Nor do we believe the constitutional obligation is measured by the moral culpability, or the wilfulness of the prosecutor. If evidence highly probative of innocence is in his-file, he should be presumed to recognize its significance even if he has actually overlooked it. Conversely, if evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed he was suppressing a fact that would be vital to the defense. If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.
Agurs, 427 U.S. at 110 (citations omitted).
2. The Rebuttal Witnesses
Defendant claims that he was denied a fair trial because of the surprise testimony of the government's undisclosed rebuttal witnesses. Defendant asserts that these witnesses' testimony was not responsive to any testimony elicited by the defense and that the witnesses were called in rebuttal merely to avoid pretrial discovery. However, we do not need to consider the propriety of calling these witnesses in rebuttal, since their identities are not freely discoverable in any event.
In 1970, the drafters of amendments to F.R.Cr.P. 16 proposed to require discovery of witness identities by both parties, but the U.S. Congress decided to the contrary. Charles A. Wright, 2 Federal Practice And Procedural, Criminal § 251 at 33 (West, 2d ed.).
C. Rules 16(a)(1)(E) and (b)(1)(C) (witness lists).
The House version of the bill provides that each party, the government and the defendant, may discover the names and addresses of the other party's witnesses 3 days before trial. The Senate version of the bill eliminates these provisions, thereby making .the names and addresses of a party's witnesses nondiscoverable. The Senate version also makes a conforming change in Rule 16(d)(1). The Conference adopts the Senate version.
A majority of the Conferees believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and *15addresses of its witnesses before trial. Discouragement of witnesses and improper contact directed at influencing their testimony, were deemed paramount concerns in the formulation of this policy.
U.S.C.S. Rules of Criminal Procedure, Rule 16, Notes of Conference Committee on 1975 Amendments to Rules (House Report No. 94-414) (emphasis added).
Under the federal rules enacted by Congress, defendant's position was explicitly rejected. Since T.C.R.Cr.P. 16 is patterned after the federal rule, with little variation, we see no reason to adopt defendant's position.
Defendant further argues that American Samoa is an "open discovery" jurisdiction because of local attorneys' long standing practice in criminal cases to fully disclose prosecution evidence to defense counsel. Defendant argues that this long standing practice led to his expectation that open discovery would take place, resulting in unfair surprise when the undisclosed rebuttal witnesses were sworn.
As a matter of policy, this court encourages opposing counsel to cooperate with one another, whenever possible, to facilitate fair and orderly criminal proceedings. However, if the court compels prosecutors to provide the names and addresses of witness just because they have voluntarily provided this information in the past, we would instill a chilling effect on prosecutors, making them wary of cooperation in any case lest they lose their power of choice under T.C.R.Cr.P. 16 or any other rule in future cases. Rule 16 intentionally and reasonably gives prosecutors the flexibility to protect witnesses when necessary.
Defendant's argument that the disclosure of some witnesses misled him to believe that the government had disclosed all of its witnesses is similarly misguided. By granting a mistrial this premise, the court would discourage prosecutors from ever voluntarily disclosing any witness, lest they mistakenly or deliberately omit another witness and subject the case to a mistrial.
3. Impeachment by Nolo Contendere Pleas
Although defendant objected to the introduction of his two prior convictions based on pleas of nolo contendere for purposes of impeachment, he did not pursue this issue in his motions for a mistrial. However, the court is troubled that the government produced this evidence *16and will consider it in this discussion.
The principle at issue is substantively set forth in similar manners in both T.C.R.Ev. 410 and T.C.R.Cr.P. 11(e)(6). T.C.R.Ev. 410 reads, in relevant part: "Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in plea discussions . . . (2) a plea of nolo contendere ...”
Applying this rule, the government acted improperly per se in introducing defendant's two prior convictions.
A plea of nolo contendere is recognized as having no effect beyond the action in which it is entered and no evidentiary value as an admission of guilt. Spencer A. Gard, Jones On Evidence § 13:44 at 510-12 (6th ed. 1972) (explaining F.R.Ev. 410, which T.C.R.Ev. 410 mirrors). Moreover, T.C.R.Ev. 803(22) prohibits the use of a judgment based on a nolo contendere plea in any action under a hearsay exception. Id. (explaining F.R.Ev. 803(22), which T.C.R.Ev. 803(22) mirrors). A nolo contendere plea is provided for the purpose of facilitating compromise in the plea bargaining process by allowing the accused to avoid an admission of guilt and the attendant evidentiary impact of that admission in potential future proceedings. U.S.C.S. Federal Rules of Evidence, Rule 410, Notes of Advisory Committee on Rules.
While it is a clear application of T.C.R.Ev. 410 that the government's use of two former convictions by nolo contendere pleas was improper impeachment, a mistrial is still out of order. As previously stated, a mistrial is a last resort remedy and should only be granted when there is no other available sanction. United States v. Grosso, 552 F.2d 46, 52-53 (2d Cir. 1977).
In a similar case, where a police officer had improperly testified that the defendant had been convicted of attempted murder, the Tenth Circuit upheld the trial court's decision to strike the testimony from the record and instruct the jury to disregard it, rather than granting the defendant's motion for mistrial. United States v. Trujillo, 578 F.2d 285, 286-87 (10th Cir. 1978). A trial court should use its power to declare a mistrial with "the greatest caution" and in a trial by jury, an instruction to disregard inadmissible evidence is generally "sufficient to cure any prejudice to the defendant." United States v. Escalante, 637 F.2d 1197, 1202-03 (9th Cir. 1980). This procedure is the "preferred alternative" unless "there has been so much prejudice that an instruction is unlikely to cure it. ” Id. This *17court' is not prejudiced by having heard the evidence of the prior convictions and, accordingly, will disregard them in considering the force of defendant's testimony. We strike and will disregard the evidence of defendant's two prior convictions resulting from pleas of nolo contendere. In all other respects, the motions for a mistrial are denied.
It is so ordered.
The accounts payable manager also testified during the government's case-in-chief, but only as the custodian of official forms containing specimens of authorized signatures and initials for the government's procurement process. Defendant was notified before trial that the government planned to call various, unnamed record custodians.
This case also raises the question of the date from which a malpractice cause of action-the date of the trial court's judgment of dismissal, or the date on which judgment was affirmed on appeal. We need not decide this issue at this time; even using the latter date, plaintiff's filing is still one day beyond the applicable two-year limitations period. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486256/ | *18On May 12, 1992, Valovalo Aoelua (hereafter "Valovalo") offered the title "Aoelua," attached to the village of Afono, County of Sua, for registration with the Office of the Territorial Registrar. This, offer attracted the objections of Manu Mika Lealai (hereafter "Manu") and Fetulele Levea Tagoa'i (hereafter "Fetulele"). After the requisite conciliatory attempts before the Office of Samoan Affairs, the Secretary of Samoan Affairs certified an irreconcilable dispute and the matter was then referred to the Land and Titles Division. Trial was set for September 8, 1994, at which time only Valovalo and Manu appeared ready for trial whereas Fetulele informed the court that he was withdrawing his succession claim. After several days of testimony, the matter was taken under advisement.
We are guided in these matters 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
Both candidates measured entitlement to his nearest ancestor who held the Aoelua title. On this issue, Valovalo clearly prevails. His father was a former titleholder and thus his degree of hereditary right is 50%. By comparison, Manu claims his hereditary degree to be 12.5%, tracing his ancestral line to his great-grandfather, Moke, whom he claims was also a titleholder.
2. Wish of the Clans
On this issue, the parties were hopelessly at odds as to the family's clans. According to Valovalo's family history, which seems to have varied since the last time this title was previously contested in court, there is only one traditional clan, Leuluvao. Manu's family history, on the other hand, defines clans somewhat novelly, if not oddly, in terms of the five issue of his great-grandfather, together with two other former titleholders, Aoelua Salipopo, said to be his great-grandfather's brother, and Aoelua Uale.
The evidence suggests, however, that in terms of family affairs, the contemporary family practice seems to have evolved with family sides translated roughly in terms of the most recent titleholders. Suffice it to say, however, neither side has presented credible proof of family clan support, simply because this rather divided family has never really met as *19a whole to address the issue of a succeeding titleholder. The evidence merely shows that certain family factions had at different times convened for the purpose of nominating a titleholder. Therefore, the best that can be claimed by each candidate is some family support, but neither the majority nor a plurality of clan support as mandated by A.S.C.A. § 1.0409(c)(2). In these circumstances, we find that neither candidate prevails on this criterion.
3. Forcefulness, Character and Personalty, and Knowledge of Samoan Customs
As to knowledge of Samoan customs, both candidates fared roughly equally well in their responses to the examination by the Associate Judges. In terms of forcefulness, character and personality considerations, we rate Valovalo ahead of Manu. Valovalo has the more impressive education and work credentials. After High School, he joined the United States Navy and subsequently retired after 20 years of active duty. After returning to the territory, Valovalo attended some classes at the American Samoa Community College and began working for the Department of Port Administration in various managerial positions, rising eventually to the position of deputy director of the department which he holds to this day. Manu's accomplishments, on the other hand, while equally important to the community, do not bespeak the same drive and level of ambition shown by Valovalo. Manu, a carpenter by trade, now enjoys retirement after almost 26 years of service rendered to the government. One serious character flaw which Manu has displayed, however, and which has also weighed against him, is his contempt for the law which prohibits the unlawful use of a matai title. See A.S.C.A. §§ 1.0401 et seq. For many years, he has held himself out unlawfully as an Aoelua titleholder within the village, county, and even to the extent of presenting himself to the government for the position of County Chief under the pretext of holding the Aoelua title. Manu's defense in this regard is ignorance of the law, a claim that we find to be neither believable nor an excuse.
In our evaluation of the parties, we rate candidate Valovalo ahead of Manu on forcefulness, character, and personality, but equal on knowledge of Samoan customs. Accordingly, we find Valovalo to prevail over Manu on this consideration.
4. Value to Family, Village, and Country
Both candidates have been involved in various ways in both family and village concerns, including service to their respective churches. On this *20requirement, we find that neither candidate particularly surpasses the other in this regard and, accordingly, we rank them equal.
CONCLUSIONS
Based on the foregoing, we hold that Valovalo Aoelua is qualified to hold the title Aoelua. He prevails over Manu Mika Lealai on the first and third criteria with neither prevailing with regard to the second and fourth. The Territorial Registrar shall, therefore, in accordance with the requirements of A.S.C.A. § 1.0409(b), register the Aoelua title from the village of Afono in candidate Valovalo Aoelua.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486257/ | On January 9, 1992, Te'o J. Fuavai (hereafter "Te'o") filed his *21application with Territorial Registrar to register the matai title "Olomua" from the village of Aoa. Laumoli Sasa (hereafter "Sasa") objected and sought succession to the title himself. There being no resolution to the dispute before the Office of Samoan Affairs, the matter was referred to the Land and Titles Division.
In matai title disputes, the Court is guided by the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) the wish of the majority or plurality of the clans in the family as customary in that family; (3) forcefulness, character and personality, and knowledge of Samoan customs; and, (4) value to the family, village, and country.
FINDINGS
1. Hereditary Right
On this consideration we find that both candidates are heirs to the title Olomua. Both candidates trace descent to Olomua Aipouliuli; we find Laumoli's degree of hereditary right to be l/16th and Te'o's to be 1/32. Laumoli prevails on this criterion, being one generation ahead of Te'o.
2. Wish of the Clans
Although each party has named multiple clans in their answers to questionnaires filed in this matter, neither has been able to satisfactorily explain the basis of his claim. We find on the preponderance of the evidence that the original titleholder was Olomua Aipouliuli. According to the genealogies of both candidates, this Olomua appears to have had only one issue. In the traditions of Te'o's side of the family, she was known as Teuaililo, while in Laumoli's family history, she was known as Tailevasa. This tends to suggest that the Olomua family is not a multiple clan family, and we so find.
With regard to the wish of the family on a successive titleholder, we find that the Olomua family did not meet on the matter prior to the title being offered for registration and had not, therefore, had the opportunity to address the issue of appointing a matai successor. Rather, what we see here on the evidence is a recurring practice that we have noticed with other family disputes, where an impatient family faction imposes, rather fruitlessly, its own agenda to wrest matai pule for itself by presenting the kava cup to one of its own, and thereby inciting a reaction from yet another faction to offer the family's matai title for registration, before the family even convenes to address the issue of matai succession. Subsequent *22fámily meetings are then seldom conciliatory. We find that neither party has been able to demonstrate a majority of clan support.
3. Forcefulness, Character and Personality, and Knowledge of Samoan Customs
In our assessment of the parties, we rank both candidates equal with respect to their knowledge of Samoan customs. As to forcefulness, character and personality, we find both candidates to be rather forceful personalities; however, we find candidate Laumoli to be forceful to a fault. As an untitled person, he has unilaterally attempted to assume matai control within the family; he asserted pule over family lands, unlawfully destroyed plantations of another Olomua family member whom he thought was undeserving, and called family meetings on the premise that he and others, referred to equivocally as the "aiga tau maota," were exclusively entitled to convene family gatherings to select a matai. These áre hardly actions that demonstrate the leadership necessary to promote peace and harmony within the family.
Te'o's forcefulness, on the other hand, has demonstrated the sort of leadership quality that has made him an important member of the community. From humble beginnings as a clerk with the Customs Division, he has risen to such leadership positions as Speaker of the House of Representatives, Commissioner of Public Safety, Director of Public Works, and delegate for his county to a number of the territory's ■constitutional conventions; he has participated on a host of other government and public agencies. In addition to an active life of public service, Te'o has also maintained a small family business. At the same time, he has been a leading matai within the Aoa village council, as the Te'o titleholder, for twenty-six years, and has thus enjoyed the sort of deference accorded to matai of many years standing and visibility within the community. We find that Te'o prevails on this consideration.
4. Value to Family, Village, and Country
Laumoli has spent most of his life in the ministry of the church and his vocation has principally taken him off-island. Although we do not marginalize the importance of an ecclesiastical career and the revered role of the pastor in Samoan society, the secular role which Laumoli now seeks is one in which Te'o has undeniably had the greater experience. Te'o has naturally had mofe involvement with family, village, and government affairs. The evidence shows that as a government leader, Te'o has been able to voice the concerns of both his villagé and county councils in the *23policy making process of the territory; he has also been able to effectively ensure that Aoa and the other adjacent North Shore villages acquired their fair share of ongoing government capital improvement projects relating to roads, erosion conservation, schools, water, and street lighting. As a ranking matai, Te'o has for many years been able to voice his family's concerns within both the village and county councils. In short, he can point to better rapport with village, county, and government officials; he can thus'.point to a track record for more effective service to the family, village, and country. We rate Te'o ahead of Laumoli on this consideration.
CONCLUSIONS
Based on the foregoing, we conclude that Te'o J. Fuavai is qualified and suited to hold the title Olomua. Although Laumoli prevails over Te'o on the first criterion, Te'o prevails on the third and fourth. In accordance with A.S.C.A. § 1.0409(b), the Territorial Registrar shall, therefore, register the matai title Olomua from the village of Aoa in candidate Te'o J. Fuavai. Consistent with the requirements of A.S.C.A. § 1.0402, the Territorial Registrar shall ensure that Te'o first resigns the matai title Te'o before being registered as the next Olomua titleholder.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486258/ | Order of Dismissal:
On September 20, 1990, Vaaitautia T. Talamoni ("Talamoni") filed with the Territorial Registrar's Office his claim to succession to the matai title Niumatalolo attached to the village of Aua. Fifty-two signatories subscribed to Talamoni's claim, each proposing to be qualified family heirs to the title. On December 12, 1990, Tavita Tufaga ("Tufaga") filed his objection and counterclaim, which was supported by fifteen allegedly qualified family heirs to the title. Since his succession claim was short of the required twenty-five supporting family signatories pursuant to A.S.C.A. § 1.0407(b),1 he additionally filed an affidavit under A.S.C.A. *25§ 1.0407(d),2 stating that the family had less than twenty-five qualified family members. The matter was then duly submitted by the Territorial Registrar, pursuant to A.S.C.A. § 43.0302, to the. Office of Samoan Affairs.
On September 6, 1991, the Secretary of Samoan Affairs certified an irreconcilable dispute to the Land and Titles Division of the High Court in accordance with A.S.C.A. § 1.0409. Pursuant to T.C.R.L.T. 3, each party filed his answers to questionnaires and the matter was set for trial on July 2, 1992. Trial, however, was continued on the stipulation of counsel because one of the parties was undergoing a major fnedical operation. The matter then lay dormant until July 21, 1994, when Tufaga filed his motion to have the title Niumatalolo awarded to him by default since Talamoni had passed away. This motion came regularly before the Court on August 24, 1994. The motion was denied. However, the matter was continued, by way of a show cause hearing, in order to give Tufaga time to be heard on the issue of whether his succession petition should not be dismissed for failure to comply with the requirements of A.S.C.A. §1.0407(b).
At the show cause hearing, held on October 28, 1994, Tufaga presented no evidence and submitted the matter on his Memorandum of Points and Authorities filed herein. His principal contention seems to be that his case is distinguishable from In re Matai Title I'aulualo, 25 A.S.R.2d 116 (Land & Titles Div. 1994),3 since the candidate in I'aulualo was disqualified on "documentary evidence and that of his own, ” which proved his A.S.C.A. *26§ 1.0407(d) affidavit to be factually incorrect; whereas in the matter before the court, no evidence has been presented contradicting his own corresponding A.S.C.A. §1.0407(d) affidavit-to the effect that the Niumatalolo family has less than twenty-five qualified family members.
We note that claimant Talamoni had fifty-two supporting signatories to his verified petition, which immediately suggests that the Niumatalolo family exceeds twenty-five in number. Additionally, Talamoni obtained another ninety-one signatories, each claiming to be qualified family members of the Niumatalolo family. Tufaga, however, provided no evidence to disprove the claims of the signatories to Talamoni's petition that they were qualified family members. Tufaga has failed to show cause and accordingly we hold that his counterclaim is defective for failure to comply with the requirements of A.S.C.A. §1.0407(b). The succession claim of Tavita Tufaga, Jr., to the title Niumatalolo is, therefore, dismissed without prejudice, and the matter of a successor to the Niumatalolo title is hereby remanded back to the Niumatalolo family.
It is so ordered.
This enactment requires that "[a] counterclaim or objection must be supported by a petition signed by no less than 25 persons related by blood to the title in question" (emphasis added).
This enactment provides that "[i]n the event the family does not have the number of members qualified as required to support the counterclaim or the objection, the counterclaimant or objector shall so state in a signed affidavit." It is to be noted that the exact same requirement is also required of an initiating claimant. See A.S.C.A. § 1.0405(b).
In In re Matai Title I'aulualo, we rejected an argument that merely filing an A.S.C.A. §1.0407(d) affidavit excused an objector/counterclaimant from A.S.C.A. §1.0407(b)'s mandate of twenty-five supporting family signatories when the affidavit proved to be factually incorrect. Accordingly, we dismissed an objection/counterclaim that contained less than the statutorily mandated twenty-five qualified supporting family signatories. Similarly in In re Matai Title Patea, 25 A.S.R.2d 139 (Land & Titles Div. 1994), the Court also rejected the succession claim of an objector who could only muster seventeen supporting family signatures. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486259/ | Order Granting Motion for Early Production of Subpoenaed Documents:
Plaintiff. American Samoa Government ("ASG") caused service of a subpoena duces tecum on the Amerika Samoa Bank ("ASB") and, pursuant to T.C.R.Cr.P.. 17(c), moved to require early production of the documents to the court. The motion was heard on November 4, 1994, with counsel for both parties present. Through counsel, defendant Fanuaea Theresa Gurr Leiataua waived her right to be present. At the hearing, ASB questioned the applicability of the federal financial privacy laws, 12 U.S.C. §§ 3401 et seq., in particular 12 U.S.C. § 3407, setting forth several requirements, including notice to the account holder, when bank-possessed documents are subpoenaed.
12 U.S.C. §§ 3401 et.seq. apply only to agencies and officials of the United States Government. In this context, ASG is not a federal agency. The High Court of American Samoa is not a federal court. High Court justices and judges are not federal officials when performing their judicial functions. In short, 12 U.S.C. §§ 3401 et seq. are not applicable to and do not restrict the judicial processes of this court.
The court grants ASG's motion for early production of the subpoenaed documents. ASB shall deliver those documents in its possession to the clerk of this court no later than 4:00 p.m. on November 8, 1994.
It is so ordered. ASB is advised that if it fails without good cause to comply with this order, it is guilty of contempt of court and may be punished therefor. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486260/ | Order Denying Petition for a New Election:
Lavea Sealiitu F. Mauga (hereafter "Mauga") and Elisara T. Togia'i (hereafter "Togia'i") are candidates for the American Samoa House of Representatives, Vaifanua County, Voting District #3. The election for District #3, held November 8, 1994, resulted in a tie between Mauga and *29Togia'i, each having polled 241 votes.
On November 14, 1994, Mauga and Togia'i filed separate complaints with the High Court praying for a new election to decide who should be seated in the House of Representatives, rather than submit to a decision by lot pursuant to A.S.C.A. § 6.0901. This enactment reads:
In the case of failure of an election by reason of the equality of vote between 2 or more candidates, the tie shall be decided by lot, under the supervision of the chief election officer. When an election is decided by lot, the candidates may agree in a signed statement to the use of the lot. If the candidates agree, they shall be bound by the lot and shall not bring an election contest under sections 6.0902 and 6.0903 after the drawing of the lot. Each candidate shall be present at the drawing of the lot together with 2 witnesses to be selected by him. (Emphasis added.)
Mauga argues that the election should be declared invalid "because it cannot be determined that a clear majority or plurality of votes [was] cast in said election and the defendant, Chief Election Officer, cannot certify any candidate elected from District #3 after the November 8th election." Complaint para. 6. Togia'i seeks the same relief arguing that no candidate has been "elected" in his district in accordance with Article II, Section 3(c) of the Revised Constitution of American Samoa.1 He also cites A.S.C.A. § 2.0302, which uses language outlining "the number of representatives to be elected therefrom, (emphasis added) to further assert that the use of a lot is in violation of the constitutional requirement that representatives be "elected."
We have consolidated these matters for hearing and for reasons given we deny the relief sought. Contrary to Mauga's submission, the Legislature has expressly and unambiguously provided for a decision in a tie vote situation, by the drawing or casting of lots. A.S.C.A. § 6.0901 is couched in mandatory language.2 We fail to see anything in the *30American Samoa Electoral Reform Act of 1977, A.S.C.A. Title 6, which provides any basis to the suggestion that a new election is an available alternative, to A.S.C.A. § 6.0901, to be invoked at the option of the candidates. We note that while A.S.C.A. § 6.0901 goes on to state that "candidates may agree in a signed statement to the use of lot," this does not mean that they may by stipulation excuse themselves from the mandated lot process, and, thereby, demand a new election. Under the terms of the statute, the candidates have the opportunity to stipulate to be bound by the result of the lot; i.e., they may agree that the result of the draw shall be final and unappealable. In contrast, the candidate who does not wish to be bound by the use of a lot will have merely reserved his access to judicial review in the normal course. Finally, Togia'i's argument, that a tie vote does not result in an "elected" representative, is unsupported. A candidate that wins an election by lot satisfies the "elected" requirement. Article II, § 4 of the Revised Constitution of American Samoa provides that "[representatives shall be chosen by secret ballot of the qualified electors of their representative districts." In this case, the candidate who prevails by lot, pursuant to A.S.C.A. § 6.090.1, will have been placed in the position to prevail because he received 241 votes of valid electors. A provision that a tie vote shall be settled by drawing lot has been held not to be in conflict with a constitutional provision that elections shall be by ballot. See Johnston v. State, 27 N.E. 422 (Ind. 1891). The Indiana Supreme Court reasoned:
[Ajppellant's counsel ingeniously and plausibly argues [sic] that the provision [requiring that the election be decided by lot in the case of a tie] is invalid, for the reason that it is conflict with the provision [in the state's constitution] that all elections shall be by ballot. . . . Such a statute as the one before us does give the electors an opportunity to vote by ballot, and affixes to each vote the force it is possible to assign it.
*31Id. at 423.
The lot provision, A.S.C.A. § 6.0901, is merely a procedural mechanism devised to supplement the election process in case of the unlikely event of a tie result at the ballot boxes. The use of this procedure does not invalidate any votes of the qualified electors, nor does it taint the requirement that they be elected by secret ballot, since the lot comes into play as a result of the balloting process.
We hold that A.S.C.A. § 6.0901 is not inconsistent with the provisions of the Revised Constitution of American Samoa and, therefore, deny the petitions for a new election. The matter is accordingly remanded to the Chief Election Officer for resolution of the tie election result in District #3 in accordance with A.S.C.A. § 6.0901.
It is so ordered.
Article II, § 3 of the Revised Constitution of American Samoa states in relevant part, "[a] representative shall. . . have been a bona fide resident of the representative district from which he is elected for at least one year next preceding his election . . . . ” (emphasis added).
Cf. Cal. Ann. Elec. Code § 20501, which also requires that a tie vote in California's elections be similarly broken, with the provision that the *30"Secretary of State shall...determine the tie by lot." (emphasis added). Hawaii, on the other hand, takes the position that the lot is an optional method of settling a tie with language which provides that a tie may be decided by lot." Hawaii Statutes Revised, § 11-157 (emphasis added). We note that American Samoa's statute uses the precise language of the Hawaii statute, except that the Fono has substituted the word "shall" in lieu of Hawaii's choice of the word "may." This indicates that the substitution is deliberate and that the statute intends to make the lot binding. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486261/ | INTRODUCTION
Plaintiffs are husband and wife and are residents of Iliili, American *32Samoa. Defendant, National Pacific Insurance Ltd., is an insurance company duly licensed to sell various forms of insurance in the territory. At all relevant times, plaintiffs' home, a two-story concrete frame structure with the first floor largely unenclosed, was insured by defendant against fire and cyclone damage for the sum of $100,000. In December 1991, the home suffered considerable damage as a result of Hurricane Val. On March 18, 1993, plaintiffs filed suit for the full amount of the policy, contending "total loss" to their home which they claim was rendered structurally unsound by the hurricane. Their complaint further prays for interest and attorneys fees.1
Defendant, on the other hand, claims that plaintiffs' home was structurally defective even before the hurricane because it was inadequately designed and poorly constructed. In the way of a settlement offer, defendant tendered with the Clerk of Courts on April 1, 1993, payment in the sum of $17,597.00.
Following the storm, defendant employed Mr. Hamish Thew, an off-island loss adjustor, to examine its hurricane Val claims exposure, including plaintiffs' loss. Mr. Thew testified that he was trained and qualified in the United Kingdom as a "surveyor," and that he became a member of the *33Royal Chartered Institute of Surveyors. He further explained that as a surveyor, he is involved in the building industry in the estimation of both quantity and cost of material needed for any given building project. With regard to plaintiffs' loss, Mr. Thew testified that he had undertaken a "measured" estimate of what he perceived as storm-related damage and calculated plaintiffs' repair costs to be $19,552. He further testified that his figures reflected his own assessment of needed labor costs, as well as his estimation of material costs based on price lists that he had obtained from one of the local builder's suppliers.
Plaintiffs, on the other hand, engaged architect Joe N. Weilenman, formerly head of the Architectural and Engineering Division of the Department of Public Works but presently in private practice, to assess their storm damage. Mr. Weilenman appraised plaintiffs' repair costs at $49,640.00, using a "percentage evaluation" of damage method (versus a "detailed quantity take off of items damaged") because of what he viewed as extensive damage to the roof and second floor area. He found the house to be 45 percent damaged and arrived at his repair estimate figure using $30.00 per square foot on overall basis, the local building industry's considered norm at the time.
Additionally, Mr. Weilenman noted, in his initial report dated December 24, 1991, that some of the concrete beams supporting the second floor were cracked above the columns. He speculated that the cracks could have been the result of "excessive deflection" caused by the storm, but he could not positively say so since he also found that "the beams [were] not .cracked at mid-span," where, according to his testimony at trial, cracking is prone to occur with deflection. His report further stated that if "the cracks ... are definately [sic] attritable [sic] to this disaster and are deemed to have significantly weakened the structure, the percentage of damage would be higher."
One year later, Mr. Weilenman was asked to look at the beams again. This time, he found two cracks "at mid-span," along with those he had previously located above the columns. In his second report, dated February 4, 1992, he stressed that the "immediate structural effects have not been investigated," and concluded that a definitive answer to the question as to whether the cracks were storm-related or not could only be resolved with extensive investigation and testing of the structure.
DISCUSSION
The issue here is whether the structural unsoundness of plaintiffs' home *34was storm-related or not. Nothing restorative has been done to the structure since the storm, and as it stands today, it is unsafe for rebuilding. The defendant concedes that it is liable for storm damage; however, it contests liability for pre-storm damage which it claims was gravity-related due to poor design and construction.
Plaintiff Ray McMoore testified that there were no cracks in the beams prior to hurricane Val. He stated that he used to spend a lot of time sitting on the ground floor and that he had never noticed any cracks at all on the beams until after the storm. He further testified that he was in the house during hurricane Val as well as the previous hurricane Ofa, and that hurricane Val appeared to him to be.the worse experience. He alluded to "pop[ping]" sounds to the structure as hurricane Val's winds changed direction.
Mr. Weilenman theorized in his second report that if the cracks to the beams were indeed caused by the storm, they could have arisen if the storm had momentarily shifted the weight of the second floor slightly from the supporting concrete frame, and then upon release, could have resulted in deflection causing the beams to crack. At the same time, however, Mr. Weilenman also opined that since the cracks were quite small, some could have been pre-storm and not noticed before.
We find the evidence to preponderate in favor of the conclusion that the cracks above the columns, discovered by Mr. Weilenman during his first inspection, preexisted the storm. First, Mr. Weilenman testified that the structure appeared to him to be ill-designed and poorly constructed; the beams, for example, were found to be sagging at the mid-span. Mr. Thew also made averments regarding the substandard quality of the construction. Second, Mr. Weilenman opined that cracks resulting from excessive deflection are more likely to appear at mid-beam. In this regard, we find it significant that Mr. Weilenman had failed to see any sign of mid-beam cracking during his first inspection immediately after the storm. This seems to suggest that the two mid-beam cracks that Mr. Weilenman located one year after the storm were more likely the result of subsequent deterioration. As Mr. Weilenman noted in his second report, "[c]racks in concrete beams in this environment do accelerate the deterioration of the steel over a period of time." Thus the structure's extended post-storm exposure to the elements and its consequent deterioration would have further aggravated the structural unsoundness of the concrete frame, which both Mr. Weilenman and Mr. Thew agree cannot be safely rebuilt upon as it stands today.
*35Third, the evidence also disclosed "creeping" in the beams, causing them to bend in toward the middle. While this is usually attributed to gravity because of ill-design, Mr. Weilenman did also suggest that sagging form-work could possibly explain creeping in an otherwise properly designed structure. As to this possibility, however, Mr. Weilenman was careful to add that he had no comment as to adequacy of the structure's design, as he was not a party to the design work nor was he present during the building of the structure. We parenthetically add that while the law requires that all design work be submitted for approval by the Public Works Department's Engineering Division-previously headed by Mr. Weilenman-we were not told why the plans for plaintiffs' home were not, or could not have been, produced for appropriate review in anticipation of trial.
Finally, although Mr. Ray McMoore may not have noticed any cracks in the beams prior to hurricane Val, this does not necessarily mean, as Mr. Weilenman conceded, that there were no pre-storm cracks. As the latter further attested, the cracks found were "small to hairline" and he had to look closely to see them.
On the issue of damages, we are required to compare the diverging opinions of two trained professionals, which is a difficult, but necessary part of our task as factfinders. We find that plaintiffs' storm related damages are more likely in the vicinity of Mr. Weilenman's assessment, as opposed to defendant's calculation of $19,552. In our view, the damage sustained was extensive and Mr. Weilenman's assessment, using the local building industry's cost per square foot yardstick, better takes into account the vagaries of the available local labor market skills at the time of loss, as well as the sort of latent damage which necessarily accrues with extensive water damage~a thoroughly soaked second floor, the need to check all electrical wiring and connections, expected warping, delamination, rusting of fasteners, as well as general deterioration. We accordingly fix plaintiffs' storm-related damages at $50,000.
Judgment will enter in favor of plaintiffs Ray and Purinisese McMoore against the defendant National Pacific Insurance Ltd. in the amount of $50,000.
It is so ordered.
Although plaintiffs' complaint contains a prayer for relief to this end, these claims were not addressed at trial. We express no opinion on these matters save to note A.S.C.A. § 29.1577, which provides in pertinent part:
In all cases where loss occurs and the insurer liable therefor fails to pay the same within the time specified in the policy, after demand [is] made therefor, the insurer is liable to pay the holder on the policy, in addition to the amount of such loss, 12% damages on the amount of loss, together with all reasonable attorney's fees for the prosecution and collection of the loss, the attorney's fees to be taxed by the court ... as part of costs . .
The statute seems to be punitive, rather than compensatory, in design. It seems to require a showing as to when the policy becomes due and payable under its terms, and that a "demand" has been made. Furthermore, the enactment talks about attorney's fees being "reasonable.'' On the premise that the statute is punitive in nature, some showing of fault or bad faith on the part of insurer would seem to be envisaged. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486262/ | Opinion and Order:
Plaintiff Troy Fiaui ("Troy") brings this action to recover the cost of repairs to his 1989 Isuzu pickup, loss of its use, damages for intentional infliction of emotional distress, punitive damages, and attorney's fees and costs. Through counsel, Troy and defendant Sánele Faumuina ("Sánele") reached a settlement before trial. The trial as to defendant Pita Taliva'a ("Pita") took place on June 10 and 13, 1994.
STATEMENT OF FACTS
The underlying incident in this action occurred at Nam’s store in the Village of Leloaloa in American Samoa at about 10:00 p.m. on Saturday, September 7, 1991. Around 5:00 p.m., Troy and three friends had purchased two cases of large-bottled beer and began consuming them in their Village of Auto, which is east of Leloaloa. Later that evening, Troy drove his friends in the pickup to the vicinity of the American Samoa Government's port facilities in the Village of Fagatogo, which is located west of Leloaloa, where they consumed more beer. On the return to their village they stopped at Nam's store to buy something to eat. Troy purchased a package of frozen mussels from the sales clerk and Sitoa Masoe ("Sitoa"), one of Troy's companions, took the mussels across the road to defrost them in Pago Pago Bay. Shortly thereafter, Troy decided to eat the mussels and found that they tasted and smelled bad.
Troy returned to Nam's store to exchange the package of mussels for a new one, but encountered resistance from the sales clerk. Nam Jun Gul, the store's owner, heard the dispute and came down from the second floor to the store below. Nam was reluctant to exchange the mussels because he had just procured the mussels the day before and Troy had already opened the package, but after further discussion, Nam detected a kerosene-*38like smell to the mussels and agreed to the exchange.
While agreement on the exchange was being reached, Sitoa entered the store and in a loud voice called Nam a crook, cursed him, and demanded a case of beer. Troy sought to control Sitoa and ushered him outside. Nam immediately closed the store and boarded the front windows. His regular closing time was at hand, as the 10:00 p.m. village curfew hour began.
Some members of the village aumaga, or young men's organization, began assembling to patrol the village and enforce the 10:00 p.m. curfew when their attention focused on the commotion at Nam's store.
Meanwhile, someone had telephoned Faumuina lone ("Faumuina"), the sa'o, or senior chief, of the Faumuina family who owns the land on which Nam's store is located. lone also owns the store building and lives in the house immediately next to the store. At the time, Faumuina was in the Village of Aua, a short distance to the east, with his son, Sánele, and his son-in-law, Pita.
Sánele and Pita persuaded Faumuina to let them return to Nam's store and investigate the reported disturbance. When they arrived the aumaga were gathering near the front of Nam's store. Troy decided to leave when one aumaga member that he knew told him about the curfew, but as he attempted to drive away with his companions, Sánele parked his Ford sedan in a manner that temporarily blocked Troy from driving onto the main road. Sánele and Pita got out of the sedan and Sánele reached inside Troy's pickup, turned off the ignition, and removed the key.
The immediate instigator of the melee that next took place is disputed. Troy testified that Sánele ignored his inquiries about the taking the key and walked towards the rear of the pickup. At the same time Pita allegedly hit Sitoa, who was seated in the pickup bed, on the back of his head with a bottle. Next, as Sánele appeared to be approaching Sitoa, Troy threw a bottle at Sánele. The aumaga members then began the ensuing rock and bottle throwing contest between Troy's group and the aumaga, Sánele and Pita.
Pita denied striking Sitoa with or without any object. He claimed that Sitoa was standing in the pickup bed and that the melee began because Troy threw a bottle at Sánele. In another version, Filipo Tualo, a member of the aumaga presént, testified that the onslaught commenced when Sitoa threw a bottle moments before Sánele and Pita arrived.
*39We are persuaded that the following most likely occurred. First of all, the aumaga interpreted the situation as an intrusion to the sanctuary of their village and, armed themselves with rocks in anticipation of possible open warfare. Further, as essentially simultaneous events, without one being the immediate cause of the other, Pita struck Sitoa with an object while he was in the back of the truck, and Troy threw a bottle at Sánele. Next, the aumaga jumped in, almost instantaneously, and escalated the physical hostilities between the two groups.
We cannot conclude from the evidence who threw what particular object and with what result, but certain events of some significance are evident. Pita removed the sedan to relative safety near Faumuina’s house and went to the side of Nam's store where a principal source of the thrown rocks was located. Troy struck Sánele on the shoulder with a bottle as he was walking to Faumuina's house. A short time later Sánele was seen with a gun. Direct testimony was offered that, at a minimum Sánele fired the gun into the air, ostensibly to bring matters under control. Vastly outnumbered and fearing for their safety, Troy and his group retreated to a passing aiga bus to return to Aua. Later, Troy returned to the site of the incident and found his truck severely damaged.
Certainly, intoxication played a major part in the events at Nam's store. Of particular significance, Sitoa had consumed a substantial quantity of beer and reached the point of manifest inebriation when the episode at Nam's store began. His intoxicated behavior was a significant contributing factor to the confrontation that followed. Troy, a commissioned harbor patrol officer, testified to only drinking one to two beers. It is evident that he did not drink as much as Sitoa, but it appears that he consumed more beer than he admitted.
According to the evidence, Troy's other two companions also consumed their share of beer, but their precise role in the situation was not directly demonstrated by evidence. No one was permanently injured during the object-throwing fray, but Troy's pickup did not fare so well. Although it had already suffered minor damage before Troy and his companions retreated, by the time the aumaga was finished, the truck was destroyed. The front grille was removed; the windshield and rear window of the cab were smashed; the headlights and at least one taillight were broken; the body was dented and scratched in numerous locations; and many bullets were shot into the rear of the cab.
The pickup would have ended up in Pago Pago Bay had not Sala Uti, Leloaloa's pulenu'u, or mayor, intervened. He stopped the aumaga as *40they attempted to navigate the pickup over a dirt embankment into the water and forced them to leave. Sánele and Pita were present when the pulenu'u arrived. Even though they assisted, the evidence of their role as leaders during the devastation of the pickup was not convincing.
DTSCUSSTON
I. Joint and Several Liability
The primary issue is whether Pita is at fault, and if so should he be liable for all of Troy's damages. In other words, even though Pita is not the lone tortfeasor, is he joint and severally liable for the harm caused to Troy?
The general rule covering joint and several liability is that when two or more persons legally cause harm to another, each is liable for the entire harm. Gorelick v. Dept. of State Highways, 339 N.W.2d 635, 643 (Mich. Ct. App. 1983); Restatement (Second) Of Torts, § 433A (1965). If the tortious acts concurrently1 cause a single indivisible injury, then those who-committed the acts are liable as joint tortfeasors, Margain v. Maize and Blue Properties, Inc., 753 F.2d 47 , 49 (6th Cir. 1985), and as joint tortfeasors, they are jointly and severally liable for compensatory damages. Clark v. Bunker, 453 F.2d 1006, 1011 (9th Cir. 1972).
The principle behind concert of action is that the participants are not acting independently, but are jointly engaged in a common tortious endeavor that is the proximate cause of the plaintiff's injury. Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1015 (D.S.C. 1981). A participant in a tortious act is jointly and severally liable for harm resulting to a third person if the tortious act is done in concert with another, or if the participant knows (hat another's conduct constitutes a breach of duty and gives substantial assistance or encouragement, whether or not the participant's own conduct, separately considered, constitutes a breach of *41duty to the third person. Restatment (Second) Of Torts, § 876 (1979).
Concert of action has been found in group assault and battery, conversion, and trespass. Ryan, 514 F. Supp. at 1015. Pita, Sánele and the aumaga, acted in concert in damaging Troy's truck. They blocked the travel of Troy's truck and withheld the keys so he could not leave. Next, they jointly damaged the vehicle by striking it with stones, removing parts, and shooting at it a number of times with a gun. Pita substantially assisted and encouraged the group throughout these events. These actions resulted in an intentional tort that was the proximate cause of plaintiff's injury. But for the actions of Pita, Sánele and the aumaga, Troy would not have sustained any harm. Since they acted in concert to cause these damages, Pita is jointly and severally liable for Troy's compensatory damages.
Many courts now apportion damages among joint tortfeasors instead of applying joint and several liability, but only when it is feasible. Apportionment is feasible when the plaintiff has suffered factually separable or. divisible harm that can be allocated among tortfeasors with reasonable certainty. Margain v. Maize and Blue Properties, Inc., 753 F.2d 47, 49 (6th Cir. 1985). If apportionment is reasonable, then each tortfeasor is subject to liability only for the portion of the total harm that each has personally caused. U.S. v. Monsanto, 858 F.2d 160, 171 (4th Cir. 1988); Rauscher v. Halsted, 557 P.2d 1324, 1326 (Wash. Ct. App. 1976) (apportioned damages was feasible among tortfeasors who trespassed on plaintiff's land and cut down trees, because defendant only cut two of 32 trees and is ascertainably liable for one-sixteenth of the total damages).
In this case, the damages cannot be apportioned with reasonable certainty. It cannot be known who threw how many rocks or shot how many bullets at plaintiff's truck; only that defendant intentionally participated in the destruction of the vehicle. This was a single incident and due to the number participants that acted together and the surrounding events, the harm cannot be divided in a reasonable manner. Therefore, apportionment of damages is not feasible.2
Moreover, even if apportionment could be reasonably applied, joint and several liability remains the rule for intentional torts. Haynes v. *42Manning, 717 F. Supp. 730, 737 (D. Kan. 1989); Lynn v. Taylor, 642 P.2d 131, 135 (Kan. Ct. App. 1982) (no authority for including an intentional tort within the realm of comparative fault principles). We do not see any principle or other valid reason warranting any modification of the joint and several liability rule in this intentional tort situation.
II. Intentional Infliction of Emotional Distress
Troy claims that Pita's actions placed him in great fear for his life and prays this court for $10,000 in damages resulting from intentional infliction of emotional distress. Damages for intentional infliction of emotional distress are usually only awarded for mental suffering so extraordinary, vindictive, extreme, or outrageous as to give rise to a cause of action for intentional infliction of emotional distress. Kajtazi v. Kajtazi, 488 F. Supp. 15, 20 (D.N.Y. 1978).
The conduct of Pita and the others was not beyond all bounds usually tolerated by decent society, or of a nature which causes mental distress of a very serious kind. Restatement (Second) Of Torts, § 46, cmt. g (1948). The aumaga was defending their village, and Troy and his companions participated in the escalation of the incident. We do not believe from the evidence that Pita or anyone else, intentionally inflicted emotional distress on Troy, or for that matter, that Troy actually suffered emotional distress from the event that would be recoverable by law.
III. Punitive Damages
Troy also requests $10,000 in punitive damages. Punitive damages may be recovered whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy in order to punish the defendant and deter others from the commission of similar wrongs. Lynn v. Taylor, 642 P.2d at 136. Although this court wishes to deter intentional torts, it would be too extreme to hold Pita liable for punitive damages.
IV. Attorney's Fees and Costs
Troy seeks attorney's fees and costs. Attorney's fees are not ordinarily recoverable by the prevailing party, but courts do have the power to award attorney's fees when an opposing party has acted in bad faith, wantonly, oppressively or when a statute dictates. F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129 (1973). We find no valid reason to award attorney's fees in this case. Troy is, of course, entitled to costs of suit in addition to his compensatory damages. T.C.R.C.P. *4354(d).
V. Compensatory Damages
Troy has proven $7,774.65 in actual damages, $7,114.65 for the cost of repairing his truck and $600 for alternative transportation. Since Pita is joint and severally liable for these compensatory damages, we must now take into consideration Troy's settlement with Sánele, the absent jointtortfeasor, before trial. A primary purpose behind tort law is to compensate the injured party. If only one of several tortfeasors is a party to the litigation, then the court must assure that the plaintiff is compensated even if a single defendant must pay all of the damages. The single defendant has a right of contribution against any absent tortfeasor. Shifting the burden of recovery to the tortfeasors assures that the injured party is compensated. Hammond v. Kansas, O & G Ry. Co., 234 P. 731, 732 (1925).
When determining the amount of compensation to which a plaintiff is' entitled to actually receive, the court is duty-bound to consider settlement payments previously received by the plaintiff. In re Jones, 804 F.2d 1133, 1143 (10th Cir. 1986) (amount of settlements received by plaintiff from two absent tortfeasors before trial was deducted from the final judgment awarded to plaintiff from remaining defendant).
T.C.R.Ev. § 408 states in part: "Evidence of . . . accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. ..." This rule of evidence does not bar this court from reducing Troy's recovery from Pita by the amount Troy has already recovered in a good faith settlement with Sánele. In fact, if a civil jury trial was involved, our function would be to reduce the verdict by the amount received by the plaintiff from absent tortfeasors because of settlements. Cleere v. United Parcel Service, Inc., 669 P.2d 785, 789, 791 (Okla. Ct. App. 1983).
The amount of recovery should be diminished by the amount of settlement with the absent tortfeasor and not by percentage of fault. This is consistent with the tort policies of 1) encouraging settlements and 2) assuring that a plaintiff is fully compensated for injuries sustained. Mayhew v. Berriren County Road Com'n., 326 N.W.2d 366, 371 (Mich. 1982). Troy has already been fully compensated for actual- damages through the settlement with Sánele and would be unjustly enriched if we *44ordered Pita to in fact pay damages.
Accordingly, although we award judgment for Troy and against Pita in the amount of $7,774.65, we must reduce the amount payable by Pita to Troy by the $9,000 received in the settlement with Sánele. Troy is not entitled to receive any amount from Pita.
It is so ordered.
Concurrent causation is where the acts of two defendants occur at about the same time and together produce harm, whereas, in successive causation, the acts of two defendants occur at distinct different times and together produce harm. In concurrent injury cases those who caused the harm should be joint and severally liable for the entire harm, whereas, in successive injury cases the damages should be apportioned between the defendants, if they are reasonably apportionable. McLeod v. American Motors Corp., 723 F.2d 830, 834 (11th Cir. 1984).
The holding to not apportion damages is limited to the specific facts and unique situation of this matter. This court has previously apportioned damages, such as in products liability actions, and may do so in the future depending on a case by case review. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486263/ | Order for New Election:
HISTORY
On November 8, 1994, respondent Letumu Talauega ("Talauega"), the incumbent, received three more votes than petitioner Mau Mau, Jr. ("Mau"), the challenger, in the election to represent District No. 6 in the American Samoa House of Representatives. On November 14, 1994, Mau petitioned this Court, pursuant to A.S.C.A. § 6.0902, naming Chief Election Officer Soliai Tuipine Fuimaono ("CEO") and Talauega as respondents, alleging irregularities and improprieties in the administration of the election, and calling for a new election. This Court has jurisdiction over this action under A.S.C.A. § 3.0208(c). The Court heard this matter on November 23, 1994, with all parties and their counsel present.
DISCUSSION
We will first address the issue of election fraud arising from Talauega's presentation of money in varying amounts to four members of the Afono village council. Three of the four village council members voted on election day in District No. 6. Mau alleges that the money was presented in an effort to secure the individual votes and public support of the village council members in the election. A.S.C.A. § 6.1203 states, in relevant part:
The following persons are guilty of election fraud:
*46(1) every person who directly or indirectly, personally or through another, gives, procures, or lends, or agrees or. offers to give, procure or lend, or who endeavors to procure any money or . . . valuable consideration to or for any qualified elector in order to induce any qualified elector to vote ... for any particular person;
(2) every person who advances or pays, or causes to be paid, any money to, or to the use of, any other person, with the intent that the money, or part thereof, shall be expended in bribery in an election, or for any purpose connected with or incidental to any election;
Weeks after Talauega had filed to run for office, he made his presentation of money to the Afono village council. The next day Talauega formally began his campaign. Further, Talauega made the presentation only in Afono, which was the pivotal village in the election, since it was the home village of neither candidate and had a large number of votes at stake.
Although Talauega ably argued that his presentation was in accordance with Samoan custom, we find that it contravenes the law. Where law and custom conflict, the law prevails. A.S.C.A. § 1.0202; In re Matai Title Sotoa, 6 A.S.R.2d 91, 94-95 (Land & Titles Div.1987). There are many potential ways in which a representative could manifest his appreciation for the support of his constituents without presenting money to selected villages or council members with an election immediately impending. Three of the four village council members who received the presentation were qualified electors and ultimately voted. We find that Talauega's presentation to the Afono village council amounted to election fraud as defined by A.S.C.A. § 6.1203.
A.S.C.A. § 6.0902 lists "provable fraud . . . that could cause a difference in the election result" as a cause for contesting an election. A.S.C.A. § 6.0903(c) permits the court to invalidate an election for one of two reasons. First, invalidation is proper if "a correct result cannot be ascertained because of a mistake or fraud on the part of the district or election officials." No fraud is present on the election officials' part.
The second reason to invalidate an election is that "it cannot, be determined that a certain candidate, or certain candidates, received a majority or plurality of votes cast and were elected." Although the first reason expressly requires proof of fraud by an election official, the second reason is broader and may allow the court to invalidate an election based *47on "provable fraud" by candidates or electors "that could cause a difference in the election result," as well as any other illegality which would make the election result uncertain. A.S.C.A. § 6.0902.
Fraud on the part of an elector, or a candidate with respect to an elector, has long been held a sufficient ground to invalidate that elector's ballot rather than vitiating the entire election. Attorney General v. Miller, 253 N.W. 241, 243 (Mich. 1934).
It is well settled that all votes obtained by paying, giving, or offering to pay or give anything of value to electors are, upon proper proof, to be rejected by the court in a contest.. But the votes of those who neither directly nor indirectly participated in the bribery or unlawful agreement, and who are not the recipients of any benefits of the unlawful conduct of one who attempts to influence corruptly any election, are not to be rejected. Blackwell v. Newkirk, 121 P. 260, 263 (Okla. 1912).
Since Talauega's márgin of victory is three votes, a showing that three ballots are invalid by reason of fraud is adequate to render it impossible to determine which candidate received a plurality. For this reason we do not speculate as to how many other qualified electors in Afono may have indirectly received the fruits of Talauega's presentation of money. Invalidating the votes of the three members of the village council, we find that the outcome of the election in District No. 6 is uncertain.
We acknowledge Talauega's testimony that Mau had earlier given money to members of the Afono village council. This fact, however, does not dilute the importance of election fraud on Talauega's part, nor does it somehow make the outcome of the election any more certain than it would have been if Talauega had unilaterally committed election fraud.
Mau has made eight additional challenges which we will address individually.
1. Siuta Siuta
Siuta Siuta is an elderly resident and qualified elector in District No. 6. On November 4, 1994, he voted at home by a local absentee ballot with the assistance of an election official and in the presence of Siuta's spouse, a representative of Mau, and the Sailele village pulenu'u. The CEO issued a letter on election day authorizing Siuta to vote in District No. 6.
At his home, Siuta told the election official that he desired to vote for *48Talauega, but instructed the official to mark box #1 which corresponded to Mau. Siuta's wife then corrected Siuta, and box #2 corresponding to' Talauega was marked. Siuta’s vote has been counted. Mau challenges the validity of Siuta's vote on the basis that: (1) Siuta's ballot was marked by an election official and not by Siuta himself, (2) Siuta was not registered as an absentee voter, and (3) others present influenced Siuta's vote.
As to the first issue, Siuta is clearly qualified to receive assistance in marking his ballot pursuant to A.S.C.A. § 6.1101(b) which allows "any qualified elector by reason of physical disability to receive assistance in marking [his/her ballot]." The election official who marked the ballot testified that Siuta's hands were shaky, and that she was fearful that he would spoil the ballot by marking outside of the proper area. The official further testified that Siuta's signature on the outside of the ballot was unintelligible, which confirmed her judgment that Siuta was incapable of intelligibly marking his own ballot.
As to the second issue, it is unclear whether Siuta requested his absentee ballot less than 75 days and more than 15 days prior to the election as required by A.S.C.A. § 6.1102(a). He did, however, vote in 1992 in District No. 6 by a local absentee ballot. Further, "[qjualified electors unable to appear at the polls on election day for . . . physical . . . reasons" are permitted to vote by absentee ballot, "in a manner as may be prescribed by rules adopted by the chief election officer." A.S.C.A. § 6.1101(b). This requirement is less restrictive than that required of voters who are absent from their voting districts as outlined in A.S.C.A. § 6.1101(a). The latter requirement subjects voters absent from their voting districts to the requirement of A.S.C.A. § 6.1102, which states that absentee ballots must be requested between the seventy-fifth and fifteenth day prior to the election.
In contrast, A.S.C.A. § 6.1101(b) gives the chief election officer the power to promulgate rules to accommodate the needs of local absentee voters who, for several specific reasons, are unable to appear at the polls. While no formal rules have been promulgated, the CEO in writing authorized Siuta to vote in District No. 6. Although this letter did not expressly authorize a vote by local absentee ballot, we infer that intention since Siuta was allowed to vote in that manner in 1992 and again in 1994.
This court is concerned, however, that no formal rules have been adopted to govern procedures for requesting and collecting local absentee ballots pursuant to A.S.C.A. § 1101(b). Our decision to allow Siuta's vote to count should not be read to allow unbridled discretion to the chief election *49officer in the absence of rules. We merely uphold his decision in this case because it was so clear that Siuta was a qualified elector and that he had previously voted by local absentee ballot.
As to the issue of others present, Siuta was clearly qualified to receive such assistance in marking his ballot pursuant to A.S.C.A. § 6.1101(b) which allows "any qualified elector by reason of physical disability to receive assistance in marking [his/her ballot]." This provision does not place limitations on who may assist the disabled voter. The correction by Siuta's wife instructing the election official to mark box #2 was merely to assist Siuta in' voting for the candidate that he had already expressed his intention to support in the presence of the election officer.
A.S.C.A. § 6.0709 permits any illiterate, blind, or physically disabled voter to seek the aid of two district officials or another qualified elector, which could potentially include his spouse, if marking his ballot is undiily* burdensome. This section applies only to the "polling place" or within 100 feet thereof. Although Siuta's house is not a "polling place," we look to this section for persuasive guidance that others may assist an elector in casting his/her ballot.
We are concerned that a campaign worker was present in the room while Siuta voted. Such presence is likely to be unduly influential to the voter and invade the privacy provided for by the Revised Constitution of American Samoa, Article II, § 4, which requires that "Representatives shall be chosen by secret ballot." In this case, we allow Siuta's vote to count since his intention to vote for a particular candidate was clear from the beginning, and the worker was Mau's representative. Moreover, since Mau did not raise the "secret ballot" issue, we decline to further comment on that issue at this time.
2. Terina Tuinei
Terina Tuinei arrived at her District No.6 polling place at 6:15 a.m. on election day. Despite A.S.C.A. § 6.0701 requiring open polls from 6:00 a.m. to 6:00 p.m., the ballots did not arrive at this polling place until about 7:20 a.m., more than an hour late. She had to leave the polling place to attend school, but returned at 6:20 p.m. and, after some discussion and an initial denial, she was permitted to vote due to the late arrival of .the ballots. Her vote was sealed and marked "challenged" and was not counted until after the CEO's approval.
A.S.C.A. § 6.0701 requires that the polls shall be kept open no later *50than 6:00 p.m., referring to that time as the "prescribed hour" stating, "No qualified elector shall be permitted to enter or join the line after the prescribed hour for closing the polls." Accordingly, we are required to disqualify Tuinei's vote. Although this result is unfortunate, it is what the law demands. The statute does not permit interpretations and exceptions which are not explicitly provided. One exception is specifically provided when, because of overcrowding, qualified electors are standing in line outside the polling place at 6:00 p.m. Id. The Legislature could easily have included other exceptions if it had intended them. Since the one lawful exception does not apply to the facts at hand, Tuinei's vote is invalid, regardless of when the polls opened. This fourth discounted vote adds to the uncertainty of the election result.
3. Silivelio Iosefo
Silivelio Iosefo voted in District No. 6 and his vote was later challenged on the assertion that he did not reside in the district. A.S.C.A. § 6.0223 provides different requirements for challenging an elector's qualifications prior to election day, on election day, and after the elector casts his/her ballot. Although Mau alleges that Iosefo's attempt to vote was challenged at the polling place, the evidence does not support any such finding. By contrast, the CEO's letter of November 14, 1994, indicates that no challenge to Iosefo was entered at the polling place, but instead was entered on November 10, 1994, in Mau's letter to the CEO, two days following the election.
When a challenge to an elector's qualifications is first entered after the elector has cast his/her ballot, A.S.C.A. § 6.0223(d)(3) provides:
It is a condition of any relief granted under this subsection that the complaining party plead and prove, by a preponderance of the evidence, that the facts alleged in support of the complaint were not known to him, and could not with due diligence have been discovered, prior to the challenged elector casting his ballot.
Mau admits that he had voter registration lists, in which Iosefo's name appeared as registered to vote in District No. 6 in 1994 and as having voted there in 1992, in his possession prior to the election. Conversely, we have no evidence before us which sustains Mau's burden to demonstrate that he had no way, by due diligence, of discovering the facts alleged in the complaint prior to the election. Since this burden is not sustained, the issue of Iosefo's eligibility is moot.
*51
4. Tauaitia Aiaiva
Prior to the election, Mau requested that the CEO mail an absentee ballot to Tauaitia Aiaiva, who was attending school in San Francisco. In his November 10 letter to the CEO, Mau questioned whether the ballot had been sent and received. We need not consider whether Aiaiva had the opportunity to vote as an absentee, since the voter rolls in evidence reflect that he was in the territory and cast his counted vote on election day.
5. Sifia Mataafa
Sifia Mataafa cast her ballot at the LBJ Tropical Medical Center on election day as a local absentee voter. Mau expressed concern in his November 10 letter to the CEO that Mataafa's vote was not properly delivered and counted. However, the election rolls indicate that Mataafa voted by local absentee ballot on election day. The ballot was later opened and counted.
6. Punipuao Tiati 'u
Although Punipuao Tiati'u presented a 1992 voting list in her possession which contained her name and her passport, she was denied the opportunity to vote because her name did not appear on either the 1994 or 1992 voting lists in possession of the district election officials. In response to Mau's challenge to this decision, the CEO admits that Tiati'u's name is on the official roll of registered voters for 1992 and was inadvertently left off the 1994 list. The CEO offers no excuse, but indicates that if Tiati 'u had come to the election office on election day, she would have been permitted to vote. Since she did not take this action, and in fact testified in this court that she had conceded not to vote, this court is not required to take any further action.
7. Iakopo Taamu
Mau challenged Iakopo Taamu's registration in District No. 6, based on his residence in Hawaii and his 1992 registration in District No. 12. However, in a decision dated November 5, 1994, the CEO had concluded that Taamu was not a bona fide resident of District No. 6, and officially denied him the right to vote there in the 1994 election. Although Taamu's ballot was received by the election office, it was disqualified and not counted, and is not part of the election result. We sustain the CEO's decision, but it does not alter the official vote count.
*52
8. Sina Felise
Sina Felise is Talauega's niece. Mau challenges her votes because Talauega gave money to Felise prior to election day. Discounting of votes based on election fraud, however, requires proof that money or other consideration was given "to induce any qualified elector to vote ... for any particular person." A.S.C.A. § 6.1203. In this case, Felise actually requested the money from Talauega, and Talauega provided her with money before and on this occasion to help her as a member of his family and not in an effort to solicit votes.
CONCLUSION
Four votes must be discounted, three cast by members of the Afono village council and the vote after 6:00 p.m. Discounting those four votes against a margin of three votes renders the election result uncertain. The petition must be granted, and the election is therefore invalidated.
A copy of the judgment entered in this matter shall be served upon the Governor, so that he may duly call a new election to be held no later December 8, 1994.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486265/ | Order Denying Petition for a New Election:
HISTORY
On November 8, 1994, respondent Malepeai Setu ("Malepeai") received more votes than petitioner Alamoana Mulitauaopele ("Alamoana"), in the election to represent District No. 5 in the American Samoa House of Representatives.
Prior to the election, Alamoana registered an objection, dated November 6, 1994, with respondent Chief Election Officer ("CEO"), challenging the qualifications of 19 individuals listed in the official'roll of registered voters for District No. 5. On November 12, 1994, the CEO responded to Alamoana's objection by allowing 12 of the 19 challenged votes to be counted. The other seven challenged voters either did not vote or were declared ineligible and not counted. As to the 12 votes allowed, Alamoana maintained his objection to six voters in his appeal of the CEO's decision to respondent Board of Registration ("Board"), dated November 13, 1994. On November 14, 1994, the Board affirmed the CEO's decision pertaining to the six challenged voters and allowed all six votes to count.
*58The following day Alamoana petitioned this Court, pursuant to A.S.C.A. § 6.0902, naming the CEO, the Board, and Malepeai as respondents, claiming .that the six challenged votes were improper. Additionally, Alamoana raised objections to four other votes because of issues arising on election day, and requested a new election. This Court has jurisdiction over this action under A.S.C.A. § 3.0208(c). The Court heard this matter on November 23 and 25, 1994, with all parties and their counsel present.
DISCUSSION
During the hearing, Alamoana withdrew his objections to the electoral qualifications of two challenged voters, leaving a total of eight challenged votes for our consideration. Further, the parties ultimately stipulated that the final vote count was 224 votes for Malepeai and 221 votes for Alamoana, subject to our decision regarding the eight remaining challenges. We will first consider the issues arising on election day concerning four votes, and then the four remaining challenges involving elector qualifications.
I. Issues Arising on Election Day
A. Presentation of Identification
Tia Tanoa, the pulenu'u of Faga'itua, a village in District No. 5, voted on election day without presenting any identification. Alamoana's poll watcher objected. A.S.C.A. § 6.0706 states in relevant part that "[ejvery person shall provide identification if so required by a district official." This language requires presentation of identification only upon request of a district official. If the district official is satisfied as to the voter's identity, the elector may vote without formal identification. This vote shall remain counted.
B. ■ Irregularly Marked Ballots
Four irregularly marked ballots, three disallowed and one allowed by district election officials, are at issue. Alamoana has contested three of these ballots. Two ballots selecting Alamoana were invalidated because the voter's mark extended outside the appropriate box. The third ballot, cast for Malepeai, was marked inside the appropriate box, but Malepeai's name was written by the voter at the bottom of the ballot. Unlike the first two ballots,- this vote for Malepeai was counted. The fourth ballot, which entered into evidence by the CEO, selected Malepeai by marking within *59the appropriate box and placing a line underneath that box. This ballot was also invalidated.
The Legislature has not enacted any statute, and the CEO has not promulgated any administrative rule, requiring voters to mark their ballots in any particular manner. All four voters' intentions were absolutely clear from the markings on their ballots. Without specific laws or rules delimiting the proper way to mark a ballot, election officials can exercise unbridled discretion and, as they did here, effect arbitrary and inconsistent results. In the absence of prescribed marking standards, election officials cannot properly invalidate a ballot for peculiar markings when the voter's intention is unambiguously expressed. We find that the three disqualified ballots, two for Alamoana and one for Malepeai must be counted, which brings the running total to 225 votes for Malepeai to 223 votes for Alamoana.
II. Voter Qualification Challenges
We now consider Alamoana's four remaining elector qualification challenges. All four of these challenged votes are reflected in the present vote count. Since we do not know the four electors’ choice of candidate, the election result will become uncertain if two or more of these challenges are sustained. We consider each of these challenges individually.
A. Naumati A. Felise
In 1994, Naumati A. Felise voted in person in District No. 5, as she had done in every regular election from 1980 to 1986. She voted by absentee ballot in 1988 and 1992, and did not vote in 1990. She was raised in Fagaitua, where her mother was bom, and has matai obligations there. She continued to live in Fagaitua after marriage and currently resides there.
A.S.C.A. § 6.0212(a) provides that ”[t]he residency of a person is that place in which his habitation is fixed, and to which, whenever he is absent, he has the intention to return." Felise's permanent residency in Fagaitua was well established and was never lost by her presence in California at election time in 1988, 1990 and 1992. On the evidence before us, we find that Felise continuously intended to return to Fagaitua while she was outside the territory. Her vote counts.
B. Potumoe S. Sotoa
*60In 1994, Potumoe S. Sotoa voted in person in District No. 5. He voted by absentee ballot in every election from 1984 to 1990, but did not vote in 1992. Sotoa was raised in Fagaitua, his mother's birthplace, and performs matai services in this village. He was outside the territory for an extended period due to his service in the U.S. Navy. He was also recently seen at a funeral in San Diego. He returned to American Samoa in June 1994 and presently lives in his parents' home, now located in Faga'alu village, outside District No. 5.
Sotoa's absence from the territory in the military service of the United States does not affect his residency. Under A.S.C.A. § 6.0212(e), "A person does not gain or lose residency by reason of his presence of absence while employed in the service of the United States ....'' His attendance at an outside funeral and immediate choice of living arrangements do not overcome his longstanding, permanent ties to Fagaitua. He is a qualified elector in Fagaitua, and his vote will stand.
C. Daniel Stark
Daniel Stark, age 18 years, is a first-time voter, registered in District No. 5. He is from a broken home and has been living with a family in Faga'itua for the past three years. He graduated from Faga'itua High School in June 1994. Presently, he is helping his remarried father construct a house in Malaeimi, a village outside of District No. 5.
A.S.C.A. § 6.0212(a) also governs Stark's situation. We find that Stark established permanent ties to Faga'itua and intends to return there when his father's house is completed. His vote shall remain counted.
D. Tui Fata. Jr.
Tui Fata, Jr., also age 18 years, is another first-time voter, registered in District No. 5. He has lived with Malepeai in Ili'ili, a village outside of District No. 5, for the last three years, because of his matai obligations to Malepeai and not because of permanent intent to remain there. Malepeai, whose residency status is not at issue, is also registered in District No. 5 and is a Faga'itua matai.
A.S.C.A. § 6.0212(f) states:
The situs of a person's primary matai obligations are a factor in determining district residency. However, matai obligations alone may not sustain a finding of district residency absent other *61evidence which, in connection with evidence of matai obligations, is sufficient to sustain the intent of this section.
Fata was raised in Faga'itua, his father's birthplace, and his parents own a home there. With these additional factors, we find that Fata is a qualified elector in Faga'itua. His vote counts.
CONCLUSION
With respect to issues arising on election day, we allow three previously uncounted votes to be counted, leaving Malepeai with a two-vote winning margin. Since we affirm the decision of the CEO and the Board and conclude that all four challenged voters are qualified electors of District No. 5, their votes remain effective. Thus, the final vote count stays at 225 votes for Malepeai to 223 votes for Alamoana. The result in District No. 5 is therefore certain in Malepeai’s favor. The petition is denied.
A copy of the judgment entered in this matter shall be served upon the CEO with the instruction that he certify the result of the election in District No. 5.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486735/ | OPINION AND ORDER ON SECURED PROPERTY INTERESTS AND ON ADJUDICATION OF INTERVENOR CLAIMS
The Court consolidated CA No. 93-00 with CA No. 133-99 and CA No. 68-99 and permitted the several interventions and necessary party joinder in special procedural twists after the trial of CA No. 133-99 and CA No. 68-99 in order to resolve the host of issues related to the business demise of defendant Daewoosa Samoa, Ltd. (“Daewoosa”) in American Samoa.
Although the claims and counterclaims in CA No. 93-00 involve both property interest and money claims between plaintiff New Star Trading Company, Ltd. (“New Star”) and Daewoosa and defendant Kil Soo Lee (“Lee”), by the parties’ stipulation, trial of this action on October 15 and 19, 2001, was limited to the property interest issues, and trial of other issues was deferred. Trial of the claims of intervenors Seung Nyu Moon (“Moon”), In Saeng Lee (“In Saeng”), and Jeil Ventures Co., Ltd. (“Jeil”), and necessary party American Samoa Government (“ASG”) also proceeded on October 15 and 19. Moon and In Saeng presented money claims, Jeil and ASG claimed only property interests.
As of October 15, a stipulated judgment on account for unpaid utility services had been entered in favor of intervenor American Samoa Power Authority against Daewoosa, and the wage claims of intervenors Samoan employees had been separated for later trial.
Discussion
A. The Parties Business Relationships and Present Claims
Daewoosa is a corporation organized under the laws of American Samoa, principally to produce clothing. Lee is the president and principal owner of Daewoosa. Based on the evidence introduced at the earlier trial *94of CA No. 133-99 and CA No. 68-99 and the present trial, Lee controlled and manipulated Daewoosa’s operations to achieve his personal ends, essentially to the exclusion of any other shareholder’s interests. For purposes of particular issues, an individual may so dominate a corporation that the individuality of the person and corporation cease to exist, and recognition of their separate existence would promote the person’s unjust evasion of contractual obligations. See Katenkamp v. Superior Court, 108 P.2d 1, 3-4 (Cal 1940); Minifie v. Rowley, 202 P. 673, 676 (Cal. 1921); Kohn v. Kohn, 214 P.2d 71, 76-77 (Cal. Ct. App. 1950). Daewoosa was clearly Lee’s alter ego with respect to the present issues under this test. New Star is a business entity organized under the laws of the Republic of Korea. New Star has engaged in business in American Samoa by providing raw materials and manufacturing equipment, specifically fabric, sewing machines, and related sewing machine equipment, to Daewoosa — and Lee. New Star has been engaged in a business relationship with Daewoosa and Lee at least since late 1999. The recent legal and financial problems of Daewoosa and Lee have led to a cessation of business and a failure to pay outstanding debts and rents. New Star claims that four containers of fabric and 92 sewing machines, along with related equipment, still in the former Daewoosa factory compound in ASG’s industrial park in Tafuna, American Samoa, were delivered to Daewoosa — and Lee — under a consignment contract rather than sale, and accordingly, it has a right to have these items returned under the theory of replevin.
Jeil, another corporation organized under the laws of the Republic of Korea, was also contractually involved with Daewoosa — and Lee. It claims possession of certain property, namely, four containers of unfinished fabric at ASG’s main dock and certain garments in various stages of completion at the former Daewoosa factory compound, as consigned property.
On January 1, 1997, ASG leased to Daewoosa — and Lee — real property for the Daewoosa factory compound. The lease was signed and then properly recorded with the Territorial Registrar on February 3, 1997. Daewoosa and Lee failed to keep up with rent according to the lease terms and owed ASG $177,007.41, unpaid rent in the amount of $160,915.65 plus 10% late charges (excluding the amount waived by ASG of an additional 50% late charge for payments more than 30 days’ delinquent) when the lease was terminated on January 30, 2001.
Under the terms of the lease, ASG held a lien on Daewoosa’s personal property constructed or installed on the premises for unpaid rent or other debts owed to ASG. The lease also required that the premises be kept free from other liens in connection with Daewoosa’s operations. In order to satisfy the rental and other debts of Daewoosa and Lee, ASG claims *95ownership of all property still on the former Daewoosa lot, other than the personal property claimed by Jeil. ASG’s assertion extends to the property to which New Star also claims title.
Moon had a business relationship with Daewoosa — and Lee — from 1994 to 1999. He alleges that he was employed by Daewoosa and Lee, and was not paid. He filed a claim with the Wage and Hour Board (“the Board”), and the Board issued a finding in Moon’s favor in the amount of $250,000.
In Saeng also had a business relationship with Daewoosa — and Lee. He filed a claim for repayment of a cash loan, reimbursement of the cost of foods supplied for Daewoosa’s employees, and compensation for services rendered.
B. .Teil’s Property Interest Claim
Jeil’s claim to personal property by means of a consignment contract with Daewoosa — and Lee — has not been challenged by ASG, New Star, or Daewoosa and Lee. Moon and In Saeng have also not specifically challenged the validity of Jeil’s claims. Review of this contract confirms that the items were in fact consigned by Jeil to Daewoosa and Lee, and not sold. Jeil therefore has title to and the right to recover possession of personal property it claims.
C. Property Interest Claims of New Star and ASG
Title to the remainder of the personal property on Daewoosa’s factory compound turns on the competing claims of ASG and New Star. The ASG claim is based on both the debt of Daewoosa — and Lee — for unpaid rents and the language of the recorded lease granting ASG title to chattels remaining on the premises if Daewoosa and Lee cease to be paying tenants. New Star claims that title to the garments and machinery was never in Daewoosa’s name in the first place, that Daewoosa — and Lee — were only a consignee of the property until final payment was made to New Star per the parties’ contract.
The line between what is legally a sale of goods and a consignment of property can be difficult to discern. A true consignment leaves the consignor with ownership, and the powers of recall and setting sale price — the consignee receives a commission but not the profits of the sale. See Manger v. Davis, 619 P.2d 687, 691 (Utah 1980). In this type of relationship the consignee has no interest in the consigned property that may be obtained by creditors. Id. Using contract terms that give the alleged consignor the right of reclamation if goods remain unsold, without further development of the consignment relationship, does not *96create a consignment. See Edgewood Shoe Factories v. Stewart, 107 F.2d 123, 125-26 (5th Cir. 1939) (when an obligation arises for the alleged consignee to buy and pay for delivered goods, such that a suit could be maintained by the alleged consignor as creditor, the transaction is a sale or agreement to sell and not a consignment for sale). Though not adopted in American Samoa, where the Uniform Commercial Code is applicable, it is even more difficult to show a consignment. Bukfor, Inc. v. Star Jewelry Co., Inc., 552 S.W.2d 522, 523-24 (Tex. 1977) (there is a policy preference in permitting parties to deal with debtors on assumption that all property in debtor’s possession is unencumbered unless the contrary is on public record).
The relationship between New Star and Daewoosa and Lee concerning the garments, sewing machines, and related sewing machine equipment is contested. New Star relies mainly on its written agreement with Daewoosa — and Lee, titled “General Contract for Production,” dated September 26, 1999. The language of this agreement does appear to preserve title to the property in New Star. However, closer examination of how the agreement is actually worded provides a different picture. Daewoosa and Lee did not have the option to return unsold materials to New Star by the terms of the contract. Even more telling are the terms of the transfer of the sewing machines and related sewing machine equipment. Daewoosa and Lee were bound to pay for the machines and equipment, with interest, in accordance with a payment schedule. Simply, holding a right of reclamation if payments are not met does not create a consignment. See Edgewood, 107 F.2d at 125-26. Rather, these terms are more in line with a sale with a security interest. In addition, two weeks later, on October 10, 1999, New Star and Lee, on Daewoosa’s behalf, signed a document on New Star’s letterhead confirming that New Star “sold” the sewing machines and related sewing machine equipment to Daewoosa and Lee, and then outlining the payment terms.
New Star’s property interest claim also fails before those of ASG for another reason. New Star did not record its interest in the property. A conditional sale which is not a consignment leaves the seller with a security interest. See Shantilal Brothers, Ltd. v. KMST Wholesale, 15 A.S.R.2d 115, 118 (Trial Div. 1990). A security interest or mortgage is not valid against another creditor unless that creditor is put on actual notice of the transaction or the interest is properly recorded with the Territorial Registrar. See A.S.C.A. § 27.1510. The documents upon which New Star depends to establish its interest are unrecorded security interests.
We also note that New Star failed to obtain a foreign corporation permit to transact business in the Territory, in violation of A.S.C.A. § 30.0305, *97and ¿nnual business licenses, in violation of A.S.C.A. § 27.0219(a). This failure compounded the notice problem. Without this permit and license, New Star has even more difficulty of establishing that ASG was or should have been aware of New Star’s security interest.
As ASG did not have either constructive notice by recordation or actual notice of New Star’s interest, New Star’s property interest is inferior to ASG’s claim. Therefore, except for the property properly belonging to Jeil, ASG has title to the personal property remaining oh the former Daewoosa factory compound in satisfaction of its lien for unpaid rent and other debts owed by Daewoosa arid Lee.
D. Moon’s Money Claim
Moon’s claim is for unpaid salary, founded on a written contract signed partially after-the-fact in June 1996. Heung-Soo Ju, by his authority as the president of Daewoosa in 1996, and Moon signed the contract. The contract provides Moon as Daewoosa’s public relations officer with a salary of $2,000 per month from June 1994 through May 1996, and with additional duties as vice-president/treasurer, $25,000 per year from June 1996. Moon was terminated by Lee or resigned his position, or both, on March 27, 1999. Thus, Moon earned, under the terms of his contract, and was not paid, $48,000 from June 1994 through May 1996, and $70,625 from June 1996 to March 27, 1999, a total of $118,625.
Moon supported his claim with the decision of ASG’s Wage and Hour Board, issued on March 10, 2000, awarding Moon $250,000 in unpaid wages. Even though the award far exceeds the terms of Moon’s employment contract, the Board apparently accepted at face value the $250,000 claim submitted by Moon. Perhaps the Board took into account Daewoosa business expenses advanced and the value of unretumed personal property provided by Moon, which he put into evidence. Even if so, however, these amounts are not salary, and Moon has not provided a contractual basis for any reimbursement of expenses or return of property.
In any event, this Court is not being asked to judicially review a final administrative decision for errors of law, a matter ordinarily within the exclusive jurisdiction of the Appellate Division of this Court, see A.S.C.A. §§ 4.1040, 4.1041, & 4.1044, but rather to award money damages for breach of contract and, perhaps, as enforcement of the Wage and Hour Board decision. As such, the Trial Division has jurisdiction and is not bound by the erroneous salary calculation determined by the Board. See A.S.C.A. § 4.1040(b); see also MODEL STATE ADMIN. PROCEDURE ACT § 5-101 (1981).
*98Moon is accordingly entitled to recover $118,625 from Daewoosa and Lee.
E. Tn Saeng’s Money Claim
In Saeng’s claim is for $12,658.58 in reimbursement of the cost of food and materials he supplied to Daewoosa and Lee for Daewoosa’s operations, $15,000 for the unpaid balance of a loan that he made to Daewoosa and Lee, and $16,900 as compensation for services rendered to Daewoosa and Lee, a total of $44,558.58, Lee confirmed the nature and amount of these debts in December 2000, and did not contest them during trial of In Saeng’s claim. The claim is supported by evidence and is unrefuted.
In Saeng is accordingly entitled to recover $44,558.58 from Daewoosa and Lee.
Order
1. New Star’s claim to any right to take possession of the fabric, 92 sewing machines, and related sewing machine equipment is denied.
2. Jeil is awarded title and possession of the personal property as it claims.
3. Based on the lien provided in the ASG lease to Daewoosa and Lee, ASG is awarded title and possession to all other items of personal property remaining on the premises of Daewoosa’s former factory compound in Tafuna, including but not limited to the fabric, 92 sewing machines, and related sewing machine equipment claimed by New Star, to satisfy its claim of $177,007.41 against Daewoosa and Lee.
4. Moon is awarded judgment against Daewoosa and Lee, jointly and severally, in the amount of $118,625, plus post-judgment interest at the rate of 6% per annum.
5. In Saeng is awarded judgment against Daewoosa and Lee, jointly and severally, in the amount of $44,448.58, plus post-judgment interest at the rate of 6% per annum.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486736/ | ORDER DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
Defendants were served with the Summons and Complaint in this matter on November 27, 2001. Defendants have not answered, appeared, or otherwise defended against this action. On December 21, 2001, Plaintiff moved for default judgment against Defendants, jointly and severally, in the amount of $5,945.33, together with interest, court costs, and attorney’s fees.
On January 24, 2002, the motion came on regularly for hearing. Neither Defendants appeared. Plaintiff submitted the motion on the filed papers, noting particularly the affidavit of Robert Paul Wyeth. This Court took the matter under advisement at that time.
*100Standard of Review
In this jurisdiction, the court must scrutinize the evidence before a default judgment may be entered. AV Bingo Supplies v. Pac. Rim Enters., 5 A.S.R3d 101, 102 (Trial Div. 2001); E-C Rental Servs. v. Pedro, 26 A.S.R.2d 65, 67 (Trial Div. 1994); Scalise v. Gorniak, 26 A.S.R.2d 85, 86 (Trial Div. 1994); see generally Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177 (Trial Div. 1988). When T.C.R.C.P. Rule 55 was amended in 1986, default judgments without judicial assessment could no longer be issued by the Clerk’s office. A V Bingo Supplies, 5 A.S.R.3d at 102; T.C.R.C.P. 55. The court must look at “direct evidence, beyond conclusory affidavits ... , to determine for itself whether the claimed indebtedness has been correctly calculated.” AV Bingo Supplies, 5 A.S.R.3d at 102; Ieremia, 8 A.S.R.2d at 178.
Discussion
In the matter at hand, Plaintiff relies upon the affidavit of Robert Paul Wyeth, the regional manager of Plaintiffs operation, to establish the amount in controversy. Also on file, Plaintiff has provided a “Settlement Agreement” purporting to establish the amount in controversy. While this agreement ostensibly appears to have been signed by defendant Lilian Ledoux, it was neither executed by the defendant James Ledoux nor by anyone representing defendant Bay Area Diesels, Inc.
As above noted, before default judgment may be granted, the evidence on file must satisfy the court that the calculation of the debt in question has been accurate. Direct evidence of the amount of debt, such as invoices, receipts, and the like, must sufficiently establish the amount; a conclusory affidavit is not sufficient. See id. Plaintiffs agent’s affidavit is not direct evidence and is self-serving. As to the “Settlement Agreement,” unless Ms. Ledoux has been granted special authority, and this court has not seen evidence of such, James Ledoux must sign the settlement document for himself and Bay Area Diesels, as its president, for the document to legally define the total debt of all the defendants.
Given the insufficiency of showing beyond a conclusory affidavit and an incompletely authenticated agreement, the authorities point us to the conclusion that the evidence available for ordering a default judgment is insufficient.
Accordingly, the Plaintiffs motion is hereby denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486991/ | ORDER
This matter came on regularly for trial this October 3, 2005. Counter-claimant Matefili P.F. Lefiti (“Lefiti”) having previously filed on May 6, 2005, his notice to withdraw and dismiss his counterclaim, the only parties appearing for trial were claimant Atiulagi F. Pese, with his counsel Salanoa S. Aumoeualogo, counter-claimant Nicholas Punimata (“Punimata”), through his counsel Fiti A. Sunia, and counter-claimant Maui L. Mailo (“Maui”), appearing pro se. Punimata, through his counsel, and Maui in person moved in open court to withdraw and dismiss their respective counterclaims.
Wherefore, the counterclaims of Lefiti, Punimata, and Maui being withdrawn, they are hereby dismissed.
There thus being no “disputed claim” before us for determination under A.S.C.A. § 1.0409, this matter is remanded back to the Territorial Registrar’s Office. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486266/ | Order Denying Motion for Summary Judgment:
On November 2, 1994, plaintiff filed a motion for summary judgment pursuant to T.C.R.C.P. 56. Plaintiff asserts that it is entitled to judgment based on defendant's failure to respond to plaintiff's request for admissions as required by T.C.R.C.P. 36. This motion came regularly before the court on December 23, 1994, and both parties were represented by counsel.
In support of its motion for summary judgment, plaintiff referred only to an exhibit attached to the request for admissions as proof that there is no genuine issue of material fact. Plaintiff did not file any affidavits or other materials allowed by T.C.R.C.P. 56, and did not cite any authority stating the appropriate standard of review for summary judgment, or affirming that summary judgment is even the proper remedy for failure to respond to a T.C.R.C.P. 36 request for admissions, or showing that the facts admitted, even if true, give rise to the relief prayed for in the complaint. In turn, defendant did not provide written response to plaintiff’s motion.
We deem this to be wholly insufficient. While we are inclined to believe that plaintiff's instinct is correct in asserting that a failure to respond to a request for admissions results in a constructive admission of the matters included in the request for admissions, he fails to demonstrate that such facts entitle him to judgment as a matter of law.
It is not the duty of the court to assume or to provide the legal basis *63of a moving party’s motion for summary judgment. This would not be. fair to either party. The role of the court is to be an impartial decision maker, not an advocate. In the present case, plaintiff has provided no clear demonstration of legal authority that would allow this court to enter a decision on the motion for summary judgment as a matter of law. Therefore, we will follow our instinct and exercise our discretion to deny the motion for summary judgment without prejudice.1
In the absence of any cited authority to the contrary, we will also advise plaintiff that at this point we are prepared to reject its claim to interest at 12% per annum. On its face, A.S.C.A. § 28.1501(a) limits the interest rate to 6% per annum in this situation.
It is so ordered.
Unlike plaintiffs counsel, we do have support for our instinct that a movant for summary judgment must demonstrate entitlement to summary judgment as a matter of law, by citing legal authority, even when factual issues are not in dispute. Niles v. United States, 520 F. Supp. 808, 814-15 (N.D. Cal. 1981); Hanko v. United States, 583 F. Supp. 1280, 1282 (W.D. Pa. 1984). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486267/ | Order Granting Motion to Amend Complaint, Denying Plaintiff's Motion for Partial Summary Judgment, and Granting Defendant's Motion for Summary Judgment:
PROCEDURAL HISTORY
On June 7, 1994, plaintiff Augustine M. McKenzie, an inmate serving a life sentence at the American Samoa Government's Correctional Facility, initiated this action, alleging claims pursuant to 42 U.S.C. § 1983 against Tuimavae T. Le'iato, Warden of the facility, and Gafa Tauveuveu, Corrections Officer at the facility. Plaintiff asserts that defendants, in their official capacity, deprived him of his federally protected liberty interest without due process of law and asks this court to issue injunctive relief against further violations.
On June 27, 1994, defendants filed a motion to dismiss the complaint on the grounds that this Court lacks jurisdiction over the subject matter of this case, and that plaintiff has failed to state a claim upon which relief can be granted.
On July 6, 1994, plaintiff filed a motion for leave to file an amended complaint..
On July 18, 1994, plaintiff filed a motion for partial summary judgment against defendants, submitting his own affidavit in support. On August 31, *651994, defendants responded to plaintiffs motions, submitting defendant Le'iato's affidavit with several supporting documents attached.
These three motions came regularly for hearing on September 1, 1994. Plaintiff appeared pro se, and defendants by their counsel.
DISCUSSION
I. Motion to Amend Complaint
Although styled as an "amended complaint" the proposed new complaint merely complements the original complaint. The two complaints will, therefore, be read as a single document, with amendments to the original complaint as indicated.
T.C.R.C.P. 15(a), which mirrors F.R.C.P. 15(a), allows:
A party [to] amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Plaintiff cites Foman v. Davis, 371 U.S. 178 (1962), to support the principle that a trial court may not deny leave to amend a pleading without justification. We find no reason to deny the motion to file plaintiff's motion in this case. He filed the motion on July 6, 1994, before a trial date had been set and early enough not to surprise defendants. The proposed amendments to the original complaint basically restate the same allegations, in a somewhat expanded form, from that set forth in the original complaint, and do not give plaintiff an unfair advantage in the proceedings. Due to the discretion allowed this court in applying Rule 15(a), plaintiff's motion for leave to file amended complaint is granted as an amendment to the original complaint.
II. Motion for Partial Summary Judgment
Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. *6656, which mirrors F.R.C.P. 56. In ruling on such a motion, the court must view all pleadings and supporting papers in the .light most favorable to the opposing party, United States v. Diebold, Inc., 369 U.S. 654 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44, 45 (Probate Div. 1987).
Although plaintiff claims that there are no material facts in dispute as to the alleged violations of his constitutional rights, defendants submitted ample evidence of genuine issues of material fact in this matter. Defendant Le'iato's affidavit incorporates supporting documentation in four parts.
The first is the rules and regulations, adopted on January 31, 1986. Defendants assert that copies of the rules were made available to all inmates, including plaintiff, and were posted at various sites throughout the facility. This document contradicts plaintiff's allegation that defendants failed to provide him with prison rules and regulations.
The second is a release authorization for the weekend furlough program which states in part that there shall be "[absolutely no consumption of alcoholic beverages" as a condition to participation in the program. This document, signed by plaintiff on August 22, 1987, refutes his assertion bat he was placed in administrative segregation and revoked of his home release program wibout having been notified bat returning to be facility intoxicated was against regulations.
The bird is be warden's decision, dated January 5, 1994, to place plaintiff in administrative segregation for 60 days and revoke his home release privileges for two years. This decision, which was based on review of be recommendations from a hearing panel, is inconsistent wib plaintiff's allegation bat he was deprived of his liberty interest without due process of law.
The last includes records of four other disciplinary incidents involving plaintiff while in prison. These records put in issue plaintiff's allegation bat defendants lodged false information in his inmate file.
Since defendants' affidavit clearly shows that genuine issues of fact exist, plaintiff's motion for partial summary judgement must be and is denied.
III. Motion to Dismiss
*67Since arguments regarding defendants' motion to dismiss and plaintiff's motion for partial summary judgment were heard together by this court, we considered the affidavits submitted by both parties in support and opposition to plaintiff's motion for partial summary judgment in our review of defendants' motion to dismiss. Since these affidavits are matters outside the pleadings, the motion to dismiss should be treated as one for summary judgment. Richardson v. Rivers, 335 F.2d 996, 998 (D.C. Cir. 1964).
In reviewing a motion to dismiss, it is improper for the court to consider documents outside of the pleadings without converting the motion into a motion for summary judgment pursuant to T.C.R.C.P. 56 and dispose of it as provided by that Rule. Carter v. Stanton, 405 U.S. 669 (1972); Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985).
T.C.R.C.P. 12(b), which mirrors F.R.C.P. 12(b), states in part:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in 56 TCRCP, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by 56 TCRCP.
When a court converts a motion under Rule 12(b) into a motion for summary judgment, the court must make the parties aware that the court is considering a motion for summary judgment by giving the parties 10 days notice of the conversion pursuant to Rule 56. Rose v. Bartle, 871 F.2d 331 (3rd. Cir. 1989); Heron v. Beck, 693 F.2d 125, 126 (11th Cir. 1982). Rule 56 further requires that the parties have the opportunity to submit "pleadings, depositions, answers to interrogatories, and admissions on the file, together with . . . affidavits" to support or oppose the motion for summary judgment.
On October 28, 1994, this court gave notice to the named parties in this matter of its intention to convert defendants' motion to dismiss to a motion for summary judgment pursuant to Rule 12(b) and allowed the parties until November 10, 1994, to submit further affidavits and/or other materials made pertinent to such a motion by Rule 56.
In the additional time allowed by the court, plaintiff filed an additional affidavit and defendants filed nothing further. Previously, plaintiff had *68submitted his own affidavit, whereas defendants had submitted Le'iato's affidavit with several supporting documents.
The standard of review this court applies in deciding the appropriateness of a motion for summary judgment is stated on p. 3 of this order, but in reviewing this summary judgment motion, where the defendant is the moving party, we must view all pleadings and supporting papers in the light most favorable to plaintiff.
In plaintiffs most recent affidavit he alleges that defendants: 1) placed false information in his inmate file; 2) failed to enact prison rules or regulations; and 3) placed him in administrative segregation and revoked his release program without due process of law. These allegations are identical to those made in plaintiff's first affidavit. Plaintiff has filed no supporting documents or any new information to show that genuine issues of material fact exist. As stated earlier, upon review of Le'iato's affidavit and supporting documentation, defendants have clearly shown that no genuine issue of material fact exists. Therefore, treating their motion to dismiss as one for summary judgment, defendants are granted summary judgment dismissing plaintiff's complaint as amended with prejudice.
CONCLUSION
Plaintiff's motion for leave to file an amended complaint is granted as an amendment to the original complaint. However, his motion for partial summary judgment is denied, and defendants are granted summary judgment dismissing plaintiff's complaint as amended with prejudice.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486269/ | Petitioner's motion for a default judgment came regularly for hearing on December 16, 1994. Petitioner and his counsel were present. Respondent was duly served with process and executed a waiver of her rights to be present at any hearing or trial and to notice thereof, and a consent to proceed without her presence. The Court heard testimony and has considered the evidence.
FINDINGS OF FACT
Petitioner has been a bona fide and continuous resident of American Samoa for at least one year immediately preceding the commencement of . this action. '
The parties began dating in July 1993 and first had sexual relations in August 1993. Respondent told petitioner that she was pregnant by petitioner, and they married on November 10, 1993. In February 1994, respondent gave birth and admitted to petitioner that another man is the father of the child. The parties separated the same month, and since then have not lived together as husband and wife.
CONCLUSIONS OF LAW
1. A marriage may be dissolved by divorce or annulment only on the grounds set forth by statute in A.S.C.A. §§ 42.0202 and 42.0203. West v. West, 5 A.S.R.2d 88, 89 (Trial Div. 1987).
2. Petitioner seeks a divorce on allegations of habitual cruelty and ill usage, a cause recognized by A.S.C.A. § 42.0202(2). However, the evidence fails to establish any facts constituting this ground. Habitual cruelty or ill usage involves such things as physical violence, threats, and gratuitous harassment, or other conduct so shameful and bizarre as to be unbearable. Chun v. Chun, 3 A.S.R.2d 23 (Trial Div. 1986); Lea'e v. Lea'e, 3 A.S.R.2d 51, 52-53 (Trial Div. 1986). "Irreconcilable differences" will establish neither habitual cruelty nor ill usage. Id.
3. The evidence does show respondent's misrepresentation of pregnancy by petitioner. However, this fact does not render the marriage void or illegal, the only cause recognized for annulment by A.S.C.A. § 42.0203. Moreover, although statutes frequently authorize annulment of *73marriages voidable by fraud, the standard rule precludes annulment based on pregnancy misrepresentations when the parties engage in sexual intercourse prior to marriage. Peacon v. Peacon, 30 S.E.2d 640, 641 (Ga. 1944); Kawecki v. Kawecki, 35 N.E.2d 865, 866 (Ohio Ct. App. 1941); Santer v. Santer, 188 A. 531, 533 (Pa. 1936); Herr v. Herr, 165 A. 547 (Pa. 1933); Wallace v. Wallace, 114 N.W. 527, 528 (Iowa 1908); Young v. Young, 127 S.W. 898, 899 (Tex. Ct. App. 1910);, Gondouin v. Gondouin, 111 P. 756 (Cal. Ct. App. 1910).
4. The Legislature, not the Court, is the proper forum to formulate any policy changes in the legal bases for dissolving marriages. West, 5 A.S.R.2d at 89. Accordingly, the petition must be denied and dismissed with prejudice.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486270/ | Order Requiring Further Information:
FACTS
On January 22, 1993, plaintiff Josephine Lutali ("Lutali") was awarded a judgment, following trial, against defendant Joe Pedro ("Pedro"). On April 29, 1993, Pedro and his wife filed a petition for bankruptcy in the federal District Court for the Western District of Washington, automatically instituting a stay preventing creditor collection actions. Lutali was not listed as a pre-petition creditor in the bankruptcy schedules. On August 6, 1993, the federal court issued the bankriiptcy discharge order.
Meanwhile, on June 30, 1993, without notice or actual knowledge of the bankruptcy proceedings, Lutali obtained a writ of garnishment. On August 4, 1994, she moved for release of the garnished funds, which amounted to rent payments owed by the'American Samoa Government ("ASG") for the lease of Pedro's house and leasehold interest in the underlying communal land. The garnishment first reached these rents on August 3, 1994, and as of December 22, 1994, the court was holding garnished funds totaling $11,200. On August 17, 1994, Pedro moved to stay the execution of Lutali's judgment. The court heard both motions on August 31, 1994, with counsel for the original two parties present.
Then, on November 1, 1994, intervenor Amerika Samoa Bank ("ASB") moved to intervene in this action and on November 30, 1994, was permitted to do so. With ASB formally involved, the court heard this matter again on December 16, 1994, to further consider the proper disbursement of the garnished funds. Counsel for the three parties were present.
ASB is Pedro's creditor on a loan in the original amount of $90,000 which was secured by a mortgage established on September 17, 1991, on the property leased from Pedro by ASG. The house is listed as an asset in the *75bankruptcy schedules, described as "a potential partial leasehold interest" with the proceeds assigned to ASB for payment of a loan to build the house. ASB was not listed as a pre-petition creditor.
The mortgage provides that on Pedro's failure to make any loan payment he will be in defaults and the whole outstanding debt, at ASB's option and without notice, will become due and payable. In that event, as one remedy, and after giving notice to Pedro as lessor, ASB becomes Pedro's assignee to receive all accrued and future rents payable by ASG, and his attorney in fact to manage the leasehold. Pedro defaulted in the loan payments on or about August 1, 1994. ASB elected to treat the whole amount due and payable and, it appears, actually notified Pedro and ASB that it would exercise its mortgage rights in the leasehold between the first and second garnishments of the rental payments. ASB is also pursuing its non-judicial foreclosure rights, with the sale scheduled on January 6, 1995.1
Pedro is currently processing amendments to the bankruptcy schedules to add all pre-petition creditors located in American Samoa and seeking discharge of his debts to them.
DISCUSSION
A. Indebtedness to Lutali
As to Lutali, two legal issues are immediately before this court: (1) whether the automatic stay effective in bankruptcy proceedings is binding upon the courts of American Samoa; and if so (2) whether an automatic stay operates as a bar to legal action by unlisted creditors who have no notice of the proceedings.
1. Actions of the Bankruptcy Court Are Binding in American Samoa
In 1987, this court held that a bankruptcy court "which has acquired jurisdiction" over a debtor and his legal rights and obligations may issue a judgment which is binding in American Samoa. Southwest Marine of *76Samoa v. S & S Contracting, 5 A.S.R.2d 70, 82 (Trial Div. 1987) (emphasis in original). The automatic stay in .bankruptcy proceedings is effective in American Samoa against all legal proceedings or efforts to collect debts. Id. at 83. This stay bars creditor actions in courts of law, administrative proceedings, non-governmental tribunals, or private collection efforts of any sort. Id. We readily conclude, by precedent and the rule of stare decisis, that this court has jurisdiction in the present case and can give effect to the bankruptcy court's decisions.
2. Automatic Stay Bars Unlisted Creditors
The automatic stay in bankruptcy was in place on June 30, 1993, when Lutali obtained the writ of garnishment. Judgments obtained or other actions taken in violation of -the stay are void and of no effect. Kalb v. Fuerstein, 308 U.S. 433 (1940); Ellis v. Consolidated Diesel Elec. Corp., 894 F.2d 371, 372 (10th Cir. 1990); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir. 1982); Caribbean Food Products v. Banco Credit Y Ahorro Ponceno, 575 F.2d 961, 966 (1st Cir. 1978); Meyer v. Rowen, 181 F.2d 715, 716 (10th Cir. 1950); Potts v. Potts, 142 F.2d 883, 888 (6th Cir. 1944), cert. denied, 324 U.S. 868 (1945).
Lutali argues that Pedro's debt to her is not discharged, and that her actions to collect were not stayed since she did not have notice or actual knowledge of the bankruptcy proceedings. 11 U.S.C.A.. § 523(a), While notice or actual knowledge to make a timely claim is required for a discharge to be effective, the rule voiding actions in contravention of a stay applies to unlisted creditors, "even if the creditor had no notice of the stay," as in the present case. In re Calder, 907 F.2d 953, 956 (10th Cir. 1990); In re Smith, 876 F.2d 524, 526 (6th Cir. 1989).2 Following this *77rule, Lutali's writ of garnishment was in violation of the automatic stay, since she obtained it after Pedro had filed for bankruptcy and prior to the discharge in bankruptcy.
The question of whether relief from the stay is available trader' ll A.S.C.A. § 362 is one for the bankruptcy court. Furthermore, amendment of the schedules and discharge of added debts are aiso questions for the bankruptcy court. While this court potentially' has jurisdiction to determine dischargeability of debts as articulated in In re Tinnenberg, 57 B.R. 430, 432 (E.D.N.Y. 1985), we decline to do so without knowing whether or not the bankruptcy court has allowed amendment of the schedules to include Pedro's creditors in American Samoa and has discharged these debts. We will not speculate as to what action the bankruptcy court will take with respect to Pedro's motion to amend the schedules.
The bankruptcy court may find that the schedules cannot be amended, or that Pedro's debt to Lutali is not dischargeable. If so, quashing the writ of garnishment would prejudice Lutali's (or ASB's) interests, since Lutali (or ASB) was entitled to (his remedy the day the automatic stay terminated on August 6, 1993, At that time, Lutali reasonably believed that she already had a valid writ on which she could rely to protect her interests.
On very similar facts, the bankruptcy court for the Eastern District of New York refused amendments to bankruptcy schedules.
Debtors did not make an appearance in state court to argue that the debt is dischargeable, nor did debtors move to reopen their bankruptcy until after the judgment was taken. We do not condone the debtor's disregard for the state court action because it would be unfair to impose upon [the creditor] the burden of the delay in the resolution of this matter, and the cost of the state court litigation. In short, debtor's failure to appear in the state court action makes it beyond the sound discretion of the court to reopen this case to discharge the state court judgment.
Tinnenberg, 57 B.R. at 432 (emphasis added). However, we are not prepared to hold that Pedro's debts to Lutali are exempt from discharges as the state court did in Tinnenberg. At the time judgment was.taken, Pedro had not yet filed for bankruptcy. Furthermore, Lutali has not been *78prejudiced under 11 U.S.C.A. § 523(a)(3), which exempts unscheduled creditors from discharge unless they possess "notice or actual knowledge" of the proceeding to make a "timely filing" of a claim. Initially, this bankruptcy was a no-asset proceeding, in which creditors were instructed not to file claims until further notice.3 If assets are discovered permitting a dividend, the deadline for filing claims is 90 days after the mailing of notice to creditors, meaning that the deadline to a make a "timely filing" has not yet arrived. Under these circumstances, we cannot hold Pedro's debt to Lutali exempt from discharge. 11 U.S.C.A. Rule 3002(c)(5); In re Stark, 717 F.2d 322, 324 (7th Cir. 1983). On the other hand, we plainly cannot hold Pedro's debt to Lutali a closed issue, unless the bankruptcy court permits amendments to the bankruptcy schedules to include Lutali and discharges this debt.
B. Indebtedness to ASB
The rights of ASB and Lutali differ only in that ASB is a secured creditor. The automatic stay applied to ASB as well as to Lutali. The present status of Pedro's indebtedness to both creditors remains unclear.4 The bankruptcy court may allow amendment to schedule and then discharge these debts. If this turns out to be the bankruptcy court's decision, and the garnished funds give rise to an asset which is part of the bankruptcy estate, it will be the province of the trustee in bankruptcy to administer these funds. We therefore decline to preempt the bankruptcy court's decisions in this case by awarding the funds to either ASB or to Lutali at this juncture.
ORDER
Finding that we are unable to make a principled decision without knowing the status of the proceedings in the bankruptcy court, we take no action *79either on Lutali's motion to release all or any part of the garnished funds to her or on Pedro's motion to quash Lutali's writ of garnishment at this time. Instead, we direct Pedro to advise this court within 30 days of the entry of this order on the status of his motion in the bankruptcy court to amend the bankruptcy schedules, and any resulting discharge order or other decree from either the bankruptcy court or from the trustee.
It is so ordered.
Although this issue is not before us, we simply note that ASB's action in this matter potentially violates the automatic stay, since the bankruptcy proceedings may have been reopened to consider amendment of the bankruptcy schedules, and the house which is the subject of the foreclosure sale is potentially the property of the bankruptcy estate.
Some federal courts are applying an equitable exception, but until we know whether the schedules have been amended and the added debts have been discharged, we need not consider whether it applies in this case. We note, however, the Sixth Circuit has cautioned that the exception be applied "sparingly." Easley v. Pettibone, 990 F.2d 905, 911 (6th Cir. 1993); In re Smith, 876 F.2d 524, 527 (6th Cir. 1989). In all cases where the exception has been applied, debtors were attempting to "use the stay as a shield after an unreasonable [and deliberate] delay in asserting debtors rights." Id. at 910 (construing In re Calder, 907 F.2d 953 (10th Cir. 1990); Matthews v. Rosene, 739 F.2d 249 (7th Cir. 1984); and In re Smith Corset Shops, 696 F.2d 971 (1st Cir. 1982)). The two criteria for application of the exception are (1) unreasonable withholding of notice of *77the stay by the debtor, and (2) prejudice to the creditor.
"DO NOT FILE A CLAIM AT THIS TIME. If assets are discovered that may result in payment to creditors, you will be notified of a deadline for filing claims." W.D. WA Case No. 93-03335.
Pedro has submitted a letter which appears to be a legal opinion from the attorney for the bankruptcy trustee, stating the view that ASB is entitled to the funds. There is no language in that letter which purports to have any binding effect, and we are not willing to -release the funds without a more official decree from the trustee or from the bankruptcy court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486271/ | Order Denying Motion for Default Judgment:
Plaintiff's motion for a default judgment came regularly for hearing on December 28, 1994. Counsel for both parties were present.
Plaintiff commenced this action on August 5, 1994. Defendant was served with process on August. 9, 1994, and filed an answer on August 11, 1994. However, defendant failed to provide plaintiff's counsel with a copy of the *80answer. Thus, on November 17, 1994, plaintiff initiated default proceedings and, by oversight of the answer on file, obtained the clerk's entry of defendant's default. On the same day, the clerk issued the notice of the hearing on this motion, which was served on defendant on December 1, 1994.
While we express disappointment with defendant's counsel when he neglected to ensure compliance with service procedures at the time of filing the answer, and perhaps even more so when counsel learned of this correctable mistake, we cannot grant a default judgment in the face of an answer effectively denying liability. As provided in T.C.R.C.P. 55(c), defendant would be properly entitled to relief by setting aside any such judgment by a motion under T.C.R.C.P. 60(b).
Accordingly, the motion for a default judgment is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486272/ | Order Denying Motion to Admit Evidence:
HISTORY
Appellant, Joe Taufete'e ("Appellant"), occupies communal land in the' village of Nu'uuli, adjacent to the Pala Lagoon. In 1985, Appellant obtained a permit to conduct landfill activity in that area, but discontinued such activity later that year. Appellant resumed fill activity in 1992, but the government issued a Stop Work Order to Appellant because his permit had expired. Appellant applied for a fill permit through the Project Notification and Review System ("PNRS"). The PNRS reviewed the application and recommended to the director that Appellant's application be denied. Appellant then appealed the recommendation of denial to the PNRS appeals panel, which reviewed and reversed the recommendation of denial. The Director followed the PNRS recommendation and denied the permit. The Government moves this court to receive affidavits not considered in the administrative review, nor on the record of the agency's proceedings, on the ground that the report was unavailable at the time of the agency decision.
DISCUSSION
The scope of review for an administrative decision is governed by A.S.C.A. § 4.1043(a), which provides, in relevant part, "The review shall be confined to the record ... On motion of any party, the court may, in its discretion, receive any evidence necessary to supplement the record."
The language of this rule requires that "review is coúfined to the record," giving the court "discretion” to receive new evidence on appeal only when it finds: (1) that the evidence "supplements]" or explains matters already in the record; and (2) when the "supplemental]" material is "necessary" for meaningful review.
Although they are not bound by the same statutory rule as the courts of American Samoa, federal courts have generally held that any evidence *82outside the administrative record may be admitted only for the limited purpose of explaining the complex technical testimony in the record.
In reviewing administrative regulations, the courts generally are forbidden from conducting a full-fledged and independent evidentiary hearing. Neither can the courts uphold regulations on the basis of post-hoc rationalizations offered by the agency. But in the often difficult task of’ reviewing administrative regulations, the courts are not straightjacketed to the original record in trying to make sense of complex technical testimony, which is often presented in administrative proceedings without review by nonexpert judges in mind. Here, the augmenting materials were merely explanatory of the original record. No new rationalization of the S02 regulations was offered by the EPA. Instead, the augmenting materials clarified a dispute that we felt was less clear from the original record and were clearly admissible. Bunker Hill v. E.P.A., 572 F.2d 186, 192 (9th Cir. 1977) (citations omitted). In the present case, the offered affidavits were not in the mind of the Director when he made his decision to deny the permit to appellant, nor do they purport to explain or clarify any specific evidentiary materials already in the record. The affidavits merely present the agency's proffered post hoc rationalization. Furthermore, in interpreting Bunker Hill, the District of Columbia Circuit held that, if "necessary", a reviewing court may, "[G]o outside the administrative record . . . only for background information, as in Bunker Hill, or for the limited purpose of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds for decision." Environmental Defense Fund v. Costle, 657 F.2d 275, 285 (D.C. Cir. 1981) (quoting Asaraco v. E.P.A., 616 F.2d 1153, 1160 (9th Cir. 1980)). The District of Columbia Circuit further found it to be essential that supplementary evidence be provided by "employees" of the relevant agency, or people who "had participated in the pertinent agency actions." Id.
The Government offers us Webb v. Gorsuch, 699 F.2d 157, 159 n.2 (4th Cir. 1983), for the proposition that "we may consider several affidavits and reports . . . which were not placed before the agency in determining whether the agency's action was arbitrary." This language, however, does not take into consideration the limitation upon review of administrative decisions in A.S.C.A. § 4.1043(a). Additionally, the footnote in Webb is narrowly tailored to permit evidence outside the record "when assessing the adequacy of an [Environmental Impact Statement] or a determination that no EIS is necessary," after a pollution elimination permit is already approved. Id. Furthermore, the language of the Webb footnote indicates that non-record evidence may be admitted to determine "whether the *83agency decision was arbitrary," which seems to indicate that the non-record evidence must be supplemental or explanatory of the evidence considered by the agency. Id.
Finding that Karla Kluge and Thomas E. Yocum are not employees of the Development Planning Office, that they were not involved in the administrative proceedings, and that their affidavits do not purport to clarify or explain evidence from the existing record, we hold that the evidence is not supplemental to the administrative record. The motion to admit these affidavits into evidence or to depose the witnesses is, therefore, denied.
In accordance with A.C.R. Rule 27(c), this ruling may be reviewed by the entire appellate division.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486273/ | Order Denying Motion for a New Trial (Reconsideration): .
On October 12, 1994, we granted summary judgment for the moving defendants on the grounds that plaintiffs action was barred by the applicable two year statute of limitations, A.S.C.A. § 43.0120(2). Plaintiff moves for reconsideration of that order contending in the alternative that: 1) the final day of accrual fell on a Sunday and that T.C.R.C.P. Rule 6(a) applied to extend his filing deadline to the following business day; 2) the applicable statute of limitations is A.S.C.A. § 43.0120(3), which prescribes a three year period of limitations for "unwritten contracts," and not A.S.C.A. § 43.0120(2).
DTSCUSSTON
I. § 43.0121 (2) or § 43.0121 (3)
We reiterate our reasons earlier given and reaffirm our conclusion that the applicable statute of limitations in this case is A.S.C.A. § 43.0121(2).
II. Applicability of T.C.R.C.P. 6
T.C.R.C.P. 6(a) provides:
In computing any period of time prescribed or allowed by these rules, by order of the court, or by an applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period prescribed or allowed is less than 7 days, intermediate Saturday, Sundays, and legal holidays shall be excluded in the computation.
*85(emphasis added).
There appears to be a divergence of authority on the question of whether Rule 6(a)'s method of computing time extends to the computation of a limitations period prescribed by statute or whether the rule is merely limited to computing time for procedural matters once an action is properly before the court. See Anonymous Banks One Through Three v. FDIC, 645 F. Supp. 706, 707-708 (D. Mont. 1986). Nonetheless, it is well established that Rule 6(a) may provide guidance when the statute is silent as to how the time limitation prescribed is to be computed. Jenkins v. Yoder, 324 N.E.2d 520, 521 (Ind. 1975). Where "no contrary policy is expressed in the statute . . .the considerations of liberality and leniency which find expression in Rule 6(a) are . . . applicable." United States v. Cia Luz Stearica, 181 F.2d 695, 696-697 (9th Cir. 1950) (citing Union National Bank v. Lamb, 337 U.S. 38, 41 (1949)). Conversely, where contrary statutory policy is clear on method of computation of time, the statute shall, of course, be followed. Rule 6(a) is not intended to modify or change an existing statute of limitations, and it cannot, of its own force, extend a substantive limitations period prescribed by statute, nor does it attempt to change or modify a jurisdictional statute, such as a statute of limitations. Joint Council Dining Car Employees Local 37 v. Delaware, L. & W.R.. Co., 157 F.2d 417 (2nd Cir. 1946) (court dismissed plaintiffs action, brought under the Railway Labor Act, on the ground that it was barred by the statute of limitations prescribed by the Act even though the final day of accrual fell on a legal holiday); Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir. 1980) (Rule 6(a) did not alter the statute of limitations prescribed by the Truth in Lending Act which stated that an action must be brought "within one year from the date of occurrence").
In our Order Granting Defendants' Motion for Summary Judgment, issued on October 12, 1994, we held that the statute of limitations applicable in this legal malpractice action was prescribed by A.S.C.A. § 43.0120(2). This enactment provides in relevant part:
Actions may be brought within the following times after their causes accrue, and not afterward, except as otherwise specially declared .... (2) actions founded on injuries to the person . . . including injuries to relative rights, whether based on contract or tort. . . within 2 years.
(emphasis added). We read A.S.C.A. § 43.0120 as expressing a contrary policy to Rule 6's method of computing time. The enactment not only *86states that actions based on a cause of action as the one before us must be filed within two years after their causes accrue, but it states that an action may not be brought after such date, except as otherwise declared. While there are very specific statutory exceptions that toll the statute, see A.S.C.A. §§ 43.0124 - 43.0127, the facts in the present case do not fall within any of those exceptions. See Patau v. Rosendahl Corp., 19 A.S.R.2d 80, 85 (Trial Div. 1991) aff'd, Patau v. Rosendahl Corp. 20 A.S.R.2d 77, 79 (App. Div. 1991).
The court in Joint Council Dining Car, 157 F.2d 417, reasoned that applying Rule 6(a) to extend the statutory limitations period by one day because the final date fell on a legal holiday, would be in direct conflict with the intent of Congress, which provided in the Railway Labor Act, that the statute of limitations shall be two years and not after. Similarly, A.S.C.A. § 43.0210 states that the statute of limitations shall be two years and not afterward; therefore, applying Rule 6(a) to extend the time prescribed by A.S.C.A. § 43.0210 would, in our view, be in conflict with the expressed intent of the Fono.
We conclude, therefore, that T.C.R.C.P. 6(a) does not extend the computation of time for the statute of limitations regarding a cause of action for legal malpractice pursuant to A.S.C.A. § 43.0210(2). We accordingly reaffirm our earlier conclusion that plaintiff's cause of action is untimely under the terms of this enactment.
III. Accrual Date for Legal Malpractice Cause
The three accepted methods for determining the accrual date for a cause of action for legal malpractice are: (1) from the date of the negligent act; (2) from the date the client sustained injury; and (3) the date the client discovered or should have reasonably discovered the alleged malpractice.
More recent decisions from other jurisdictions have applied the "discovery doctrine" which states that a cause of action for legal malpractice accrues when the plaintiff knows, or in the exercise of reasonable diligence should have known, of the defendant's negligent conduct, or when the plaintiff is first able to sue. AMFAC Distribution Corp. v. Miller, 673 P.2d 795, 796 (Ariz. Ct. App. 1983). In other words, a cause of action against an attorney for legal malpractice does not accrue until the date on which the negligence is irremediable. Banton v. Marks, 623 S.W.2d 113, 116 (Term. Ct. App. 1981).
The court in AMFAC Distribution Corp. held that a claim for legal *87malpractice is not ripe until the damages are ascertainable and the plaintiff has no recourse remaining in the courts. Id. at 796.- The reason a client must wait until final judgment is obtained or is waived by failure to appeal is that it protects the trust relationship between a client and his or her attorney. Otherwise, clients would always be second-guessing their attorneys. Also, judicial efficiency is promoted by requiring final judgment because without it, a plaintiff would be allowed to bring a legal malpractice action that would be moot if an earlier decision was overturned on appeal.
A cause of action may not be brought for legal malpractice until the case is finally terminated and a final judgment is rendered. Ameraccount Club Inc., v. Hill, 617 S.W.2d 876, 878 (Tenn. 1981); Woodruff v. Tomlin, 511 F.2d 1019, 1020 (6th Cir. 1975).
CONCLUSION
A.S.C.A. § 43.0120(2) is the applicable statute of limitations in this case. Pursuant to A.S.C.A. § 43.0120(2), plaintiff had two years to file suit against defendants for legal malpractice. The period of time began to accrue on March 13, 1992, the date the Appellate Division upheld the dismissal of plaintiff's action. This was the date in which plaintiff was left with no further recourse and the damages were irremediable. Plaintiff filed suit on March 14, 1994, which was two years and one day following the date of injury. This was beyond the period of time prescribed by A.S.C.A. § 43.0120(a) and was therefore dismissed by this court. Plaintiff argues that T.C.R.C.P. 6(a) should extend the statute of limitations by one day since the period of computation ended on a Sunday; but T.C.R.C.P. 6(a) does not apply in this case because A.S.C.A. § 43.0120 clearly does not allow any actions to be filed beyond the two year requirement unless it satisfies an expressed exception; which is not met in this case. To find otherwise would be contrary to the legislative policy expressed in this statute. Plaintiffs motion for new trial (reconsideration) is, therefore, denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486274/ | Order Granting Motion to Dismiss:
INTRODUCTION
On June 23, 1994, Serina Pasesa ("Serina"), a minor, filed this action, by and through her Guardian Ad Litem, Miliama Pasesa ("Miliama"), naming Tuilua T. Laumatia ("Laumatia") as defendant, and seeking money damages for physical injuries suffered on February 9, 1990, as the result of a car accident involving Laumatia.1
*89On December 6, 1994, Laumatia filed a motion to dismiss this action on the grounds that it is barred by the statute of limitations pursuant to A.S.C.A. § 43.0120(2). In response, plaintiff filed a memorandum in opposition to motion to dismiss on December 16, 1994.
On January 12, 1995, the hearing came regularly before the court and both parties were represented by counsel.
DISCUSSION
A.S.C.A. § 43.0120(2) is the statute of limitations applicable to this action. A.S.C.A. § 43.0120(2) provides in relevant part that "actions founded on injuries to the person . . . whether based on contract or tort, or for a statutory penalty, [must be brought] within two years [after their causes accrue]." Although this action was filed on June 23, 1993, over three years after the accident, plaintiffs assert that it is not barred by A.S.C.A. § 43.0120(2) because Serina is a minor and her suit is governed by A.S.C.A. § 43.0126. As an exception to A.S.C.A. § 43.0120, A.S.C.A. § 43.0126 states that "[m]inors and insane persons shall have one year from after the termination of such disability within which to commence any action regardless of any otherwise applicable limitations period."
Plaintiff further asserts that since Miliama was appointed Guardian Ad Litem the same day this action was filed, that this action is not barred by' the one-year statute of limitations stated in A.S.C.A. § 43.0126. Although § 43.0126 is applicable,2 it does not aid plaintiff in this case. The one-year statute of limitations in A.S.C.A. § 43.0126 begins to accrue *90on the date on which a Guardian Ad Litem is appointed, because the minor’s inability to bring suit is terminated at that juncture. Lutu v. American Samoa Government, 1 A.S.R.2d 61, 63 (1988). Since Miliama was originally appointed Guardian Ad Litem on November 16, 1990, plaintiffs only had until November 16, 1991 to bring this action. The order appointing Miliama as a Guardian Ad Litem, signed on June 23, 1993, does not allow Miliama to extend the statute of limitations defined in A.S.C.A. § 43.0126, especially when the earlier action, CA No. 102-90, was also brought on behalf of Serina against Laumatia and claimed the same damages from the same accident as in this matter. Although the earlier action against Laumatia was dismissed without prejudice, plaintiffs are still required to bring an action again within the statute of limitations defined by statute.
A suit dismissed without prejudice leaves the situation the same as if the suit had never been brought in the first place. Humphreys v. United States, 272 F.2d 411, 412 n.1 (9th Cir. 1959). The Humphreys court further commented on the effect upon the statute of limitations of a dismissal without prejudice in stating:
In the absence of statute, a party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice as to him and if, before he commences a new action after having become nonsuited or having had his action abated or dismissed, the limitation runs, the right to a new action is barred.
Id. at 412 (citing 34 Am. Jur. Limitation of Actions § 281, now appearing in 51 Am. Jur. 2d Limitation of Actions § 311 (1970)).
Miliama filed this action on June 23, 1993, more than a year after she was originally appointed Guardian Ad Litem, and is therefore barred by A.S.C.A. § 43.0126. For these reasons we grant defendant's motion to dismiss with prejudice.
It is so ordered.
Miliama and Serina previously brought an action in this court, docketed CA No. 102-90, against Laumatia, Laau Liufai, and Insurance *89Company of the Pacific, Inc., seeking damages resulting out of the same accident at issue before us now. On February 18, 1993, this court approved a settlement in CA No. 102-90 and dismissed the action as to Laau Liufai, the owner of the vehicle Laumatia was driving at the time of the accident, and Insurance Company of the Pacific, Inc., the insurer of the vehicle. On June 4, 1993, the court approved the stipulation of the parties as to the dismissal of the action as to Laumatia without prejudice.
This court has held that no conflict exists between A.S.C.A. §§ 43.0120 and 43.0126, since A.S.C.A § 43.0126 clearly makes an exception to any statute of limitations and establishes a one-year statute of limitations. Lutu v. American Samoa Government, 7 A.S.R.2d 61, 63 (1988). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486275/ | Order Denying Motion for Post-Judgment Intervention:
On August 22, 1994, this court entered judgment in favor of plaintiff mortgagee, Development Bank of American Samoa, against defendant mortgagor, Christine Lagarejos, awarding, among other things, plaintiff's petition to foreclose a certain leasehold mortgage which defendant had executed in favor of plaintiff as collateral for the repayment of her loan. The leasehold interest was created in favor of defendant by her parents, movants herein Carl and Starr Schuster, in order to facilitate her loan application with plaintiff. To this end, movants gave plaintiff an instrument styled "Lessor's Consent to Mortgage and Estoppel Certificate," which on its face sanctioned the mortgaging of defendant's leasehold interest to plaintiff. Defendant subsequently defaulted on the loan and plaintiff filed suit, which resulted in the judgment entered herein.
On October 11, 1994, movants filed their motion for post judgment intervention, claiming, among other things, intervention as of "right" under T.C.R.C.P. 24(a), in that they were not joined in the action and *92hence their interest in the subject matter of the leasehold mortgage was not adequately represented. Alternatively, they claim intervention under T.C.R.C.P. 24(b) contending that the lease agreement and the lessor's-consent-to-mortgage instrument presented common questions of fact and law, relating to movants' intent with respect to their execution of these documents, which the court should consider.
DISCUSSION
A motion to intervene whether under subdivision (a) or (b) of Rule 24 is subject to the requirement of "timeliness." NAACP v. New York, 413 U.S. 345, 365 (1973). We hold that the application before us is untimely since movants have had knowledge of this action for some time before it went to judgment, as counsel for the mortgagee had early appraised movants of these proceedings. To sanction movants' wait-and-see posture by reopening this matter would be to unduly prejudice plaintiff's rights and substantially interfere with the orderly processes of the court. See McDonald v. E.J. Lavino Corp., 430 F.2d 1065, 1072, (5th Cir. 1970); United States v. Blue Chip Stamp Co., 272 F. Supp. 432, 436 (C.D. Cal. 1967) ("The interest in expeditious administration of justice does not permit litigation interminably protracted through continuous reopening. A motion to intervene after entry of decree should therefore be denied in other than the most unusual circumstances.").
At the same time, post judgment intervention is generally allowed only upon a "strong showing" of entitlement by the applicant. United States v. Associated Milk Producers, Inc., 534 F.2d 113, 116 (8th Cir. 1976), cert. denied, 429 U.S. 940 (1976). In this matter, movants cannot demonstrate any proprietary interest whatsoever in the subject matter of the action, namely, the leasehold estate and mortgage interest on the land. In contrast, movants' interest, a fee estate in the land, is not in any way affected by the judgment in this case. While that fee estate happens to be presently encumbered by leasehold and mortgage interests, these encumbrances, which movants now complain of, were not of the court's doing but that of movants' themselves, when they gave to the defendant and her assigns a leasehold estate on their land with the right to mortgage that leasehold estate to prospective lenders.
Furthermore, what movants essentially seek at this time is the opportunity to assail those encumbrances by going back on the language of the instruments which they have given. In other words, they seek the opportunity to present parol evidence to explain their real "intentions" with *93respect to the Leasehold Agreement and Lessor's Consent to Mortgage and Estoppel Certification. This course of action is of dubious merit, and in terms of the "strong showing" requirement for post judgment intervention, movants can hardly be said to have met their burden.1
For reasons given, the motion for post-judgment intervention is denied.
It is so ordered.
It is apparent from the supporting papers filed with the motion that this attempt to reopen the matter was prompted by the plaintiff mortgagee's unwillingness to accept movants' proposal for extended purchase terms to discharge the mortgage. Discharge of the mortgage and subsequent cancellation of the lease is still available to the movants, and, under the circumstances, is the more realistic course for relief. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486278/ | *98Opinion and Order:
On December 12, 1992, claimant Punefuolemotu M. Tuaolo ("Punefu") filed his claim to the matai title Tuaolo of Pago Pago with the Territorial Registrar, pursuant to A.S.C.A. § 1.0405. Within the required 60-day notice period, under A.S.C.A. §§ 1.0406 and 1.0407, Saelua Fa'ate'a ("Tutuvanu"), Manutafea E. Meredith ("Manutafea"), and Manaia E.T. Vaivao Fruean ("Vaivao") counterclaimed for the title.
On March 17, 1993, the Territorial Registrar referred the claims to the Secretary of Samoan Affairs for dispute resolution proceedings under A.S.C.A. § 43.0302. On January 27, 1994, after the claimants failed to reach a resolution following four scheduled hearings, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. On March 3, 1994, the Territorial Registrar forwarded the dispute to this court for judicial determination.
Manutafea formally withdrew his candidacy on December 13, 1994. The trial, with the remaining three candidates and their counsel, began on January 5 and concluded on January 12, 1995.
On the day the trial began, Tutuvanu had a motion pending to recuse the four associate judges assigned to this case due to their association with Vaivao, ’who is also an associate judge. Punefu indicated that he was joining in this motion. However, Tutuvanu withdrew his motion, and Punefu did not pursue this question.
Punefu did move to disqualify Vaivao’s counsel on the grounds that counsel represented Punefu’s father, Tuaolo Maliuga II, in an interfamily dispute involving authority over family communal land tried in this court in 1983, LT No. 51-83. The court ruled that for purposes of this action, Vaivao’s counsel did not have any conflict of interest with respect to any present or former client, by reason of any proprietary transactions, or resulting from any other adverse circumstance, and denied the motion.
The court, having heard testimony and weighed the evidence, states findings of fact and conclusions of law, as required by A.S.C.A. § 1.0409(d).
FINDINGS OF FACT
At the outset, the court observes that two distinct matai titles Tuaolo, with independent histories, thrive in the social fabric of Pago Pago. The *99decision in this case will not have any impact on the second Tuaolo title. The court also finds that each of the three candidates possesses the requisite qualifications established by A.S.C.A. §§ 1.0403 (a), (b) and (d) and 1.0404 (a). The court further finds the following facts regarding the four considerations set forth in A.S.C.A. § 1.0409(c), prioritized in the order of importance.
1. Best Hereditary Right
In this case, the court will use the traditional rule, based on a candidate's direct relationship to his closest ancestor holding the title, to determine hereditary rights. See In re Matai Title "Iuli", 14 A.S.R.2d 116, 117-18 (Land & Titles Div. 1990).1
Punefu is the son of Tuaolo Maliuga II, the last titleholder, and, under the traditional rule, has one-half Tuaolo blood.
Tutuvanu is directly descended from the brother of Tuaolo Tuli Asuega, who Tutuvanu claims to be original titleholder. As such, Tutuvanu would not be a direct descendent of a titleholder and would not have Tuaolo blood under the traditional rule. However, from the evidence, the court finds that Tutuvanu is directly descended from Tuaolo Lea' oa, also known as Lea'oa Apaisa. It appears that he is four generations removed from this *100Lea'oa Apaisa. It appears that he is four generations removed from this titleholder. Thus, under the traditional rule, Tutuvanu has l/16th Tuaolo blood.
Vaivao is directly descended from Tuaolo Vailiili Aosimea II, the son of Tuaolo Vailiili Aosimea I. Vaivao is removed by seven generations from Tuaolo Vailiili Aosimea II and, under the traditional rule, has l/128th Tuaolo blood.
Clearly, Punefu has the best hereditary right, the category with the highest priority, to succeed to the Tuaolo title.
2. Wish of the Majority or Plurality of the Family's Customary Clans
In this consideration, the court seeks to account for the wish of the majority or plurality of the family's clans. Clans customarily consist of the lineal descendants of the original titleholder's children and take each such child's name. See In re Matai Title "Iuli", 14 A.S.R.2d at 118.
Based on the evidence, Tuaolo Vailiili Aosimea I is the first Tuaolo titleholder. He had two children, a son Tuaolo Vailiili Aosimea II and a daughter Tamasailau. Thus, the Tuaolo family has two clans descended from Vailiili Aosimea II and Tamasailau. However, at one point in the family's history, the family found it necessary to venture outside these two clans for a titleholder. In this manner, Tuaola Fealofani became the titleholder and, although non-blood related to the original two clans, established the clan now long-recognized and known within the family as the Fealofani clan. In fact, it appears that most, if not all, succeeding Tuaolo titleholders have been members of the Fealofani clan.
While some members of the Fealofani clan prefer Vaivao, Punefu as a clan member has the consensus support of this clan. Similarly, Tutuvanu is the choice among his closer relatives in the Tamasailau clan. However, many members of this clan are related to the matai title Lea'oa, the senior matai, or sa'o, within the extended family including Tuaolo and Lago as the other major matai titles. The present Lea'oa, Lea'oa Viavia, and most of his family, as members of the Tamasailau clan, constitute a consensus of this clan in favor of Vaivao.
Vaivao also has the consensus support of the Vailiili Aosimea II clan, of which he is a member and which has significant connections with the matai title Lago.
*101Thus, on this second priority issue, the Tuaolo family clans stand behind Vaivao's candidacy by a two-to-one majority.
3. Candidates' Forcejulness, Character and Personality, and Knowledge of Samoan Customs
In this area, the court weighs the breadth and depth of human traits among the candidates.
Punefu is still quite young and of limited experience. Tutuvanu, now in his twilight years, has the wisdom of lengthy experience but shows signs of declining vitality. Vaivao is in his prime and vigorous.
The court does not question the character of any of the candidates. All three have uniquely likeable and enduring personalities. However, Vaivao's forcefiilness stands out.
All three candidates demonstrated knowledge of the Tuaolo family's history and traditions, albeit each with different versions tending to promote his claim to the title. Punefu admittedly lacks thorough knowledge of Samoan customs but is ready to learn. Tutuvanu and Vaivao are well-versed in such matters. Tutuvanu and Vaivao are ranked equally on their knowledge of customs and superior to Punefu.
Vaivao prevails in this third priority category.
4. Candidates’ Value as Holder of the Title to Family, Village and Country
In this category, the court evaluates each candidate's prospective value to his family, village, and American Samoa as the titleholder. See In re Matai Title "Sala”, 4 A.S.R. 21, 23 (Land & Titles Div. 1970).
Punefu, despite his youth and relative inexperience, has the potential to be a respected and successful leader of the Tuaolo family, but without doubt, both Tutuvanu and Vaivao are prepared for this role.
Punefu now resides in Pago Pago. Tutuvanu resides in Amanave but would take up residence in Pago Pago as the titleholder. Either one can, of course, become quickly immersed in Pago Pago affairs acting on behalf of the Tuaolo family. On the other hand, Vaivao is a lifelong resident of Pago Pago and, as the present holder of the matai title Vaivao, is already very active in Pago Pago matai matters. The Tuaolo title is a high talking *102chief for High Chief Mauga, the paramount matai title of Pago Pago. In. this capacity, Tuaolo ranks higher than Lea'oa in matters outside the extended family consisting of the Lea'oa, Tuaolo and Lago families. In this respect, Vaivao in his present matai capacity has gained distinct advantageous experience over Punefu and Tutuvanu.
Vaivao also has a distinguished record of public service, particularly as six-term member of the House of Representatives of the Legislature of American Samoa and as an associate judge. In this regard, Vaivao also has superior credentials.
Thus, in this fourth priority consideration, Vaivao prevails substantially.
CONCLUSIONS OP T.AW
Based on the foregoing findings, the court makes the following conclusions of law.
1.. Punefu has the best hereditary right to succeed to the Tuaolo title.
2. Vaivao is supported by the majority of the Tuaolo clans to succeed to the Tuaolo title.
3. Vaivao prevails in the consideration of forcefulness, character and personality, and knowledge of Samoan customs.
4. Among the candidates, Vaivao has the greatest potential value to family, village and country as the next Tuaolo titleholder.
5. A.S.C.A. § 1.0409(b) gives 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 69-70. Vaivao prevails in clan support, in personal characteristics and knowledge of Samoan customs due to his vitality and greater forcefulness, and especially in potential value as the leader of die Tuaolo family. His superior credentials in these three areas outweigh Punefu’s best hereditary right. Thus, the court awards the matai title Tuaolo to Vaivao.
ORDER
The Territorial Registrar shall register the matai title Tuaolo in the name *103of Manaia E.T. Vaivao Fruean.
Judgment shall enter accordingly.
It is so ordered.
No circumstances justify application of the more recent, alternative rule tracing blood relationships from the original titleholder or from the nearest common ancestor. See In re Matai Title "Sotoa", 2 A.S.R.2d 15 (Land & Titles Div. 1984). The "Sotoa rule” is no longer the universal rule, but may be applied where: (1) "the customs and traditions of the . . . family" call for its application, In re Matai Title "Tauaifaiva", 5 A.S.R.2d 13, 14 (Land & Titles Div. 1987); or (2) where:
... it appears that a particular family's tradition is to rotate the matai title among the different branches of the family; or where domination of the title by one branch of the family has resulted from previous Court decisions rather than from the family's own consensus, such decisions having produced the unintended result that no person from any other branch has a close relationship to any recent titleholder.
In re Matai Title "Tuiteleleapaga", 15 A.S.R.2d 90, 91 (Land & Titles Div. 1990). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486279/ | ATIULAGIJ.,
dissenting:
I wholeheartedly agree with the finding .in this decision that Punefu has the best hereditary right to succeed to the Tuaolo title.
However, I am troubled by the finding that Vaivao is supported by a majority of the Tuaolo family's clans. The judicially-noticed files of this court's earlier decisions, in 1935, 1949, 1964 and 1983, in all of which the Tuaolo family's genealogy played a significant role, do not reveal titleholders named either Tuaolo Vaiilili Aosimea I or II. In fact, in the 1949 case, the clans presently identified as Tuaolo Vailili Aosimea II and Tamasailau appear to be progeny known as Lago Vailiili and Tamasailau of entirely different parentage. In addition, in this case, the present Lea'oa, Lea'oa Viavia, has no knowledge of anyone named Aosimea in the extended family. Under these circumstances, I am not persuaded by the evidence as to either the number or names of the Tuaolo family's clans in Vaivao's alleged ancestral heritage. I can only find that he has the consensus support of one-half of the family, while Punefu enjoys such support from the Fealofani clan, the only family clan clearly identified. As such, I would find that while they prevail over Tutuvanu, Punefu and Vaivao draw on this issue.
Furthermore, I do not find evidence that convincingly differentiates any of the three candidates on the consideration of their leadership styles, characters, personalities, or knowledge of Samoan customs. I consider them equal and would find them tied in this regard. ■
Finally, regarding the category of potential value to family, village and country, I believe either Punefu or Vaivao could prevail. Vaivao's record includes matai experience and admirable public service. On the other hand, Punefu is youthful but mature and has the potentially lasting value of successfully leading the Tuaolo family for a great number of years to come. In this area, I am inclined to find that Punefu is certainly no less than equal.
Since Punefu has the best hereditary right to the Tuaolo title and at least matches Vaivao on the three lesser priority considerations, I would award *104the Tuaolo title to Punefu. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486280/ | Opinion and Order:
This is case arises from an unfortunate motor vehicle accident in which two individuals were ejected from the bed of a pickup truck and injured. Their separate actions for damages from personal injuries were consolidated and came regularly for trial on July 14 and August 18 and 19, 1994. All parties appeared by their counsel. Plaintiff Christina Maifea ("Christina") was personally present throughout the trial. Plaintiff Posiulai Maifea ("Posiulai") and Defendant Potlatch Crichton ("Potlatch") were personally present on July 14.
I. LIABILITY
A. Findings of Fact
On Sunday, May 31, 1992, at about 5:00 p.m., Potlatch was driving a blue *106Toyota pickup and Brian Maifea ("Brian") wa!s driving a white Nissan pickup, both traveling westward on the main public road in Nuuuli, American Samoa. The accident occurred in the immediate vicinity of the Pacific Resources Industry's Gas Express station, west of the three-corner intersection with the road to Lions Park. The Toyota was owned by defendant Edward Crichton & Co. ("ECC") and insured by defendant National Pacific Insurance Co. ("NPI").
Earlier that afternoon, Potlatch, his sisters Wendy Crichton ("Wendy") and Lorita Crichton ("Lorita"), and others were moving the ECC office from Fagatogo, American Samoa to a new location. Edward Crichton, the Crichton children's father, Wendy; and Lorita were the only authorized drivers of the Toyota under ECC's company policy. However, Potlatch, who was then age 21 years, took over the wheel for the last two relocation trips. Shortly before 5:00 p.m., they ceased working to return to their home in Leone (Lepuapua), American Samoa, to prepare for their evening church service. Potlatch remained the driver of the vehicle for the trip home. Besides Potlatch, five other young persons were in the Toyota on the trip home. Lorita's son was seated in the cab beside Potlatch. Seated in the bed of the pickup were Wendy, located at the left rear, a female identified as Julie, at the right rear, both facing the cab, John Atofau Tuitele ("John"), at the forward right side, and a male identified as Sililo, at the forward left side, both facing the rear of the pickup.
Brian and his sisters Christina and Posiulai attended church in the portion of Nuuuli located on the Coconut Point peninsula. After the service was over, they left for home in Nuuuli, across the main road from Pete's Hut a short distance west of the turnoff road to Pago Pago International Airport. Brian, then age 17 years, drove the Nissan, and was seated alone in the cab. Christina, then age 21 years, and Posiulai, also age 17 years, were standing in the forward end of the bed, respectively at the left and right. The girls were holding onto the open sunroof with one or both hands throughout the journey homeward.
Upon reaching the main road in the Nissan, Brian waited while four or five vehicles passed heading west before making a left turn onto the road. From that point to the accident scene, Potlatch was driving the Toyota to the rear of the Nissan, driven by Brian. Traffic was also moving eastbound. Light rain or drizzle had been falling but had ceased.
Occupants of the two vehicles diversely described events as they headed to the collision point. Taken as a whole, the Nissan group portrayed Brian driving at a lawful speed behind four or five vehicles, while Potlatch drove *107the Toyota immediately behind the Nissan, closely at times, and attempted several passes, varying somewhat in number and location, only to be thwarted by oncoming vehicles. Essentially, they denied, any interplay between the vehicles' drivers and passengers.
On the other hand, the Toyota group, while confirming the several passing attempts, maintained that on each occasion, Brian moved the Nissan to the left, or sped up, to prevent the passing. They also claimed that Christina and Posiulai were waving and smiling at them.
Without pinpointing or resolving the precise details of these pre-accident events on the main road, we are persuaded that both Potlatch and Brian were displaying the immature judgment all too often seen when youthful peers take the wheel, egged on by at least some of their equally youthful passengers. In short, Potlatch and Brian were mutually joyriding and headed toward the impending disaster.
Approaching the collision point, Potlatch again attempted to drive the Toyota past the Nissan. With no approaching vehicle immediately ahead, he crossed double yellow lines and was driving in the oncoming traffic lane at 35 to 40 mph. Traveling westward, the road in this area first goes uphill perceptively and then, quite gradually, curves left. Commercial facilities are plentiful along the bend, with two gas stations and at least two stores open on Sundays at that time.
Brian neither slowed the Nissan down nor moved it to the right. Rather, he moved the Nissan to the left, towards the overtaking Toyota, and the protruding oversized, left rear tire on the Nissan collided with the right side of the Toyota. This contact occurred near the crest of the hill where the slightly bending road begins to traverse through the commercial area.
Potlatch lost control of the Toyota, and it veered to the left before coming to a stop at the westward curb of the bus stop on the seaward side of the road, across from the Gas Express station. Julie and Sililo were thrown out of the Toyota bed by the impact with the curb onto the paved bus stop. Wendy was almost thrown off. All three received minor injuries. John remained within the bed and was not injured.
Brian also lost control, momentarily. As he corrected the Nissan, Posiulai was ejected from the bed onto the paved road and was seriously injured. Next, as Brian increased the Nissan's speed, Christina was dislodged out of the bed onto die road and was also seriously injured.
*108Apparently, Brian was not immediately aware of his sisters' plight and drove from the scene, at least as far as the store buildings just before or beyond the Aiga Basket grocery. By the time he returned and parked on the roadside near the Gas Express station, a pickup moving eastward, had stopped, and several persons were placing Posiulai and Christina into the bed of this vehicle, which took both girls, followed by Brian in the Nissan, to the American Samoa Government's LBJ Tropical Medical Center at Faga'alu, American Samoa, for medical treatment.
B. Discussion
Both Potlatch and Brian were under the duty to drive their respective motor vehicles with ordinary or reasonable care, which persons of ordinary prudence would use under the circumstances, in order to avoid injury to themselves or others. Failure to use ordinary or reasonable care is negligence. Injured persons are entitled to compensation when a defendant's negligence is the proximate cause of the injury.
Potlatch attempted to drive his Toyota past the left side of Brian's Nissan and at least one other vehicle ahead of the Nissan. He crossed a double yellow line, an official traffic-control marking designating a no-passing zone. This no-passing zone reduces hazards in an area where the road's character is uphill and gradually curving through an area with substantial commercial activity, even on Sundays. Significant traffic was moving in both directions. He proceeded in the lane against oncoming vehicles at speeds 10 to 15 mph in excess of the authorized 25-mph speed limit in this areá.
Potlatch was not using ordinary or reasonable care under these circumstances and was negligent. In fact, his driving constituted careless driving in violation of A.S.C.A. § 22.0701,1 prohibited overtaking in violation of A.S.C.A. § 22.0209, and hazardous passing in violation of A.S.C.A. § 22.0307(e)(1), and, thus, for any or all of these reasons, he was negligent per se. Neither Christina nor Posiulai would have been injured but for Potlatch's negligence. Thus, Potlatch proximately caused these injuries.
Brian failed to take reasonable precautions when he neither slowed down *109nor moved away from the Toyota during the final attempted passing. He was abundantly aware of Potlatch's several, earlier overtaking efforts. Instead, whether deliberately or carelessly, he essentially impeded the passing Nissan. He, too, was negligent, and neither Christina nor Posiulai would have been injured but for his negligence. Thus, Brian also proximately caused these injuries.
Potlatch's and Brian's negligent conduct operatively acted and produced Christina's and Posiulai’s injuries. Their conduct contributed concurrently as proximate causes of these injuries, but Potlatch cannot be relieved of responsibility simply because Brian was not joined as a defendant in this action. Each of them is jointly and severally liable to compensate Christina and Posiulai.
However, Christina and Posiulai also cannot be excused from responsibility for causing their own injuries. This case demonstrates the clear and present danger of riding in pickup beds, and the greatly increased hazards of standing in the bed compared to sitting in the bed. The four persons in the Toyota bed causally contributed to their injuries from the accident, but the minor nature of their injuries, at least on this occasion, points out the relative safety of sitting opposed to standing in the bed. Christina and Posiulai were seriously injured due in substantial part to the extreme hazard of standing. On a comparative basis, as required under A.S.C.A. § 43.5101, while their contributory negligence does not preclude recovery, we assess their fault at three-fourths in factoring the proximate causes of their injuries.
C. Insurer's Liability
A.S.C.A. § 22.2003 states, in relevant part:
An owner's policy of liability insurance:
... (2) shall insure the person named therein and any other person who uses the vehicle or vehicles with the express or implied permission of the named insured . . .
NPI is the insurer of the subject vehicle for ECC, the "named insured." The sole question for NPI is whether Potlatch drove the vehicle with ECC's "express or implied permission." Evidence plainly indicates that there are only three drivers authorized to drive the vehicle under ECC's company policy. Potlatch is not among the authorized drivers. For this reason, we find that Potlatch had no "express" permission to drive the *110vehicle. Although Potlatch received express permission to drive from Wendy, an authorized driver, we have no evidence that the owner had provided Wendy with express authority to transfer her driving privileges to others.
In this case, however, the lack of authorization to drive a vehicle under ECC company policy cannot be construed as a denial of permission for Potlatch to drive. Potlatch was not a regular ECC employee and, therefore, had no regular need to be listed as an authorized driver. This raises the question of whether Potlatch had "implied permission" to drive the vehicle. Since "implied permission" is not defined by statute in American Samoa, we look to case law for its meaning.
Permission to drive a vehicle may be implied from a failure to take precautions to prevent an individual from driving a vehicle in circumstances where it is reasonably foreseeable that the person might do so. See Sataua v. Himphill, 5 A.S.R.2d 61, 68 (Trial Div. 1987). In the absence of evidence that the family did anything to prevent Potlatch from driving, the sole factual issue is whether it was reasonably foreseeable that Potlatch might drive the company vehicle during the relocation of the family business.
la.-Himphill, this court held that the owner of a vehicle had not given implied permission for a repairman to take the vehicle joyriding, because the nature of the authorized work on the vehicle did not require that the vehicle be driven. 5 A.S.R.2d at 67-68. In dicta, the Himphill court distinguished its result from cases in which consent to drive was implied from parents' "leaving the car keys lying around and accessible to errant children," or where an owner left his keys in the ignition, and the vehicle was stolen. Id. at 68 (distinguishing Minute v. Hartford Fire Insurance, CA No. 3260-75, slip op. (1976), Te'o v. Continental Insurance, AP No. 16-84, slip op. (1985), and Hoskin v. Robles, 159 Cal. Rptr. 369 (1979)).
We must determine whether this case is closer to the facts of Himphill in which permission was not implied, or to the dicta in which permission was implied. We find that our case is closer to the dicta. Although Potlatch was driving irresponsibly, he was engaged in the activity for which the vehicle had been entrusted to his group. Further, we find that Potlatch's open participation in moving the business made his driving of the vehicle even more foreseeable than either of the above situations where keys were taken from an unknowing owner. In giving express permission to assist in the relocation of the family business, ECC implicitly gave permission for Potlatch to take action reasonably necessary to complete the *111move, which included driving the ECC vehicle due to the illness of the authorized driver.2
We find it reasonably foreseeable that any person in a group relocating a business may be called upon by an authorized driver to drive in the event of an illness affecting the authorized driver, or some other condition making it inconvenient for the authorized driver to take the wheel at a given moment. The aims of the statute would be frustrated if a business or its insurer could escape liability for the accidents caused by non-authorized drivers while they are in the act of voluntarily benefiting the business. In dicta, this court approved a New York case which found "implied consent where the nature of the work requested is such as to suggest or indicate to a reasonably prudent person that the car must be or will be driven to accomplish the work or repair." Himphill, 5 A.S.R.2d at 67-68 (quoting Zuckerman v. Parton, 184 N.E. 49 (N.Y. App. 1933)). In this case, it was reasonable to expect contingencies in the course of the relocation of the business that would require a driver other than Wendy to operate the vehicle.3
D. Owner's Liability
The determinative issue concerning ECC's liability is whether or not the family purpose (or family car) doctrine applies to ECC, as a corporation, for allowing Potlatch to drive its vehicle.
*112Liability based upon the family purpose doctrine was adopted in Gibson v. Mulitauaopele, CA No. 19-92, slip op. (1993), where this court stated that 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 so being used. ” Id., slip op. at 2 (citations omitted). The doctrine was created to permit an injured person to recover damages from a vehicle's owner if the driver is "financially irresponsible." Id. (citations omitted).
Even though it is a corporation, we find that ECC is liable under the principles of the family purpose doctrine. Although Potlatch was not an ECC employee, evidence shows that he was driving at the time of the accident to assist the family business in its relocation. He was motivated by his allegiance to his family and not out of employment obligations to ECC. Evidence further shows that ECC owned the vehicle and that Edward Crichton, ECC's president, allowed the vehicle to be used by his household for personal matters. Moreover, as indicated above, Potlatch was driving the vehicle with ECC's implied permission at the time of the accident. The fact that the vehicle is owned by the family business or is at times used for business purposes does not matter or preclude the application of the family purpose doctrine. Durso v. A.D. Cozzolino, 20 A.2d 392, 394 (Conn. 1941) (father held liable under the family purpose doctrine for his daughter's negligence, when she was driving her father's permission, and where the vehicle was owned by the family corporation and used for both business and personal matters). In applying the family purpose doctrine to a corporation, the Durso court reasoned:
[I]f a car is maintained for the general use of a family, we see no valid distinction between a situation where it is owned and maintained by a member of the family, and one where it is owned and maintained by a family corporation for the use of the family of its managing head and one of its principal stockholders. In such a situation the controlling element- is the scope of the intended use rather than the mere fact that it is owned and maintained by the corporation .... Indeed, to hold otherwise, would make it possible, in the case of a family corporation such as the one before us, to avoid liability under the family purpose doctrine by having automobiles for the use of the families of its officers owned and maintained by the corporation.
Id. at 394. In finding that Potlatch was driving ECC's vehicle, with ECC's implied permission, and in furtherance of assisting the family *113multiple abrasions, affecting the left shoulder, knee and ankle, and on the right little finger, pelvis, thigh, knee and ankle. She lost the nail of the left great toe and received contusions of the neck and abdomen. X-rays of her left clavicle and shoulder, however, were normal.
Christina was also discharged on June 4, 1992, and was seen at follow up examinations on June 15 and July 15 and 25, 1992. At these examinations, she complained of continuing blurred vision and dizziness, and various testing was conducted with negative results. The ophthalmological examination revealed no eye pathology. Abnormalities were not found during orthopedic and neurological evaluations. The audiogram indicated normal hearing.
However, Christina reported occasional headaches and fainting spells at examinations on October 15, 1992, and February 3, 1993, and has experienced repeated episodes to the present time. Dr. Tuato'o recommends off-island investigation and treatment, especially a brain scan, to determine the possible presence of brain contusions as causes of the headaches and blurred vision. Christina's wounds healed with scarring, but corrective surgery was not suggested.
As with Posiulai, we have not been presented with any concrete evidence of Christina's actual damages, past or future, and therefore, limit the award to damages for pain and suffering, inclusive of medical expenses. In Christina's case, we assess these damages at $12,000 and due to her negligence, reduce the amount to $3,000.
ITT. CONCLUSIONS
The foregoing findings lead us to the following conclusions of law:
1. Posiulai and Christina were injured as the proximate result of the negligent operation of motor vehicles by Potlatch and Brian. Notwithstanding Brian's non-party status, he and Potlatch are jointly and severally liable for the damages suffered by Posiulai and Christina.
2. Posiulai and Christina were injured also as the proximate result of their own negligent conduct. On a comparative basis, each of them must take the blame for three-fourths of their own respective injuries.
3. The responsibility shared by Potlatch and Brian jointly and severally for Posiulai's total damages in the amount of $20,000 must be reduced to $5,000.
*114business, we hold that ECC is liable-under the principles of the family purpose doctrine.
II. DAMAGES
A. Posiulai
Posiulai lost consciousness when she landed on the pavement and did not, at least fully, regain it for some 24 hours. In addition to the cerebral concussion, she sustained a scalp laceration, requiring sutures, multiple abrasions and contusions to her lower back and both knees. She was hospitalized until June 4, 1992, and examined again on June 15 and July 15 and 30, 1992.
During these later examinations, Posiulai complained for the first time of right ankle pain and difficulty in walking. Dr. Ronald V. Vineyard found no X-ray or physical evidence of structural or functional abnormality, noted normal gait and lack of any complaint upon admission, and concluded that the complaints of ankle pain were subjective in nature. On the other hand, based on his review of the medical records and examination on July 6, 1994, Dr. Vaiula Tuato'o concluded that Posiulai did suffer a deep fracture of the ankle bone, which resulted in continuing pain and swelling to the present time and 16% disability of the right leg due to impaired ankle movements.
Posiulai has a disfiguring scar from her healed head laceration and still suffers from severe headaches, at times as frequently as several times a day. Dr. Tuato'o is of the view that Posiulai should undergo plastic surgery to improve the appearance of the scar area and a brain scan to diagnose the continuing headaches.
Without any specific evidence before us of Posiulai's actual damages resulting from either past or prospective medical expenses, we are limited to awarding damages for pain and suffering, inclusive of actual damages. Doubtlessly, Posiulai experienced and still experiences substantial pain and suffering. We assess these damages at $20,000 and, after applying our finding on comparative negligence, award Posiulai $5,000.
B. Christina
Christina did not entirely lose consciousness upon striking the pavement, but she apparently has little, if any, memory of events until the following day. She, too, suffered a cerebral concussion, scalp laceration, and
*1154. The responsibility shared by Potlatch and Brian jointly and severally for Christina's total damages in the amount of $12,000 must be reduced to $3,000.
5. NPI, as the insurer of ECCs vehicle, is liable for all damages attributed to Potlatch, subject to the legal limitations of the insurance policy.
6. ECC, as owner of the vehicle, is liable for all damages attributed to Potlatch, in light of the family purpose doctrine. Judgment shall enter accordingly.
It is so ordered.
He was cited for violating this statute, as a Class B misdemeanor involving bodily injury to any person, and his plea of guilty to this offense is properly considered an admission of negligence in this action.
A vehicle owner cannot restrict his consent to a particular manner of driving in order to escape liability under the automobile consent statutes. Himphill, 5 A.S.R.2d at 66. Although ECC did not consent to the negligent driving of Potlatch as a necessary act to complete the move, the law is well settled in American Samoa that an insurer of an employer remains liable for the tortious driving of a servant. Tung Ton v. Siauni Ah Sam, 4 A.S.R. 764, 772 (Trial Div. 1971).
We acknowledge that Potlatch was not a licensed driver, and should not have been driving. The issue in this case, however, is whether ECC should have foreseen that Potlatch might elect to drive the company vehicle notwithstanding his lack of legal authority. There is no evidence that ECC had notice that Potlatch was unlicensed, and even if such evidence were before us, ECC, a family business, should have known that Potlatch was prone to drive without a license, because he had driven the company vehicle on previous occasions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486282/ | On December 2, 1994, this court found that Korean Deep Sea Association ("KDSFA") was not liable to South West Marine of Samoa, Inc. ("SWM") because KDSFA was merely acting as an agent for Kyung Yang Trading *121Co. ("KYTC"). On January 2, 1995, SWM moved for a new trial, pursuant to A.S.C.A. § 43.0802(a), on the grounds that KYTC was a partially disclosed principal, making KDSFA, the agent, liable as a party to the transaction. SWM's motion further sought to alter and amend the judgment accordingly, pursuant to T.C.R.C.P. 59.
While SWM's motion for a new trial was filed within 10 days after the judgment as required by A.S.C.A. § 43.0802(a), the supporting memorandum of points did not accompany the motion as required by T.C.R.C.P. 7(b)(1), but was instead filed on January 27, 1995, the day of the hearing. The late filing therefore effectively deprived KDSFA of the opportunity to respond.1 At the same time, T.C.R.C.P. 59(e) requires that "a motion to alter or amend a judgment shall be served not later that 10 days after entry of judgment" (emphasis added). A motion which has not been served on the other side in compliance with the rule will not be entertained as a motion to alter or amend. Olotoa v. Bartley, 3 A.S.R.2d 21 (Land & Titles Div. 1986).
Accordingly, SWM's motion to reconsider will be reset for rehearing on March 1, 1995. KDSFA shall have until February 24, 1995, to filé a responsive memorandum regarding the partially, disclosed principal doctrine, stating its version of the relevant facts and applicable law regarding those facts.
It is so ordered.
We recognize, but do not condone, the undesirable tendency in. the filing motions for new trial without accompanying memoranda or the filing of memoranda after the filing of the motion. Although we will consider, SWM's memorandum despite its tardiness, in future matters we may be inclined to use our discretion to deny the motion pursuant to T.C.R.C.P. 59. ' | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486283/ | Order Denying Petition to Terminate Respondents' Parental Rights:
Petitioners are the custodial parents of the minor before the court. The respondents are the natural parents. The minor has been with the petitioners since birth pursuant to a prenatal arrangement with the natural parents to relinquish the child to be raised by petitioners. One petitioner and one respondent are first cousins.
The parties now desire to formalize the arrangement and have petitioners adopt the minor. The respondents, however, are residents of California, and are presently unable to travel to the territory to petition for voluntary relinquishment of all parental rights to the child, pursuant to A.S.C.A. § 45.0403, in order that the child be made available for adoption in accordance with the requirements of A.S.C.A. § 45.0412(2). Consequently, the petitioners have initiated action by filing an A.S.C.A. § 45.0115(a)(3) petition to terminate respondents' parental rights, on the *123grounds that the child is neglected and dependent. The respondents have, in turn, acknowledged receipt of the summons and have both filed waivers of further notice of the proceedings.
We find that the evidence does not sustain a finding of a child "neglected and dependent," as those terms are defined by A.S.C.A. § 45.0103(19). Rather, the evidence suggests the situation of a child whose care and custody were "voluntarily relinquished" by his natural parents to the petitioners. In these circumstances, the appropriate action to be filed is an A.S.C.A. § 45.0402 petition for voluntary relinquishment of parental rights, which must be filed by the natural parents. See In the Interest of Three Minor Children, 3 A.S.R.2d 4 (Trial Div. 1986). A.S.C.A. § 45.0402 effectively requires that the natural parents be present in court, and the alternative involuntary termination proceeding under A.S.C.A. § 45.0103(19) is not to be used in order to avoid the necessity of having the natural parents attend court. Id. at 7. See also In re Two Minor Children, 8 A.S.R.2d 75 (Trial Div. 1988).
The petition is, therefore, denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486284/ | Order Denying Motion to Quash Subpoena:
The motion by plaintiff American Samoa Government ("ASG") to quash the subpoena served on Jerry Messenbourg ("Messenbourg") came regularly for hearing on January 30, 1995. Both parties were represented by counsel.
By an information filed on October 31, 1994, defendant King Talamoni ("Talamoni") stands accused by ASG of committing the crimes of stealing, and public servant acceding to corruption. These charges relate to events allegedly occurring while Talamoni, as a police officer, was investigating criminal accusations against Mata Tolupauga ("Tolupauga"). Messenbourg, as an assistant attorney general, handled both this investigation and, until January 20, 1995, this prosecution.
On December 28, 1994, when Messenbourg was still the prosecutor in this case, Talamoni had Messenbourg served with a subpoena to testify at trial, now scheduled to begin on February 28, 1995. On January 20, 1995, ASG filed this motion to quash Messenbourg’s subpoena. Messenbourg left ASG's employment on the same day and departed the territory the next day.
Under Article I, Section 6 of the Revised Constitution of American Samoa, a defendant accused of a crime is guaranteed the right to compel the attendance of witnesses in his/her favor. This is the territorial counterpart of the Sixth Amendment of the United States Constitution and assures an accused the right to present evidence which he/she believes will negate the government's evidence or support his/her defense. United *125States v. Seeger, 180 F. Supp. 467, 468 (S.D.N.Y 1960).
However, a subpoena may be quashed if a trial court determines the subpoena to be an oppressive and unreasonable use of the process of the court. Amsler v. United States, 381 F.2d 37, 51 (9th Cir. 1967). ASG contends that Talamoni subpoenaed Messenbourg in an attempt to delay the proceedings and harass the prosecution, but we disagree. The subpoena was served well in advance of the trial date, and Talamoni has adequately shown that Messenbourg's testimony might be relevant to his defense.
Normally, the relevance of a witness's testimony is decided by the trial judge after the witness has been sworn and objections have been made. To find that a witness's testimony is irrelevant before trial could "deprive the defendant of the constitutional right to compulsory process under the Sixth Amendment and his right to a fair trial under the due process clause of the Fifth Amendment." Seeger, 180 F. Supp. at 468.
Talamoni claims that because he is being charged with crimes requiring proof that, in one count, he purposely deprived Tolupauga of his money and, in the other count, he knowingly solicited Tolupauga's money in return for action as a public servant, Messenbourg's testimony regarding conversations with Talamoni about prosecution of the Tolupauga case is relevant to deciding whether Talamoni had the requisite intent. Since the Fifth Amendment protects Talamoni from having to testify, the only other means to offer conversations between Talamoni and Messenbourg into evidence is to subpoena Messenbourg to testify.
ASG claims that Talamoni is calling Messenbourg as a witness in an attempt to disqualify the prosecutor of his case, but this argument holds no present merit, since Messenbourg is no longer employed as an ASG prosecutor.
ASG further claims that Messenbourg's decision not to prosecute the Tolupauga case is neither discoverable by Talamoni nor relevant to this criminal matter, and that any attempt by the court to review the process behind that decision would be a violation of the separation of powers. However, in this case, review or alteration of a decision involving prosecutorial discretion is not the issue. We are simply permitting Talamoni to subpoena Messenbourg as a witness in order to assist in ascertaining the true characterization of Talamoni's acts.
For these reasons, we deny ASG's motion to quash the subpoena served on Messenbourg.
*126It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486287/ | Order Denying Motion for Summary Judgment:
I. HISTORY
On February 14, 1992, defendant Fina L. Shimasaki ("Shimasaki") rented an automobile from plaintiff Kent Samoa, Inc., dba Kent Rental & Equipment Leasing ("Kent"), listing herself as the driver. On February *14118, 1992, Shimasatí's son, Andy Tafua ("Tafua"), drove the rental vehicle and was involved in an accident resulting in damage to the rental vehicle and several others. Tafua is under the age of 21 years and does not have a legally valid driver's license. The rental agreement provided that the vehicle not be operated by any person not duly licensed and 21 years or older. The rental agreement further provided the option for the renter to purchase insurance for the vehicle, and made the renter absolutely liable otherwise. Shimasaki elected not to exercise the option. Kent now seeks summary judgment, arguing that there are no triable issues of fact, since the rental agreement imposes absolute liability. This motion was heard on December 19, 1994 with counsel for both parties present.
IT. STANDARD OF REVIEW
Summary judgment is appropriate where there is no issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. T.C.R.C.P. 56. It may be invoked only when "no genuine issue as to any material fact" exists. Anderson v. Liberty Lobby, 477 U.S. 242, 247-250 (1986); Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). To determine that no material fact exists, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material are presumed to be true, and that all inferences are construed in a light most favorable to the non-moving party. Ah Mai v. American Samoa Government, 11 A.S.R.2d 133, 136 (1989); see also Lokan v. Lokan, 6 A.S.R.2d 44, 46 (1987); U.S. v. Diebold, 369 U.S. 654 (1952).
III. DISCUSSION
Shimasaki argues that her debt was discharged by an "accord and satisfaction," pointing to a telephone call, and subsequent meeting where Kent's office manager allegedly assured her that payment of Kent's $1,000 insurance deductible would satisfy her obligations. Shimasaki claims that she agreed to pay $1,000 on that condition.
In order to constitute an accord and satisfaction,
it is necessary that the money should be offered in full satisfaction of the demand, and be accompanied by such acts and declarations as amount to a condition that the money, if accepted, is accepted in satisfaction; and it must be such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such conditions.
*142Kinkey v. Maxon, 114 N.E.2d 852, 855 (Ohio App. 1952) (quoting Pitts v. National Independent Fisheries, 206 P. 571 (Colo. 1922)). Kent, citing Kinkey, alleges that a check lacking a notation that it represents payment in full fails to satisfy all obligations. The Kinkey court suggested, however, that a verbal statement that "she would pay the $1,000 only on condition that it would be accepted in full settlement," would probably be sufficient to create a binding accord. Kinkey, 114 N.E.2d at 854-55. Shimasaki alleges that such statements were made and agreed to by both parties in this case.
The existence of an accord and satisfaction becomes a question of law when both sides allege the same set of facts, but offer opposing applications of the law to those facts. Kinkey, 114 N.E.2d at 855. In this case, Shimasaki deserves an opportunity to present evidence on whether her payment of $1,000 to Kent was done with the mutual understanding that it would represent full payment. If we construe all factual material in a light most favorable to the non-moving party, we must conclude that Kent orally agreed with Shimasaki that $1,000 represented full payment. This conclusion demonstrates a genuine issue as to material fact that warrants full adjudication.
Kent argues that accord and satisfaction may not result from part payment of a liquidated or undisputed amount. That argument, however, begs the question of whether the damages alleged by the plaintiff are undisputed. There is no liquidated damages clause in the rental agreement. Furthermore, an argument could be made that payment of Kent's insurance deductible compensated Kent for "all loss or damage" as the rental agreement required. Whether payment of the deductible could actually satisfy the agreement is unimportant. If there is a reasonable basis for a good faith dispute as to the amount of a debt, that dispute may be settled by an accord and satisfaction, even where the claim or defense giving rise to the dispute was invalid. Restatement (Second) Contracts § 74 (see also cmts. b & c, and ill. 4). The debt may be undisputed in the sense that the contract seems to impose absolute liability on the renter, but the amount of the damages is a genuine issue of fact for proof at trial. Id. at cmt. c.
A demand is not liquidated even if it appears that something is due, unless it appears how much is due; and when it is admitted that one of two specific sums is due, but there is a genuine dispute as to which is the proper amount, the demand is regarded as "unliquidated" within the meaning of that term as applied to the subject of accord and satisfaction. Winter Wolff v. Co-op Lead & Chemical, 111 N.W.2d 461, 465 (Minn. *1431961) (quoting Nassoiy v. Tomlinson, 42 N.E. 715, 716 (NY 1896)). Most importantly, the old common law rule that one cannot waive part of an undisputed obligation by accord and satisfaction is arguably the product of judicial mistake, and is increasingly disfavored by some courts. Id. at 465-66.
We therefore deny Kent's motion for summary judgment.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486290/ | Opinion and Order:
Plaintiff Filipele Leomiti ("Leomiti") brought this action for eviction and injunctive relief, alleging that defendant Pele Pu'efua ("Pu'efua") was trespassing on plaintiff Leomiti family's communal land. Pu'efua responded by asserting that he was present on the land with Leomiti’s permission and counterclaiming, alternatively, for specific performance of a separation agreement for a residence, authorized under A.S.C. A. §§ 37.1501-37.1506, or damages for its breach.
*151Under A.S.C.A. § 43.0302, three hearings were conducted in December 1993 during the required dispute resolution proceedings before the Secretary of Samoan Affairs. The Deputy Secretary issued the certificate of irreconcilable dispute on January 3, 1994.
Trial was on January 19 and 20, 1995. Both Leomiti and Pu'efua were present with their counsel.
FINDING OF FACTS
Leomiti is the senior chief or sa'o of the Leomiti family of the Village of Pava'ia'i, American Samoa. The Leomiti's communal land at issue, named "Fenuinuiaitu," consists of approximately 0.6894 acres located in Pava'ia'i.
Pu'efua migrated from Western Samoa in 1973. Presently, he lives with his parents on communal land owned by the Ava family, also of Pava'ia'i. He is a trained mechanic and operates a motor vehicle repair shop on leased land in the Village of Nu'uuli, American Samoa. He is not a blood member of the Leomiti family.
In 1992, Leomiti's nephew Sonny Leomiti ("Sonny") returned to American Samoa from the states with his wife. Sonny became a welder and his wife an office worker at Pu'efua's repair shop in Nu'uuli. Pu'efua testified that Sonny and his wife were his employees rather than business associates, although they had no set salary and were compensated for their work as they needed funds.
Regardless of the nature of this relationship at the Nu'uuli repair shop, Pu'efua decided to join forces with Sonny to obtain use of the land at issue. He recognized that Sonny as a Leomiti family member could provide "insurance" (Pu'efua's characterization) for his future on this land. Pu'efua claimed that he wanted the land primarily for his own house and possibly later for his business interests. He also stated that Sonny intended to build a house nearby.
Pu'efua and Sonny approached Leomiti in January or February of 1993 regarding use of the land for a joint business venture. Leomiti, motivated to help his recently returned relative, verbally assigned occupancy of the land to Pu'efua and Sonny for their business *152operations.1
Later, on or about February 18, 1993, Leomiti signed an agreement, establishing separate ownership by Pu'efua and Sonny of a dwelling house to be erected on the land. This document was prepared by Pu'efua's wife. Pu'efua presented it to Leomiti, without any explanation or discussion of its legal significance. Although Pu'efua and Sonny are named as the building owners, the document does not bear their signatures. The name of the land is shown as "Fuaiupu" in the agreement which was clearly altered to do so. Pu'efua admitted to making this alteration which, at a minimum, was a mistake. The document includes an approved survey of the land. Pu'efua testified that this survey is based on boundaries previously shown to Pu'efua by Leomiti. However, Leomiti was not present when the survey was made, and the site as shown is larger than the area authorized by him. Despite the obvious alteration and execution defects, the Territorial Registrar recorded the agreement on March 31, 1993.
In June 1993, Sonny and his wife returned to the states. Leomiti understood that Sonny had left the territory because the business relationship between Pu'efua and Sonny had soured. Pu'efua testified that the relationship was not strained, and that Sonny's wife simply wanted to leave. Either way, Sonny left and was no longer occupying the land. Hence, Leomiti decided to rescind Pu'efua's permitted business use of the land. In July or August 1993, Pu'efua prevented the family members, sent by Leomiti, from replanting the area. The next day, Pu'efua apologized for his actions. Nonetheless, Leomiti told Pu'efua to vacate the land.
Pu'efua, however, had already spent a considerable amount of money developing the land. At the time Sonny left the territory, Pu'efua had already cleared the land, removing numerous coconut, breadfruit and banana trees. By the time Leomiti directed him to leave, Pu'efua had erected the foundation and walls of a building which he intended to be his house, rather than business premises. Further, he had relocated motor vehicles in various states of disrepair onto the land. Thus, in short, he disregarded Leomiti’s directive and carried on his construction and other use of the land. He even brought others to the land to watch over his interests. They lived in a shack near the house *153under construction.
This state of affairs continued even after Leomiti's present counsel wrote to Pu'efua on October 14, 1993, and demanded his departure from the land. Finally, Pu'efua ceased construction, at least with his present counsel's advice pending the outcome of this case, when the American Samoa Government's Development Planning Office effectively terminated his building permit as of January 6, 1994, and this action was filed on January 7, 1994.
CONCLUSIONS OF LAW
1. Pu'efua deliberately concealed his true intention of finding a location to build his house, when he and Sonny obtained Leomiti's verbal occupancy authority.
2. Pu'efua furthered this misrepresentation by securing Leomiti's signature on the separation agreement by consciously and deceptively avoiding explanation or discussion of its legal effect.
3. Pu'efua, by his own admission, altered the separation agreement and inserted an incorrect name for the land. We find that this change is a material defect. This court has held that a material failure to accurately describe land or parties is sufficient to render a separation agreement invalid. Meredith v. Aumavae, 4 A.S.R. 680, 682 (Trial Div. 1965). One would scarcely question materiality where a groom incorrectly changed the name of his bride after she had signed the marriage license, or of an automobile purchaser who changed the description of the vehicle after he had signed the purchase agreement. Pu'efua could no more obtain an interest in Fenuinuiaitu by recording the name Fuaiupu, than he could legally marry Sina by recording the name Losa on the marriage license.
4. Neither Pu'efua nor Sonny signed the separation agreement.
5. The land as surveyed and described in the separation agreement was larger than Leomiti had authorized for business use.
6. Under these circumstances, we find that the separation agreement is null and void. We also find that Pu'efua's only interest in the land is a revocable license, which Leomiti clearly revoked.
7. Leomiti is entitled to have Pu'efua evicted from the land and *154permanently enjoined from undertaking any construction, any business operations, or any other activities on the land.
8. Leomiti is also entitled to have Pu'efua required to remove the motor vehicles which Pe'efua deposited on the land.
9. After eviction, former possessors of land are entitled to remove fixtures and possessions, even where they exercise their licenses in bad faith. Aufata v. Afatia, 5 A.S.R.2d 158, 160 (Land & Tit. Div. 1987); Roberts v. Sesepasara, 8 A.S.R.2d 124, 130-31 n.1 (Trial Div. 1988). When possessors of land are evicted, having exercised their licenses in good faith, they are entitled to the choice of either removal of improvements or compensation for expenses incurred in reliance on the license. Aufata, 5 A.S.R.2d at 158; Roberts, 8 A.S.R.2d at 131-32. We find that Pu'efua exercised his license in bad faith, in light of: (1) his attempt to change the name of the land without informing Leomiti, nor obtaining his consent; (2) his neglect of Leomiti's directions to cease construction activity; (3) his action in bringing others to the land to secure his activities; and (4) his successful attempt to mislead Leomiti as to his intended use of the land when securing Leomiti's verbal permission to conduct a business on the land and later Leomiti's signature on the separation agreement.
ORDF.RS
1. Pu'efua is evicted from the land at issue, effective immediately.
2. Pu'efua has permission to enter the land, for a period not exceeding 60 days after the entry of this order, to remove at his option, other than the deposited motor vehicles, any improvements, possessions and fixtures belonging to him. If such items are not removed within that time, they shall become the Leomiti family's property. Laulu v. Taaseu, 23 A.S.R.2d 1, 6 (Land & Titles Div. 1992).
3. During the foregoing 60-day period, Pu'efua shall remove the motor vehicles which he deposited on the land. If he fails to remove these motor vehicles during this period, Pu'efua shall, upon Leomiti's motion, be subject to pay Leomiti's cost of their removal and other applicable damages.
4. Pu'efua, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are *155permanently enjoined from entering the land after the 60-day period, and from undertaking any construction, any business operations, or any other activity on the land at any time without Leomiti's permission.
It is so ordered.
Pu'efua did provide traditional service or tautua to Leomiti on one or two occasions after this assignment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487030/ | 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
US BANK TRUST NATIONAL ASSOCIATION, UNPUBLISHED
AS TRUSTEE OF AMERICAN HOMEOWNER November 17, 2022
PRESERVATION TRUST SERIES 2014B,
Plaintiff-Appellant,
v No. 358213
Oakland Circuit Court
OAKLAND COUNTY and OAKLAND COUNTY LC No. 2021-185542-CZ
TREASURER,
Defendants-Appellees.
Before: K. F. KELLY, P.J., and LETICA and RICK, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting partial summary disposition in favor of
defendants under MCR 2.116(C)(7) (statute of limitations) and (C)(8) (failure to state a claim).
On appeal, plaintiff argues that the trial court erred by concluding that its claim was untimely and
by holding that the decision in Rafaeli, LLC v Oakland County, 505 Mich 429; 952 NW2d 434
(2020), applied prospectively. Plaintiff further argues the trial court erred by considering
inadmissible evidence. Because we conclude that plaintiff’s claim was barred by the statute of
limitations, we affirm.
I. BACKGROUND
In May 2016, plaintiff was assigned a mortgage for real property owned in Oakland County
(the Property). The mortgage had previously been granted to a different corporation and assigned
one other entity before it was assigned to plaintiff. The Property was tax-delinquent for the tax
years 2010, 2011, and 2012.
The Property was foreclosed and sold at a public auction. Subsequently, a deed for the
Property was issued to the purchaser on September 26, 2014. Defendants retained the full sale
proceeds, including the sums in excess of the delinquent taxes actually owed.
-1-
On January 6, 2021, plaintiff filed a complaint, asserting that, by retaining the excess sales
proceeds, defendants took plaintiff’s property for public use without the payment of compensation
required by the Fifth Amendment of the United States Constitution and Article 10, § 2 of the
Michigan Constitution. Plaintiff asserted that it was entitled to recover the excess sales proceeds
from the sale of the Property from defendants.
In February 2021, defendants filed a motion for summary disposition, arguing that
plaintiff’s claim was barred by the six-year statute of limitations. Specifically, defendants argued
that plaintiff’s property right—the mortgage—was extinguished in the foreclosure on March 31,
2014, under MCL 211.78k(5)(c). Therefore, plaintiff’s complaint was untimely because it was
filed more than six years after the claim accrued. Defendants also argued that plaintiff, as a
lienholder, did not have a property right in the surplus proceeds from a tax auction, asserting that
Rafaeli stood for the proposition that only the “former property owner” had such a right.
Additionally, defendants argued that Rafaeli should only apply prospectively for surplus proceeds
resulting after July 17, 2020.
In response, plaintiff argued that summary disposition was improper. Plaintiff complained
that defendants failed to support their motion with admissible evidence, asserting that the
documents attached to defendants’ motion were inadmissible hearsay. Plaintiff argued that, under
MCL 211.78k(5)(c), the foreclosure did not extinguish its rights granted to it by the mortgage;
rather, it extinguished only the lien created by the mortgage. Plaintiff asserted that its claim did
not accrue until the sale of the real property on September 26, 2014. Relying on Rafaeli, Plaintiff
also argued that it was entitled to the surplus sale proceeds, which was “a separate property right
that survives the foreclosure process,” as a result of the assignment of the mortgage.
The trial court issued an order granting defendant’s motion for summary disposition under
MCR 2.116(C)(7) and (8). The court held that “[t]he general six year statute of limitations
applie[d] to taking actions” and concluded that plaintiff’s claim was time-barred because plaintiff’s
“alleged right to the surplus arose only through its Mortgage, which was extinguished on March
31, 2014,” and plaintiff had filed its claim more than six years after the foreclosure. The court
further concluded that the Rafaeli decision applied only prospectively as of July 17, 2020.
This appeal followed.
II. STATUTE OF LIMITATIONS
Plaintiff argues that the trial court erred by concluding that its claim accrued on
September 4, 2013, and by granting summary disposition under MCR 2.116(C)(7) in favor of
defendants. We disagree.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Dell v
Citizens Ins Co of America, 312 Mich App 734, 739; 880 NW2d 280 (2015). In reviewing a trial
court’s decision that a claim is time-barred under MCR 2.116(C)(7),
[t]his Court must accept all well-pleaded factual allegations as true and construe
them in favor of the plaintiff, unless other evidence contradicts them. If any
affidavits, depositions, admissions, or other documentary evidence are submitted,
the court must consider them to determine whether there is a genuine issue of
-2-
material fact. If no facts are in dispute, and if reasonable minds could not differ
regarding the legal effect of those facts, the question whether the claim is barred is
an issue of law for the court. However, if a question of fact exists to the extent that
factual development could provide a basis for recovery, dismissal is inappropriate.
[Hutchinson v Ingham Co Health Dep’t, 328 Mich App 108, 123; 935 NW2d 612
(2019) (quotation marks and citations omitted).]
For claims stemming from a party’s former property ownership based on their
constitutional right to just compensation, the applicable statute of limitations is six years. Hart v
Detroit, 416 Mich 488, 503; 331 NW2d 438 (1982); see MCL 600.5813. Plaintiff does not dispute
that the applicable statute of limitations is six years.
Plaintiff asserts that its claim did not accrue until title to the Property was transferred by
the issuance of a deed on September 26, 2014. On the other hand, appellees argue that any alleged
claim by appellant accrued as of March 31, 2014, when the foreclosure judgment became final and
appellant’s lien was extinguished. Plaintiff did not file its claim until January 6, 2021.
We conclude that the trial court properly granted summary disposition under
MCR 2.116(C)(7) in favor of defendants because the claim was untimely. Appellant’s claim
accrued when it suffered harm, not when it was damaged. See MCL 600.5827 (“The claim accrues
at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim
accrues at the time the wrong upon which the claim is based was done regardless of the time when
damage results.”). Under the General Property Tax Act, MCL 211.1 et seq., if the property is not
redeemed by March 31 of the year of foreclosure, all liens are extinguished, and title is vested in
the foreclosing governmental unit. MCL 211.78k(5)(c). Therefore, any alleged claim for a taking
accrued when the foreclosure judgment became final and appellant’s lien was extinguished on
March 31, 2014. During oral arguments, appellant, for the first time below or on appeal, asserted
that Administrative Order No. 2020-18, 505 Mich clxi, clxi (2020), which tolled the statutory
limitation periods as a result of the COIVD-19 pandemic from March 10, 2020, until June 20,
2020, affected the timeliness of their complaint. Considering AO 2020-18, appellant was required
to file their claim by July 13, 2020, and their January 6, 2021 claim was time barred. Having
decided that summary disposition was proper under MCR 2.116(C)(7), we need not decide if
summary disposition was also proper under MCR 2.116(C)(8) or address plaintiff’s arguments
regarding the application of Rafaeli, LLC, 505 Mich at 429.1
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Anica Letica
/s/ Michelle M. Rick
1
We note that this Court recently held in Proctor v Saginaw Co Bd of Comm’rs, ___ Mich App___,
___; ___ NW2d ___ (2022) (Docket No. 349557); slip op at 13, that Rafaeli, LLC, 505 Mich
at 429, applies retroactively “to pending cases . . . in which a challenge has been raised and
preserved.”
-3- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486292/ | Order on Income Tax Refunds:
The Court issues this order on income tax refunds on its own initiative and without hearing.
Defendants filed a motion for new trial and to amend judgment on March 13, 1995, at 3:50 p.m., 10 minutes before the time for filing legally expired. The motion raises several questions concerning the judgment entered in this action on March 1, 1995, and has been set for hearing on April 19, 1995. The Court will rule on all but one of these questions after the hearing and due deliberation on them.
The exception concerns the application of the judgment to income tax refunds owed by the American Samoa Government ("ASG") to American Samoa's taxpayers. Compelling circumstances require that the Court deal with this question immediately and forcefully. With extensive media attention, defendants' counsel assert that the judgment may prevent ASG's Executive Branch from paying income tax refunds until ASG's Legislature appropriates fiscal year 1995 revenues for this purpose. Hence, the Executive Branch is presently withholding these *159payments.
This assertion classifies taxpayers as vendors of goods and services who are owed debts by ASG. This analysis is legally ludicrous and frivolous advocacy. American Samoa's taxpayers need to promptly know that they are entitled to their income tax refunds, established in fact and law, without any further legislative action.
ASG does not have, and cannot obtain, any ownership interest in the monies representing income tax refunds. ASG collects income taxes, through wage withholdings, periodic estimated payments and other means, with the clear-cut statutory obligation to pay refunds for overpayments. 26 U.S.C. § 6402, adopted by A.S.C.A. § 11.0403(a) as the law of American Samoa. Refund monies are the taxpayers' private funds. In re Donley, 242 F. Supp. 403, 407 (D.C. Mo. 1965). ASG holds these monies with the fiduciary duty to account for and refund those monies to the taxpayers as the rightful owner, with interest if not timely paid. The Legislature has neither authority to appropriate these private funds nor any legal role in the payment of the refunds.
ASG's fiduciary obligations regarding income tax refunds are absolute, regardless of the tax year in which ASG assumes responsibility to return to its taxpayers their excess tax payments in ASG's possession. This fiduciary duty continues until the Executive Branch discharges its duty by payment of the income tax refund to the taxpayer.
ORDER
The judgment in this action is completely unrelated to the payment of income tax refunds and provides no justification for withholding those refunds.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486293/ | Order Denying Motion for Reconsideration:
Petitioners move the court for reconsideration of its order denying their petition to terminate respondents’ parental rights in and to the child before the court. The court was not persuaded on the evidence that the respondents had left the child "neglected and dependent," as those terms are defined by A.S.C.A. §45.0103(19), and hence denied the petition.
On the other hand, the court pointed out that the evidence tended to show a situation of "voluntary relinquishment, ” which would give rise to an entirely separate proceeding, under A.S.C.A. § 45.0115(a)(5) and 45.0401(2), as distinct from the proceeding to terminate parental *161rights in "neglected and dependent" children, pursuant to A.S.C.A. §§ 45.0115(a)(3) and 45.0401(a)(1). Because of this additional finding, petitioners in their motion for reconsideration now essentially ask the court to treat their § 45.0115(a)(3) and § 45.0401(a)(1) termination petition, as an A.S.C.A. §§ 45.0115(a)(5) and 45.0401(2) voluntary relinquishment proceeding. The logical extension of this request is that the court should now treat the respondent natural parents as the petitioning party, although no petition has been filed by them, as required by A.S.C.A. § 45.0402. Furthermore, petitioners additionally ask the court to dispense with any need to have the natural parents attend court to present such a voluntary relinquishment petition, on the grounds that the latter cannot afford to travel to American Samoa. The motion for reconsideration is denied.
The statutory termination process does not admit the procedural casualness advocated by petitioners. See In the Interest of Three Minor Children, 3 A.S.R.2d 4 (Trial Div. 1987). Second, even if we could properly treat petitioners' termination petition as respondents' petition for voluntary relinquishment, we would nonetheless be inclined to deny the motion for the reasons to which we alluded in our order denying the petition.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486294/ | Order Vacating Judgement as to Personal Liability and Writ of Garnishment, and Releasing Garnished Funds:
FACTS
This case concerns a judgment against defendant Joe Pedro ("Pedro"), which was obtained by plaintiff Josephine Lutali ("Lutali") prior to Pedro’s petition for bankruptcy in the United States Bankruptcy Court for the Western District of Washington ("bankruptcy court"), and a garnishment order which Lutali obtained after the filing of the petition. On December 29, 1994, we held that Lutali’s garnishment order violated the automatic stay in bankruptcy pursuant to 11 U.S.C.Á. § 362, but declined to release the garnished funds without knowledge of whether Pedro had been permitted to amend his bankruptcy schedules to include Lutali. Instead we ordered Pedro to provide us with information regarding the status of his efforts to amend his bankruptcy schedules, and any resulting decrees by the bankruptcy court or trustee. Pursuant to that order ("our order”), Pedro filed a copy of the amended schedules, a copy of the letter sent to Lutali by Pedro's attorney in Seattle, and a copy of the Discharge Order issued by the bankruptcy court.
DISCUSSION
1. Amendment of the Schedules
When we issued our order, we were under the impression1 that the case *163may have been closed at the time the discharge order was issued, requiring it to be reopened by order of the court for the schedules to be amended. See In re Stark, 717 F.2d 322 (7th Cir. 1983). The letter sent to Lutali by Pedro's attorney in Seattle indicates that the case was still open at the time the amendments were filed. Accordingly, Pedro had a right to amend the schedules "as a matter of course ... at any time before the case is closed." 11 U.S.C.A. Bankruptcy Rule 1009. Pedro's power to amend the schedules before the closure of the case is, therefore, not within the discretion of the bankruptcy court. In re Gershenbaum, 598 F.2d 779, 781 (3d Cir. 1979).
2. Discharge of Debts
In our order we held that the discharge of debts added to the bankruptcy schedules by amendment was a question for the bankruptcy court. We retained the garnished funds, however, in case Pedro's bankruptcy proceeding was closed and the bankruptcy court declined to reopen it to schedule previously unscheduled debts and exempt unscheduled debts from discharge. Since the case was open at the time the amendments were filed, and amendment was done as a matter of course, we have no reason to continue holding the garnished funds. In its discharge order of August 10, 1993, the bankruptcy court said:
2. Any judgment heretofore or hereafter obtained in any court other than this court is null and void as a determination of the personal liability of the debtor with respect to any of the following:
a. debts dischargeable under U.S.C. section 523 . . .
The foregoing language plainly requires that debts alleged to be nondischargeable are declared null and void as determining the debtor's personal liability. The proper forum for seeking a determination of whether the debt is discharged is the bankruptcy court, and we therefore do not consider the issue of whether Pedro's debt to Lutali is somehow excepted from discharge.
*164ORDER
1. Seeing no evidence that the bankruptcy court has declared any of the disputed debts to be non-dischargeable, nor any evidence that Lutali has sought an adjudication of the issue in the bankruptcy court, the judgment obtained by Lutali on January 22, 1993 is null and void as a determination of Pedro's personal liability. As to any other issues adjudicated therein, it remains valid.
2. The garnishment order resulting from the January 22, 1993 judgment was obtained in violation of the automatic stay and is, therefore, vacated.
3. As to the intervenor, Amerika Samoa Bank ("ASB"), the bankruptcy trustee's attorney wrote a letter on December 7, 1994, assenting to the disbursement of garnished funds to ASB. It is unnecessary to consider whether or not this letter has any binding effect since it represents the desires of both ASB and Pedro, who are the only remaining parties with interests in the funds. Accordingly, we direct that the garnished funds be disbursed to ASB.
It is so ordered.
Our mistaken impression reminds us once again of the all too familiar problem of attorneys in our jurisdiction failing to fully brief their cases or to include essential facts in their arguments. Considering the complexity of this case, coupled with the fact that this court rarely hears cases in this area of the law, attorneys for all parties would have been well advised to do more legal research in order to ascertain what facts are legally relevant *163to the outcome. This would have enabled them to provide us with satisfactory factual information and legal arguments at an earlier date, and to avoid the protracted deliberation that this case has unfortunately required. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486295/ | Order Denying Divorce and Motion to Dismiss and Awarding Custody:
PROCEDI JR AT, HISTORY
On June 27, 1994, petitioner Rose J. Aumavae ("Rose") filed a petition with this court seeking a divorce from respondent Kenape L. Aumavae ("Kenape") on the ground of "habitual cruelty or ill usage." Rose also sought an equitable distribution of marital properties, physical custody of the parties' two children, and child support. On the same day, Kénape's "Consent to Judgment and Waiver of Appearance" was also filed.
The court heard this action on September 21, 1994. At the hearing the *166parties' "Property Settlement and Agreement," which they signed on June 24, 1994, was admitted into evidence. The court took the matter under advisement. On the following day, the court received Kenape's letter, dated September 21, 1994, in which he denied the alleged grounds for divorce and the existence of any agreement placing physical custody of parties' children with Rose. He further requested another hearing to present his side.
On October 21, 1994, Kenape submitted, after retaining counsel, a motion to dismiss and an affidavit, asserting that the parties were never married, and that he signed the "Property Settlement and Agreement" under duress. He requested that the court dismiss Rose's petition due to lack of jurisdiction and award him custody of the children.
The motion was scheduled for hearing on November 30, 1994, and for various reasons was continued first to December 14, 1994, and then to December 28, 1994, January 11, 1995, and February 16, 1995, and finally to March 2, 1995. The court was persuaded to grant these continuances principally to afford counsel opportunity to obtain documentary evidence that the marriage did or did not exist.
FINDINGS OF FACT
1. Kenape and Rose are both American Samoans.
2. Rose claimed that the parties were legally married on January 18, 1979, in Reno, Nevada. However, according to an official statement, dated February 10, 1994, by the Deputy Recorder of the County Recorder of Washoe County, Nevada, where Reno is located, there is no record of any marriage between Rose and Kenape during the years 1975 to 1985. Nonetheless, the parties voluntarily cohabited, as husband wife from 1979 until their separation in 1991. The vast majority of this 12-year relationship was spent living together in American Samoa.
3. In January, 1979, Kenape was living with Rose in the State of Washington. Soon after the alleged marriage ceremony, Kenape accepted a teaching position with the American Samoa Community College. Kenape arrived in American Samoa on or before July 31, 1979, the date he signed an employment contract with ASG. This date was nearly nine months prior to the birth of the parties' first child.
4. , Two children were born of the parties' relationship: Lupe Ane *167Aumavae, female, on April 30, 1980, and Leone Joanna Aumavae, female, on April 28, 1984.
5. Since the separation of the parties in 1991, the children have been, for the most part, in Kenape's physical custody. They are presently in his custody; Rose is residing in Alaska. Although a mother is the natural custodian of her young, Stevens v. Stevens, 21 A.S.R.2d 76, 78 (Trial Div. 1992), other factors for the court should weigh in deciding custody are "a good home, congenial surroundings, and intelligent attention and direction in matters affecting the health, education, growth and development of the children." Id. at 79 (citing Bemis v. Bemis, 200 P.2d 84, 91 (Cal. Ct. App. 1948)). In this case, the children's welfare would be best served by continuing their custody with Kenape.
CONCLUSIONS OF LAW
1. To grant a divorce, the court must dissolve a valid marriage contract. A.S.C.A. § 42.0202. In American Samoa, for a man and a woman to enter into a valid marriage contract, a marriage ceremony must be performed by a duly authorized person. A.S.C.A. § 42.0101(e). American Samoa does not recognize common-law marriages. Estate of Tuinamu Fuimaono, 21 A.S.R.2d 121, 125 (Trial Div. 1992). Since the parties never met the ceremonial requirement, they were not legally married, and Rose is not entitled to a divorce from Kenape.
2. Common-law marriages, if valid according to the law of the state in which they were initiated, will be recognized in other jurisdictions, even where such marriages cannot be lawfully formed. Gallegos v. Wilkerson, 445 P.2d 970, 972 (N.M. 1968). However, the State of Washington does not recognize common-law marriages. Therefore, this court is not required to decide whether or not to recognize a common-law marriage between the parties from another jurisdiction. But if Washington did recognize common-law marriages, the parties' brief stay in Washington would be insufficient to compel the recognition of a valid common-law marriage. An unmarried couple who spend a short period of time in a jurisdiction without taking up permanent residence or attempting to become husband and wife in the state does not give rise to a common-law marriage. McGrath v. McGrath, 387 S.W.2d 239, 214-42 (Mo. Ct. App. 1965). The brief time Kenape and Rose spent together in Washington was merely *168transitory compared with the relationship's many years of existence in American Samoa.
3. The court has exclusive original jurisdiction "when the question of legal custody is incidental to the determination of a cause in the court." A.S.C.A. § 45.0115(d). Even without this statutory authority, the court has the inherent power, due to our authority to protect children, to make an order relative to the custody and support of a child bom as an issue of an invalid marriage. Abelt v. Zeman, 179 N.E.2d 176, 178 (Ohio Misc. 1962).
4. Kenape is entitled to the care, custody and control of the parties' two minor children, subject to Rose's visitation rights at all reasonable times.
ORDERS
1. Rose is denied a divorce from Kenape.
2. Kenape's motion to dismiss is denied and jurisdiction is retained regarding custody of the children and child support.
3. Kenape shall have the care, custody and control of the parties' two minor children, subject to Rose's visitation rights at all reasonable times.
4. In furtherance of the children's best interests, neither party shall remove from American Samoa without the court's prior permission. No change in custody of the children shall occur except by the court's order.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486296/ | Order Preliminary to Releasing Vessel:
BACKGROUND
This order concerns plaintiffs' motion to remove Abjorn Bjorck from the vessel Ninna Marianne ("vessel"), where he is captain. Plaintiffs allege partial ownership of the vessel and the right to share in profits earned through its use, and claim that Arne and Rose Marie Bjorck ("defendants") failed to communicate with plaintiffs while the vessel was at sea, intended to sell fish cargo for cash to deprive plaintiffs of the proceeds, and intended to take the vessel to their native Sweden rather than returning it to New Zealand. On March 7, 1995, a warrant was issued for the arrest of the vessel. On April 12, 1995, a hearing was held on plaintiffs' motion *2with defendants and counsel for both parties present.
DISCUSSION
Both parties agreed at the hearing that New Zealand is the preferred forum to try title to the vessel. Plaintiffs' reason for arresting the vessel in American Samoa was to guarantee its safe return to New Zealand, and to prevent defendants from retaining the proceeds earned by the sale of fish cargo. According to T.C.R.C.P. Supp. Rule D, this is an appropriate reason to arrest a vessel:
... in all actions by one or more part owners against the others to obtain security for the return of the vessel from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the vessel for any voyage on giving security for its safe return, the proceeds shall be by a warrant of arrest of the vessel, cargo, or other property . . . (emphasis added).
The object'of this preliminary order is to assist the parties in obtaining security for the safe return of the vessel to New Zealand where the ship is registered. Security may be effectuated by a bond, provided by the party designated to possess the vessel after its release, to be held by the court pursuant to T.C.R.C.P. Supp. Rule E(5)(a):
. . . whenever process of maritime attachment and garnishment or process in rem is issued the execution of such process shall be stayed, or the property released, on giving security, to be approved by the court or clerk, or by stipulation of the parties, conditioned to answer the judgment of the court or of the appellate division. The parties may stipulate the amount and nature of such security. In the event of the inability or refusal of the parties to so stipulate the court shall fix the principal sum of the bond . . . (emphasis added).
Accordingly, the parties have seven days from the entry of this order to stipulate who shall have care and custody of the vessel during its return to New Zealand, and what bond the custodial party shall post. This bond shall be for the purpose of securing the interest of the non-custodial party. Such stipulation shall be filed with the clerk and accompanied by a proposed order to release the vessel. If they do not provide such stipulation and proposed order within the seven-day period, this court will fix the sum of the bond as permitted by the foregoing rule, and will *3adjudicate which party shall have custody of the vessel on its return to New Zealand. If the parties agree that the plaintiffs are to take possession of the vessel for the voyage to New Zealand, this court will require that plaintiffs provide a licensed captain for the voyage. The vessel shall remain arrested until we enter an order releasing it.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486297/ | Decision and Order:
Plaintiff Wayne Motu is today a 14 year old freshmen of Leone High School. Six years earlier, while he was a student at Midkiff Elementary *4School, Wayne fractured his elbow after a number of his fellow students fell on him in the playground during a physical education ("PE") period. Wayne claimed, and testified accordingly, that he had heard his teacher, defendant Pisa Tivao ("Tivao"), shout out to a group of his fellow students to tackle and have a pileup on him as he was not participating in PE; that his classmates did so while he was sitting on the cement cricket pitch in the middle of the playing field-the cricket pitch for the local version of this game is typically a cement slab in the middle of a field. Wayne further testified that Tivao was standing next to one of the nearby school buildings, off the playground, when he called out the pile-upon-him instruction.
Tivao on the other hand flatly denied giving such an instruction, claiming that he was not even aware that Wayne was on the playing field, since he had previously excused Wayne from PE when the latter had earlier claimed illness. Tivao further testified that when Wayne sought to be excused, he instructed him to join another teacher, Ms. Pua Te'o, and her group (of those in the class athletically less inclined) who were gathered near one of the school buildings. Tivao also testified that he was actually on one extreme of the playground supervising the boys of the class in their football game, while yet another fellow teacher, Anette Solomona, supervised the girls on the other extreme of the field. He first learned of Wayne on the playground, when two students came to tell him that Wayne was hurt.
Mr. Tivao’s testimony was corroborated by Ms. Te'o, who has since retired from teaching. She recalled the day of the injury and testified to overhearing Tivao’s instructions to Wayne to join her group, who engaged in a "telling message" game. She further testified that for a while Wayne was with her, but she did not notice when he left, nor when he was injured.
Three of Wayne's classmates also confirmed Tivao's version of the facts. They each testified that they were part of a group that was congregating in mid-field when Wayne joined them, and that they had fallen on Wayne when a group of eighth graders, who were also playing on the field, ran into them. Contrary to Wayne's testimony, they placed Tivao on the playground when the accident occurred; two of the group ran across the field to Tivao to alert him of Wayne's injury.
DISCUSSION
On the evidence, we find Tivao's version of the facts to be more credible. *5Despite corroboration, even by Wayne's own peers, Wayne's singularly maintained version of the facts bears some signs of early coaching at an impressionable age. First, Wayne's contradicted testimony about Tivao's location when he was said to have called out the pile-upon-him instruction is simply not believable. After viewing the site of the accident, taking into account the distance between the school buildings situated across the road from the playing field and the cricket pitch in mid-field, together with the level of noise that would have been generated by several groups of youngsters on the playground, we find it highly unlikely that Tivao could have even been audible, if he was in fact where Wayne had placed him. Second, the claimed extent of Wayne's disability as a result of his injury simply does not correspond with his fellow students' accounts of his regular display of basketball prowess at Leone High School; nor does it square with his startling in-court demonstration when he twice thumped heavily on the witness box with his affected arm, while marking out his reference to a momentary time span. Third, when two of the teaching staff took Wayne home after the accident, they were confronted by his distraught father who immediately began to talk of lawsuits at the very outset.
We find on the evidence that Tivao did not give an instruction prompting other children to pile on Wayne and, thus, find plaintiff's negligence claim in this regard to be unsubstantiated.
Alternatively, counsel submitted at final argument that the evidence was consistent with a conclusion of negligent omission on the part of Tivao in failure to adequately supervise his minor client. Counsel accordingly moved to amend the pleadings to conform to the evidence. Defendants objected to the motion arguing untimeliness and prejudice.
The relevant rule is T.C.R.C.P. 15(b), which provides for the amendment of pleadings to conform to the issues actually tried on the evidence. A Rule 15(b) motion can be made "at any time, even after judgment," and such requests "shall [be] freely [granted] when the presentation of the merits of the action will be subserved . . . 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." T.C.R.C.P. 15(b). Clearly, the amendment sought by plaintiff relates to matters that were within the scope of the proof, and while the defendants claim surprise and lack of opportunity to prepare to meet the unpleaded issue, we note in the context of an earlier motion by the government to dismiss, that plaintiff had in his opposition papers articulated the "basis [of his action as] the failure of the ASG employee [Pisa Tivao] to properly *6supervise physical education period for his class, which failure resulted proximately in the injuries and damage to the minor." Plaintiff's Memorandum in Opposition to Motion for Dismissal, at page l.1 Under the liberal spirit of the Trial Court Rules of Civil Procedure, a negligence claim based on an allegation of an omission was, in our view, clearly noticed and, therefore, the defendants not unduly prejudiced in their defense.
We turn to the question of whether the evidence establishes a want in supervision on the part of Tivao, rising to the level of negligence. We think not. Tivao had, in our view, done all that he could reasonably be expected to do in the circumstances. On Wayne's request to be excused from PE on account of illness, he instructed Wayne to join Ms. Te'o's group off the playing field. After attending to Wayne's situation, he then concentrated on the remainder of the class's PE activities. If, on the other hand, Tivao was then required to keep a continuous eye on Wayne at all times to ensure that he was not hurt, then it would be nigh impossible for him, or any other teacher in his circumstances, to accomplish very much relating to the rest of the class. Consequently, "the constant and unremitting scrutiny" of students on school premises in order to prevent injury has not been expected of school officials and teachers. Fagan v. Summers, 498 P.2d 1227, 1228 (Wyo. 1972); Kos v. Catholic Bishop of Chicago, 45 N.E.2d 1006 (Ill. 1942). (Intervening action of fellow students mitigates the teacher's duty to take every possible precaution.) At the same time, we are satisfied on the evidence that the proximate cause of Wayne's injury was not the absence of supervision, but the combination of his not following Tivao's instruction to stay off the playground and his being run down on the playground by other children involved in play.
On the foregoing, we conclude in favor of the defendants and direct that judgment be entered accordingly.
It is so ordered.
The grounds asserted by the government for its motion to dismiss was that the complaint in actuality alleged facts describing assault and battery and that notwithstanding plaintiff's labeling of his complaint as one for "negligence and damages," the government had not waived its sovereign immunity, under the Government Tort Liability Act, A.S.C.A. § 43.1201 et seq., to assault and battery based claims.
Because of the case's early posture at the time of the motion, we denied the same favoring plaintiff's position that his complaint had also sufficiently noticed a claim based on inadequate supervision. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486299/ | Order Granting Summary Judgment:
BACKGROUND
This matter arises out of a dispute over ownership of a 72.72 acre lot of land located near the Tafuna airport. Originally, this court, in LT 16-1957, determined that the Lemeana'i family owned this property. In a condemnation proceeding, LT 15-1959 (Dec. 28, 1959), plaintiff American Samoa Government ("ASG") obtained fee simple title to approximately 550.83 acres, which included the land belonging to the Lemeana'i family. On July 21, 1960, ASG paid the former title holder of the Lemeana'i family $18,856.61 as compensation. In a failed attempt by defendant Atualevao Meredith ("Meredith") to reclaim the land, this *11court, in Meredith v. American Samoa Gov't., 2 A.S.R.2d 66, 68 (Land & Titles Div. 1985), aff'd, AP 23-85 (1986), confirmed that once ASG condemned the land for a public purpose, it gained title in fee simple.
PROCEDURAL HISTORY
On May 25, 1994, ASG filed a complaint for trespass and injunctive relief with this court naming Meredith, Toaono Kelemete ("Kelemete"), and John Does 1-10 as defendants. That same day, ASG, in addition to the complaint, applied for a temporary restraining order, which was not issued, and preliminary injunction. On June 15, 1994, Kelemete filed a pro se answer and counterclaim. On June 22, 1994, at the hearing on the order to show cause, the court issued a stipulated temporary restraining and associated orders. On June 30, 1994, pursuant to one of those orders, Meredith and Kelemete filed a second answer by counsel.
On January 27, 1995, ASG filed a reply to Kelemete's counterclaim and moved for summary judgment. On March 1, 1995, defendants filed their opposition to summary judgment, with three supporting affidavits. On March 2, 1995, the court first granted defendants leave to file a first amended answer and several counterclaims and then heard the motion for summary judgment. The court also gave ASG the opportunity to file a further written response to issues raised by defendants' opposition to summary judgment filed the day before the hearing. On March 20, 1995, ASG filed this response.
On April 11, 1995, at the hearing on defendants' motion to continue the trial beyond April 18, 1995, defendants questioned whether this response adequately served as ASG's reply to the amended counterclaims, and the court indicated it was more than sufficient. The trial is now scheduled to begin on May 31, 1995.
SUMMARY JUDGMENT
Summary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P. 56(c), which mirrors F.R.C.P. 56(c). In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, 369 U.S. 654 (1952)), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. *12Lokan, 6 A.S.R.2d 44, 46 (Trial Div.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 Samoan Gov't. (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989).
DISCUSSION
ASG seeks an entry of summary judgment for two reasons. First, ASG asserts that there are no material facts in dispute, and second, that no legal issue exists since this court, in Meredith, 2 A.S.R.2d 66, held that title to the property vests in ASG in fee simple.
In support of their opposition to the motion for summary judgment, defendants filed the affidavits of Kelemete, Meredith, and Mafutau Kelemete.
First, defendants assert that the property ASG condemned in 1959 was not utilized until 1963, and therefore, according to the original Constitution of American Samoa, the land should revert back to the Lemeana'i family as original title holders. This assertion is legally incorrect.
A.S.C.A. § 37.2001(b), which amended § 37.2001 in 1988, states in relevant part: "If the subject land is not used for the stated public purpose within five years after condemnation it must be returned to the prior owner with all improvements." Previous to this amendment, neither the American Samoa Code nor original Constitution or the Revised Constitution contained any language that required the ASG to use condemned land within a specific term of years.
A.S.C.A. § 37.2001(b) does not have retrospective effect. Whether a statute operates retrospectively, or prospectively only is one of legislative intent. Poston v. Clinton, 406 P.2d 623, 626 (Wa. 1965) (court applied a strict rule of construction against a retrospective operation). Even if A.S.C.A. § 37.2001(b) had retrospective effect, ASG utilized the property for the stated purpose1 within five years after condemnation.
Second, defendants claim that the land was never conveyed to ASG and since the Lemeana'i family has cultivated crops, built structures, and *13otherwise occupied the property continually from before 1959 until the present, they should not be removed from the land. This is incorrect. This court in the L.T. No. 15-1959 condemnation judgment decreed that the land was "condemned in fee simple and the ownership thereof in fee simple vested in the Government of American Samoa." This judgment was upheld in Meredith, 2 A.S.R.2d at 67. Even if it is true that the Lemeana'i family has been occupying the land since 1959, it has been in trespass, ASG could have brought an action for eviction at any time and by waiting until now to do so does not give defendants any interest in the property.
Third, defendants declare that the $18,857.61 the Lemeana'i family received from ASG as compensation for the condemned portion of their land was unjust and inadequate. They claim the compensation was accepted under protest, because numerous factors were ignored in the assessment of the value of the property. Defendants, therefore, contend that the condemnation proceeding, LT-1959, was unconscionable and in violation of their constitutional right to just compensation. This argument is untimely. This court, in Meredith, 2 A.S.R.2d at 67, confirmed the condemnation judgment, which vested fee simple title to the property in ASG and awarded the Lemeana'i family $18,857.61 in compensation. This decision was affirmed on appeal in LT 23-85. Therefore, defendants' appeal rights were exhausted in Meredith.
Furthermore, defendants failed to raise the issue of inadequate compensation in Meredith, and even if they had, it would be barred by res judicata. "The sum and substance of the whole doctrine [of res judicata] is that a matter once judicially decided is finally decided.'' Massie v. Paul, 92 S.W.2d 11, 14 (Ky. Ct. App. 1936).
Finally, defendants assert that during the 1988 gubernatorial election, Governor A.P. Lutali verbally promised to return a portion of the property to them if he was reelected. Defendants further assert that Governor Peter T. Coleman, during his term succeeding Governor Lutali, and Governor Lutali, during his present term, promised to convey a portion of the property to the Lemeana'i family under a perpetual lease. Even if these claims are factually correct, they have no legal bearing on this case.
A verbal promise to convey any interest in land is not legally binding in American Samoa. A.S.C.A. § 37.0211 states in relevant part: "No agreement for the sale of real property or any interest therein is valid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged . . . ."
*14In addition, A.S.C.A. § 37.0210 requires that before an instrument can effectuate to pass title to any land it must first be registered with the Territorial Registrar. In this case, neither of these requirements were satisfied, and ASG is not under any legal obligation to return the land to defendants.
The Governor, pursuant to A.S.C.A. § 37.0221(a), does have the authority to approve a lease of communal land for any term not to exceed 55 years, but for such a lease to be valid, it must be, within two months of the agreement, placed in writing, approved by the Governor, confirmed under the hand and seal of the Governor, and duly registered. A.S.C.A. § 37.0221(d). In this case, none of these requirements were satisfied. Defendants do not have a valid lease executed by the Governor, and ASG is not under any legal obligation to lease the land to defendants.
CONCLUSION
Because defendants' affidavits fail to support that any genuine issues of material fact are in dispute or that any valid legal issues exist, ASG's motion for summary judgment is granted.
It is so ordered.
The lease of said property by ASG to the Federal Aviation Administration in 1963 was found by this court to be consistent with the stated purpose for which the land was condemned in 1959. Meredith, 2 A.S.R.2d at 67. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486300/ | Opinion and Order:
The parties to this action disagree as to the boundary line between a parcel of land (Lot "G"), currently owned by plaintiffs Dorothy and Stanley Gurr ("the Gurrs"), and its adjacent parcel ("Lot S") to the southeast, presently occupied by defendants Neil and Sala Scratch ("the Scratches") and owned by Sala Scratch ("Sala"). This boundary dispute was tried on February 23 and 24, 1995. The parties were represented by counsel.
FACTS
By warranty deed, dated May 23, 1977, and recorded May 25, 1977, the original owner conveyed Lot S to Manu'a Dewees ("Dewees"). By warranty deed, dated and recorded April 12, 1979, Dewees conveyed Lot S to Roy J.D. and Koroseta V. Hall, Jr. ("the Halls”). By warranty deed, dated and recorded July 25, 1990, the Halls conveyed Lot S to Sala.
When the Halls acquired Lot S in 1979, they had the land resurveyed. This survey work was done by Meko L. Aiumu ("Aiumu"), a registered surveyor in American Samoa and Manager of the Survey Branch, Department of Public Works, American Samoa Government. Aiumu determined that the legal description of Lot S contained in the original owner's deed to Dewees and Dewees' deed to the Halls incorrectly located most of Lot S within the northeasterly portion of a different, adjacent lot *16to the southeast of Lot S, also owned by Sala. Aiumu then drafted a new legal description for Lot S, using concrete monuments he found on site. This new survey was used in Sala's deed from the Halls in 1990.
Aiumu'plotted Lot S, using the northeast corner ("N.E. Cor.") as a starting point. He found a concrete monument at this comer. Aiumu then developed metes and bounds clockwise from the N.E. Cor. He ran the first boundary line to another existing concrete monument and continued at a slightly different angle to the southeast corner ("S.E. Cor."), where he discovered another concrete monument. He continued the next boundary line to the southwest corner ("S.W. Cor."), where he found another concrete monument. Then, Aiumu used two boundary lines to connect with a concrete monument at the northwest comer ("N.W. Cor."). Aiumu attempted to run the boundary line from the S.W. Cor. to the N.W. Cor. at the approximate angle described in Dewees' deed. This angle would not permit a straight boundary line between the two points. He, therefore, created a separate point ("Pt X") 17.29 feet from the N.W. Cor. and connected the S.W. Cor. to Pt X. Aiumu drove a galvanized pipe at Pt X. He then continued on to the N.W. Cor. Finally, Aiumu continued the angles of the eastern and western boundaries beyond the northern boundary of Lot S, and into the Aoloau paved road, and inserted surveyor nails into the center of the road on those lines.
Subsequent to the conveyance of Lot S to Sala, events obliterated the moniiments at the N.E Cor., N.W. Cor., and Pt X. Using excavating equipment, the American Samoa Power Authority installed a pipeline near the boundary between Lot G and Lot S to provide water to a neighboring lot. A concrete slab was constructed on most of Lot S. Finally, the Scratches installed a chain-link fence running from the S.W. Cor. towards Pt. X and the N.W. Cor. This fence provoked the controversy now before the court about the exact location of the boundary line separating Lot G and Lot S.
The Scratches engaged Lawrence P. French ("French"), also a licensed surveyor in American Samoa, to resurvey Lot S for purposes of this action. Unquestionably, French undertook this task with thorough research and calculations. His work renders the precise location of the N.W. Cor. and Pt X uncertain, but also provides the best basis for the court's ultimate resolution of the location of the common boundary between Lot G and Lot S.
Using known corners of various surveyed lots within the tract of land *17named Mapuga,"1 French determined that the now unmarked point of beginning at the N.E. Cor. used by Aiumu was probably located either at the comer designated as D-l or at the comer designated as D-l:2 as shown on Exhibit 23, which French prepared to illustrate his findings. Looking at a straight line between the still existing monument at the S.E. Cor. and the surveyor's nail in the road beyond the N.E. Cor. and, only noting the slight bend of 2 minutes 30 seconds in Aiumu's survey, we are satisfied that the N.E. Cor. was originally located at either point D-l, point D-l:2, or between these two points.
French also plotted Aiumu's metes and bounds clearly locating the disputed fence on Lot G, but failing to tie into the monuments presently existing at the S.E. Cor. and S.W. Cor.
Since the evidence does not indicate movement of the monuments at the S.E. Cor. and S.W. Cor. after Aiumu's discovery of them, we will reconstmct the boundary between Lot G and Lot S from the S.W. Cor. using the existing surveyor's nail beyond the N.W. Cor. as a reference point at the north end.2 A straight line between the S.W. Cor. and the nail in the road beyond the N.W. Cor. closely resembles the original locations of both Pt. X and the N.W. Cor.
French found an orange surveyor's ribbon below the ground surface on the fence post closest to Pt. X. This post appears, however, to be at least three feet northwest of the boundary now being drawn by the court. Due to past excavations in this immediate area, we do not find the presence of this ribbon to be persuasive evidence of the original location of the boundary line.
On the evidence before us, we believe that the boundary line now being drawn by the court is fair and reasonable, especially in light of its proximity to the original locations of Pt. X and the N.W. Cor. This new straight line does not, and cannot, coincide with Aiumu's metes and bounds. However, we find that Aiumu's errors, if any, were negligible. The variance between the line now drawn by this court and Aiumu's line is slight and tolerable. The new line does not interfere with the concrete *18slab, or any other existing use of Lot S by the Scratches. Their detriment is limited to relocating any encroaching portions of the fence from Lot G to Lot S.
CONCLUSIONS AND ORDERS
The boundary between Lot G and Lot S is reestablished as a straight line from the S.W. Cor. to the surveyor's nail in the road beyond the N.W. Cor. Within the next 60 days, the parties' shall have this line resurveyed, with a new N.W. Cor. identified at the closest possible point along this line to the original N.W. Cor. and monumented in the field, and recorded with the Territorial Registrar. The parties shall share the cost of this resurvey, monumentation, and recordation equally. Within 60 days after the resurvey is recorded, the Scratches shall remove any portion of the encroaching fence from Lot G. If they choose to erect a fence along the new boundary, the Scratches shall ensure that this fence is located entirely within Lot S. The Scratches shall bear the cost of removing the existing fence and erecting any replacement fence.
It is so ordered.
Ane Pili originally owned the 4.753 acre surveyed tract named "Mapuga." She subdivided and conveyed several lots within this tract, including Lot G and Lot S.
We note the moderate bend of 1 degree 9 minutes 14 seconds at Pt X in Aiumu's survey, but it has no bearing on our decision due to the meager difference it makes in the boundary line. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486301/ | *19Order Denying Motion for Preliminary Injunction:
Plaintiffs seek a preliminary injunction against the defendants to enjoin their further construction on a certain area within land known as "Tafeta."1 Plaintiffs additionally seek to enjoin the defendants from issuing any further building permits on the said land pending final disposition of this matter.
The source of the dispute seems to be a proposed extension to an existing home belonging to the daughter of defendant Fa'atalatala Maua, whose presence on the disputed site is claimed by plaintiff Robert T. Seva'aetasi as having been through his father Tago R. Seva'aetasi. The proposed extension is the subject of a separation agreement executed by defendant Tuia'ana Moi, who claims the land on behalf of the Magalei/Tuia'ana families of Faleniu. Plaintiff Tago, on the other hand, claims that his father owns the disputed area of Tafeta under one of two alternative theories: (1) adverse possession; or, (2) a "customary grant" from the Chiefs of Faleniu to his father and his descendants.
DISCUSSION
In these matters, we are guided by A.S.C.A. § 43.1401(j), which sets out the requirement of "sufficient grounds" for the issuance of a preliminary injunction. These requirements are:
(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and
(2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.
On the first of these grounds, we find against the movant. This case seems to be yet another attempt on behalf of Tago Seva'aetasi to assert his ownership claim to a part of Tafeta, which this court has previously denied on at least two occasions. In Magalei v. Tago, 3 A.S.R. 185 (Land & Titles Div. 1955), the court rejected Tago Seva'aetasi's claim to *20ownership on his theory of adverse possession. Likewise in Magalei v. Atualevao, 19 A.S.R.2d 86 (Land & Titles Div. 1991), the court also rejected Tago's claim based on a 1957 deed purportedly given by two of Faleniu's matai. Therefore, plaintiffs appear to have immediately apparent problems with the doctrines of res judicata and collateral estoppel. See e.g. Taulaga M. v. Patea S., 4 A.S.R.2d 186 (Land & Titles Div. 1987); Sialega v. Taito, 5 A.S.R.2d 99 (Land & Titles Div. 1987).
On the second issue of irreparable injury, we find that none has been established by plaintiff. The extension to an existing home is hardly irreparable harm. Indeed, the equities weigh in the other direction. Tuia'ana testified that the purpose behind the separation agreement at issue was to facilitate financing for the extension work. Thus, the homeowner will incur harm in terms of her financial obligations if her remodeling plans are placed on hold pending final disposition. By comparison, the harm to plaintiff proposed by the extension is negligible, if any, as the land in question will not drastically change in nature as a result of the proposed construction. According to the plaintiffs’ exhibits attached to their pleadings, the disputed area is already encumbered by a number of other structures. Thus, an extension to an existing structure will not amount to anything radically new in the way of use to the land, as proposed by the homeowner's enlargement of her home. The only other conceivable harm to plaintiff is perhaps the indignity of having his pule questioned; but this is an issue before the court, neither tantamount to irreversible prejudice nor sufficient to tilt the balance of equities in plaintiffs' favor. Gaoa v. Tulifua, 13 A.S.R.2d 30, 32 (Land & Titles Div. 1989).
Finally, the owner of the home in question, according to the testimony of Tuia'ana, is plaintiff Fa'atalatala Maua’s daughter, who is not even before the court.
We conclude insufficient grounds for issuance of a preliminary injunction, in accordance with A.S.C.A. § 43.1401®, and, therefore, deny the application. Motion denied.
It is so ordered.
Tafeta is a large land area located behind Faleniu and Pava'ia'i, and extending inland toward Aoloaufou and Aasufou. A cursory look at the casebooks will reveal that Tafeta has been the subject of endless litigation not only among the Chiefs of Faleniu themselves but also between the Chiefs of Faleniu and others. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486304/ | Opinion and Order:
In LT No. 49-91, plaintiffs Sualevai Sea ("Sualevai") and Taufusi Leasau ("Taufusi"), on behalf of the Atoe family, and defendant Sola Lagai ("Sola") are vying to receive the rental compensation for the use of certain land within the Fitiuta airport operated by defendant American Samoa Government ("ASG"). In LT No. 53-91, ASG as stakeholder interpleaded Sualevai, Taufusi, and the principal chief ("sa'o") or other legal representative of the Atoe family, and Sola as defendants for the purpose of depositing the rental compensation with the High Court pending the *31court's decision on entitlement to it. After consolidation, the two cases were tried on March 9 and 10, 1995. The individually named parties were present with their counsel, along with ASG's counsel.
FINDINGS OF FACT
Several years ago, ASG programmed the construction and operation of a public airport to be located in the Village of Fitiuta, Manu'a Islands, American Samoa. As a major process in the program, ASG negotiated lease agreements with the owners of the land on which the airport was to be constructed. ASG reached an agreement with Sola for the use of one parcel, named "Tiafala" and designated Lot 17 on ASG's survey of the airport area. On January 5, 1988, ASG and Sola signed a lease of Lot 17 to ASG for 55 years, with a monthly rental of $100 per acre for the first five years of the lease term. As amended on March 8, 1991, Lot 17 consisted of 5.572 acres, which generated a monthly rental of $557.20. The rental is subject to a renegotiated amount for each five-year period of the lease.
By stipulation, ASG had deposited $44,575.60 with the court and inadvertently released to Sola $3,343.20, representing the rental payments for the months of January 1988 through February 1995. ASG is obligated to continue monthly deposits of $557.20, subject to any readjustment in the rent for the second five-year period of the lease, which began in January 1993.
The evidence submitted by Sualevai and Taufusi in this case was diametrically opposed to the evidence presented by Sola in virtually every significant aspect. We can resolve the ultimate fact 'of the ownership of Lot 17 from another perspective without setting forth these conflicts in elaborate detail. Unquestionably, while each family is distinct, the Lagai and Atoe families' histories are intertwined. They still interact frequently and occupy neighboring land not far from Lot 17. Furthermore, they are blood related.
While they are Atoe family members, Sualevai and Taufusi have their genuine roots and essential interests outside of Fitiuta. As outsiders, their evidenced motivation in this matter was the substantial financial stake at issue. The meeting held in the Village of Nu'uuli on the Island of Tutuila one Saturday evening in 1992 or 1993 was devised to induce Sola as an Atoe family member to agree to a course of action, later recanted, for the release of the rental funds.
*32The Atoe family members, who are Fitiuta residents and who testified in support of Sualevai and Taufusi, were not persuasive. One in particular had other self-interests. He is a matai in yet another family. He leased land to ASG, identified as Atoe family land and designated as Lot 3 in the airport survey, and had reason to protect his claim to individual ownership of this land as opposed to communal ownership by any family.
Moreover, we find the testimony of Sola, the present sa'o of the Lagai family and a lifelong Fitiuta resident, and his witnesses, also Fitiuta residents, substantially more compelling on the land ownership issue. In short, we find that the land named "Tiafala" and portion of it designated Lot 17 is communal land of the Lagai family.
CONCLUSIONS OF LAW AND ORDER
Since Lot 17 within the land named "Tiafala" is communal land of the Lagai family, Sola, as the sa'o and on behalf of his family, is entitled to receive the rental funds held by the court for the lease of this land by ASG for the Fitiuta airport. The clerk of the court shall deliver these funds to Sola when this order becomes a final decision. Until then, ASG shall continue to deposit the monthly rental payments with the court. ASG shall thereafter make the monthly rental payments directly to Sola.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486305/ | Order Awarding Child Custody:
HISTORY
This case concerns the physical custody of a minor child. Petitioner is the child's maternal grandfather. Respondent is the child's father.
The child's father and mother were divorced in 1986 in the State of Oklahoma, with custody awarded to the mother. Although the father had physical custody of the child for periods of time after the divorce, the child *34was in his mother's custody in California when he engaged in illegal conduct and was adjudged a delinquent. The Superior Court of California, City and County of San Francisco, Juvenile Division ("California court"), issued an order November 18, 1994, declaring the child a ward of the California court for a period of five years and eight months and requiring him to reside with his grandfather in American Samoa. The child's father was unaware of these proceedings and was therefore not involved in them.
After finding out that the child was residing with his grandfather in American Samoa, his father took him from a Boy Scout meeting and refused to return him to his grandfather. On March 7, 1995, this court issued an order to show cause and temporary restraining order requiring the father to return custody of the child to the grandfather, pending the hearing scheduled on March 14, 1995, on the grandfather's application for a temporary injunction.
On March 14, 1995, this court appointed the Public Defender to represent the child, continued the hearing until March 15, 1995, and set aside the temporary restraining order to permit the child to stay with his father until the next day.
On March 15, 1995, this court directed the preparation of a social services report on the child's present circumstances, set an evidentiary hearing for April 12, 1995, returned custody of the child to his grandfather in deference to the California court's order, pending the evidentiary hearing, and mutually enjoined the father and grandfather from removing the child from American Samoa.1
Because the child was in school and not the courthouse at the scheduled time on April 12, 1995, we postponed the evidentiary hearing until April 13, 1995. On April 13, 1995, a hearing was held with all parties present with counsel. At that hearing, which included consideration with the parties of the findings of the social services report and a private consultation between the judges and the child, we awarded custody of the child to his father, and reasonable visitation rights to the grandfather, mother, and other family members.
Our custody determination was based on three principal factors. First, the child's past relationship with his father has been positive and beneficial. *35Second, the child's father has remarried, adding a measure of stability to the family environment. Circumstances indicate a good relationship between the child and his stepmother and his stepsiblings. Third, the child has a strong preference to live with his father, although he appreciates his grandfather's efforts in his behalf.
DISCUSSION
When we awarded custody of the child to the father, we stated our intention to issue a written decision explaining our order in the light of the California court's order placing custody with the grandfather.
The U.S. Constitution, Article IV, section 1 requires that "[fjull faith and credit shall be given in each state to the . . . judicial proceedings of every other state." Despite the fact that American Samoa is a territory, rather than a state, the full faith and credit requirement is applicable here. A.S.C.A. § 43.1702 et seq.; Southwest Marine of Samoa v. S & S Contracting, 6 A.S.R.2d 62, 64 (App. Div. 1987).
According to the U.S. Supreme Court, a judgment is not more conclusive (or deserving of "faith and credit") in any state than it is in the state in which it was rendered. New York v. Halvey, 330 U.S. 610, 614 (1946). In other words, the forum state has as much leeway to modify or depart from a foreign judgment as does the state in which it was rendered. Id. at 615; Kovacs v. Brewer, 356 U.S. 604, 607 (1958).
When a court obtains jurisdiction over a minor, its power to modify the custody arrangements in the interest of that child are equal to those of the state issuing the original decree. Brown v. Stevens, 331 F.2d 803, 805 (D.C. Cir. 1964). The forum should respect the earlier judgment to the extent that issues presented therein received a res judicata determination. Id.
In a case factually very similar to the present case, the U.S. Supreme Court held that a custody decree is not res judicata where circumstances call for a different arrangement to protect the child's welfare. Kovacs, 356 U.S. at 608. Under California law, the primary consideration in a child custody determination is "the best interest and welfare of the child," and the trial court is given "broad discretion in awarding custody or in modifying a prior award." Schlumpf v. Super. Ct., 145 Cal. Rptr. 190, 195 (1978); In re Marriage of Popenhager, 160 Cal. Rptr., 379, 383 (1979). In a state where the welfare of the child is the primary consideration in shaping a custody decree and where the custody decree is *36not irrevocable or unchangeable, "the result is that the custody decrees of [California] courts are ordinarily not res judicata in [California] or elsewhere, except as to the facts before the court at the time of judgment." Halvey, 330 U.S. at 613. The D.C. Circuit similarly found that "[i]n California as in the District, the paramount consideration is the welfare of the child, and it is the duty of the court to which the question is presented, to change the custody if the best interests of the child require it." Langan v. Langan, 150 F.2d 979, 983 (D.C. Cir. 1945). The D.C. Circuit further found that courts act not as arbiters determining adversary rights in human chattels, but as parens patriae, making awards solely on the basis of the child's welfare. Id. at 980.
When the California court awarded custody to the grandfather, it adjudicated the fitness of the child's grandfather to serve as his guardian as compared to the mother, not as compared to the father. The facts about the father's fitness to serve as the child's natural guardian were neither before the California court, nor were his parental rights adjudicated in the California proceeding. There was no res judicata determination of the father's fitness as a parent to the child.
While there is a presumption in favor of preserving a child's existing custody arrangement in order to prevent disruptions in a child's life, we find that the combination of circumstances, including the child's clearly stated preference, make it advantageous for him to live with his father at this time. Hence, we continue in effect the bench order of April 13, 1995, awarding the child's custody to his father, subject to reasonable visitation rights by his grandfather, mother, and other family members.
It is so ordered.
The court also imposed a curfew on the child from 6:00 p.m. until 6:00 a.m., required him to attend school, and allowed the father to liberally exercise visitation rights, including during after-school hours before the curfew and on weekends. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486306/ | Order Denying Motion for Reconsideration:
BACKGROUND
On November 16, 1990, Miliama Pasesa ("Miliama") as Guardian Ad Litem for Serina Pasesa ("Serina") brought an action, docketed CA 102-90, on behalf of Serina against Tuilua T. Laumatia ("Laumatia"), Laau Liufai and Insurance Company of the Pacific, Inc., seeking damages for physical injuries suffered on February 9, 1990, as the result of a car accident involving Laumatia.
On February 18, 1993, this court approved a settlement in CA 102-90 and dismissed the action as to Laau Liufai, the owner of the vehicle Laumatia was driving, and Insurance Company of the Pacific, Inc., the insurer of the vehicle. On June 4, 1993, this court approved the stipulation of the parties to dismiss the action as to Laumatia without prejudice.
Subsequently, on June 23, 1994, Serina, through her Guardian Ad Litem Miliama, filed this action against Laumatia for her injuries sustained in the *38February 9, 1990 car accident. On December 6, 1994, Laumatia filed a motion to dismiss on the grounds that the matter was barred by the statute of limitations, A.S.C.A. § 43.0120(2).1
On January 18, 1995, we issued an Order granting the motion to dismiss, concluding that the previous appointment of a guardian ad litem in CA 102-90,2 resulted in the termination of Serina's disability, for purposes of any claims she may have had as a result of the February 9, 1990 car accident and the running of a statute of limitations. On January 27, 1995, plaintiff filed a motion for reconsideration.
DISCUSSION
The issue presented for reconsideration is whether the appointment of a guardian ad litem,' which allows a minor to commence an action, effectively terminates the minor's disability for purposes of the statute of limitation.
The general rule is that a statute of limitations will ordinarily run against the claims of minors in the absence of a contrary statute or provision. Vance v. Vance, 108 U.S. 514 (1983). Minors are not afforded any special rights under the Constitution or by any general doctrine of law; but it is within the discretion of state legislatures to make exceptions to the general rule. Id. Most state legislatures have passed statutes that toll the running of a limitation period against minors' claims until they reach the age of majority or their disability under the law is terminated. In American Samoa, for instance, the Fono has enacted legislation stating, "Minors and insane persons shall have 1 year from the termination of such disability within which to commence any action regardless of any other applicable limitation period." A.S.C.A. §43.0126.
Although plaintiffs filed this action over three years after the date of the accident, they assert that it is not barred by statute of limitations because Serina, as a minor, is governed by the provisions of A.S.C.A. § 43.0126. We must now determine, under this statute, when a minor's disability is *39terminated.
Disability under the law quite clearly ceases when a minor reaches the age of majority or is otherwise earlier emancipated through marriage. Additionally, a minor is no longer under disability, for statute of limitation purposes, when a guardian ad litem is named. In each of the above situations, the minor has gained the necessary legal capacity to commence an action and is thus no longer prevented from suing.
The purpose of a statute which tolls the statute of limitations during a party's disability is to suspend limitations with respect to persons who have no access to the courts. Adler v. Beverly Hills Hosp., 594 S.W.2d 153, 157-58 (Tex. 1980). Disability includes practical as well as legal incapacity to sue. Id. Since the appointment of a guardian ad litem removes a minor's incapacity to sue, it allows the minor to gain access to the courts, thus removing the disability.
In dicta, this court has suggested that "since a minor is no longer prohibited from bringing a law suit once a guardian ad litem has been appointed for him, it would seem that the statute of limitations began to run on [the date of appointment] at the very latest. ’’ Lutu v. American Samoa Gov't, 7 A.S.R. 2d 61, 63, n. 2 (Trial Div. 1988). In Lutu, the guardians filed suit on the same day they were appointed; thus, the court was not required to decide if the statute of limitations began to run. Since Serina filed this action over two years after her original appointment as guardian,3 we must now decide whether a claim by a minor, for whom a guardian has been appointed, is barred when the action is filed more than one year after the date of appointment.
Black's Law Dictionary, 4th edition, defines the term "legal disability" as "[t]he want of legal capability to perform an act" and "incapacity for the full enjoyment of ordinary legal rights; thus persons under age, ... are said to be under disability." This definition was adopted by the Pennsylvania Superior Court in Salvado v. Prudential Property and Casual Ins. Co., 430 A.2d 297, 298-99 (Penn. 1981). Despite a strong dissent, the court in Salvado held that the statute of limitations did not run against a minor due to the strict language of the Pennsylvania No-Fault Insurance Act which stated that "the period of [the minor’s] disability is *40not a part of the time limited for commencement of the action." Id. at 299 (emphasis added). At the same time, the Supreme Court of Pennsylvania has noted that "the statute of limitations will run against persons under a disability, including minors, . . . [and] the legislature can at any time, that it seé fit, reestablish an exclusion of persons under disability from the operation of the statute of limitations." Walters v. Ditzler, 227 A.2d 833, 835 (Penn. 1967). In Salvado, the court applied the Pennsylvania No-Fault Insurance Act, which was passed by its legislature, but such restrictive language in the Pennsylvania No-Fault Insurance Act specifically excluding minors is, on the other hand, not to be found in A.S.C.A. § 43.0126.
Other jurisdictions have allowed the statute of limitations to run against a minor once a guardian ad litem is appointed. For instance, under Colorado law, a limitation period does not begin to accrue for a minor until "after the disability is removed." Colo. Rev. Stat. Ann. § 13-80-116. The Colorado statute, which is similar to A.S.C.A. § 43.0126, only allows minors two years after reaching the age of majority to bring an action when "no legal representative has been appointed for him." C.R.S.A. § 13-81-103(l)-(3). McKinney v. Armco Recreational Prods., Inc., 419 F. Supp. 464, 465-66 (D.C. Colo. 1976).; Price v. Sommermeyer, 603 P.2d 135, 138 (Colo. 1979).
In Colorado, if a person under disability is appointed a guardian or a legal representative prior to the termination of such disability, the applicable statute of limitations shall run against such person with the same effect as it runs against a person not under disability. Id.; McClanahan v. American Gilsonite Co., 494 F. Supp. 1334, 1339 (D.C. Colo. 1980).
North Carolina law also permits a "statute of limitations to run against the a minor plaintiff's claim upon appointment of his guardian ad litem," Anderson v. Canipe, 317 S.E.2d 44, 47 (N.C. 1984); Lane v. Aetna Casualty & Surety Co., 269 S.E.2d 711 (N.C. 1980) (statute of limitations begins to run against a minor either upon the appointment of a guardian or removal of the age of disability, whichever occurs first), especially since the legal guardian is appointed by the court and charged with the duty of bringing suit on the minor's behalf. Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 284-86 (4th Cir. 1979). The Genesco court further held that the statute of limitations begins to run against a minor on the date a guardian ad litem is appointed and reasoned that "since an infant, who is represented by a guardian, has the capacity, despite his infancy, to bring suit through his guardian, there is no need to suspend the running of the statute of limitations." Id. at 285.
*41In the case before us, Miliama was appointed guardian ad litem on behalf of Serina. A compelling reason for this appointment was to allow Miliama to bring an action on Serbia's behalf. This is evident by the fact that both times Miliama was appointed guardian ad litem for Serina, she filed suit on behalf of Serina the same day.
We recognize that courts in other jurisdictions have held that a statute of limitations will toll until a minor reaches the age of majority, regardless of whether a guardian ad litem is appointed, but these cases can be easily distinguished from the action before us. For example, in California, it has been held that "the appointment of a guardian has no effect upon the tolling of the statute of limitations as to a cause of action accruing to or vesting in a minor." Aronson v. Bank of America N.T. & S.A., 109 P.2d 1001, 1007 (Cal. 1941). The rationale behind this holding is explained by the restrictive language of the relevant California statute. In California, if a person entitled to bring an action is, "at the time the cause of action accrued, either: 1. Under the age of majority ... the time of such disability is not a part of the time limited for commencement of action. ” Title 2, Cal. Code of Civil Procedure, § 352(a).
A.S.C.A. § 43.0126 is clearly distinguishable from the California statute because § 43.0126 states that "minors shall have one year after the termination of such disability", whereas the California statute unqualifiedly proscribes that "the time of disability is not a part of the time limited for commencement of action." In other words, there is absolutely no running of limitations for a minor in California, whereas, in American Samoa the language of the statute permits the limitation to nm when the disability of a minor is terminated.
California courts have thus held that the running of a limitations period is against the public policy to protect the rights of a minor. Williams v. Mariposa County Unified School, 147 Cal.Rptr, 452, (Cal. 1978). The Williams court reasoned that the rights of a minor to recover' damages should not be forfeited by the failure or neglect of a third party guardian to bring an action on behalf of a minor since the minor has no effective control over the guardian's actions. Id. Likewise, the Illinois courts have held that "a minor's claim is not barred by limitations until two years after obtaining majority, even though guardian ad litem has been appointed for minor." Eiseman v. Lemer, 380 N.E.2d 1033, 1033-34 (Ill. 1978) (action brought by guardian on minor's behalf was not barred even though the estate in dispute had been completed for six years). The Eiseman court reasoned that the public policy in Illinois is to protect the rights of minors, unless clearly disbarred by some relevant statute, and these rights should *42not be jeopardized by the failure of a guardian to timely file suit on minor's behalf. Since Miliama filed an action on Serina's behalf and settlement was reached, Serina's rights were not forfeited and her "day in court" was not jeopardized.
Also, under New Jersey law, the statute of limitations fails to run against a minor who brings an action through a guardian, discontinues it, then brings a successive action up until two years after attaining the age of majority. Snare & Triest Co. v. Friedman, 169 F. 1, 6 (3rd Cir. 1909). The New Jersey statute permitted a minor to bring an action until two years after turning twenty-one, but did not state the language "or until such time as the disability is removed or terminated." Therefore, it is distinguishable from A.S.C.A. § 43.0126.
Finally, plaintiffs cite Keating v. Michigan Central Railroad Co., 53 N.W. 1053, 1054 (Mich. 1892), for the proposition, adopted by the Supreme Court of Michigan, that the disability mentioned in the law is the status of being a minor and that it is not removed until the minor turns the age of majority;4 and a statute of limitations does not run against the minor, even if a suit is commenced by an appointed guardian. Although we take note of the position of the Michigan Court, in light of Lutu and other court decisions in jurisdictions with statutes similar to A.S.C.A. § 43.0126, we are not persuaded by the holding in Keating, especially since Serina was able to bring suit and recover damages in settlement.
ORDER
A.S.C.A. § 43.0120(2) begins to run against a minor when a guardian ad litem is appointed and files suit on her behalf. The minor's disability is removed and her right to a "day in court" is protected. Plaintiff's motion for reconsideration is, therefore, denied.
It is so ordered.
A.S.C.A. § 43.0120(2) states in relevant part that "actions founded on injuries to the person . . . whether based on contract or tort, or for a statutory penalty, [must be brought] within two years [áfter their causes accrue]."
Miliama has been appointed Guardian Ad Litem for Serina on two occasions. First, on November 16, 1990, the date CA 102-90 was filed, and second, on June 23, 1994, the date this action was filed.
Even if the running of the limitation period is tolled between the date plaintiff filed CA 102-90 and the date it was dismissed, it was still 1 year, 9 months and 24 days from the appointment of a guardian until this action was filed, which is not in accordance with the one year limitation period prescribed in A.S.C.A. § 43.0126.
In Michigan, the relevant law is similar to § 43.0126 in stating that a minor may bring an action within the prescribed time period "after the disability is removed." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486307/ | Opinion and Order on Petition for Writ of Mandamus:
This case concerns the right of a Legislator in his legislative capacity, or in his capacity as a private citizen, to obtain information regarding the financial affairs of the Legislative body in which he serves.
HISTORY
Representative’Afoa L. Su'ésu'e Lutu ("Petitioner") brought this action seeking a writ of mandamus to compel Savali Talavou Ale, Speaker of the American Samoa House of Representatives ("the Speaker") and Savali Savali, Jr., Legislative Financial Officer ("LFO") to allow Petitioner to review and receive copies of House expenditures and overruns for the year *451994. This court action followed a series of verbal and written communications by Petitioner, addressed to both respondents, requesting "a breakdown of the 1994 House expenditures." In a letter dated February 17, 1995, the LFO indicated that the Speaker had not yet given his approval, and that the LFO did not have authority to release the information without such approval. At the hearing held April 19, 1995, Petitioner indicated his desire to inspect House records concerning travel authorization, hiring and termination of employees, and other personnel records and expenses.
STANDARD OF REVIEW
The standard for granting the peremptory writ of mandamus, as set forth in T.C.R.C.P. 90, is interpreted by the High Court as follows:
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.
Mulitauaopele v. Maiava, 24 A.S.R.2d 97, 98 (Trial Div. 1993) (citing Gifford Pinchot Alliance v. Butruille, 742 F. Supp. 1077, 1082-83 (D. Ore. 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., Nevada Mines 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))).
DISCUSSION
Petitioner claims authority to examine the relevant documents based on his status as a Legislator and on the theory that the documents are public records.
I. Petitioner's Right as a Legislator
Petitioner claims a special right to review the requested documents, arising from his status as a member of the American Samoa House of Representatives pursuant to A.S.C.A. § 10.0603, which states: "Except as otherwise limited by law, the Legislature shall have full authority and control the request, approval, and disbursement of funds in its budget. The Legislature shall be fully responsible for maintaining proper record-keeping and management over the expenditure of funds."
*46Petitioner claims that the duties of the Legislature also belong to him as one of its members, and that he is unable to adequately perform those duties without access to relevant information. This analysis begs the question of whether either Petitioner or the Speaker is "the Legislature" within the meaning of the foregoing language.
The Revised Constitution of American Samoa, art. II § 1 provides the most plain definition of "Legislature" available, stating: "There shall be a Legislature which shall consist of a Senate and House of Representatives." Accordingly, neither Petitioner nor the Speaker is "the Legislature" within the meaning of A.S.C.A. § 10.0603, and it is doubtM whether Petitioner is justified in bootstrapping himself individually to the rights and responsibilities of the Legislature as a whole. The language of the statute itself suggests the intention of giving the Legislature control over its own budget instead of having its budget managed by an agency within the executive branch. We conclude that the language of A.S.C.A. § 10.0603 does not contemplate or give any direction regarding the disclosure of financial records to individual members of either house, and falls well short of creating the "plain duty" and "plain right" required for the issuance of a writ of mandamus. This conclusion, however, does not end the argument.
Petitioner further claims the right to review the relevant documents pursuant to A.S.C.A. § 2.0601(b), which gives direction to the LFO regarding how information is to be distributed: "Unless otherwise directed by a Legislator making [a] request for information, the request and the resulting work product shall first be submitted to the Legislator who requested it before it is distributed" (emphasis added). Petitioner contends that the foregoing language entitles him to receive the information he requests before it is distributed to anyone else, including the Speaker. The question of who receives information first does not directly resolve the question of what information is accessible to Petitioner in the first place, but the foregoing statute does clearly imply that an individual "Legislator" has the right to make a "request for information" to review the resulting work product.
In turn, the LFO has very broad authority to gather the requested information pursuant to A.S.C.A. § 2.0602. This enactment provides:
The agencies of the government shall cooperate with the Legislative Financial Officer in order that he may carry out the investigations, studies, analyses, and reports so directed to him by the Legislature, by opening their records to the officer during *47normal working hours and times (emphasis added).
Reading the foregoing language together with A.S.C.A. § 2.0601(b), ah individual Legislator seems to have the authority of the entire Legislature for purposes of gathering information through LFO. The words "directed to him by the Legislature" cannot mean that a majority in both houses of the Fono must approve work requests for LFO, since individual Legislators have the right to make confidential work requests, and to review the results of such requests prior to their distribution to others. It would be similarly absurd to read the foregoing statute as requiring approval from the Speaker for the same reason. This contention is strengthened by the language of A.S.C.A. § 2.0601(a) which reads, in relevant part:
There is created a Legislative Financial Office. The Head of the Office is the Legislative Financial Officer, who is appointed by the President of the Senate and the Speaker of the House and compensated by the Legislature. The office is directly responsible to the Legislature ....
In drafting the foregoing language, the Fono had the opportunity to make the LFO directly responsible to the President of the Senate ("the President") and to the Speaker. Instead of doing so, the Fono placed language in the statute making the office "directly responsible to the Legislature" immediately following its instruction that LFO be "appointed” by the President and the Speaker. This language indicates that, despite being appointed by Fono leaders, the LFO is "directly responsible to the Legislature," rather than being indirectly responsible to it via' the leadership.
The Speaker contends that House Rule I § 11(C) permits him to refuse requests for House documents, and to prevent LFO from releasing information concerning the House. The rule reads, in relevant part:
All requests for information or documents from the House must be referred to the Speaker's office for approval. . . . The Legislative Financial Office may not release any information concerning the House without prior approval of the Speaker.
Each house in the Legislature has the constitutional right to "determine its rules of procedure." Rev. Const. Am. Samoa, art. II § 11. The LFO, however, is not a committee of the House of Representatives nor in any other way a part of that House. The LFO is responsible to the *48Legislature, not to rules enacted through one house only. A House rule using language that "The Legislative Financial Office may not . . exceeds the constitutional power of a single house to make rules of procedure for itself. Furthermore, regardless of whether the requested information concerns the House, A.S.C.A. § 2.0601(b) requires that . . the request and the resulting work product shall first be submitted to the Legislator who requested it before it is distributed." The House rule requiring that the Speaker review materials prepared by LFO before their submission to the Legislator requesting the work offends the plain language of the statute, and is therefore invalid insofar as it purports to countermand statutory mandate.
The rule that "[a]ll requests for information or documents from the House must be referred to the Speaker's office for approval," is perhaps an acceptable procedural rule, but it cannot be used by the Speaker to circumvent codified law and displace substantive rights. A constitutionally authorized rule of "procedure” loses its procedural character when it determines the status of substantive legal rights.1 In this case, House Rule I § 11(C) was used to defeat A.S.C.A. § 2.0602, which reads:
The agencies of the government shall cooperate with the Legislative Financial Officer in order that he may carry out the investigations, studies, analyses, and reports so directed to him by the Legislature, by opening their records to the officer during normal working hours and times.
In other words, when the LFO presents an agency of government with a request, no approval is necessary. The agency is legally required to cooperate during normal working hours and times.
This analysis, however, begs the question of whether or not the House of Representatives, or perhaps the Speaker's office, is considered an "agency" within the meaning of the statute. In the narrow sense of the word, "agency" probably means an organization within the executive branch. We think that a broader definition is appropriate in this case. The chapter creating LFO is preceded by a chapter creating the Legislative *49Reference Bureau with the language, "There is, as an agency within the Legislature, a legislative reference bureau for the use of the members of the Legislature." A.S.C.A. § 2.0501 (emphasis added). The common sense meaning of A.S.C.A. § 2.0602 is that "agencies of government"' include organs of government within all three branches, including "an agency within the Legislature" such as the Legislative Reference Bureau, the House of Representatives itself, or the office of the Speaker.
We find that the office of the Speaker is an "agency" within the meaning of A.S.C.A. § 2.0602, and therefore the Speaker has a plain duty to cooperate with LFO by opening his records to LFO within normal working hours and times. LFO in turn has a plain duty to make its work product available to the Legislator requesting it, prior to distributing it to anyone else, including the Speaker. Accompanying these duties the Legislator has a plain right pursuant to A.S.C.A. § 2.0601(b) to request information from the LFO, and to review the work product before it is distributed to anyone else.
II. Petitioner's Right as a Private Citizen
The writ of mandamus is meant to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief, and if the defendant owes him a clear, indisputable, and non-discretionary duty.
A. Individual Right or Held in Common with the Public?
Petitioner claims a right to the sought information because it is public record. This argument gives rise to the question of whether petitioner impermissibly seeks to enforce a right which he holds in common with the public.
The Supreme Court of Maine granted a writ of mandamus in Robbins v. Bangor Ry., 62 A. 136, 139 (Me. 1905), holding that each and every building owner had an individual right to utility service at a reasonable rate, and that this right was individual, and not held in common with the public. The Robbins court further explained that the petition may not be granted to enforce rights which are common to everyone and enjoyed by the public at large.
A similar issue arose in Mellinger v. Khun, 130 A.2d 154 (Pa. 1957). In that case, the appellant was incensed at receiving a citation after the parking meter adjoining his vehicle had expired, when he saw that a lunch wagon parked in the same lot for 39 hours continuously had not been *50cited. Id. at 155. The appellant sought a writ of mandamus to compel prosecution of the owner of the lunch wagon. The Mellinger court held that the benefit of open parking spaces (protected by the enforcement of time limitations) was a right which appellant held in common with the public at large and not an individual right which he was entitled to enforce on a particular occasion. The petition was therefore denied.
The question arises whether Petitioner's petition is closer to the Robbins case, where petitioner's "personal and particular rights have been invaded beyond those that he enjoys as part of the public, and that are common to everyone," Robbins, 62 A. at 139, or whether it is closer to the facts in Mellinger, where the petitioner sought to enforce the rights of the public in general. We find the facts closer to Robbins.
Public policy may be in place to make it more likely that one can find a parking space, but a writ of mandamus may not compel that the policy be enforced whenever a particular individual is frustrated at being unable to find a space on any given occasion. A parking space is not an individual guarantee. One may compel a utility to deliver service because, unlike a parking space, he/she has an individual right to that service.
If the information Petitioner seeks is public record, it may be argued that each and every member of the public has an individual right to review it, subject to the balancing principle discussed below, just as every building owner has an individual right to utility service in Robbins.2
*51B. Financial Reports of the Legislature Public Record
Any record which is required by law to be kept, or is kept in furtherance of some other duty required by law, or which is meant to setVe as a memorial of something done by a person in his/her capacity as a public official, is a public record. Nero v. Hyland, 386 A.2d 846, 851 (N.J. 1978); Mathews v. Pyle, 251 P.2d 893, 895 (Ariz. 1952). It is arguable that an "official record" is one kept pursuant to the official duty of a particular officer, even if not specifically mandated by statute. Fargnolli v. Cianci, 397 A.2d 68, 76 n. 9 (R.I. 1979).
A.S.C.A. 10.0603 states:
Except as otherwise limited by law, the Legislature shall have full authority and control the request, approval, and disbursement of funds in its budget. The Legislature shall be fully responsible for maintaining proper record-keeping and management over the expenditure of funds (emphasis added).
The foregoing language is an explicit requirement that the Fono keep the records requested by Petitioner. Since the Fono is required by law to keep financial records, such information is "public record.1,3
C. The Effect of Public Record Status
Under the common law of access to public documents, the right to review public records is not absolute. Nero, 386 A.2d at 851. The law *52requires that the interests of the individual seeking the record be weighed against the public interest in confidentiality. Nero, 386 A.2d at 851-52. This balancing principle is very important in this proceeding, since mandamus requires that the petitioner's right to the relief be clear and indisputable. Mulitauaopele, 24 A.S.R.2d at 99. This standard therefore requires that the balance of interests be so clearly in Petitioner's favor as to be beyond dispute.
The Speaker contends that he initially withheld the requested information from Petitioner because the Inspector General of the U.S. Department of the Interior ("IG") was preparing to audit the Fono, and would need the records for that purpose. Private individuals cannot assert priority over public officials in the use of public documents for purposes such as auditing. Bruce v. Gregory, 423 P.2d 193, 197 (Cal. 1967). In the present case, however, the audit is now complete and the Speaker persists in his refusal to release the information prior to the issuance of the IG's report, on the ground that he wishes to prevent public misinformation about the contents of the records. The Speaker declines to decide whether he is willing to release the records after the IG’s report is issued. We find the Speaker's argument to be wanting in merit. While we readily acknowledge that the public has an interest in receiving accurate information, it is positively dangerous to allow high ranking government officials to act as the supreme umpires of truth by arbitrarily withholding information regarding the expenditure of public funds.
A second consideration which the Speaker asks the court to weigh against Petitioner's right to view the records is that personnel records contain social security numbers, birth dates, and other personal data. Where a record contains some private information, mingled with public information, mandamus may compel an official to allow supervised copying of the public portions of the record while omitting the private. Gleaves v. Terry, 25 S.E. 552, 553-554 (Va. 1896). Accordingly, this argument is not conclusive in the Speaker's favor.
III. The Respondent's Duty to Disclose the Information
A. Does the Duty Exist? Who Performs it?
A duty to disclose the information exists if: (1) the information is public record; and (2) Petitioner's interest in the information outweighs any public interest in preventing disclosure of the information; or (3) the Constitution or statute is read to require disclosure.
*53Having established the existence of the duty, the question remains as to whom the duty is upon. The duty to distribute information to Legislators is upon the LFO pursuant to A.S.C.A. § 2.0601(b). In turn, the Speaker has a duty to disclose information requested by the LFO pursuant to A.S.C.A. § 2.0602.
Where the right to view a public record is established, mandamus may compel disclosure of the record by whomever is preventing such disclosure. Ex Parte Uppercu, 239 U.S. 435, 440 (1915).
B. Is the Duty Ministerial?
A writ of mandamus may not compel the reversal of a decision of a legislative leader, exercising the proper discretion of his legislative capacity. State v. Bolte, 52 S.W. 262 (Mo. 1899) (court refused to grant the writ where presiding officer of senate refused to sign a bill certifying its passage, after he ruled that it lacked a constitutional majority). Where the required act of a legislative leader is purely ministerial mandamus may lie to compel it. Kavanaugh v. Chandler, 72 S.W.2d 1003, 1005 (Ky. 1934) (writ should issue where Constitution directed president of the senate to sign a bill under specified conditions, and he failed to do so in the presence of such conditions); State v. Osburn, 147 S.W.2d 1065, 1068 (Mo. 1941) (Speaker of the House did not have discretion to refuse to declare the presumptively correct result of an election, even where there was a potentially valid dispute and protest to be filed). A duty is purely ministerial when it is mandatory and the officer has no discretion in the matter. Id. It is abuse of judicial discretion to direct performance of an action when an officer's duty requires the exercise of discretion. Cartwright v. Sharpe, 162 N.W.2d 5 (Wis. 1968). The same rule applies to legislative clerks regarding management of legislative records. Stewart v. Wilson Printing, 99 So. 92, 95 (Al. 1924).
The Speaker has discretion to subject the right to inspect public documents to reasonable rules and regulations. Bruce, 423 P.2d at 199. The speaker clearly has no discretion to refuse to cooperate with LFO; nor to deny a request for public documents in his custody, absent a legitimate public interest in confidentiality which outweighs the individual's right to inspect the documents. The Speaker's duty to allow inspection of public documents by Petitioner in accordance with common law, and by the LFO as a matter of statutory law, is therefore ministerial.
*54C. Separation of Powers
Any action by the judicial branch of government to compel action by a legislative leader must be undertaken with pause and reflection in order to prevent judicial encroachment into legislative affairs. The cloak of immunity shielding the legislative branch of government from judicial intervention does not, however, extend to duties of a purely ministerial character. State v. Osburn, 147 S.W.2d 1065, 1070 (Mo. 1941).
In Clough v. Curtis, 134 U.S. 361 (1890), the United States Supreme Court considered whether a writ of mandamus should issue to compel the Secretary of the Territory of Idaho to release and amend documents purporting to be the record of proceedings of the territorial legislature. According to the plaintiffs, several members of the Territorial Legislature remained in chambers after the session had adjourned one evening, elected a Speaker of the House and a President of the Council, and passed 17 bills. Id. at 574. All of these proceedings were duly recorded by the Clerk of the House and transmitted to the Secretary of the Territory. Id. at 574.
A unanimous court held that it was not necessary to correct the record, or to decide whether the relevant body was a lawful legislative assembly. The Court found that judicial intervention into legislative record-keeping would violate separation of powers principles where there was no actual suit pending to adjudicate the rights of private parties which hinged upon the questionable legislation. Id. at 577.
Although the present case is arguably analogous and that issuance of the writ would amount to meddling in legislative record-keeping, there are some important differences. First, Petitioner is not asking that the records be modified, only that he be allowed to examine them. Second, the present matter does call for an adjudication of rights, since Petitioner is attempting to adjudicate an individual right to view the documents, and not merely to settle a legal question about the powers of the Speaker. Furthermore, the old English rule that a person's right to examine public records is contingent upon the prospective use of those records in a legal proceeding, has been replaced by the balancing test which weighs the interest of the individual in seeing the records against the interest of the community in keeping them.confidential. Nero, 386 A.2d at 851-52.
IV. Other Avenues of Relief
House Rule VI § 1 provides, "Any ruling by the Chair may be appealed to the entire membership and overruled by a majority of the members *55elected and serving." At first glance, this rule may seem to provide a means of appealing the Speaker's decisions regarding the distribution of financial information. On further reflection the rule appears to be a means of appealing a committee chair's rulings or rulings by the Speaker regarding matters of parliamentary procedure and conducting legislative business, not a means of enforcing the Speaker's ministerial duties. Furthermore, evidence at the hearing seemed to indicate that efforts to compel the Speaker to release the records were somehow blocked by the Speaker's silence.
The question has also been raised whether declaratory relief is an adequate alternative remedy. American Samoa's declaratory relief statute, set forth in A.S.C.A. § 43.1101, reads in relevant part:
Any person . . . who desires a declaration of his rights or duties with respect to another . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an action in the trial division of the High Court for a declaration of his rights and duties .... The court may make a binding declaration of such rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force of a final judgment.
Accordingly, this court could potentially make a formal declaration of Petitioner's rights and Respondents' duties relative to those rights instead of issuing a writ of mandamus. The Second Circuit, lead by the venerable Judge Learned Hand, held that all judgments are in a sense, "declaratory" of the rights of the litigants, but a "declaratory judgment" in the legal sense is a judgment that calls for a broad "adjudication of rights other than those on which the immediate relief is dependent." Corcoran v. Royal Dev., 121 F.2d 957, 958-59 (2d Cir. 1941). A judgment is not "declaratory" if it declares no more than is necessary to sustain the immediate relief prayed for. Id. As Respondents'concede, a declaratory judgment in this case would have the same effect as a writ of mandamus, in compelling the Speaker and the LFO to release House financial records. Petitioner does not ask for a declaration of his rights beyond what is necessary to decide this particular cause of action. Therefore a declaratory judgment is not an available remedy. Furthermore, a judicial declaration as to the powers of the Speaker without regard to underlying private rights affected by those powers, would surely be tantamount to judicial intervention repugnant to the separation of powers doctrine. See Clough v. Curtis, 134 U.S. 361 (1890).
*56CONCLUSIONS
The Petitioner has a right to gain information regarding the financial affairs of the House of Representatives through the LFO, and the Speaker has a duty to cooperate with the LFO in its investigation. The Petitioner has a right to have his request for information and resulting work product kept confidential until he has reviewed the work product.
House of Representatives financial records are public record documents, and Petitioner has a common law right to review them since his interest in viewing them is not outweighed by a public policy interest in their confidentiality. If private information such as social security numbers and birth dates appear within these documents, the Speaker has the right to demand that the inspection be supervised to see that such private information is not copied.
ORDER
On the foregoing, Mandamus shall issue directed to respondents, commanding:
1) the Speaker and his office to provide the LFO with a "breakdown of information concerning the 1994 House budget expenditures, ” as originally requested by Petitioner if such a breakdown exists. If a breakdown of expenditures does not exist, the Speaker and his office must make such information available as will be required for the LFO to create such a breakdown;
2) the LFO to present the results of its investigation to Petitioner within a reasonable time, not to exceed thirty (30) days, unless otherwise extended by the court; and,
3) the Speaker and his office to allow Petitioner to examine and copy any existing "breakdown of information" concerning House expenditures for 1994.4 The Speaker may, if he chooses, require that the review be *57supervised in order to secure the integrity of the House's records and to prevent the copying of confidential personal data of House personnel such as birth dates and social security numbers, or to see that such information is blocked out on the copies.
It is so ordered.
The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. United States v. Ballin, 144 U.S. 5 (1892); see by analogy 28 U.S.C.A. § 2072 ("Such [procedural] rules shall not abridge, enlarge, or modify any substantive right. . . .").
This position was rejected in Nowack v. Fuller, 219 N.W. 749, 751 (Mich. 1928):
[I]n the instant case, the plaintiff as a citizen and taxpayer has a common-law right to inspect the public records in the auditor general's office, to determine if the public money is being properly expended. It is a right which belongs to his citizenship. It is a right which he holds in common with all other citizens, a public right, which can be enforced only by mandamus proceedings brought by the Attorney General. It is not and never has been the policy of the law to permit private individuals to the use of the writ of mandamus against public officers, except in cases where they had some special interest not possessed by the citizens generally.
(Citations omitted.) The Nowack Court, however, granted the writ to a private citizen, based on a "special interest” arising from facts very similar to those in the present case:
The plaintiff has not sought to enforce his rights through the office of the Attorney General. He has begun this suit in his own name. In order to maintain it, he must show that he has a special interest, not possessed by the citizens generally. Apart from his public interest, his petition shows that he has been hampered and injured in his business *51by the refusal of defendant to allow him to inspect the records in his office. Is it a sufficient interest to entitle him to the aid of the court by this writ of mandamus? We think so. He is the manager and editor of a newspaper. It is published and circulated in Michigan. He sells news to the people through the medium of his paper. In a proper and lawful manner, he has a right to publish matters of public interest. The citizens and taxpayers of this state are interested in knowing whether the public business is being properly managed. By denying him access to the public records for the purpose of securing such information, he is deprived of legal rights for which he is entitled to redress by the writ of mandamus.
Id. at 451-52. Certainly, if publishing a newspaper to inform citizens regarding "public business" creates a "special interest" enforceable by a writ of mandamus, serving as a Representative and performing "public business" must also be a "special interest."
Legislative journals are public record. Amos v. Moseley, 77 So. 619, 621 (Fla. 1917).
In Petitioner's letters to the Speaker and to the LFO he requests a "breakdown of information concerning the 1994 House budget expenditures," which seemed to indicate that he desired an accounting of expenses. At the hearing, Petitioner surprised the Speaker by asking for travel and expense receipts, personnel records and other such documents not specifically demanded prior to the hearing. Frankly, we are not entirely sure that we understand the particulars of Petitioner's request. Since the Speaker has not had an opportunity to respond to these requests, they are not properly the subject of judicial inquiry at this time. If Petitioner wishes to pursue a request for such documents, he should request *57them from the Speaker with sufficient specificity that the Speaker knows precisely what information is being requested. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486308/ | Order Granting Motion for Relief From Order Staying Execution Upon Judgment:
PROCEDURAL HISTORY
Plaintiff Development Bank of American Samoa ("DBAS") obtained a writ of execution on October 18, 1994, and several writs of garnishment on *58October 31, 1994, against defendants.1 This court issued the writs on the belief that defendants' ground lease with the American Samoa Government ("ASG") for land ("ground lease"), upon which the premises known as die "Seaside Garden Club" were located, had expired.
On November 18, 1994, defendants filed a motion to stay execution of the writs on the basis that their ground lease with ASG was still in existence. At the hearing on the motion, both parties stipulated to having previously made a mistake about the existence of the ground lease. On the basis of this stipulation that the ground lease was still in existence, we issued an order on March 18, 1995, which granted defendants' motion, quashed the existing writ of execution and writs of garnishment, and stayed any further execution upon the judgment except by further order of this court.
On March 31, 1995, DBAS filed a motion for relief from the order staying further execution upon judgment claiming that defendants' ground lease had terminated and that the stipulation was incorrect. On April 28, 1995, defendants filed their opposition to DBAS's motion for relief. On May 1, 1995, the motion came regularly for hearing, and all parties were represented by counsel.
DISCUSSION
The sole issue before us today is whether or not defendants' ground lease with ASG still exists. Despite this court's previous belief and the confusion among the parties themselves, we find that defendants' ground lease expired on its own terms on September 29, 1991, and was at no time extended or renewed in accordance with the law.
Defendants assert that in a letter dated January 3, 1990, then Acting Governor Galea'i Poumele ("Acting Governor") extended the ground lease for 10 years, until 2001.2 Defendants argue that this letter is a valid extension of the ground lease and enforceable under the law.
DBAS asserts that in a letter dated February 17, 1995, the Chairman of the Real Property Management Board, who is also the Attorney General *59of American Samoa, stated that the Acting Governor's letter did not give rise to a contract and that the ground lease expired on its own terms in 1991. This position is correct. The original ground lease did not contain a clause allowing for a second option or a right to extend the lease. Therefore, defendants would have needed to execute a new lease with ASG. The Acting Governor's letter does not constitute a new lease, but is merely a letter written in response to an alleged request by defendant HC Fanene Scanlan to extend the lease. This request has not been submitted into evidence by any of the parties. In fact, the expired ground lease has been neither extended nor renewed, and no new lease has been signed by the parties and registered with the territorial registrar.
ORDER
On these facts, our order of March 18, 1995, which quashed the writ of execution, writs of garnishment and stayed any further execution upon the judgment, was based on a false premise and a mistaken stipulation by the parties. Accordingly, we hereby grant DBAS's motion for relief from order limiting further execution upon judgment. The writs obtained by DBAS are no longer quashed and the stay limiting further execution upon judgment is removed.
It is so ordered.
The writs were issued upon the judgment entered in this action on December 6, 1988, in favor of DBAS against defendants for debts incurred.
According to the original ground lease filed with the Territorial Registrar, the lease was executed by ASG, lessor, and Sam Scanlan, lessee, for a 20-year term beginning on September 29, 1971, and ending on September 29, 1991. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486309/ | *61Opinion and Order:
Plaintiff G.M. Meredith and Associates ("GMA") commenced this action on December 7, 1990, to recover unpaid compensation for professional services rendered to defendant Blue Pacific Management Corp. ("Blue Pacific"), as the agent of Pago Plaza ("Plaza"). Blue Pacific counterclaimed for damages related to the installation of a skylight at the office building owned by Plaza. GMA was granted partial summary judgments, entered on April 27, 1992, and October 20, 1992, for its claim. Those judgments were paid, leaving only Blue Pacific's counterclaim at issue. Trial on the counterclaim was held on September 15, 1994. The parties' principals, GMA's George M. Meredith ("Meredith") and Blue Pacific's James L. McGuire ("McGuire"), and their counsel were present.
FACTS
On December 1, 1986, McGuire, as Plaza’s agent, and Peter G. Morley ("Morley"), then in immediate charge of GMA's office and operations in American Samoa, negotiated an agreement for GMA's professional services to Plaza. They agreed to charges on an hourly basis for various services performed. They contemplated using GMA's services for several specific projects, including a skylight over the interior courtyard, at Plaza's office building in Pago Pago, American Samoa. McGuire memorialized this agreement by his letter, dated December 3, 1986, to Morley. No formal owner-architect agreement was entered.
GMA assigned Richard Frey ("Frey"), an architect at its American Samoa office, to the skylight project. McGuire and Frey discussed the project, including but not limited to a requirement that the skylight would be built to withstand hurricane-strength winds. By October 1987, Frey had completed the skylight's design, and GMA had prepared the procurement package, consisting of instructions to bidders, a bid form, and an owner-contractor agreement, for its installation, Hawkeye Construction ("Hawkeye") was awarded the contract to do the installation work. Frey supervised the ordering of the specified materials, and during a 10-day period in 1988, Hawkeye performed the work, in accordance with GMA's design and under Frey's architectural oversight.
During the evening of February 2, 1990, Plaza's office building was struck by Hurricane Ofa's rain and heavy winds. The skylight was blown from its mountings, starting at 8:00 to 9:00 p.m. The plastic panels were ripped from their fastening bolts. Some were gone completely. Others *62remained dangling from the roof.
Later Plaza replaced the skylight with one of substantially superior strength. It survived Hurricane Val's winds in December 1991. The replacement costs were:
Roof repairs $ 700
Skylight design 3,000
Skylight materials 13,700
Excise taxes 558
Labor 3.500
Total $21,458
STANDARD OF CARE
The standard of care for an architect is set forth with clarity in First Nat. Bank of Akron v. Cann, 503 F. Supp 419, 439 (N.D. Ohio 1980).
An architect is under a duty to his employer to use the skill and diligence that is ordinarily exercised by architects. Thus, an architect does not guarantee a perfect plan, but is liable only for a failure to exercise reasonable care and diligence exercised by one in the in the profession.
See also Noble v. Worthy, 378 A.2d 674, 676-77 (D.C. 1977). This standard may be breached, notwithstanding the fact that the type of injury is "commonplace," where the injury was within "the realm of foreseeability." Mead v. Kings Supermarket, 366 A.2d 979 (N.J. 1976). Whether the standard of care is determined on the basis of standard practice in the industry or upon foreseeability of the harm, an architect must be evaluated on the basis of technology available at the time he/she performed the work. Cann, 503 F. Supp. at 439.
The existence and scope of an architect's duty to supervise the implementation of plans or work methods must be determined from contractual terms, or, in their absence, from the architect's actual conduct. Walters v. Kellam & Foley, 360 N.E. 2d 199, 206 (Ind. 1977). The conventional rule for determining an architect's duty to supervise the implementation of his/her design is that an architect's supervisory duty is limited to the implementation of the architectural plan, and does not include supervising the contractor's method of doing the work unless otherwise specified by the parties. Lukowski v. Vecta Educational, 401 *63N.E. 2d 781, 785 (Ind. 1980) (construing Day v. National United States Radiator, 360 N.E. 2d 210-11). We do not believe that the distinction between the supervision of design implementation and the supervision of work method is a meaningful one, and we decline to adopt it in this jurisdiction.
We do hold, however, that the burden to establish the scope of supervision demanded by the profession rests upon the counterclaimant. Id.
No evidence was presented, however, establishing what scope of supervision the professional standard demanded. Thus, it is not possible to conclude that GMA was under a positive legal duty imposed by law to supervise the project in such a manner that the problems would have been discovered. Cann, 503 F. Supp. at 439. The standard of care is ordinarily provided by expert witnesses who testify to the customs or prevailing standards of the profession. Noble, 378 A.2d at 676-77.
DISCUSSION
We decide this case on a theory of res ipsa loquitur. The Restatement (Second) Of Torts, § 328(D)(1) outlines the prima facie elements of a case for res ipsa loquitur.
It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.
The fact that a rebuilt structure survived a second hurricane is evidence that due care was not used in building the original structure that was destroyed by a prior hurricane. See Watt v. United States, 444 F. Supp. 1191, 1194-95 (D.D.C. 1978) (the fact that millions of museum patrons had safely climbed the stairs where plaintiff was injured does not give rise to a conclusive presumption of the architect's due care); Hecht v. Harrison, 137 F.2d 687 (D.C. Cir. 1943) (the fact that thousands of customers had walked safely through aisle where plaintiff was injured does *64not prevent a jury from finding lack of due care by store owners).
To strengthen this conclusion, we note T.C.R.Ev. 201(b) which reads:
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonable be questioned.
It is generally known in the Territory of American Samoa that Hurricane Val was stronger and more destructive than Hurricane Ofa in the harbor area where Pago Plaza is located. It is also generally known that Hurricane Ofa was more damaging in the Tafuna area, some distance away from Pago Plaza. Accordingly, we take judicial notice of the fact that Hurricane Val struck Pago Plaza with greater force than Hurricane Ofa.
The skylight in question was destroyed by Hurricane Ofa, but the skylight which replaced it survived Hurricane Val. Since we have taken judicial notice of the fact that Hurricane Val struck Pago Plaza with greater force than hurricane Ofa, there is a strong presumption that the skylight destroyed by Hurricane Ofa suffered from a design defect.
Although we have no expert testimony as to the standards of the architectural profession, we find, on grounds of foreseeability, that GMA had a duty to design a skylight to survive hurricanes of ordinary strength. See A.S.C.A. § 26.1C02 (this section anticipates hurricane strength winds, and implicitly requires that those designing buildings plan for the inevitable hurricanes in our region). Since the threat of hurricanes is an important consideration in any building project in our region, destruction of a skylight by hurricane is something which would not ordinarily happen unless the designer was negligent in his/her duty to plan for a hurricane of ordinary strength.
Further, we find from the context of GMA's relationship with Blue Pacific that GMA was responsible to supervise the installation of the skylight in accordance with its plan. The fact that GMA had sole supervisory control of the design and installation of the skylight compels the conclusion that explanations for the destruction of the skylight, other than GMA's negligence, are sufficiently eliminated.
In summary: (1) GMA had a duty to design and supervise installation of *65the skylight to withstand hurricane strength winds; (2) failure of a skylight to survive a hurricane of ordinary strength normally indicates a neglect of this duty; (3) GMA was responsible for both the design and the supervision of the skylight's installation; (4) a subsequent skylight withstood a hurricane of substantially greater force than the one that destroyed the skylight designed by GMA; and (5) the destruction of a skylight by hurricane is directly within the scope of potential injuries giving rise to the duty to design the skylight to withstand such disasters. Based on a theory of res ipsa loquitur, we find that GMA was negligent with respect to its duty to design and adequately supervise the construction of Plaza's skylight which was destroyed by Hurricane Ofa.
THE MEASURE OF DAMAGES
Expectation damages are the proper measure of damages' for an architect's malpractice.
The appropriate measure of damage [for professional malpractice by an architect] is the reasonable cost of material and labor required to place the building in the condition contemplated by the parties- at the time they entered the contract. The Bank is entitled to "the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste."
Cann, 503 F. Supp. at 441 (quoting , Restatement (first) Of Contracts, § 346(l)(a)(i) (1932); citation omitted).
With respect to the replacement costs for the skylight, we are not persuaded that the payment of excise taxes by Blue Pacific in the amount of $558.00 was legally required. Any remedy for payment of such taxes is against the American Samoa Government and not GMA. We therefore decrease Blue Pacific's requested damage award by that amount, but require GMA to pay Blue Pacific $20,900 in damages for negligence in the design and construction supervision of the original skylight at Plaza's office building.
Judgment shall enter accordingly.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486310/ | Order Granting Motion for Summary Judgment:
FACTS
Plaintiff Gary W. Bradcock ("Bradcock") was injured on January 7, 1992, while returning to the vessel where he was employed as Chief Engineer, and alleges that the injury resulted from an attack by an unknown assailant wielding a golf club. Bradcock claims that defendant, American Samoa Government ("ASG"), was negligent in the duty to provide adequate security for the waterfront area.
On September 30, 1993 Bradcock filed a government tort claim with ASG pursuant to A.S.C.A. § 43.1202 et seq. This claim was effectively denied on December 30, 1993, because three months had elapsed since the filing of the claim with no reply by ASG. A.S.C.A. § 43.1205(a). On October 25, 1994, Bradcock filed this action. On January 6, 1995, ASG moved *67for summary judgment on the ground that the two-year limitation period prescribed in A.S.C.A. § 43.1204 had expired.
STANDARD OF REVIEW
Summary judgment is appropriate where there is no issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. T.C.R.C.P., Rule 56. It may be invoked only when "no genuine issue as to any material fact" exists. Anderson v. Liberty Lobby, 477 U.S. 242, 247-250 (1986); Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). To determine that no material fact exists, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material are presumed to be true, and that all inferences are construed in a light most favorable to the non-moving party. Ah Mai v. American Samoa Gov't, 11 A.S.R. 2d 133, 136 (Trial Div. 1989); see also Lokan v. Lokan, 6 A.S.R. 2d 44, 46 (Trial Div. 1987); U.S. v. Diebold, 369 U.S. 654 (1952)
DISCUSSION
The issue of whether Bradcock's petition is barred by the statute of limitations is determined by the date his claim accrued, and whether the filing of his prerequisite administrative claim with ASG under A.S.C.A. § 43.1205 constituted the commencement of an action within the meaning of A.S.C.A. § 43.1204, thereby tolling the statute of limitations. In support of his opposition to ASG's motion, Bradcock cites Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 55 (Trial Div. 1990), for the proposition that for purposes of A.S.C.A. § 43.1204, his claim only accrued when his administrative claim was denied, on December 30, 1993.
I. Claim Accrual
In Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 49 (Trial Div. 1990), plaintiffs filed an administrative claim within two years of plaintiff's injury, but at a time when less than three months of the two-year period remained. The Attorney General denied the claim after the two-year period following the injury had lapsed. Id. at 49.
These facts presented the issue of whether a government tort claim accrues at the time of injury or on the date that the administrative claim is denied. On this question, "we [held] that for purposes of A.S.C.A. § 43.1204 a claim accrues when the administrative claim is denied." Id. at 55. The continuing vitality of this holding, however, has been questioned *68in dicta in Randall v. American Samoa Government, 19 A.S.R.2d 111, 116 (Trial Div. 1991), pointing out that it could "have the odd effect of giving injured persons an indefinite amount of time in which to sue, since the Government Tort Liability Act does not specify a time limit for bringing administrative claims." While making its ruling the Mataipule court also expressed concern that such a ruling might allow a plaintiff to "dawdle indefinitely" without worrying about the limitations period. Mataipule, 16 A.S.R.2d at 53. To answer this concern, the Mataipule court declared that plaintiffs carry a legal duty to file administrative claims within a "reasonable time" or they will be barred by the doctrine of laches. Id. at 55. The Randall Court pointed out that, even if "a separate two-year limit for bringing the administrative claim could be imposed by analogy, the effect would be to give people injured by government employees four and one-half years to sue, in curious contrast to the two years given those who have been injured by private persons." Randall, 19 A.S.R.2d at 116. This scenario may well be the practical result of the Mataipule rule, which may someday need to be revisited.1 In the present case, the suit was filed two years, nine months and seventeen days following the accident. Bradcock waited almost twenty-one months before filing his administrative claim, and after it was denied, waited almost 10 months to file this lawsuit. If we permit Bradcock to file his claim twenty-one months after the injury, and then allow him a fresh two years after the claim's denial to file his lawsuit, the result would, indeed, be to provide a four-year statute of limitations as feared in Randall, at 116. We need not reach the question of overruling Mataipule since Bradcock's claim is barred by the doctrine of laches, regardless of whether we hold that it accrued at the time he knew the essential facts about his injury, as suggested in Randall.
*69
11. Tolling
Mataipule's "alternative holding," which was embraced in Randall, 19 A.S.R.2d at 117, is clearly valid law, and was a sufficient basis in itself for the decision in Mataipule.
The administrative claim was required by statute as part and parcel of plaintiffs remedial course, which would culminate in a lawsuit upon an unfavorable administrative decision. We hold that filing the claim with the Attorney General constituted the beginning of an action within A.S.C.A. § 43.1204, as the administrative claim was not an independent action but was the first and mandatory step in plaintiffs recourse to the courts.
Id. at 56. The foregoing rule operates to toll the statute of limitations during the period that a timely filed claim is before the Attorney General. Randall, 19 A.S.R.2d at 117; Mataipule 16 A.S.R.2d at 56. Since one year, eight months and 23 days passed between Bradcock's injury and his administrative claim, and more than nine months passed between denial of the administrative claim and this lawsuit, we hold that the two-year limitation period had expired when Bradcock filed the action and is, therefore, legally barred. Finding that Bradcock's claim is barred by laches regardless of its accrual date, and that he is late in filing this action even if the limitation period is tolled during the pendency of the administrative claim, the motion for summary judgment is granted.
It is so ordered.
If the Fono made a plain legislative pronouncement creating a limitation period for the filing of an administrative claim under the G.T.L.A., and indicating the time period after denial of the administrative claim within which a lawsuit must be commenced, this conjecture and confusion about how to apply the statute of limitations, in light of the mandatory administrative claim, would be eliminated. As we stated in Mataipule:
The G.T.L.A. is apparently wanting and requires fixing, but that is a task constitutionally assigned to the Fono. Congress has clarified the enactments dealing with government tort liability at the federal level. The G.T.L.A. only partly reflects its federal counterpart in that the imposition of an administrative review requirement was not accompanied by a corresponding change in the limitations period.
Mataipule was decided almost five years ago, but the Fono has apparently not picked up our cue. We believe, however, that until the legislature exercises its line-drawing function, the exercise of enforcing the statute of limitations in light of G.T.L.A.'s administrative review requirement will remain a hazardous one. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486311/ | Order Denying Motion for Summary Judgment:
HISTORY
Plaintiff Emma Randall ("Plaintiff") claims injuries to her person allegedly resulting from an assault by an inmate at the Tafuna Correctional Facility on or about September 28, 1992. Plaintiff claims that defendants, American Samoa Government and Does 1 & 2 (together "ASG"), were negligent in the duty to provide adequate security for her visit to an inmate at the facility.
Plaintiff filed a government tort claim with ASG pursuant to A.S.C.A. § 43.1202 et seq. by registered mail September 21, 1994. The Attorney General received the complaint September 29, 1994. We are guided by *71T.C.R.C.P. 5(b) which provides that "[s]ervice by mail is complete upon mailing." Accordingly, the day upon which the complaint is considered to be filed with ASG is September 21, 1994. Whenever service is by mail, six days are added to any deadline running from the service date which affects the rights or responsibilities of the party served. T.C.R.C.P. 6(e). Plaintiff's claim was, therefore, effectively denied December 27, 1994, because three months and six days had elapsed since the filing of the claim with no reply by ASG. A.S.C.A. § 43.1205(a). On September 27, 1994, Plaintiff filed this action. On January 6, 1995, ASG moved for summary judgment on the ground that this lawsuit was filed before administrative remedies were exhausted under A.S.C.A. § 43.1204(a) requiring its dismissal, and asserting that the two-year limitation period prescribed in A.S.C.A. § 43.1204 prevents the refiling of the lawsuit.
DISCUSSION
We refer the reader to our opinion in Bradcock v. American Samoa Gov't, supra, 28 A.S.R.2d 66 (Trial Div. 1995), announced contemporaneously with this decision, for our analysis regarding the date a claim or cause of action accrues for purposes of A.S.C.A. § 43.1204.1 Plaintiff filed both her administrative claim and her claim in this Court prior to the two-year anniversary of her injury, and on that basis we need not consider whether or not her claim accrued on the date of injury, as considered in Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 49 (Trial Div. 1990).
We further refer the reader to our analysis in Bradcock, supra, 28 A.S.R.2d at 69, holding that the statute of limitations is tolled during the pendency of the administrative claim. One year, eleven months and three weeks passed between Plaintiff's injury and the filing of her administrative claim. These facts potentially left Plaintiff with three months and one week to file her lawsuit after denial of her administrative claim. In actual fact, Plaintiff filed her lawsuit before the denial of her administrative claim.
ASG raises the issue of whether Plaintiff's filing of the lawsuit before exhaustion of administrative remedies requires us to dismiss the case for want of jurisdiction. We hold that it does not. Regardless of whether we had jurisdiction to hear the case when it was filed, we clearly have *72jurisdiction over it now, and to require that it be dismissed at this time for lack of jurisdiction would amount to placing formality over substance. Mataipule, made it clear that filing a complaint before administrative remedies have been exhausted, "failed to invoke the court's jurisdiction," but decided that such a filing "was sufficient to toll the statute," on the theory that filing an administrative claim constituted the "beginning of an action. ” Id. at 56.
In Gobrait v. Americana Hotels, 1 A.S.R.2d 1, 1 (Trial Div. 1978), we held that a complaint which was jurisdictionally deficient for failure to exhaust administrative remedies could be made sufficient by amending the complaint to indicate compliance with the Government Tort Liability Act. A dismissal for failure to indicate such compliance would be without prejudice to file another complaint. Id. at 2. In the present case, ASG contends that filing a new action would be barred by the statute of limitations, since the second anniversary of the injury occurred a week after the administrative claim was denied. See Randall v. American Samoa Gov't, 19 A.S.R.2d at 118. Under similar circumstances, it was argued in Randall I that if the Plaintiff attempted to amend the complaint, her amendment would relate back to the date of filing when the court could not properly exercise jurisdiction, and would thus be invalid. Id. Again, we think that this creative argument elevates form over substance. The relation back of amendments is a legal fiction designed to allow the correction of technical mistakes in pleading by amendment without violating the statute of limitations. Charles Alan Wright, Law of Federal Courts, 429-30 (4th ed. 1983). Accordingly, it would be improper for us to allow a questionable technicality about the relation back of amendments to deny a substantive right.
If ASG had moved for dismissal while the administrative claim was still pending, and if the motion had been granted, Plaintiff would be on notice that she needed to re-file her lawsuit again after denial of the administrative claim. We will not retroactively dismiss a lawsuit for lack of jurisdiction where we presently have jurisdiction. The time for the motion to dismiss for lack of jurisdiction was during the time that we did not have jurisdiction. T.C.R.C.P. 12(h)(3) requires, "Whenever it appears by the suggestion of the parties or otherwise that the court'lacks jurisdiction of the subject matter, the court shall dismiss the action." In the present case, it does not appear that the court presently "lacks jurisdiction of the subject matter."
Plaintiff is hereby ordered to amend her complaint to indicate an exhaustion of administrative remedies within seven (7) days of the entry *73of this order. At the time of such amendment, the motion for summary judgment is denied.
It is so ordered.
A.S.C.A. § 43.1204 provides: "A tort action against the government shall be forever barred unless an action on it is begun within 2 years after the claim accrues." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486312/ | Order on Motion to Dismiss Claim:
On October 29, 1992, Enele Fau ("Fau”) filed his claim to succession with the Territorial Registrar to the matai title Fau, attached to the village of Vailoatai. On November 17, 1992, Te'o L. Tavai ("Te'o") filed his objection and counterclaim to succession.
This matter came on regularly for hearing on May 26, 1995, upon Te'o’s motion to dismiss Fau’s claim to succession, on the grounds that the latter was ineligible to file his succession claim, not having resided in American Samoa for one calendar year immediately preceding the filing of his claim, *74as proscribed by A.S.C.A. § 1.0404(a).1 Te'o appeared with his counsel Asaua Fuimaono, while neither Fau nor his counsel of record, Levaula Kamu, appeared. The court having been satisfied that claimant's counsel was given actual notice of this motion and hearing date, the motion was duly considered.
On the evidence received, we find that Fau was at all relevant times a resident of Hawaii, and that he had not resided in American Samoa for at least one calendar year immediately preceding the filing of his succession claim to the matai title Fau.
On the foregoing, we conclude that claimant Fau was ineligible to file for succession to the matai title Fau, attached to the village of Vailoatai, since he did not meet the statutory residency requirement set out in A.S.C.A. § 1.0404(a). The motion to dismiss is, therefore, granted.
It is so ordered.
A.S.C.A. § 1.0404(a) states in relevant part: "[N]o one is eligible to claim or object to the succession of to the matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of the claim of objection. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486316/ | Order Denying Motion for Reconsideration, New Trial, or Relief from Judgment:
BACKGROUND
This action was brought by plaintiff American Samoa Government ("ASG") to evict defendants from a 72.72 acre plot of land ("the property") located within the original boundaries of the Pago Pago International Airport in Tafuna.
ASG plans to construct a stadium in time for the 1997 South Pacific Mini Games on a 16-acre, more or less, portion of the property, north of the public road between the airport terminal and Ili'ili. Defendants have cultivated and made other use of the 16-acre portion, apparently at least since ASG's lease of this portion to the Federal Aviation Administration ("FAA") was terminated in 1984, and claim, among other issues raised, that title to the property, or at least the 16-acre portion, was always vested *94in the Atualevao family as communal land or should revert to this family.
Originally, this court, in Fonoti Lalau v. G.A.S., LT 16-1957, slip op. (Apr. 11, 1958), determined that the Lemeana'i family owned this property. In a condemnation proceeding, In the matter of the Acquisition of Land for the Construction of Airport at Tafuna, LT 15-1959, slip op. (Dec. 28, 1959), ASG obtained fee simple title to approximately 550.83 acres, which included this property. This decision, which had the legal effect of transferring title to ASG, was affirmed by the Appellate Division of the High Court on May 31, 1960. On July 21, 1960, ASG paid the former title holder of the Lemeana'i family $18,856.61 as compensation.
In a failed attempt by defendant Atualevao Meredith to reclaim the 16-acre portion of the property, this court, in Meredith v. American Samoa Gov't, 2 A.S.R.2d 66, 68 (Land & Titles Div. 1985), aff'd AP 23-85, slip op. (1986), confirmed that once ASG condemned the land for a public purpose, it gained title in fee simple.
PROCEDURAL HISTORY
On May 25, 1994, ASG filed a complaint for trespass and injunctive relief with this court naming Meredith, Toaono Kelemete ("Kelemete"), and John Does 1-10 as defendants. That same day, ASG, in addition to the complaint, applied for a temporary restraining order, which was not issued, and preliminary injunction. On June 15, 1994, Kelemete filed a pro se answer and counterclaim. On June 22, 1994, at the hearing on the order to show cause, the court issued a stipulated temporary restraining order and associated orders.
The temporary restraining order prevented defendants from any new construction or farming where the stadium was to be built and allowed ASG to peaceably proceed with the stadium plans. On June 30, 1994, pursuant to one of those orders, Meredith and Kelemete filed a second answer by counsel. On July 7, 1994, at a further hearing on the order to show cause, a stipulated preliminary injunction, retaining the status quo, replaced the temporary restraining order.
On January 27, 1995, ASG filed a reply to Kelemete’s counterclaim and moved for summary judgment. On January 18, 1995, we issued an order granting ASG's motion for summary judgment. On May 4, 1995, defendants filed a motion for reconsideration or new trial with respect to the summary judgment, and apparently for relief from the 1959 condemnation judgment. On June 13, 1995, the motion came regularly for *95hearing. Both parties were represented by counsel.
DISCUSSION
I. Reversionary Right Under Constitution
In granting summary judgment, we held that the original Constitution of American Samoa did not contain a reversion provision. See REV. CONST. AM. SAMOA art. I, § 2 (1960). Defendants still contend that the original Constitution contained such a provision whereby condemned land would revert to a prior owner if ASG failed to use the land within three years after condemnation. Defendants base their belief that such a provision existed on a footnote to article I, section 2, of the Revised Constitution of American Samoa, which states:
Section [article I, section 2] formerly provided for payment "before" the taking of property and for reversion to owner after 3 years of non-user. H.C.R. No. 45, 10th Leg. 1st Spec. Sess., requested Secty. of Int. to revise the section to its present form. This was done at the time of ratification and approval on June 2, 1967.
This footnote mentions the existence of a reversion provision in the proposed Revised Constitution. If defendants would have researched the footnote further, they would have discovered that the reversion provision never became effective. The proposed Revised Constitution, which was approved by the Constitutional Convention, convened on September 26, 1966, and by a majority of the voters at the general election in 1966, included the reversion provision. However, before it was signed by the Secretary of the Interior, the Tenth Legislature of American Samoa passed H.C.R. No. 45,1 requesting the Secretary of the Interior to delete the reversion provision. On July 1, 1967, the Secretary of the Interior signed the Revised Constitution, subject to the deletion of the reversion provision in article I, section 2.2 Thus, the reversion provision never took legal *96effect.
II. Reversionary Right Under Statute
Defendants also claim a reversionary right under A.S.C.A. § 37.2001(b), which amended § 37.2001. It states in relevant part: "[i]f the subject land is not used for the stated public purpose within five years after condemnation it must be returned to the prior owner with all improvements." Prior to the effective date of this amendment in 1989, the laws of American Samoa, in the 1949 Code of Laws of the Government of American Samoa and all following codes, did not contain a provision that required ASG to use condemned land within a specific term of years.
In granting summary judgment, we held that this statute had no retrospective effect and did not apply to LT 15-1959. Defendants concede that A.S.C.A. § 37.2001(b) has no retrospective effect, but now seem to argue that it prospectively applies to ASG's failure to use the condemned land from 1988 to 1994. We disagree. Defendants' understanding of A.S.C.A. § 37.2001(b) is legally and factually incorrect.
First, the plain language of A.S.C.A. § 37.2001(b) restricts it from applying to a condemnation proceeding that occurred before its passage into law. It states that ASG must specify the public purpose in the "proposed condemnation" and use the land "within five years after condemnation" (emphasis added). The condemnation proceeding at issue in this matter was completed about 30 years prior to the enactment of A.S.C.A. § 37.2001(b). For the statute to apply in this case, it would have to state that "ASG must use condemned land within five years of the passage of the statute." This is not the case.
Second, defendants' belief that A.S.C.A. § 37.2001(b) became effective in 1988 is factually incorrect. The legislative history of A.S.C.A. § 37.2001(b) clearly shows that its second enactment, as is constitutionally required, Rev. Const. Am. Samoa, art. I, § 3 and art. II § 9, by Pub. L. 21-24, was approved by the Governor of American Samoa on October 24, 1989, and became effective on November 19, 1989. Since ASG began clearing the condemned land for construction of the stadium in January 1994, less than five years from the date A.S.C.A. § 37.2001(b) became effective, the statute would not be applicable even if it had prospective effect.
*97
Ill, Public Purpose
Defendants claim that the property should revert to them since ASG's plan to construct a stadium on the property is inconsistent with the stated public purpose for which the property was condemned. We disagree. ASG has the authority to alter or modify the public purpose in order to satisfy some other public use, as required by ASG's needs. Meredith, 2 A.S.R.2d at 67 (court held that use of the property for rock crushing operations did not revert title back to the original owners); Arechiga v. Housing Authority, 324 P.2d 976 (Cal. 1958) (court upheld the right to sell condemned land to another); Seattle Land & Improvement Co. v. City of Seattle, 79 P. 780, 781 (Wash. 1905) (court held that the city of Seattle had the authority to modify the public use of land it condemned, unless the property was donated by a private party for a specific restrictive use).
ASG has used the property for the original stated public purpose, and for both related3 and unrelated purposes, for a number of years, and may use the property for another public purpose it now deems necessary.
IV. Unjust Compensation Claim
Defendants claim that the $18,857.61 the Lemeana'i family received from ASG as compensation for the property was unjust. In granting summary judgment, we held that this argument was untimely since defendants' appeal rights regarding the issue of just compensation were exhausted and forever barred by res judicata. "The sum and substance of the whole doctrine [of res judicata] is that a matter once judicially decided is finally decided." Massie v. Paul, 92 S.W.2d 11, 14 (Ky. 1936).
Throughout these proceedings, defendants have failed to understand why their appeal rights regarding the issue of just compensation are barred by res judicata. In granting summary judgment, we pointed out the fact that defendants did not raise the issue of just compensation in Meredith. In turn, defendants misinterpreted this statement to mean that they must retain such a right of appeal. This is incorrect. During the condemnation proceeding, LT 15-1959, slip op. (Dec. 28, 1959), the parties were allowed to submit evidence on the actual location and monetary value of the Lemeana'i family land. Upon review of this evidence, the court awarded the Lemeana'i family $18,856.61 in compensation, which the *98former titleholder received shortly after the decision was affirmed. This decision was affirmed by the Appellate Division of the High Court on May 31, 1960. From this date forward, defendants' appeal rights regarding the issue of just compensation were barred by res judicata.
Even if defendants had raised the issue of just compensation in Meredith, it would have been barred by res judicata. Meredith involved separate and distinct issues arising out of events occurring after LT 15-1959 was decided, which were therefore appropriate for the court to determine. However, the issue of just compensation was directly related to the essential issue originally decided by the court in LT 15-1959. Therefore, it was barred by res judicata at the time Meredith was decided.
Defendants further argue that even if their appeal rights regarding the issue of just compensation are exhausted, the court should ignore its previous judgments and award them more compensation.4 Defendants reason that ASG should follow the example of democratic governments that have recently atoned for past errors by returning land taken without just compensation to its native peoples. This argument is legally unfounded in this case. There is no rational legal basis for defendants to analogize LT 15-1959, which provided fair proceedings and payment of just compensation, to illegal takings by other governments who failed to ensure due process protection. ASG legally gained title to the property and intends to continue to use it for public benefit. No reason is given to ignore previous court judgments in order to award more compensation to defendants.
V. Promises to Return the Property
Defendants assert that at various times, the recent Governors of American Samoa have made promises to convey or lease the 16-acre portion of the property, or part of it, to defendants. They claim that after the final Meredith decision in 1986, Governor A.P. Lutali promised on several occasions, while in office, to return to them at least part of the 16-acre portion. They further declare that Governor Lutali made the same promises to them during the gubernatorial election campaigns in 1988 and again in 1992. They also state that during his 1989-1993 administration, Governor Peter T. Coleman committed ASG to leasing to them part of the property. They also contend that in January 1994, after ASG began to clear part of the 16-acre portion for the proposed stadium, Governor Lutali *99assured defendants that they would receive a "perpetual lease" of another part of the 16-acre portion. Finally, defendants allege that in February 1994, the Secretary of Samoan Affairs affirmed Governor Lutali's intentions, and they agreed with the area for the lease, which the Secretary identified to them on a map. In granting summary judgment, we held that the Governors' verbal promises for the "sale of real property or any interest therein" were not legally binding in American Samoa under the statute of frauds found in A.S.C.A. § 37.0221(a). Defendants contend that this statute is inapplicable since the Governors' verbal promises to return the 16-acre portion, or a part of it, were not equivalent to a "sale." For purposes of this action at least, we agree.
We also concluded that the Governors' verbal promises to lease the 16-acre portion, or part of it, were unenforceable since they did not comply with the requirements of a valid lease pursuant to A.S.C.A. § 37.0221(a). Defendants correctly point out that this statute is inapplicable since it regulates communal land, not public land. Nonetheless, we still conclude that the Governors' verbal promises to convey or lease a portion of the property are unenforceable for other reasons.
A. Campaign Verbal Promises
Governor Lutali's campaign promise in 1988 was made when he was not acting on ASG's behalf but merely as a private citizen seeking elected office. Such a promise is unenforceable, especially against the government. Imagine how much money it would cost the Internal Revenue Service if George Bush's verbal campaign promise, "Read my lips-no new taxes," was enforceable by United States taxpayers.
B. Verbal Promises Made While in Office
The verbal promises to convey or lease made by the Governors while in office were not based on valid consideration and are unenforceable. It is a well established legal principle that "a promise made without supporting consideration is unenforceable." Powers Restaurants, Inc. v. Garrison, 465 P.2d 761, 763 (Okl. 1970). Without valid consideration, these verbal promises are at most offers to make a gift and ”[a] mere promise to make a gift is not enforceable." Oman v. Yates, 422 P.2d 489, 494 (Wash. 1967). The mere expression of an intention or desire is not an enforceable promise, unless there is an undertaking to carry the intention into effect. E.I. DuPont De Nemours & Co. v. Clairborne-Reno Co., 64 F.2d 224, 233 (8th Cir. 1933). *100Governor Lutali and Governor Coleman never carried out any of the alleged verbal promises to return the 16-acre portion, or any part of it, to defendants. Defendants even admit that discussions regarding return of any portion of the property never reached the stage of genuine mutual understanding.
Accordingly, we hold that the Governors' verbal promises while in office to return, by either conveyance or lease, the 16-acre portion of the property, or any part of that portion, to defendants are merely offers to make a gift and not enforceable.
VI. Relief From Judgment
Defendants further request the court to grant relief from the 98, 101, 102judgment in the 1959 condemnation proceeding. Although not stated by defendants in their motion, this request is apparently made pursuant to T.C.R.C.P. 60(b). Since defendants have filed this motion more than one year after the 1959 condemnation judgment, clause (6) is the only subsection of Rule 60(b) that could apply.
T.C.R.C.P. 60(b), which mirrors F.R.C.P. 60(b), permits the court "to relieve a party from a final judgment" for "(6) any other reason justifying relief from the operation of the judgment." The court, in its discretion, may grant the motion, provided that it is not premised on one of the grounds enumerated in clauses (b)(1) through (b)(5), Nouata of Nu'uuli v. Pasene of Nu'uuli, 1 A.S.R.2d 25, 34 (App. Div. 1980) (citing United States v. Cirami, 535 F.2d 736, 738 (2nd Cir. 1977)), and that it is filed "within a reasonable time." U.S. v. Demjanjuk, 103 F.R.D. 1, 3 (E.D. Ohio 1983).
Despite its broad language, granting relief under Rule 60(b)(6) is generally only available upon a showing of "extraordinary circumstances." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988) (iquoting Ackermann v. United States, 340 U.S. 193 , 202 (1950)). Defendants must "allege and prove such extraordinary circumstances as will be sufficient to overcome the 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)), especially where the reopening of a judgment could unfairly prejudice the opposing party-. Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir. 1977).
Defendants have failed to establish any extraordinary circumstances which create any questions of fact that would require granting of relief under *101Rule 60(b)(6). Defendants have failed to bring this motion in a reasonable time period. In Nouata of Nu'uuli, 1 A.S.R.2d at 34, this court held that the time period is not open ended and that a 47 year delay was unreasonable. Relief after the passage of 35 years in this case is likewise unreasonable. Finally, granting relief would unduly prejudice ASG, as holders of legal title to the property, and would contravene the principle of reaching finality of judgments in the administration of justice. "There must be an end to litigation someday . . . ." Id. at 35 (citing Ackerman v. United States, 340 U.S. at 202).
We exercise our discretion under Rule 60(b)(6) and will deny defendants relief from final judgment in LT 15-1959.
ORDER
We deny defendants' motion for reconsideration, new trial, or relief from judgment and affirm our order granting plaintiff's motion for summary judgment.
. It is so ordered.
The Tenth Legislature of American Samoa, in passing H.C.R. No. 45 on May 22, 1967, proposed to amend article I, section 2 of the Revised Constitution by deleting the reversion provision which is "unduly restrictive of eminent domain procedures in American Samoa and which will make condemnation of land for public purposes virtually unworkable."
The following language is inserted above the Secretary of the Interior's signature on the Revised Constitution of American Samoa: "Subject to the deletion from Article I, section 2 of all after the title and the insertion in lieu thereof of the text of Article I, section 2 of the Constitution of American Samoa effective October 17, 1960, to wit: 'No person shall be *96deprived of life, liberty, or properly, without due process of law, nor shall private property be taken for public use without just compensation.'"
The lease of the said property by ASG to the FAA in 1963 was found by this court to be consistent with the stated purpose for which the land was originally condemned. Meredith, 2 A.S.R.2d at 67.
Defendants have apparently requested this court, pursuant to T.C.R.C.P. 60(b)(6), for relief from final judgment in LT 15-1959. We address this issue supra, 28 A.S.R. at 100. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487781/ | Filed 11/18/22 In re Anthony E. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re ANTHONY E., a Person B315305
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 21CCJP03352B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
RENE E.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Robin R. Kesler, Judge Pro Tempore. Affirmed.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and William B. Thetford, Deputy
County Counsel, for Plaintiff and Respondent.
******
Rene E. (father) appeals from the juvenile court’s
jurisdictional and dispositional orders in dependency proceedings
for his six-year-old son. He argues that (1) there is insufficient
evidence to support the juvenile court’s finding that he failed to
protect his son from the mother’s substance abuse and mental
health problems; and (2) the juvenile court erred when it refused
to give him custody of his son. Substantial evidence supported
the jurisdictional findings, and subsequent proceedings in the
juvenile court have rendered father’s second issue moot.
Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Family
Father and Amanda G. (mother) met in 2014. Their son,
Anthony, was born in October 2015.1 Father and mother never
married, but were in a relationship and lived together for
approximately five years. During this time, father and mother
1 Mother has one other child—Arianna (born 2007)—by
another father. Father has two other children by other mothers.
These other children are not at issue in this appeal.
2
regularly engaged in “arguments and fights with stuff being
broken.” Father and mother eventually split up: Father moved
to San Bernardino; mother, to Los Angeles with Anthony.
B. Mother’s drug use
Mother used crystal meth. She would go into the bathroom
“for long periods of time” and emerge either “angry and arguing
and talking to the ceiling” or “look[ing] like she was sleep
walking.” Mother would “stay awake for long periods of time”
and “never sle[pt].” Father complained to mother’s brother,
Alfonso, that mother’s methamphetamine use was a problem in
their relationship.
C. Mother’s mental health issues
Beginning sometime in 2017, mother began “hearing voices
and talking to herself,” and started to blame “everything bad that
ha[d] happened” on entities she identified only as “they” and
“them.” Mother called father “back-to-back” whenever she was
having one of these mental health breakdowns, as father was
“the only person able to settle her down” because he was “the only
one who understands her.” At times, mother’s episodes got so
bad that she would use a baseball bat to smash glass objects in
the house and to make holes in the interior walls.
D. Events underlying dependency jurisdiction
One day in June 2021, mother told Anthony and Arianna
“to pack a bag because they were leaving and never coming back.”
Mother drove with the children to a motel in Palmdale. On the
way there she drove erratically—at high rates of speed and
through red lights—and, while hallucinating, threatened to drive
the car off a cliff. Mother trashed the motel room, complained the
motel did not have cameras, and then drove back to Los Angeles.
After mother returned, Alfonso, the maternal aunt Jessica,
3
and the maternal grandmother went to her home. Mother told
them that she “had been doing meth” and had in fact been using
methamphetamines since she was 15 years old, but she was going
to stop. She left the room and returned with a glass pipe.
Mother smashed the pipe on the table before handing it to
Alfonso. Father had been working out of town during this
incident, and upon his return, picked up mother and drove her to
the beach because he thought “she needed some air” and they
could “talk and walk for a while to calm her down.”
In early July, mother was prescribed psychotropic
medication at a psychiatric and chemical dependency treatment
center. Mother admitted to drinking alcohol while taking the
medication, and she stopped taking the medication completely
after two days.
II. Procedural Background
In late July 2021, the Los Angeles Department of Children
and Family Services (the Department) filed a petition asking the
juvenile court to exert dependency jurisdiction over Anthony.
The Department alleged that (1) mother had a “history of
substance abuse” and her “current abuse[] of amphetamine and
methamphetamine” rendered her “incapable of providing regular
care and supervision” of Anthony, and that father had “failed to
protect” Anthony because he knew of mother’s substance abuse
but allowed her to reside in the home and have unlimited access
to Anthony; (2) mother had a “history of mental and emotional
problems including auditory and visual hallucinations, suicidal
ideation, homicidal ideation, [and] paranoia” which rendered her
“incapable of providing [Anthony] with regular care and
supervision,” and that father had “failed to protect” Anthony
because he knew of mother’s mental and emotional problems but
4
allowed her to reside in the home and have unlimited access to
Anthony; and (3) mother’s erratic driving at high rates of speed
and running through red lights while Anthony was a passenger
in the vehicle, as well as shattering glass and causing holes in the
walls of the home, created a “detrimental and endangering
situation[] and home environment” for Anthony. The
Department further alleged that this conduct placed Anthony at
substantial risk of serious physical harm, thereby rendering
dependency jurisdiction appropriate under Welfare and
Institutions Code section 300, subdivision (b)(1).2
In follow-up interviews by the Department, mother denied
current use of drugs or alcohol and she denied having any history
of drugs or alcohol. Father denied having any knowledge of
mother’s drug use or mental history during their seven-year
relationship and claimed he only became aware of mother’s issues
in late June 2021.
In September 2021, the juvenile court held a jurisdictional
and dispositional hearing. The court struck the reference to
mother’s “history” of substance abuse and otherwise sustained all
of the allegations in the petition, expressly finding that father
“tr[ied] to assist [mother] a few times, but after seeing her
behavior, knowing that she was on drugs, he still left [Anthony] .
. . a five year old” with mother “instead of just taking [Anthony]
out of mother’s home and protecting [him].” The court found that
“pursuant to . . . section 361 [subdivision] (c) and by clear and
convincing evidence[,] there’s still a substantial danger if
[Anthony] was returned to the physical custody of the parents.”
The court found no reasonable means to protect Anthony short of
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
5
removal, declared him a dependent of the court, removed
Anthony from both parents, and ordered the Department to
provide reunification services consisting of drug, alcohol, and
psychiatric treatment for mother, and individual counseling for
father.
Father filed this timely appeal. Mother did not appeal.
III. Postappeal events3
On September 20, 2022, while this appeal was pending, the
juvenile court held a review hearing pursuant to section 366.21,
subdivision (f). At that hearing, the court vacated its prior
removal order and placed Anthony with mother.
DISCUSSION
I. Father’s Challenge to Dependency Jurisdiction
Father challenges a portion of the juvenile court’s first two
jurisdictional findings. Specifically, he does not challenge the
court’s findings that mother was abusing drugs and had a history
of mental and emotional problems, or that those conditions
placed Anthony at substantial risk of serious bodily injury; all he
challenges is the court’s further finding that father “failed to
protect” Anthony. Father asserts that there was insufficient
evidence that he knew of mother’s drug abuse or mental health
issues, such that he could not be found liable for failing to protect
Anthony from circumstances of which he was ignorant. We
review father’s challenges to these specific factual findings for
substantial evidence, asking only whether the record, when
3 We grant the Department’s request for judicial notice and,
on our own, take judicial notice of the juvenile court’s September
20, 2022 minute order. (Evid. Code, §§ 452, subd. (d), 453, 459,
subd. (a).)
6
viewed in the light most favorable to the juvenile court’s findings,
contains evidence that is reasonable, credible, and of solid value
for a reasonable jurist to make those findings. (In re I.J. (2013)
56 Cal.4th 766, 773.)
As a threshold matter, we must decide whether father may
assert this challenge at all. Dependency jurisdiction attaches to a
child, not his parent. (In re D.M. (2015) 242 Cal.App.4th 634,
638.) As a result, mother’s failure to appeal the jurisdictional
findings means that the court’s jurisdiction over Anthony
remains intact based on her conduct alone, and hence regardless
of the outcome of father’s appeal. (In re M.W. (2015) 238
Cal.App.4th 1444, 1452.) Of course, we still have the discretion
to reach the merits of father’s challenge to the portions of juvenile
court’s jurisdictional findings if those findings (1) serve as the
basis for dispositional orders that are also challenged on appeal;
(2) could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings; or (3) could
have other consequences for the appellant, beyond jurisdiction.
(In re D.M., at p. 646; In re Drake M. (2012) 211 Cal.App.4th 754,
762-763.) Because the juvenile court’s findings that father failed
to protect Anthony may be used against father in future
dependency proceedings, we elect to reach the merits of father’s
jurisdictional challenge.
“Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if the ‘child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . . mental
7
illness . . . or substance abuse.’ (§ 300, subd. (b)(1).)” (In re
L.W. (2019) 32 Cal.App.5th 840, 848.)
Substantial evidence supports the juvenile court’s finding
that father was aware of mother’s drug use and mental health
problems, and that those problems placed Anthony at risk.
Father’s statement to Alfonso that mother’s meth use was an
issue in their relationship is substantial evidence that father was
aware of mother’s drug problems, yet father still allowed Anthony
to remain in mother’s care. Mother’s calls to father when she was
having her “episodes” is substantial evidence that father was also
aware of mother’s mental health issues, yet father still allowed
Anthony to remain in her care. Indeed, father acknowledges he
took mother for a walk on the beach to calm her down after
mother’s mental breakdown in late June 2021. Yet, despite his
awareness of mother’s mental instability, he allowed her to care
for Anthony until the Department intervened in mid-July. This
is ample evidence of a failure to protect justifying the adverse
section 300 jurisdiction finding against father.
Father urges that the record shows that he was, at most,
aware of mother’s drug use and mental health problems, but not
that those problems posed a risk to Anthony. Father’s contention
is belied by the record. A meth addiction severe enough to
disrupt an adult relationship is, when construed in the light most
favorable to the juvenile court’s finding, also severe enough to
pose a risk to the care of a young child. Father asserts that his
awareness of mother’s “episodes” is insufficient to show risk
because the record does not indicate what happened during those
“episodes,” but this not only impermissibly construes the term in
the light least favorable to the juvenile court’s finding, but also
ignores the evidence that father had to calm mother down after
8
one of those episodes, a task that would be unnecessary if they
were of no consequence. Father lastly emphasizes that he has
not lived with mother for a few years, but the record shows that
he was aware of mother’s problems despite this living
arrangement; the arrangement does not somehow preclude such
awareness.
II. Father’s Challenge to the Juvenile Court’s Refusal to
Place Anthony in His Custody is Moot
“An appellate court will not review questions which are
moot and only of academic importance, nor will it determine
abstract questions of law at the request of a party who shows no
substantial rights can be affected by the decision either way.
[Citation.] An appeal becomes moot when, through no fault of
the respondent, the occurrence of an event renders it impossible
for the appellate court to grant the appellant effective relief.
[Citations.] On a case-by-case basis, the reviewing court decides
whether subsequent events in a dependency case have rendered
the appeal moot and whether its decision would affect the
outcome of the case in a subsequent proceeding.” (In re
Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055.)
Father’s challenge to the trial court’s dispositional order is
moot because we can no longer render effectual relief as to that
issue. Father urged on appeal that the juvenile court violated the
mandate of section 361.2, subdivision (a), to place Anthony with
him—as the noncustodial parent—upon removing Anthony from
his custodial parent. Once the juvenile court placed Anthony
back with mother as the custodial parent, however, any violation
of section 361.2 ceased. (See, e.g., R.S. v. Superior Court (2007)
154 Cal.App.4th 1262, 1270 [‘“section 361.2 deals specifically with
9
the removal of the child from a custodial parent when there also
exists a noncustodial parent’”].)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
10 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486320/ | Order on Motion to Amend Answer:
The petition filed herein alleges, among other things, the physical beatings of petitioner ("husband") by respondent, ("wife") as constituting habitual cruelty and ill usage warranting a decree of divorce under A.S.C.A. § 42.0202(2). Wife's answer, on the other hand, while containing allegations of marital misconduct on the part of husband, fails to pray for *115divorce. Counsel for wife advised the court that his client was not seeking a divorce and opposed the petition.
This matter came on regularly for hearing on June 19, 1995, upon wife's motion for leave to amend her answer on file with the Clerk pursuant to T.C.R.C.P. 15(a). The proposed amendment seeks to further allege that husband's marital misconduct was the root of "fist fights and arguments between the parties."
Husband's response is that any defenses alluding to his alleged marital misconduct, are either "immaterial, impertinent, or scandalous," warranting not only a denial of the motion to amend, but also the striking of such allegations from the original: answer, pursuant to the provisions of T.C.R.C.P. 12(f). Because wife is not seeking a divorce, husband argues that her allegations of misconduct can have no bearing whatsoever on the subject matter of the action, a divorce.
In reply, counsel for wife argues that husband’s marital misconduct does have a bearing on the very grounds for the divorce sought, as husband's misconduct was in actuality the cause of "fights and arguments between the parties."
DISCUSSION
At first blush, we are inclined to agree with husband's argument in light of the fact that the defense of recrimination is no longer available in American Samoa. See Pub. L. No. 23-04 (1993).1 It would seem arguable, therefore, that any evidence of marital- misconduct on the part of husband would be entirely irrelevant, since wife does not herself seek a divorce.
While this argument certainly has appeal within context of the original answer, the proposed amended answer alleging husband's marital misconduct as being the source of fist fights and arguments between the parties may be viewed as sufficiently noticing a defense of provocation *116to the charge of habitual cruelty and ill usage.2 Under T.C.R.C.P. 15, "leave [to amend pleadings] shall be freely given when justice so requires." A Rule 12(f) motion to strike in this case seems to go contrary to the policy of notice pleading and liberal construction underlying the Trial Court's Rules Civil Procedure.
One test that has been advanced for determining whether an allegation is immaterial and impertinent, within the meaning of Rule 12(f), is whether proof concerning that allegation could be received at trial. 5A Wright & Miller, Federal Practice and Procedure, Civil 2d § 1382, 711-12. As we alluded to above, we believe that such proofs may be received on the issue of provocation, and that the challenged allegations may thus be considered and passed upon by the court. In this regard, we must also reject husband's "scandalous" based challenge. For purposes of Rule 12(f), it is not enough that the matters complained of merely offend the husband's sensibilities if they relate to issues relevant to the defense. Id. at 714. At the same time, any concerns that husband may harbor about undue prejudice arising from the derogatory nature of the allegations he finds offensive are not compelling in light of the fact that this matter will not be submitted to a jury but tried to the court.
For reasons given, the motion to amend is granted.
It is so ordered.
Public Law 23-04 repealed A.S.C.A. § 42.0206(a)(5), which required the court to dismiss a petition for divorce if the petitioner was found guilty of any of the grounds for divorce or separation.
The defense of provocation in divorce law prevents a complaining party from asserting a cause of action based upon cruelty when that cruelty is provoked and brought on by the complainant, provided that the provoked response was not out of proportion to the provocation. Miller v. Miller, 82 S.E.2d 119 (S.C. 1954); see generally 24 Am. Jur. 2d, Divorce & Separation, § 168.
As to whether provocation is available in the territory as a defense to cruelty, this issue should be appropriately presented and briefed as a ruling thereon could be dispositive of the case. At this time, we are not disposed to take up this issue sua sponte. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486321/ | Opinion and Order:
This case tests the legality of two trusts which, for a limited time, vested legal title to individually owned land in a Samoan with equitable title in non-Samoan beneficiaries.
FACTS
The two trusts attempted to comply with American Samoa's law prohibiting the alienation of land to non-Samoans by vesting legal title in a Samoan trustee for the benefit of non-Samoans.
In 1980, the Appellate Division of this court upheld a decision of the Territorial Registrar, refusing to register individually owned land to Douglas Craddick ("Douglas") and defendant Magdalene Craddick ("Magdalene") for the reason that Douglas is a non-Samoan and, therefore, prohibited from acquiring an interest in land. Craddick v. Territorial Registrar, 1 A.S.R.2d 10 (App. Div. 1980) ("Craddick I").
In 1981, responding to Craddick I, Douglas, Magdalene and L. Su'eseu'e Lutu ("Lutu") formed Craddick Development Inc. ("CDI"). Douglas provided funds to purchase in Magdalene's name individually owned land in Tafuna and place these lands in trust ("CDI trust"). Lutu, a Samoan, and eventually Magdalene, also a Samoan, as his successor, held the title to these lands as the trustee initially for the benefit of either Douglas alone or Douglas and CDI’s other original directors and Robert Anderson collectively and later CDI. A second trust ("the Anderson trust") named Magdalene trustee for the benefit of CDI and Robert Kerley in his capacity as trustee for Anderson's Employee Benefit Plan. These two trusts were limited to a 20-year period.
Although Douglas died on February 18, 1986, the trusts continued to operate until February 12, 1988, when Magdalene attempted to cancel the trusts' and claim clear title to all remaining trust lands. Plaintiffs brought this action in 1989, asking this court to order Magdalene to reimburse misappropriated trust funds, and to either remove Magdalene as trustee or compel her performance of the trusteeship according to its terms. *119Magdalene counterclaimed, asking the court to declare the trusts void, award her clear title to all remaining trust property, and require plaintiffs to pay her for trust lands already sold, or if the trusts are declared valid, to pay her for outstanding trustee's fees.
DISCUSSION
The result in this case is determined by the reach of American Samoa law restricting transfers in land. The Revised Constitution of American Samoa envisions vigorous constitutional and statutory protection for Samoan ownership of land.
It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons. No change in the law respecting alienation or transfer of land or any interest therein, shall be effective unless the same be approved by two successive legislatures by a two-thirds vote of the entire membership of each house and by the Governor.
Rev. Const.Am. Samoa, art. I § 3 (emphasis added); see also id. at art. II § 9. The foregoing section of the Constitution contains three sentences. One sentence is directive, one is permissive, and one is prohibitive. All three sentences contain language protecting Samoan lands from alienation.
The first sentence directs that the policy of the government shall be the protection of Samoans against alienation of their lands among other things. This directive language is useful as a rule of statutory construction. We may apply it to interpret the intent of existing policy as vigorously protective of Samoan lands and culture, or to strike down legislation that manifests an intention which is plainly contrary to this purpose. The second sentence is permissive, giving the Legislature the authority to enact legislation to protect Samoan lands and other elements of Samoan culture.
The third sentence is prohibitive, preventing the alteration of land alienation laws until overwhelming political tests have been satisfied. By providing substantial constitutional protection to the existing land alienation laws, the framers elevated the language of those laws near to the *120level of the Constitution itself. Legislatively reversing any court decision which interprets the land alienation laws would require consensus similar to that required for a constitutional amendment. For this reason, we must be extraordinarily careful to avoid subjugating the language of the statute to our own wisdom through expansive interpretations or judicially created exceptions to the law. Put simply, the prohibitive clause of section 3 requires that the land alienation laws be changed by specific political procedures, and not by judicial fiat.
I. Validity of the Trusts
The ultimate result in this case depends on the interpretation of American Samoa's land alienation laws.1 A.S.C.A. § 37.0204(b) sets forth the relevant prohibition as follows: "It is prohibited to alienate any lands except freehold lands to any person that has less than one-half native blood____"
The foregoing restriction applies to individually owned land by its language encompassing "any lands except freehold lands." Id. This application was judicially recognized in Craddick 1.
The question of whether trust arrangements constitute an illegal "alienation," is one of first impression in this court. Black's Law Dictionary, 5th ed., p. 66 (1979), provides a common law definition of "alienation": "In real property law, the transfer of property and possession of lands, tenements, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another ..." (emphasis added; citations omitted).
According to a narrow common law reading, "alienation" means an absolute or complete conveyance. In this jurisdiction, however, a statutory definition supplants the common law. "Alienation" means the sale, gifts, exchange, or any other method of disposal of property. A.S.C.A. § 37.0201(a) (emphasis added).
We hold that "any other method" includes conveyance of a beneficial interest in trust or the conveyance of other partial interests in land. This view is strengthened by A.S.C.A. § 37.0205, which explicitly provides *121that "[t]his regulation [restricting the alienation of land] shall not apply . . ." to a trust for mixed-race couples or descendants as beneficiaries. This language exempts one specific type of trust, from the general prohibition. The statement that the restriction "does not apply" to one type of trust indicates that the restriction does apply to other trusts.
Judge Learned Hand, writing for the Second Circuit, held that an inalienable property interest cannot be made the res of a trust, because the creation of a trust involves a transfer of an equitable interest from the settlor to the beneficiary. In re M.J. Hoey, 19 F.2d 764, 764-66 (2d. Cir. 1927) (holding that a seat on the New York Stock Exchange could not be made the res of a trust since the rules of the exchange required that members own their seats free and clear); see also George G. Bogert & George T. Bogert, Law of Trusts 71 (5th ed. 1973). In the present case, the property was inalienable as to non-Samoans and, therefore, could not be made the subject of a trust for their benefit.
The trust beneficiaries contend that the Legislature did not intend to prohibit non-Samoans from holding partial interests in land, since the law permits the leasing of native land for periods of up to 55 years,2 as well as approving trusts for the benefit of children with one Samoan parent.3 If acquisition of a partial interest in land by a non-Samoan were not generally prohibited, however, it would have been unnecessary to outline exceptions permitting non-Samoans to acquire specific limited interests. It is apparent that these provisions permitting certain leases and trusts are narrowly tailored exceptions to the general rule of A.S.C.A. § 37.0204(b) that land acquisition by non-Samoans is prohibited.
To hold that those exceptions constituted general permission for non-Samoans to acquire other partial interests in property would defeat the general prohibition of the statute, as well as the constitutional policy directive protecting the Samoan people "against alienation of their lands." Revised Constitution of American Samoa, art. I § 3. Accordingly, if the trust arrangements do not meet the specific conditions of a statutory exception, they are subject to the general prohibition against alienation and *122are void.4
A. Trusts for the Benefit of Children or Grandchildren
Although the beneficiaries cite A.S.C.A. § 37.0205 as one justification for the trust arrangement, it cannot provide a serious legal basis for the trusts at issue. While section 37.0205 does allow trusts for individually owned land, a Samoan proprietor must create the trust for the benefit of a son or daughter married to a nonnative, or for grandchildren arising from the mixed-race marriage. Although Douglas was married to a Samoan, the trust lands were not granted to that Samoan by a parent who was attempting to provide for his/her children or grandchildren. The lands were purchased by Magdalene with Douglas's money, and therefore do not meet the requirements of a permissible trust for the benefit of mixed race descendants, or Samoan children married to non-Samoans. Further, it is inescapable that the Legislature could just as easily have approved trusts for unrelated, non-Samoan beneficiaries. The Legislature created no such provision, and we will not do so as a court.
B. Trusts as Leases of Native Land
The beneficiaries contend that the trusts are valid because they are in harmony with the spirit of the restrictions on alienation. "Native land may, with approval of the Governor, be leased to any person for any term not exceeding 55 years for any purpose, except for the working of minerals and the cutting of timber. " A.S.C.A. § 37.0221(a). The beneficiaries suggest that the foregoing provision is designed to permit non-Samoans to obtain short-term interests in land with title remaining in *123the Samoan owners, and an eventual reversion of the beneficial interest to the Samoan owners. The beneficiaries further contend that the trust arrangement fosters this objective by placing beneficial title for improvement of the land in non-Samoans for a period of less than 55 years, while ultimately returning full title to the improved land into Samoan hands.
While we may agree that the trust arrangement would be sound public policy for orderly land development in American Samoa, that question is not before us. The pertinent legal question is whether the trusts meet statutory criteria for an exception to A.S.C.A. § 37.0204(b), which prevents land acquisition by non-Samoans. They clearly do not.
The language of A.S.C.A. § 37.0221(a) permitting non-Samoans to obtain leasehold interests in land applies, by its terms, to "[n]ative land" only. Because A.S.C.A. 37.0201(d) provides that "[n]ative land means communal land," we are forced to conclude that the relevant trusts, which affected individually owned land, could not receive protection as leasehold interests.
This contention is strengthened by the fact that the forerunner to A.S.C.A. § 37.0221(a) allowed the leasing of "[ajny communally owned or individually owned land." R.C.A.S. § 9.0108 (1961 code as amended through 1970).5 When the Legislature revised the code they had the opportunity to retain the language of the 1962 statute, or alternatively to define "[njative land" in a way that would include individually owned land. The Legislature did neither of these things, and we therefore conclude that it intended to provide the lease option to communal land only.
The language of A.S.C.A. § 37.0221 requires "approval of the Governor” for the leasing of "[njative land," which must be obtained in accordance with specific formalities:
(b) . . . Every such provisional agreement, stating in full its terms and conditions, shall be submitted with the plan showing the situation of the land to the Governor for approval, and it shall have no validity until such approval has been signified in *124writing ....
(c) The lessee must, within 2 calendar months after any provisional agreement to lease has been approved by the Governor, deposit in the office of the Governor a properly drawn and legally attested lease for confirmation under the hand and seal of the Governor, and such lease shall be registered in a book to be styled registrar of titles.
To our knowledge, CDI did not comply with any of the foregoing formalities to obtain a proper leasehold interest in land. While some may argue that these are mere formalities, and that the general intention of the trusts was in line with the policy objectives of the statute, we elect not to second-guess the Legislature.
In light of its constitutional authority to "protect the lands," the Legislature has a legitimate interest in the oversight and regulation of any land development projects by non-Samoans. This interest is legitimately furthered by requiring that detailed plans be submitted and approved by the Governor before a lease arrangement can go forward. Although the trusts may have been consistent with good public policy, they receive no protection as leasehold interests,6 because they did not affect native land and because they sidestepped the requirement of the Governor's approval in accordance with the requisite formalities.
II. Equal Protection
We note the delicate constitutional dimensions of the racial classification in A.S.C.A. § 37.0204(a). CDI has asserted that Craddick I was an aberrational decision, and that constitutionally suspect classifications, such as racially exclusive laws, must be carefully examined. However, it would be wholly inappropriate for the Trial Division in this case to revisit a principle settled by the Appellate Division in Craddick I, and we therefore decline to do so.
III. Remedies
A.S.C.A. § 37.0230 provides that "Any alienation in violation of this chapter shall be void." The conveyance of a beneficial interest in land is alienation of land, and alienation of land to non-Samoans violates the *125relevant chapter. Finding that the trusts did not come within any statutory exception to that general rule, we 'hold the trusts illegal and, therefore, void. Magdalene receives clear title to remaining, unsold trust lands.
The statute further provides that: .
. . . any nonnative failing to conform to this chapter, except 37.0120 and 37.0211, shall be liable to the forfeiture, to the owner of the land, of all improvements he may have erected or made ... on the land and no action shall lie for recovery of any payment he may have made or other expenditure he may have incurred in respect thereof.
A.S.C.A. § 37.0230. The foregoing language compels the conclusion that CDI is required to forfeit all improvements on the land and investments made therein. This result seems unfair in light of the feet that Magdalene plainly assented to the trust arrangement, participated in it, and now disavows its validity. Further, Magdalene appropriated trust funds for her personal use, badly abusing her position as trustee.
In light of such circumstances, it is tempting to employ a common law estoppel theory or some other method to find that Magdalene cannot disclaim the validity of a trust that she openly participated in creating and administering. This argument, however, could be made any time property reverted back to a Samoan owner after he/she knowingly conveyed it to a non-Samoan. If we applied this estoppel theory, it would effectively destroy the enforcement mechanism of the statute, and we therefore decline to do so.
The land alienation laws are not written for the benefit of the individual Samoan proprietor of land, and therefore do not depend on his/her good faith for reversion to occur. A.S.C.A. § 37.0204(a) is written for the preservation of the land and culture of Samoa for the Samoan people collectively. If the Legislature has erred in crafting the law, then it should provide the corrective revision, if so inclined. As Justice Iredell said, only six years after the U.S. Constitutional Convention:
It is [the legislative branch's] duty to legislate so far as it is' necessary to carry the Constitution into effect. It is ours only to judge. We have no reason, nor any more right to distrust their doing their duty, than they have to distrust that we all do ours. There is no part of the Constitution that I know of, that *126authorizes this Court to take Up any business where they left it
Chisolm v. Georgia, 2. U.S. 419, 433 (1793). We will not circumvent or modify plainly written and democratically enacted law.
The two trusts, and their predecessor trusts, are declared void ab initio. At all times, Magdalene owned all lands acquired in her name and transferred to these trusts as her individually owned land. She must honor the transfer of title to any of these lands sold to other Samoans by the trustee, including herself, effectively as her agent. She may deal with the remaining lands as her property.
Under the present state of the evidence, we are unable to fashion any monetary remedies as may be in order. Magdalene is clearly entitled to the funds she retained from sales of the lands.
She is also entitled to the profits CDI or others retained from the sales of the lands. Her final entitlement to these funds from both sources is subject to reduction by the amount of trustee fees paid to her. We cannot determine her final entitlement with reasonable certainty without plaintiffs and Magdalene accounting for receipts and disbursements related to all land transactions within their respective knowledge. Thus, we direct both CDI, by and through its agents, including but not limited to plaintiff David Craddick, and Magdalene to submit accountings of these receipts and disbursements no later than 120 days after entry of the judgment in this action. After the 120-day period, the court will schedule an evidentiary hearing to consider further the appropriate monetary remedies in this action.
Judgment shall enter accordingly.
It is so ordered.
Neither party asserts that the trusts fail because they do not meet the traditional requirements of a valid trust. A trust is still invalid, however, when it contravenes law or public policy. Shelley v. Shelley, 354 P.2d 282, 285 (Or. 1960).
A.S.C.A. §§ 37.0221-0222.
A.S.C.A. § 37.0205.
The Court of Appeals of New York made a similar analysis with regard to voting trusts entered into by stockholders:
In New York voting trusts do not stand or fall on common-law theories of public policy. They are recognized and regulated by statute. Whether they would be valid at common law in the absence of a statute defining and regulating them is immaterial. Public policy in regard thereto is defined by the Legislature. Between the conflicting rules at common law a choice has been made. No voting trust not within the terms of the statute is legal, and any such trust, so long as its purpose is legitimate, coming within its terms, is legal. The test of validity is the rule of the statute. When the field was entered by the legislature it was fully occupied and no place was left for other voting trusts.
In re Morse, 160 N.E. 374, 376 (N.Y. 1928) (emphasis added). In the present case, when the Legislature legalized a specific type of trust for non-Samoan beneficiaries, against dre background of a general prohibition against alienation of non-freehold lands to non-Samoans, it left no room for other trusts not found within the statute.
It is doubtful whether or not this provision was ever approved in a constitutionally proper way, and thus it may never have become law in the first place. Regardless of this fact, it is clear that the Legislature could have subsequently employed language providing for the lease of individually owned land similar to the 1961 Code, but made the decision not to do so.
A.S.C.A. § 37.0222 presents another option for protecting a leasehold interest for schools, which also requires permission from the Governor and plainly does not apply. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486322/ | Decision and Order:
On July 23, 1991, Tuailemau Tavai ("Tuailemau") offered for registration with the Territorial Registrar the matai title "Laulusa" of Gataivai, Utulei.1 On September 17, 1991, Samoa Osoimalo ("Samoa") filed his objection to the offer and asserted his own counter-claim to succession. Subsequent attempts to resolve the matter before the Office of Samoan Affairs proved unsuccessful. On March 10, 1993, the Secretary of Samoan Affairs certified the dispute as "irreconcilable" and referred the matter for resolution to the Lands & Titles Division.
On the evidence received, the court makes the following findings and conclusions on the four criteria set out in A.S.C.A. § 1.0409(c):
*128FINDINGS -
1. Hereditary Right
We find that both candidates are blood related to the Laulusa title. Regardless of whether we employ the traditional manner of assessing blood right, direct descent to the nearest titleholder, or the Sotoa formulation, direct descent to the original titleholder, using candidate Samoa's version of family history as to the original Laulusa, we find Tuailemau's bloodline is closer connected to the title. Tuailemau prevails on this consideration.
2. Wish of the Clans
The testimony on the issue of clans was thoroughly conflicting. Tuailemau testified that the family had nine traditional clans, while Samoa's evidence pointed to either four or five customary clans within the family. Added to this confusion of positions on family custom, High Chief Atiumaletavai testified that while there are four clans of the family, the Atiumaletavai titleholder has traditionally held the power of appointment to the Laulusa titleholder. Be that as it may, the court need not at this time sort out the conflicting positions taken by the witnesses for the simple reason that evidence pointed to the absence of a family decision — whether family decision making be defined in terms of clan preference, as contemplated by statute, or Atiumaletavai's claimed power of appointment — on the appointment of a successor matai. Rather, we find on the evidence that the only attempt at family resolution was a meeting which terminated abruptly in a fist fight between Tuailemau and one of his immediate relatives. -We find that no one prevails on this issue.
3. Forcefulness. Character and Personality, and Knowledge of Samoan Customs
In our evaluation of the parties, we find from our observation of the candidates and from our review of personal background and achievements, that Samoa prevails on the issue of forcefulness, character and personalty, with neither candidate surpassing the other on the consideration of knowledge of Samoan customs.
In terms of personal achievement, both candidates now enjoy retirement incomes from the American Samoa Government. Tuailemau has faithfully served the government for many years in various janitorial roles, earning his retirement in 1992. Samoa retired one year earlier, after 30 years of *129service with the government's motor pool division. Samoa's choice of occupation, however, has provided him with relatively more in-service training opportunities than has been afforded Tuailemau with his choice of work. At the same time, Samoa was, subsequent to retirement, appointed by Governor A.P. Lutali to the position of pulenu'u for Utulei and Gataivai, which position he has creditably held since January 1, 1993. The Governor, in making his selection of pulenu'u, is statutorily directed to consider, among other things, the views of the village council. See A.S.C.A. § 5.0301. Samoa's appointment to pulenu'u reflects the regard he enjoys within the village council. Finally, Samoa's service to the village through the Congregational Christian Church at Gataivai culminated in his ordination as deacon on January 4, 1968. He has similarly rendered service to the Church at Gataivai for almost 30 years. We find that Samoa's achievements by comparison speak a little more strongly for him in terms of forcefulness, character traits and personality.
4. Value to Family. Village, and Country
We find that both claimants have responsibly rendered tautua, traditional service, to past matai and family. Samoa, however, impresses us as having the better rapport with family and village, as well as with High Chief Atiumaletavai. The latter testified that Tuailemau's coming to blows with his own kinsman was precipitated by the former's display of haughtiness before the assembled family. Tuailemau having thus demonstrated that he and his own immediate side the family are unable to get along, it goes without saying that his leadership potential within the Laulusa extended family remains very questionable. Additionally, Samoa, as alluded to above, has been more actively involved with village concerns not only through his service to the Church at Gataivai, but through his pulenu'u duties to liaise between the village and government. Finally, in terms of value to the government, Samoa not only has the stronger background in training and work experience, he also continues to enjoy the confidence of the government in his being appointed pulenu'u.
We rate Samoa ahead of Tuailemau on this last criterion and accordingly find him better suited in terms of value to family, village, and country.
CONCLUSION & ORDER
Based on the foregoing, we hold that Samoa is qualified to hold the matai title Laulusa. Although Tuailemau prevails on the consideration of blood, Samoa prevails on the third and fourth criteria, with neither able to claim the weight of clan support. The Territorial Registrar shall accordingly *130register the Laulusa title of Utulei in candidate Samoa Osoimalo, in accordance with the requirements of A.S.C.A. § 1.0409(b). Judgment will enter accordingly.
It is so ordered.
Unless we are missing something, the petition of Tuailemau, as referred to the court, does not seem to contain the requisite twenty five (25) supporting family signatories as prescribed by A.S.C.A. § 1.0405(b). Because no issue has been taken with this seeming omission, we presume that the petition, as presented to the Territorial Registrar, would not have been accepted for filing by the Registrar if the same was not in accordance with statutorily mandated procedure. See A.S.C.A. §§ 1.0405(c) and 1.0406. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486324/ | Order Denying Motion for New Trial:
On May 22, 1995, the defendant was found guilty by jury verdict of the crime of assault in the first degree, as a Class B felony. Defendant prematurely filed a motion for new trial on June 1, 1995. The 10-day time period mandated by A.S.C.A. § 46.2402(a) for filing a motion for new trial did not begin to accrue until the defendant was sentenced on June 12, 1995. The motion came regularly for hearing on June 26, 1995. Defendant and both counsel were present. We considered the motion to have been properly filed as of June 12, 1995.
Defendant argues that the evidence was insufficient because his conviction was inconsistent with the acquittal of one of his three co-defendants, and that he was prejudiced by the late availability of a Hawaii hospital report containing information which may have been relevant to impeach the victim and the causes and seriousness of his injuries. Both arguments are without merit.
*137The motion for a new trial is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486325/ | Order Denying Motions for Reconsideration or New Trial and for Stay Pending Appeal:
The motions by claimant Punefuolemotu M. Tuaolo ("Punefu") and counterclaimant Saelua Fa'ate'a ("Tutuvanu") for reconsideration or new trial of the court's decision entered on January 30, 1995, came regularly for hearing on March 16, 1995. All parties were represented by counsel.
Punefu and Tutuvanu presented several issues by their written motions and oral arguments. Counterclaimant Manaia E.T. Vaivao Fruean ("Vaivao") responded to those issues in writing and by oral argument. The issues raised by Punefu and Tutuvanu are succinctly identified by the titles of the subparts in the discussion below.
DISCUSSION
I. Tribunal Lacked Impartiality
Punefu and Tutuvanu allege impropriety in trial of this matter based on the fact that Vaivao is an Associate Judge and colleague to the panel of judges deciding the case, and that one of Punefu's counsel overheard an Associate Judge, who was on the panel trying this case, make a statement at a local restaurant, on January 3, 1995, two days before the trial started, to the effect that the party who moves "to disqualify the Associate Judges from the case will be the first one shot down." Punefu did not cite to the court the Associate Judge's alleged statement at any time before his present motion was filed.
On December 12, 1994, in a chambers conference, unreported with counsel's concurrence, after the court discussed the proposed continuance of the trial with counsel, Tutuvanu orally moved to recuse the Associate Judges based on the appearances of partiality and unfairness based on Vaivao's relationship with them. The court instructed Tutuvanu's counsel to submit the motion in writing and serve it on the other counsel to provide adequate opportunity for the court and counsel to consider and act on the motion. Then, in open court, the court continued the trial to January 5, *1391995, and Tutuvanu's oral recusal motion and court's instructions regarding it were put on the record. No written motion on this issue was filed before the present motions.
On January 5, 1995, in a chambers conference before the trial began, also unreported with counsel's concurrence, the court inquired about Tutuvanu's intentions regarding the recusal motion. Punefu was prepared to join in this motion, but when Tutuvanu indicated that he would not pursue the motion, Punefu withdrew as well. Then, when the trial started, the court stated on the record that the recusal motion would not be pursued.
We note the well settled principle that arguments that could have been made at trial may not be made for the. first time either on a motion for new trial or on appeal. In Manuma v. Bartley, 3 A.S.R.2d 21, 22 (Land & Titles Div. 1986), this court held:
Counsel raises an interesting and possibly important argument in his motion .... The Court has, however, carefully scrutinized the transcript of counsel's argument, at trial and can find no trace of this argument .... Since counsel had every opportunity at trial to argue that the land was communal land and failed to do so, the argument must be regarded as waived and cannot be raised at any future stage of the litigation.
In keeping with the foregoing principle, we hold that Punefu's and Tutuvanu's failure to pursue the recusal issue on the record before or during the trial, and Punefu's failure to appraise the court in any way whatsoever of the Associate Judge's alleged statement before the trial and, in fact, known to Punefu's counsel, results in a waiver of those arguments at future stages, including the present motions for reconsideration or new trial, of this proceeding.
II. The Court Failed To Follow A.S. C.A. § 3.0241 (b) Procedures
Punefu claims that the court failed to follow the procedures required under A.S.C.A. § 3.0241(b). Since he did not specify any reasons for this claim, we could disregard it. However, we will affirmatively state that we fully complied with the procedures set forth in this statute. The statute reads:
(b) In cases or controversies relating to matai titles in the land and titles division of the High Court, if there remains, after *140conference, any difference of opinion among the judges, the justice shall abstain and the opinion of the majority of the 4 associate judges shall prevail and shall be recorded by the clerk as the opinion and decision of the court. In the event of a tie vote among the 4 associate judges, the justice shall cast the deciding vote.
Implicitly at least, if no difference remains among the associate judges after conference, the presiding justice still abstains, and the four make the decision unanimously.
This procedure was followed precisely. After the associate judges considered the evidence, the majority of three of the four judges made the decision and signed the court's opinion and order to reflect their decision. The justice did not participate in the four associate judges' deliberations. He only presided at the trial and prepared and signed the opinion and order. The court has sanctioned this maimer of the justice's participation in matai title proceedings. In re Matai Title "La'apui", 4 A.S.R.2d 7, 9 (App. Div. 1987). The clerk then recorded the associate judges' majority decision and the single judge's dissent.
The court followed the same procedure in deciding on the rulings in this order on the present motions.
III. Vaivao's Genealogy Was Incorrect
Punefu and Tutuvanu dispute the genealogy presented by Vaivao to establish his blood relationship to the Tuaolo title. This is an issue of particular importance to these two candidates. First, if Vaivao is not blood-related to the Tuaolo title, he simply cannot qualify to hold the title. Second, Vaivao's genealogy identifies an earlier, original titleholder, whose children created clans of the Tuaolo title, which impacts the findings on clan support.
This is also an issue of fact that must be proven by a preponderance of the evidence, that is, evidence having more convincing force than that opposed to it. The court was and is persuaded that the genealogy introduced by Vaivao is correct by a preponderance of the evidence. Further, the court found and still finds, by a preponderance of the evidence, that despite Punefu's and Tutuvanu's contrary claims, Vaivao's genealogy is consistent with the complex blood and title interrelationships in the Tuaolo, Leaoa and Lago families, as recited during the trial of this proceeding and in prior proceedings before this court.
*141
IV. Tutuvanu Is the Only True Tuaolo Heir
Tutuvanu correctly points out that the court applied the traditional rule, which he asserts is fictitious, to determine the candidate with the best hereditary right. We would add that the later rule of measuring the best hereditary right from the original titleholder or a common ancestor cannot be applied in this case. The three candidates simply do not agree on the identity of the original titleholder or any common ancestor. Punefu necessarily disagrees, since he is a descendent of a non-blood related titleholder.
Tutuvanu would disqualify Vaivao as having no blood connection to the Tuaolo title, rather than, as the court found, a seventh generation or l/128th blood relationship to a previous titleholder. He would disqualify Punefu as also having no true blood relationship, despite the court's finding that Punefu had one-half Tuaolo blood through his father Tuaolo Maliuga II, because his ancestor who first held the Tuaolo title was from the non-blood related Fano family of Faga'alu and became the titleholder only by invitation when his predecessor fell ill.
The court found and still finds, by a preponderance of the evidence, that Vaivao’s genealogy is correct and that the Fealofani clan has long-recognized acceptance as a Tuaolo clan.
V. Recognized Clans Are Only Now Emerging
Punefu and Tutuvanu also take exception to the court's findings recognizing two of the Tuaolo clans, based on the two children of the original titleholder identified in Vaivao's genealogy. They profess lack of knowledge of the existence of these two clans in the Tuaolo family's history. Their unawareness, however, does not equate with non-existence of these clans. The last five Tuaolo titleholders came from the Fealofani clan. This list includes Tuaolo Fealofani's successor, Tuaolo Maliuga I, who on October 30, 1906, some 80 years ago, became the first Tuaolo of record in the Territorial Registrar's files.
In any event, after resolving the supporting evidence in favor of Vaivao's genealogy, the court correctly applied the long and well established rule for the determination of clans and found, by a preponderance of the evidence, the consensus support of two of the three Tuaolo clans for Vaivao.
*142
VI. Faulty Emphasis Was Placed on Personal Traits
The criterion of the candidates' forcefulness, character and personality, and knowledge of Samoan customs is again a fact issue, which the court resolved, and still resolves, by the preponderance of the evidence in Vaivao's favor. We would comment further only on several argued aspects about the evidence submitted on this criterion.
Punefu discredits Vaivao's character because he gambles. He also argues, incidentally, that this is a weakness of character effectively destroying Vaivao's potential value as the titleholder. Gambling may detract from a person's character and is illegal for private gain in American Samoa. The evidence does not, however, show that Vaivao gambles habitually or in any other way so as to seriously diminish his character or leadership qualities.
Tutuvanu faults the court's findings as overly stressing physical prowess. In fact, the court introduced this discussion by explicitly recognizing that this criterion accounts for all human attributes, mental and emotional, as well as physical. The court's references to Vaivao's prime, vigor and forcefulness, and to Tutuvanu's declining vitality were intended to, and in fact do, describe mental and emotional qualities far more than physical strength.
Tutuvanu also erroneously equates age with wisdom, ipso facto assuring his superior knowledge of Samoan customs vis-a-vis Vaivao. Age is a factor, but no guarantee of supremacy. Vaivao is at least as equally qualified as Tutuvanu in matters of Samoan customs.
On his third point, we concurred, in general, with Tutuvanu's observations about Punefu's strengths and weaknesses, based on his youth and inexperience.
VII. Higher Titleholder Value Cannot Prevail over Best Hereditary Right
The criterion of the candidates' prospective value as the titileholder is also a fact issue. The court decided and still decides, by a preponderance of the evidence, that Vaivao is the candidate with the strongest potential value as the titleholder.
Tutuvanu proffered a rather novel argument concerning this criterion. He seems to say that in light of this criterion's least importance in the *143statutory scheme of priorities, the winner in this category can never prevail over the candidate with the best hereditary right to the title. He suggested that this criterion of first and highest priority ought to be weighted in the neighborhood of 70 % in the final evaluation. As this court has previously observed, the comparative evaluation of the four statutory criteria is not, and cannot be, measured by mathematical exactness. In re Matai Title "Tauala", 15 A.S.R. 2d 65, 69 (Land & Titles Div. 1990). Furthermore, under Tutuvanu's suggested 70% rule, it would be impossible for a candidate to be awarded a title unless he prevailed on the claim of best hereditary right. By precedent, a candidate can be awarded a title when he prevails only on the least important factors instead of the claim for best hereditary right. In re Matai Title "Iuli", 14 A.S.R. 116 (Land & Titles Div. 1990). Moreover, based on the court's supported finding that Punefu has one-half Tuaolo blood compared, under the evidence, to Tutuvanu's l/16th blood relationship, presumably, under this approach, we must award the title to Punefu, regardless of any of the other three considerations.
SUMMARY
Vaivao is best qualified among the three candidates before the court. In our evaluation, his superiority in the second, third and fourth criteria outweighs Punefu's and Tutuvanu's better hereditary rights to the Tuaolo title.
ORDER
For the reasons set forth above, both motions for reconsideration or new trial are denied.
Punefu's motion for a stay pending appeal is, under T.C.R.C.P. 62(b), premature in the absence of an appeal. For this reason, this motion is also denied. It may be renewed, in the first instance, before the Lands and Titles Division as A.C.R. 18 contemplates, only in the event of an appeal.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486326/ | ATIULAGI, J.,
dissenting:
I would grant the motions for reconsideration or new trial for the reasons stated in my dissent to the court’s opinion and order entered on January 30, 1995. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486327/ | Order Remanding Matter to the Land Commission:
This matter concerns two leases for the same piece of property. The facts relevant to the dispute, as can be gleaned from the pleadings and exhibits on file, are as follows: On July 22, 1963, Savusa Tului ("Tului") entered into a 30 year agreement with Samoa Construction Company ("SCC") for the lease of communal land belonging to the Savusa family of Nu'uuli. The two conflicting leases both purport to take effect at the conclusion of this 1963 lease. On March 13, 1978, Savusa Ropati ("Ropati") Tului's *145successor, entered a lease agreement for the same land with Hugo R. Gebauer, Sr. and Jane May Gebauer ("the Gebauer lease"), which allegedly took effect upon the expiration of the original lease. The original lease allegedly expired on either June 30 or July 1, 1993.
It seems that neither Tului nor Ropati was, at any time, the registered holder of the Savusa title. Savusa Tauileva ("Tauileva"), on the other hand, has apparently been the registered titleholder of the Savusa name since 1974. On June 30, 1993, Tauileva entered into a lease agreement with SCC ("the SCC lease") for the relevant property, and subsequently attempted to register it with the Territorial Registrar. The plaintiffs objected to the offer for registration and the lease was then referred to the Land Commission pursuant to A.S.C.A. § 37.0203. In turn the Land Commission referred the matter to Samoan Affairs for mediation. Samoan Affairs, unable to resolve the dispute, referred the parties to the High Court.
Plaintiffs Logoitinomatagilelei Alama, a descendant of Tului, and the Gebauers, through counsel Ainuu, seek declaratory relief to adjudicate the validity of the Gebauer lease. At the same time, Alama and another descendant of Tului, plaintiff Ann Moetoto, through counsel Ala'ilima, move to dismiss so much of this action as it may relate to their rights affected by the attempted lease to SCC, on the grounds that SCC lease was properly before the Land Commission.
DISCUSSION
According to A.S.C.A. § 1101, a declaratory judgment may not issue unless there is a "case[] of actual controversy relating to the legal rights and duties of the respective parties." In the present case, the plaintiffs have no actual case in controversy unless the Governor approves the SCC lease, which has not yet occurred, and may never occur. To become valid, a lease of native land must be approved by the Governor. A.S.C.A. § 37.0221(a). Before the Governor approves any document affecting title to land, it must be reviewed by the Land Commission for recommendations. A.S.C.A. § 37.0203(a). Accordingly, the Governor may properly consider the recommendation and findings of the Land Commission and make a decision regarding the validity of the two leases in question.
Courts are traditionally loath to interfere prematurely with administrative proceedings and generally will not grant declaratory judgments until administrative remedies have been exhausted, unless such *146administrative remedies are inadequate. Public Utilities Comm. v. United States, 355 U.S. 534, 539-40 (1958). In Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431-434 (1947), the Supreme Court held that there was no actual case in controversy where no party was immediately injured by the regulation which was claimed to be invalid, sufficient to warrant interference in the administrative proceeding. At the same time, we do not find that plaintiffs are injured by the SCC lease which plaintiffs claim is invalid, sufficient to warrant our intervention in the deliberations of the Land Commission or the Governor.
American Samoa has a statutory method of judicial appeal from the final decision of an administrative body, which provides that, "A preliminary, procedural or intermediate agency action or ruling shall be immediately reviewable only if review of the final agency decision would not provide an adequate remedy." A.S.C.A. § 4.1040(c). There is no indication in this case that review of the Land Commission's recommendation and ultimately the Governor's decision in this case would be inadequate.1 Under the provisions of A.S.C.A. § 4.1025(a), all interested parties to a "contested case" are entitled to be heard by the Land Commission. After the plaintiffs have "exhausted all administrative remedies," they may appeal the "final decision" of the agency to the High Court, and in a proper case, either the Governor or the High Court may order the Governor's decision stayed, pending the outcome of the court action, if appropriate. A.S.C.A. § 4.1041(b).
For reasons given, we remand this matter to the Land Commission.
It is so ordered.
For purposes of the statute, the Governor qualifies as an''agency.11 A.S.C.A. §4.1001(a). | 01-04-2023 | 11-18-2022 |
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