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https://www.courtlistener.com/api/rest/v3/opinions/8486328/ | Order Denying Motion For Relief From Judgment:
HISTORY
This matter came on regularly for hearing on July 14, 1995, upon defendants' motion for relief from judgment entered by this court on June 5, 1995. In that judgment, we granted plaintiff summary relief, pursuant to A.S.C.A. §§ 43.1401 et seq., and ordered the eviction of defendant from plaintiff's lunch wagon; plaintiff was also awarded $1,200 from defendant in rent arrearage. We further noted the absence of defendant or any representing attorney at trial. In the motion for relief from judgment, filed June 19, 1995, defense counsel, Albert Mailo, claimed "excusable neglect," and further argued that the judgment was "void" under T.C.R.C.P. 60(b). Counsel Mailo excused himself for neglecting to look at the court's amended summons and therefore failing to notice that trial of the matter had been set for the appointed day. Counsel contends that the judgment is void because defendant holds a lease obtained from the American Samoa Government ("ASG") for the property upon which the *148lunch wagon is located, and is therefore entitled to some type of relief from an absolute eviction. Subsequent to the hearing of defendant's motion, ASG filed a motion to intervene on June 30, 1995, citing its leasehold agreement with defendant for the land on which the lunch wagon has been located.
DISCUSSION
I. Excusable Neglect
Counsel Mailo's inability to keep track of his calendar is hardly an excusable neglect. This court has previously held that an attorney's inexplicable failure to move for a continuance when the attorney and client were off-island was not excusable within the meaning of T.C.R.C.P. 60(b). Scratch v. Sua, 23 A.S.R. 2d 20, 21-22 (Land & Titles Div. 1992); Scratch v. Sua, 22 A.S.R.2d 53, 54 (Land & Titles Div. 1992). In the aforementioned case the attorney was off-island for a family emergency and the client was off-island seeking medical attention, but the failure of counsel to properly seek a continuance made the neglect inexcusable. Id. If medical and family emergencies are not excusable reasons to give relief from a judgment, we are certainly not persuaded that counsel Mailo's overlooking the amended summons is "excusable." On the authority of the U.S. Supreme Court we also rejected substituted counsel's argument that the client should not suffer because of a former attorney's incompetence. Scratch, 23 A.S.R.2d at 21-22 (quoting Smith v. Ayer, 101 U.S. 320, 326 (1879)). Relief with regard to an inexcusable mistake of an attorney lies against the attorney, not relief from judgment. Cf. Davis v. Damrell, 174 Cal.Rptr. 257, 259 (1981).
II. Judgment Void
Defendants assert that their lease of the property on which the lunch wagon rests should prevent an eviction from the lunch wagon itself, rendering the existing judgment void. The question presented by this fact is whether the courts of American Samoa may evict a tenant from a mobile structure without evicting the tenant from the underlying property.
Summary eviction to "recover the premises” for failure to pay rent is taken under A.S.C.A. § 43.1405. The word "premises,” as defined by A.S.C.A. § 43.1401(b) includes "... structures fixed or mobile, temporary or permanent, vessels, mobile trailer homes and vehicles which are used or intended for use primarily as a dwelling or as a place for commercial or industrial operations or storage." In the present case we *149are concerned with a "mobile" structure which is used for "commercial . . . operations". It is therefore "premises" within the meaning of the summary eviction law, regardless of the ground upon which it may be resting at a given time. In other words, we can evict defendants from the "premises" without evicting them from the ground on which the mobile "premises" is located. Defendants may wish to evict plaintiff's lunch wagon from the leased ground, and may attempt to do so in a future action.
In our opinion granting summary eviction, we ordered that "[p]laintiff shall be restored to possession of the said lunch wagon forthwith." Vivao v. Alenepi, CA No. 57-95, slip op. at 3 (Trial Div. 1995). We see no reason to modify this order, but we clarify that the said eviction pertains only to the mobile lunch wagon, and not necessarily to the underlying land which is the subject of the alleged lease. We deny the defendants' motion for relief from judgment.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486329/ | Order Staying Action Until Filing of Certificate of Irreconcilable Dispute and Transferring Action to Land and Title Division:
On April 24, 1995, pursuant to A.S.C.A. §§ 43.1402 and 43.1405(4), plaintiff commenced this action for summary proceedings to repossess land in the Trial Division, alleging that defendants were trespassing on her individually owned land. On May 3, 1995, defendants answered, alleging that the land was communal land of their family. This defense necessarily placed ownership of the land at issue. Other than continuances, the action next came regularly before the court for trial on August 1, 1995.
At the onset, the court raised the fundamental issue of jurisdiction oh its own motion. With title to the land at issue, the court expressed the view that this action on the merits became a controversy relating to land under the exclusive jurisdiction of the Land and Titles Division. A.S.C.A. § 3.0208(b)(2). The court also took the position that the defendants' claim of communal land, even though in defense, invoked the prerequisite filing of a certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs or his deputy as an additional jurisdictional requirement. A.S.C.A. § 43.0302(a). Lastly, the court proposed to follow the procedural precedent of staying the proceedings, pending completion of the dispute resolution process before the Secretary of Samoan Affairs. See Tupua v. Faleafine, 5 A.S.R.2d 131, 132-133 (Land & Titles Div. 1987).
The parties did not interject any viewpoint contrary to the court's opinions. Accordingly, for good cause shown:
ORDER
1. This action is referred to the Secretary of Samoan Affairs for completion of the administrative dispute resolution proceedings under A.S.C.A. § 43.0302(a). The parties shall participate in those proceedings.
2. Further proceedings on the merits in this action are stayed, pending completion of the administrative dispute resolution process and until a *151certificate of irreconcilable dispute, issued by the Secretary of Samoan Affairs or his deputy, is filed in this action.
3. In order to maintain'the status quo with respect to use of the land at issue, the parties shall not enlarge or modify the nature of the present activities carried out on the land, or take any other action materially changing or otherwise affecting those activities or the land.
4. This action is transferred to the Land and Titles Division for all further proceedings.
5. The Clerk of Courts shall deliver a certified copy of this order to the Secretary of Samoan Affairs.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486330/ | Order Denying Motion for Default Judgment and Granting Motion to Dismiss:
BACKGROUND
This matter arises out of, first, two contracts allegedly entered into on or about January 7, 1993, between plaintiff Davoud Rakshan ("Rakshan") and defendant American Samoa Government ("ASG"), represented by defendant Governor A.P. Lutali ("the Governor"), and, second, a tort allegedly committed on or about October 28, 1993, against Rakshan by an ASG employee.
On November 14, 1994, Rakshan filed an administrative claim under A.S.C.A. § 43.1205(a) of the Government Tort Liability Act with the Attorney General for $5,000 as damages for the physical harm and mental suffering as a result of the alleged tort. The Attorney General did not respond to the claim within three months, and on March 14, 1995, as permitted by Section 43.1205(a), Rakshan filed the complaint in this action against ASG and the Governor, in both his official and individual capacities. Rakshan seeks specific performance of the alleged contracts or damages for breach of those contracts, or both. He also now seeks $500,000 in damages for the alleged tort. ASG and the Governor were served with the summons and complaint on March 15, 1995.
On April 4, 1995, 20 days after service of the complaint, ASG and the Governor filed a motion to dismiss pursuant to T.C.R.C.P. 12(b)(6). A copy of this motion was delivered on April 4, 1995, to ASG's mailroom *153for mailing to Rakshan and was postmarked as mailed on April 7, 1995. Rakshan claims not to have received the motion until April 17, 1995.
On April 12, 1995, since ASG and the Governor did not serve an answer on him within 20 days after service of the summons and complaint, Rakshan filed a motion for default judgment. On April 24, 1995, Rakshan supplemented this motion, pointing out that the motion to dismiss was postmarked on April 7, 1995, and reasserting that an answer was not filed within the 20-day period.
On April 26, 1995, Rakshan personally served or attempted to serve subpoenas duces tecum on the Attorney General, Postmaster of the U.S. Post Office, and counsel for ASG and the Governor.
On April 28, 1995, Rakshan filed a memorandum in opposition to the motion to dismiss and, added alternatively to his motion for default judgment, a motion for summary judgment.
On May 3, 1995, ASG and the Governor moved to quash the subpoenas on the Attorney General and their counsel, to strike, pursuant to T.C.R.C.P. 12(f), a portion of Rakshan’s response to tire motion to dismiss as scandalous, and for sanctions against Rakshan for processing unreasonable and specious subpoenas and.bad faith allegations. Rakshan filed a response to this motion the following day.
On May 8, 1995, the several pending motions came regularly for hearing. Rakshan appeared pro se and defendants were represented by counsel. Arguments were heard, and the court granted the motion to quash the subpoenas and took the other motions under advisement.
DISCUSSION
1. Motion for Default Judgment
T.C.R.C.P. 55 states in part:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend ... the clerk shall enter his default, (b) . . . Judgment by default may be entered upon motion of the party entitled to the judgment
Rakshan asserts that he is entitled to a default judgment because ASG and *154the Governor failed to serve an answer upon him within the 20 days as required by T.C.R.C.P. 12(a). This is incorrect for two reasons.
First, filing a motion to dismiss for failure to state a claim, under T.C.R.C.P. 12(b)(6), in lieu of an answer satisfies a defendant's procedural requirement under the law. Rule 12(b) states in relevant part that "[e]very defense . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted."
Second, even if the motion to dismiss was served on Rakshan a few days late,1 we find that the delay is not a compelling reason to grant default judgment. A default judgment is not a matter of right. Appleton Electric v. Graves Truck Line, 635 F.2d 603, 611 (7th Cir. 1980). It is a drastic remedy that should only be granted in extreme situations. Charlton L. Davis & Co. v. Fedder Data Center, 556 F.2d 308, 309 (5th Cir. 1977) (the court may weigh whether or not the moving party indicated that "time was of the essence"); Affanato v. Merrill Brothers, 547 F.2d 138, 140 (1st Cir. 1976). A trial court has sound discretion to determine whether default judgment is appropriate. FTC v. Packers Brand Meats, 562 F.2d 9, 10 (8th Cir. 1977). For these reasons, we exercise our discretion and hereby deny Rakshan's motion for default judgment.
II. Motion to Dismiss
ASG and the Governor move, pursuant to Rule 12(b)(6), to dismiss Rakshan's complaint for failure to state a claim. Rakshan’s complaint alleges three causes of action: (1) ASG and the Governor failed to perform on a written contract to pay Rakshan a 2% commission of the total financial aid received by ASG through the Barkley Banking Corporation of Sydney, Australia ("Barkley Bank"); (2) ASG and the Governor failed to perform on a verbal promise to give Rakshan immigration resident and work status in American Samoa, and employment with ASG, if Rakshan assisted in providing medical supplies to ASG; and (3) Rakshan was willfully assaulted by an ASG employee with the intent to cause serious bodily harm.
*155A. Written Contract
Although we recognize the fact that a written contract was executed by the Governor, promising Rakshan a 2% commission if he procured financial aid for ASG from the Barkley Bank, the contract does not support relief in this case.2 It is important to note at the outset that Rakshan does not allege that he procured any financial aid according to the terms of the agreement, nor does he pray for monetary relief based on a commission for such procurement. Rakshan claims, however, that he is unable to perform the services contemplated by the contract without immigration status to reside and work in American Samoa to enable his representation of ASG.
In the first place, this document contains neither an express nor an implied promise to provide Rakshan with immigration status to reside and work here. The document represents, if anything, an option contract which promises Rakshan compensation under specified conditions. The contract in no way anticipated that ASG would be responsible for making these conditions possible. Furthermore, Rakshan gives no indication as to why he would be unable to negotiate with the Barkley Bank without such immigration status, despite the Governor's written authorization.
Most important of all, Rakshan harbors the illusion that the Governor is above the law and has unilateral or overriding authority to promise him such immigration status without complying with the immigration laws and administrative rules of American Samoa. The Governor may direct immigration officials to process applications concerning immigration status, but the Immigration Board exclusively makes status determinations, and the Attorney General is responsible for the overall administration and enforcement of the immigration laws of American Samoa. A.S.C.A. §§ 41.0205 and 41.0206.
It is basic contract law that a promise to perform an illegal act is unenforceable. Furthermore, it is long established that a contract entered into by a government official lacking authority, or failing to follow proper procedures, is void. Whiteside v. United States, 93 U.S. 882, 884 (1876); State v. Cleveland Trinidad Paving, 171 N.E. 837, 840 (Ohio 1829); State *156v. L.W. Eaton, 392 So. 2d 477, 479-80 (La. 1980). The Governor may not circumvent orderly procedures for government operations, because such procedures are designed to safeguard the public interest.3 Id. Private parties' contract claims cannot be allowed to compromise the public interest because of unauthorized actions of government officials, governors included. See id. When public officials circumvent orderly procedures, they defeat the basic purpose of those procedures.
For these reasons, we must dismiss this aspect of Rakshan's complaint.
B. Verbal Promise
Rakshan also claims that the Governor reneged on a verbal promise to give Rakshan immigration status to reside and work in American Samoa, and employment with ASG, if Rakshan assisted in providing medical supplies to ASG. The foregoing discussion of the Governor's inability to promise such immigration status is equally applicable to these claims.
In addition, the Governor lacked authority to promise Rakshan employment with ASG. The Director of Manpower Resources, not the Governor, has the statutory authority to administer the personnel laws of American Samoa. A.S.C.A. §§ 4.0335 and 7.0110; A.S.A.C. §4.0102. The Director generally makes permanent, initial appointments to classified and excepted positions in the civil service system known as the "career service," based as a matter of public policy on merit and fitness, ascertained by competitive examination when practicable, and accounting for the length and quality of previous service. A.S.C.A. §§ 7.0207(a)(1) and (2), 7.0204, 7.0205, and 7.0206; A.S.A.C. §§ 4.0101 and 4.0301-4.0311(a). Employees hired by initial appointments outside of the career service but also under prescribed procedures include: (1) persons in temporary positions needed for periods not exceeding one year; (2) nonresident contract specialists for specified periods; (3) persons in emergency positions for 30 to 60 days; and (4) persons in disaster emergency positions up to 10 days. A.S.C.A. § 7.0207(a)(4); A.S.A.C. §§ 4.0311(b) and (c), and 4.1001-4.1002. The only other recognized ASG officials are judges and occupants of elected or appointed political positions. A.S.C.A. §§ 4.0112 and 7.0203.
Based on the laws and administrative rules of American Samoa, any *157promise for employment made by the Governor is not binding or enforceable. Therefore, this portion of Rakshan's complaint must also be dismissed.
C. Assault
A.S.C.A. § 43.1203 states in part that the Government Tort Liability Act does not apply to "(5) any claim arising out of assault, battery . . . ." Although the court might well sympathize with the defenseless victim of this alleged vicious beating by a female nurse with a stethoscope, we must comply with the plain language of this statute. It is clearly dispositive of this issue, and therefore, we must also dismiss this element of Rakshan's complaint.
III. Motion for Summary Judgment
If Rakshan fails to meet the threshold test for avoiding dismissal of his complaint, then his motion for summary judgment is plainly inappropriate. In other words, if Rakshan has not shown a basis for any legal claim upon which relief can be granted, then he has failed to show that he is entitled to judgment as a matter of law.
IV. Motion to Strike and Impose Sanctions
ASG and the Governor moved to strike and impose sanctions on Rakshan for his "scandalous" allegation that the file stamp on the motion to dismiss was back-dated, placing the motion within the deadline for response to Rakshan's complaint. Rakshan alleges that he was told by court personnel that no response had been entered by ASG and the Governor as of April 11, 1995, and became alarmed when the motion to dismiss appeared file-stamped with the date April 4, 1995. In light of these circumstances, Rakshan's belief that an impropriety may have occurred in relation to the dating of this motion has some reasonable basis and does not indicate bad faith.
Furthermore, T.C.R.C.P. 12(f) only permits the court to strike scandalous material from a pleading and not from a motion. Since the alleged scandalous statement by Rakshan is not included in a pleading, we cannot grant the motion to strike it. It is also unimportant whether we strike the scandalous allegation or not, because in dismissing the complaint, we effectively strike all allegations.
ASG and the Governor also seek sanctions against Rakshan for personally *158serving subpoenas upon the Attorney General and counsel for ASG and the Governor in light of T.C.R.C.P. 45(c), which requires that subpoenas be served by someone who is not a party to the litigation. The subpoenas were quashed by this court from the bench. To award sanctions for a procedural mistake by a pro se litigant would be unduly harsh, and would discourage impoverished persons with potentially valid claims from seeking relief in the judicial system.
ORDER
We deny Rakshan's motions for default judgment and summary judgment. We grant the motion by ASG and the Governor to dismiss Rakshan's complaint, pursuant to T.C.R.C.P. 12(b)(6). We also deny the motion by ASG and the Governor to strike and'impose sanctions.
It is so ordered.
ASG and the Governor argue that default judgment is inappropriate because they filed the motion within the 20 day requirement, but Rule 12(a) states that "the defendant shall serve his answer within 20 days ..." (emphasis added). Although service of the motion by mail was commenced on April 4. 1995, as properly certified by counsel for ASG and the Governor, actual mailing was not completed until April 7, 1995.
It is doubtful whether the Governor had authority to procure financial aid under this arrangement, since the Chief Procurement Officer holds centralized procurement authority. A.S.A.C. § 10.0210. Although the foregoing administrative rule permits the Governor to grant authority to other persons by "executive order," it is doubtful that there was any valid executive order under the requirements of A.S.C.A. § 4.1001 et seq.
Procedures controlling the bestowal of immigration status are designed to protect the Samoan people against alienation of their limited land and resources, and to promote business enterprises by American Samoans. A.S.C.A. § 41.0201. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486331/ | Opinion and Order on Petition for Declaratory Relief:
FINDINGS
The parties have presented the following stipulation:
Eugene Reid and Tuputausi Reid are residents of the village of Tafuna, County of Tualauta, American Samoa. They are legal owners of land "Taileau" located in Tafuna, duly registered as individually owned land, and recorded in the Office of the Territorial Registrar in Land Transfers, Volume 3, at page 202. On March 23, 1995, Eugene and Tuputausi Reid executed a Deed of Conveyance containing an area of approximately 0.30 acre more or less of the portion of land "Taileau” above-referenced to Feleti and Senuefa Viliamu. When Feleti and Senuefa Viliamu tried to register their Deed of Conveyance they were told by the Territorial Registrar's Office that they would have to go through a notice of registration process in which they would have to submit affidavits from the village major (pulenu'u), newspaper, and clerk of court verifying that the posting requirements have been satisfied for sixty (60) days before the deeds would be registered.
The Territorial Registrar was acting pursuant to a legal opinion issued by the Attorney General dated April 24, 1995, marked Exhibit "A", filed herewith and incorporated hereto as part of this stipulation by its reference. The Territorial Registrar is requiring all applicants for registration and transfers of any land to Notice the proposed registration and/or transfer of land and to provide affidavits of the notices from the pulenu'u, newspaper, and clerk of court stating that notice has been given.
The Reids have brought this complaint for a Declaratory Relief action regarding the Legal Opinion of the Attorney General. The plaintiffs state that the opinion of the Attorney General misinterprets the laws and statutes regarding registration of lands, and in particular, A.S.C.A. § 37.0103(c).
*160The referenced Attorney General's opinion ("AG Opinion") effectively holds, and accordingly instructs the Territorial Registrar, that the notice requirements of A.S.C.A. § 37.0103(c) apply not only to the initial registration of title to previously unregistered land, but also to every recorded transfer or conveyance of title to that land. The Reids bring this action, asking this court to declare that the AG Opinion misinterprets the requirements of the notice provisions, and to declare whether or not they are required to comply with the said provisions.
CONCLUSIONS
The AG Opinion is inconsistent with Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (App. Div. 1991). There the Appellate Division distinguished between registering title to land, pursuant to Chapter 1, of Title 37, and registering an instrument to alienate title to land, pursuant to the succeeding Chapter 2 of Title 37, as separate and distinct processes with separate and distinct purposes and consequences.
The title registration process is essentially a quiet title mechanism which provides all rival claimants to land an opportunity to resolve once and for all the issue of title or ownership to that land. Id. at 94-95. It applies only to land "not previously registered," A.S.C.A. § 37.0101(a), and once this registration process is complete, the registered owner is conclusively presumed to be the owner of the land to the preclusion of every one else. Ifopo v. Siatu'u, 12 A.S.R.2d 24 (App. Div. 1989). In the context of tide registration, a one-time occurrence, the dictates of due process are readily apparent and, hence, the notice requirements of Chapter 01.
On the other hand, the registration process pertaining to instruments alienating title to land, covered by the succeeding Chapter 02 of Title 37, is merely in effect a "recording" procedure. Vaimaona, at 94. A conveyancing instrument, such as a deed, does not certify ownership of the land but merely publicly attests to the fact that one person's interest in land, whatever that may be, has been conveyed to another. The requirements of procedural due process are hardly apparent in this context; however, in order for title to pass, according to the land alienation law, a deed of conveyance must be registered. A.S.C.A. § 37.0210. The registration process covered by Chapter 2, of Title 37 does not entail a notice requirement inviting the world to again contest title to previously registered land on each occasion that title is conveyed. This would effectively render the Chapter 1 registration process nugatory, and its 60 day limitations period meaningless. A deed of conveyance may, therefore, *161be registered without meeting the notice requirements of A.S.C.A. § 37.0103.1
DECLARATION AND ORDER
The Reids are entitled to have their deed to the land "Taileau," given and delivered to the Viliamus, registered with the Territorial Registrar pursuant to A.S.C.A. § 37.0210, without being required to go through the notice requirements set forth in A.S.C.A. § 37.0103. The Territorial Registrar is directed to accept for registration the said Reid-to-Viliamu deed.2
Judgment shall enter accordingly.
It is so ordered.
On the other hand, the issue of the Reids' title to "Taileau" is not before üs and we intimate no opinion whatsoever on that issue.
One practice of the Territorial Registrar's office that can be cause for public confusion is its issuance of "Certificates of Registration" to subsequent grantees, following a transfer of title. These "Certificates of Registration" misleadingly project title certification in and to the grantee, whereas the deed registration process under Chapter 2, Title 37, A.S.C.A. § 37.0210, amounts to nothing more than a "recording" exercise, antecedent to a valid alienation. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486332/ | Opinion on Remand:
BACKGROUND
On December 19, 1989, plaintiff Sánele Ale ("Ale") was struck by a vehicle while at work on the American Samoa Government's dock area. The vehicle was driven by defendant Siatu'u Fa'asiu ("Fa'asiu") in the scope of his employment as an employee of defendant Peter E. Reid Stevedoring, Inc. ("Reid Stevedoring"). On May 7, 1993, this court found Reid Stevedoring vicariously liable for damages arising out Fa'asiu's negligent operation of a truck and awarded Ale $25,000 in damages as the result of three broken ribs and lung contusion. However, we did not award Ale damages for his claim of accident-related progressive weakness and sensory loss on his left side. Ale moved for appeal on this issue.
On March 1, 1994, the Appellate Division of the High Court affirmed the following trial court findings: 1) Fa'asiu was negligent in operating the vehicle; 2) Reid Stevedoring was vicariously liable, under the doctrine of respondeat superior; and 3) the accident was the proximate cause of Ale's three broken ribs and lung contusion. The Appellant Division additionally concluded on review of the record and the lower court's discussion of the evidence that Ale did suffer weakness and sensory loss to his left side, but found that the issue of causation "needs to be examined at greater depth." The appellate court, therefore, remanded the case to the trial division with the mandate to allow the parties "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."
ISSUE ON REMAND
In our decision of May 7, 1993, we held that Ale had failed to submit sufficient evidence at trial to prove that it was more probable than not that the symptoms of weakness and sensory loss on his left side were caused *163by the accident. The sole issue on remand is whether or not the accident was the proximate cause of the symptoms. We reiterate at the outset that Ale has the burden of proof to establish a reasonable basis for the conclusion that the accident was, more probable than not, the proximate cause of his symptoms of weakness and sensory loss on his left side. Prosser & Keeton on Torts, § 41 at 269 (5th ed. 1984). Mere possibilities are not enough.
DISCUSSION
On remand, Ale subpoenaed one expert witness, Dr. Aloiamoa Anesi, an internist with the LBJ Medical Tropical Center, who also testified at trial. Dr. Anesi's testimony at the remand hearing was essentially a restatement of his prior testimony, the force of which we considered at trial. He testified that Ale's symptoms "must be" related to the accident. This conclusion is the same reached by Dr. Anesi at trial and offers nothing new to his prior testimony. His testimony is not based on any additional medical reports, tests, and/or explanations, except for an examination of Ale that Dr. Anesi had performed one month before the day of the remand hearing. This examination did not offer anything new regarding the issue of causation, although Dr. Anesi did note that the strength in Ale's left leg had "somewhat" improved. Dr. Anesi further testified that neither a CAT SCAN nor any other objective medical test was ever performed on Ale even though a CAT SCAN would have conclusively shown whether or not there was cerebral injury. Ale was not examined by any other doctors in anticipation of the remand hearing.
Dr. Anesi's testimony that Ale's symptoms were caused by an injury to his brain, an organic pathology,1 was not based on any definitive medical testing. His conclusion was essentially grounded on the assumption that Ale was concussed by the accident, which resulted in oxygen loss to the brain, and which in turn gave rise to Ale's symptoms of progressive weakness to his left side. At trial, Dr. Anesi had explained that his concussion premise was in part based on an entry in Ale's medical report stating that he was "knocked out," and in part on what the patient himself had told him. However, we seriously doubted, on the strength of the sworn testimony before us at the time, that Ale had at all lost consciousness immediately after the accident, as he has claimed. Again without a CAT SCAN or any other objective test, Dr. Anesi's conclusion *164of concussion can be, in our view, no more than a medical guess based alone on the fact that certain symptoms exist. On the other hand, evidence received at trial in the way of reports from other doctors who had examined Ale, alluded to alternative causative possibilities~that Ale's symptoms might be inorganic in pathology, or even trumped up altogether. At the same time, at least one consulting physician was unwilling to hazard a guess on cerebral injury, an organic pathology, without conclusive testing.2 It is also significant to note that when apprised of a beating which Ale had received in Pago Pago earlier in 1989, which according to Ale had rendered him unconscious, Dr. Anesi at the remand hearing allowed the possibility that Ale's current physical condition could be medically related to the 1989 beating, if Ale had lost consciousness after the incident. While this is also inconclusive evidence that admits no more than possibilities, the possibility that the Pago Pago beating is causally related to Ale's symptoms only adds to our uncertainty as to the proximate cause of those symptoms, given the weight of available medical opinion. In any case, the burden is on Ale to demonstrate that it is more probable than not that the accident was the cause his symptoms rather than the defendants' burden to prove that something else was the more probable cause of plaintiff's symptoms. For the reasons stated above, we find that Dr. Anesi's testimony at the remand hearing is insufficient to sustain a finding that the accident was more probable than not the cause of Ale's symptoms of left side weakness.
CONCLUSION
Ale has failed to offer sufficient evidence for the court to conclude that it is more probable than not that his symptoms of weakness and sensory loss on his left side are a direct result of the accident. Therefore, judgment shall enter in favor of defendants on the issue remanded.
It is so ordered.
Dr. Anesi's position is antithetical to a conclusion of conversion reaction, which is an inorganic psychological pathology.
Such testing while available off-island and sought by local physicians, was inexplicably omitted when Ale was referred off-island. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486333/ | Order of Joinder:
The government moves to join these two cases relating to various offenses charged which were allegedly committed by the same defendant in two separate and unrelated incidents. The government alleges that on March 27, 1995, the defendant severely beat his mother-in-law and father-in-law with a rock following a surprise attack on his father-in-law, and amid the confusion created by the assault, he stole his mother-in-law's purse containing money and identification documents. On this basis, the defendant is charged with Burglary in the First Degree, Assault in the Second Degree, Assault in the Third Degree, and four counts of Stealing. *166(CR No. 36-95).
In a separate action, the government alleges that on July 14, 1995, the defendant, armed with a rock, forcibly stole money from the KS Amusement Center and that in the course of this theft he utilized a rock to inflict serious physical injury upon the night clerk in a surprise attack. On this basis, the defendant is charged with Robbery in the First Degree, and Assault in the First Degree. (CR No. 39-95). The Government seeks to join all these offenses resulting from the aforementioned incidents, pursuant to T.C.R.Cr.P Rule 8(a).
DISCUSSION
T.C.R.Cr.P. 8(a) permits joinder of offenses:
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, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Broad interpretation of this rule is encouraged in the interest of efficiency. Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966). "Judicial economy and legitimate public interests favor a joinder of all offenses against the accused." United States v. Dennis, 625 F.2d 782, 801 (8th Cir. 1980). Whether joinder of offenses or defendants is appropriate is determined on a case by case basis. Haggard, 369 F.2d at 974.
In the joinder of counts pertaining to separate defendants under T.C.R.Cr.P. 8(b), "[m]ere factual similarity of events will not suffice," but "[rather there must be some greater 'logical relationship' between the occurrences" in order for joinder to be proper. United States v. Ford, 632 F.2d 1354, 1372 (9th Cir. 1980) (construing F.R.Cr.P. 8(b), which T.C.R.Cr.P. 8(b) mirrors). Nevertheless, counts pertaining to the same defendant under T.C.R.Cr.P. 8(a) may be joined if they "are of the same or similar character." This is true, even if the offenses are "distinct," and unrelated. United States v. Werner, 620 F.2d 922, 927 (2d Cir. 1980). Rule 8(a) recognizes the adverse effect on the defendant of having evidence of multiple unrelated crimes presented in one proceeding, but "considers this to be outweighed by gains in trial economy when one of the criteria of the rule are met." Id. at 929. For this reason, a defendant must show strong or substantial prejudice flowing from the joinder to *167demonstrate an abuse of discretion by a trial court. Id. at 928.
In the matter at hand, the defendant is accused of two unrelated incidents. Both incidents involve surprise attacks, violent assaults using rocks, and the theft of money. The two events are strikingly similar, to the point that it may be persuasively argued that they are of precisely the "same . . . character," satisfying T.C.R.Cr.P. 8(a). In view of these factors, joinder appears proper and in the public interest. The government's motion to CR No. 36-95 and CR No. 39-95 is, therefore, granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486334/ | Order Denying Motion for New Trial:
In our opinion and order entered on June 27, 1995, in this case, we held void two trusts which vested the legal title to individually owned land in a Samoan and the beneficial interest in non-Samoans. On July 7, 1995, plaintiffs moved for a new trial. The hearing on the motion was held on August 9, 1995, with counsel for all parties present.
DISCUSSION
I. Written Grounds
Plaintiffs written motion listed four grounds for a new trial. In each ground, plaintiffs stated that the court erred in making certain decisions, but they did not provide any written reasoning for their general conclusions. They also failed to expand on their assertions during oral argument.
T.C.R.C.P. 7(b) requires that motions, "unless made during a hearing or trial, shall be made in writing, [and] state with particularity the grounds therefor. ..." The court has previously articulated that this rule is especially important in motions for a new trial to "put the trial judge and the opposing party on fair notice of the particular errors that will be alleged on appeal" and "to avoid unnecessary appeals by giving the trial judge a chance to see the errors of his ways." Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 175 (1987).
The generality adopted by plaintiffs in stating the grounds for a new trial in this motion comes very close to rendering the motion a nullity. See United States v. 64.88 Acres of Land, 25 F.R.D. 88 (1980). In any event, however, we believe that we adequately addressed the four topics raised in the motion in the opinion and order and will, without having the benefit of any further elaboration by plaintiffs, deny the motion as to the four grounds stated in the written motion.
II. Oral Grounds
*169At the hearing, plaintiffs orally claimed that given the voidance of the trusts under the opinion and order, the court should have ordered the reversion of the individually owned lands held in the trusts to the original owners rather than to defendant Magdalene Vaivao Craddick ("Magdalene"), who held the legal title to these lands under the two trust arrangements.
Plaintiffs are not entitled to consideration of this argument under the mandates of Rule 7(b). However, despite plaintiffs' cavalier approach, this point deserves present comment.
A party has no standing to sue without an "injury-in-fact," or a "direct stake in the controversy." See Vaomatua v. American Samoa Gov't, 23 A.S.R.2d 11, 13 (Land & Titles Div. 1993); Solomona v. Governor, 17 A.S.R.2d 186, 192 (Land & Titles Div. 1990); Harrington v. Bush, 553 F.2d 190, 197, 204-06 (D.C. Cir. 1977). The purpose of this rule is "to protect against improper plaintiffs," by requiring the plaintiff to prove ah interest in the suit which "surpasses the common interest of all citizens in procuring obedience to the law." In re Biester, 409 A.2d 848, 851 (Pa. 1979). "To surpass the common interest, the interest is required to be, at least, substantial, direct, and immediate." Id.
At the hearing, plaintiffs essentially conceded that they had no standing to challenge our decision invalidating the trusts with respect to the rights of the original grantors of the lands. They pursued this argument, however, because of alleged economic impact of the decision on persons who are not parties to this action. v
Plaintiffs' idea of furthering public policy goals by resort to the courts is misplaced, and is in fact one of the principal reasons for placing limitations on standing to sue.
Demonstrating personal harm of some sort is crucial because this "gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders." United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 699, 687 (1973). As such "a mere 'interest in a problem,' no matter how qualified the organization is in evaluating the problem, is not sufficient to establish standing." Sierra Club v. Morton, 405 U.S. 727, 739 (1972).
Vaomatua v. American Samoa Gov’t, 23 A.S.R.2d 11, 13 (Land & Titles *170Div. 1993).
Furthermore, our decision only adjudicated plaintiffs' claims against Magdalene and her counterclaims against plaintiffs. We found, by virtue of the land alienation laws, that the trusts were void, and that the non-Samoan trust beneficiaries consequently have no interest in the trust lands. The decision was not intended to adjudicate Magdalene's rights against anyone other than the trust beneficiaries who were parties to this action. We did not foreclose the possibility that other third parties may have potentially valid claims against her. It would, therefore, be inappropriate for us to presage any adjudication of the rights of the original grantors or others who are not parties and cannot present their own interests in this action.
The 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/8486336/ | Order Denying Petition for Writ of Mandamus:
This matter concerns the adoption of three American Samoan children in the Courts of Western Samoa, by a couple who are citizens and residents of New Zealand. The children currently face the possibility of being deported from New Zealand, because New Zealand immigration authorities insist that the children present birth certificates certifying that the children's adoptive parents are the lawful parents. The Registrar of Vital Statistics has declined to issue amended birth certificates. *176Consequently, the birth mother of all of the adopted children, along with her husband, petition this court for an extraordinary writ to compel the Registrar of Vital Statistics to issue amended birth certificates certifying that the adoptive parents are the lawful parents.
The standard for issuing the alternative writ of mandamus is that the petitioner must make out a prima facie case for granting the peremptory writ. Black v. State Personnel Board, 289 P.2d 863, 866 (Cal. 1955); see also Bair v. Mayor, 221 A.2d 643, 646 (Md. 1966). The standard for granting the peremptory writ of mandamus, as set forth in T.C.R.C.P. 90, is interpreted by this 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).1
The petitioner will fail the second prong of this test unless he/she establishes that the duty of respondent is purely "ministerial." Id. A duty is ministerial only if it is clearly proscribed and does not involve an exercise of judgment or discretion. Cf. Thomas v. Vinson, 153 F.2d 636, 638 (D.C. Cir. 1946); Bryant & Chapman v. Lowell, 27 A.2d 637, 639 (Conn. 1942). In the present matter, the petitioners simply cannot demonstrate the existence of a "plain right," to compel the action sought of the Registrar, nor the existence of a "plain duty," on the Registrar to amend the birth registry pursuant to a foreign decree of adoption.2 Petitioners' cite to In Re Puailoa, 13 A.S.R.2d 22 (Trial Div. 1989), for the proposition that American Samoa should accept adoption decrees from Western Samoa as a matter of comity, is misplaced. In Puailoa, we actually declined to require the registration of a foreign adoption decree in American Samoa and refused to give a "blanket declaration to the effect that Western Samoan adoption decrees ought to be given full faith and *177credit in American Samoa." Id. at 24. Whether comity principles will prevail "is dependent on wide ranging local policy considerations," including whether the foreign proceeding comports with our notions of due process. Id at 24. These are clearly issues involving judgment and discretion.
Since there is no clear and non-discretionary duty for the Registrar of Vital Statistics to register the adoption decrees of foreign nations, a writ of mandamus will not issue and the petition is, therefore, denied.
It is so ordered.
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. 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)).
Cf. A.S.C.A. § 45.0424(b). This enactment clearly imposes a non-discretionary, ministerial duty on the Registrar of Vital Statistics to amend the birth registry pursuant to a decree of Adoption of the District Court of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486338/ | Order Directing Plaintiff to Secure Surety Bond or to Deposit Funds:
PROCEDURAL HISTORY
On June 13, 1995, this court issued a preliminary injunction, enjoining defendants, together with their officers, servants, employees, and attorneys, and those persons acting in concert or participation with them, from selling, transferring, encumbering, attempting to sell, transfer, or encumber, from taking possession of, attempting to take possession of, removing, or attempting to remove from American Samoa or elsewhere, any of the aircraft, including two DeHavilland Twin Otter aircraft ("N711AS" and "N28SP"), currently possessed by plaintiff Samoa Aviation Inc. ("Samoa Air").
Defendants were preliminarily enjoined as long as the written undertaking, required by A.S.C.A. § 43.1309(a) and previously filed by Samoa Air, in the sum not to exceed $500,000 with James A. Porter and Constance Marie Porter ("the Porters") as personal sureties, remained in full force *180and effect. Samoa Air filed this undertaking on May 11, 1995, as the court the directed, to maintain the preliminary restraining order then in effect pending the hearing on the application for a preliminary injunction.1
On July 14, 1995, defendants moved this court either to dissolve the injunction on the ground that the present undertaking is not secured by sufficient sureties, or to require Samoa Air and the Porters to secure the undertaking by depositing with the court funds or pledges of property in American Samoa equal in value to the undertaking or $8,500 per week as the required amounts payable by Samoa Air to defendants under their various agreements. The motion came regularly for hearing on August 17, 1995. Both parties were represented by counsel.
DISCUSSION
A.S.C.A. § 43.1309(a) requires, prior to the issuance of a preliminary injunction, a written undertaking with sufficient sureties to assure that enjoined parties will receive the costs and damages that they may sustain by reason of the injunction, if the court decides that the applicant should not have been entitled to the injunction or should pay damages as the court may determine.
Defendants contend that the preliminary injunction should be dissolved because the undertaking is legally inadequate with the Porters, in their individual capacities, as personal sureties. They claim that the Porters have not shown that they are able to pay up to $500,000 in the event the defendants prevail on the merits. A trial date has not yet been scheduled, and the parties may not be ready for trial for several months. Therefore, if the defendants then prevail, plaintiff could owe a substantial amount to them. However, at this juncture, dissolving the injunction is inappropriate as a drastic and unnecessary option.
Under this scenario, defendants suggest two alternatives. First, either Samoa Air files a corporate surety bond in the amount of $500,000, or Samoa Air and the Porters deposit with the court funds in this amount or property locally situated of this value. Second, Samoa Air pays into the court registry $8,500 per week. Requiring either a corporate surety bond or a deposit of funds or property is appropriate in view of the prospective *181lapse of time before trial and defendants' potential recovery. The weekly payment proposal is likewise reasonable.
The weekly payment suggested is approximately the combined amount that Samoa Air was paying defendants under their several agreements until February 1994. At that time, Samoa Air lowered the weekly payments, unilaterally, from $8,555 to $5,100. It then paid the lower amount until either February or April 1995, at which time Samoa Air stopped making payments altogether. This action arose out of defendants' immediate reaction to the payment stoppage.
Since the legal status of N711AS and N43SP is the main remaining issue in this matter, the payment schedules for them may be appropriately used to calculate an equitable weekly amount to pay into the court registry. Under the agreements, the amounts payable were $7,395 per month for N711AS and $8,874 per month for N43SP, which together equal $3,754.39 per week, based on a 52 week payment program.
ORDER
We deny defendants' motion to dissolve the preliminary injunction, but will require Samoa Air to provide additional surety for the undertaking.
The undertaking of $500,000 with the Porters as personal sureties will remain in place. In addition, no later than October 2, 1995, and pending final disposition of this matter or until further order of the court, Samoa Air shall:
(1) file with the clerk of courts a corporate surety bond in the amount of $500,000; or
(2) deposit, or cause either or both of the Porters to deposit, with the clerk of court cash in the sum of $500,000 or one or more pledges of property within American Samoa having a total value of $500,000, or a combination of cash or pledges totaling $500,000; or
(3) file a corporate surety bond and deposit cash and/or pledges of property in the aggregate amount of $500,000 with the clerk of courts; or
(4) pay into court registry $3,750 in cash and the same amount on Monday of each week thereafter.
It is so ordered.
In addition to the undertaking, Samoa Air also filed a copy of its certificate of insurance with defendants Pace Aviation, Ltd. and Pal Air, Inc. listed as added loss payees. On May 10, 1995, in chambers, the parties agreed that the continued existence of the temporary restraining order was contingent on Samoa Air's filing of these two documents. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486339/ | Order Denying Motion for Reconsideration:
On May 30, 1995, this court denied plaintiff Gary W. Bradcock's claim for relief under the Government Tort Liability Act on the basis of laches. Bradcock now moves for reconsideration, arguing that we should strictly follow our holding in Mataipule v. Tifaimoana, 16 A.S.R.2d 48 (Trial Div. 1990) ("Mataipule"). Bradcock further argues that our decision is erroneous because we did not hear evidence regarding the reasonableness of his delay in filing his case.
DISCUSSION
This well-reasoned motion to reconsider presents an excellent illustration of our concern that, without legislative line-drawing, interpretation of the statute of limitations for government tort claims is inherently hazardous business. Bradcock v. American Samoa Gov't, supra, 28 A.S.R.2d 66, 68 n. 1 (Trial Div. 1995). Until the legislature creates separate limitation periods for filing the administrative claim and the subsequent lawsuit, it will remain difficult for the courts to vindicate legislative intent.
I. The Mataipule Rule
According to Bradcock, Mataipule stands for the principle that a tort claim against the government accrues at the time the administrative claim is denied, and the timeliness of the administrative claim is governed by common law laches doctrine. Contrary to Bradcock's contention, we did in fact apply Mataipule, although questioning its validity. For this reason, the continuing vitality of Mataipule is not an issue which would change our decision. Our application of the "laches" segment of Mataipule, however, merits additional discussion.
II. Laches
In Bradcock's case, we pointed to the fact that Bradcock waited almost 10 months after denial of the administrative claim to file his court action, unlike the Mataipule plaintiff, who had the court case ready and waiting as soon as the administrative claim was denied. We made this point only to illustrate the practical absurdity of allowing a laches period of almost two years prior to the filing of the administrative claim, and then an *184automatic fresh two year period following the denial of the administrative claim. That interpretation of Mataipule could effectively create an unacceptable four year limitation period in which the government could be sued. This very problem was the basis for this court's later criticism of Mataipule.
... 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 sued by private persons.
Randall v. American Samoa Gov't, 19 A.S.R.2d 111, 116 (Trial Div. 1991). The intent of the Government Tort Liability Act (A.S.C.A. § 43.1202 et seq.) is most certainly not to create a four-year limitation period in which the government can be sued in tort.
There are two rules which could potentially be used to interpret the laches analysis in Mataipule. One possibility provides a reasonable time within which the administrative claim must be filed or else the statute will accrue anyway, in effect an extension of the statute of limitations to allow for the filing of the administrative claim. The second possibility is to apply the statute of limitations by analogy.
A. Reasonable Time
In light of the Randall court's persuasive criticism of Mataipule, laches analysis should take into account the overall delay in bringing the action into court, and not merely the delay in bringing the administrative claim. Additionally, the Mataipule court approvingly quoted language of the California Court of Appeals:
[W]hen plaintiff's right of action depends upon some act which he has to perform preliminarily to commencing suit, and he is under no restraint or disability in performance of such act, he cannot suspend indefinitely the running of the statute of limitations by a delay in performing such preliminary act, and ... if the time within which such act is to be performed is indefinite or not specified, a reasonable time will be allowed therefor, and the statute will begin to run after the lapse of such reasonable time.
Mataipule, 16 A.S.R.2d at 53 (quoting Valvo v. University of Southern California, 136 Cal Rptr. 865, 869 (1977) (emphasis added)); See also *185Scates v. State, 383 N.E.2d 491, 493 (Ind. 1978) (cited in Mataipule, 16 A.S.R.2d at 54). The.foregoing language indicates that the statute of limitations may begin to run before the filing of an administrative claim if the prospective plaintiff unreasonably delays the administrative filing.1 In the present case, the plaintiff delayed filing his court action for almost 10 months after denial of the administrative claim, which was too long a period in light of his 21 month delay prior to filing the administrative claim. In light of the Randall court's criticism of Mataipule, we should ordinarily limit litigants to some overall period resembling the two-year statute of limitations imposed upon litigants suing private defendants, while taking into account the extra time required for exhausting administrative remedies.2
B. The Statute of Limitations Applied bv Analogy
Of the eight authorities cited by the Mataipule court in support of a. "reasonable time" limitation for the filing of the administrative claim, only two directly utilize the term "laches." In one of those two cases the statutory limitation period was applied by analogy without resort to equitable considerations, because the plaintiff had unilaterally delayed (for longer than the limitations period) the filing of a claim with the Commissioner, which, if denied, would have perfected his right to sue, causing the statute of limitations to accrue. Jackson v. Tom Green County, 208 S.W.2d 115 (Tex. 1948). In the other case, the relevant court recognized an exception to the rule that a statute of limitations accrues when the right to sue is perfected, where the prospective plaintiff controls a condition necessary to perfect the right and unreasonably delays the fulfillment of the condition. Wade v. Jackson County, 547 S.W.2d 371, 374 (Tex. 1977). In the present case, Bradcock's obligation to exhaust his administrative remedies before filing suit was under his control. It is intuitive from a reading of both of the aforementioned cases that when the limitation period is applied by analogy, it should not later be applied literally, effectively doubling the limitation period. The statute of limitations may be applied by analogy to guide laches analysis where the prospective plaintiff has the power to perfect his right to sue, and he/she *186unreasonably delays perfecting the right. If the delay in perfecting a right to sue is out of the plaintiff's control, the cause of action will unquestionably accrue when the right is perfected, but if the plaintiff controls the condition, he must perfect the right within a "reasonable time" which is measured using the limitation period as an analogy in the absence of circumstances justifying a longer delay. Hamrick v. Indianapolis Humane Society, 174 F.Supp. 403, 408-09 (S.D. Ind. 1959) (cited in Mataipule, 16 A.S.R.2d at 54). When deciding whether the plaintiff perfected his right to sue within a "reasonable time" the court may consider not only when the administrative claim was filed, but when it "could have been" filed. See id. at 408. The express purpose of this rule is to prevent the frustration of legislative intent by allowing a plaintiff to unilaterally extend his/her own limitation period. Jackson at 117-18; Wade at 374.
The underlying purpose behind the Mataipule rule was not to give litigants suing the government an extended limitation period based on non-sequitur equitable considerations as Bradcock implicitly contends. Rather, it was intended to prevent the "mauling of the statute" which would result if the government were permitted to sit idly by at its option, and watch the statute of limitations run on a tort claim which was filed with the Attorney General in a timely manner. Mataipule, 16 A.S.R.2d at 50, 55.
III. Mataipule's Alternative Holding
Our alternative holding in Mataipule tolls the statute of limitations during the pendency of the administrative claim on the theory that "filing an administrative 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 plaintiff's recourse to the courts." Mataipule, 16 A.S.R.2d at 56. It is clear that Bradcock's case is further barred by a strict application of the alternative holding of Mataipule, which, in our view, is clearly valid law and takes into account the extra time required for a litigant to exhaust administrative remedies.
CONCLUSION
Mataipule essentially stands for the principle that the government may not simply delay decisions regarding timely filed tort claims while the statute of limitations runs to the detriment of the claimant. Mataipule should not be read to permit the claimant to purposely avoid the statute of limitations by failing to file his/her administrative claim until the eleventh hour, and *187then expect a fresh limitation period when the claim is denied. In the present case, allowing a fresh two-year period following the denial of the administrative claim would amount to judicially creating a statute of limitations of almost four years. To do so would defeat legislative intent. We therefore deny the plaintiff's motion to reconsider.
It is so ordered.
Under the facts of the Mataipule case, the statute could have begun to run at some time prior to the filing of the administrative claim, but clearly did not expire since the administrative claim was filed within two years following the injury, and the court action was effectively filed immediately following denial of the administrative claim.
"The government’s position effectively [and incorrectly] implies that the limitations period is not always two years but that in certain cases it is one year and nine months." Mataipule, 16 A.S.R.2d at 50. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486340/ | Order Granting Motion for Summary Judgment:
BACKGROUND
This action was brought by plaintiff American Samoa Government ("ASG") to evict defendants from a 74.25 acre plot of land known as Plot 3 ("the premises") located in Tafuna, American Samoa.
ASG now plans to construct several public facilities on the premises in the area where defendants have constructed houses and other improvements. ASG notified defendants to vacate this area and remove their houses, but they continue to occupy the premises, contending that ASG does not have legal title to the premises.
The premises were included in the eminent domain proceedings to acquire land for development of the Pago Pago International Airport in Tafuna. First, in land ownership proceedings, LT 16-1957 (Apr. 11, 1958), this court determined that the Fagaima family, who is not a party to this action, owned the premises. Then, in the condemnation proceedings, LT 15-1959 (Dec. 28, 1959), ASG obtained fee simple title to approximately 550.83 acres, which included the premises. This condemnation, which had the legal effect of transferring title to ASG, was affirmed on appeal in AP No. 11-1960 (May 31, 1960). On January 12, 1960, ASG paid Punefu Siania $13,476.86, on behalf of the Fagaima family, as compensation for the premises.
*189Defendant Isumu Leapaga ("Isumu") challenged the condemnation in this court, which confirmed the validity of the condemnation proceeding and granted summary judgment on behalf of ASG. American Samoa Gov't v. Isumu, 4 A.S.R. 141 (Land & Titles Div. 1974).1
PROCEDURAL HISTORY
On November 23, 1994, ASG filed a complaint for trespass and injunctive relief with this court naming Sapati Fuimaono ("Sapati"), Tapuolo Tanielu ("Tanielu"), Tui and Matiua Tulimasealii (collectively "Tulimasealii"), Isumu, Iona Lainei ("Lainei"), Eti and Feagi Lefeiloai (collectively "Lefeiloai"), and John Does 1-10 as defendants. On December 28, 1994, Isumu and Tulimasealii filed an answer. On December 30, 1994, Sapati, Tanielu, and Lefeiloai moved for joinder of the Estate of Fuimaono Tuinanau ("the Fuimaono Estate") as a necessary party defendant, pursuant to T.C.R.C.P. 19(a). On February 24, 1995, we granted this motion and issued the written order on April 18, 1995, the same day counsel submitted it. On May 12, 1995, the Fuimaono Estate, Sapati, Tanielu, and Lefeiloai filed an answer.
On May 18, 1995, ASG filed a motion for summary judgment with accompanying affidavits against all defendants other than Lainei, who has not yet filed an answer or otherwise appeared in this action. Lainei is not included when defendants are generically referenced below. On July 26, 1995, Isumu and Tulimasealii filed a motion in opposition to summary judgment. Two days later,:the motion came regularly for hearing, and all parties concerned were represented by counsel.
During this hearing, the court pointed out that Isumu is also deceased and his Estate should be joined as party defendant in lieu of Isumu. No counsel objected to this procedural step. Thus, on the court's own motion, we will now join the Estate of Isumu Leapaga ("the Isumu Estate") as a necessary party defendant in substitution of Isumu,
STANDARD OF REVIEW
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. *19056(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. Lokan, 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 Samoa Gov't (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989).
DISCUSSION
I. ASG is Fee Simple Title Holder
Defendants claim that the premises were never conveyed to ASG and since they have cultivated crops, built structures, and otherwise occupied the premises continually for over 50 years, they should not be removed from the premises. This is incorrect.
This court, in the L.T. No. 15-1959 condemnation judgment, decreed that the land involved, including the premises, was "condemned in fee simple and the ownership thereof in fee simple vested in the Government of American Samoa." This judgment was affirmed in A.P. No. 11-1960 and was further upheld in Isumu, 4 A.S.R. 141 (granting summary judgment on behalf of ASG in an action to evict Isumu, Fuimaono, and others from the premises), Meredith v. American Samoa Gov't, 2 A.S.R. 2d 66 (Land & Titles Div. 1985), aff'd, AP 23-85 (1986), and American Samoa Gov't v. Meredith, supra, 28 A.S.R. 10 (Land & Titles Div. 1995). "[Ojnce land is condemned for a public purpose, title vests in the government in fee simple." Meredith, 2 A.S.R.2d at 67.
Even if defendants have occupied the premises for many years, they have been trespassers, and their refusal to accept these judgments does not give them any interest in the premises.
II. Res Judicata
Defendants' assertion that they have a legal interest in the premises is 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.11 Massie v. Paul, 92 S.W.2d 11, 14 (Ky. 1936). As discussed above, several cases over the past 35 years have established ASG as fee simple *191title holder of the premises. Specifically, AP No. 11-1960 affirmed the condemnation judgment and barred any further action by res judicata.
The Isumu Estate and Tulimasealii argue that they deserve to have a day in court since Isumu, 4 A.S.R. 141, which in part evicted Isumu from the premises, was decided on summary judgment. The purpose of summary judgment is to determine whether or not any genuine issues exist and "not to cut litigants off from their right of trial if they really have issues to try." Sartor v. Arkansas Gas Corp., 321 U.S. 621, 627 (1943). In Isumu, this court granted summary judgment because no genuine issues of material fact existed, and for the court to conduct a trial without such issues would only hinder judicial economy and prejudice ASG.
The Fuimaono Estate, Sapati, and Lefeiloa'i argue that the LT No. 15-1959 condemnation proceeding was inadequate because it lacked notice and failed to follow proper procedures. This claim is identical to the issue raised in Isumu, where the. court held that the claim is not only unsupported by facts or law, but is also improper because "a collateral attack on a condemnation judgment will be heard only when the judgment is attacked as void, and not merely technically defective." Id. at 143.
III. Use of Land for Stated Purpose
The Isumu Estate and Tulimasealii assert that even if ASG legally condemned the premises in 1959, it should revert back to the original owner since ASG did not utilize the premises for the stated purpose in accordance with A.S.C.A. § 37.2001(b). This assertion is legally incorrect.
Although A.S.C.A. § 37.2001(b) forces ASG to return condemned land if not used for the stated public purpose within five years after condemnation, it is not applicable in this matter because it was not enacted until 1988, when § 37.2001 was amended to include this requirement. Previous to this amendment, neither the American Samoa Code nor the original Constitution of American Samoa nor the Revised Constitution of American Samoa contained any language that required the ASG to use condemned land within a specific term of years.
Moreover, 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 (Wash. 1965) (court applied a strict rule of construction against a retrospective operation). Because A.S.C.A. § 37.2001(b) has no controlling effect over *192the 1959 condemnation judgment, ASG is not required to return the land to the original owners. For the sake of discussion, even if section 37.2001(b) applied, the premises would revert back to the Fagaima family and not the defendants.
IV. Adverse Possession
Defendants assert that even if the prior court decisions are valid, title to the premises has transferred to them by adverse possession. This claim is without merit.
It is a generally recognized principal of law that title to public premises cannot be acquired by adverse possession. Kempner v. Aetna Hose, Hook & Ladder Co., 394 A.2d 238, 239 (Del. 1978). A.S.C.A. § 37.0120(a) permits title to confer by adverse possession to a party who has had "actual, open, notorious, hostile, exclusive and continuous occupancy" for 30 years, but this statute does not apply to land owned by ASG, because the statute of limitations for adverse possession does not run against the government. Anderson v. Vaivao, 21 A.S.R. 2d 95, 105 (App. Div. 1992).
V. Verbal Promises
An affidavit by Emma Randall, Isumu's daughter, accompanied the opposition to a summary judgment by the Isumu Estate and Tulimasealii and claimed that Governor A.P. Lutali, on three separate occasions, promised to return the premises to Isumu or his heirs as the rightful owner. These promises are not based on valid consideration and are unenforceable.
"[A] promise made without supporting consideration is unenforceable." American Samoa Gov't v. Meredith, supra, 28 A.S.R. 92, 99 (Land & Titles Div. 1995) (quoting Powers Restaurants, Inc. v. Garrison, 465 P.2d 761, 763 (Okl. 1970)). Without valid consideration, these promises are at most offers to make a gift and ”[a] mere promise to make a gift is not enforceable." Id. (quoting 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 out the intention into effect. Id. (citing E.I. Dupont De Numours & Co. v. Claiborne-Reno Co., 64 F.2d 224, 233 (8th Cir. 1933)).
Governor Lutali never carried out any of the alleged promises to give the premises to Isumu or his heirs. Therefore, if made, these promises are *193merely offers to make a gift and unenforceable. Furthermore, governors are not authorized to unilaterally give away public lands.
VI. Lack of Just Compensation
The Isumu Estate and Tulimasealii contend that they deserve just compensation because the Fagaima family never owned the premises. This claim is also without merit.
Prior to the condemnation proceeding, the court, in LT 16-1957, determined that the Fagaima family held title to the premises and as a result, on January 12, 1960, ASG paid this family $13,476.86 as compensation for the premises. Isumu faded to assert a claim at that time. The Fonoti family was the only other claimant to the premises, and defendants' attempt to assert such a claim, either in 1974 or now, is barred by res judicata. Isumu, 4 A.S.R. at 143.
VII. Improvements to Land
Defendants contend that if they are evicted from the premises because .. ASG is legal title holder, that they should be entitled to compensation.for improvements they have made on the premises during their years of occupancy. "After eviction, former possessors of land are entitled to remove fixtures and possessions," Leomiti v. Pu'efua, LT No. 5-94, slip op. at 6 (Land & Titles Div. 1995), but they are not entitled to gain compensation for the value of their improvements, unless they are good faith possessors. Tulisua v. Olo, 8 A.S.R. 2d 169, 172 (App. Div. 1988).
"A good faith possessor.is one who makes improvements on land in. the honest belief that he is the owner," whereas knowledge of .an adverse claim usually prevents someone from being a good faith possessor. Id. Defendants have known that ASG is the legal owner of the premises since 1974 at the latest, and most likely since 1960. Thus, they are not good faith possessors and are not entitled to any compensation.
ASG additionally prays for damages as the result of defendants' trespass on the premises. A prevailing plaintiff in an action for trespass to real property is always entitled to at least to nominal damages, even in the absence of harm or plaintiff's failure to prove compensatory damages. Longenecker v. Zimmerman, 267 P.2d 543, 545 (Kan. 1954); Nappe v. Anschelewitz, 477 A.2d 1224, 1228 (N.J. 1984) (in a trespass action, proof of actual damage is not required because the invasion of the plaintiff's property rights is regarded as a tort in itself). Accordingly, *194ASG is entitled to recover nominal damages in the amount of$l from the defendants. '
ORDER
1. It is established that there is no genuine issue as to any material fact and that ASG is entitled to judgment as a matter of law. Therefore, summary judgment shall be entered in favor of ASG and against defendants.
2. Defendants are evicted from the premises, effective immediately.
3. Defendants are permitted to enter the premises for a period not exceeding 60 days after the entry of this order for the sole purpose of removing any structures, fixtures, and other improvements or possessions belonging to them. If such items are not removed within that time, they shall become ASG’s property, Leomiti v. Pu'efua, LT No. 5-94, slip op. at 7 (Land & Titles Div. 1995); Laulu v. Taaseu, 23 A.S.R.2d 1, 6 (Land & Titles Div. 1992), and ASG will be entitled to recover any reasonable cost it incurs in the removal of the structures, fixtures, and possessions. Anchorage Yacht Haven Inc., v. Robertson, 264 So. 2d 57, 61 (Fla. 1972); see Restatement (Second) Of Torts, § 160 (1965).
4. Each of the defendants shall pay to ASG nominal damages in the amount of $1.00 within 30 days of the entry of this order.
5. Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are also permanently enjoined to immediately leave, the premises and from entering, except as allowed above, or remaining on the premises, or at any time undertaking any construction thereon, or directly or indirectly interfering with ASG's construction of improvements upon or any other use of, and quiet enjoyment of, the premises.
It is so ordered.
In Isumu, the court granted summary judgment on behalf of ASG in its action to evict Isumu from Plot 3, and Fuimaono Tuinanau ("Fuimaono") from Plot 3 and Plot 6, as well as four other parties not involved in this action. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486350/ | Order Denying Appellant's Petition for Rehearing:
This court, having reviewed appellant's petition for rehearing and finding no points of law or fact which were overlooked or misapprehended by this court when reaching its decision after oral argument, hereby denies the petition for rehearing.
Appellant has suggested that our decision and that of the trial division must be vacated because the case was finally settled days before we rendered our decision. It is now clear that, regardless of whether we vacated our decision, appellant would not be entitled to vacatur of the decision of the trial division. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994). We therefore decline to order vacatur of the decision of the trial division.
In the unique circumstances of this case, we also decline to vacate our Appellate Division decision. We were not notified of the settlement until after we had filed our decision. As we stated in our opinion, we were not exercising jurisdiction pursuant to Article III of the United States Constitution. Our decision went no further than to determine that the High Court of American Samoa had no jurisdiction over this case. To leave our decision in place implicates none of the separation-of-powers concerns underlying the "case or controversy" requirement
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486351/ | Order Consolidating Actions:
The hearing on the order to show cause, initiated by the cross-defendants in LT 14-93, why LT 14-93 and LT 20-93 should not be consolidated came regularly for hearing on March 9, 1995. Counsel listed above for tiie various parties were present, except for counsel for defendants/counterclaimants/cross-claimants Miriama Garrett and *14Richard Garrett. Their counsel, howeyer, was given timely notice of the hearing.
Consolidation is appropriate when actions having "a common question of law or fact are pending before the court." T.C.R.C.P. 42(a), which mirrors F.R.C.P. 42(a). With a common question of law or fact present, the court is permitted to order consolidation, with or without the parties’ consent, to serve the purpose of convenience and economy of administration, mid is given broad discretion to decide whether consolidation is desirable. 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2383 at 259 (West 1971).
LT 14-93, LT 20-93, and LT 10-95 involve sales of land parcels from the same tract of land. At the heart of all of these transactions is the question of the validity of the transferor's title as individually owned land. While the issue in LT 14-93 also concerns sales of the same parcel to two different parties, the transferor's title is still a central issue.
The number of transactions, along with the family’s claim in LT 20-93 of communal land ownership to a portion of the tract, may complicate the trial some, but determination of all of the title issues is still key to the final adjudication of all three actions. We find no basis to conclude that consolidation will lead to confusion or prejudice, or would cause unjustifiable delay or undue additional expense to the parties.
LT 10-95 was only commenced on March 8, 1995, and the time for the defendants to answer or otherwise appear had not run at the time of the hearing. Hence, for that reason, several of these defendants did not appear by counsel at the hearing. However, the court may exercise discretion and on its own motion and order consolidation as soon as the common issues become apparent. Swacker v. Interstate R. Co., 32 F.R.D. 234, 237 (D.C. Va. 1962); Cass v. Sonnenblick-Goldman Corp., 287 F. Supp. 815, 237 (D.C. Pa. 1968); Gentry v. Smith, 487 F.2d 571, 581 (5th Cir. 1973). Any of these presently unrepresented parties, or any of the presently represented parties for that matter, may still move for separate trials, under T.C.R.C.P. 42(b).
LT 14-93, LT 20-93, and LT 10-95 are now consolidated. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486352/ | Order of Adoption:
This matter came on regularly before the court on May 18,1995 on a motion to set for hearing. By previous order, the court entertained arguments of counsel as to the availability of the child for adoption and the legality of the joint petition filed in this matter. The court also heard testimony from the prospective adoptive parents as to their statutory eligibility and qualifications to provide this minor child with parental guidance and care, as well as meeting the financial needs of the child.
As to the latter, based upon the testimony, observations of the child and petitioners by the court during the hearing, and the Child Protective Services reports, the court finds that this nearly 2 year old toddler has *19closely bonded with petitioners and they to her. Petitioners have, a stable relationship, their home is suitable for raising the child, their educational background and professional achievements assure the child sound financial support, and in all aspects the best interests of this child argue in favor of legitimizing the parent-child relationship that has formed since petitioners took custody of the child at or near her birth. The court further notes that this child's parental rights have been terminated with respect to her biological parents, and until this court approves a decree of adoption she remains, under present statutes, in legal limbo.
Having found that the best interests of the child would be served df. the court can, under existing statutes, grant the joint petition for adoption in this matter, the court will now consider the legal difficulties presented, by this case. First, the court notes that the Fono has expressed the provisions of Title 45, A.S.C.A. § 45.0102 et seq., be liberally construed to effectuate, in part, "the preservation] and strengthen[ing of] aiga ties whenever possible," A.S.C.A. § 45.0102(2), and "secur[ing] for any child removed from the custody of his parents, the necessary care, guidance, and discipline to assist him in becoming a responsible and productive member of society." A.S.C.A § 45.0102(4). Given the blood relationship between the female petitioner and the child, coupled with the obvious benefits to the child the stable relationship between the petitioners will provide, the court will liberally construe the statutes in this case as directed by the Fono.
Although this court is generally of the opinion that joint petitions for adoption can only be filed by married couples, see A.S.C.A. § 45.0411, and there is considerable state case law to support this opinion with respect to this statutory language, a liberal construction of the statutes requires this court to consider the clause under A.S.C.A. § 45.0420, Petition for Adoption, at paragraph (b) (1) requiring that the petition contain: "the date of marriage, if any, of the petitioners." (emphasis added). The court must also consider, however, the statutory legal effect of the final decree under A.S.C.A. §§ 45.0423 and 45.0424, both of which mandate that the child so adopted will achieve the legal status of a legitimate child bom in lawful wedlock to the petitioners.
Although this court has perceived that petitioners feel their case has been somehow singled out for more rigorous examination than undertaken in the bulk of adoption proceedings heard by this court, the court's concerns extend far beyond the instant matter. Blanket approval of joint petitions filed by unmarried cohabitating couples would establish a precedent whereby brothers and sisters, engaged couples, or even same-gender couples may routinely jointly petition the court for adoptions. Further, the petitioners in the instant case are asking the court, via-adoption proceedings, to issue a decree stating that, as a matter of law, *20this child is their naturally bom child and is legitimate, despite the fact that petitioners are not married. While mature consenting single adults can pretty much do whatever they want with respect to their relationships, there are some legal drawbacks to consensual cohabitation. Children of such unions are not legally legitimate until and unless that couple eventually marries. See A.S.C.A § 42.0501.
As earlier stated, however, this court's legal analysis must be tempered by the best interests of the child and limited to the facts of this particular case. Therefore, the court finds that the long standing stable relationship of petitioners, solely for the purposes of these proceedings, so closely approximates common law marriage that the court finds petitioners, both presently and prior to the birth of the minor child, to have achieved the status of husband and wife at common law. The natural issue of any such union thereby being legally considered legitimate, the court will grant the joint petition for adoption filed by petitioners and decree the child, inter alia, to be their legal, natural and legitimate issue.
Counsel for petitioners shall prepare and submit the proposed decree of adoption.
So ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486353/ | Order on Motion to Set:
*22This matter came regularly before the court upon a petition for adoption being filed on June 9, 1995, and "a Motion to Set a date of Adoption Hearing" being filed on the same date. The petition is captioned for a single petitioner while the motion is captioned for joint petitioners.
Although the petition generally follows the statutory requirements of A.S.C.A. § 45.0420, neither subsection (a) nor subsection (d) of that statute was addressed in these filings. Subsection (a) requires a petition for adoption to be filed not later that 30 days after the child is placed in the home of the adoptive applicants for the purpose of adoption unless the court finds that there was reasonable causes or excusable neglect for not timely filing the petition. If the court does so find, "[t]he court then fixes a date for the hearing." A.S..C.A. § 45.0420(a).
The instant petition states that the petitioners) have raised the child since birth, some eight years ago. The petition does not address A.S.C.A. § 45.0420(a) on its face and no separate motion for a pre-adoption hearing supported by legal memorandum has been filed.
Even if the court were to engage in the legal fiction that the 8 year old child raised by petitioner(s) was technically "first placed in the home of the adoptive applicants for the purpose of adoption" as of the date of the order of relinquishment by the High Court, that order was dated April 12, 1995, well over 30 days before the "Petition for Adoption" was filed with this court on June 9, 1995.
The petition for adoption also fails to be a accompanied by a statement of any fee charged relative to the adoption as required by A.S.C.A. § 45.0420(d). That statement must also include a clause that no additional fees are to be charged.
On page two, line 10 of the petition appears the statement: "There are no guardians appointed in this matter". This phrase is always disturbing to the court and all the more so when included in adoption petitions that are filed weeks, months, or even years after the mandatory 30 day period after placement. Under the statutory scheme whereby the High Court hears relinquishment and termination of parental rights actions and the District Court separately hears the subsequent adoption actions, the only way for the government to monitor the minor child's best interests throughout this process is to appoint a Guardian of the person of the minor child. See A.S.C.A. § 45.0103(16). The logical choice for any such appointment would be the Child Protective Services Agency, Department of Human Resources, which could then actively monitor the minor child and his home environment until the decree of adoption is finally issued.
*23There are several other problems facing the High Court, the District Court, and especially citizens seeking to adopt children in the Territory under the cumbersome, costly, and mostly cumulative procedures mandated by the Juvenile Justice Act of 1980, A.S.C.A. § 45.0101 et seq., (“Juvenile Justice Act of 1980”) to perfect a child's adoption. For years the High Court and District Court have struggled to fashion a Samoan "silk purse" out of this stateside "sow's ear" of a statute. Although this Act may work fíne in Colorado, it has little effective application to relinquishment or termination of parental rights or adoptions in Samoa. This Act was designed to work in states where; in a typical case, the following statutory procedures would be followed. Using the example of an unwed mother desiring to give up the rights to her child, in the several states the procedures to be followed would be:
(a) The unwed mother would be counseled by hospital social service personnel as to her options of keeping the child, suing the natural father for child support, or having the state bring suit on her behalf, or giving up the child for adoption;
(b) If the unwed mother, after counseling, decided to put the child up for adoption, the social services agency would petition the appropriate court for relinquishment of parental rights;
(c) That court would hold a hearing, generally before or immediately after the unwed mother gave up custody of the child to the state social services agency. The court would also determine if the natural father had acquired any parental rights which required relinquishment or termination pursuant to Lehr v. Robertson, 463 U.S. 248 (1983), and the court would decide if the best interests of the parent(s) and child required the parental rights be relinquished or terminated;
(d) The custody and guardianship of the child in cases where parental rights were relinquished or terminated, would then be granted by the court to the state social services agency. That agency, usually with prior court approval would effect a child placement with pre-approved couples desiring to adopt a child;
(e) As soon as possible after the placement of the child with the prospective adoptive parents, a petition for adoption would be filed with the court and set for a hearing; and
(f) At the adoption hearing the court would hear testimony from the state social services personnel who had been monitoring the child's *24placement and determine, with the consent of that agency, whether the best interest of the child would be served by granting the adoption.
Yet when these rigid statutory procedures are compared with traditional child rearing and child placement practices in Samoa, at almost no point can the statutes be bent to fit the local situation, as required of the court under the legislature's policy declarations set forth under A.S.C.A. § 45.0102.
The typical relinquishment or termination of parental rights action does not come before the court until months, or more, usually years, after the natural parent or parents have placed the child with their parents, childless brothers or sisters, cousins, close friends, fellow church members, etc. Such traditional placements by the natural parent or parents serve a vital cultural interest in strengthening extended family ties and, in certain circumstances, creating new family ties and alliances. The problem is, by statute, parents who follow such local customs are technically subjecting themselves to potential criminal prosecution under A.S.C.A. § 45.0370(2) which provides that "[a]ny adult who.....neglects, or abandons a child is guilty of a Class A Misdemeanor" punishable by up to one year imprisonment or a $1,000.00 fine or both.
It is also difficult for the courts to meet the legislative mandates of preserving aiga ties and maintaining the child/parent relationship except when the child's welfare or safety would otherwise be endangered. See A.S.C.A. § 45.0102. Most cases never come before the court until years after the child has been given to the prospective adoptive parents. Of what real value is counseling to the unwed mother years after she voluntarily surrendered the child? How does the court preserve the parentfchild relationship after the child had already bonded with the prospective adoptive parents? And where do the best interests of the child lie, when, after the child had been raised by the prospective adoptive parents for years, the court must consider whether the natural parents should regain custody of the child? And finally, why are local citizens who desire to adopt a child put to the expense, time, and difficulty of two separate petitions and two court hearings to receive official approval of a years old parent/child relationship?
Although the pre - 1980 adoption statutes were subject to some abuses, at least they provided a more culturally compatible and economical statutory scheme than the present statutes. The District Court hears well over 100 adoption actions each year and an equal or greater number of relinquishment or termination of parental rights actions are separately heard by the High Court. Child Protective Services conducts well over 100 investigations and home studies per year after petitions for relinquishment or termination of parental rights are filed in the High *25Court. All of this considerable effort usually occurs well after the fact and serves no real purpose save to legitimize the longstanding relationships between the minor child and its adoptive parents.
The instant case, involving an eight year old child who has been raised since birth by the prospective adoptive parents now seeking to adopt the child, is reflective of the problems outlined above. Although the Juvenile Justice Act of 1980 contains several workable chapters dealing with child shelter, care, support, and juvenile delinquency adjudications, the legislature may wish to reexamine those chapters dealing with adoption proceedings, including relinquishment or termination of parental rights for purposes of adoptions, and amend these statutes to work more effectively within the unique local context of the Samoan extended family child rearing practices. The present statutes undoubtedly work well in the several states but are difficult to apply to the bulk of the local adoption proceedings processed by the court.
In the interim, however, this court must enforce the statutory requirements as enacted by the legislature. All petitions for adoption must be timely filed and address all of the statutory requirements of A.S.C.A. § 45.0420(a), (b), (c), and (d). The Clerk of Courts shall serve all members of the Bar with a copy of this order so that all future petitions for adoption filed with the court fully comply with státutory mandates. The motion to set is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486354/ | Order Partially Granting Motion to Suppress:
This order concerns the admissibility of evidence gathered after police officers seized the single item specifically described in a search warrant..
FACTS
On December 7, 1994, at about 8:45 a.m., officers of the Department of Public Safety of plaintiff American Samoa Government ("ASG") arrived at the house where defendant Dallace Seiuli ("Seiuli") was residing to execute one or more of three search warrants issued for the search of Seiuli's residence, automobile; and person for- afiand machine'gun.
Commencing these searches, two police officers covered the'rear door of the house, while two other officers, one knocking; were at the front door. Seiuli, who .was then the only occupant of the house, appeared at the rear door. When informed of the search warrants, he offered no resistance to the officers' entry into the house. One officer explained to Seiuli that they were searching for a hand machine gun and asked Seiuli to lead them to this weapon. Seiuli showed the officers this weapon loaded with a magazine on a chair in Seiuli's bedroom. The officers seized the weapon and arrested Seiuli. One officer then opened the front door to admit the officers there and then returned to the bedroom.
*28Since the windows were covered and the room was dark, and the police officers wanted to video-tape the proceedings, the officers in the bedroom first sought to turn on the lights, but Seiuli advised them that the lights were not working. One officer then uncovered the windows. Another officer informed Seiuli that the officers would continue their search, attempting to find "bullets" for the hand machine gun. Several bullets for the hand machine gun were located. The officers also found a small bowl containing pieces of drinking straws and residue of methamphetamine powder, an illegal narcotic, underneath Seiuli's bed about six inches from the edge. On bookshelves, they discovered numerous plastic bags containing methamphetamine powder and two plastic bags in a black pouch, one containing methamphetamine powder and the other marijuana. A sawed-off shotgun was spotted on a shelf by the doorway of the bedroom. In addition to Seiuli's bedroom, the police officers later searched the living room and another bedroom within the residence. They seized a 12-gauge shotgun from the closet in the second bedroom, based on information given by Seiuli as to its existence and location.
Seiuli moved for suppression of the evidence based on the fact that the officers exceeded the limitations of the warrant to search the house. On September 21, 1995, this motion came regularly for hearing, with Seiuli and counsel for both parties present.
DISCUSSION
The constitutional provision governing searches and seizures in American Samoa reads as follows:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no . warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Evidence obtained in violation of this section shall not be admitted in any court.
Rev. Const, of Am. Samoa, art. I, § 5.1 The general rule governing the execution of search warrants is that only items named in the warrant may *29fee seized. Stanford v. Texas, 379 U.S. 476 (1965). ASG asserts the plain view doctrine and search incident to arrest exception as justification for the admission of the evidence not named in the warrant.
1. The Plain View Doctrine
The plain view doctrine is a recognized exception to the requirement of a search warrant in American Samoa, and permits a warrantless seizure of private property when three conditions are satisfied: (1) the ppli.ee officer's presence in the area is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating nature of the evidence is immediately apparent. American Samoa Gov'nt v. Loia, 16 A.S.R.2d 1,3 (Trial Div. 1990).
The initial police intrusion into the residence was clearly lawful. The police officers had a warrant to search the house for the hand machine gun. It is less clear, however, whether their continuing presence was justified when they searched Seiuli's bedroom for bullets after the seizure of the weapon identified in the warrant and Seiuli's arrest.
Upon similar facts, the Supreme Court of Georgia found that, "The discovery of the marijuana in a sugar bowl [during execution of a warrant for a pistol] did not result from a search beyond the scope of the warrant, as the officer explained he was searching for bullets." Gaylor v. State, 279 S.E.2d 207, 209 (Ga. 1981). Under the Gaylor facts, the police officer was searching for bullets in order to justify his intrusion into a sugar bowl too small to contain the pistol. During a search where the relevant weapon has not yet been (and might never be) located, ammunition might provide a valuable evidentiary nexus with the weapon.
The present sequence of events is reversed. The police officers continued to search for "bullets" after the weapon named in the warrant had been located. The Delaware Supreme Court has stated that, "Obviously, the officers would not be justified in seizing objects not listed in the warrant if they came into the ‘plain view’ of the officer only after he opened an interior door, drawer or closet and after all items listed in the warrant had already been seized." State v. Phillips, 366 A.2d 1203, 1208 (Del. 1976).
In the present case, the police officers seized the only item listed in the warrant. Then, after arresting Seiuli and opening the front door, they *30illuminated2 and conducted a general search of the bedroom, invasively overturning a mattress and looking under the bed and inside drawers. During the course of this deliberate rummaging, the officers found bullets, the small bowl containing methamphetamine residue, the sawed-off shotgun, the plastic bags containing methamphetamine powder and marijuana, and later the 12-gauge shotgun.
In light of these facts, we cannot characterize either the police officers' continued presence in Seiuli's room as lawful, or their discovery of materials not listed and described in the search warrant as inadvertent. Even if some of the discovered items were ultimately found in plain view, the officers' active search, continuing after the seizure of the item described in the warrant, rendered their presence in Seiuli's bedroom unlawful and their discovery deliberate.
Any other- conclusion would require us to find that the officers held implied authority under the warrant to remain on the premises indefinitely, searching for bullets (or some other elusive, undiscovered item related to using a gun) after the gun named in the warrant had been seized. A warrant to search for a particular gun cannot imply the general authority to search for related items such as ammunition without creating expansive police discretion, and effectively transforming the particularized warrant into an impermissible general warrant.
2. The Search Incident to Arrest Exception
A warrantless search incident to valid arrest may include: (1) the person of the arrestee; and (2) the area within the arrestee's immediate control. United States v. Robinson, 414 U.S. 218, 227 (1973). The area within an arrestee's immediate control is the area where the arrested person might reach for either a weapon or evidentiary items. Chimel v. California, 395 U.S. 752, 755-68 (1969). The authority to conduct a search incident to arrest, however, does not depend on whether there is any indication that the arrestee possesses weapons or evidence. *31Michigan v. DeFillipo, 443 U.S. 31, 35 (1979); United States v. Robinson, 414 U.S. at 235. In addition to a comprehensive search of a defendant and the area within his immediate control, officers are authorized, upon reasonable suspicion, to make a "quick and limited" search or "protective sweep" of areas where a potential assailant may be hiding. Maryland v. Buie, 494 U.S. 325, 327, 333-335 (1990).
In the present case, the police officers' search of Seiuli's bedroom, subsequent to the arrest, clearly proceeded beyond the area within Seiuli's immediate control, and was much more detailed than the "protective sweep" envisioned in Buie. During the course of this invasive and detailed search, after Seiuli's arrest, the officers found bullets, drugs and drug paraphernalia, and the sawed-off shotgun in Seiuli's bedroom, and the 12-gauge shotgun in another bedroom.
ASG appealed to our "common sense," asking us to consider that the officer in charge of the search, who has been trained and has 10 years' experience in the conduct of narcotic investigations, knows the persons in this community who are involved in narcotic traffic and use, and that it is common for an officer to obtain a warrant for something for which he can show probable cause, as a pretext to enter a home and search for something else. In other words, ASG would have us condone the use of a particularized warrant as a pretext to conduct a pervasive general search for whatever incriminating evidence might be on the premises, even after items named in the warrant are found.
We realize that police officers in the narcotic arena know their suspects and tend to feel that due process requirements to obtain a proper search warrant are unnecessary and tedious. These requirements are admittedly cumbersome, and to a large extent only serve the purpose of preventing unfettered police discretion, the eventual imposition of a police state, and punishment without the benefit of judicial review. These reasons are quite sufficient to impose limitations on searches and seizures.
3. The Search Beyond Seiuli's Bedroom
Once the persons or things named in the warrant are found, the owner or occupant of a house has a legitimate expectation of privacy in areas of the house which have not been searched, and the warrant itself will no longer support police entry into previously unentered rooms. Maryland v. Buie, 494 U.S. at 333 (1990). The police officers may, however, upon reasonable suspicion, conduct a "protective sweep" of areas from which an endangering attack may be launched, even if this means entering unentered rooms. Id., at 333-35. When a house is known to be a dangerous place, the potential for danger justifies a "cursory" *32search of the house and nearby vicinity for additional persons or weapons. Simms v. Reiner, 419 F. Supp. 468, 473 (N.D. Ill. 1976).
The police officers went to the house with a search warrant to recover a hand machine gun, and Seiuli was reputed to be involved with drugs. At that point, the officers had reason to be concerned about potential assailants in the house. We actually have only a few details regarding the search of the living room and second bedroom. However, we know that the 12-gauge shotgun was found in the course of searching the second bedroom, where Seiuli had told the officers it was located. This seizure took place about 10 minutes after the officers first entered the house. By that time, the officers were probably aware that Seiuli was the lone occupant of the house. The most reasonable inference from the evidence is that the officers knew that they were not confronted with any serious danger when they searched the other two rooms and recovered the 12-gauge shotgun. They were not then engaged in a protective sweep of the house for their security and did not attempt to testify that they were so engaged. Thus, under the circumstances, the seizure of the 12-gauge shotgun was also part of the unduly invasive search beyond the scope of the search warrant.
REMEDIES
A search undertaken pursuant to a warrant must be directed in "good faith toward the objects specified in the warrant." United States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978). If the warrant has been allowed to become an object for a "general search" and "it is not possible for the court to identify after the fact the discrete items of evidence which would have been discovered had the agents kept their search within the bounds permitted by the warrant," all seized evidence must be suppressed. Id.
Generally, however, "the exclusionary rale does not require the suppression of evidence within the scope of a warrant simply because other items outside the scope of the warrant were unlawfully taken as well." United States v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982); Marvin v. United States, 732 F.2d 669, 674 (8th Cir. 1984). The threshold question for suppressing all evidence obtained in a search is whether or not the behavior of the officers is so unconscionable as to rise to the level of a due process violation. United States v. Tamura, 694 F.2d at 597. Due process is violated only where there is "flagrant disregard for the limitations of the search warrant," transforming the particularized warrant into a general search. Marvin v. United States, 732 F.2d at 674-75; United States v. Wuagneux, 683 F.2d 1343, 1354 (11th Cir. 1982); see also U.S. v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988).
*33Although the police officers exhibited a cavalier attitude regarding the warrant's limitations on this occasion, we do not find that the search was undertaken in bad faith. Without prior judicial precedent for guidance in this jurisdiction, we can understand the officers' logic and motives when they suspect larger narcotics game but only have probable cause for a weapon to support a search warrant. Furthermore, we can also readily identify the things which would have been discovered had the search been kept within the warrant's limitations. We find no reason, therefore, to suppress all of the evidence in this case. However, we also alert ASG's Attorney General and Commissioner of Public Safety that with this case as precedent, we are likely to find bad faith if police officers ignore the parameters of search warrants in the future.
ORDER
1. We suppress the loose bullets, drugs and drug paraphernalia, sawed-off shotgun, and 12-gauge shotgun which were found and seized in violation of the limitations of the search warrant.
2. We do not suppress the loaded hand machine gun which was described in the warrant.
3. The suppressed items of evidence are contraband. Pursuant to A.S.C.A. § 46.4234, the weapons and ammunition are confiscated. Pursuant to A.S.C.A. § 13.1033, the drugs and drug paraphernalia are confiscated. The Commissioner of Public Safety shall retain custody of these items, subject to the court's ultimate disposal orders.
It is so ordered.
Because this language mirrors the language of the federal Constitution (adding a sentence constitutionalizing the exclusionary rule), federal and state cases are persuasive, but not binding authority in American Samoa. *29See American Samoa Government v. Loia, 16 A.S.R. 2d 1, 3 n.1 (Trial Div. 1990).
We concede that the artificial illumination of a darkened area, by itself, does not constitute a search. American Samoa Gov’t v. Loia, 16 A.S.R. 2d 1, 3 (Trial Div. 1990). The foregoing case, however, refers to the use of a flashlight to view the interior of a vehicle through its windows while parked in a public place. The Loia court argued that the public nature of the parking area negates any legitimate expectation of privacy in space visible through the windshield. In the present case, however, the police officers were within private space by virtue of a search warrant, and had already seized every item named in the warrant before they illuminated the area and began their search for "bullets." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486355/ | BACKGROUND
At issue in this case is the question of who will pay the bill for products purchased from plaintiff Pago Petroleum Products, Inc. ("PPP") by defendant Ye Ahn Moolsoan, Ltd. ("YAM").
The following facts are undisputed. Defendant Ralph Tuia ("Tuia") and YAM, represented by Kyu Won Kim ("Kim"), formulated together some type of unincorporated business association, known as Polynesian Trading Company ("PTC"). PTC encountered various business *35difficulties, and eventually folded.1 As the business was experiencing problems, Kim left American Samoa and has not been present in the Territory since September 1991. One of PTC's remaining debts was owed to PPP. Because of this debt, Tuia signed a promissory note and a personal .guaranty on that note.2
The promissory note in question, signed September 6, 1991, states that the principal sum owed PPP is $102,982.60, plus accrued and unpaid interest and attorneys fees and costs, for a total of $115,409.67. This money was to be paid in four installments, with the first payment of $45,000.00 due September 6, 1991, and the second payment of $5,000.00 due September 18, -1991. The due dates of the third and fourth payments, of $32,704.84 each, depended upon the return to Pago Pago port of two longliners belonging to YAM. These boats, the Han Gil No. 12 and the Han Gil No. 1, were scheduled to arrive in port after what was hoped would be profitable fishing voyages.3
PPP now asserts that Tuia has defaulted on the debt. Although Tuia initially claimed that he had paid PPP $50,000.00~the sum of the first two installments — at trial, he apparently accepted PPP's contention that he has paid only $45,000 and has made no effort to pay the second, third or fourth installments.
DISCUSSION
Tuia does not dispute that he owes PPP the amount of the second installment, $5,000. The dispute between the parties centers around the payment of the third and fourth installments, totalling $65,409.67 plus any accrued interest on the note. Tuia correctly asserts that his payment of the third and fourth installments is subject to a condition precedent, namely, the arrival of the longliners in Pago Pago port. Tuia claims that *36this condition never occurred, which PPP does not dispute.4 Thus, Tuia has a valid argument that the third and fourth installments have not become payable under their literal terms.
PPP, however, contends that, regardless of the occurrence of the conditions precedent, the full balance of the note has become payable under the note's acceleration clause. The acceleration clause reads:
If default is made in the payment when due of any part of [any] installment or any part of interest, then the entire amount of the indebtedness shall become immediately due and payable at the option of the holder of this note, without notice.
By failing to pay the $5,000 due in the second installment, Tuia defaulted on the note, allowing PPP to invoke the terms of the acceleration clause.
Acceleration clauses such as the one at issue in this case are not uncommon, particularly in contracts involving money debts. Tuia has made no argument, and the court can see none, for the invalidity of the acceleration clause in the PTC note. Normally, an acceleration clause creates an option in the creditor whether to demand payment in foil upon the debtor's default. See, e.g., United States v. Rich, 853 F. Supp. 341, 347 (E.D. Cal. 1994); Carmichael v. Rice, 158 P.2d 290 (1945); ARTHUR L. Corbin, Corbin on Contracts § 265. Although the note does not accelerate automatically upon nonpayment, the creditor can exercise its option by taking action. Rich, 853 F. Supp. at 347; Curry v. United States Small Business Admin., 679 F. Supp. 966, 970 (N.D. Cal. 1987).
In this instance, PPP has exercised its option on the acceleration clause by bringing this suit. The ability to demand payment by bringing suit is limited by the statute of limitations, cf. Rich, 853 F. Supp. at 347-48, and must otherwise occur within a reasonable time. See id. at 347; Curry, 679 F. Supp. at 970. Here, PPP served its complaint within two years of Tuia's default-well within the ten years limitations period, see *37A.S.C.A. §■ 43.612,0(5), and an otherwise reasonable time. With the note validly .accelerated and full payment demanded, the conditions precedent for the third and fourth payments are no longer required. Tula has failed to cite any authority to the contrary.
CONCLUSION
Accordingly, we hold that Tuia is liable for the remaining balance due on the face of The note, in the amount of $70,409.67, and accumulated interest since the date of the note in the amount of $41,328.35 through October 2, 1995,5 The total amount currently owed on the note is $111,738.02.
In addition, the terms of the note call for the payment of attorney's fees and court costs in the event that suit is filed to collect. The purpose of attorney fee clauses in security agreements is to make the holder whole in the event he must go to court to enforce his rights. See, e.g., Motor Dispatch, Inc. v. Buggie, 379 N.E.2d 543 (Ind. App. 1978). This jurisdiction has recognized that attorney's fees can be validly granted in a written promissory note. See, e.g., Development Bank of American Samoa v. Lava, 5 A.S.R.2d 24 (1987). Additionally, court costs, are allowed to the prevailing party as of course unless the court otherwise directs. TCRCP 54(d). We find it appropriate to award attorneys fees and court costs in this case, and will do so upon a properly submitted affidavit from plaintiffs counsel.
Post-judgment interest on the total judgment amount, consisting of the principal, pre-judgment interest, attorney's fees and costs, will continue to accrue at 12% per annum.
It is so ordered.
There is no evidence in the record to indicate that PTC declared bankruptcy or had its debts otherwise discharged. Therefore, the company, although defunct, remains liable for the debts it has incurred.
In his affidavit of June 8, 1994, Tuia admits to executing the proffered promissory note and personal guaranty. There is no dispute over the legitimacy of these documents.
The Han Gil No. 12 was expected back in port on the second week of October, 1991. The Han Gil No. 1 was due to arrive "[i]n approximately five months of its departure date."
At trial, PPP presented evidence that the Han Gil No. 12 had, in fact, returned to Pago Pago port in February 1995 under the name Dae Hae No. 1, and possibly under new ownership. However, PPP has placed little emphasis on this fact, since it is relying on the argument that the acceleration clause in the promissory note has acted to excuse the conditions precedent. Because we agree with PPP that the acceleration clause excused the occurrence of the conditions precedent, there is little need to consider whether the condition precedent was satisfied by the Han Gil No. 12's return to port under a different name.
In documents submitted to this court, plaintiffs counsel has calculated interest using a simple interest formula on the 12% per annum amount required by the note. We see no reason to deviate from this formula in determining accumulated interest to date. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486357/ | Opinion and Order:
PROCEDURAL HISTORY
Plaintiff Kent Samoa, Inc., dba Kent Rental & Equipment Leasing ("Kent") filed this action against defendant Fina L. Shimasaki ("Shimasaki") seeking reimbursement for substantial repairs to a vehicle rented by Kent to Shimasaki and two other vehicles, loss of income while the rental vehicle was under repair, and punitive damages arising out of a multi-vehicle accident.
Kent moved for summary judgment, arguing that since the rental agreement imposed absolute liability, no issues of fact were triable. On March 2, 1995, we denied this motion, holding that whether or not $1,000 already paid by Shimasaki to Kent constituted an accord and satisfaction was a genuine issue of fact. Trial was held on August 25, 1995, with Shimasaki and counsel for both parties present.
FACTS
On February 14, 1992, Shimasaki rented an automobile from plaintiff Kent, listing herself as the driver. On February 18, 1992, Shimasaki’s son, Andy Tafua ("Tafua"), drove the rental vehicle and was involved in an accident resulting in damage to the rental vehicle and four other vehicles. Tafua was then under the age of 21 years and had no driver’s license.
The rental agreement required that the vehicle be operated only by duly licensed drivers over the age of 21. The rental agreement also provided the option for the renter to purchase insurance for the vehicle and purported to make the renter absolutely liable otherwise for damage to the vehicle, "regardless of negligence." Shimasaki did not exercise the insurance option, but also did not initial the box on the agreement taking "FULL RESPONSIBILITY ... REGARDLESS OF NEGLIGENCE."
*46A short time after the accident, Shimasaki received a telephone call from a representative of Kent, who informed her that she was required to pay a $1,000 insurance deductible to relieve herself from liability. Shimasaki met with the representative at Kent's offices and, after the representative assured her that $1,000 was all she would have to pay, paid that amount. In due course, the insurance company refused to pay for the accident based on the fact that Tafua was underage and unlicensed.
Kent paid for repairs to the rental vehicle and settled the claims of four other motorists in the accident with its own funds. The fifth motorist was covered by collision insurance. Kent then filed this action with respect to rental vehicle and two other vehicles which were extensively damaged.
DISCUSSION
Kent denies the theory that the $1,000 paid by Shimasaki was an accord and satisfaction, claiming that its agent had no authority to settle claims on Kent's behalf, that $1,000 was never represented as fully satisfying the debt, and that $1,000 is a standard initial charge whenever an accident occurs, rather than an insurance deductible. Shimasaki argues, in response, that she was told more than once that a $1,000 payment would discharge her liability to the company, that she never gave Kent authority to negotiate or settle third-party claims on her behalf, and that the absence of any evidence of fault in the accident clears her of any further liability.
1. Authority to Settle and Requirement of Fault
The rental agreement states, in relevant part:
Renter is responsible for and will reimburse KENT upon demand for all loss or damage whatsoever (regardless of negligence) to Vehicle and other equipment, but specified on the reverse side of this Agreement, per occurrence, unless vehicle was used, operated or driven in violation of any provision of this Agreement.1
*47The foregoing language assigns the risk of damage to the "Vehicle and other equipment" to the renter, in this case Shimasaki, without regard to fault. This point alone, however, does not end the argument. Assuming for the sake of discussion that the term "other equipment" includes other vehicles in the accident (an improbable assumption), a strict interpretation of the agreement might provide Kent with authority to settle claims for any amount it desires and summarily bind the renter to "reimburse Kent upon demand" regardless of how outrageous the settlement, and regardless of fault.
We are guided in our interpretation of the agreement by two principles. First, ambiguous terms in a form contract will be construed "most strongly against the plaintiff who framed and prepared" them. New Prague Flouring Mill v. Spears, 189 N.W. 815, 821 (Iowa 1922). Second, a strong presumption prevails against construction of contract terms in a way that permits one party to exercise unbridled discretion to the detriment of the other. Id. at 822. Accordingly, we hold that the term "other equipment" does not refer to other vehicles which may be involved in accidents with Kent's vehicles.
It is easily understood that an automobile rental company may well demand that the renter bear the risk of damage to the rental vehicle, even where the accident is the fault of a third party. Any time a rental vehicle is driven, there is a real risk that a third party may damage it and an innocent party may end up bearing the cost. A rental car company can reasonably protect itself against the loss or damage of its vehicle due to a third party's negligence by assigning the risk of such loss or damage to the renter.
However, Kent's attempt to reserve the authority to settle non-adjudicated claims of third parties at the renter's expense is a different matter. In this case, no language in the agreement purports to provide this authority. Kent can only claim such authority on the basis that Kent is vicariously liable and may be directly sued by the drivers of other vehicles in an accident. A vehicle owner is vicariously liable for accidents caused by the negligence of others driving the vehicle with permission, but has a right to indemnity from the principal tortfeaser when forced to pay damages. Vaiti v. Tuiolemotu, 19 A.S.R.2d 71, 74 (Trial Div. 1991).
The owner of a rental vehicle is vicariously liable as long as the offending driver operates the vehicle with the rental company's "express *48or implied permission." Foma'i v. Samana, 4 A.S.R.2d 102, 106-07 (Trial Div. 1987). Statutory law requires the owner of a vehicle to maintain liability coverage on a vehicle for all potential drivers who use "the vehicle or vehicles with the express or implied permission of the named insured." A.S.C.A. § 22.2003. If Tafua drove the rental vehicle with Kent's express or implied permission, Kent is vicariously liable and was legally required to carry insurance covering Tafua's accident. If this were the case, Shimasaki's payment of the $1,000 deductible should have been sufficient to cover Kent's liability to third parties.2 If, however, Tafua drove without Kent's express or implied permission, Kent was not vicariously liable for the accident and had no business settling or paying claims against Shimasaki.
Regardless of whether Tafua had express or implied permission to drive, he must be at fault in the accident to be considered the principal tortfeaser, causing vicarious liability to attach to the vehicle's owner, and for the owner to consequently have a right of indemnity against the driver. Vaiti v. Tuiolemotu, 19 A.S.R.2d 71, 74 (Trial Div. 1991). We will not consider Kent's settlement with the other drivers as conclusive proof that Tafua was at fault in the accident. Settlement is not an admission of fault. Litigants often settle for a variety of reasons unrelated to who was legally at fault. Furthermore, it would be unfair for Kent to admit Tafua's fault for settlement purposes, and then to sue his mother for indemnity based on that admission. Aside from Kent's settlement with the other drivers, we have no evidence tending to prove that Tafua was at fault in the accident.
With respect to damage sustained by the rental vehicle, evidence of fault is immaterial, because the rental agreement assigns the risk of damage by third parties to the innocent renter. Nothing in the rental agreement, however, can or should be construed to require the renter to indemnify Kent against the third parties' claims, where the renter is not shown to be at fault in the accident. For the foregoing reasons, we hold that Kent has not established any right to indemnification against the third parties' claims. Kent was clearly entitled only to compensation for the damage to its vehicle.
The remaining question, therefore, is whether or not Shimasaki's payment of $1,000 satisfied this obligation as an accord and satisfaction.
2. Accord and Satisfaction
*49Despite Kent's assertion that $1,000 is a standard initial charge for eveiy person renting a vehicle damaged in an accident, other testimony at trial and a notation on the receipt for payment convince us that the two parties shared the understanding that the payment was an insurance deductible. We further find that during their meeting, Kent's representative advised Shimasaki that after the $1,000 remittance Shimasaki would not be required to make any additional payment, because insurance would cover the remainder of the damage.
The issue before us is whether the foregoing factual findings support Shimasaki's contention that the $1,000 payment discharged her liability by accord and satisfaction.
A. Authority to Settle
Kent's primary argument is that its representative lacked authority under company policy to settle claims. Textbook agency law, however, is that an agent, to whom the principal gives the appearance of authority, may bind the principal regardless of whether actual authority exists. Warren A. Seavey, Agency § 8D. As important public policy, a principal is prevented from hiding behind internal company policy when unsuspecting consumers detrimentally rely upon the representations of one cloaked with the principal's authority. In the present case, we are satisfied that Kent's agent was cloaked with Kent's authority, and Kent will, therefore, not derive protection from any internal company policy that denied the agent the power to settle claims.
B. Payment of $1,000
With respect to our holding that the parties mutually understood Shimasaki's payment of $1,000 to be an insurance deductible, we take important note that this amount was charged under Kent's mistaken impression that the accident would be covered by the company's insurance policy. In our order denying Kent's motion for summary judgment, we indicated our disfavor of the old common law rule that an accord and satisfaction may not result from partial payment of a liquidated amount.
The present dispute, however, does not result from a direct agreement to accept a partial payment in full satisfaction, but rather from the mistaken assumption that insurance would cover the remainder of the damages. If a genuine mistake results in an erroneous calculation of damages, such mistake provides an escape from an otherwise binding accord. ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 1292; Charlie *50Thomas Courtesy Ford v. Sid Murray Agency, 517 S.W.2d 869, 874 (Tex. App. 1975); Rhea v. Smith, 462 S.W.2d 78, 80 (Tex. App. 1970).
The foregoing analysis is arguably applicable, since Kent's agreement to accept $1,000 in full satisfaction of Shimasaki's liability did not result from a genuine dispute about the amount of damages, but rather from a mistake of fact regarding the extent of insurance coverage that would be provided. On the other hand, when a claim against an insurer depends upon facts known to be doubtful, a settlement of the claim is not voidable when the doubtful facts turn out to be incorrect. New York Life v. Chittenden & Eastmen, 112 N.W. 96, 99 (Iowa 1907); Sears v. Grand Lodge A.O.U.W of New York, 57 N.E. 618 (N.Y. 1900).
In the present case, Kent's agent testified at trial that she knew Tafua was underage and lacked a driver's license before she accepted the $1,000 deductible. Since the agent executed the rental agreement, we further find that the she was aware that Shimasaki had not initialed the insurance option on the contract. Additionally, page 1 of the agreement states:
WARNING: Notwithstanding payment of collision waiver, if Vehicle is used in violation of any provision of this agreement . . . Renter shall be liable for all damages, as provided on the reverse side.
The foregoing facts indicate that it was doubtful whether Tafiia's accident would be covered by the insurance policy. Knowing the doubtful nature of the insurance claim, Kent's agent accepted the $1,000 deductible from Shimasaki, representing that she would not be required to pay any additional money.
In an analogous Pennsylvania case, an insurance company was not absolved of its promise to cover the accident after payment of a negotiated sum of money, even though the liability insurance agreement was ultimately adjudicated voidable. See Rivers v. Delaware Valley Mutual Casualty, 175 A.2d 87, 89-90 (Penn. 1961). In the present case, although the insurance agreement ultimately provided no legal protection to Shimasaki, Kent’s agent represented to Shimasaki that a $1,000 payment would relieve Shimasaki of liability. Thus, we hold that Kent's acceptance of $1,000 from Shimasaki was an accord and satisfaction for the entire sum of damages.
CONCLUSIONS
Kent's rental contract imposed liability on the renter, Shimasaki, for all damages to the rental vehicle, regardless of negligence. The agreement did not impose absolute liability upon Shimasaki with regard to other *51vehicles. Kent's right to indemnity against the third parties' claims is contingent upon proof that the driver of the rental car, Tafua, was negligent and, therefore, primarily liable in the accident. Without proof of Tafua's fault, Kent has failed to make a prima facia case for indemnification against the third-party claims.
Shimasaki's liability for damages to Kent's vehicle is discharged by the $1,000 payment, because Kent's agent represented that Shimasaki would not be required to make any additional payment, despite understanding that the insurance claim was doubtful. Shimasaki relied on this representation in making the payment. Although the agent was not given actual authority to settle claims on Kent's behalf, the agent had apparent authority, which was sufficient to bind Kent as her principal.
For these reasons, we deny Kent's claim for indemnification by Shimasaki, or any other recovery against her.
It is so ordered.
This provision is so poorly written, convoluted and difficult to read that attorneys (let alone the average person renting a vehicle) would have a difficult time understanding it. This creates an inherent problem for Kent in demonstrating that there was any meeting of the minds regarding this clause. In the present case there are other bases for our decision, but we find it useful to point out that provisions of a form contract may be *47voidable solely on the basis of incoherence. JOHN D. Calamari & Joseph M. Perillo, Contracts § 9-44 (2d ed. 1977).
This argument is not intended to deny the principle that the vehicle owner may collect indemnity from the negligent driver for any damages resulting from the accident without regard to insurance. Vaiti v. Tuiolemotu, 19 A.S.R. 2d 71, 74 (Trial Div. 1991) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486359/ | Opinion and Order:
Petitioners are requesting that their parental rights and obligations to their daughter, age two years, be divested so that the paternal grandmother can adopt the child. The hearing was held on August 18,1995.
The grandmother cares for this only child on a daily basis, while the natural parents are at work. The other children of her former marriage are grown and have their own homes. The natural parents live with her and the child, and are the breadwinners of the family. The grandmother has combined income from Social Security and retirement of less than $400 per month. We do not question her love and affection for the child. Certainly, she has, and can continue to have, a significant and regular role in the child's upbringing.
However, the child's best interests come first. The child's interests are not best served by legally severing the parent-child relationship when she is living with her natural parents, who provide her support. It is inappropriate to change family norms at this time. If they have more children, and in any event, when the grandmother passes on, the natural *54parents will understand this observation. Now is the time that they and the grandmother should recognize and accept this reality.
The petition is denied for these reasons. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486360/ | Order Granting Motion for Stay of Execution of Judgment Pending Appeal Effective Upon Posting Bond Approved by the Court:
*55HISTORY
On May 26, 1995, this court awarded eounterclaimant Blue Pacific Management Co. ("Blue Pacific") damages of $20,900 for Hurricane Ofá's destruction of the skylight at Pago Plaza, based on the professional malpractice of the architect, who designed the skylight and. supervised its installation for eounterdefendant G.M. Meredith and Associates ("GMA"). GMAs motion for a new trial or reconsideration was denied on September 13, 1995. GMA appealed on September 20, 1995, and now moves for a stay to prevent enforcement of the judgment pending the appeal. The hearing on the motion to stay was held on October 12, Í995, with counsel for both parties present.
STANDARD OF REVIEW
A motion for a stay pending appeal is evaluated according to four criteria: (1) the likelihood that appellant will prevail in the appeal; (2) irreparable harm to the appellant if the stay is not granted;. (3) irreparable harm to appellees if the stay is granted; and (4) whether the public interest would be affected by the stay. Asifoa v. Faoa, 17 A.S.R.2d 100, 102 (App. Div. 1990). In considering the foregoing issues of prejudice, great weight will be given to preserving the status quo pending appeal, and a motion for a stay for that purpose generally ought to be granted if the appeal is not frivolous, nor taken for the purpose of delaying the inevitable. Id. at 102-103.
DISCUSSION
Our opinion in the present case is the first in this jurisdiction involving an architect's professional malpractice, and applies the doctrine of res ipsa loquitur to damages resulting from a hurricane. Although we are comfortable that our holdings are correct, we acknowledge the fact that they present legal issues which are debatable and which are not settled in this jurisdiction. For this reason, we conclude that the appeal is not taken either frivolously or solely for the purpose of delaying the inevitable.
Blue Pacific does not object to the stay, provided that GMA posts a bond to secure the judgment in case the appeal is unsuccessful. In light of this general agreement that a stay is appropriate, we are further determined to exercise our discretion to preserve the status quo pending appeal, if we can do so without undue prejudice to either party.
The applicable rule governing a bond as security for a stay on appeal is found in T.C.R.C.P. 62(d), which states:
*56Subject to the discretion of the court, when an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the conditions of subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.
We are required, under this rule, to use our discretion and determine whether to impose security in exchange of a stay of a money judgment pending an appeal. Asifoa, 17 A.S.R.2d at 103.
In the present case, the appeal has not been calendared for the upcoming appellate session and will, therefore, be tied up in appellate litigation for quite some time. Blue Pacific will also be required to expend resources to defend the judgment. Thus, Blue Pacific has a legitimate interest in making sure that the judgment remains recoverable during the substantial period of the appeal.
For these reasons, and exercising our discretion, we grant the motion to stay enforcement of the judgment pending the appeal, but require that GMA post a bond approved by the court to effectuate the stay. The principal amount of the bond shall be the amount of the judgment, $20,900, less any amount already secured by execution of the judgment, and shall provide surety for post-judgment interest at the rate of 6% per annum on the principal amount of the bond.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487006/ | 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
JASON GILLMAN JR, UNPUBLISHED
November 17, 2022
Plaintiff-Appellant,
v No. 360586
Kent Circuit Court
KENT COUNTY HEALTH DEPARTMENT and LC No. 20-008894-CZ
KENT COUNTY,
Defendants-Appellees.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Plaintiff, Jason Gillman Jr., appeals as of right the trial court’s order granting summary
disposition in favor of defendants, Kent County and Kent County Health Department, under MCR
2.116(C)(10). This case arises from defendants’ handling of a request for public records submitted
by plaintiff under the Freedom of Information Act (FOIA), MCL 15.231 et seq. Plaintiff argues
that defendants did not have a valid basis for its delayed response to plaintiff’s request because
Executive Order No. 2020-38, which extended the relevant deadlines, did not have a proper
statutory basis. Plaintiff also argues that the trial court erred by concluding that defendants’
eventual response was compliant with FOIA. We affirm.
I. BACKGROUND
The facts giving rise to this case transpired against the backdrop of the pandemic and the
government’s responses. In March 2020, Adam London—the Administrative Health Officer for
Kent County’s Health Department—filed a petition seeking the authority to detain individuals
involuntarily who were deemed threats to public health; this order was subsequently granted.
Plaintiff submitted two FOIA requests seeking various records pertaining to London’s petition. In
the first request, plaintiff sought, in addition to a copy of London’s petition and the corresponding
order, “[a]ll communications and responsive records relating to the petition.” In the second
request, plaintiff sought “communications to, with, and/or from the Kent County Circuit Court
relating to the uses of the order petitioned for by Adam London.” Plaintiff submitted his requests
on April 18 and April 24, 2020, respectively. Defendants responded to each on May 13; they
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provided copies of the petition and order, but the other requests were denied because, according to
defendants, no responsive records existed.
Plaintiff sued defendants in the circuit court alleging that defendants violated FOIA by
failing to conduct an adequate search for the records. In the denial notification, defendants asserted
that London looked for responsive records by searching his Outlook sent items for emails sent to
the judges or court administrators involved with the petition. Plaintiff also claimed that defendants
violated FOIA by failing to respond timely to the requests. A public body is required to respond
to a request for public records within five days, and it is undisputed that defendants failed to meet
this deadline. Defendants nonetheless argued that they did not violate FOIA because, at the outset
of the pandemic, Governor Gretchen Whitmer issued Executive Order No. 2020-38, which
suspended strict compliance with the Freedom of Information Act and extended the relevant
deadlines. Plaintiff responded that Executive Order 2020-38 was not a valid basis for failing to
meet the deadlines because it lacked a proper statutory basis. The trial court disagreed and
ultimately granted summary disposition in favor of defendants.
This appeal followed.
II. ANALYSIS
A. STANDARDS OF REVIEW
We review de novo a trial court’s decision to grant or deny a motion for summary
disposition, and the evidence is viewed in a light most favorable to the nonmoving party. West v
Gen Motors Corp., 469 Mich 177, 183; 665 NW2d 468 (2003). Summary disposition should be
granted under MCR 2.116(C)(10) when the evidence reveals no genuine issue of material fact. Id.
“We review de novo the interpretation and application of a statute . . . .” Boyle v Gen Motors
Corp, 468 Mich 226, 229; 661 NW2d 557 (2003). We likewise review “de novo a circuit court’s
legal determinations in a FOIA case.” Bitterman v Village of Oakley, 309 Mich App 53, 61; 868
NW2d 642 (2015). “The court’s factual findings are reviewed for clear error if a party challenges
the underlying facts supporting the court’s decision. Discretionary determinations in a FOIA case
are reviewed for an abuse of discretion. A trial court abuses its discretion when its decision falls
outside the range of principled outcomes.” Id. (quotation marks and citations omitted).
B. EXECUTIVE ORDER NO. 2020-38
Plaintiff argues that the extended deadlines provided by Executive Order No. 2020-38 did
not provide defendants with a valid basis for failing to comply with FOIA’s deadlines because
Governor Whitmer did not have a valid statutory basis for issuing this order.
A public body generally must respond to a FOIA request within five business days, and an
intentional failure to comply with this deadline is treated as a final determination to deny the
request. MCL 15.235(2), (3)(a). In this case, plaintiff submitted his requests on April 18 and April
24, 2020, and defendants responded to each on May 13. It is undisputed that this timeframe was
not compliant with Section 2 of FOIA and that this noncompliance was intentional. Therefore, if
FOIA was to control the issue independent of executive action, defendants’ failure to respond
timely would constitute a final denial of the requests. MCL 15.235(3)(a). This final denial would
confer upon plaintiff the right to commence a civil action against defendants, and this civil action
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could subject defendants, in conjunction with other remedies, to a $1,000 civil fine. MCL
15.240(1)(b), (6), (7).
While it is undisputed that defendants did not comply with the timeframes laid out by
FOIA, it is likewise undisputed that defendants did comply with the modified timeframes provided
by Executive Order No. 2020-38. Under this order, the deadline to respond to a request was
extended to 10 days, and public bodies were authorized to issue a notice “extending the period of
time in which to respond for as long as the public body deems necessary” before the expiration of
the order. Executive Order No. 2020-38(1). Additionally, to the extent that compliance with a
request required “in-person efforts,” the public body was authorized to “defer that portion of the
request until the expiration of this order or any order that follows from it.” Executive Order No.
2020-38(2)(a). Plaintiff argues that this executive order cannot shield defendants from liability
because Governor Whitmer did not have the statutory authority to issue it.
Defendants argue and the trial court held that defendants reasonably relied on Executive
Order 2020-38 because it was effective at the time of plaintiff’s request. For plaintiff to prevail,
this Court would need to hold not only that Governor Whitmer lacked statutory authority to issue
Executive Order No. 2020-38; it would also need to apply this holding retroactively. “It is well
established that the general rule is that judicial decisions are to be given complete retroactive
effect.” League of Women Voters of Mich v Secretary of State, 508 Mich 520, 564; 975 NW2d
840 (2022) (quotation marks and citation omitted). “However, where injustice might result from
full retroactivity, this Court has adopted a more flexible approach, giving holdings limited
retroactive or prospective effect. This flexibility is intended to accomplish the ‘maximum of
justice’ under varied circumstances.” Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861
(1997).
As the United States Court of Appeals for the Sixth Circuit has recently observed, our
Supreme Court’s holding in 2020 that Governor Whitmer’s executive orders were invalid beyond
April 30 of that year was intended to apply prospectively. See Skatemore, Inc v Whitmer, 40 F4th
727, 736 (2022) (“Plaintiffs ask us to construe the Michigan Supreme Court’s holding as
retroactively stripping Governor Whitmer of any authority she had; however, the opinion actually
suggests the holding was merely prospective.”). Our Supreme Court explained that “the executive
orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under
Michigan law.” In re Certified Questions From US Dist Court, Western Dist of Mich, Southern
Div, 506 Mich 332, 338; 958 NW2d 1 (2020). The Supreme Court also said that “the [statute]
cannot continue to provide a basis for the Governor to exercise emergency powers.” Id. at 385
(emphasis added). At the time of defendants’ responses, they acted timely under then-existing
law. Although that law was later held to be without proper authority, our Supreme Court has made
it clear that courts are not to undo or unravel those then-permissible acts of a local official. If our
Supreme Court disagrees, it will need to revisit and clarify the matter.
C. ADEQUACY OF DEFENDANTS’ FOIA RESPONSES
Plaintiff’s argument that defendants’ eventual responses to his FOIA requests were
inadequate is similarly without merit.
Section 3 of FOIA provides in relevant part:
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Except as expressly provided in section 13, upon providing a public body’s
FOIA coordinator with a written request that describes a public record sufficiently
to enable the public body to find the public record, a person has a right to inspect,
copy, or receive copies of the requested public record of the public body. . . . [MCL
15.233(1).]
Between his two requests, plaintiff requested the following records: “All communications
and responsive records” pertaining to the petition filed by Adam London; all communications
between defendants and the Kent Circuit Court pertaining to the uses of the order obtained as a
result of London’s petition; a copy of the petition; and a copy of the order granting the petition.
The latter two requests were granted and the documents were provided to plaintiff; the former
requests were denied because, according to defendants, no such records existed. Plaintiff argues
that defendants failed to undertake an adequate search for the records; the responses sent to
plaintiff stated that Adam London searched his Outlook email account for emails sent to the judge
or the court administrator pertaining to the petition. Plaintiff contends that responsive records
existed and would have been located had a thorough search been performed.
The trial court was presented with evidence that records which would be responsive to
plaintiff’s requests did not exist, and “[i]f a record does not exist, it cannot be produced.” Coblentz
v Novi, 475 Mich 558, 569; 719 NW2d 73 (2006). Both of the May 13, 2020 responses to
plaintiff’s FOIA requests stated that there were no records in existence that were responsive to his
requests. Moreover, multiple county employees submitted affidavits in which they swore that
there existed no records consistent with plaintiff’s description. Plaintiff produced no evidence
before the trial court purporting to refute these assertions; indeed, plaintiff did not seek to depose
the two affiants to press them on the assertions that the records did not exist.
Mere speculation that records exist is insufficient to defeat a motion for summary
disposition. For example, in Coblentz, the plaintiffs were seeking site plans for a construction
project, and the defendant produced an affidavit from mayor of the city of Novi stating that site
plans had not been submitted to the city. Coblentz, 475 Mich at 569-570. The Supreme Court
held that “[w]ithout factual support to contradict [the mayor’s] affidavit, the trial court properly
granted summary disposition pursuant to MCR 2.116(C)(10).” Id. at 570. Here, defendants
submitted evidence that the records sought did not exist, and plaintiff failed to produce evidence
to the contrary, which was his burden to do under MCR 2.116(C)(10). Id. Therefore, the trial
court properly granted defendants’ motion for summary disposition.
Now, for the first time on appeal, plaintiff cites records produced in response to a different
FOIA request in support of his assertion that responsive records exist. Parties, however, are not
permitted to expand the record on appeal. Lamkin v Engram, 295 Mich App 701, 703 n 2; 815
NW2d 793 (2012). Moreover, this Court previously rejected plaintiff’s motion to expand the
record so that these documents could be considered. Gillman v Kent Co Health Dep’t, unpublished
order of the Court of appeals, entered July 11, 2022 (Docket No. 360586).
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Affirmed.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-5- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486363/ | Order Denying Motion to Modify Order:
On June 5, 1995, this court rendered judgment for the plaintiffs in the above-captioned case, and denied South Pacific Island Airsystems' ("SPIA's") motion for new trial on August 17, 1995. SPIA then filed a notice of appeal on Monday, August 31, 1995, or 14 days after the entry of judgment. A.C.R. 4(a)(1) requires, however, that the notice of appeal be filed within 10 days of the entry of judgment. Plaintiff American *63Samoa Government ("ASG") and defendant Samoa Aviation ("SamAir") therefore moved for dismissal of the appeal. SPIA then filed the present motion, asking the trial court to modify the date on the order denying the motion for a new trial, on the assertion that it was not actually placed in Counsel's court box until August 28, 1995. We now consider that motion.
STANDARD OF REVIEW
The court does not have jurisdiction to extend time for filing a notice of appeal. Masaniai v. Siafono, 17 A.S.R.2d 34, 35-36 (App. Div. 1990) (construing A.S.C.A. § 43.0802(b)). A.C.R. 26(b), in fact, specifically prohibits the court from doing so. An oversight by a court official can sometimes justify relief from judgment under T.C.R.C.P. 60(b)(6). Jennings, supra at 39. But, "[a]t very least the court should be reasonably certain that the litigant really did not receive timely notice of the adverse order . ..," because "if there is one thing that every employee in the clerk's office has learned to do right, it is to place Court orders in the boxes of the appropriate counsel immediately upon their entry." Faoa v. Asifoa, 18 A.S.R.2d 49, 55-56 (Land & Tit. Div. 1991). The standard of review is satisfied, therefore, only upon reasonable certainty that the aggrieved party has not received the relevant order. Furthermore, the court must be satisfied that the aggrieved party "acted expeditiously as soon as he did receive notice." Faoa, supra at 55.
DISCUSSION
In support of its motion, SPIA filed an affidavit given by its attorney's secretary, claiming that she did not find the order in counsel's court box until 8.00 a.m., August 28, 1995. We remain unconvinced in view of the affidavit of the Chief Deputy Clerk, attesting that she filed the order in the boxes of all relevant counsel the same day, and in light of the fact that every other party in the case received the order in a timely manner. SPIA's counsel contends that sometimes orders are placed in adjacent file folders by mistake, and that the attorney receiving the order erroneously may return the document to the correct destination file without notifying anyone. As nearly as we can tell, SPIA's counsel is guessing, and in fact has not investigated this possibility. At the same time, guesswork does not produce reasonable certainty.
Furthermore, even if SPIA did receive notice of the order late, we find that SPIA did not act expeditiously as soon as its counsel received notice. SPIA alleges that it received the judgment on August 28, 1995, or 11 days following the final judgment. Although a notice of appeal is due within 10 days following a denial of the motion for new trial, that date is extended by one day when, as in this case, the deadline falls on *64Sunday. A.C.R. 26(a). The effort required to file a timely notice of appeal is minimal,1 and we find that it could easily have been completed in a single day. The fact that SPIA's attorney waited for three days after allegedly receiving notice indicates that he did not act "expeditiously as soon as he did receive notice." Faoa, supra at 55.
For the foregoing reasons, we deny SPIA's motion to modify the date of our order denying motion for new trial, and decline to grant relief from judgment in any other form.
It is so ordered.
The actual notice of appeal filed by counsel clearly demonstrates this. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486364/ | Injunction Pending Appeal:
Complying with A.C.R. 8(a), plaintiffs have first applied to the trial court for an injunction pending appeal, as authorized under A.C.R. 8(a) and T.C.R.C.P. 62(c). The court heard counsel's arguments on October 19 and 23, 1995, and in light of the criteria set forth in Asifoa v. Lualemana, 17 A.S.R.2d 100, 103 (App. Div. 1990), grants the application for the following reasons.
1. Likelihood of success on anneal. The central issue in this action involves the meaning of "alienation," as defined in A-S.C.A. § 37.0201(a), of individually owned land in the context of the beneficial interests in two trust arrangements. This issue reaches constitutional proportions and concerns the interaction with the policy restrictions protecting land with due process and land ownership rights. While we are confident that our decision is substantively correct, we also recognize that the decision raises questions of law which are difficult and not fully explored by other precedents, and about which reasonable persons may disagree. Regardless of how we may characterize the closeness of the questions of law, this is the very type of situation in which in principle the status quo should be preserved through an injunction pending appeal. Asifoa v. Lualemana, 17 A.S.R.2d 10, 14 (Trial Div. 1990); Asifoa v. Lualemana, 17 A.S.R.2d 100 at 103.
2. Irreparable harm. On this criteria, we need to balance the equities. Asifoa v. Lualemana, 17 A.S.R.2d at 13. The law treats land as unique. Loss of land cannot be replaced by like land. As matters now stand, plaintiffs have lost then interests in the land at issue and have suffered irreparable harm. Moreover, if defendant Magdalene Vaivao Craddick ("Magdalene") is allowed to exercise full ownership rights over the land at this time, numerous third persons may potentially face adverse consequences from land transactions she may enter. Magdalene has won ownership of the land immediately and if she prevails on appeal. An injunction pending appeal will not alter her position in any significant way.
3. Public interests. Public interests are linked to this action. As suggested above, coordination between the preservation of Samoan land customs, on one hand, and economic development of land, on the other, will be impacted. Also indicated, unfettered land transactions in the interim could compound issues to be sorted out judicially or otherwise. An injunction pending appeal will afford protected time to duly consider *66the public policy issues and help to minimize other disputes which could unnecessarily arise.
4. Bond. Magdalene requests that plaintiffs post a bond if we grant the injunction pending appeal. As discussed in Asifoa v. Lualemana, 17 A.S.R.2d at 103, security may be appropriate when a demonstrable value from loss of use is at stake. In this case, however, due to insufficient evidence, we have purposely postponed assessment of any monetary consequences of our decision pending adequate accountings of relevant past transactions by plaintiffs Craddick Development, Inc. ("CDI"), by and through it agents, including but not limited to plaintiff David Craddick and Magdalene In addition, security is not ordinarily required when land disputes are under appeal. Id.
For good cause shown, Magdalene, her officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with her are enjoined from taking any steps to lease, convey, reacquire possession, construct, alter or destroy improvements or commit any waste upon, any of the land placed in the trusts at issue in this action.
This injunction pending appeal does not prevent Magdalene from seeking information from occupants of land for the purpose of complying with the court's order to file her accounting of past transactions.
Both CDI and Magdalene are presently required to file their respective accountings within 120 days of the entry of the judgment in this action on June 27, 1995, or no later than October 25, 1995. At the hearings on the injunction pending appeal, it was apparent that neither CDI nor Magdalene is capable of meeting this filing deadline. Thus, the deadline will be delayed another 120 days, or until February 22, 1996.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486365/ | Opinion:
KRUSE, C.J.:
The appellant Lim Heung Man ("Lim") was convicted by a jury of Driving Under the Influence of Alcohol, a class A misdemeanor under A.S.C.A. § 22.0707(a). He appeals his conviction claiming: (1) ineffective assistance of defense counsel, citing trial counsel's failure to object to several evidentiary matters and to adequately investigate his case; and (2) that the field sobriety tests to which he was subjected were limited by the constitutional privilege against self-incrimination.
DISCUSSION
L Ineffective Assistance of Counsel.
In order to establish ineffective assistance of counsel, the claimant must prove both that defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and that his defense was prejudiced by counsel's substandard performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). The test for prejudice requires a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. Any error by counsel, even if unreasonable, does not warrant setting aside judgment of a criminal proceeding if the error had no effect on the judgment. Id. at 691. Finally, the standard of proof is viewed against a strong presumption of effectiveness. Id. at 689.
A. Field Sobriety Tests
Lim contends that trial counsel should have objected to testimony regarding field sobriety tests ("FST"), based on the lack of foundational testimony to establish the correlation between performance on the tests and intoxication. We find this claim to be factually incorrect. Officer Liu Fuifatu testified that he administered standardized FST, designed as indicators of intoxication, for which he had received formal training. (Tr. at 22-25). Furthermore, the officer testified that he had performed these FST approximately 30 times, and had testified regarding them approximately 20 times. (Tr. at 24). Contrary to Lim's claim, trial counsel did, in fact, object to the line of questioning on the ground that *69the officer had no scientific expertise upon which to base testimony regarding the correlation between failure on the FST and intoxication. The objection was overruled by the court. (Tr. at 24).
B. Prejudicial Comments
Lim argues that trial counsel should have objected to prejudicial testimony by the officer that he arrested Lim to "take him off the road" to prevent potential injury to others. Lim fails to state what the objection should have been, and since the testimony appears directly relevant for explaining the reasons for Lim's arrest, we see no reason why the failure to make this unknown objection should render trial counsel's assistance ineffective.
Lim further argues that trial counsel should have objected to questions by the prosecutor regarding the results of the breathalizer test for lack of foundation as to the officer's qualifications to interpret the test. In fact, trial counsel did object to the officer's testimony as being duplicative of the report generated by the breathalizer machine, which could be entered into evidence itself. (Tr. at 47-48). Furthermore, the trial counsel's decision not to raise the particular objection was likely predicated on his judgment about how much evidence he could persuade the trial court to exclude. As such, it was a matter of trial strategy and not challengeable on appeal. Strickland v. Washington, 466 U.S. at 690-91.
C. The Breathalizer Machine
Lim argues that the prosecution offered the alco-sensor machine into evidence without first informing defense counsel, and that trial counsel should have moved for a mistrial, rather than stipulating to the demonstration. This argument is premised on the theory that objecting to the demonstration in front of the jury might have been prejudicial. Although the foregoing possibility gives rise to a number of interesting issues, it is sufficient for our purposes that the decision of whether to move for a mistrial rather than continuing with the empaneled jury was purely strategic, and therefore not challengeable on appeal. Strickland v. Washington, 466 U.S. at 690-91.
Lim further argues that he was deprived of his opportunity to confront witnesses because the testimony regarding the breathalizer machine lacked scientific foundation. At trial the parties stipulated to the fact that the operator of the machine was qualified to calibrate it, and that it was properly calibrated. Defense counsel had the opportunity to cross-examine the operator of the machine. If, as a matter of trial strategy, counsel declines to cross-examine a witness or avoids asking certain *70questions, the defendant's right to confront witnesses is not violated. United States v. Cree, 778 F.2d 474, 478-79 (8th Cir. 1985).
D. Prejudicial Effect
Even if all of the aforementioned evidence were excluded, the jury still had ample proof upon which to base a conviction. The officer testified that Lim drove on the wrong side of the road; that Lim's face and eyes were red; that his speech was slurred, that he smelled alcohol on Lim's breath; and that Lim had difficulty trying to get out of the car. Erratic driving patterns, when matched with physical symptoms of drunkenness were probably sufficient, by themselves, to convict Lim regardless of the FST and breathalizer test. Furthermore, Lim admitted to consuming two beers shortly before taking the wheel. Based on the aforementioned evidence, we see no reasonable probability that the result would have been different, even if the court had excluded all of the evidence complained of in this appeal. The appeal therefore fails the second prong of the Strickland test. Strickland v. Washington, 466 U.S. at 687.
E. Failure to Investigate
Lim simply claims that there "appears" to be a failure on defence counsel's part to properly investigate, "based on what is found on the record." [Lim's Br. at 8]. Like a number of other factual allegations made by Lim, these claims are not supported by the record. Rather, they are presented in conclusory fashion without apparent regard to the required Strickland showing. They are not sufficient to make out an ineffective assistance of counsel claim.
1L Sobriety Tests as Self-Incrimination.
Lim contends that he should have been advised that he was not required to submit to FST because of the privilege against self-incrimination in the Fifth Amendment to the United States Constitution, and the Revised Constitution of American Samoa, Article I § 6. The U.S. Supreme Court held that a traffic stop and FST is not an arrest and, therefore, Miranda warnings are not required, regardless of whether the suspect has a right to refuse the tests. Pennsylvania v. Bruder, 488 U.S. 9 (1988); Brekemer v. Ohio, 468 U.S. 420, 442 (1984). Furthermore, the privilege against self-incrimination is only a privilege against giving testimony or other communicative evidence against oneself, and does not protect the accused from giving real or physical evidence. Doe v. United States, 487 U.S. 201, 210 (1988). FST are physical evidence, not testimonial evidence, and do not violate the privilege against self-incrimination. Pennsylvania v. Muniz, 496 U.S. 582, 602-605 (1990) (case concerns the same three FST performed in the present case). We *71decline Lim’s rather bold and unsupported appeal to depart from these Supreme Court holdings in order to adopt an expanded and singularly held view of the privilege against self incrimination.
We AFFIRM. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486366/ | Order Denying Ex Parte Application for Order Directing May Fitiausi to Appear in High Court:
I. Introduction
On November 3, 1995, Assistant Attorney General Frederick J. O’Brien filed an ex parte application with this court asking that we arrest May Fitiausi and compel her attendance as a material witness in a criminal trial in Hawaii. His application was based upon an underlying certificate of request signed by Judge Marie N. Milks of the First Circuit Court of Hawaii dated October 18, 1995. For the reasons stated below, I must deny the application.
II. Facts
Robert Earl Gamer has been charged with attempted murder in the second degree, attempted sexual assault in the first degree, place to keep pistol or revolver, and terroristic threatening in the first degree in the First Circuit Court of Hawaii. He is scheduled to stand trial on November 13, 1995. The following facts are set forth in the government’s application to this court.
Th^ charges against Gamer have arisen from two incidents involving his former girlfriend, May Fitiausi. Fitiausi and Garner lived together in Hawaii for over two years. In June 1994, Fitiausi expressed her intention to end the relationship and reunite with her husband in American Samoa.
On September 9, 1994, Gamer and Fitiausi met to discuss their breakup. She stated that she wanted the relationship to end. He indicated that he wanted to engage in sexual relations with her. When she refused his advances, he brandished a .25 caliber semi-automatic firearm and threatened her.
On September 23, 1994, Fitiausi went to Gamer’s house to retrieve some of her belongings. They discussed their relationship, and she again told him it was over. Garner became angry with her, and, as before, stated his desire to engage in sexual relations with her. She again refused his advances. Garner forced her on the bed, where he attempted to sexually *73assault her. Fitiausi screamed and yelled for help. Gamer told her to stop screaming, but she did not comply. Gamer then grabbed a knife from a nearby table and slashed Fitiausi’s throat. The wound measured 5 to 6 inches in length and was 1-1/2 inches deep. It narrowly missed the carotid artery.
Trial was set for October 16, 1995. On October 2, 1995, Fitiausi was subpoenaed to appear at that trial. She never appeared. The Hawaiian investigator learned that she had fled Hawaii for American Samoa on the date she was served. He also discovered her address and phone number and contacted her. She indicated that she would not return to Hawaii to testify, even if the government paid her travel and per diem expenses.
A request has been made to this court to compel Fitiausi’s attendance for the trial in Hawaii.
III. Discussion
Hawaii has adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings ("Uniform Act"). See Haw. Rev. Stat. ch. 836 (1993). The statute is meant to represent a reciprocal agreement between states and territories for the extradition of uncooperative witnesses to testify in criminal trials. The relevant portion of the law reads as follows:
If a person in any [territory],1 which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions . . . in this State [Hawaii], is a material witness in a prosecution pending in a court of record in this State,.. . a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this State to assure the witness’ attendance in this State. This certificate shall be presented to a judge of a court of record in the judicial district in which the witness is found.
*74Id. at § 836-3. The statute goes on to provide that Hawaii will pay the witness' travel expenses, as well as per diem living expenses. A person who fails to appear under an appropriate order is chargeable under Hawaii law.
A reading of the statute shows that there are two requirements for the extradition of a witness: (1) the territory of which the request is made must have a reciprocal provision for "commanding persons within its borders to attend and testify in criminal prosecutions ... in [Hawaii]"; and (2) the witness requested must be "material." Id.; see Arizona v. Brady, 594 P.2d 94, 96 (1979) (interpreting the Uniform Act). The second requirement, the materiality of the witness, is clearly met. The first requirement, however, has not been met.
Hawaii acknowledges that American Samoa, unlike many of the states, has not adopted the Uniform Act. It also acknowledges that American Samoa has no analogous provision for extraditing material witnesses to other jurisdictions or for securing witnesses in foreign jurisdictions to testify here. Nevertheless, Hawaii has developed a complicated and circuitous argument that American Samoa is subject to federal law which' satisfies the requirements of the Uniform Act.
The argument proceeds in two parts. First, Hawaii argues that A.S.C.A. § 46.0501 makes the federal law concerning detention of material witnesses, 18 U.S.C.S. § 3144 (Law. Co-Op. 1993), applicable in American Samoa. Second, Hawaii argues that 18 U.S.C.S. § 3144, applied in American Samoa, satisfies the first requirement of the Uniform Act. Both of these contentions are flawed.
First, A.S.C.A. §46.0501 does not make 18 U.S.C.S §3144 applicable here. Section 46.0501 reads:
Except as otherwise provided in this Code, or by rules adopted by the Chief Justice, the criminal procedure in the High Court and in the district courts shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure.
A.S.C.A. § 46.0501 (1992) (emphasis added). Section 46.0501 brings our criminal procedure into conformance with, the Federal Rules of Criminal Procedure, not with every rule of criminal procedure applicable in the federal courts. The term "Federal Rules of Criminal Procedure" refers specifically to the 68 rules which go by that title. See Fed. R. Crim. P. 60 ("These rules may be known and cited as the Federal Rules of Criminal Procedure."). 18 U.S.C.S. § 3144, while a rule of criminal procedure applicable to federal courts, is not part of the Federal Rules of *75Criminal Procedure. Therefore, § 46.0501 does not make 18 U.S.C.S. § 3144 applicable to the Territory.
Second, even if 18 U.S.C.S. § 3144 applied here, nothing in its terms satisfies the requirements of the Uniform Act. The Uniform Act requires a reciprocal statute providing for the extradition of material witnesses to another jurisdiction. 18 U.S.C.S. § 3144 only provides for the taking of witnesses into custody who may not be practically compelled to testify by subpoena. It reads, in full:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
18 U.S.C.S. § 3144 (Law. Co-Op. 1993). There is nothing in the statute concerning extradition of witnesses, and Hawaii has cited no authority that the statute is to be interpreted to include such. Thus, even if 18 U.S.C.S. § 3144 applied here, which it does not, it would not aid Hawaii in its request.
IV. Conclusion
The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings seems to be an intelligent law. American Samoa would benefit greatly, as would the other states and territories of the United State, should we adopt it as legislation.2 However, we have not. Nor have we adopted any similar provision. This court has stated repeatedly that it will not sit as a legislature. Thus, *76although I would strongly recommend that the Legislature of American Samoa consider enacting the Uniform Act, I cannot proceed by judicial fiat as if the Legislature has already enacted it.
Because there is no law in place in American Samoa which satisfies the first of the requirements of the Uniform Act, as enacted in Hawaii, I am compelled to reject the Application for an Order Directing May Fitiausi to Appear. I understand that this may cause serious problems for the Hawaiian government in prosecuting Garner. Nevertheless, Ms. Fitiausi has rights which must be protected. I am compelled to follow the law applicable here which protects those rights.
The application is DENIED.
It is so ordered.
The word "state," which has been replaced in this excerpt, is defined as "any state, territory, or possession of the United States." Id. at § 836-
1. It is assumed for this order that this definition encompasses American Samoa.
The Fono has in other contexts provided reciprocal enforcement legislation, as in the adoption of the Uniform Reciprocal Enforcement of Support Act, A.S.C.A. § 42.0401 et seq., the Uniform Enforcement of Foreign Judgments Act, § 43.1701 et seq.,and the Unifrom Criminal Extradition Act, A.S.C.A. § 46.0901 et seq. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486367/ | Order Denying Petition for Transferal of Personal Property:
The petitioner is the surviving spouse, ordinarily entitled to issuance of letters of administration. She seeks the transferal of personal property of her husband’s estate which includes a savings account of $3,200 with the Amerika Samoa Bank. The petition, however, further seeks authorization for petitioner to negotiate "all checks made payable to decedent."
The petition as presented must be denied. A.S.C.A. § 40.0334, under which relief is sought, applies only to estates with personal property under $10,000. See In re the Estate of Fuimaono, 1 A.S.R.2d 142 (Trial Div. 1988). A.S.C.A. § 40.0335(b) requires the petition to state the total value of the personal property. This petition does not do so, leaving undeclared the value of certain checks made payable to the decedent.
In an apparent attempt to get around this statutory limitation, petitioner proposes an order from the court that would effectively permit her to negotiate "all checks that are made payable to decedent.. . not to exceed $10,000." Such an order would make mockery of A.S.C.A. § 40.0334, as it would admit estates with personal property in excess of $10,000 by simply limiting an order of transfer to an amount "not to exceed $10,000." The petition is denied. However, the court will allow the petitioner 30 days to amend the petition to state the value of the checks. If the petition is properly amended and otherwise complies with the statutory provisions, it will be granted at that time.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486368/ | Opinion and Order:
RICHMOND, J.:
On October 31, 1994, the Land and Titles Division of this court ("trial court") awarded the matai title "Olomua" of the Village of Aoa to appellee Te'o J. Fuavai ("Te'o"). Appellant Laumoli Sasa ("Laumoli"), the losing candidate at trial, appealed.
Disputes over matai titles are governed by the four criteria set forth in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) the wish of the *79majority or plurality of the clans as customary in that family; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to the family, village and country. The trial court’s factual findings concerning the candidates’ relative worthiness with regard to each of these factors should not be reversed unless found to be "clearly erroneous." A.S.C.A. § 43.0801(b).
1. Hereditary Right
Laumoli prevailed on this issue at trial and does not appeal it.
2. Clan Support
The trial court found that the original Olomua had one child, who, according to custom, founded the single clan of the family in the absence of any established contrary family tradition. The trial court further found that neither candidate has the consensus of that clan. Hence, neither candidate prevailed upon the criterion of having the support of the majority or plurality of the clans within the family.
Laumoli argues that the family is actually comprised of more than one clan, and that he has the support of all of the clans. This argument defies logic. If Laumoli had the support of all the family clans, whether one or more in number, in the Samoan tradition of consensus, this case would never have been litigated. As to the issue of whether there is more than one clan, Laumoli merely asserts‘that both candidates believe the family to be comprised of more than one clan.
Te'o argues that both factions of the family, which he loosely refers to as "sides or clans," had agreed at the Office of Samoan Affairs that the Te'o side,of the family would become the next Olomua. Te'o's Br. at 5. Te'o also refers to "all of the clans of the family or representatives of these immediate families of one clan." Te'o's Br. at 6.
We cannot conclude that the trial court was clearly erroneous in finding that the family is comprised of a single clan and neither candidate won this criterion.
3. Forcefulness, Character and Personality, and Knowledge of Samoan Customs
Regarding knowledge of custom, Laumoli takes no issue with the trial court's finding that the parties were equal. He contests the finding that Te'o's style of forcefulness is preferable to his own. The trial court found that Laumoli tends to be somewhat overbearing based on the fact that, as an untitled man, Laumoli caused contention within his family by *80unilaterally asserting control over family lands and destroying the plantation of another family member. Laumoli does not dispute that the incident occurred but characterizes his involvement as action to protect family lands.
These arguments may be thought provoking, but they do not demonstrate that the trial court’s portrayal of the facts is clearly erroneous. They merely suggest that the objective facts should be viewed in a better subjective light than the trial court chose to view them. We cannot substitute our own judgment and render the trial court’s subjective characterization clearly erroneous unless no reasonable person could view the facts as the trial court viewed them. A reasonable person could have viewed the facts as the trial court did, and thus there is no clear error.
4. Value to the Family, Village and Country
Laumoli points out that he, unlike Te‘o, has rendered tautua (or service) to the previous Olomua; that he, unlike Te‘o, lives in Aoa village; that, his experience as a faife'au (or minister) has provided him with experience which is more relevant to a talking chiefs duties than anything on Te‘o’s resume; and that he is younger and consequently will have an opportunity to serve the family for a longer period than Te’o. Again, we find these arguments interesting, but Te‘o has 27 years of matai experience, has served as a member and then the Speaker of the House of Representatives, has headed two government departments, and has done other notable and respected work in the community. We cannot say that the trial court clearly erred with regard to his value to family, village, and country.
We’affirm the trial court’s judgment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486370/ | MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR MISTRIAL
Following trial in this matter the jury returned a guilty verdict against the defendant on the charge of assault in the 2d degree. Subsequent to the discharge of jury, it came to the attention of the presiding justice that the alternate juror was inadvertently permitted into the jury room. Counsels *106were alerted, and the presiding justice placed the matter on the court’s November 17, 1995, calendar for hearing of any appropriate motions as the parties may desire to make.
The defendant consequently filed a motion seeking an order declaring a mistrial; on the grounds that the jury was improperly influenced in its deliberations by the alternate juror, who had participated in the deliberations and further signed off on the verdict. At the same time, one of the jurors, who had also voted guilty, did not sign the verdict form, because, as she had explained, there was no place provided for to sign-after the alternate had already done so, and there were only six signatory blocks on the verdict form. The prosecution argued among other things that jury as subsequently polled was nonetheless unanimous, and accordingly no prejudice to the defendant.
We ordered briefing in the matter. Upon due consideration of the submissions of counsel, and the record herein, we are prepared to make and announce our ruling at this time in open court.
In this case the defendant essentially adopted the Tenth Circuit’s ruling in United States v. Beasley, 464 F.2d 468 (10th Cir 1972), which held that the presence of an alternate juror in the jury room violated the F.R.Cr.P. 24(c) requirement that alternate jurors be "discharged after the jury retires to consider its verdict," and therefore required a mistrial as a matter of law. Predictably, the prosecution adopted the opposing position advanced by the Eleventh Circuit in United States v. Watson, 669 F.2d 1374 (11th Cir. 1982), which held that the presence of an alternate juror in the jury room was reversible error only when there was a "reasonable possibility that the alternate in any manner affected the verdict."
The U.S. Supreme Court has since resolved this split of authority in United States v. Olano, 123 L.Ed 2d 508, 521-524 (1993), citing Watson approvingly, and stating that the presence of an alternate juror in the jury room is a per se violation of F.R.Cr.P. 24(c), but holding that the error was not reversible unless there is persuasive evidence that the jury was "actually prejudiced." The burden of showing actual prejudice is with the defendant. In Olano, although the alternate jurors were sworn and were indistinguishable from the regular jurors, they were specifically instructed by the trial judge not to participate in deliberations, and no evidence indicated that the alternates violated this instruction. In the present case, we find a reasonable possibility of prejudice, based on the fact that the alternate participated in deliberations without restriction, and ultimately signed the verdict to the exclusion of one of the regular jurors. In Watson, the Eleventh Circuit held that if an alternate deliberated with *107the jury on the question of guilt, then reversal would'be mandatory. 669 F.2d at 1391. We agree and therefore order a mistrial in.the present case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486371/ | Order Granting Petition for Summary Eviction:
On August 1, 1991, plaintiff Faima Lavata'i and defendant Pele Pu'efua entered into a lease agreement for a portion of Lavata‘i communal land known as "Lepine" in Malaeimi. Pu'efua was to lease the land for ten years at a rate rising over the term of the lease from $500 to $600 per month. The lease document was never submitted to the Governor for approval.
*108On April 13, 1995, Malakai Lavata‘i, acting as his father Faima’s representative, brought summary eviction proceedings, under A.S.C.A. §§ 43.1401 et seq., against Pu'efua for violating various provisions of the lease, including failure to pay rent. Pu'efua filed an answer and counterclaim on April 25, 1995. The matter case for hearing on September 14,1995, with both parties represented by counsel.
Regardless of any claims made under the lease by either party, the lease is void. A.S.C.A. § 37.0221 provides that any lease of communal land "shall be submitted ... to the Governor for approval, and it shall have no validity until such approval has been signified in writing." Id. (emphasis added). This lease was for communal land, but it was never submitted to the Governor for approval. Therefore, the lease never had any effect. Thus, regardless of the arguments defendant makes under the lease, he has no right to be on the land. He is, therefore, subject to eviction by the rightful owner.
It is the policy of this court to encourage the submission of leases for communal land to the governor for approval. See, e.g., Sagapolutele v. Tala'i, 20 A.S.R. 2d 16 (Land & Titles Div. 1991). The law is that leases not properly submitted shall have no validity. We will not imply validity where it is explicitly denied by statute. Thus, neither party has any right under the invalid lease. Lavata'i’s petition for summary eviction will, therefore, be granted.
The issues of unjust enrichment (compensation for the value of good faith improvements made to land) raised by the defendant will not be decided in this summary proceeding, but must be considered at trial. We need not determine the unjust enrichment issue to rule on the petition to recover possession of premises by summary proceedings. See A.S.C.A. §43.1411.
For reasons given, judgment for possession, pursuant to A.S.C.A. § 43.1412, will enter in favor of plaintiff Lavata'i, without prejudice to any counterclaims that Pu'efua may have.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486372/ | Order Requiring Further Briefing:
I. INTRODUCTION
On May 2, 1994, we issued a decision finding defendant Samoa Gases ("Samoa Gases") liable in a products liability case arising out of an explosion on a ship. Its liability was measured at $47,455.96 plus 6% post-judgment interest. On June 21, 1995, Samoa Gases paid $51,963.69 to the court registry with the intention of satisfying this judgment. A notice of satisfaction of judgment was filed on that same day. Pursuant to the court order, Samoa Gases paid the $51,963.69 to the plaintiff Interocean Ships, Inc. ("Interocean") by way of cashier's checks.
*110Interocean’s on-island counsel forwarded the checks, which had been released to him, to off-island counsel, who then forwarded them to Interocean’s former president. The checks were later returned to Interocean’s counsel. According to Interocean’s former president:
In December of 1993 the InterOcean Ships, Inc. corporation was closed in all respects. I have therefore sought advice of our corporate counsel regarding how I could endorse these checks. I’ve been advised that since the corporation is closed, there are no officers or directors and all bank accounts have been closed, no signature authority exists.
Affidavit of William H. Reardon, Ex. A.
Subsequently, Interocean’s on-island counsel contacted Samoa Gases’ counsel asking that the checks be reissued in either his name as trustee, or in the name of another corporation, InterOcean Industries, Inc. and the agents for the underwriters, Rice, Fowler, Booth and Banning. Neither InterOcean Industries nor Rice, Fowler, Booth and Banning was a party to the litigation. Samoa Gases’ counsel never responded to Interocean’s requests, prompting Interocean to file the instant motion in aid of judgment. The motion was heard on November 27, 1995, with counsel present.
II. DISCUSSION
In reviewing this motion, we have discovered a potential problem with our earlier judgment. If Interocean’s exhibits are correct, it no longer exists. We are not sure, then, who has filed this motion, since it is brought in Interocean’s name. Under the common law, when a corporation ceases to exist, it ceases to have any capacity to sue or be sued. Walling v. James V. Reuter, Inc., 321 U.S. 671, 675-76 (1944); Pendleton v. Russell, 144 U.S. 640 (1892); 19 Am. Jur. 2d Corporations § 2896 (1986). A dissolved corporation loses its ability to appeal or apply for a writ of certiorari. 19 Am. JUR. 2d Corporations at § 2905. Furthermore, any pending cases are abated on the corporation's dissolution.
[I]n the absence of statutory provisions to the contrary, it is the rule that a judgment entered in favor of a corporation after its dissolution is invalid, regardless of whether the action was commenced before or after the dissolution; and it has been held that if a judgment in its favor is, after dissolution entered and collected, a return of the money to the debtor may be enforced.
*11119 AM. JUR. 2d Corporations at § 2906. Interocean was apparently dissolved as of December 1993. Affidavit of William H. Reardon, Ex. A. This information was not made known at trial. The judgment in this case was not rendered until May 1994. Thus, we question whether the judgment was validly issued.
The ability to sue or be sued may be extended beyond the corporation's date of dissolution by statute. See 19 Am. Jur. 2d Corporations § 2896. Apparently, almost every U.S. jurisdiction has passed such a statute. American Samoa's corporations code has a section dealing with dissolutions of corporations, A.S.C.A. § 30.0121, but it does not explicitly address the issue of dissolution during a lawsuit. Interocean may also have an argument that the judgment persists under a valid pre-dissolution assignment.1 See, e.g., Gilmore v. Harpster, 133 P. 726 (Kan. 1913). There is also an unaddressed conflicts of law issue, because Delaware corporate law may apply in this case.
Therefore, we will require further briefing on the present issues. Each side will brief the court on the following issues:
1) Was Interocean ■ dissolved before judgment was rendered in this case?
2) If so, does the common law apply to abate the proceeding? Does the American Samoa statutory provision overrule the common law and allow the action to survive?
3) Should the Deleware corporations law apply to this proceeding? If so, does that law allow the chose in action to survive Interocean's dissolution?
4) Was there an assignment of the chose in action before the dissolution of Interocean? If so, does the assignment survive the dissolution?
Interocean Ships shall submit its brief within 30 days from the entry of this order. Samoa Gases shall have 20 days from the submission of Interocean's brief to file its response. Interocean shall then, at its option, have 10 days to submit a reply brief. A hearing on the matter will be set if necessary.
*112It is so ordered.
We note, however, that a chose in action arising ex delicto was not assignable under common law or equity. 6 Am. Jur. 2d Assignments § 34. Statutes have changed this in many jurisdictions. See id. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486373/ | Order Denying Application for Preliminary Injunction and Consolidating Two Actions:
This action concerns a portion of land named "Fuamete" in the Village of Leone, American Samoa ("the land"). Plaintiff Frank Pritchard ("Frank") seeks to permanently enjoin defendant Estate of Fufavailiili William *113Pritchard ("the estate") from alienating the land, to have the registration of the land in the name of Fui‘availiili Pritchard declared void, and to quiet title to the land in the names of the heirs of Alfred James Pritchard.
The present application before the court is for a preliminary injunction to enjoin the estate and the decedent’s heirs from alienating the land or constructing improvements on the land during the pendency of this action. The court regularly heard the application on November 29, 1995. Counsel for the named parties were present. The court heard testimony and has considered the evidence.
Discussion
A preliminary injunction during the pendency of an action is appropriate when "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 "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." A.S.C.A. § 43.1301(j).
Frank is not at risk of suffering great or irreparable injury while this action is pending. A companion case, Estate of Fuiavailiili William Pritchard v. Frank Pritchard, et al., LT No. 27-95, is also ongoing. In that case, the estate seeks to quiet title to the land in the name of the estate and title to another nearby portion of Fuamete in the names of the estate and Frank. Probate of the estate, PR No. 22-94, is likewise under way, and the land is listed in the inventory. The estate's initiative in LT No. 27-95 to quiet title to the land, coupled with the probate proceedings in PR No. 22-94, provide a sufficiently formidable legal barrier to prevent either the estate or the decedent's heirs, and Frank as well, from attempting to alienate or to construct improvements on the land, or for that matter to encumber the land, until the title issue is resolved. We can bolster that barrier by consolidating this action with LT No. 27-95, pursuant to T.C.R.C.P. Rule 42(a).
Since Frank has not met his burden of showing irreparable harm before trial, and his interests are adequately protected at this stage of this action, we need not presently consider the issue of likelihood of success on the merits at trial.
We will also note that since a preliminary injunction is not necessary, Frank will not have to be presently concerned with providing an undertaking required under A.S.C.A. § 43.1309(a) to protect any damages that might be awarded to the estate, should the estate ultimately prevail in this action.
*114Lastly, since the land actions are essentially for equitable relief, and if the family members are unable to resolve their internal controversies, counsel are urged to bring these matters to trial at the earliest possible date. See A;S.C.A. § 43.1103.
Order
1. The application for a preliminary injunction is denied.
2. This action and LT No. 27-95 are consolidated.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486992/ | ORDER OF DISMISSAL AND REMAND TO TERRITORIAL REGISTRAR’S OFFICE
This matter came regularly before this court for a hearing on Counterclaimant’s motion to dismiss this matter on September 30, 2005. Counsel Afoa L. Su'esu'e Lutu appeared with his client, the Counterclaimant, Tuamasaga Aetui. Counsel Asaua Fuimaono appeared for his client, the claimant, Pou Tuaolo, who did not appear.
Upon review of the file, documents and oral submissions of counsel, the court finds that the claimant and counterclaimant to this matai title have settled their differences; that claimant Pou Tuaolo withdrew her candidacy and claim in this matai title and threw her support for the counterclaimant Tuamasaga Aetui to hold, succeed and register the title “Namu”; that the counterclaimant Tuamasaga Aetui is now the only candidate for the Namu title, that there is no more controversy in this matter; and that this matter should be dismissed with prejudice.
*402Therefore, based on the foregoing and upon good cause shown, this matter is hereby dismissed and remanded back to the Territorial Registrar’s Office for further action.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486374/ | Order Denying Motion for Reconsideration or New Trial:
BACKGROUND
On September 5, 1995, this court granted summary judgment to plaintiff American Samoa Government ("ASG") and, inter alia, evicting defendants from a parcel of land known as Plot 3, which had been condemned for development of the Pago Pago International Airport. Defendants Estate of Isumu Leapaga, Tui Tulimasealii and Matiua Tulimasealii ("the defendants") have challenged that judgment by this motion for reconsideration or new trial. The motion was heard on November 1,1995, with counsel present.
The defendants’ motion for reconsideration or new trial simply reiterates arguments which were already made in their opposition to summary judgment. First, they claim that they have not been justly compensated for Isumu Leapaga’s land which was incorrectly adjudged as belonging to the Fagaima family, not to Isumu. As we stated in granting summary judgment, however, this issue was decided in American Samoa Government v. Isumu, 4 A.S.R. 141 (Land & Titles Div. 1974), and is barred by res judicata.
Second, the defendants assert that they are entitled to compensation for their improvements to their land. Again, we stated the legal rule in granting summary judgment. A party is not entitled to compensation for improvements to land unless they are a good faith possessor. Tulisua v. Olo, 8 A.S.R.2d 169, 172 (App. Div. 1988). A good faith possessor must have a reasonable belief that he holds valid title to the property. See id. When he learns that he has no title or that the title is defective, he is no longer acting in good faith. Isumu Leapaga knew at least since the date of the Isumu judgment in 1974, and probably much longer, when the condemnation judgment was affirmed on appeal, AP No. 11-1960, that he had no title to the land in question.
Even if the defendants made improvements with the permission of the government, as they claim, the most this does is preserve the improvements as chattel rather than as fixtures. See 35 Am. Jur. 2d Fixtures § 80 (2d ed. 1967). As chattel owners, the defendants have the right to dispose of their property as they see fit. See id. § 79. They may not, however, force a sale of the property upon ASG, the landowner. In granting summary judgment, we gave the defendants 60 days to remove from the land any improvements, fixtures or other possessions which *116they own. ASG will acquire title to any such property not removed within this time. We reaffirm that order now.
Thus, the defendants have presented no grounds for granting reconsideration or a new trial. Their motion is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486376/ | Opinion and Order:
HISTORY
Plaintiff Joseph D. Seagram & Sons, Inc. ("Seagrams") distributed alcoholic beverages to defendant Commercial Credit Corporation of American Samoa ("CCCAS") for a number of years, pursuant to an oral agreement that the goods would be paid for within a reasonable time of approximately 30 days. At some point in the relationship CCCAS fell behind in its payments to Seagrams, and in 1993 altogether ceased making such payments. The delinquent balance is $39,483.99.
DISCUSSION
CCCAS and defendant Elizabeth S. Perri ("Perri") assert two defenses: first, that the seller named in the invoice is a different entity than Seagrams; and second that Perri, as an officer of the corporation, cannot be held liable for corporate debts.
1. Seller Named in the Invoice
Although agency law is sometimes a complicated matter, no elaborate explanation is needed in this case. It is textbook agency law that agency exists where a principal has the right to control the conduct of an agent, and the agent has power to affect the legal relations of the principal. Warren A. Seavey, Agency § 3 (West 1977). On this basis, we find that the sellers named in the invoices were agents for Seagrams. Furthermore, it is also textbook agency law that a party who conducts a transaction with an agent is liable to a disclosed1 principal to the same extent as if the principal had conducted the transaction. Id. § 108. CCCAS is clearly liable to Seagrams.
2. Perri’s Liability for CCAS’s Debts
One of the fundamental reasons for forming corporations is to shield stockholders, officers, and directors from personal liability for business *123debts. Harry G. Henn, Law of Corporations § 146 (West 1979). The corporate veil will hot be pierced to attach liability to such individuáis unless the corporation is being used as a shield for crime, fraud, or other practices inconsistent with the purposes of corporations. Id. In the present case, we see no evidence of bad faith conduct on Peiri'S part. We Will, therefore, disniiss Perri as a defendant in this láwsuit pursuant to T.C.R.C.P. Rule 21.
ORDER
Perri is dismissed as a defendant. However, we will enter judgment against CCCAS and in Seagrams' favor in the principal amount of $39,483.99, plus post-judgment interest at the rate of 6% per aiinum from the entry date of judgment.
It is so ordered.
We see no plausible argument that the principal was not disclosed in this case, since the agents' names included the "Seagram" name, and the invoices listed Seagrams as the proper payee. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486377/ | Opinion and Order:
I. INTRODUCTION
In December 1993, defendants Phillip and Katie Gebauer lived in the Village of Vaitogi. Plaintiff Penina Gates was also then a resident of Vaitogi and was a neighbor of the Gebauers. According to witnesses, the Gebauers had two dogs residing on their driveway and in their yard. The Gebauers admit to feeding these dogs, but deny "owning" them. The dogs would bark at people walking past the Gebauer residence, and would often bolt from the yard to chase people.
On December 24, 1993, Penina was riding her bicycle on the public road in front of the Gebauers’ residence when the dogs chased her. One bit her right leg. Penina brought her mother to the house and pointed out the dog which had bitten her. At that time, Katie Gebauer apparently told Penina and her mother that she owned the dog. Later, Katie Gebauer took the dog to the veterinarian to have it checked for rabies or other communicable diseases. The dog continued living in the Gebauers’ yard for at least nine months after the incident.
II. DISCUSSION
A. Ownership of the Dog
The Gebauers’ defense rests primarily upon their claim that they do not own the dog which bit Penina. Ownership of an animal, insofar as it creates liability for an injury caused by that animal, is not defined by a set of well-established criteria. However, a number of courts have said that "harboring" an animal or exercising "apparent ownership" is enough to create liability. See, e.g., Thompson v. Sicard, 385 So. 2d 334, 335 (La. App. 1980) (stating that an animal is "owned" by a person with actual or constructive control over the animal or who harbors it); Hornbein v. Blanchard, 35 P. 187 (Colo. App. 1893) ("Keeping [the dog] upon the premises . . . was sufficient to fix liability."); Shultz v. Griffith, 72 N.W. 445, 446 (Iowa 1897) (stating that the word "owner" in the dog-bite statute includes anyone who has a dog in his possession and harbors it on his premises).
*125Under these standards, the Gebauers are the "owners" of the dog. They allowed it to live on their property, apparently making no effort to remove it. They continued to allow it to live there for over nine months after Penina was bit. They also fed the dog, and on at least one occasion, Katie Gebauer admitted that she was the dog’s owner. She took the dog to the veterinarian after it had bitten Penina. We find that the Gebauers were the dog’s owners, at least insofar as fixing liability for its biting Penina.
B. Standard of Care
While some jurisdictions apply strict liability to dog-bite cases, others rely on a negligence theory. We believe the proper standard is somewhere in between. Where a dog bites a person, the owner will be presumed to be at fault. Cf. Holland v. Buckley, 305 So. 2d 113, 119 (La. 1974). This presumption, however, can be overcome by an affirmative showing on the part of the defendant that the harm was caused by the fault of the plaintiff, the fault of a third person for whom the defendant is not responsible, or by an independent cause. Cf. id.
The presumption that the owner is at fault is particularly strong where, as here, the dog bit a person on public property, the owner having taken no steps to maintain control over the animal, instead allowing it to run free. The owner of an animal is under a legal obligation to keep the animal under his control and to guard innocent parties from harm by the animal. Id. Failure to do so entitles the injured party to recover from the animal’s owner.
Thus, the Gebauers are liable to Penina for the injuries caused by their dog.
C. Damages
Penina has asked for a total of $6,200 in damages: $5,000 for pain and suffering at various times, $400 for medical expenses, and $800 for disfigurement. However, Penina has not proven the full extent of the requested damages, her injuries were relatively minor, and they have healed. She is entitled to $1,000 for the aggregate of her claims.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486378/ | Order Denying Motion for Summary Judgment:
The issue before us is whether a candidate for a matai title is entitled to the title as a matter of law when the original claimant was found to be ineligible by the Territorial Registrar, and other claimants made their claims only after notice that the remaining candidate's claim was reissued.
HISTORY
Petelo Lealiie'e ("Lealiie'e") was the original claimant to the Leniu title, and Isapela Mailo Warren ("Warren") was the sole objector to file a counterclaim within 60 days after publication of Lealiie'e’s claim, as required by A.S.C.A. § 1.0407(a). The Territorial Registrar subsequently found Lealiie'e to be ineligible to hold the title, and Lealiie'e has made *127no attempt, known to this court, to contest the Registrar’s decision. After this finding of ineligibility, the Registrar also refused to register the title in Warren’s name, and instead posted notice of Warren’s claim to the title, pursuant to A.S.C.A. § 1.0406. Counter-claimants Matauaina Afufa Leau'anae and Maugaotega Savane T. filed their claims within 60 days following notice of Warren's claim.
Warren now moves for summary judgment, claiming that all counterclaims should have been filed within 60 days of Lealiie'e's original claim in order to satisfy A.S.C.A. § 1.0407(a). Warren argues that she is the only counter-claimant to file within that period and is consequently the only lawful remaining candidate, and therefore claims that she is entitled to judgment as a matter of law.
DISCUSSION
The Territorial Registrar's discretion to rule on the legal sufficiency of a claim to a matai title is minimal. The Registrar's authority is, essentially, limited to a determination that information in the claimant's petition is "valid," A.S.C.A. § 1.0405(c); see also Id. at § 1.0407(c), and that the "claim, certificate, and petition are in proper form . . . ." A.S.C.A. § 1.0406. The Territorial Registrar should make decisions regarding the form or validity of a claimant's petition prior to posting notice of the claim, which begins the 60 day notification period, in which others may object to the registration or make counter-claims.
If the territorial registrar is satisfied that the claim, certificate, and petition are in proper form, he must give notice of the filing of the claim....
A.S.C.A. § 1.0406. The foregoing language plainly requires the Registrar to be "satisfied" that a petition is in order before giving notice of it to the world. The Registrar ignored this procedure in the present case by giving notice of the Lealiie'e's original claim before deciding that the said claim was not in order. The proper time for the Registrar to give notice of a claim is after he is satisfied that it is in proper form. We hold, therefore, that the 60 day time limit under A.S.C.A. § 1.0407(a) could not properly begin to run until some time after the decision regarding Lealiie'e's original claim, since notice of that claim should never have been published in the first place. As a matter of law, time began to run on the day that the Registrar gave notice of Warren's claim, thereby indicating that Warren's claim was (at least presumptively) "in proper form."1
*128For the foregoing reasons, we find that the counter-claimants filed timely claims, and the motion for summary judgment is therefore DENIED.
It is so ordered.
We need not decide whether notice of Lealiie'e's original claim represented a binding decision by the Registrar that the claim was in *128order, because the Registrar later refused the registration and Lealiie'e elected not to seek review of that rejection. The Registrar should note, however, for the sake of procedural clarity in future cases, that he should publish notice of a claim only after he is "satisfied" that the claim is in order. Otherwise, his publication itself may, in some future case, be taken as a binding decision that the claim is in order. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486379/ | Opinion:
RICHMOND, J.:
I. Introduction
Tipisone Manu Aoelua ("Tipisone") filed with the Territorial Registrar his claim to succession to the matai title Faulualo of the Village of Afono. Appellee/appellant Folau Faulualo ("Folau"), appellant/appellee Mataiumu Siofaga ("Mataiumu") and Naiuli L. Ma'ileoi ("Naiuli") filed objections to Tipisone's claim as counterclaimants to succession. Following the requisite hearings before the Secretary of Samoan Affairs, the Secretary certified an irreconcilable dispute to the court, in accordance with A.S.C.A. § 43.0302. The matter came for trial on December 29,1993, before the Land and Titles Division ("trial court").
Prior to trial, Tipisone and Naiuli withdrew their respective claims to succession, leaving Mataiumu and Folau as the remaining candidates. On January 26, 1994, the trial court dismissed Folau's objection and counterclaim on the grounds that his petition lacked the requisite 25 supporting family signatures as required by A.S.C.A. § 1.0407. The trial court also dismissed Mataiumu’s objection and counterclaim on the grounds that he was ineligible for matai succession under A.S.C.A. § *1301.0403. With no candidates remaining, the court remanded the matter of selection of a titleholder to the I‘aulualo family.
Each party moved for a new trial or reconsideration pursuant to A.S.C.A. § 43.0802(a). The trial court denied both motions on March 17, 1994. Each party filed a timely appeal to this court. The appeals were consolidated, and we now issue our decision in the matter.
II. Folau’s Appeal
The trial court dismissed Folau's claim for failing to meet the requirements of A.S.C.A. § 1.0407, which provides in pertinent part:
(b) A counterclaim or ..objection [to succession to a matai title] must be supported by a petition signed by no less than 25 persons related by blood to the title in question. The petitioners must be at least 18 years of age and residents of American Samoa at the time the petition is filed.
(d) In the event the family does not have the number of members qualified as required to support the counterclaim or the objection, the counterclaimant or objector shall so state in a signed affidavit.
Folau testified that he was off-island when Tipisone offered the title for registration. By the time he returned, the 60-day statutory period for the filing of counterclaims or objections, see § 1.0407(a), had nearly expired. During the time remaining, he was able to gamer only 10 signatures, instead of the required 25. Because he did not have enough signatures, he filed an affidavit, attempting to comply with the provisions of § 1.0407(d).
Section 1.0407 clearly requires a minimum of 25 qualified, supporting family signatures on an objection or counterclaim. We find absolutely no ambiguity or discretion in this requirement. The apparent reasoning behind this requisite is to ensure that a candidate has sufficient support from the family.
Section 1.0407(d) gives counterclaimants respite from the requirements of 1.0407(b) in only one circumstance: when "the family does not have the number of members qualified as required . . . ." A.S.C.A. § 1.0407(d). We agree with the trial court that this provision applies to families of fewer than 25 members. "Does not have" does not *131mean "does not have remaining" or "can not be found" or some similar interpretation which Folau would have us place upon it. Thus, § 1.0407(d) only applies to a family with fewer than 25 qualified members.1
Folau's objection that such a rule precludes small minorities in a large family from blocking a candidate with more support seems to be precisely the point. If a candidate can not find 25 family members who support his claim as matai, the court cannot support it either. That is, if a claimant is only supported by 10 family members in his bid to be matai, the Fono (or Legislature of American Samoa) has deemed that we should not bestow the title upon that claimant. A candidate can not get around the 25 signature requirement simply by filing an affidavit under § 1.0407(d) claiming no one was left to sign his petition.2
Folau's reliance on Asuega v. Manuma, 4 A.S.R. 616 (Trial Div. 1965), is unavailing. In that case, the court dealt with a predecessor statute to § 1.0407, which read: "Every person claiming succession to a matai title shall file with the Clerk of the High Court a written claim . . . accompanied by ... a petition signed by three-fourths of the members of the claimant's family . . . ." Id. at 620 (quoting Revised Code of American Samoa § 6.0104 (1961) (superseded by A.S.C.A. § 1.0405)) (emphasis in original). The court found it was mathematically impossible3 for "two, much less 16, candidates [to] get three-fourths of the members of said family to sign his application." Id. at 622. The Fono changed the requirement to 25 signatures to avoid such mathematical futility. In Asuega, estimates of family size ranged from *132300 to 5,000. Id. at 623. There is no mathematical problem with numerous candidates garnering 25 signatures of support in a family this size.
Folau’s final argument has to do with the withdrawal of two of the four candidates for the title. Tipisone, the original claimant under A.S.C.A. § 1.0405, withdrew his petition for candidacy on the day of the trial, proclaiming his support for Naiuli. Naiuli also withdrew his candidacy on that day, throwing his support behind Folau. Folau now argues that the support, and thus the signatures, of those candidates should transfer to him. This argument lacks any foundation. Section 1.0407 has no provision for the transfer of signatures. The people who signed the petitions of the withdrawn candidates had given their support to those candidates, not Folau. If it is true that " [Folau]'s claim is substantially supported by more than 25 qualified members of his family," as he argues, see Appellant Folau's Br. at 11, he should have no problem being selected matai by the Faulualo family when this matter is remanded.
In practice, § 1.0407 functions like a jurisdictional limit on the Land and Titles Division. If a candidate does not submit a petition with 25 signatures, the court simply cannot consider his claim. Cf. In re Matai Title "Patea", 25 A.S.R.2d 139 (Land & Titles Div. 1994) (dismissing claims of two candidates whose petitions had 17 and 24 signatures each). Perhaps the Fono enacted such a provision in the spirit of the age-old adage "de minimis non curat lex" (the law does not concern itself with trifles). A person with fewer than 25 family members supporting his petition has a de minimis claim to the title.
In any account, the Fono has plainly set forth the requirements for filing a counterclaim in § 1.0407. It is not our function to rewrite the law but merely to interpret it. We have no question about the interpretation of § 1.0407. Thus, we affirm the trial court's dismissal of Folau's claim because his petition did not have the requisite number of signatures.
III. Mataiumu’s Appeal
A. Construction of A.S.C.A. § 1.0403
Mataiumu was bom in FaleasFu, Western Samoa, in 1930. On this basis, unless excepted, he is ineligible to succeed to the Faulualo title under A.S.C.A. § 1.0403(b). Section 1.0403 provides in relevant part:
A person not possessing all of the following qualifications is ineligible to succeed to a matai title:
*133(b) He must have been bom on American soil; provided that a person bom of parents who were inhabitants of American Samoa, but temporarily residing outside of American Samoa or engaged in foreign travel, at the date of birth of such child, may, for purposes of this subsection, be considered as having been bom on American soil if:
(1) while actually residing in American Samoa, and at any time within one year after he attains the age of 18 years, he files with the territorial registrar a renunciation, under oath, of allegiance to the country of his birth; or
(2) he has resided in American Samoa for a continuous period of not less than 10 years prior to the time of filing his application to be registered as the holder of a matai title.
Mataiumu clearly does not meet the requirement of § 1.0403(b) that he be bom on American soil. The trial court found that he also does not meet the exception to this requirement by being bom of inhabitants of American Samoa who were temporarily residing outside of American Samoa or engaged in foreign travel.
Mataiumu's father was American Samoan, but his mother's village was in Faleasfu, Western Samoa. His parents lived in Faleasfu, and Mataiumu was bom there. Mataiumu first travelled to American Samoa at age 27. He moved here permanently in 1966, at 36 years of age.
Mataiumu makes no claim to come under the exception set forth in § 1.0403(b)(1), but he has met the continuous, 10-year residency requirement of § 1.0403(b)(2). However, for Mataiumu to qualify under § 1.0403(b)(2), he still must show both that a parent was an "inhabitant[]"4 of American Samoa, and that the parent's residence outside of the territory was temporary.
*134Since the Code does not define "inhabitant," we must look elsewhere to determine the word’s meaning. Black’s defines "inhabitant" as "[o]ne who resides actually and permanently in a given place, and has his domicile there." Black’s Law Dictionary 703 (5th ed. 1979) (citing Ex Parte Shaw, 145 U.S. 444 (1892)) (emphasis added). Based on the evidence presented to the trial court, Mataiumu’s father was not an inhabitant of American Samoa under this definition. Residing outside of a place for more than 30 years cannot constitute "actually and permanently" living there.
Mataiumu’s contention that his father is an inhabitant of American Samoa based on his status as a U.S. national is not persuasive. Numerous courts have found that the terms "inhabitant" and "citizen" are not synonymous. See, e.g., Piquet v. Swan, 19 F. Cas. 609, 613 (C.C. Mass. 1828); Harris v. Harris, 215 N.W. 661, 663 (Iowa 1927); Opinion of the Justices to the House of Representatives, 122 Mass. 594, 599 (Mass. 1877). We hold that "inhabitant" and "national" also are not synonymous. Furthermore, Mataiumu's father was a U.S. national, but § 1.0403 requires him to be an inhabitant of American Samoa. Being a U.S. national does not automatically make him an inhabitant of American Samoa any more than it makes him an inhabitant of Maine or Alaska. Thus, the fact that Mataiumu's father was a U.S. national, without more, does not make him an inhabitant of American Samoa within the terms of § 1.0403.
Mataiumu has also failed to convince us that his parents' residence outside the territory was "temporary." We agree with the trial court that "his parents were not just living [in Western Samoa] on a transitory, short-term basis at the time of his birth." Trial court's Order on Mots, to Dismiss at 5. At the time of Mataiumu's birth, it appears his parents had every intention of remaining in Western Samoa. Indeed, his father apparently did so until 1961, more than three decades. We need not put a precise time limit on what constitutes "temporarily residing outside American Samoa" to find that three decades is too long to qualify.
Thus, Mataiumu has failed to satisfy the requirements of the exception under § 1.0403(b)(2).5
*135B. Conflict with Federal Law
Mataiumu has claimed that § 1.0403 conflicts with federal law. However, his brief is so poorly drafted that we have trouble ascertaining precisely what he is alleging. As near as we can tell, there are three potential claims: (1) that 8 U.S.C. § 1408 directly supersedes A.S.C.A. § 1.0403; (2) that Mataiumu, as a U.S. national, is entitled to candidacy as a matai; and (3) that § 1.0403 violates federal equal protection principles. We will briefly discuss each.
The first claim, that federal law supersedes § 1.0403, has no foundation. 8 U.S.C. § 1408 grants U.S. national status to various individuals. See 8 U.S.C.S. § 1408 (West 1987 & Supp. 1994). It does not explicitly supersede A.S.C.A. § 1.0403 or any other local law. There is no interpretive law to this effect. We fail to see how 8 U.S.C. § 1408 has any effect on § 1.0403 or any other provision of American Samoa's laws.
The second claim, that Mataiumu is entitled to seek a matai title because he is a U.S. national, also has no foundation. Mataiumu's status as a U.S. national no more entitles him to claim a matai title than it made his father an inhabitant of American Samoa. There is simply no connection between the two. We see no need to discuss this issue further.
Finally, Mataiumu appears to allege a violation of equal protection. If this is the case, he has failed to carry his burden. Mataiumu's argument goes no farther than citing Craddick v. Territorial Registrar, 1 A.S.R.2d 10, 12 (Appellate Div. 1980), for the proposition that the Fifth Amendment guarantee of equal protection applies in American Samoa. He does not tell us upon what basis he is alleging discrimination or what standard we are to apply in examining whether the discrimination survives constitutional scrutiny.6
*136Folau also has made no arguments concerning these important questions. Thus, we have virtually no briefyig on an issue we are not even sure Mataiumu meant to raise. We find that Mataiumu, as appellant on this issue, has failed to carry his burden.
C. Privileges and Immunities
Mataiumu next claims that § 1.0403(b) abridges his privileges and immunities. He does not tell us whence his right to be free from such an abridgement arises. We assume it must be from the Privileges and Immunities Clause of the Revised Constitution of American Samoa, Rev. Const. Am. Sam. art. I, § 16, since the Privileges and Immunities Clause of the United States Constitution, U.S. Const, art. IV, § 2, has no application here. See Banks v. American Samoa Gov’t., 4 A.S.R.2d 113, 128 n.7 (Trial Div. 1987). Even if this assumption is correct, however, Mataiumu gives us insufficient guidance as to how we should apply the clause to his case.
The Privileges and Immunities Clause of the Revised Constitution of American Samoa, reads: "No law shall be made or enforced which shall abridge the privileges and immunities of the citizens of American Samoa." Rev. Const. Am. Sam. art. I, § 16. This clause cannot be taken literally, since nearly every law passed by the Fono abridges some privilege or immunity7 of the American Samoan population. The question, then, is what the clause is supposed to mean.
We cannot look to the United States Constitution for guidance, since that clause offers us no parallel here. Although the language of the clauses is similar, the Privileges and Immunities Clause of the United States Constitution was particularly enacted to restrain states from extending privileges and immunities to its own citizens which it did not extend to citizens of other states. See 16A Am. JUR. 2d Constitutional Law § 713 et seq. (1979). The intent was to protect citizens in the new union of states from discrimination as they traveled from jurisdiction to jurisdiction. Id.
We have nothing paralleling the federal system in American Samoa. All of American Samoa falls under a single legislature, which passes laws for the entirety. Thus, we have no need for a law protecting citizens from disparate treatment as they travel from jurisdiction to jurisdiction.
*137Furthermore, we are unsure who comprises a ”citizen[] of American Samoa." There is no provision in the Constitution or the laws of American Samoa defining the term "citizen." Indeed, it has been stated that "[tjhere is no separate citizenship of a territory, and the only citizenship its inhabitants and residents have, or which Congress can confer on them, is national as citizens of the United States." Id. at § 719. The terms "citizen" and "resident" are essentially interchangeable in most cases brought under the Privileges and Immunities Clause of the Federal Constitution. United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208 (1984) (emphasis added). However, states and territories can both discriminate against nonresidents, if the discrimination is truly based upon residency and not citizenship. See Haavik v. Alaska Packers Ass'n., 263 U.S. 510 (1924); Maxwell v. Bugbee, 250 U.S. 525 (1919); La Tourette v. McMaster, 248 U.S. 465 (1919).
Thus, we are faced with an important question: To whom does the Privileges and Immunities Clause apply? The section of the American Samoa Code dealing with citizenship has been explicitly reserved. See A.S.C.A. § 41.01. Do we apply the clause to "American Samoan[sj" as defined by the Code? See A.S.C.A. §41.0202. Do we apply it to "[pjermanent residents]"? See id. Maybe it should apply to "[n]ational[s] of the United States." See id. We have received absolutely no guidance on the issue from counsel.
Even if we determine to whom the clause applies, counsel has not informed us how it should be applied. We are not convinced that the clause is meant to eliminate discrimination against nonresidents or non-citizens, since it does not even mention these people. Mataiumu seems to argue that the Privileges and Immunities Clause is actually a guarantee of equal protection. See Appellant Mataiumu's Br. at 10-14. He gives us absolutely no guidance, however, on how we should make the intellectual or legal leap from the concept of privileges and immunities to that of equal protection. While this approach might be tempting in a jurisdiction with no constitutional equal protection provision, we simply will not make such an interpretation given no supporting authority or policy arguments from counsel.
Thus, as with the equal protection claim above, we are forced to dismiss Mataiumu's privileges and immunities claim because he has not carried his burden of proving the issue.
IV. Conclusion
Thus, neither Folau nor Mataiumu has convinced us that the trial court erred. The judgment of the lower court is affirmed, and the matter of *138selection of a titleholder to the matai title 1‘aulualo of the village of Afono is remanded to the 1‘aulualo family.
It is so ordered.
To the extent that In re Matai Title "Fagaima", 4 A.S.R. 83 (Land & Titles Div. 1973), is inconsistent with this opinion, we overrule it. We do not express an opinion at this time, however, as to whether the word "family" in § 1.0407 refers only to a full extended family or may, under appropriate circumstances, refer to clans of an extended family or other different grouping.
Additionally, Folau's affidavit seems to have been false. It does not appear that there were too few family members remaining to sign his petition, but rather that he did not have enough time to gamer the signatures. Clearly, not having enough time does not satisfy § 1.0407(d).
Nothing in § 1.0407 prohibits a qualified family member from signing more than one candidate's petition. Thus, it may have merely been mathematically improbable that more than one candidate could get three-fourths of the family members to sign a petition. No issue has been raised in this case as to whether a family member can sign more than one candidate's petition under § 1.0407.
A.S.C.A. § 1.0103 informs us that "the plural includes the singular" in interpreting provisions of the Code. Thus, presumably, Mataiumu need only have one parent who was an inhabitant of American Samoa temporarily residing elsewhere. We need not decide this issue, however, since Mataiumu fails to meet even this requirement.
We agree with the concurring opinion in the trial court below that the Fono should reassess the purpose behind requiring a claimant to a matai title to be bom on American soil or be bom to inhabitants of American Samoa who are temporarily residing outside the territory. See also In re Matai Title "Patea”, 25 A.S.R.2d at 141 n.1. "The underlying policy appears to be assurance of a lasting, stable and knowledgeable relationship with American Samoa and Samoan customs and traditions." Id. Under the current rule, however, a person bom in Hawaii and *135residing there the majority of his life could validly claim a title, while a person bom in Western Samoa who moved here at a young age might have no claim. The law could be redrafted to fit its purpose much more closely.
The trial court measured Mataiumu's claim of equal protection violation under a rational basis standard. See trial court's Order on Mots, for New Trial at 5. Without explicitly endorsing that standard of review, we note that Mataiumu has not argued that any more stringent standard should apply. We agree with the trial court that § 1.0403 is rationally related to a legitimate purpose, and thus satisfies the rational basis test.
The words "privilege" and "immunity" have been taken to be nearly synonymous. 16A Am. Jur. 2d Constitutional Law § 724 (1979) (citing Connor v. Elliott, 59 U.S. 591 (1856)). A "privilege" is a peculiar advantage, exemption, or immunity; while an "immunity" is an exemption or privilege. Id. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486380/ | Order to Stay Proceedings:
*139This order concerns the issue of whether we should grant a motion to dismiss for failure to prosecute, because a plaintiff has moved for a continuance based on the absence of a certificate of irreconcilable dispute from the Secretary of Samoan Affairs as required by A.S.C.A. § 43.0302.
FACTS
Plaintiff Alai'asa Filifili Mailei ("Alai'asa") is the senior matai of the Alai'asa family of Faleniu. Defendant Lepopole Faumuina ("Faumuina") resides on Fanene family land adjoining Alai'asa family land. This matter is, essentially, a boundary dispute in which Alai'asa claims that Faumuina has encroached upon his family land by clearing a portion of the disputed area. The complaint was filed on April 18, 1990. Although Faumuina has meaningfully participated in the action, he has not filed either answer or motion to dismiss under T.C.R.C.P. 12(b). On May 25, 1990, this court issued a preliminary injunction, pursuant to the parties’ stipulation, prohibiting the planting of crops on the disputed area, and permitting Faumuina to construct a house thereon, on the condition that the house should be removed at Faumuina’s expense if Alai'asa prevails in the lawsuit.
On November 14, 1991, also pursuant to the parties' stipulation, this court requested that the Land and Survey Division of the American Samoa Government retrace the land and indicate the location of the newly constructed house on the survey. The Land and Survey Division had not completed this survey by November 24, 1993, and on that date Alai'asa moved that the Manager of the Land and Survey Division be held in contempt of court. This motion was denied. On October 25, 1994, Alai'asa moved for a continuance of trial in order to complete a survey of the relevant land, which had already begun. This continuance was granted. A later continuance, based on other grounds, moved the trial date to June 29,1995.
On June 29, 1995, the parties appeared, but Alai'asa’ orally moved for a continuance based on the absence of a certificate of irreconcilable dispute from the Secretary of Samoan Affairs. Faumuina then orally moved to dismiss either for failure to prosecute or based on res judicata, citing earlier decisions of this court.
DISCUSSION
A certificate of irreconcilable dispute from the Secretary of Samoan affairs is plainly a jurisdictional requirement in the sense that this court cannot determine a controversy over communal land unless a certificate is filed. A.S.C.A. 43.0302(a); Moeisogi v. Falefine, 5 A.S.R. 2d 131, 132-33 (Land & Titles Div. 1987). The only specific exception to this requirement is that a certificate "may not be required prior to the issuance *140of a temporary restraining order ... to prevent the occurring of irreparable harm." A.S.C.A. § 43.0302(b); Moeisogi, 5 A.S.R.2d at 133. However, we may also make other interlocutory orders as we think appropriate, A.S.C.A. § 43.0304, particularly when "strict compliance with any rule of practice or procedure may be inequitable or inconvenient." A.S.C.A. § 3.0242(b); Moeisogi, 5 A.S.R.2d at 133.
Where the requirement of a certificate of irreconcilable dispute has not been satisfied, it is not necessary to dismiss the case. Id. at 133. As a matter of equity and convenience, we will take this course of action rather than an outright dismissal because of the protracted nature of this dispute, and the amount of time and resources it has already consumed.
It does strike us as a bit odd, however, that Alai'asa moved for a continuance on the day scheduled for trial, based on his own failure to comply with jurisdictional prerequisites which he has had five years to satisfy. While Alai'asa changed counsel in 1993, his new counsel had some 18 months to correct this oversight before the June trial date. In addition, a prior motion for a continuance was founded on Alai'asa’s desire to complete a survey of the relevant property, and we have no indication that he has used the extra time which he was granted to secure the survey. In light of the foregoing facts, we are inclined to grant the motion to dismiss for failure to prosecute if we see any evidence of further procrastination on Alai'asa’s part. See T.C.R.C.P. 41(b).
We will not address the motion to dismiss based on res judicata at this time.
ORDER
1. Proceedings in this action are stayed for a period of four months from the entry of this order, except to obtain orders as may be necessary to prevent irreparable damage, to enforce any existing order, or to achieve other appropriate, interim objectives.
2. Alai'asa shall, if the dispute before the Secretary of Samoan Affairs remains unresolved, obtain and file with the court a certificate of irreconcilable dispute, as required by A.S.C.A. § 43.0302, before the end of the stay. If Alai'asa fails to satisfy this condition within the prescribed period, this action shall be automatically dismissed for failure to prosecute.
3. If a certificate of irreconcilable dispute is filed before the end of the stay, Faumuina shall have 10 days to file a written answer to the complaint or a written motion to dismiss to the complaint, pursuant to T.C.R.C.P. 12(b).
*1414. Alai‘asa shall also be afforded four months from the entry of this order to complete, at his initial expense, a survey of the relevant land, sufficient for use at trial. If he fails to do so, trial shall proceed without benefit of the survey, even if the survey is later’completed. Faumuina may also move, in writing, to dismiss this action based on Alai‘asa’s failure to complete the survey.
5. Faumuina, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, are enjoined from interfering in any manner whatsoever with the surveyor and his crew performing Alai‘asa’s survey.
6. The preliminary injunction of May 25, 1990, shall remain in force and effect until a final order issues, or until dismissal of this case.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486381/ | Order Denying Motion for Relief from Order and/or Partial Summary Judgment, and Compelling Land Title Registration Process:
I. HISTORY
On September 1, 1995, plaintiff/counterdefendant/defendant Vi‘i Pita, in LT No. 14-93 and LT No. 10-95, and defendants Tolani Teleso Fuga, Eletise Matagi Wolman, Senouefa Pritt, Tauinaola Lauama, Fiale Niko, and Sovita Living Trust, in LT No. 10-95, have moved for relief from this court’s order, entered on July 6, 1993, in LT No. 20-93, denying a preliminary injunction and staying the action, and/or for partial summary judgment, in LT No. 10-95, upholding the validity of the title registration of the land at issue, approximately 8.37 acres in the Village of Ili‘ili, by defendant Ioane Fe‘afe‘aga Ene, in LT No. 20-93, as his individually owned land.
Most of the individual parties to the three actions claim individually owned land interests in various portions of this land, derived from Ioane Fe‘afe‘afa Ene’s title. Plaintiff/defendant Timu Levale, in LT No. 20-93 and LT No. 10-95, however, claims a portion of the land as the Timu family’s communal land. We consolidated LT No. 14-93, LT No. 20-93 and LT No. 10-95 on March 14, 1995.
The motions were regularly heard on November 1, 1995. At the hearing, defendants/counterclaimants/cross-claimants Miriama Garrett and Richard Garrett, in LT No. 14-93 and LT No. 10-95, plaintiff American Samoa Government, in LT 10-95, cross-defendants Territorial Registrar and Survey Manager Meko Aiumu, in LT No. 14-93, and defendant Pearlita Candy Fuavai, in LT No. 10-95, joined in support of the motions. The original moving parties and those joining their cause are referenced below as the "movants."
Timu Levale opposed the motions. Counsel for defendant Amerika Samoa Bank, in LT No. 10-95, was present, but did not receive the *144motions and merely suggested that all parties should be heard. Counsel for defendants Ray McMoore and Sese McMoore, in LT No. 20-93 and LT No. 10-95, was not present. Counsel for defendant Heirs of Ioane Fe‘efa‘aga, in LT No. 10-95, and Ioane Fe‘afe‘aga was also not present.
II. MOTION FOR RELIEF
The movants were not parties to LT No. 20-93 at the time the order of July 6, 1993, was entered. That order, therefore, does not apply to them, as it cannot apply to strangers to that action when it was entered. The order has no res judicata effect on the movants. Thus, there is nothing from which to grant them relief.
III. MOTION FOR PARTIAL SUMMARY JUDGMENT
The movants have also asked us to grant partial summary judgment on the issue of the validity of Ioane Fe‘afe‘aga Ene’s title registration of the land. They rely primarily upon the argument that the Territorial Registrar’s issuance of a certificate of registration created a presumption that the land has been validly registered with all procedural requirements having been met.
This presumption is not conclusive, however. As the movants correctly point out in the memorandum supporting their motion, the presumption can be overcome by a presentation of "compelling evidence." See Ifopo v. Siatu'u, 12 A.S.R.2d 24, 28 (App. Div. 1989). In order for us to grant a motion for summary judgment, the moving party must be entitled to judgment as a matter of law. T.C.R.C.P. 56(c); Celotex Corp. v. Cattretts, 477 U.S. 317, 322-23 (1986). There must be no genuine issue of material fact. T.C.R.C.P. 56(c); Celotex, 477 U.S. at 322-23. The presumption, being rebuttable, does not entitle the movants to summary judgment as a matter of law unless they also show that there is no genuine issue of material fact.
However, the very order from which movants seek relief shows that there is a genuine issue of material fact. In that order, we found that the procedures for registering the land title in question were not properly followed. See Orders Den. Prelim. Inj. & Staying Action, LT No. 20-93 (July 6, 1993). Specifically, the notice of the proposed title registration was not published in a local newspaper, as required by A.S.C.A. § 37.0103(a). Also, the Territorial Registrar's record is facially deficient in the absence of certificates of notice by the pulenu'u, newspaper, and clerk of courts, as required by A.S.C.A. § 37.0103(c). The Registrar's certificate of posting is also facially defective in that it was completed before the end of the 60-day notice period and that the affiant stated that notice was posted at only one public place in the village instead of the *145required two places.1 If non-compliance is indeed extensive, the Legislature may want to enact, with retroactive effect, a moratorium on the effective date of the new laws and a declaration of validity for all title registrations completed in compliance with the old laws during a defined problem period. Of course, if the Legislature takes up this corrective call, such legislation needs to be enacted twice by a two-thirds majority in both houses and have the Governor’s approval, at two successive legislatures. Rev. Const. Am. Samoa, art. I, § 3, and art. II, §§ 9 and 19. The present Legislature could first pass such legislation when it convenes in January or July 1996, and the next Legislature could pass it the second time when it convenes in January 1997. The legislative solution cannot be put in place more expeditiously. When the face of title registration documents clearly show registration was not performed in accordance with statutory procedure, the registration is void. Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles Div. 1988). This finding precludes the movants from receiving summary judgment.
Upon a motion for summary judgment, we are required to "view[] the evidence and the inferences that can be drawn therefrom in the light most favorable to the opposing party." Program Engineer v. Triangle Publications, 634 F.2d 1188, 1192-93 (9th Cir. 1980). "The burden is upon the moving party to show that there is no genuine issue of material fact in dispute, . . . and all doubts . . . must be resolved against the movant." Dreher v. Sielaff, 636 F.2d 1141, 1143 n.4 (7th Cir. 1980). Viewing the evidence in the light most favorable to the plaintifftdefendant Timu Levale and resolving all doubts against the movants, we must assume the registration procedures were not properly *146followed, as we concluded in our earlier order. The summary judgment motion must be denied.
IV. COMPELLING LAND REGISTRATION PROCESS
Ioane Fe‘afe‘aga Ene died before the order of My 6, 1993, was entered. To our knowledge, the Heirs of Ioane Fe‘afe‘aga Ene have not yet renewed the title registration process to undertake the correct procedures. The court can resolve the issues in all three of the consolidated cases only when the title registration process is properly completed. Assuming Timu Levale timely objects and the dispute resolution proceedings under A.S.C.A. § 43.0302 are unsuccessM, the Secretary of Samoan Affairs must also issue a certificate of irreconcilable dispute in order to proceed in LT No. 20-93. Others may, of course, object during any new 60-day notice period.
Therefore, in order to move these actions along in a more expeditious manner, we now direct the Territorial Registrar to commence the title registration process in the name of the Estate of Ioane Fe'afe'aga Ene within 30 days of the entry of this order and in due course complete the registration process in full compliance with all applicable procedures.
Because the Territorial Registrar and American Samoa Government were substantially responsible for the failure of the earlier title registration, the Territorial Registrar's Office will initially bear all normal costs of the title registration procedure, including, but not limited to, the newspaper publication costs. The Registrar or Government may later attempt, if desired, to retrieve some or all of these costs from the Heirs of Ioane Fe'afe'aga Ene.
We further direct the Territorial Registrar and Secretary of Samoan Affairs to promptly undertake and complete any § 43.0302 dispute resolution procedure that may arise out of the new registration process. It is so ordered.
In addition to the facially defective title registration documents, we point out to counsel in LT No. 14-93 and LT No. 10-95 that the Acting Territorial Registrar clearly admitted to non-compliance with the new procedural requirements when she testified at the June 10, 1993, hearing in LT No. 20-93. The transcript of her testimony in the LT No. 20-93 file is recommended reading.
Other cases show the same or similar deficiencies, and we are gaining the impression that there was wholesale failure to comply with the newly enacted procedures in A.S.C.A. § 37.0103 for a significant period of time after their effective date on May 22, 1989. If this impression is correct, the Attorney General then in office may have been more at fault than the Acting Territorial Registrar by failing to adequately advise and instruct the Registrar, his departmental subordinate, on the requirements of the new law. We recommend to the present Attorney General that he assign a staff attorney to review the title registration files in the Territorial Registrar's Office to determine the extent of non-compliance with the 1989 changes in the law. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486382/ | *148Order on Petition for Review:
I. INTRODUCTION
Petitioner Fa’alua Harris (hereafter "Harris") was employed as a fish cleaner by VCS Samoa Packing Company ("Samoa Packing") from April 1989 to February 1990. She was one of many employees who processed the cooked fish for canning. She resigned in February 1990, apparently to take care of her sick husband. Nearly two years later, she filed a claim with the Workmen’s Compensation Commission ("the Commission") for dermatitis on her feet which she claimed she developed while employed at Samoa Packing.
The Commission issued an order on March 24, 1995, concluding that "[Harris’] illness was not related to her employment with [Samoa Packing]." Findings Fact, Concls. & Order, WCC No. 29-91, at 4 (Mar. 24, 1995) (hereinafter "Findings"). The Commission denied her workmen’s compensation benefits.
We note jurisdiction to review orders of the Commission under A.S.C.A. § 32.0652. The primary question upon review is whether the Commission appropriately applied the presumption of A.S.C.A. § 32.0642 that a claim falls within the coverage of the workmen's compensation laws.
II. DISCUSSION
A. Presumption in Harris’ Favor
In order to prevail on a workmen’s compensation claim, a claimant must show that her injury or illness "ar[ose] out of and in the course of employment." A.S.C.A. § 32.0520. Once a claimant has shown the existence of an illness and an employment relationship, a presumption arises that the claim lies within the coverage of the workmen's compensation laws. Star-Kist Samoa, Inc. v. Workmen’s Compensation Commission, 7 A.S.R.2d 149, 151 (Trial Div. 1988); A.S.C.A. § 32.0642(1). The employer then has the burden of showing by substantial evidence that the illness did not arise from employment. Star Kist, 7 A.S.R.2d at 151. Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971).
The Commission found the existence of an illness and an employment relationship at the time the illness arose. See Findings at 2, 4. Thus a *149presumption arose, as a matter of law, that Harris’ illness is covered by workmen's compensation. The Commission went on to find that there was substantial evidence presented to overcome this presumption. See id. at 4. Unfortunately, the Commission did not indicate what that substantial evidence was.
B. Standard of Review
In reviewing the Commission's order, we are required to look for substantial evidence supporting the order. See Continental Ins. Co. v. Workmen’s Compensation Commission, 8 A.S.R.2d 152, 155 (App. Div. 1988). In this context, the substantial evidence test "is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment." Id. (internal quotation marks omitted).
With this in mind, we are presented with two, not necessarily sequential, tasks. First, we must review the Commission's findings of fact to ensure that they were supported by substantial evidence in the record. Second, we must look to the record in light of these findings to see if there was substantial evidence to overcome the presumption in Harris’ favor.
C. Findings of Fact
Without need for present elaboration, we find that the Commission's findings of fact are all supported by substantial evidence in the record. See Findings at 2, 4. This does not end our inquiry, however. We must also determine whether the findings constituted substantial evidence to overcome the presumption in Harris’ favor. We refer to specific findings of fact below, when they are important.
D. Substantial Evidence to Overcome the Presumption
The problem with the Commission's order is that its conclusion — that the presumption was overcome by substantial evidence-simply does not follow from its findings of fact. Not only does the Commission fail to explicitly tell us what evidence overcomes the presumption, its findings of fact do not even intimate what evidence overcomes the presumption. Samoa Packing contends that the record presents five sets of evidence which overcome the presumption. See Samoa Packing’s Resp. Br. at 10-12. None of these is persuasive.
First, Samoa Packing contends that the presumption is overcome because, when Fa'alua resigned, she stated that she was resigning "to take care of a very sick husband." Contrary to Samoa Packing’s *150assertion, this has absolutely no bearing on when or how Harris’ illness arose. Furthermore, the Commission explicitly found that Harris’ illness arose during her employment at Samoa Packing. See Findings at 2, 4. This finding is substantially supported by the record.
Second, Samoa Packing points to the fact that Harris did not file her claim until 22 months after her resignation and that she continues to suffer from her illness 5 1/2 years after her resignation. Her delay in filing is apparently offered to indicate that the illness arose after Harris’ resignation. As we stated above, the Commission explicitly found otherwise.
The long-term suffering is offered to show that, had Harris’ illness been caused by something at Samoa Packing, her long-term separation from her job should have caused her symptoms to subside. Therefore, Samoa Packing argues, the cause must have been external to Samoa Packing. The Commission made no explicit finding on what caused Harris’ illness, or whether long-term separation from the causal agent should have caused her illness to subside. However, the only doctor testifying at the hearing, Dr. Tosi, stated that due to a bacterial infection afflicting Harris, she would continue to suffer from her illness indefinitely, regardless of her contact (or lack thereof) with the initial causal agent. The medical records of Dr. Grekin from the Straub Clinic in Hawaii, offered to the Commission, do not clearly pinpoint the cause of Harris’ illness, although they indicate that it could be many things, including her shoes, fish juice, or ammonia. The testimony of the doctors is, at best, equivocal on this issue. The cause of an illness is often difficult to pinpoint in an employment context. This is the precise reason why the legislature has enacted the presumption in favor of the worker. Dr. Grekin's possible alternative causes is not substantial evidence which will overcome the presumption.
Third, Samoa Packing argues that Harris indicated that her illness existed prior to her employment. While she made statements to this effect during her testimony, it appears that she misunderstood the questions being asked, as she had at other times during her testimony. The Commission apparently, agrees, and explicitly found that her illness arose during her employment. See Findings at 2, 4. As we stated above, this finding is supported by substantial evidence.
Fourth, Samoa Packing points to the testimony of Eteuini Augafa, the Land Sanitation Manager at Samoa Packing, to the effect that the floors were kept clean, that Harris stood on a platform off the floor, that her shoes didn't get wet, and that water and scraps didn't fall on the floor. According to Samoa Packing, "The Commission was well within its discretion to favor [Augafa]'s testimony and discount [Harris’] on this *151point." Samoa Packing’s Resp. Br. at 11. We agree that the Commission would have been within its discretion to do so. In fact, it did exactly the opposite, finding that "[t]he floor of the working area where [Harris] and other fish cleaners worked was always wet and that sometimes [her] shoes . . . were wet from fish juices and water, dripping onto their shoes, and also to the floor . . . Findings at 3. This finding does not overcome the presumption, it supports it.
Finally, Samoa Packing contends that because Harris continually contacted the fish with her hands, she should have developed dermatitis there also. The Commission made no finding of fact in this regard. There is no medical testimony on this issue in the record. There is also no testimony on whether Harris wore gloves or how often she washed her hands. Quite frankly, there is no evidence on this issue, and no evidence cannot be substantial enough to overcome the presumption.
Thus, none of Samoa Packing’s arguments are persuasive. Where there is evidence in the record to support Samoa Packing’s contentions, the Commission often made findings in direct opposition to that evidence. As we said, these findings are supported by substantial evidence at other places in the record, and must be upheld. For other of Samoa Packing’s contentions, there is no evidence in support or the evidence is equivocal.
It is unclear how the Commission reached its conclusion. What is clear, however, is that the record, construed in light of the Commissions findings of fact, does not support that conclusion. It appears that the Commission has either misunderstood the presumption’s effect on the onus of proof or it has, intentionally or not, simply paid lip-service to the presumption, rather than giving it the full evidentiary weight which is required by law.
III. CONCLUSION
The conclusions of the Commission that the presumption in Harris’ favor was overcome by substantial evidence and that her illness was not related to her employment are clearly in error. Accordingly, we remanded this proceeding to the Commission with the mandate to change conclusions 4 and 5 of its order so that they are in Harris’ favor, in accordance with the requirements of A.S.C.A. § 32.0642. The Commission shall then proceed to make determinations concerning the time period and amount of workmen's compensation benefits to which Harris is entitled.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486384/ | Opinion and Order:
Plaintiff owns and operates a travel agency with direct access to airline ticket stock. Defendant also owns and operates a travel agency but has only had access to airline stock through plaintiff. At all relevant times, defendant sold airline tickets for plaintiff at an agreed commission of 5% on cash receipts and 3% on American Samoa Government travel vouchers. The latter was only payable upon plaintiffs receipt of payment from the government on its travel vouchers. At the outset of the parties relationship, which began May 1994, plaintiff dealt with defendant on a cash basis. A few months later, on or about August 1994, defendant sought and was extended credit. It was the parties’ management, or mismanagement, of that credit facility that subsequently resulted in the eventual dismissal of plaintiffs then sales manager, and the ensuing law suit now before the court. According to plaintiffs reckoning of accounts, defendant owed it $50,041.06.
After exchanging accounts reconciliation efforts, at the urging of the court, defendant accepted, and accordingly stipulated in open court, to the extent of $23,422.21, of the amount claimed by plaintiff. The issue then remaining for trial was whether defendant owed the difference, namely, $26,618.85. Of this amount, plaintiff indicated its willingness to concede, as de minimis, defendant’s claim of $870.50, said to be her commission share on unused ticket refunds. On the basis of this concession, the court is prepared to give defendant the benefit of the doubt and apply the sum of $870.50 in her favor.
*159As to the remaining $25,748.35 in contention, defendant claims that she had already turned in a substantial amount of money to Cecil Fairholt, plaintiffs sales manager at the time, who did not always give her a receipt for the cash that she gave him. Fairholt, on the other hand, testified that while receipts were not always issued contemporaneously when cash was picked up from defendant, receipts were eventually issued for everything turned in by defendant.
We are satisfied that plaintiff’s reconciliation of accounts, based on the extent of its records, was correctly compiled. By comparison, we find defendant’s submission to be on dubious footing. She claims that she has turned over all funds that she had received for ticket sales but for approximately $15,000, which she seems to think is about what her account should be. The principal basis of defendant’s claim is a log which she testified she had kept for the purpose of recording cash payments, as she made them to either Fairholt or others of plaintiff’s staff. After careful review of this log, however, we are unable to accept plaintiff’s claim that the log’s holographic entries reflect a chronology of contemporaneous recordings of cash disbursements made from time to time. Rather, the log appears more like a reconstruction exercise undertaken at one time, ostensibly in preparation for trial. In our assessment, this log is hardly trustworthy evidence of defendant’s claim.
We find that the evidence preponderates in favor of plaintiff’s version of the accounts as presenting the more accurate picture of the accounts between the parties. We, therefore, conclude that defendant is, in addition to the conceded indebtedness of $23,422.21, further indebted to plaintiff in the sum of $25,748.35. The clerk will enter judgment accordingly in favor of plaintiff, and against defendant, in the total sum of $49,170.56.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486385/ | Order Denying Petition for Writ of Habeas Corpus:
On January 9, 1986, defendant Michael F. Adams ("Adams") killed Katherine and-Edward Sedlack, and on August 13, 1986, was adjudged guilty on two counts of second-degree murder, pursuant to a plea agreement. Adams was accordingly sentenced to two 30-year prison terms, which were to run concurrently. Adams has served more than 10 years of this sentence, and now petitions pro se for a writ of habeas corpus, alleging that the Parole Board refuses to consider his application for parole, despite his requesting it three times in advance of his eligibility.1
*161The statute is plain on its face that a prisoner may apply for parole only after he has served the minimum prison term, and not in advance.
A prisoner .. . wherever confined, and serving a term or terms of over 6 months, who has_served the minimum prison term under 46.2304 may apply to the board for parole.
A.S.C.A. § 46.2702(a) (emphasis added). Although Adams applied for parole three different times, the last application he alleges was on December 6, 1995, or more than a month prior to the 10 year anniversary of his arrest for the murders. He was, therefore, not eligible to apply for parole when he applied. Without a valid application for parole, the petition for judicial review is premature and should, therefore, be denied.
Regardless, habeas corpus is hardly appropriate in this case. The writ of habeas corpus or "the great writ" is to provide "immediate relief from illegal detention." Suisala v. Moaali'itele, 6 A.S.R 2d 15, 18 (Trial Div. 1987). Habeas corpus is not a vehicle for the courts to inquire into management of the prison system, unless "exceptional circumstances" rise to the level of "constitutional deprivation." American Samoa Government v. Agasiva, 6 A.S.R. 2d 32, 38 (Trial Div. 1987).
The Ninth Circuit has held that the courts have jurisdiction to invoke the writ of habeas corpus only when detainment is unlawful, and on that basis refused to consider the validity of two out of three consecutive sentences (in order to determine parole eligibility) until after the admittedly valid sentence had been served. Dunlap v. Swope, 103 F.2d 19 (9th Cir. 1939). The rationale behind this decision is simply that the prisoner is not unlawfully detained during the course of an admittedly valid sentence, and the court is, therefore, without jurisdiction to grant the writ. In the present matter, Adams asks the court to declare his detainment unlawful during the course of a valid sentence. His right is not to be granted parole, but rather to apply for it, and to have his application duly and fairly considered without indeterminate delay. If, after Adams applies for parole, the Parole Board refuses to consider his application in a timely fashion, perhaps the appropriate remedy is mandamus, to compel the Board to timely consider the merits of his parole application, and not habeus corpus, to effectively circumvent parole proceedings altogether.
*162Since Adams has not heretofore filed a valid parole application, he is entitled to no claim for relief respecting the Parole Board. His petition is, therefore, denied.2
The Clerk of Courts is directed to serve a copy of this order upon the govemment/respondent via the Attorney General’s Office and upon the defendant/petitioner at the Tafuna Correctional Facility.
It is so ordered.
A criminal becomes eligible to apply for parole after serving 1/3 of his sentence. A.S.C.A. § 46.2304(a).
Although Adams’ petition is denied, it is helpful to address his concern that the Parole Board intends to delay a hearing on his parole application until there are a number of other prisoners who may be considered for parole at the same time. The intention which Adams attributes to the Parole Board would be plainly illegal. The parole statute states, in relevant part:
Upon receipt of an application for parole by an eligible prisoner, the board considers all pertinent information regarding the prisoner....
A.S.C.A. § 46.2072(b) (emphasis added). The aforementioned deliberation must include an interview of the prisoner and oral testimony. A.S.C.A. § 46.2072(c). Although the statute does not create strict time parameters for considering or acting upon a parole application, it does plainly indicate that the application must be evaluated "[u]pon receipt." This language clearly does not permit the Parole Board to unduly delay consideration of a parole application in order to get several hearings out of the way at the same time, or for other reasons of convenience. If this is the Parole Board's policy, it is repugnant to the terms of the statute and should be changed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486386/ | Order Denying Motion to Dismiss:
At issue in this case is a loan made by plaintiff American Samoa Government Employees Federal Credit Union ("ASGEFCU") to defendant Atonio Mailo. ASGEFCU has filed this case to collect on the loan, claiming Mailo has defaulted. Before this case arose, ASGEFCU was closed and liquidated, with the National Credit Union Administration ("NCUA") acting as the liquidating agent. NCUA assigned all of ASGEFCU's outstanding loans at the time of its liquidation to National Collection Services, Inc. ("NCS").
Currently before the court is Mailo's motion to dismiss. Mailo bases the motion primarily upon the fact that the ASGEFCU has been liquidated. Unfortunately, neither party has presented a valid argument to support its *164position. This does not change the conclusion that, under the law controlling federal credit unions, the motion to dismiss must be denied.
Mailo argues that ASGEFCU cannot bring this suit, because it has been "liquidated." Under the common law, when a corporation ceases to exist, it loses its capacity to sue or be sued. Walling v. James V. Reuter, Inc., 321 U.S. 671, 675-76 (1944); Pendleton v. Russell, 144 U.S. 640 (1892); 19 Am. Jur. 2d Corporations § 2896 (1986). However, this rule can be and has been abolished by statute in nearly every U.S. jurisdiction.
ASGEFCU answers Mailo's motion with two assertions: first, that as assignee, NCS has a legal right to pursue the loans originally made by ASGEFCU; and second, that this court has allowed NCS to pursue collection efforts in the past. Both of these arguments miss the legal point. First and most importantly, in gaining legal title to the loans, NCS did not gain, without more, a right to pursue actions in ASGEFCU’s name.. T.C.R.C.P. 17(a) requires an action to be brought in the name of the real party in interest. An assignment passes title from the assignor to the assignee, so that the latter is normally the real party in interest for purposes of Rule 17(a). Cf. 26 Fed. Proc. L. Ed. § 59:35 (stating the same rule for F.R.C.P. 17(a), upon which T.C.R.C.P. 17(a) is based). Thus, the assignment allows NCS to bring suit in its own name not ASGEFCU's name. Additionally, the simple fact that a plaintiff has been allowed to bring suit in the past, in his own name or that of another, does not grant him an absolute right to continue bringing suits. Whether a party is properly involved in a suit must be decided on a case-by-case basis.
Both parties have clearly missed the pertinent legal point. A federal credit union is a creation of federal law, and the federal law adequately provides for its existence following liquidation:
Upon certification by the liquidating agent in the case of an involuntary liquidation, and upon such proof as shall be satisfactory to the Board in the case of a voluntary liquidation, that distribution has been made and that liquidation has been completed, as provided herein, the Board shall cancel the charter of such Federal credit union; but the corporate existence of the Federal credit union shall continue for a period of three years from the date of such cancellation of its charter, during which period the liquidating agent, or his duly appointed successor, or such persons as the Board shall designate, may act on behalf of the Federal credit union for the purpose of. . . collecting and distributing its assets, . .. and it may sue and be sued in its corporate name.
12 U.S.C. § 1766(b)(5) (emphasis added).
*165Mailo has made no allegation that this statute does not apply or is not satisfied in this case. Thus, NCS possesses the ability to sue in ASGEFCU’s name for three years following the cancellation of ASGEFCU’s charter.
The motion to dismiss is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486387/ | We enjoined defendants in our decision of March 1, 1995 ("our first order"), from paying salary step increments to American Samoa Government ("ASG") employees or past debts to ASG vendors from funds not properly obligated from appropriations for the fiscal years in which the transactions were budgeted, without current appropriations by the Legislature for such purposes. On March 13,1995, defendants filed a motion for reconsideration or new trial. On March 17, 1995, we addressed, without hearing, one issue in defendants’ motion ("our tax order"), declaring that ASG has no ownership interest in income tax refund monies and consequently that payment of tax refunds need not be authorized by legislative appropriation. We regularly heard the remainder of ASG’s motion on October 18, 1995, with counsel for both parties present.
Defendants’ pending motion essentially seeks to amend the judgment and includes the following issues: (1) a request that we define the term "vendor" as used in our first order, for purposes of defining the reach of the order to ASG expenditures; (2) whether we should vacate our first order with respect to the Attorney General, since he personally threatened no illegal action; and (3) whether our first order should be amended to deny a permanent injunction, since the effect of the injunction may be unclear and unpredictable in some circumstances, effectively giving the court continuing oversight authority over ASG’s executive branch.
1. Vendor
Defendants’ request for a definition of the term "vendor" misses the point of both our first order and our tax order. The point we intended to make in distinguishing taxpayers from vendors in our tax order is that the payment of tax refunds is not an ASG expenditure, which requires legislative approval. It would be ludicrous to suggest that ASG could withhold funds from tax payments in excess of a taxpayer’s tax liability, and then require a legislative appropriation before the taxpayer could receive a refund of money which ASG was never legally entitled to retain. Tax refunds are simply not ASG expenditures.
*167We did not, however, intend to either designate a "vendor" as a special type of creature for which the law has a unique application, or to make the word "vendor" a term of art. We merely said that the payment of debts to vendors falls within the category of expenditures to which the budget obligation rules of A.S.A.C. § 5.0103(16) apply. Clearly, these rules apply to a broader class of ASG expenditures than merely the payment of debts to, for example, "procurement vendors" of goods, services, or construction. This should have been evident in the fact that we also applied these rules to prevent the retroactive payment of salary step increments to ASG employees in our first order.
For the foregoing reasons, we believe that providing a specialized definition of the word "vendor" for interpretation of our rulings would be unprincipled and, therefore, deny defendants' request that we do so.
2. The Attorney General
T.C.R.C.P. 21 assigns the power to drop defendants to the trial court's discretion. United Stated v. Wyoming National Bank of Casper, 505 F.2d 1064, 1067 (10th Cir. 1974) (construing F.R.C.P. 21, which T.C.R.C.P. 21 precisely mirrors); see also 67A C.J.S. Parties § 65b. The trial court's decision will not be disturbed unless an abuse of discretion is demonstrated. Id. We believe the Attorney General to be a proper party based on the fact that he is responsible to ensure, to the best of his ability, that the law is followed in ASG's executive branch. Evidence in this case that he supported the Governor's intentions to make unauthorized expenditures of public funds, and that he made no effort to advise the Governor against such action, qualifies him as a proper party.
3. The Permanent Injunction
Defendants argue that our permanent injunction permits us to retain continuing jurisdiction over administrative processes, and to impermissibly bind the defendants' successors in office. Perhaps one could offer the same argument if we enjoined a public employee from embezzling money from the public treasury. The fact is, however, that the law already enjoins such conduct. A court injunction merely interprets the commands of the law, and strengthens them by ordering that the law not be violated in a specified case, or in a particular manner. The true question is what the law requires, and our first order plainly answered that question.
The law on these matters is clear. A court cannot, by injunction or mandamus, control executive branch officials in their legitimate exercise of discretion. Cooke v. Iverson, 122 N.W.2d 251, 253 (Minn. 1909). A court may, however, enjoin executive action when executive branch *168officials assume to act in contravention of the constitution or laws applicable in the jurisdiction. Id. Furthermore, a court’s authority extends to restraints on executive branch officials from overspending legislative appropriations. See Webster v. Douglas County, 77 N.W. 885, 887 (Wis. 1899). If an executive branch official has authorized an improper expenditure of public funds, a declaratory judgment is appropriate. Central Valley Chapter v. Younger, 157 Cal.Rptr. 117, 128 (Cal. App. 1979). If, however, the expenditure is "threatened in the future," injunctive relief is appropriate. Id. The action enjoined in the present case was prospective, and involved the Governor’s announced intention to do business in a manner that would result in a violation of the law. Injunctive relief was, therefore, appropriate.
Additionally, we cannot neglect the factual finding of our first opinion, supported by a GAO Report, that ASG’s mounting deficits were largely a result of ASG officials’ unwillingness to keep expenditures within legislative appropriations, and to otherwise follow proper budgeting laws and procedures. These factual findings leave little room for doubt that an injunction is appropriate to prevent such wilful neglect of these laws in the future. We were within our legitimate powers to grant the injunction and, therefore, deny the motion to vacate it.
Defendants’ motion for reconsideration or new trial is denied in every respect.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486388/ | Opinion and Order:
On May 4, 1994, plaintiffs brought this action to set aside the Territorial Registrar's registration of defendant Lefataua Peter Ah Ching ("Ah Ching") as the holder of one matai title Mulitauaopele in the Village of Laulii, American Samoa. Trial was held on November 3, 1995, with all counsel present. Having heard testimony and considered the evidence, including related actions by judicial notice, the court will void the title registration and issue certain consequential orders.
*171BACKGROUND
Plaintiffs and Ah Ching are blood members of one of two Mulitauaopele families in Laulii. Defendant Agi Grohse was the Acting Territorial Registrar at the time the Mulitauaopele title was registered in Ah Ching’s name, and is now the Territorial Registrar.
Mulitauaopele Tamotu ("Pele Tamotu") was the sa‘o, or senior titleholder, of his Mulitauaopele family. After Pele Tamotu’s death, Leaana L. Fuata ("Leaana") offered this Mulitauaopele title for registration. Fofogaotuma Konelio Mulitauaopele ("Konelio") objected and counterclaimed for the title. Mulitauaopele Ivi ("Pele Ivi") also objected. His objective was to prevent any further registration of the title held by Pele Tamotu on the grounds that only one Mulitauaopele family and title exist in Laulii, and that Pele Tamotu’s title was an aberration arising under ancient, special circumstances which no longer warranted recognition. In the judicial action that followed, In re Matai Title Mulitauaopele, 16 A.S.R.2d 63 (Land & Titles Div. 1990), the trial court found that two distinct Mulitauaopele families and titles in Laulii existed and awarded the title of Pele Tamotu’s family to Konelio.
Upon Konelio’s death a short time later, Leaana again offered the title for registration. This time Ah Ching objected and counterclaimed for the title. Pele Ivi objected once more, raising the same issues. While the dispute was still pending in the applicable administrative process, Leaana passed away, leaving only Ah Ching as a claimant. When the appellate court upheld the trial court’s finding that two Mulitauaopele families exist, Mulitauaopele v. Mulitauaopele, 25 A.S.R.2d 43 (App. Div. 1993), Grohse, acting on the Attorney General’s advice, registered the title in Ah Ching’s name.
After the title registration in Ah Ching’s name, Alamoana S. Mulitauaopele ("Alamoana") filed an action, Mulitauaopele v. Togafau, CA No. 5-94 (Trial Div. 1994), in essence to declare the Attorney General’s advice erroneous and void Ah Ching’s title registration. The trial court dismissed this action for several reasons. Mulitauaopele v. Togafau, 26 A.S.R.2d 52 (Trial Div. 1994). The one most pertinent to this action was Alamoana’s lack of standing to maintain his action based on his status as either a member of the House of Representatives of the Legislature of American Samoa from the election district including Laulii, a voter, a resident, a taxpayer, or a member of Pele Ivi’s Mulitauaopele family.1
*172Finally, we note in passing that Grohse and Ah Ching defensively alleged that Pele Tamotu’s Mulitauaopele family held the customary kava cup ceremony for Ah Ching and that the three named plaintiffs participated in this event. Grohse and Ah Ching made arguments of mootness and estoppel, as legal consequences of this ceremony, in their motion to dismiss, which we denied July 14, 1994. However, they offered no evidence of this ceremony at the trial. Thus, we will not now address the occurrence and legal effect of any such ceremony.
DISCUSSION
We set aside Ah Ching’s title registration for two fundamental reasons.
1. Family members have been unduly deprived of participation in the selection of a successor matai.
Matai titles are regulated by law. A.S.C.A. §§ 1.0401-1.0414. The territorial registrar maintains the title register, A.S.C.A. § 1.0401, and may register successors to vacant titles only after a specific administrative process, A.S.C.A. §§ 1.0405-1.0408, 1.0410. This court must resolve disputed claims that remain unresolved by the administrative process. A.S.C.A. § 1.0409.
In the course of the administrative process, the territorial registrar is prohibited from accepting counterclaims for the title or objections to the offer following the sixtieth day after the registrar posts notice of the original offeree's claim. A.S.C.A. § 1.0407(a). The sixtieth day had long since past when Leaana died, leaving Ah Ching as the only candidate for the title. Thus, in the absence of further candidates or opponents before the territorial registrar, the Attorney General advised Grohse to register the title in Ah Ching's name instead of returning the selection process to the family or referring the matter to this court for determination.
The law does not permit a substitute candidate after the sixtieth day. See In re Matai Title "Leaeno", Bench Order Mot. Subst. (Land & Titles Div. May 6, 1991) (Court disallowed substitution of a younger, on-island *173family member for an elderly, off-island candidate). We believe that the only reasonable interpretation of § 1.0407(a) is to exclude substitutions after the sixtieth day under all circumstances, including a candidate's death, and so hold. The Attorney General was correct to the extent his advice was premised on this reading of § 1.0407(a).
However, under the Attorney General's advice, Ah Ching became the titleholder essentially by default. Clearly, Leaana had supporters within the family who were effectively and arbitrarily disenfranchised by his untimely death and the title registration in Ah Ching's name. Surely, another family member was prepared to step forward to replace Leaana. This candidate might even achieve an undisputed consensus among the family for selection as the next titleholder. In any event, the process succeeds under the present circumstance only if fair and reasonable opportunity is given to contentious elements within the family to promote their title candidates and to the family to resolve their internal differences.
For this reason, we conclude that the registration of the matai title' Mulitauaopele in Ah Ching's name is void and must be set aside. The process must be returned to the family for further deliberations on choosing the successor to the Mulitauaopele title.
2. Ah Ching is ineligible to hold the title.
Eligibility to succeed to a vacant matai title is set forth in A.S.C.A. § 1.0403. Under § 1.0403(b), a person bom on foreign soil is eligible to hold an American Samoa matai title only if: (1) that person was bom of parents who were inhabitants of American Samoa, but were temporarily residing outside of American Samoa or engaged in foreign travel at the time of his birth; and (2) while later residing in American Samoa that person either (a) renounces, under oath, his allegiance to the foreign country of his birth, within one year after reaching age 18 years, or (b) has continuously resided in American Samoa for at least 10 years prior to claiming registration as a matai titleholder.
Ah Ching was bom in Western Samoa. His father was a Western Samoa citizen. His mother was a U.S. national bom in American Samoa and was a member of Pele Tamotu's Mulitauaopele family. Shortly after Ah Ching's parents married in American Samoa, they moved to Western Samoa. His father was in business in Western Samoa, and Ah Ching was raised to majority there. While still a young adult, he was sent to American Samoa to serve as a lesser matai to Pele Tamotu. Since then, Ah Ching has continuously resided in American Samoa for a period far in excess of 10 years, faithfully serving Pele Tamotu and pursuing career *174employment with ASG. In short, he became, and remains, an integrated member of his American Samoa family and this community.
Based on his continuous residence here for well beyond 10 years, Ah Ching has clearly met the second part of the two-pronged test for overcoming deficiencies as a foreign bom person to hold a matai title in American Samoa. However, Ah Ching cannot change the fact that he was bom on foreign soil to parents who were not outside American Samoa for a temporary purpose but were inhabitants of that foreign country.2
Applying the plain construction of § 1.0403(b), we conclude that Ah Ching lacks the requisite qualifications to hold the Mulitauaopele title. However, he has raised several constitutional arguments for rendering the statute invalid or, at least, inapplicable to him. In general, Ah Ching argued that he has been denied equal protection of the laws and that his privileges and immunities have been abridged. For the most part, he made the same points which we recently addressed in In re Matai Title "I'aulualo", 25 A.S.R.2d 155 (Land and Titles Div. 1994), aff'd, 29 A.S.R.2d_(App. Div. 1995). In Vaulualo, we held that § 1.0403(b) passes constitutional muster. Ah Ching has not offered anything in his arguments to overcome that holding.
We will only briefly comment on two additional points not specifically raised in Vaulualo. First, Ah Ching characterized § 1.0403(b) as a prohibited bill of attainder and ex post facto law, under Rev. Const. Am. Samoa, art. 1, § 13, pointing to its enactment as P.L. No. 7-38 in 1962 and his birth in 1938. However, these forbidden legislative acts apply only to criminal laws. A bill of attainder imposes punishment without judicial process. Black’s Law Dictionary 162 (4th ed. 1951). An ex post facto law creates a crime out of an innocent act when it was committed or applies a harsher penalty than the one in force when a criminal act was committed. Black’s Law Dictionary 662-63. Section 1.0403(b) is simply not a criminal law.
Second, Ah Ching attacked the provision in § 1.0403(b)(1), allowing a person to renounce allegiance to a foreign country of birth only while 18 years of age, as unconstitutional age discrimination. Despite his protests to the contrary, this provision does not preclude Ah Ching, or anyone else who takes up residency in American Samoa when they are older than *17518, from qualifying for a mataiship. Section 1.0403(b)(2) qualifies any such person after 10 years of continuous residency. Ah Ching met this standard, but even if he had not, we would not declare the renunciation provision unconstitutional.
Equal protection does not prevent classifications which are reasonably related to the achievement of a legislative purpose. Age groupings have been consistently upheld for regulatory objectives such as voting, jury selection, military service, and receiving Social Security and other benefits. See 16A Am. Jur. 2d Constitutional Law § 770. The distinction between minority and majority is a logical differentiation in the present context. The Legislature could reasonably find that a resident declaring fidelity to American Samoa at age 18 is probably sincere, while in later years, his fealty is best gauged by a significant period of residency.
Ah Ching's real problem is with the stigma he now suffers from his parents' circumstances at the time of his birth. The purpose underlying § 1.0403(b) appears to be that a foreign-bom candidate for an American Samoa matai title have an enduring and informed relationship with the title and the territory. Ah Ching's connections in American Samoa are ostensibly genuine. However, as we pointed out in, I‘aulualo, 25 A.S.R.2d 155 (Land and Titles Div. 1994), and In re Matai Title "Patea", 25 A.S.R.2d 139 (Land and Titles Div. 1994), the Legislature, not the court, has the responsibility to determine the policy of using the status of a candidate's parents at the time of his birth as an eligibility criterion.
Thus, Ah Ching must be declared ineligible to hold this Mulitauaopele title, and for this reason as well, the registration of the title in Ah Ching's name is void and must be set aside. This ruling also requires that the process must be returned to the family for further deliberations on selecting the next Mulitauaopele titleholder.
ORDERS
1. The registration of the matai title Mulitauaopele in Ah Ching's name is void and set aside.
2. The registration process is returned to the Mulitauaopele family for further deliberations on the selection of the successor matai.
3. Ah Ching is ineligible and is not a lawful candidate to hold the Mulitauaopele title.
It is so ordered.
The trial court based the dismissal on other grounds as well. First, Alamoana asserted that the Attorney General’s verbal advice to Grohse *172was in conflict with A.S.C.A. § 1.0405(a). However, that statute only requires that claims to a title be filed in writing with the Territorial Registrar. The Attorney General was not claiming the title, and, thus, his advice was not required to be in writing. Second, Alamoana failed to meet the statutory prerequisite for declaratory relief by not raising any controversy pertaining to a written instrument, property, or rights or duties with respect to the Attorney General or any other person. A.S.C.A. §43.1102.
Ah Ching has not contested the meaning of "inhabitant," as applied to his parents' circumstances at this birth. However, to complete our discussion to this point, "inhabitant" means a persons "who resides actually and permanently in a given place, and has his domicile there." 25 A.S.R.2d 155 (Land and Titles Div. 1995). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486389/ | Opinion and Order:
On January 30, 1996, defendant Dallace Seiuli ("Seiuli") was tried by the court without a jury for the alleged offense of unlawful possession of a firearm or firearm ammunition in violation of A.S.C.A. § 46.4207(a)(1). Seiuli and both counsel were present.
ELEMENTS OF THE OFFENSE
A person commits the offense of unlawful possession of a firearm or firearm ammunition if:
*177(1) the person has any firearm or firearm ammunition in his possession; and
(2) during the five-year period immediately preceding the date of that possession, either in
American Samoa or elsewere, the person has been convicted of a dangerous felony or has been confined for that conviction.
FINDINGS OF FACT
On December 7, 1994, Officer Paulo Leuma and three other police officers of the Department of Public Safety ("DPS") of plaintiff American Samoa Government ("ASG") went to a residence in Ili'ili, American Samoa. The officers possessed a search warrant duly issued by an Acting Associate Justice of this court to search the residence and, if found, seize a machine gun ("the gun").
Leuma and Sgt. Terry Letuli went to the back door of the residence. The other two officers went to the front door. Leuma knocked on the back door, which consisted only of a screen door and provided immediate entry to the kitchen. After about one minute, Seuili came to the back door from the direction of another room in the residence.
Leuma asked Seuili to step outside. Seiuli untied a rope fastening the door and went outside. Leuma identified himself and Letuli as police officers and told Seiuli that two other officers were at the front door. Leuma explained to Seuili that the officers has a search warrant to search the residence and seize the gun if found there. He gave Seuili a copy of the search warrant.
Leuma, Letuli and Seuili then entered the kitchen. Inside, they conversed a short while longer. Leuma asked Seuili if he had the gun. Seiuli pointed to the room near which Leuma had first observed him and said the gun was on a chair in that room.
Leuma, Letuli and Seiuli than went inside this room, a bedroom, and the officers saw the gun on a chair next to a bed. Letuli examined the gun. He found and removed a magazine from it. He retained the gun, while the four officers carried on a further search of the residence for approximately 15 minutes. Leuma did not physically see the gun during this search, but Letuli was in his immediate presence throughout this procedure. After completing the search, and while in the living room of the residence, Leuma inventoried and tagged all items seized and took possession of the gun and magazine.
*178Seiuli was the only person inside the residence, other than the officers, while the officers were there.
Leuma transported all items seized at the residence to DPS headquarters in Fagatogo. There the officers removed seven rounds of ammunition from the gun’s magazine. The gun was loaded with ammunition when it was seized.
Seiuli was convicted in the Superior Court of the State of California of the crime of assault with a deadly weapon, in violation of Ann. Cal. Penal Code § 245(a)(1), on July 1, 1986. On April 11, 1989, he was sentenced to serve two years in the state prison system, operated by the California Department of Corrections ("DOC"), for this offense. On April 17, 1990, he was paroled from this imprisonment. He remained on parole until discharged on April 2,1992.
DISCUSSION AND CONCLUSIONS
1. Possession.
"'Machine gun' means any firearm that is capable of firing more than two shots automatically, without manual reloading, by a single function of the trigger." A.S.C.A. § 46.4201(j). The gun seized under the search warrant is a machine gun. Since Leuma did not have the gun in actual sight during the search after the gun was seized, Seiuli questioned whether the gun in evidence is the same one seized. During this search of about 15 minutes, Letuli physically possessed the gun and was in leuma's immediate presence. We have no doubt that the gun in evidence was the gun seized.
Seiuli protested that his ownership of the gun was not shown. However, possession, not ownership, is the issue. "A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it." 9th Cir. Crim. Jury Instr. 3.16 (West 1992). We excluded as hearsay Leuma's direct testimony that Seiuli lived at the residence and was married to the owners' daughter, and that the owners were off-island at the time of the search. However, we can reasonably infer from Seiuli's presence and familiarity with the residence and the things within the structure that he lived there. Clearly, his connection with the gun was neither casual nor coincidental. He then knew the gun was there and had physical control of it.
Thus, we conclude that beyond a reasonable doubt, Seuili was in possession of the gun at the time of the search.
*1792. Conviction or Confinement.
The facts found, above regarding Seiuli’s conviction and confinement in California were recorded in a public document of the State of California, purporting to bear the state seal and the Deputy Secretary of State’s attestion signature. This document was admissable under T.C.R.Ev. Rule 803(22) and Rule 902(1), dealing respectively with hearsay exceptions when the declarant’s availability is immaterial and self-authenication.
Under American Samoa law, a "Dangerous felony’means the felonies of murder, forcible rape, assault, robbery, kidnapping, or the attempt to commit an of these felonies." A.S.C.A. § 46.3111(8). For purposes of T.C.R.Ev. Rule 803(22), a felony is a crime punishable by imprisonment for more than one year. A.S.C.A. § 46.3102(b). By contrast, any crime punishable by imprisonment in the state prison was a felony in California in 1986. Ann. Cal. Penal Code § 17(a) (West 1970). Assault with a deadly weapon was so punishable in California for two, three or four years in 1986 and 1989. Ann. Cal. Penal Code § 245(a)(1) (West 1985). Seiuli was convicted of a dangerous felony in 1986 for purposes of the alleged offense.
We did not admit into evidence the last two pages attached to the California public document. These pages consist of a letter, predating the public document, from the ASG Attorney General's Office to the DOC, and the DOC's handwritten response, and were apparently inadvertently attached to the public document as part of the exhibit when offered into evidence. Seuili argued that without these two pages, we do not know when and if Seiuli was paroled, thus creating a reasonable doubt that he was confined in California within than five years immediately preceding the date he was in possession of the gun. Although a parolee remains in legal custody under California law, Ann. Cal. Penal Code § 3056 (West 1970), a person is not confined when on parol, temporarily or otherwise, under American Samoa law. A.S.C.A. § 46.3111(3)(D). Upon closer scrutiny, however, the admissible California public document also records Seiuli's parole on April 17,1990.
Therefore, we conclude that beyond a reasonable doubt, Seiuli was confined for the conviction of a dangerous felony within five years immediately preceding his possession of the gun on December 7,1994.
Decision
Seuili is guilty of unlawful possession of a firearm or firearm ammunition, as charged in Count IV of the information.
*180Sentencing
Seiuli’s bail is revoked, and he is remanded to custody at the DPS correctional facility at Tafuna, pending sentencing. He shall report to the correctional facility no later than noon on Friday, February 9, 1996. If he fails to so report, a bench warrant for his arrest will issue forthwith, without bail. The Attorney General will hold Seiuli’s travel documents and impose a travel stop order on him until further order of the court.
Sentencing is scheduled on March 1, 1996, at 9 a.m. The pre-sentence report shall be completed and made available to the court and counsel no later than February 28,1996.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486390/ | Order Denying Application for Writ of Mandamus:
Defendant Adams is serving a 30 year prison term on two counts of second-degree murder. He recently petitioned for a writ of habeas corpus, alleging that the Parole Board (the "Board") had refused to consider his application for parole. On January 17, 1996, we denied this petition because Adams’ application was premature, and because his proper remedy, for undue delay by the Board in considering his application, would be a writ of mandamus to compel the Board to consider his application, rather than a writ of habeas corpus to render his detainment unlawful.
On February 5, 1996, the Board granted Adams’ petition for parole on four conditions, one of which was that the Hawaii Paroling Authority accept Adams for placement and courtesy supervision. According to Adams, this has not yet occurred, and he remains in custody at the Tafuna Correctional Facility. Adams now moves for a writ of mandamus which, although unclear as to the remedy prayed for, seems to ask that we order the Board to release him from custody.
A writ of mandamus is an extraordinary writ and will not issue 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, AP No. 14-93, slip op. at 2 (App. Div. 1995); 24 A.S.R.2d 97, 98 (Trial Div. 1993). Although this court suggested that a writ of mandamus might be utilized to compel the Board to consider a parole application as it is plainly required to do by A.S.C.A. § 46.2702, the writ may not be used to compel action which is "discretionary" in nature. The decision by the Board of whether or not to release a prisoner on parole is a discretionary matter.
If it appears to the board . . . that there is a reasonable probability that the prisoner will live and remain at liberty without violating the law, and if in the opinion of board the release is not incompatible with the welfare of society, the board may in its discretion authorize the release of the prisoner on parole.
*182A.S.C.A. § 46.2703(a) (emphasis added). ,
Adams argues that the Board exceeded its powers by imposing conditions on his parole which are not enumerated in A.S.C.A. § 46.2304(b). This is a misconstruction of the statute. Section 46.2304(b) begins by stating:
"Parole" means the discharge of a prisoner subject to conditions of release that the territorial parole board considers reasonable to assist the offender to lead a law-abiding life, and subject to the supervision of the territorial parole board.
The foregoing language empowers the Board to place "reasonable" conditions on the release of the prisoner, which will vary depending upon the individual circumstances of each prisoner.
The statute continues with language stating that, "[t]he conditions of release include . . . ," which is then followed by a list of three conditions. A.S.C.A. § 46.2304(b). Adams argues that the Board's authority to impose conditions of release is limited to the list of three conditions, and that the Board therefore had no authority to condition his release on his acceptance by the Hawaii Paroling Authority.
This contention is erroneous. This list of three conditions of release is not a comprehensive enumeration of what may be required, but is instead an enumeration of the minimum requirements. The statutory language is inclusive and not preclusive, and the Board is free to place other conditions upon parole which it finds "reasonable," as long as the enumerated minimum requirements are included.1 This conclusion is *183strengthened by the language of A.S.C.A. § 46.2704(b) that "[e]ach order of parole must set the terms and conditions of parole."
Adams further complains that the requirement of his acceptance by the Hawaii Paroling Authority has the effect of "NOT GRANTING parole and discharge from prison." Since the Board had no duty to grant parole nor to release Adams, and had the statutory discretion under A.S.C.A. § 46.2703(a) to deny it, this argument is irrelevant.2
Adams inexplicably contends, as he has before, that former Chief Justice Rees told him that he would serve "at least one year and not more than 10 years behind bars."3 On page 2 of Adams' judgment and sentence, entered and signed by Chief Justice Rees August 15, 1986, and approved by Adams' attorney, it is clearly ordered that Adams is sentenced to 30 years imprisonment. 30 years does not somehow mean a maximum of 10 years.
For the foregoing reasons, Adams' petition for the writ of mandamus is denied.
The Clerk of Courts is directed to serve a copy of this order upon the government/respondent and the Board via the Attorney General's Office and upon the defendant/petitioner at the Tafuna Correctional Facility.
It is so ordered.
The first two conditions of release under A.S.C.A. § 46.2304(b) are that the parolee shall refrain from violating the law, and avoid other technical violations of parole. When the statute indicates that the conditions "include" these two requirements, it does not mean that it may include them, but rather that it must include them. The third condition mentioned in A.S.C.A. § 46.2304(b) states that the Board "may require the offender to make restitution" to aggrieved parties. Although this language is permissive, using the word "may," it is included in the statute only for the purpose of limiting the Board's authority to order such restitution to an amount which the parolee "will be able to pay within the parole term." In other words, restitution need not be selected as one of the conditions of parole, but if it is chosen it must comply with the mandatory limitation.
When parole is denied, a prisoner may reapply for it six months following the Board's denial. A.S.C.A. § 46. 2702(a).
Cf. A.S.C.A. § 46.3503 (Murder in the Second Degree is a Class B Felony). A Class B Felony is punishable by a term of imprisonment of "not less than 5 years and not to exceed 15 years." A.S.C.A. § 46.2301(2). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486391/ | *185Order Denying Motion for Reconsideration:
I. INTRODUCTION
VCS Samoa Packing Co. ("Samoa Packing"), the real party in interest in this workermen’s compensation case, has moved for reconsideration of our earlier review of the decision of the Workmen’s Compensation Commission ("WCC"). Samoa Packing claims that we erred by improperly applying the presumption of A.S.C.A. § 32.0642(1), that we failed to review the record in light of the WCC's ultimate decision, and that we gave the improper remedy. For the reasons listed below, we deny the motion.
II. DISCUSSION
A. Application of the Presumption
Samoa Packing claims, first, that we misapplied the presumption contained in A.S.C.A. § 32.0642(1). Whatever arguments Samoa Packing would like to make about the correct application of presumptions in general, it cannot dispute that this court has repeatedly held with regard to this particular presumption that "[o]nce a claimant has shown the existence of an illness and an employment relationship, a presumption arises that the claim lies within the coverage of the workmen's compensation laws. The presumption operates to shift to the employer the burden of proving by substantial evidence that the injury was not caused by the employment." Star-Kist Samoa, Inc. v. Workmen’s Compensation Commission, 7 A.S.R.2d 149, 151 (Trial Div. 1988) (citations omitted). We examined the evidence and found that not only was there a lack of substantial evidence to overcome the presumption, but that much of the evidence, including the WCC’s own findings of fact, was in direct conflict with its conclusions.
In the present case, the WCC made findings of fact which directly supported the presumption: it found that Harris' illness arose during her employment, see Findings Fact, Concls. & Order, WCC No. 29-91, at 2, 4 (Workmen's Compensation Comm'n Mar. 24, 1995) [hereinafter Findings], that the floor where Harris worked was always wet, see id. at 3, and that her shoes were sometimes wet from fish juices and water, see id. at 3. Where there was equivocal evidence in the record, the WCC explicitly credited the evidence in Harris' favor. See Order on Petition for Review at 5-7 [hereinafter Order].
The other considerations which Samoa Packing presented in its Motion for Review were either irrelevant or had no basis in evidence whatsoever. For instance, the fact that Harris stated her reason for resigning was "to *186take care of her sick husband," has no bearing on when she contracted her illness. See id. at 4. As another example, Samoa Packing’s contention that Harris should have developed a rash on her hands has no support in the record, either factual or by expert testimony. See id. at 7.
Despite the findings of the WCC-all working to support the presumption, not overcome it — it concluded that the presumption had been rebutted and that Harris’ illness did not fall under the coverage of the workmen’s compensation laws. Where the findings of fact are substantially supported by the record, and where those facts directly support the presumption, a conclusion that the presumption has been overcome is plain error. Despite our earlier holding about the effect of the presumption in Star-Kist, all of Samoa Packing’s arguments about the proper application of the presumption in this case are all for naught, because the WCC’s findings of fact support the presumption instead of contradicting it.
B. Review of The Record
Samoa Packing next contends that we erred by considering only the findings of the WCC, rather than the entire record. This was not the case, however. We can only overturn a finding of fact by the WCC if we find that it was not supported by substantial evidence in the record. Star-Kist, 7 A.S.R.2d at 151; Continental Insurance Co. v. Workmen's Compensation Commission, 1 A.S.R.2d 105, 107 (Trial Div. 1988). We review those findings of fact based upon the entire record.
As a preliminary matter in conducting our earlier inquiry, we reviewed the WCC’s findings of fact, finding that they were all supported by substantial evidence. See Order at 4. Where the findings were disputed, we discussed them, see Order at 4-7, but in no instance did we find that any of the WCC’s findings was not supported by substantial evidence based upon the entirety of the record. Only after reviewing the findings of fact based upon the entire record, did we turn to our discussion of the WCC’s conclusions of law as supported by those findings.
In other words, we reviewed the entire record, in the first instance, to see if there was substantial evidence to support the commission’s findings. Having found that these findings were supported by the record as a whole, we need not later return to the entire record to now determine if the commission’s conclusion is supported, completely ignoring their findings. To do so would be to convert ourselves, as an appellate panel, into finders of fact — a role which is clearly inappropriate. Cf., e.g., Suapilimai v. Faleafine, 9 A.S.R.2d 16 (App. Div. 1988).
*187The WCC’s findings were not "meager and ommissive," as Samoa Packing submits. See Mem. Supp. Mot. Recons, at 8. On the contrary, they were substantial and complete enough to support a determination of Ms. Harris claim-unfortunately, the conclusion they support was not the conclusion reached by the WCC. This is clear error, and we reversed the WCC based upon this.
C. Improper Remedy
Finally, Samoa Packing contends that we applied the improper remedy. Having found the WCC’s findings of fact supported, but not its conclusions of law, Samoa Packing contends that we should remand the case to allow the WCC to supplement (or change) its findings. In our view, this is not the way the law works.
Conclusions of law must follow from the facts which are developed at trial or before a commission. To allow the finder of fact to sculpt facts which fit its ultimate legal conclusion is to allow the commission to prejudge its cases. It is for this very reason that appellate courts review findings of fact for clear error but conclusions of law de novo. See, e.g., Anderson v. Vaivao, 21 A.S.R.2d 95 (App. Div. 1992). The WCC made all the findings of fact that were necessary to reach the proper legal conclusion and nothing can be gained by remand.
III. CONCLUSION
The Motion for Reconsideration must be denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486392/ | Order Denying Appellant’s Petition for Rehearing:
This court, having reviewed appellant’s petition for rehearing and finding no points of law or fact which were overlooked or misapprehended by this court when reaching its decision after oral argument, hereby denies the petition for rehearing.
Appellant has suggested that our decision and that of the trial division must be vacated because the case was finally settled days before we rendered our decision. It is now clear that, regardless of whether we vacated our decision, appellant would not be entitled to vacatur of the decision of the trial division. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994). We therefore decline to order vacatur of the decision of the trial division.
In the unique circumstances of this case, we also decline to vacate our Appellate Division decision. We were not notified of the settlement until after we had filed our decision. As we stated in our opinion, we were not exercising jurisdiction pursuant to Article III of the United States *189Constitution. Our decision went no further than to determine that the High Court of American Samoa had no jurisdiction over this case. To leave our decision in place implicates none of the separation-of-powers concerns underlying the "case or controversy" requirement.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486393/ | Order Partially Granting and Partially Denying Motion for Reconsideration or New Trial:
*190I. INTRODUCTION
On November 27, 1995, following a bench trial, we convicted defendant Nuusila Suani ("Suani") of unlawful possession of a controlled substance, to wit: marijuana, in violation of A.S.C.A. §§ 13.1022(a) and 13.1006. On January 30, 1996, we sentenced him to 12 years imprisonment, to be served concurrently with the sentence imposed in CR No. 53-91. Suani filed a timely motion for reconsideration or a new trial. This motion came regularly for hearing on February 5, 1996, with Suani and both counsel present.
II. DISCUSSION
A. Standard of Review
Under T.C.R.Cr.P. 33, the court can grant a new trial to a defendant "if required in the interest of justice." The defendant must show that we erred in the findings of fact or conclusions of law. Cf. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 119-20 ("What is essential is that... [the motion for a new trial] fully apprises the court of the asserted errors in the judgment or sentence."). Although it is within the court’s discretion whether to grant a new trial, we will not do so unless we have clearly erred in our findings or conclusions during the original trial. "A finding is ’clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). This is a rigorous standard.
B. Suani’s Allegations of Error
Suani claims a number of errors in the original judgment. First, he claims that he was not presented with a copy of the search warrant as required by T.C.R.Cr.P. 41(d). We specifically found on the evidence, however, that Suani had received a copy of the warrant. Reviewing the evidence in its entirety, we are not firmly convinced that this was a mistake.
Second, Suani argues that the officers executing the search warrant grossly exceeded its scope. In our Order Partially Granting Motion to Suppress, dated March 18, 1995, (hereinafter “Suppression Order”), we dealt with this question at some length. Suani's conclusory statement that our Suppression Order was wrong, followed by a single case citation but *191no analysis whatsoever, is not enough to show plain error in our conclusion.
Suani next argues that the proper chain of evidence with regard to the seized marijuana had been broken. Once again, we will not reverse our finding of fact absent a showing of clear error on our part. We noted in our earlier Opinion and Order, dated November 27, 1995, that Suani’s allegations on this point were purely speculative. In Suani’s motion, he admits that he "[can] not establish what exactly the[] intruders had done in [the evidence] room." Thus, Suani’s allegations still do not rise above speculation, and are not grounds for a finding that the chain of evidence was broken.
Fourth, Suani takes issue with the officers’ qualifications to test the seized substance, which they concluded was marijuana. We have already discussed the officers’ qualifications, based upon their substantial experience and their training in 1995. See Opinion & Order at 3-4. Although neither officer "made any reference whatsoever to Cannabis sativa L.," (Def.’s Pts. & Auth’ies Supp. Mot. New Trial at 2), they nevertheless convinced us, beyond a reasonable doubt, that the substance seized was marijuana within the definition of the statute. See Opinion & Order at 3-4. Suani has not sufficiently raised an issue with regard to the officers’ qualifications, the tests they performed, or the ultimate conclusion that the seized substance was marijuana.
Fifth, Suani alleges that we erred in finding, as a matter of fact, that the areas where the seized marijuana plants were found were under his control. He points out that Dave Save testified at trial that the two areas where marijuana plants were found were under the control of people other than the defendant. It is within the clear discretion of the finder of fact to determine which witnesses’ testimony to credit. Mar Oil v. Morrissey, 982 F.2d 830, 837 (2d Cir. 1993) (citing Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)). We exercised our discretion to discount Save’s testimony, finding that Suani was in constructive control of the plants. Suani has not convinced us that we committed clear error on this point.
Finally, Suani claims that we erred in sentencing him because we took into consideration the seized weapon which we had earlier ordered suppressed as the fruit of an unlawful search. See Suppression Order at 4-5,7. We agree with him on this point.
We believe the proper view was expressed by the court in United States v. Schipani, 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983 (1971); see also United States v. Lee, 540 F.2d 1205, 1212 (4th Cir. 1976), cert. denied 429 U.S. 894 (1976) (holding that evidence excluded *192during trial can be considered at sentencing); but see Verdugo v. United States, 402 F.2d 599, 609-13 (9th Cir. 1968), cert. denied, 391 U.S. 925 (1970) (stating that certain illegally obtained evidence could not be considered at sentencing hearing). “A sentencing judge’s access to information should be almost completely unfettered in order that he may ‘acquire a thorough acquaintance with the character and history of the man before [him].”’ Schipani, 435 F.2d at 27 (quoting United States v. Doyle, 348 F.2d 715, 721 (2d Cir.), cert. denied, 382 U.S. 843 (1965)) (second modification in original).
Nonetheless, despite a sentencing judge's important need to have as much knowledge about a defendant as possible, American Samoa's protective provision against unreasonable searches and seizures is constitutional, Rev. Const, of Am. Samoa, art. I, § 5, and is inflexibly absolute: "Evidence obtained in violation of this section shall not be admitted in any court."1
III. CONCLUSION
For the reasons stated above, we grant Suani's motion for reconsideration or a new trial solely to reconsider the sentence and, in all other respects, deny his motion. We will hold a hearing on March 13, 1996, at 9:00 a.m. to reconsider his sentence.
It is so ordered.
Serious consideration should be given to deleting this sentence by constitutional amendment or the next constitutional revision to enable the judiciary to develop more common-sense rules in the search and seizure field. This provision was included in the 1960 Constitution, the 1967 Revised Constitution, and in the several later, unadopted revisions. Indeed, from written records related to previous constitutional proceedings available to the court, it appears that critical discussion of this provision has never been undertaken. This void may be a byproduct of simplistic views on evidence suppression prevalent during the heyday of search and seizure constraints. One comment was noted of record. During the 1972-1973 constitutional revision process, a consulting firm named Karr & Greensfelder erroneously stated that section 5 is substantially the same as the Fourth Amendment to the U.S. Constitution. In fact, the Fourth Amendment does not contain this blanket provision on inadmissability in courts, and as the cases cited demonstrate, the federal courts are not as constrained as this court is in developing realistic and fair rules in the search and seizure field. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486394/ | Opinion and Order:
This case concerns two registered parcels of land which overlap.
*194PROCEDURAL HISTORY
Plaintiff Maryann T. Tulafono ("Tulafono") filed her action (LT No. 30-93) on July 20, 1993 to evict defendants Muamua Semeatu and Sala Semeatu1 (collectively "the Semeatus") from the land at issue. Two years earlier, on March 21, 1991, the Semeatus had filed their action (LT No. 11-91) against the Estate and Heirs of Vincent Ah San ("the Estate"), asking for a declaration of the Semeatus’ title to a larger area encompassing the land at issue in this case.
The court consolidated these actions on March 16, 1995, pursuant to T.C.R.C.P. 42(a). However, the administrator of the Estate was unavailable at trial, and on the Estate's motion, we separated the trial on issues of the Estate's financial liability to the Semeatus, pursuant to T.C.R.C.P. 42(b). Trial was held on the remaining issues, with counsel for all parties, including the Estate, present.
FACTUAL HISTORY
We will separately discuss the two overlapping parcels and a parcel of land to the south.
1. Leuluasi: the Semeatu Parcel
On March 17, 1972, after three objectors withdrew their objections before the end of the 60-day statutory notice period, the Territorial Registrar registered land named Leuluasi, located in the Village of IlTili, as individually owned land of Logotala Letulisgasenoa ("Logotala"). On October 20, 1975, the Registrar recorded a warranty deed by which Logotala conveyed a portion of Leuluasi to Vincent Ah San ("Ah San") as individually owned land.
On August 15, 1985, the Registrar registered a contract of sale of Ah San's portion of Leuluasi to the Semeatus for a purchase price of $15,000. The contract, dated August 3, 1984, called for an immediate down payment of $8,000, with the balance payable in 35 payments of $200 per month, beginning in September, 1984. Ah San was to deliver a deed to the Semeatus upon receipt of the down payment, and assurance that the balance would be paid. Ah San did deliver a warranty deed to *195the Semeatus on September 10, 1984, but it was not registered.2 According to the contract, the Semeatus were entitled to possession of this parcel no later than September 2, 1984, and apparently took possession on or about that date. Except for the relocation adjustment required by Lutu v. Semeatu, LT No. 9-87, slip op. (Dec. 14, 1989), the Semeatus have remained in possession of the land since that time.
2. Leuluesi: The Lutu Parcel
On December 18, 1981, the Registrar recorded a warranty deed by which Logotala transferred another portion of Leuluasi to Sinira Fuimaono Lutu ("Lutu") as individually owned land.3 Lutu, LT 9-87 was filed when *196Lutu went to clear her parcel in 1986 and found the Semeatu in possession. The court in Lutu found that under their respective deeds, most of the northern boundary of Lutu’s parcel was meant to share the southern boundary of Semeatus’ parcel. Ruling in Lutu's favor, the court permanently enjoined the Semeatus from possession of Lutu's portion, and effectively moved the Semeatus’ parcel northward. The Lutu court specifically left open the issues pertaining to the western boundary of Leuluasi and the eastern boundary of Lauofe, which in part is the subject of the present matter.
3. Lauofe: the Tulafono Parcel
Meanwhile, on March 18, 1981, the Registrar registered land named Lauofe in IlTili, as individually owned land of Lupelele Letuligasenoa ("Lupelele"). On August 14, 1986, the Registrar registered a warranty deed by which Pacific Industries, Inc. conveyed a portion of Lauofe to Tulafono as individually owned land.4 Most of Tulafono's claimed parcel in Lauofe overlaps with the Semeatus’ parcel in Leuluasi, as relocated by the Lutu court.
DISCUSSION
The evidence clearly shows that both Tulafono and the Semeatus possess chains of title to their overlapping, individually owned land descending from their respective land registrants. Thus, as between Tulafono and the Semeatu, the sole issue to resolve is which chain of title will prevail with respect to the overlap.
American Samoa law is clear. A land title registration, completed according to proper statutory procedures, establishes "good title against the world." Fa'aaua'a v. Tauiliili, 15 A.S.R.2d 71, 72 (Land & Titles Div. 1990). Absent evidence of fraud or non-compliance with statutory procedures, registration of title "cannot later be questioned." Ifopo v. Siatu'u, 10 A.S.R.2d 66, 69 (Land & Titles Div. 1989) aff‘d. 12 A.S.R.2d 24 (App. Div. 1989).
In the present case, we find no evidence of fraud or non-compliance with the registration statutes in connection with the registration of Leuluasi in *197Logotala’s name in 1975. Tulafono vigorously argues that the failure of anyone to pursue an objection within the 60-day period provided by A.S.C.A. § 37.0103 to the registration of Lauofe in Lupelele's name in 1981 invalidated Logotala's registration in 1975 and the registered titles of his successors, including the Semeatus. This flawed argument completely overlooks the much stronger argument that the failure of anyone to pursue an objection within the 60-day statutory notice period to the registration of Leuluasi in Logotala's name in 1975 rendered any future claims to that land by Lupelele and his successors, including Tulafono, null and void.
Since Logotala's earlier title registration of Leuluasi was good against the world, ownership of any portion of Lauofe lying within Leuluasi could not be later obtained by Lupelele, by title registration alone, or by his successors, Tulafono included, solely through conveyances. Thus, the Semeatu's registered title prevails over Tulafono's title claim. This rule is strict to establish finality in land titles. "A later registration of the same land would therefore be of no legal effect." Fa'aaua'a, 15 A.S.R.2d at 72; Lealaimatafao v. Misiata, 17 A.S.R.2d 110 (Land & Titles Div. 1990).
As between the Semeatus and the Estate, the Semeatus have continued to pay the purchase price of their portion of Leulausi and have reasonably assured the Estate that the full purchase price will be paid. The administrator of the Estate has reasonably accepted the Semeatus’ assurance by executing a warranty deed conveying this portion of Leuluasi by the Estate to the Semeatus. The Semeatus are now entitled to the Registrar's registration of that deed.
ORDER
1. The disputed area within the overlap is a portion of the correctly registered Leuluasi, not the incorrectly registered part of Lauofe.
2. The Semeatus are entitled to ownership of the parcel in Leuluasi, including the disputed area, sold to them by Ah San, subject only to any other conflicting conveyances Logotala or Ah San may have made. The warranty deed conveying this parcel in Leuluasi by the Estate to the Semeatus shall now be registered by the Territorial Registrar. The Semeatus shall completely perform their obligations under the contract of sale of this parcel to them.
3. Tulafono retains any legally valid claims to ownership of portions of her claimed parcel which lie outside of the overlap.
It is so ordered.
Since Sala Semeatu is a plaintiff in LT No. 11-91 and is a purchaser of record (with Muamua Semeatu) of the land at issue, we have, on our own motion, substituted her as a named defendant for Doe I in LT No. 30-93.
Although witness signature lines and acknowledgement before the Territorial Registrar were included in the form, no witnesses signed this deed, and although dated September 10, 1984, the Registrar did not sign the acknowledgment. Perhaps Ah San did not appear before the Registrar, because the purchase price had not yet been fully paid. See Lutu v. Semeatu, LT No. 9-87, slip op. at 1 (Dec. 14, 1989). However, as discussed supra, we are satisfied that at least by May 27, 1992, the Estate’s administrator believed that she had sufficient assurance of payment of the entire balance, based on the Semeatus’ monthly payment record, to warrant delivery of a fully executed deed.
Additionally, for purposes of deciding issues presently tried in LT No. 11-91, we take judicial notice of the Estate of Ah San, PR No. 12-91. Ah San died intestate on June 30, 1990, and the administrator was appointed June 10, 1991. On May 27, 1992, counsel for the Estate and the Semeatus submitted a stipulated settlement of the Semeatus’ claim against the Estate. The Semeatus signed a promissory note, dated January 7, 1992, for the $4,000 remaining balance on the purchase price, to be paid in $200 monthly installments, beginning in February, 1992. The administrator then signed a warranty deed, dated March 27, 1992. This deed was offered for recordation on April 7, 1992, but the Registrar declined to record it without a court order. The Estate of Ah San court questioned delivery of the deed without either full payment of the purchase price or a mortgage. The Semeatus and administrator explained with a supplemental stipulation that they also intended to settle Semeatus’ claim (LT No. 11-91) against the Estate for the Semeatus’ costs in defending their boundaries. However, neither the Semeatus nor the administrator followed up this explanation with the Estate of Ah San court, and that court has yet to act on the proposed settlement.
Lutu Tenari S. Fuimaono and Sinira T. Fuimaono were listed as grantees in the deed. However, the litigation that followed, Lutu, LT No. *1969-87, was brought in Sinira's name alone, as Sinira Fuimaono Lutu, and the Court treated her as the sole titleholder.
Tulafono was the fourth recorded successor to Lupelele of this parcel in of Lauofe. The preceding three successors were: Afano F. Blankenship, December 9, 1981; Gus Cordtz, December 5, 1984; and Pacific Industries, Inc., July 22, 1986. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486395/ | Order Vacating Judgment and Discussing Personal Attorney Sanctions:
*199The court intends by this order to send a message to the entire membership of the American Samoa Bar Association. First, every attorney and legal practitioner should henceforth take T.C.R.C.P. Rule 11, as amended on March 1, 1996, seriously and meet the professional standards contemplated by the Rule. Second, and specific to this action, when we direct parties to brief issues, we ask questions of real concern to us and expect timely and relevant answers. Attorneys who inadvertently or willfully disregard such orders act unprofessionally, and contemptuously if the disobedience is willful. We will impose sanctions for such conduct.
The extensive discussion below shows that counsel in this action deserve personal sanctions. However, we will withhold sanctions this time, in light of lengthy, historical leniency, see Lutu v. Semeatu, LT No. 9-87, slip op. at 3-6 (Land & Titles Div. Dec. 14, 1989), and the imprecise, complementary natures of T.C.R.C.P. 7(b)(2) and old Rule ll.1 We also fairly and emphatically warn counsel that we will impose fitting sanctions on counsel personally for future transgressions of either new Rule 11 or the contempt rules.2
I. BACKGROUND
On December 4, 1995, we issued an order contemplating vacation of an earlier judgment awarded to plaintiff Interocean Ships, Inc. ("Interocean") against defendant Samoa Gases ("Samoa Gases"). We were concerned with the question of whether Interocean had dissolved mid-trial, which would abate the case under the common law. To ensure that the earlier judgment was legal and proper, we asked both parties to brief us on the following issues:
1) Was Interocean dissolved before judgment was rendered in this case?
*2002) If so, does the common law apply to abate the proceeding? Does the American Samoa statutory provision overrule the common law and allow the action to survive?
3) Should the Delaware corporations law apply to this proceeding? If so, does that law allow the chose in action to survive Interocean’s dissolution?
4) Was there an assignment of the chose in action before the dissolution of Interocean? If so, does the assignment survive the dissolution?
Order Requiring Further Briefing at 4 [hereinafter Briefing Order],
Interocean responded to the Briefing Order by submitting a one-paragraph brief3 on December 14, 1995, citing only one legal authority. Samoa Gases filed a two-page memorandum on January 5, 1996, two days after the January 3, 1996 due date, pointing out the deficiencies in Interocean’s brief, apparently taking issue with its integrity, but failing to address the substantive issues we raised or cite any legal authority. On January 12, 1996, Interocean submitted a reply brief, containing a mere four paragraphs of argument and citing not a single legal authority. On February 1, 1996, Samoa Gases submitted a brief and a supplemental brief finally addressing the issues. On February 8, 1996, Interocean responded to Samoa Gases’ briefs with a final reply still ignoring the issues and providing no legal authority.
We now address the arguments presented, concluding that Samoa Gases' brief and supplemental brief must be struck as untimely, and that, nevertheless, the judgment must be vacated and the money paid to Interocean by Samoa Gases must be returned.
II. DISCUSSION
A. Samoa Gases’ briefs will be struck.
Samoa Gases submitted a very thorough and well-researched brief and supplemental brief. It addressed each issue and made thoughtful arguments on how this court should interpret and apply the law in this case. Unfortunately, Samoa Gases filed these briefs with the court nearly a month after their due date had passed.
*201Although Samoa Gases’ original memorandum, which it filed only two days late, stated that "the defendant SAMOAN GASES, INC., is unable to fully respond to the brief filed by the plaintiff, because it is not responsive to the court’s order,” Def.’s Mem. Opp’n Pl.’s Br. at 2, its brief was not, strictly speaking, a response brief. We asked "[e]ach side" to brief us on the issues. Furthermore, Samoa Gases was not impaired by having to anticipate issues not raised in Interocean’s brief, because we had already outlined the issues we wanted to be briefed. As its brief and supplemental brief total 22 pages, Samoa Gases seems to have found plenty to say on the issue despite Interocean’s deficient performance.
We gave Interocean 30 days to file its brief and Samoa Gases 20 days from the time Interocean filed to file its brief. Twenty days (plus the initial 10 days before Interocean filed) was more than enough time for Samoa Gases to prepare a brief. If Samoa Gases felt that time was insufficient, it could have properly moved for extra time. Instead, it requested in its memorandum that we give Interocean additional time to file and Samoa Gases time to authenticate documents. We believe this request was, at best, unnecessary or, at worst, intended to cause further delay. Simply put, Samoa Gases should have met its deadline.
What bothers us most about Samoa Gases’ lateness is that we, as a court, experienced exactly the results which we try to avoid by imposing deadlines: an unnecessary waste of time and resources. A 20-page opinion and order had been fully researched and written-without the aid of legal argument by either counsel, and was nearly ready to be signed on January 31, 1996. The following day, Samoa Gases filed its brief and supplemental brief with the court.4 We had to spend additional time determining how to dispose of this case in light of Samoan Gases’ belatedly-filed briefs. We actually redrafted much of our earlier opinion, spending more of the court's time and further delaying the disposition of this case, before deciding that the briefs should simply be struck as untimely.
B. The validity of the judgment must still be determined.
The fact that we are striking Samoa Gases’ briefs does not dispose of this matter. In actuality, we are dealing with a question of subject matter jurisdiction — that is, a question of whether we properly should have continued this action to judgment.
*202"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” T.C.R.C.P. 12(h)(3) (emphasis added). This rule, like the rest of our rules of civil procedure, parallels the federal rule. Compare Rule 12(h)(3) with F.R.C.P. 12(h)(3). Under the Federal Rules, the court, whether trial or appellate, is obliged to notice want of subject matter jurisdiction upon its own motion. Sumner v. Mata, 449 U.S. 539 (1981). Therefore, our obligation to undertake a sua sponte investigation into the question of subject matter jurisdiction where it may result in dismissal of all or part of a suit does not end simply because the briefs of one party have been struck.
C. The judgment must be vacated.
As we stated above, Interocean presented us with a total of only five paragraphs of argument — just over 1 page-in its brief and reply brief combined. It cited only one legal authority, a single section of American Jurisprudence 2d, a legal encyclopedia which is not controlling authority in this or any other jurisdiction.
Apparently, Interocean merged into another corporation rather than simply dissolving. It asserts that "[mjergers do not result in a loss of any rights or causes of action. Just the opposite is the effect."5 Br. PI. in Response to Ct. Order of Dec. 4, 1995, at 1 [hereinafter Pl.'s Br.] (it is at this point that Interocean cites, incorrectly we might add, 19 Am. Jur. 2d Corporations § 2632, at 446 (1986)). Interocean next informs us, without citation or explanation, that "attached hereto is the statement of California law indicating that there is no loss of rights when a corporation merges with another corporation." Id.
This is the entirety of Interocean’s response to our inquiries. It does not attempt to explain how the fact that it merged into another corporation means that it was not dissolved. It does not attempt to explain why the common law rule of abatement does not apply. It does not attempt to explain where in the American Samoa Code Annotated this jurisdiction has adopted the statutory rule that pending actions may survive when a corporation is merged. It does not attempt to explain how "the statement of California law" applies to save this case from abatement. It does not attempt to address our concerns about assignment of a chose in action, even though this is what may occur when one corporation merges into *203another. Nor does it attempt to explain why, even assuming every other factor fell in its favor, this court should require Samoa Gases to issue additional checks in the name of someone other than Interocean, the plaintiff in whose name this trial was brought and prosecuted.6 Nevertheless, Interocean’s counsel has the impudence to state: "Based on the foregoing it is clear that the checks should be made out to William H. Reardon and Interocean Industries, Inc., as the successor to Interocean Ships, Inc." PL’s Br. at 1 (emphasis added).
This is not "clear" to us at all. What is clear to us is that Interocean either has a complete misunderstanding of the law, or has taken a very risky gamble that its single argument that corporate actions survive mergers would satisfy us. We are left to wonder if Interocean’s counsel even bothered to read the Briefing Order, let alone the appropriate legal texts or applicable cases. Meanwhile, we made it clear in the Briefing Order why we were concerned with the viability of Interocean's judgment. A meager investigation of the law would have shown Interocean where it went astray.
1. Argument that a merger does not bring about a dissolution.
To begin with, Interocean's entire premise that a merger is different than a dissolution is just plain wrong. Using the only source Interocean cited in its brief, we find that: "In the case of a merger . . . one of the combining corporations continues in existence and absorbs the other. In other words, the merged corporation is dissolved or ceases to exist." 19 Am. Jur. 2d Corporations § 2627, at 440 (1986) (emphasis added, footnote deleted). This passage is found only six pages from the section cited by Interocean, under the heading "Status of Corporations Following Merger, Consolidation, or Exchange of Shares." See id. at 437. Had *204Interocean made a reasonable inquiry into the law, it could not have missed this section.
Interocean could have found the same information by looking at any of a number of other sources. "The dissolution of a corporation is the termination of its existence as a body politic." BLACK’S LAW Dictionary at 425 (5th ed. 1979) (emphasis added). Corporate "merger" is defined as "[t]he absorption of one company by another . . . [with the] absorbed company ceasing to exist." Id. at 891 (emphasis added). One section of the California Corporate Code, attached to Interocean’s brief without specific citation, states that "[u]pon merger . .. the separate existence of the disappearing corporation ceases." See Cal. Corp. Code. § 1107(a) (West 1990) (emphasis added). There is no difference between these definitions. In both a merger and a straight dissolution, the old corporation ceases to exist. We expressed precisely this concern, with regard to Interocean, in the Briefing Order:
If Interocean's exhibits are correct, it no longer exists. We are not sure, then, who has filed this motion, since it is brought in Interocean's name. Under the common law, when a corporation ceases to exist, it ceases to have any capacity to sue or be sued. Briefing Order at 2 (emphasis added). The inescapable conclusion, which Interocean has nevertheless tried to escape with no legal authority whatsoever, is that a merged corporation is dissolved at the moment of its merger.7
2. Applicable law.
Interocean’s counsel also seems to have a marked misunderstanding for what law applies in American Samoa. The law applicable here is that enacted by the Legislature of American Samoa and codified in the American Samoa Code Annotated ("A.S.C.A."). A.S.C.A. § 1.0201(3). Where the Legislature has not acted, the "common law of England" applies. A.S.C.A. § 1.0201(4). Except under a valid conflict of laws argument, the law of other jurisdictions does not control here, though we may consider it persuasive in interpreting our own law.
The summary of law in AMERICAN JURISPRUDENCE 2d is not controlling here. Particularly when that summary is of statutory law from other *205jurisdictions, and similar statutes have not been enacted in the Territory. Nor is California law, attached to Interocean’s brief without explication, controlling here. If Interocean would have liked to make a conflict of laws argument that the law of California or another jurisdiction should apply in this case, we would have gladly welcomed it. In fact, we explicitly asked for it in our Briefing Order.8 Interocean, however, chose not to make such an argument. Thus, we must look first to the A.S.C.A., then to the common law to determine how to resolve this issue.
The A.S.C.A. has a corporations code, but no section explicitly deals with the question of pending lawsuits upon the dissolution (or merger) of a corporation which is party to the suit. The code does inform us that a voluntarily dissolved corporation "may nevertheless continue to act for the purpose of winding up their affairs," A.S.C.A. § 30.0121, but it is unclear whether this includes continuing pending lawsuits. Normally winding up of affairs refers to collection and distribution of assets along with payment of outstanding obligations. See 19 Am. JUR. 2d Corporations §§ 2828-2830. Though "winding up" statutes like ours may be interpreted to include the continued ability of a corporation to sue, be sued, or maintain an existing suit, they normally are not. See id. at § 2842. A.S.C.A. § 30.0121 has not been interpreted to allow such actions. We explicitly invited counsel to brief us on the question of how the code should be interpreted, but Interocean failed to respond on this *206point. Thus, we can assume that the common law rule of abatement continues to apply in American Samoa.
We stated the common law rule of abatement in the Briefing Order: when a corporation dissolves, any action being prosecuted in its name abates. The very section in AMERICAN JURISPRUDENCE 2d, which Interocean cites as its only legal authority, states the common law rule as applied to a merger: "[T]he common-law rule . . . recognized that a chose in action to enforce a property right upon merger vests in the successor corporation and no right of action remains in the merging corporation." 9 Am. Jur. 2d Corporations § 2632 (emphasis added) (citing Sun Pipe Line Co. v. Altes, 511 F.2d 280, 283 (8th Cir. 1975)). Interocean has apparently misread or misapplied the only legal source it bothered to cite.
Thus, upon a reasonable inquiry into the law, what is "clear" is that, following its merger, Interocean had no ability to prosecute this suit under the common law. The case should have abated at that time, and the judgment in its favor must now be vacated. If a judgment which was rendered after a corporations dissolution has been entered and collected, the money must be returned. See 19 Am. JUR. 2d Corporations § 2906, at 684 (citing Ingraham v. Terry, 30 Tenn. 572).
Therefore, Interocean must either return the checks to Samoa Gases, or if the checks have already been negotiated by Interocean Industries or some other person, the full amount of the checks. A reasonable timeframe for this purpose is 30 days. Because Samoa Gases has been deficient in its performance on this matter, no interest will be awarded to them if Interocean returns the checks or pays the full amount of the checks within 30 days. However, should Interocean fail to return the checks or pay an equivalent amount within 30 days, interest at 6% per annum will begin to accrue, retroactively applied from the date of this order.
III. ORDER
*207Our earlier judgment of May 2, 1994 awarding damages in favor of Interocean against Samoa Gases is vacated. Interocean shall return the checks issued to it in satisfaction of the judgment, or pay an equivalent amount, to Samoan Gases within 30 days. If it fails to do so, interest, retroactive to the date of this order, will accrue at 6% per annum.
It is so ordered.
F.R.C.P. 11 when read with F.R.C.P. 7(b) has always provided a basis for imposing disciplinary sanctions on attorneys. See Notes of Advisory Committee on Rules, 1983 Amendment, Federal Civil Judicial Procedure and Rules, at 53 (West 1993). When adopted, T.C.R.C.P. 11 (both before and after the present amendment) and Rule 7(b) mirrored their federal rule counterparts.
Sanctions can include fining counsel; requiring him to pay costs, including the opposing party’s attorney’s fees; citing him for contempt; reprimand; or even disbarment. See 5A Charles ALAN WRIGHT & Arthur R. Miller, Federal Practice and Procedure § 1336, at 97 (2d. ed. 1990).
Not counting the introductory and conclusory sentences.
We also note that, initially, Samoa Gases filed only the supplemental brief. That brief, however, makes numerous references to the initial brief. During a call to counsel’s office, we expressed confusion at these references and achieved realization of the unfiled original brief.
We note that the opposite of "loss" is "gain" or "creation." We assume that Interocean's poor choice of words is not meant to imply that rights or causes of action are created by a merger, but simply that they are not lost.
The issue of Interocean's dissolution originally came to our attention when Interocean brought its motion in aid of judgment to have checks for the amount of the judgment issued in the name of Interocean Industries, Inc. We are now led to believe that Interocean Industries is Interocean's successor, following two corporate mergers. Still, Interocean has never presented, and does not now present, a valid legal argument for how or why the checks should be issued in the name of someone other than the plaintiff. Indeed, if "[mjergers do not result in a loss of any rights," PL's Br. at 1, as Interocean would apparently have us believe, Interocean Industries should have the same right to cash checks made payable to Interocean as Interocean had, and the motion in aid of judgment should have been unnecessary. This point is now moot, since the checks or their monetary equivalent must be returned to Samoa Gases.
We note that a merged corporation may be saved from dissolution if a state legislature passes a statute explicitly intending such a result. See 19 Am. JUR. 2d Corporations § 2627, at 440-41. There is nothing in the American Samoa Code Annotated to bring about such a result. The California Corporations Code is directly and explicitly opposite. See Cal. Corp. Code § 1007(a) (West 1990). We have not yet been informed on what the Delaware Corporations Code says on this issue.
We stated very clearly that "[tjhere is also an unaddressed conflicts of law issue." Briefing Order at 3. We mentioned that Delaware law might have applied, since Interocean was a Delaware corporation. Id. at 3, 4. We now know, however, that California law might also have applied, since Interocean Industries is a California corporation.
We also again note that Interocean has attempted to bring California law to our attention by attaching a photocopy of one page of the California Corporations Code to its brief, stating simply that "attached hereto is the statement of California law indicating that there is no loss of rights when a corporation merges with another corporation." See Pl.'s Br. at 1, ex. B. Even assuming Interocean had made a valid argument that California law is relevant, there are some 12 sections and subsections on the attached page. Interocean has given us no citation to or explanation of which section or sections it feels are relevant or why. It is not our job to cull through attorneys' photocopied references to find law which might or might not be relevant to their argument. Cf. Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928 (7th Cir. 1989) (imposing F.R.C.P. Rule 11 sanctions, stating that "[cjounsel may not drop papers into the hopper and insist that the court or opposing counsel undertake bothersome factual and legal investigation").
Thus, at common law, and apparently under most statutes, a merger functions much like an assignment with regard to a chose in action. Thus, Interocean should at least have answered our fourth inquiry regarding assignment of the chose in action.
On that point we note that a case must be brought in the name of the real party in interest, T.C.R.C.P. 17(a), and that an assignment, explicit or implicit, without more, does not give the assignee the right to prosecute an action in the assignor's name. Cf. 26 Fed. Proc. L. Ed. § 59:35 (stating the same rule for F.R.C.P. 17(a), upon which T.C.R.C.P. 17(a) is based). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486397/ | This action was brought to enforce an agreement to repay a debt and a continuing guaranty. The trial was held on November 15, 1995, with counsel for both parties present.
Findings of Fact
The court, having heard testimony and considered the evidence, finds as follows:
1. Defendant Nam’s Island Grocery, Inc. ("Grocery") was incorporated in American Samoa in 1982. Grocery was dissolved as a corporate entity on or about August 8, 1995.
2. On April 25, 1994, Grocery entered a written agreement with plaintiff Pacific Endeavors, Ltd. ("Endeavors") to repay a debt in the principal amount of $39,634, plus interest at 12% per annum, payable in weekly installments of $500 until the debt and accrued interest was paid in full. *214The agreement also provided for Grocery’s payment of actual attorney’s fees and costs in the event of suit upon default to collect the amount then owed to Endeavors.
3. On the same date, defendant Nam Jung-Gil ("Nam") signed a continuing guaranty to Endeavors to personally pay upon default the amount then owed to Endeavors.
4. Grocery last paid Endeavors on December 19, 1994, in the amount of $350. Endeavors commenced this action on August 28,1995.
5. As of June 30, 1995, Grocery owed Endeavors $36,860.60 as the unpaid balance of the principal amount of the agreement, plus $3,197.22 in accrued interest, a total amount of $42,057.82.
Conclusions of Law
From the foregoing facts, the court concludes:
1. Grocery had ceased to exist as a legal entity and had no capacity to be sued when this action was commenced. Walling v. James V. Reuben, Inc., 321 U.S. 671, 675-76 (1944); Pendelton v. Russell, 144 U.S. 640 (1892). Thus, this action against Nam must be dismissed.
2. Nam is personally liable to Endeavors in the principal amount of $38,860.60, plus prejudgment interest in the amount of $3,197.22 through June 30, 1995, and at 12% per annum from July 1, 1995, until the date the clerk of courts enters the judgment, reasonable attorney’s fees not to exceed $100 per hour or the equivalent, actual court costs, and post-judgment interest at 12% per annum upon the total amount of the principal, prejudgment interest, attorney’s fees, and costs.
Order
1. This action against Grocery is dismissed.
2. Nam shall pay Endeavors the principal sum of $38,860.60, plus prejudgment interest in the amount of $3,197.22 through June 30, 1995, and at 12% per annum from July 1, 1995, until the date the clerk of courts enters the judgment, reasonable attorney’s and actual court costs to be set forth by counsel’s affidavit and approved by the court, and post-judgment interest at 12% per annum upon the total amount of the principal, prejudgment interest, and approved attorney’s fees and court costs.
Judgment shall enter accordingly. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486398/ | *216Order Denying Motion for Reconsideration/New Trial:
HISTORY
In its order entered January 9, 1996, ("our order") this court resolved the present title dispute relating to the land Vasa'aiga ("disputed land") in favor of the Afo Family. Ten days following the judgment defendant Fa'agau Lefiti ("Fa'agau") filed a motion for reconsideration or new trial on the ground that the court misconstrued the facts presented at trial.
There are, essentially, six errors claimed in Fa'agau’s motion: (1) that the court should have given stronger consideration to the fact that Fa'agau exercised pule (control) over the disputed land by signing separation agreements in order for members of the Fa'agau family to obtain construction permits to build homes on the land; (2) that Finagalo Aveina ("Finagalo") constructed an apartment building on the disputed land which would have been noticed and objected to by the Afo Family if they had actually owned the land; (3) that Fa'anau v. Faumui, 2 A.S.R. 228 (Trial Div. 1947), cited in our order at footnote 2, proves that Faumui Pisa, who lived on the disputed land, was a member of the Fa'agau family, and was present on the disputed land in that capacity; (4) that the decision was based on hearsay testimony; (5) that Fa'agau is entitled to the land by adverse possession; and (6) that land cannot be registered to the Afo family, an objector, because Fa'agau fails to prove his case.
DISCUSSION
With respect to the first two claims of error, our order gave thorough treatment to these issues. Although Fa'agau may take issue with our interpretation of the facts, a trial court is a fact-finding tribunal. Interpreting facts is what a trial court does. The mere reiteration of arguments which have already been heard and rejected at trial is not likely to be more persuasive in a motion to reconsider. It is not persuasive in this case.
The third issue concerned this court’s 1947 decision in Fa'anau v. Faumui, 2 A.S.R. 228 (Trial Div. 1947), which was cited in our order for the proposition that the parties in this case are not relatives. Fa'agau points out that Faumui Pisa testified that he was the senior matai of the Fa'agau family. Id. at 229. Although Faumui testified to that effect, he supported this testimony with a claim that "Fa'anau was his talking chief," and that his name was a Faganeanea title, facts which Fa'anau himself denied, claiming that Faumui was originally a Nu'uuli name. Id. The Fa'anau Court’s decision is consistent with Fa'anau’s rendition of these facts. Id. at 230.
*217Fa'agau claims, in a rather conclusory statement, that the decision was based on hearsay testimony. Although it is generally accepted that title to land cannot be evidenced by hearsay, Talo v. Tavai, 2 A.S.R. 63, 68 (Trial Div. 1939), an exception to the hearsay rule exists for the "communal land-tenure system", permitting the admission of oral family histories in the absence of "title documentation." Toilolo v. Poti, 23 A.S.R.2d 130, 132 (Land & Titles Div. 1993); see Tupuola v. Tu'ufuli, 1 A.S.R.2d 80, 81 (App. Div. 1983).
Furthermore, continuous use and possession of the land generally indicates ownership in Samoan tradition, and gives rise to a legal presumption of ownership. Tupuola, supra; Talo, supra at 68-70.1 In our order we made explicit factual findings that evidence of possession and control of the disputed land preponderates in favor of the Afo family. Fa'agau’s claim of title by adverse possession is inconsistent with this holding, and we have been given no persuasive reason to revisit it.
Fa'agau’s final argument is that we cannot award title to an objector merely because a claimant fails to prove his case, and that the Afo family is required to make a separate survey of the land and a separate petition for registration before the court may award title to them. This is simply wrong.
Section [0104] of Title [37] of the American Samoa Code does not indicate the manner in which conflicting claims may be adjudicated. In the absence of any particulars in this regard, the trial court may adjudicate in favor of both the applicant and objector, or the objector alone if the objector’s claim is proven superior to that of the claimant.... There are case precedents of this fact. In Fiailoa v. Meredith (H.C.T.D. 1941) 2 A.S.R. 129, plaintiff applied to register a land as individually-owned land, however, the court ruled that land was the communally-owned land of the defendant’s family and registration was effected accordingly.
Leomiti v. Heirs of Malufau, LT No. 63-77, slip. op. at 29 (Land & Titles Div. December 13, 1977) (citations omitted) aff'd in. Te'o v. Fanene, AP No. 13-78, slip op. (App. Div. February 21, 1980). In the present case we made explicit findings that the Afo family’s claim to the disputed land *218was superior to that of Fa'agau, and we have been given no persuasive reason to revisit this finding.
For the foregoing reasons, the motion for reconsideration/new trial is denied.
It is so ordered.
Numerous additional authorities for this principle are cited on pages 9-10 of our order, and require no repetition here. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486400/ | Order Granting Motion to exclude Evidence in Part and Requiring Notice of Intention to Use Evidence at Trial:
I. INTRODUCTION
Defendants Roger Isaia has been charged with two counts of criminal assault in the first degree, and defendant Saufo'i Alopepe, Jr. has been jointly charged with the first count. The crime is alleged to have *225occurred on October 20, 1995. On November 6, 1995, the defendants were arraigned in this court.
On November 8, 1995, the defendants served on the government their request for discovery, favorable evidence, and intention to use evidence at trial.1 Plaintiff American Samoa Government has not filed any notice of its intention to use evidence at trial. On November 1, 1995, however, before the defendants’ request and before their arraignment, the government had presented the defendants with a copy of an investigation report prepared by the government's Department of Public Safety [“DPS”]. The government made no further responses to the defendants’ discovery request until February 6, 1996, when it provided the defendants with a number of alleged witness statements.
Trial had been scheduled for February 20, 1996, but on February 8, Isaia, believing that he needed more time to investigate the witness statements given him by the government, stipulated with the government to continue the case. Alopepe claimed that he was prepared to proceed to trial, but on February 14, he also stipulated to the continuance, explicitly preserving his right to a speedy trial. On February 15, we continued the trial until April 2, 1996.
The government conducted a number of interviews with witnesses after February 6, 1996. Most of these interviews took place between February 12 and 15, although four of the interviews did not occur until March 19 and 20. Along with the interviews, police apparently presented the witnesses with mug photographs, which included the defendants and other suspects, for identification purposes. None of this information was given to the defendants until March 22, 11 days before trial, when the government presented the defendants with the “Criminal Investigation Follow-up: Country Club Case” [“the report”]. The report summarizes the statements of the 11 witnesses interviewed between February 12 and March 20, and includes the results of the witnesses' “photo identifications” of suspects. On March 25, Alopepe, this time feeling he had inadequate time to prepare for trial in light of this information, filed a motion to exclude all evidence related to the report, and to compel the government to provide notice of its intention to use evidence at trial. Isaia joined in Alopepe’s motion on March 26. The matter was brought for expedited hearing on March 27, with all counsel present, the defendants having waived their right to be present.
*226II. DISCUSSION
A. Notice of Intention to Use Evidence at Trial
T.C.R.Cr.P. 12(d)(2) implicitly allows a defendant to request that the government provide him with a list of the evidence it intends to use at trial for its case in chief. However, Rule 12(d)(2) is not explicitly mandatory, except for a defendant’s discovery of items listed in T.C.R.Cr.P. 16(a). Nor is a sanction provided.
Rule 12(d)(2), as with all of our rules of procedure, is based upon the parallel federal rule. Compare T.C.R.Cr.P. 12(d)(2), with F.R.Cr.P. 12(d)(2). Thus, the history and interpretation of the federal rules are strongly persuasive in interpreting our own rules. See A.S.C.A. § 46.0501 (stating that the criminal procedure in the High Court “shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure”); Fanene v. American Samoa Government, 4 A.S.R. 957 (1968) (same). The notes of the Advisory Committee for the Federal Rules states that:
No sanction is provided for the government’s failure to comply . . . because the committee believes that attorneys for the government will in fact comply and that judges have a way of insuring compliance.
1 Charles A. Wright, Federal Practice and Procedure § 197, at 736 n.l (1982). Thus, the court has discretion to determine whether and how to order the government to comply.
The purpose underlying Rule 12(d) is to allow a defendant to effectively prepare for trial. Among other things, it allows the defendant to bring pre-trial motions under Rule 12(b)(3), to suppress evidence that will be entered at trial, and to avoid such motions for evidence the government does not intend to introduce. Producing notice of intention to introduce evidence can potentially save the defense attorneys, the government, and this court time and money. It is also in-line with the prosecutor’s duty to seek justice rather than mere victory. See Berger v. United States, 295 U.S. 78, 88 (1935); see also ABA/BNA LAWYERS’ Manual on Professional Conduct § 61:602-03 (1986). For all these reasons, we believe the government should normally provide notice of its intention to use evidence, either on its own initiative, see T.C.R.Cr.P. 12(d)(1), or upon the request of defense counsel. See T.C.R.Cr.P. 12(d)(2). In appropriate cases, where the government has failed to comply with a defendant’s request, we will compel compliance.
*227We will require the government to comply with the defendants’ request in this case. Had it done so in a timely manner, the defendants would have a better idea how the government intends to use the information contained in the recently-disclosed report. Although the government need not make known its trial strategies or other privileged matters, the defendants could not even know whether the present motion to exclude evidence was necessary, since they did not know which, if any, of the witnesses interviewed in the report the government intends to call at trial. Such notice, even at this late date, can help to avoid such further confusion. Because trial is set to commence in six days, the government shall serve its notice of intention to use evidence no later than Friday, March 29,1996.2
B. Motion to Exclude Evidence
1. The Report
The crux of the defendants’ motion is to exclude the evidence contained in the report. They make two arguments for its exclusion. First, they • argue that the statements and identifications contained in the report were acquired after Isaia and the government had agreed to a continuance. Second, they argue that the government is “forcing” continuances in the trial, and could do so indefinitely.
The first argument is almost wholly without merit. Although Isaia and the government stipulated to a continuance on February 8, and Alopepe agreed on February 14, this does not change the fact that the original trial was scheduled for February 20. Thus, the statements and identifications which the government took between February 12 and 15 should not be characterized as having been “obtained by the government after the government . . . had agreed to continue the trial . . . .” (Def.’s Mot. Exclude Evidence at 3). Instead, the statements should be characterized as having been obtained two weeks prior to the initial trial date. Even if these statements were obtained shortly before trial, there is no rule requiring the government to finish its investigation at an early date, let alone a date convenient to the defendant. There is also no rule requiring the government to stop preparing for trial once a continuance has been granted. Even the statements obtained on March 19 and 20 may merely *228reflect a shifting of priorities or deadlines by the government once the trial had been continued to April 2.
Defendants’ second argument focuses on the fact that the government, having failed to respond to the defendants’ discovery request, produced statements on February 6, only shortly before trial, in effect “forcing” the defendants to seek a continuance to investigate the new evidence. The defendants claim that the production of the report on March 22 marks the second time that the government has produced evidence in the eleventh hour, apparently surprising the defendants and leaving them unprepared for trial on April 2.
What the defendants’ argument ignores, however, is that they had no right to the report in the first place.3 T.C.R.Cr.P. Rule 16(a)(1)(C) allows a defendant to discover any documents or tangible things within the possession custody or control of the government which may be material to the preparation of his defense or which the government intends to use in its case in chief. However, Rule 16(a)(2) provides that
[T]his rule does not authorize the discovery or inspection of reports, memorandum [sic], or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses.
The report certainly qualifies as either statements made by government witnesses or, more likely, as a document made by a government agent in connection with the investigation of the case. Thus, the defendants had no right to discover the report under Rule 16.4
The defendants also had no right to discover the report under Brady v. Maryland, 373 U.S. 83 (1963). Brady requires the government to disclose evidence favorable to a defendant upon request. The defendants have not claimed that the report is favorable to them, and it does not appear to favor them.
*229Having been under no obligation to supply the report to the defendants, the government cannot be faulted for having done so at a late date. Except as discussed below, the evidence identified in the report will not be suppressed.
2. The photographs
One of the major areas of the defendants’ concern, as expressed during the hearing, is the use of the photo identifications, apparently obtained using DPS photographs, listed in the report. Although the government has not prevented the defendants from viewing the photographs since they received the report on March 22, there have been problems obtaining useful copies for the defendants.
T.C.R.Cr.P. 16(a)(1)(C) allows the discovery of “books, papers, documents, photographs, tangible objects, buildings or places.” Rule 16(a)(2) excludes the discovery of only “reports, memorandum [sic], or other internal documents.” Rule 16(a)(2) does not explicitly exclude photographs from being discovered. Photographs are neither reports nor memoranda. Furthermore, because photographs and documents are listed separately in Rule 16(a)(1)(C), we must assume that they are mutually exclusive. Thus, photographs do not appear to implicitly fall under the confines of Rule 16(a)(2) either.
Were all categories of tangible objects in Rule 16(a)(1)(C) meant to be excluded, Rule 16(a)(2) could have parroted that list or said simply “all items discoverable under Rule 16(a)(1)(C).” It does not, however, do this. Furthermore, the purpose underlying Rule 16(a)(2) is to protect the work product of government attorneys. See 2 Wright, supra, § 254, at 70 n.33. It is hard to imagine when photographs or other tangible objects, which are not reports, memoranda, or documents, would qualify as privileged work product. Thus, photographs continue to be discoverable despite the prohibition of Rule 16(a)(2).
The defendants are still required to show that the photographs are either material to the preparation of their defense or are intended to be used in the government’s case in chief. See Rule 16(a)(1)(C). However, we believe the defendants have met this burden. Although it is unclear whether the government plans to introduce the photos during its case in chief, they have used them repeatedly to achieve identifications of the suspects from witnesses interviewed in the report. These photographs should have been made available to the defendants so that they could prepare a defense to the identification evidence. The lateness of their production is prejudicial to the defendants.
*230Although the government’s counsel turned over the report (although apparently not the photographs themselves) as soon as it was given to him by DPS, this does not excuse the tardiness. “The government” which is required to disclose documents under Rule 16 is not limited to only the Attorney General’s office. DPS is clearly part of the government, and tangible objects in its possession are discoverable. When a defendant serves a discovery request upon the government, the Attorney General is responsible for ensuring that any material documents in DPS’s possession, or any other relevant government agency, are disclosed promptly and properly.
Because the photographs should have been disclosed as early as February 12, 1996, but were not in fact disclosed until March 22-10 days before trial — we will suppress them. The evidence suppressed includes not only the photographs but also any evidence relating to their use in making identifications of the defendants during the government’s investigation.
III. CONCLUSION
The government is ordered to serve upon defendants a notice of evidence to be used at trial by Friday, March 29, 1996. The photographs used by the government in its investigation and any related evidence will be suppressed.
It is so ordered.
This date actually represents the date that Alopepe served his request on the government. Isaia joined Alopepe’s present motion without filing a separate recitation of the facts for his case, and his original discovery request, if any, in not on file. However, we will assume for purposes of this motion that all dates applying to Alopepe also apply to Isaia.
If the government and the defendants stipulate to continue the trial, or the court grants a continuance, the government may request additional time to serve it notice of intent to use evidence. However, because the government is supposedly prepared to begin trial in six days, and Alopepe has not waived his right to a speedy trial, such an extension will be short.
The same is probably also true of the statements which the government supplied to the defendants on February 6, 1996.
Under F.R.Cr.P. Rule 26.2, the defendants could have required the government to produce witnesses statements once those witnesses had testified on direct examination. However, despite this rule’s obvious benefits regarding justice, there is no similar provision in our criminal rules. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486401/ | *2Order Denying Motion for In Camera Hearing:
On December 21, 1995, plaintiff American Samoa Government filed an information charging defendants with unlawful production of the controlled substance ofmarijuana, A.S.C.A. § 13.1020(a), and unlawful possession of the same controlled substance, A.S.C.A. § 13.1022(a). They were arraigned on December 22, and trial by jury is presently set for April 23, 1996.
On March 25, 1996, defendants moved this court to conduct an in camera hearing with the confidential informant used by the government in this case in order to determine whether the informant's identity should be disclosed. The motion was heard on March 29, 1996, with all counsel present. Defendants waived their right to be personally present.
I. FACTS
On December 13,1995, Police Officer Paulo Leuma presented an affidavit to District Court Judge John L. Ward II in support of a search warrant for marijuana on Samana family land in Leone, American Samoa, and in buildings there, the defendants' residence, a converted warehouse, and the old "Sogi" store. In the affidavit, he noted that a confidential informant had visited the Samanas’ house on October 26, 1995 and had personally observed 10 marijuana plants growing between the house and store. Leuma went on to state that the confidential informant had provided reliable and accurate information to him in the past concerning the presence of marijuana plants. This prior information had led to arrests and seizures of marijuana. On December 2, 1995, the confidential informant advised Leuma that he had purchased marijuana from defendants at their residence. Leuma also stated that on two occasions in the past, January 18 and July 13, 1995, he had seized a total of 144 marijuana plants from the same property where the confidential informant claimed to have seen plants.
Based upon Leuma’s affidavit, the judge found probable cause to believe that marijuana and narcotics paraphernalia would be found on the Samana property. He issued a search warrant for the land, residence and store. On December 15,1995, Leuma and other officers executed the warrant, seizing marijuana plants, marijuana seeds, marijuana substance, and related drug paraphernalia. Arrest warrants were issued, and defendants were arrested and taken into custody.
*3n. DISCUSSION
Defendants seek the confidential informant's identity. The seminal case on this subject discusses the purpose of the privilege against disclosing an informant's identity:
What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
Roviaro v. United States, 353 U.S. 53, 59 (1957) (citations omitted). Roviaro states that the public interest in protecting the flow of information must be balanced against the individual’s right to prepare his defense. Id. at 62. Also, “[w]here the disclosure of an informer’s identity... is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the privilege must give way.” Id. at 60-61.
After Roviaro, courts began using the technique of examining confidential informants in camera to determine whether the balancing test would tip in favor of the defendant and disclosure. See, e.g., United States v. Rawlinson, 487 F.2d 5, 7 (9th Cir. 1973); United States v. Hurse, 453 F.2d 128 (8th Cir. 1971); United States v. Lloyd, 400 F.2d 414 (6th Cir. 1968); United States v. Jackson, 384 F.2d 825 (3d Cir. 1967).
In an appropriate case, the in camera examination seems to us an effective way to satisfy the balancing of interests required by Roviaro. As the U.S. Court of Appeals for the Ninth Circuit has stated: “[By holding an in camera hearing,] [t]he interests of law enforcement are served by protecting the identity of the informant except where a need is demonstrated for disclosure by the informant’s own testimony, and not by the speculative claims of the defendant.” Rawlinson, 487 F.2d at 7.
However, all of the cases defendants have cited and all of the cases we have found granting an in camera hearing do so only when the confidential informant is somehow important to the government’s case in chief. No case that we have found has granted an in camera hearing where the confidential informant was relied on merely to obtain a search warrant. In fact, the rule *4seems to be firmly against defendants in such a situation:
What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rale requiring disclosure of an informer’s identity even in formulating evidentiary rales for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rale of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need not disclose an informer’s identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U.S. 102,108, we have "recognized that an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, so long as the magistrate is informed of some of the underlying circumstances supporting the affiant’s conclusions and his belief that any informant involved whose identity need not be disclosed... was credible or his information reliable" (emphasis added; internal quotation marks and citations omitted).
McCray v. Illinois, 386 U.S. 300, 311 (1967). Thus, while we must still balance according to Roviaro where the confidential informant is used merely to obtain a warrant, the balance is already tipped firmly against a defendant.
In this case, Leuma’s affidavit informed the district court judge of some of the underlying circumstances supporting his conclusion that the confidential informant was credible and reliable. The judge found the information sufficient to show probable cause to issue a warrant. Defendants have not shown sufficient evidence tending to contradict this finding and tip the balance in their favor. As McCray, 386 U.S. at 313, further states: "Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury." We will not make this assumption. Defendants must present sufficient evidence to bring the affiant’s veracity into question.
At trial, defendants will certainly have an opportunity to cross-examine Leuma under oath. If during that cross-examination they are able to develop sufficient evidence which puts the existence or reliability of the confidential informant in question, they can again move for an in camera hearing on the question of disclosure of the informant’s identity. If no such evidence is developed, there is no need for us to further explore this question.
*5The motion is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486402/ | Order Denying Motion for Reconsideration or New Trial:
On May 4, 1994, plaintiffs brought this action to set aside the Territorial Registrar's registration of defendant Lei'ataua Peter Ah Ching ("Ah Ching") as the holder of one matai title Mulitauaopele in the Village of Laulii, American Samoa. Trial was held on November 3, 1995. On February 6, 1996, we issued our Opinion and Order voiding the title registration and issuing certain consequential orders. The defendants have moved this court for reconsideration or new trial.
*6The defendants' motions contain only one argument. They argue that our order voiding Ah Ching's title registration violates the rights conferred upon him as a U.S. national under 8 U.S.C. § 1408(4), commonly known as the federal "one-parent" law. As with nearly all of Ah Ching's previous arguments, this argument has already been addressed by the court in the I'aulualo cases. See In re Matai Title "I'aulualo ", AP No. 5-94 & AP No. 6-94, slip op. at 10 (App. Div. Dec. 13, 1995).
In I'aulualo, the appellate division stated that:
8 U.S.C. § 1408 grants U.S. national status to various individuals. See 8 U.S.C.S. § 1408 (West 1987 & Supp. 1994). It does not explicitly supersede A.S.C.A. § 1.0403 or any other local law. There is no interpretive law to this effect. We fail to see how 8 U.S.C. § 1408 has any effect on § 1.0403 or any other provision of American Samoa's laws.
Id. The court then went on to state:
The second claim, that Mhtaiumu is entitled to seek a matai title because he is á U.S. national, also has no foundation. Mataiumu's status as a U.S. national no more entitles him to claim a nlatai title than it [makes] his father an inhabitant of American Samoa. There is simply no connection between the two. We see no need to discuss this issue further.
Id. The defendants in the present case have not presented any arguments which were not already disposed of in I'aulualo. Thus, the 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/8486404/ | *12Opinion:
RICHMOND, J.:
This case concerns the extent of matai authority to revoke assignments of family communal land.
HISTORY
Appellant Ioelu F. C. Pen ("Pen") brought this action in the Land and Titles Division ("trial court"), seeking a permanent injunction against appellees Faima Lavata'i ("Faima") and his son Malakai Lavata'i, to enjoin their interference with Pen's use and enjoyment of a portion of land named Lepine, leased to Pen by the late Lavata'i Natia ("Lavata'i"), then the sa'o, or senior matai, of the Lavata'i family of Nu'uuli. Pen is not a member of the Lavata'i family.
On March 21, 1994, the trial court found that Pen's lease was not-validly created because a preexisting assignment of the land to Faima was not validly revoked. The trial court delayed voiding the lease, however, in order to protect lending institutions with pecuniary interests in Pen's business. Cross-motions to reconsider or for new trial were denied on May 9, 1994. This appeal came properly before this court on October 24,1995, with both parties represented by counsel.
DISCUSSION
Pen argues that: (1) the trial court factually erred in concluding that Faima possessed a valid assignment of communal land; (2) courts may not invalidate a lease approved by the Governor absent a showing of fraud in the procurement of the lease; (3) the trial court erred in reviewing the issues de novo, but instead should have treated the case as an appeal of an agency decision, giving proper deference to the agency's ruling; and (4) the trial court erred in limiting the power of the matai to change or revoke an assignment.
A. The Factual Validity of the Assignment to Faima
On appeal, the trial court's factual findings will not be reversed unless they are shown to be clearly erroneous. A.S.C.A. § 43.0801(b).
In the present case, Pen challenges the trial court's factual finding that Faima held an assignment interest in Lepine, stating that Faima was present during a family meeting where the intended lease was discussed, and implying that Faima would have objected at that time if he had actually possessed a valid assignment. Pen further asserts that Faima's claim is *13defective because the matai who purportedly conveyed the assignment to Faima was not in office at the time the assignment allegedly became effective. Finally, Pen asserts that Faima lived in Western Samoa for a period of time, and that he lived on land named Tutu whenever he was in American Samoa prior to 1980 when he actually took up residence on Lepine, indicating that Faima had no interest in Lepine until 1980 at the earliest.
Although Pen's view of the facts is one possible account, the trial court's findings are not clearly erroneous. The trial court made its decision based, in part, on a visual inspection of Lepine and its structures. Addressing specifically the argument that Faima would have objected to the lease if he actually had a valid assignment, Faima's testimony at trial and the opinion of the trial court both indicated that he did object. We have no reason to hold that a reasonable finder of fact could not have believed Faima's testimony.
To the assertion that the matai granting Faima's assignment was not in office at the time it was granted, there is evidence in the record that Faima had some interest in Lepine as early as 1931. Although Faima testified that he thought the assignment occurred in 1963 (even though the matai did not take office until 1970), the thrust of Faima's testimony is that he began using heavy equipment to work the land after it was assigned to him by the Lavata'i titleholder. Faima clearly did intend to testify that the assignment occurred, in chronology, after the matai took office. Again, we have no particular reason to question the trial court's finding, despite the fact that Faima testified to events that occurred more than 20 years ago, and his memory of them may consequently not have been precise.
Regarding Pen's assertions about Faima's absences from Lepine, we acknowledge that these factors may be relevant. However, in view of evidence that Faima cleared Lepine and worked the entire land mass in the 1930s, a reasonable finder of fact could readily conclude that Faima had important ties to Lepine prior to 1980, contrary to Pen's assertions. The trial court's finding of an assignment is, accordingly, not clear error.
B. Separation of Powers
Pen argues that the trial court's decision violates constitutional separation of powers principles by invalidating a lease of communal land, which was properly approved by the Governor in accordance with A.S.C.A. § 37.0221. We doubt that this argument is of constitutional magnitude, since it is founded on a regulatory power treated by statute, and not on the Constitution itself. '
The thrust of Pen's argument is, essentially, that the trial court could *14not alter land lease decisions made by the Governor unless fraudulently induced. The mere fact of the Governor's approving signature does not render a flawed lease impervious to legal challenge any more than it could transform a bill into law without constitutionally proper legislative approval. Furthermore, A.S.C.A. § 4.1040 provides for appellate review of a final administrative decision in a "contested case." In such cases, the Appellate Division may reverse or modify an agency decision if it is contrary to law or based on factual findings which are "clearly erroneous," or if it is otherwise arbitrary, capricious or abusive of discretion. A.S.C.A. § 4.1043-44.
Certain administrative functions are concededly beyond the reach of any judicial review because they are "committed to agency discretion by law." See Kenneth C. Davis, Administrative Law of the Seventies § 28.16 (1976). For instance, the determination of whether an alien should be deported according to existing immigration policy is a question of policy, committed to the Immigration Board, and not judicially reviewable on its merits. Farapo v. American Samoa Gov't, 23 A.S.R.2d 136, 142-43 (App. Div. 1993). Additionally, the determination of whether an alienation of land is improvident within the meaning of A.S.C.A. § 37.0203(c) is probably a question of policy, committed to the discretion of the Land Commission and the Governor, and ordinarily not reviewable by the courts. See Vaimoana v. Tuitasi, 18 A.S.R.2d 88, 92 (App. Div. 1991).
Pen has not made, nor can we think of, any serious argument that the Constitution or land lease statutes in any way commit the resolution of land title disputes to the Governor and the Land Commission by the force of law, thus insulating the Governor's decisions from judicial interference. The function of the Land Commission and the Governor in the approval of leases of communal land is to provide a check against improvident leases that would be harmful to the Samoan land tenure system, not to sit in judgment on land title issues. Vaimoana, 18 A.S.R.2d at 92. The statute does not devise a system where the Governor effectively has the right to reallocate property without regard to the preexisting rights of others in that property, and then to have those decisions immune from judicial review. The Governor's statutory authority to approve a lease between private parties presupposes that the lessee actually has the authority to enter into the lease in the first place.
C. De Novo Review
The present case was brought in the Land and Titles Division where the facts were reviewed de novo, not in the Appellate Division. The administrative decision did not concern a contested case within the meaning of A.S.C.A. § 4.1040, because Faima was not represented at the Land Commission hearings, and thus could not contest the lease.
*15Clearly, the Land Commission could not have made a decision regarding competing claims to the property if one of the claims was never presented. If the Land Commission arid ultimately the Governor had considered the validity of Faima's claimed assignment when deciding whether to approve Pen's lease, the Land Commission's decision would have been entitled to proper deference by an appellate court. In the present matter, however, the Land Commission never contemplated that collateral issue when approving the lease, and likewise never rendered an appealable judgment regarding Faima's claimed assignment. Appellate courts lack subject matter jurisdiction to consider issues that were not presented to the agency. First National Bank of St. Charles v. Federal Reserve, 509 F.2d 1004, 1006 (8th Cir. 1975).
As a matter of due process of law, the Land Commission should hold public hearings on proposed transfers of land, and give reasonable notice to interested parties. Vaimoana v. Tuitasi, 22 A.S.R.2d 1, 6 (Trial Div. 1992). Separation of powers principles do not prevent the judicial branch from voiding a lease approved by the Governor in violation of due process rights. Conversely, if Faima did have reasonable notice of the proceedings at the Land Commission but failed to challenge the lease and thereby preserve his property interest, he should be estopped from subsequently asserting his interest in the courts to the detriment of the lessor who has expended resources in reliance on the validity of the lease. See Mundy v. Arcuri, 267 S.E.2d 454, 457 (W.Va. 1980).
The trial court found that the "lease was executed and presented for gubernatorial approval, all without Faima's knowledge or consent." Pen v. Faima, LT No. 61-92, slip op. at 3 (Land & Titles Div. 1994). The record does not demonstrate that this factual finding is clearly erroneous. Failure by the trial court to conduct a de novo review of the facts would, therefore, have deprived Faima of a property interest without due process of law.
D. Matai Authority
The fundamental issue in this case involves the extent of matai authority to revoke an assignment of communal land to a family member. This issue brings the "twin cornerstones" of the fa'a Samoa into sharper focus:
The twin cornerstones of the Samoan way of life are communal land tenure and the matai system. Each is essential to the other. Without the matai system to administer it, the communal land system becomes anarchy. Without the communal land system, there is no reason for the matai.
Calliope v. Silao, 2 A.S.R.2d 1, 2 (Land & Titles Div. 1983).
*16In the present case, the matai's powers are, at least superficially, at cross-purposes with the protection of family communal land, since the circumstances involve an attempt by the matai to revoke an assignment of land held by a family member in favor of a long-term lease to be granted to a non-family member. The present facts bring a fundamental problem into focus, namely, the more power the matai retains, the more he is empowered to alienate or endanger family lands; and the more family lands are regulated and protected by law, the more the authority of the matai over family lands is weakened.
We approach this problem by a resort to the fundamental principles governing the application of Samoan customary law. The Revised Constitution of American Samoa, Article I, Section III states, in relevant part:
It shall be the policy of the government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and 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.
This language not only empowers the Legislature to enact measures protecting the fa'asamoa, but also adopts protection of the fa'asamoa as a constitutionally mandated policy goal. In this light, we should interpret statutes in a way that are protective of Samoan custom whenever it is possible to do so.
In the present case, the matai entered the lease with Pen without any family discussion, although there was some evidence that he mentioned his intention to do so at a family meeting. The trial court in this matter took the position that a matai is required to consult with the entire family when making the decision to lease communal land to a non-family member, where the lease would necessarily revoke an assignment of land to a family member. This holding gives rise to three issues: (1) whether or not the matai must consult with family members prior to entering a lease; or (2) whether a matai must consult his family before revoking an assignment of land; and (3) if so, whether the requirement of consultation merely means notice and an opportunity to comment, or a process whereby the family agrees to the proposed action.
1. Requirement of Consultation to Enter a Lease
Clearly, traditional Samoan custom requires a sa'o to consult with his *17family before dealing dispositively with communal land. Nevertheless, this court argued in Vaimoana, 18 A.S.R.2d at 91, that the land lease statutes effectively rendered this customary requirement unnecessary by failing to codify it. The Vaimoana court took note of Article I, Section III of the Revised Constitution, as well as the statutory directive that the "customs of the Samoan people not in conflict with the laws of American Samoa . . . shall be preserved," A.S.C.A. § 1.0202, but found the custom to be in conflict with the land lease statutes by virtue of the fact that it was not mentioned in the statutes.
Appellant errs, though, in arguing that because custom requires family consultation before the sa'o conveys communal land, courts must implement that custom. This argument falters because of the statutory phrase, "not in conflict with the laws of American Samoa." The statute provides for judicial preservation of customs "not in conflict" but not for those customs that are "in conflict." This provision authorizes the Fono, not the High Court, to set aside custom by statutes to the contrary.
In tins case, the Fono has provided by law for conveyances without an absolute requirement of family consultation, so the custom upon which appellants rely is "in conflict." Vaimoana, 18 A.S.R.2d at 91.
We think that the foregoing conclusion flies in the face of logic. The language of the statute does not specifically require family consultation, but neither does it specifically state that such consultation is no longer necessary. The statute, if anything, is merely silent on the matter, and hardly "in conflict" with the custom. The fact that the statute enacted additional checks and safeguards against the improvident alienation of land should in no way imply that the traditional checks are supplanted, particularly in light of statutory language which demands the preservation of customs which are "not in conflict with the laws of American Samoa," and constitutional language declaring it the policy of the government to protect Samoans "against alienation of their lands, and the destruction of the Samoan way of life."
There is no logical reason why customary family consultation cannot continue in a system where the approval of the Governor is also required for the leasing of native land. Although we have other grounds upon which to base our present decision, if we were forced to revisit this particular portion of Vaimoana, we would likely have overruled it, or at least limited it to its facts.
2. Requirement of Family Consultation to Revoke an Assignment
*18Regardless of whether a matai is required to consult his family before he enters a lease, certain circumstances demand that he do so when revoking an assignment of communal land to a family member, and that is what the lease effectively does in this case. Although communal land does not lose its communal character when assigned, see Tauiliili v. Moega, 3 A.S.R. 356, 357 (Trial Div. 1958), the assignee does receive certain traditional property rights according to Samoan custom, including the right to remain on the land for life, absent good cause for removal. Taesali v. Samuela, 3 A.S.R. 359, 361-62 (Trial Div. 1958); see also Malala v. Temu, 11 A.S.R.2d 137, 142 (Land & Titles Div. 1989). Good cause may include either a failure to render tautua (traditional service to matai and family), Leapaga v. Masalosalo, 4 A.S.R. 868, 872 (Appellate Div. 1962), or an overriding family purpose. Tiumalu v. Lio, 3 A.S.R. 176, 179-80 (Trial Div. 1955).
An assignment of communal land may only be revoked for an overriding family purpose if specific conditions are present:
An express or implied assignment of a communally owned house and appurtenant areas creates in the family member the right to continue beneficial occupancy until death, voluntary removal or authorized removal. Removal may be ordered by the matai only after:
a. A family meeting at which all partied 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.
Coffin v. Felise, 4 A.S.R. 14, 18 (Land & Titles Div. 1970). Although Vaimoana, 18 A.S.R.2d at 91, stood for the principle that family consultation is not required for a matai to lease communal property to non-family members (a doubtful proposition), family consultation is clearly required when doing so would mean revoking an assignment to a family member regarding the land to be leased.
3. The Meaning of Family Consultation
The issue arises as to whether the required family consultation means that the matai consider the opinions of all who want to express them and then make his own decision, or whether it means that the family exercises authority.
*19Governing by consensus is the Samoan way. Consensus is not democracy by ballot, where one side wins and the other loses. Rather, consensus governance is a system designed to promote harmony within the family by discussing issues and gradually melding opinions and wills so that in the end everyone involved is satisfied, and all objections are resolved, or at least withdrawn. As former Governor Peter Tali Coleman recently explained:
Our American legal system — which also operates in Samoa — is based on English jurisprudence as it has evolved over the centuries. It’s a system of conflict resolution which produces clearly identifiable winners and losers. Our Samoan culture, on the other hand, is based on thousands of years of the evolution of a Polynesian heritage of conflict resolution by consensus building. Whenever possible, we, as Polynesians, try to avoid conflict. When we can’t avoid conflict, we try to resolve it so everyone goes away a winner if at all possible.
Peter Tali Coleman, Peter Tali Coleman on the F.B.I. Report, SAMOA News, Aug 7.1995, at 10.
Samoan society and culture, although governed by hereditary rulers within families, is not autocratic or dictatorial. We hold, accordingly, that a matai must arrive at consensus in the traditional Samoan way before revoking an assignment of communal land based on the family purpose doctrine.
The trial court's judgment is affirmed. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486405/ | Order Rejecting Plea Agreement:
This matter was set for jury trial on April 10, 1996. The parties, however, sought a continuance of trial in order to present the Court their concluded plea agreement. This plea agreement, reduced to writing, includes the following:
Plaintiff will recommend that, as to Count 1, the Court, without entering a judgment of guilt, defer proceedings and place Defendant on probation upon such terms and conditions as the Court deems appropriate. Defendant understands that the Court is not bound to follow this recommendation but may, in its discretion, sentence
*21Defendant up to the maximum provided by law.
Upon inquiry by the Court as to the viability of this proposal, the parties simply submitted that such a disposition is not prohibited by statute or rule.
We decline to consider this proposal as an allowable disposition under applicable law. First, the territory's criminal law is codified. See A.S.C.A. §§ 46.3102-3104. Therefore, the parties' submission, to the effect that if it is not disallowed it is allowed, is invalid.1
Count 1 of the information charges the defendant with the offense of Assault in the 3rd degree, in violation of A.S.C.A. § 46.3522. This enactment provides that a person commits the crime of assault in the 3rd degree if he or she undertakes certain proscribed conduct. The authorized range of disposition for criminal conduct, including assault in the 3rd degree, is explicitly set out in A.S.C.A. § 46.1901. This enactment, which is couched in mandatory language, requires that the Court shall deal with criminal offenders in accordance with Chapter 19 of the Criminal Justice Act, "except for offenses defined outside [the Criminal Justice Act] and not in accordance with the classifications of this chapter [19] and not repealed, the term of imprisonment or fine that maybe imposed is that provided in the statute defining offense." The only exception to this general requirement is that contained in A.S.C.A. § 13.1024, which provides for the option of deferred proceedings, upon a plea of guilt or finding of guilt, in the context of a possession of a controlled substance charge, under Title 13.2 There is no parallel provision for deferred proceedings in the context of assault related prosecutions.
We conclude, and accordingly hold, that the parties' proposal is not an authorized disposition available to the sentencing court, and, therefore, reject the plea agreement as presented.
This matter is continued to April 25,1995, for trial setting if there no further plea agreement, consistent with this opinion, is arrived at by the parties.
It is so ordered.
A.S.C.A. § 46.3104 reads: "No conduct constitutes an offense or an infraction unless made so by this title, other applicable statutes, or the Uniform Village Regulations."
Cf. Criminal Procedure Act 1972 (Western Samoa), § 104, which gives the trial court the discretion, under certain circumstances, to "discharge [any defendant] without convicting him," where statute does not expressly provide a mandatory minimum penalty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486406/ | Order Denying Motion for Reconsideration:
The Petitioners have moved for rehearing or reconsideration following our denial of their petition for relinquishment. Petitioners basically allege error on two grounds. First, they allege that we failed to correctly weigh the facts in denying the petition. Second, they allege that in denying the petition, the court somehow violated the due process or equal protection rights of the natural parents. The petition for rehearing was unaccompanied by a memorandum of points and authorities. The motion came regularly for hearing on April 3, 1996, with counsel present. During the hearing, petitioners cited neither the record nor any statutory or case law in support of either contention.
Petitioners' attention is first directed to Judicial Memorandum No. 2-87,4 A.S.R.2d 172, 175 (1987). In that memorandum, the Justices pointed out the importance of the requirement in T.C.R.C.P. 7(b)(1) that every motion "shall state with particularity the grounds therefore." "This is especially important in the case of a motion for a new trial, since the purpose of requiring such a motion before an appeal is to avoid unnecessary appeals by *23giving the trial judge a chance to see the error of his ways." Judicial Memorandum No. 2-87, at 175. The importance of this has been reemphasized in recent opinions. See, e.g., Masaniai v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990); American Samoa Government v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 167 (Trial Div. 1995) (in press); Craddick Dev. Inc., v. Craddick, 28 A.S.R.2d 170 (Trial Div. 1995) (in press).
To meet this particularity requirement, a motion for new trial must normally be accompanied by a memorandum of points and authorities. See T.C.R.C.P. 7(b)(1) ("Each motion shall be accompanied by ... an appropriate memorandum or brief which concisely states the arguments supporting the motions and cites authorities on each point...."). This is particularly true where a party is going to assert a unique legal theory that was not raised at the original trial or hearing, such as the denial of constitutional rights alleged here. At a minimum, a party must cite the court to specific allegations of error, accompanied by legal citation where appropriate, at the hearing. Where a party does not cite specific instances of error, the motion for new trial or reconsideration shall be denied. In extreme instances, we may even treat the motion as a nullity, cutting off the party's right to further appeal.
Petitioners here have failed to meet the particularity requirement. Thus, we will deny their motion for rehearing or reconsideration on this ground. We would like to additionally point out, however, that we doubt petitioners' constitutional argument has any basis in the law. To assert that a parent has a constitutional right to waive his obligations to his child is tantamount to asserting that a parent has a constitutional right to shirk responsibility toward his child, to neglect or abandon his child, or even fail to make court ordered child support payments. These are the logical extensions of petitioners' assertion, and such a position is preposterous.
Having said that, we point petitioners' counsel to another of this court's recent pronouncements. In Interocean Ships, Inc. v. Samoan Gases, 29 A.S.R.2d 201 at 205 (Trial Div. 1996), the entire membership of the American Samoa Bar Association was put on notice that shoddy and unresearched work would no longer be acceptable. In case we were not clear, this pronouncement applies to motions for new trial or reconsideration. In making a motion for new trial, an attorney must do more than present the court with unresearched and unsupported conclusory assertions. See also In the Matter of the Matai Title Lolo, 26 A.S.R.2d 46 (Land & Titles Div. 1994). Failure to do so will subject the attorney to personal sanctions under T.C.R.C.P. 11. If an attorney wishes to present novel constitutional arguments to this court, he had best be prepared to support them with precedent or arguments to extend or change precedent. In the future, we suggest counsel heed this warning when he files a motion *24for reconsideration or any other motion before this court.
The motion for rehearing or reconsideration is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486407/ | Order Dismissing Contempt Citation:
We will use the opportunity of this case to clarify the interplay between two directives on arrest procedures.
On March 22,1996, at 2:00 p.m., at the public defender's request, the court issued an order requiring the commissioner of public safety and warden of the correctional facility to show cause why they should not be held in contempt of court for the failure of police or correctional personnel to bring Petelo Lolesio before the next sitting of the district court following his warrantless arrest, as prescribed by T.C.R.Cr.P. 5(c).
Facts
Lolesio was arrested without warrant on the night of March 21, 1996, a Thursday, and taken to the correctional facility. The district court sat Friday morning, March 22, but Lolesio was not there. Authorities at the correctional facility refused the public defender's demand tiiat he be brought before the district court that day. He was not formally charged with any criminal offense and was released from the correctional facility about 3:15 p.m. Friday, some 17 hours after his arrest.
Since neither issue was raised, we assume for our discussion that Lolesio was lawfully arrested and held for his own or the public's safety.
Discussion
T.C.R.Cr.P. 5(a) requires that "any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the next sitting of the district court." Lolesio claims that the commissioner and warden are guilty of contempt of court for the failure of the department of public safety personnel to comply with this rule. In turn, the commissioner and warden point out that A.S.C.A. § 46.0807(b), dealing with arrest without a warrant, states that "Nothing in this section may be so construed as to prevent the detention for not to exceed 24 hours of any person lawfully arrested by a police officer when the arresting officer deems the same necessary for the safety of the person arrested or the public."
*26“Court rules are subservient to statutes, and in case of conflict the statute... prevails...21 C.J.S. § 170, at 263 (1940 & Supp. 1985); ASG v. Falefatu, 17 A.S.R.2d 114, 119-21 (Trial Div. 1990), aff'd 20 A.S.R.2d 127 (App. Div. 1992). However, we read the two procedural directives in question, Rule 5(a) and § 46.0807(b), as serving different purposes. Rule 5(a) is meant to apply when a person is arrested and it is contemplated that he will be charged with a crime. Section 46.0807(b), on the other hand, contemplates the situation where a person is arrested and needs to be held for some period of time for his own safety or to protect the public safety, but will not be charged with a crime. Because the rules are not inconsistent, we interpret them according to the explicit language of each.
If a person is arrested and held to protect his safety or the public safety, he cannot be held longer than 24 hours, regardless of whether that time period expires on a weekday, weekend, or holiday. If a person is arrested and is going to be charged, the terms of Rule 5(a) make clear that the person may be held for longer than 24 hours if the next sitting of the district court is not within 24 hours. This would occur, for example, if a person is arrested Friday night and the court does not sit again until Monday.
Each rale, standing alone, is reasonable and does not violate a person's due process rights. It is reasonable to believe that a person lawfully arrested may need to be held up to the full 24 hours without formal prosecution, because he is endangered or poses a threat to public safety, even if the district court sits before then. There is no point in bringing a person before the district court who will not be charged. Nor is there any logic in releasing a person prior to 24 hours when he is still legitimately held for safety reasons, simply because the district court has sat within a shorter time frame.
However, if an arrestee is held for longer than 24 hours without being brought before the district court and charged, and if he can show that police personnel never intended to prosecute him, he has remedies for a violation of his due process rights. Contempt proceedings might also be appropriate in this situation. Otherwise, they are not.
The commissioner is, of course, ultimately responsible for compliance with § 46.0807(b) by police personnel. He can make a material difference with effective procedures for daily review and evaluation by higher authority of arresting officers' decisions and any continuing safety necessity to hold detainees under the 24-hour edict.
Order
*27Because Lolesio has neither alleged nor established any violation of the arrest, safety and time-limit criteria allowing him to be held in custody under § 46.0807(b), and Rule 5(a) is inapplicable to the present situation, the contempt citation is dismissed.1
It is so ordered.
We could also dismiss these proceedings for the lack of an affidavit in support of the order to show cause, as required by H.C.R. 114. In fact, we probably should not have issued the order in the first place for that reason. However, we chose to overlook this deficiency in view of the possible exigent situation when this proceeding was commenced and in the interests of providing the public defender and other criminal defense counsel, along with law enforcement authorities, definitive reference on the construction of Rule 5(a) and § 46.0807(b). We will not treat this basic oversight so leniently in the future. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486411/ | Order for In Camera Hearing with Confidential Informant:
I. INTRODUCTION
On December 21, 1995, plaintiff American Samoa Government filed an information charging defendants with unlawful production of the controlled substance ofmarijuana, A.S.C.A. § 13.1020(a), and unlawful possession of the same controlled substance, A.S.C.A. § 13.1022(a). On April 2, 1996, we denied the defendants' motion to conduct an in camera hearing with the government's confidential informant to determine whether his identity should be revealed to aid them in their defense. On April 12, 1996, the defendants moved to suppress the evidence obtained under the search warrant. This motion came regularly for hearing on May 2, 1996, with defendants and all counsel present.
H. FACTS
The facts are substantially as recited in our earlier order. See American Samoa Gov’t v. Samana, 30 A.S.R.2d 1 (1996) (Order Denying Motion for in Camera Hearing) [hereinafter In Camera Order], The focus of the most recent hearing was Police Officer Paulo Leuma's statement, in his affidavit to secure the search warrant, that the confidential informant had stated to Leuma that he had purchased marijuana from the defendants at their residence on December 2, 1995. Two witnesses testified that both defendants were at their relative's wedding at the precise time they were supposedly selling drugs to the confidential informant. Several other witnesses under subpoena were prepared to affirm this fact. One testifying witness declared that the vehicular driving time between the defendants' home and wedding place was 20 to 30 minutes. Both witnesses went on to state that the defendants were continually in their immediate or near presence for the entire weekend dining which the wedding, and the alleged drug sale, took place.
The assistant attorney general countered only with a written questionnaire from the defense attorneys to the confidential informant. The confidential informant substantiated Leuma's affidavit statement that the drug sale took place on December 2, 1995, at the defendants' residence. Because the defendants could not have been both at the wedding and at home selling drugs at the same time, there is clearly a problem with the date of the alleged drag sale.
*39III. DISCUSSION
Defendants seek to quash the search warrant because it is based upon erroneous information — namely, the fact that the confidential informant bought drugs from the defendants at their residence on December 2,1995. Even assuming that the testimony of the defense witnesses is true, however, and that the defendants were at the wedding on this date, the defendants have failed to satisfy the test for quashing a warrant. In order to quash a warrant, we must determine that "the magistrate or judge in issuing the warrant was misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth." United States v. Stanert, 7862 F.2d 775, 780 (9th Cir. 1985) (emphasis added). Thus, the fact that an affidavit contains a falsity is not enough to negate the probable cause underlying a warrant unless the affiant knew of or recklessly disregarded the falsity.1
The defendants have not shown this additional criterion. No testimony was presented at the evidentiary hearing regarding Leuma's veracity. Nor was any testimony presented indicating that Leuma recklessly disregarded the fact of the defendants' absence from their home on the date in question. On the other hand, the government has not offered any explanation for the problem with the date. Neither Leuma nor any other witness took the stand to explain why his sworn testimony, though admittedly hearsay, places the defendants at their house at a time on a day when they clearly were not there.
Although the defendants have not yet presented us with enough evidence to quash the warrant, they have plainly presented evidence in that direction. The person whom could best fill the gap in their facts concerning whether the false statement was made knowingly or recklessly is the confidential informant, whose identity remains unrevealed. "Where the disclosure of an informer's identity... is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the privilege [against disclosure] must give way." In Camera Order (quoting Roviaro v. United States, 353 U.S. 53, 60-61 (1957)). We concluded the In Camera Order by stating that if the defendants were "able to develop sufficient evidence which puts the . . . reliability of the confidential informant in question," we would again consider the question of holding an *40in camera hearing to determine whether the informant's identity should be revealed. Id. The defendants have now developed such evidence.
Therefore, the court will hold an in camera hearing with the confidential informant on May 10, 1996, at 11:00 a.m. All counsel must submit to the court questions that they would like the court to ask the informant by 4:00 p.m. on May 9, 1996. When we determine whether or not the confidential informant knows facts, which tend to show that Leuma knowingly or recklessly presented falsities in his affidavit for the search warrant, we will issue an appropriate order.
It is so ordered.
The defendants must also show that the falsity in the affidavit was material to the judge's determination of probable cause to issue the warrant. United States v. Ippolito, 774 F.2d 1482, 1484-85 (9th Cir. 1985). It certainly appears that the information regarding the December 2,1995, drug sale was material to the judge's determination of probable cause in issuing the warrant in question, though we need not determine the issue at this time. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486412/ | Opinion and Order:
Plaintiff Patea family brought this action to evict the defendant Liu family from certain land in the Village of Vaitogi, American Samoa, and to quiet *41title to this land in the Patea family as its communal land. The immediate impetus for the action was the burial of a Liu family member on the land.
The trial lasted several days, with members of both families and their counsel present. We heard testimony on November 13,14,15 and28,1995, and concluded by visually inspecting the land on February 21, 1996.
The land consists of approximately 1.785 to 1.84 acres and is variously known as "Taanoa" and "Fanua Tanu." Our inspection visually comported with the copies in evidence of surveys, which were made in 1926 and 1993, and a larger map showing the land and structures in the surrounding area. Precise boundaries with neighboring lands are not presently at issue.
During the course of the trial, we heard extensive testimony about both the Patea and Liu families: sa'o, or family head, title and blood relationships; guesthouse sites and burial grounds; rank and status in the village; and actual use and possession of the land at issue. We have studied the evidence at length and find that actual use and possession, coupled with certain other factors, are determinative of the title question.
Based on the evidence, we are persuaded that the persons who most recently and permanently lived on the land were Patea Toli and Liu Utuutu, both deceased. Patea Toli, who was apparently over age 100 when he died in 1977, outlived Liu Utuutu by a substantial margin. Liu Utuutu may have died as far back as, or even before, 1931, when Liu Togi ascended to the Liu title. However, Patea Toli moved elsewhere well before his death, by at least 1967, probably due to his age and declining health.
Even though Liu Togi did not live on the land, the Liu family continued to use the land for various family purposes both before and after Patea Toli moved out, up to the present time. Liu Togi, who died in 1978, is buried on the land. So is Liu Iole, who succeeded to the Liu title in 1979 and whose burial in 1993 spawned this action. No Patea family members or other persons are buried there.
The Patea family was also active on the land. For example, after he returned from Hawaii and his investiture in the Soa title in 1967, plaintiff Soa T initali, a Patea family member, cultivated portions of the northern side of the land and erected at least temporary Samoan structures there. He also permanently resides on adjacent land to the north, where he began construction of a guesthouse in 1993. One comer of the guesthouse, which is now substantially finished, appears to encroach upon the land. Soa *42Tinitali is the brother of Patea Tinitali, who succeeded to the Patea title in 1979. Both claimed use of this guesthouse, but the Soa and Patea titles are independent, and the building was erected as a Soa guesthouse.
Patea family members also testified that the village hierarchy recognizes the Patea family as having pule, or control, over the land. Soa Tinitali stated that he was asked and gave permission to create a cricket malae, or ground, on the land for village use. Both he and Patea Tinitali asserted that the Patea family is responsible for the cleanliness of the land. Jack Liu, on the other hand, declared that he authorized the cricket malae and the Liu family is accountable for the maintenance of the land.
The answer to this puzzle is revealed by events in an earlier era. In Patea v. Auau, HC No. 9-1926, apparently decided in 1927, this court declared that as between Patea and Auau as contenders, Patea held authority over the same land now at issue. Patea Toli lived on the land then, but interestingly did not testify at that trial. Liu Utuutu had lived on the land, but at that time was staying in Village of Pago Pago, because he was ill, and also did not testify. Clearly, however, both Patea Toli and Liu Utuutu, and their predecessors, had lived on the land for at least 30 years and probably longer.
The Patea and Liu titles are independent, but despite some contrary assertions, the families are blood-related. Patea Toli was the son of Noa. Noa's father was a Liu family member and his mother was a Patea family member. Certainly, the two families lived and worked compatibly together when they shared living arrangements on the land and other mutual family interests. Patea Toli actually lived with Liu Utuutu in a permanent Liu house on the land, until he later had his own smaller house nearby.
We are convinced, under the evidence as a whole, that the Liu family preceded the Patea family on the land, and that the Patea family used the land at the Liu family's invitation. Accordingly, as between the Patea and Liu families, we find that the Liu family has the superior right to the land and declare the land to be the communal land of the Liu family. The complaint is dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486413/ | Order on Motion to Dismiss:
The defendant in this matter is charged with assault second, a Class D felony; unlawful use of a weapon, a Class D felony; and unlawful possession of a firearm, a Class A misdemeanor. The affidavit in support of the initiating complaint filed with the District Court alludes to the defendant's unlawful possession of a handgun, his discharging it at an occupied vehicle, and his pointing it at the face of an occupant of the vehicle. Against this background, the prosecuting attorney has moved to dismiss the complaint on the conclusory assertion that dismissal would be *44"in the interests of justice." The moving papers further state that "the motion is at the request of the complaining witness."
While the prosecuting attorney has almost unfettered discretion to decide whether or not to prosecute a case, the court has, under T.C.R.Cr.P. 48(a), the discretion to decide whether or not to grant a motion to dismiss a criminal complaint. As a federal court said with regard to the parallel federal rule, F.R.C.P. 48(a): j
The Attorney General of the United States, as its chief legal officer, has the authority and the duty to exercise control and supervision of all criminal proceedings and civil suits to which the United States is a party. . . . Accordingly, his judgment, or more correctly, that of the members of his staff who are in immediate charge of the matter, that a prosecution should be abandoned on the ground that the available evidence is insufficient to make out a prima facie case against one defendant, and requires a shift in theory from that presented to the grand jury as to the other defendants as to whom there is a question of the sufficiency of the evidence to establish the charges beyond a reasonable doubt, is entitled to great weight. His recommendation gains added force, aided as it is by the presumption that he is acting in good faith and in the proper discharge of his duties, but it is not conclusive upon the court; otherwise there would be no purpose to Rule 48(a), which requires leave of Court to enter the dismissal. However, to overcome the force of his recommendation, it must clearly and convincingly appear that the public interest requires its refusal.
United States v. Greater Blouse, Skirt & Neckwear Contractors Ass’n, 228 F. Supp. 483, 486 (S.D.N.Y. 1964). Thus, because the prosecuting attorney is supposed to act in the public interest, the court can deny a motion to dismiss where it determines that the motion is not actually in the public interest.
On information supplied, it is hardly apparent that dismissal of the complaint in this matter would be consistent with the public interest. Rather, refusing to prosecute someone accused of brandishing and firing an illegal firearm simply because the complaining witness so desires, seems to serve only the interests of the defendant and the complaining witness. It *45goes without saying if the complaining witness’s desires run contrary to the public interest, the public interest must prevail. This is certainly true where a complaining witness wishes a prosecution, but the prosecuting attorney has determined that it is not in the public interest to pursue the prosecution.
In order to determine what best serves the public interest, the court can require the prosecuting attorney to disclose his reasons for wishing to dismiss the case prior to a ruling thereon. Greater Blouse, 228 F. Supp. at 486; 21 Am. JUR. 2d Criminal Law § 516 (1981). As the court is in this instance unable to make an informed decision on the extent of the showing made, the prosecuting attorney will be required to reveal the underlying basis supporting the motion.
Therefore, the Clerk of Courts will calendar the motion for hearing and notify the parties accordingly.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486415/ | Decision and Order:
This dispute involves a certain parcel of land located in Faga'alu known as "Utulau-Masa" (hereinafter the "land"). Plaintiff Starr Schuster (hereinafter "Schuster") claims that the land is rightfully the individually owned land of the estate of her late grandfather, Afoa Fa'asuka Lutu (hereinafter "Fa'asuka"). The defendants, on the other hand, claim that the land is the communal property of the Afoafouvale family.
Defendant Afoa M. Lutu (hereinafter "Afoa") is the senior matai of the Afoafouvale family of Utulei and Fagatogo; he attempted to lease a part of land to the defendants Augustine and Patricia Grey (hereinafter the "Greys") for a residential site. The Greys are members of the Afoafouvale family, as *52is Schuster. This matter arose upon Schuster's application to enjoin the Greys from building on the land. Schuster contends that Afoa, not being a descendant of Fa'asuka, has no say or pule with respect to the land.
Initially, an evidentiary hearing was held on May 3, 1993, upon plaintiffs application for a preliminary injunction to enjoin Afoa from any further dealings with the land.1 We denied the application. Following that hearing, the parties made tibe requisite appearances before the Office of Samoan Affairs, in accordance with the requirements of A.S.C.A. § 43.0302. The Secretary of Samoan Affairs subsequently certified an irreconcilable dispute between the parties to the Land and Titles division, and, hence, the matter is now before us.
DISCUSSION
Schuster's position is principally grounded on her construction of a certain deed that she recently discovered at the Territorial Registrar's Office, where she is employed. The deed, which bears an execution date of August 18, Í924, declares the conveyance of a certain plot of land in Faga'alu by "Savea of Matu'u" to "Afoa of Fagatogo," for the recited consideration of $10. The instrument contains stock conveyancing language, including the following: "To have and to hold the granted premises ... to the said Afoa, his heirs and assigns, to his and their own use and behoof forever." On the basis of this language, Schuster claims individual ownership of the land, to the exclusion of the rest of the Afoa communal family. She contends that the grant is limited to the grantee Afoa personally and the heirs of his body and that the Afoa titleholder at the time was Fa'asuka, her grandfather.
Schuster's construction, however, is not borne out by the facts. The land has never been occupied by any of Fa'asuka's descendants; rather, the land has been exclusively occupied by the descendants of Fa'asuka's half-sister, Ana Afoa (hereinafter "Ana"), the Grey's ancestor. Family history as related by Afoa is that even before the deed had ever come into being, and even before Fa'asuka had become their family's titleholder, the land had been customarily acquired by a previous Afoa titleholder, Afoa Molio'o, fromhis kin Savea, for the use of his daughter Ana's children. Afoa further testified that Ana's son Aukuso Coen (the Greys' maternal grandfather) had actually settled the land after acquisition, around the turn of the century.
*53We accept the family history according to Afoa as accurate, and so find. For one thing, the resulting assignment, or traditional appointment, of the land by Afoa Molio'o to Ana's descendants has been conspicuously demonstrated not only by the exclusive use of the land by Ana's descendants, but also by the very apparent deference that such exclusive use has been accorded from the rest of the Afoa family, including Fa'asuka's descendants, over several generations. Additionally, we are satisfied on the evidence that following Fa'asuka's subsequent succession to the matai title Lutu, attached to the village of Fagatogo, Fa'asuka lived in Fagatogo and left the land entirely to Aukuso Coen's use. Furthermore, the evidence reveals that Afoa's immediate predecessor-in-title, Afoa Atapuai, quite obviously viewed the entitlement of Ana's descendant's as exclusive by directing them to sign their own separation agreements and building permits pertaining to the various homes they erected on the land. The evidence regarding the use and occupation of the land is very plainly antithetical to plaintiffs, somewhat singularly held, claim to individual ownership.
In light of the foregoing, we construe the deed as a conveyance between two Samoan families through their respective matai. The deed was entered into between "Savea" of Matu'u and "Afoa" of Fagatogo, not between the Savea family on the one part, and Fa'asuka the individual on the other.2 Given the Samoan realities of the time, the most plausible reading of the deed is that it was an inter-family conveyance. In 1924, the year of the deed, that which we know today as individually owned land was but a notion in the interstices, as yet to be developed by case law.3 We doubt that the concept of individual ownership could even have been in the contemplation of the parties at the time. W e find it more consistent with the realities of the day that the parties to the conveyance intended no more than the achievement of a formal memorialization of a pre-existing customary designation of communal family land for the use of a particular branch of the Afoa family, rather than an outright grant to Fa'asuka in individual ownership. We find further support for this conclusion by looking to the Samoan version of the public notices posted by the Territorial Registrar of Titles in anticipation of recording a conveyancing instrument. The Samoan *54version of these notices to the community at that time allude to a transfer of land in Faga'alu between "Savea ma lona aiga i Faga'alu . . . [ma] Afoa [sic] Fagatogo ma lona aiga." Emphasis added. These public notices ostensibly advised the non-English speaking members of the community about a grant between Savea and his family one the part, and Afoa and his family, on the other part. We view the Samoan version of these public notices as being more in tune with, and hence a testament to, the Samoan realties that then endured.
CONCLUSION & ORDER
We accordingly construe the 1924 deed as a grant from the Savea family to the Afoafouvale family, reading the deed's reference to "Afoa" as reference to the Afoafouvale family's senior matai at the time, who, as matai, held family land in trust for his communal family. Conversely, we reject Schuster's contention that the deed's reference to "Afoa" refers to Fa'asuka the individual, finding no basis to sustain her claim. We further construe the succeeding word "heirs" as appearing in the 1924 deed as meaning "heirs-in-title" to the matai title Afoafouvale.
We conclude, and so hold, that the land Utulau-Masa is the communal property of the Afoafouvale family that was assigned by Afoa Molio'o for the use and benefit of the descendants of Ana Afoafouvale; subject, however, to the pule of the senior matai of the Afoafouvale family,4 and further subject to traditional obligations of tautua.5
Schuster’s application for injunctive relief is, therefore, denied. Judgment shall accordingly enter in favor of the defendants.
It is so ordered.
Pursuant to T.C.R.C.P. 65, incorporated by T.C.R.L.T. 5, the evidence earlier received becomes part of the record upon trial on the merits.
It is trite law that a matai holds family lands as trustee for the benefit of the family.
For an interesting historical sketch on the development of individually owned land in American Samoa, see Leuma v. Willis, 1 A.S.R.2d 48 (Land & Titles Div. 1980).
Although the matai may assign and parcel out family land, his pule over such assigned property is not thereby terminated. Pisa v. Solaita, 1 A.S.R. 520 (1935); Mailo v. Fuamaila 1 A.S.R. 449 (1931); Levu v. Maluia, 1 A.S.R. 197 (1909); Toleafoa v. Tiapula, 7 A.S.R.2d 117 (Land & Titles Div. 1988), aff'd 12 A.S.R.2d 56 (Appellate Div. 1989).
See Toleafoa v. Tiapula, 7 A.S.R.2d 117 (Trial Div. 1988), aff'd 12 A.S.R.2d 56 (1989). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486417/ | Order Denying Motion to Stay Judgment:
*64CURRENT JUDGMENT EVENTS
On February 6, 1996, the court voided and set aside the registration by Groshe, as the Territorial Registrar, of the matai title Mulitauaopele in Ah Ching's name, returned the process of selecting a successor to the title to the family for further deliberations, and declared Ah Ching ineligible to hold the title. The Clerk of the Court entered the opinion and order on the same day.
Groshe and Ah Ching filed separate and timely motions for reconsideration or new trial. The Court regularly heard these motions on March 25,1996, and denied them on April 3,1996. Groshe and Ah Ching then filed separate and timely notices of appeal.
On June 4, 1996, Ah Ching moved to stay enforcement of the judgment pending appeal, without bond, and requested an expedited hearing. The court granted the expedited hearing and regularly heard the motion on June 7,1996. Groshe joined in the motion at the hearing. Ah Ching, his counsel, and Groshe's counsel were present. Plaintiffs and their counsel were not present.
DISCUSSION
Procedurally, an appellant should ordinarily first seek a stay of judgment in the trial court. A.C.R. 8(a). Ah Ching, joined by Groshe, have correctly followed this mle. Thus, we will substantively act on and, for the reasons stated below, deny their motion.
Statutory guidance is found in A.S.C.A. § 43.0803 as follows:
Pending the hearing and determination of an appeal, execution of the final judgment or order of the High Court shall not be stayed unless the appellate, trial, or land and titles division, or Chief Justice, orders stay for cause shown and upon such terms as it or he may fix.
The trial court may in its discretion grant or deny such motions. See T.C.R.C.P. 62(b), (d).
The standard for deciding whether to stay a non-monetary judgment takes into account two principal factors: (1) the likelihood of success on appeal, *65and (2) the balance between the hardships that (a) the party losing at trial, should he prevail on appeal, may suffer before the appeal is decided if a stay is denied, and (b) the party who prevailed at trial may sustain if a stay is granted. Asifoa v. Lualemana, 17 A.S.R.2d 10, 12-13 (App. Div. 1990); In re Matai Title Mulitauaopele, 17 A.S.R.2d 71, 73 (Land & Titles Div. 1990); Asifoa v. Lualemana, 17 A.S.R.2d 100, 102 (App. Div. 1990). The impact of a stay on the public interest may also come into play. Asifoa, 17 A.S.R.2d at 102.
Success on Appeal
We assess the likelihood that either Groshe or Ah Ching will prevail on appeal as improbable.
We held that Groshe improperly acted when she followed the Attorney General's advice to register the title in Ah Ching's name, which was based on the only other remaining contender's death, and effectively deprived by default the decedent's supporters from promoting another qualified person in the family.
We also found that although his mother was a U.S. National, Ah Ching was disqualified by reason of his birth in Western Samoa of parents who then had permanent residential ties to that foreign country. See A.S.C.A. § 1.0403(b). Ah Ching, supported by Groshe, raised but did not truly develop constitutional issues regarding this finding. However, the Appellate Division has already ruled that those issues as asserted are without merit. In re Matai Title I'aulualo, 29 A.S.R.2d 131 (Appellate Div. 1995).
The issues on appeal will essentially deal with questions of law. A judgment is commonly stayed when the trial court either has applied novel legal principles to situations in which the correct decision may be a close question or has applied settled legal law to situations about which reasonable persons can differ. Asifoa, 17 A.S.R. at 12. In this case, we do not think that our decision comes within either of these or similar characterizations.
Balance of Hardships
The balance of hardships, or equities, presently favors plaintiffs.
The usual appeal in a matai title case is fact-oriented and, given the clearly erroneous standard applicable to preponderance of evidence issues, *66A.S.C.A. § 43.0801(b), is unlikely to result in reversal. Asifoa, 17 A.S.R.2d at 102; In re Matai Title Mulitauaopele, 17 A.S.R.2d at 73, 74. However, a stay is often the better option, as time tends to heal family divisions inevitably existing when the court is called upon to select a successor matai. See discussion in In re Matai Title Mulitauaopele, 17 A.S.R.2d at 73.
This case, however, is atypical in material respects. Groshe is involved as a public official, not as a title claimant or objector. She may be somewhat embarrassed but certainly not incurably hurt, without a stay, should she win her appeal.
Ah Ching will be perpetually harmed, without a stay, if the successor to this title is selected while the appeal is pending and the trial court decision is eventually overturned. However, he is not imminently threatened with that long-term harm.
Plaintiffs, and more significantly the extended Mulitauaopele family, will be effectively deprived of meaningful participation in deliberations that could lead to a consensus selection of the next titleholder before the decision on appeal, if a stay is granted. Ah Ching asserts, and Groshe in her official capacity confirms as a matter of public record, that plaintiff Liutoa Lino Seumanu has offered to register the title in his name over objection.1 Time will tell whether this turn of events eliminates the possibility of a consensus selection and embroil the family in another round of time-consuming and expensive legal proceedings. However, the family will continue to deliberate, within or without the forthcoming dispute resolutions process formally before the Secretary of Samoan Affairs, pursuant to A.S.C.A. § 43.0302. Ah Ching can participate either directly or through representatives in these ongoing negotiations. This process will probably consume much, if not all, of the period of appeal before a title successor is selected.
*67On balance, we think that the importance of continuing family deliberations on the successor to the title, free of the requested stay, presently outweighs the harm to Ah Ching and certainly to Groshe.
Public Interest
Public interest in the preservation and integrity of the matai system is a factor in this case. See Cession of Tutuila and Aunu'u (April 17, 1900); Cession of Manu'a Islands (My 16,1904); Rev. Const. Am. Sam. art. I, § 3 (My 1, 1967). The courts must be ever protective of the Samoan way of life.
However, the courts have recently had occasion to consider the matai qualification statute, A.S.C.A. § 1.0403(b), challenged by Ah Ching in several other cases and have made it abundantly clear that only the Legislature of American Samoa can properly undertake any reform of the statute. See In re Matai Title I'aulualo, 25 A.S.R.2d 116 (Land & Titles Div. 1994), aff'd 29 A.S.R.2d 131 (App. Div. 1995); In re Matai Title Patea, 25 A.S.R.2d 139 (Land & Titles Div. 1994). The Legislature must be equally alert to assure it enacts laws that are not violative of the matai system.
ORDER
The motion to stay the judgment is denied.
It is so ordered.
Ah Ching's claim is unverified. We point out that if the facts relied upon for a stay are subject to dispute, the motion must be supported by an affidavit or other sworn statement. A.C.R. 8(a). But for the public records at the Territorial Registrar's Office, which we ascertained only on our own initiative, Ah Ching's factual contentions regarding the new registration offer and objection would certainly be disputable. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486418/ | Opinion and Order:
This action concerns the status of the dispensary site in the Village of Amouli, American Samoa.
On May 20, 1996, plaintiff Faleafaga Peni ("Faleafaga"), who is the sa'o, the senior matai or chief, of the Faleafaga family, brought this action to declare the dispensary site to be his family's communal land and to permanently enjoin defendant American Samoa Government ("ASG") and the other defendants from using the dispensary site without his or successor sa'o's permission. The court issued a temporary restraining order preventing defendants from proceeding with the imminent ground breaking ceremony and construction of a new building on the dispensary site until further order of the court.
The order to show cause for a preliminary injunction came regularly for hearing on May 31, 1996. The immediate issues were then joined by defendants' answer, counterclaim, and third party complaint, and by intervenor's appearance without objection. After the hearing commenced, the court invoked T.C.R.C.P. Rule 65(a) to consolidate the trial on the merits with the preliminary injunction hearing. Evidence was received on May 31 and June 4, 10, 11 and 12, 1996. All counsel were present throughout the proceedings. *70Since this action relates to a controversy over claimed communal land, the court also raised the jurisdictional absence of the certificate of irreconcilable dispute, issued by the Secretary of Samoan Affairs, under the mandate of A.S.C.A. § 43.0302. At the conclusion ofthe evidence, all parties stipulated to waive this requirement. Because the parties are neither contesting the communal nature nor competing for ownership of the reversionary interest in the dispensary site, the court accepts the stipulation and will decide the issues on their merits.
DISCUSSION
In February 1990, Hurricane Ofa struck American Samoa and essentially obliterated ASG's dispensary on a one-quarter acre site in Amouli, among the extensive damage the hurricane caused. Pursuant to a deed of the site, ASG had operated the dispensary there beginning no later than April 1923. ASG added nurses' quarters to the site some time later. However, this building was extensively damaged in the hurricane of 1966 and has remained unoccupied by the dispensary staff, at least as living quarters, from then until the present time. Members of the Faleafaga and Paolo families of Amouli also continued to use the cultivated products of the land, respectively east and west of a hedge across the middle, as they had done in pre-dispensary times. No others made use of the site after the dispensary became operational.
After Hurricane Ofa, ASG resolved to replace the dispensary facilities. The U.S. Government earmarked federal grant fluids for this project, totaling about $560,000, partially in 1993 and the balance in 1995. ASG has completed the design work for the new facilities, enlarged to replace both old dispensary structure and muses' living quarters and occupy the entire dispensary site. Defendant United Constructor, Inc. has been, or is about to be, contracted to construct the new facilities at a price of about $470,000.
In April 1993, ASG representatives met with Faleafaga and other Amouli villagers to discuss the dispensary reconstruction program. Faleafaga then first learned that the 1923 deed of the dispensary site to ASG was signed by Utu, without using any given name, and not by his sa'o predecessor, and that ASG held the view that the dispensary site was now ASG land and was originally owned as communal land by the Utu family of Amouli.
Faleafaga embarked on a campaign to attain recognition of the east side of the dispensary site as the Faleafaga family's communal land. When his discussions with ASG representatives failed, and since he was physically *71incapacitated, he designated third party defendant Alamoana Mulitauaopele ("Alamoana"), a family member, as his attorney in fact to deal with the matter. Alamoana, on Faleafaga's behalf, obtained a survey of the Faleafaga part of the site and offered to register the surveyed area, pursuant to the title registration laws, A.S.C.A. §§ 37.0101-37.0120. The Territorial Registrar issued a certificate of registration of the title to this area as the Faleafaga family's communal land on May 19, 1994. The stage was thus set for this action, precipitated by ASG's announced construction date.
Unfortunately for Faleafaga, the title registration of the east side of the dispensary site is invalid. "Only the senior matai of a Samoan family has the authority to request a survey of communal property of that family." A.S.C.A. § 37.0102(d). This language is unconditional and unequivocal; no exceptions. Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles Div. 1988). The sa'o cannot delegate this authority. Poumele v. Ma'ae, 2 A.S.R.2d 4, 5 (App. Div. 1984). This legal result, however, does not settle the issue of communal land ownership in this action.
Although the sa'o title Utu was vacant during the period of Faleafaga's efforts, and still is, no member of the Utu family objected to Alamoana's purported title registration on Faleafaga's behalf, and no member has intervened in this action to claim the dispensary site as the Utu family's communal land. A member did testify that the entire dispensary site is the Utu family's communal land. He essentially based this testimony on the premise that because Utu is the highest ranking matai in Amouli, and because both Faleafaga and Paolo, as well as members of several other Amouli families, are blood-related to the Utu family, most, if not all, lands in Amouli, including the dispensary site, are the Utu family's communal lands. Faleafaga and Paolo's son disputed this conclusion and asserted that despite the blood connection, their and the other Amouli families and their sa'o titles are distinct from the Utu family and own separate communal lands.1 Decisions of this court support the Faleafaga and Paolo viewpoint. See Faleafaga v. Utu, LT No. 23-84, slip op. (Land & Titles Div. May 9, 1984), aff'd Utu v. Faleafaga, AP No. 23-84 (App. Div. April 4, 1985) (remanded to memorialize a survey); Utu v. Paolo, 23 A.S.R.2d 22 (Land & Titles Div. 1992), aff'd Paolo v. Utu, AP No. 26-92, slip op. at 1 (April 5, 1994).
*72Based on the evidence as whole, including but not limited to the Utu family's inaction in the attempted title registration and this proceeding and unconvincing testimony by the Utu family member, we find that the dispensary site encompassed communal lands of the Faleafaga and Paolo families in 1923 and at all times since then.
In 1923, ASG was administered by the U.S. Navy. Prior to April 2, 1923, ASG and the village matai agreed upon locating a branch dispensary of the Samoan Hospital in Amouli. The matai were led by Utu Suaese, as the highest ranking chief in Amouli. The matai included Faleafaga Siai and Paolo, perhaps Paolo Leuila, although his title registration goes back to 1906. The matai selected the dispensary site on and split between the communal lands of the Faleafaga family, currently named Mata'ili'ili, and of the Paolo family, now called Amoamoniu. The dispensary building was constructed, mostly on the Faleafaga family's portion of the site. The muses' quarters added later was located on the Paolo family's side. The hedge delineates the boundary between the two families' properties.
On March 22, 1923, the village matai personally positioned pins at the comers or points of the dispensary site, and the ASG surveyor determined the metes and bounds of the legal description. The Faleafaga and Paolo sa' o, or family members representing them, participated in this exercise. On April 2,1923, the deed was executed to transfer title to the site. Utu Suaese, using only his matai title Utu, as grantor, and Governor Edwin T. Pollock and his successors in office, as grantees, representing ASG, signed the deed. The deed was recorded with the Registrar of Titles (now the Territorial Registrar) the same day.
By the deed, Utu Suaese, representing the matai and families of Amouli, including Faleafaga and Paolo, in consideration of one ($1.00) dollar, conveyed a fee interest in land to ASG to be "used for the purpose of maintaining thereon a branch dispensary of the Samoan Hospital." A handwritten page in the Registrar's file includes the statement "Land to revert on giving up of dispensary." Clearly, the parties intended to transfer title to the land to ASG, provided that ASG operated a dispensary on the site and did not abandon that operation. We also find that Utu Suaese represented the Faleafaga and Paolo families under the deed provision retaining the use of cultivated products.
Faleafaga and Paolo questioned certain formalities in the deed execution in their present effort to void the deed and require ASG to enter a new *73agreement with consideration at current market values for any further use of the dispensary site.
First, they noted the absence of Utu's given name, but in the era when the deed was executed, matai commonly used only their matai name when signing legal documents. The Cession of Tutuila and Aunuu in 1900 and the Cession of the Manu'a Islands in 1904 are prime examples. Next, they pointed out the lack of any name of the land in the deed, but again this omission was commonplace during the era involved.
They sought to cast doubt on Utu Suaese's authority because he registered his matai title in 1924, and § 79.8 of the Code of Regulations and Orders for the Government of American Samoa (1937) ("1937 Code") prohibited the use of an unregistered matai name. The same complaint could be made of Faleafaga Siai, who did not register his matai title until 1925. If Paolo Leuila, who registered his matai title in 1906, was no longer in office in 1923, the next registered Paolo was Paolo Faaoli in 1943. It is unclear, however, when the prohibited use of an unregistered matai name was enacted. Registration of matai names was first decreed in 1906 by Regulation No. 8.1906, but the Regulation did not contain the prohibition. In any event, as important as formal matai registration is to the overall integrity of the matai system, § 79.8 only provided criminal sanctions. While judicially ordered consequences might be in order in some other situations, it would be inappropriate to vitiate 73 years later a legal document executed by parties who, in the absence of contrary evidence, apparently acted in good-faith belief in each other's authority.
Lastly, noting the survey on March 22 and deed execution only 11 days later on April 2, Faleafaga and Paolo alleged failure to comply with notice prerequisites before the deed was signed. In the first place, while alienation of communal land was prohibited in 1900 by Regulation No. 4-1906 and was still severely restricted by amendment to this Regulation in 1921, conveyances to the U.S. Government or ASG for governmental purposes were excepted. 1937 Code § 71.2. In 1901, land acquisition for public purposes was expressly covered in detail under Regulation No. 2-1901. 1937 Code § 72. When transfer agreements were entered into with land owners, the land was deeded to the Governor as the governmental representative, without any separate notice requirement. 1937 Code § 72.2. When no agreement was reached, a condemnation-type procedure, including notice requirements, was spelled out for land acquisitions. 1937 Code §§ 72.3-72.17. Thus, since an agreement was reached, no special *74notice requirements applied. Moreover, the participating village matai had actual knowledge of the transaction.
The evidence does not indicate any legal impediment to the creation and continuing existence of ASG's title interest. Thus, ASG acquired, and still owns, a valid fee estate in the dispensary site, subject to termination upon a condition subsequent. Further, as between the parties to this action, the Faleafaga and Paolo families own the reversionary interest in the dispensary site as their communal land, respectively the east and west side of the hedge within the site, should ASG abandon the dispensary operation.
Although Paolo did not object to Alamoana's attempted title registration of the east portion of the site on Faleafaga's behalf, we observe that the surveyed boundary between the east and west sides of the site in the Faleafaga registration survey does not coincide with the hedge. However, the boundary between the Faleafaga and Paolo portions of the site was not joined as an issue in this action. Thus, while perhaps persuasive, our findings related to the hedge do not foreclose later resolution of any differences that may arise between the Faleafaga and Paolo families about the boundary between their portions of the site. Likewise, since the Utu family is not a party to this action by joinder or intervention, our findings on ownership of the reversion, however persuasive, do not preclude future litigation on the ownership of the dispensary site as between the Faleafaga, Paolo, and Utu families.
Finally, as between the parties to this action, the correct survey of the dispensary site is shown in the Amendment Survey of Amouli Dispensary, Drawing No. 2273, approved by ASG's Land and Survey Division on May 13, 1994, which was admitted in evidence as Exhibit No. 24.
ORDER
1. The 1923 deed is valid. ASG owns the fee estate in the dispensary site in Amouli, subject to termination upon the condition subsequent of ASG's abandonment of the dispensary operation on the site.
2. The Faleafaga title registration is invalid, and the Certificate of Registration is voided. As between Faleafaga and Paolo on one hand and ASG and the other defendants on the other hand, however, the Faleafaga *75and Paolo families own the reversion in the dispensary site as communal land. The Faleafaga family owns the east portion and the Paolo family owns the west portion of the site. For present purposes, the north-south hedge through the site marks the boundary between the Faleafaga and Paolo properties. Faleafaga and Paolo may offer to register the title to then-portions.
3. Faleafaga and Paolo are not entitled to any permanent injunction against ASG and the other defendants. The application for a preliminary injunction is denied. The temporary restraining order is set aside.
4. ASG and the other defendants may immediately proceed with construction of the new dispensary facilities on the site.
5. No monetary damages will be presently awarded.
6. The parties shall pay their own respective attorney's fees and costs.
7. The Territorial Registrar shall register the judgment and the Amendment Survey to Amouli Dispensary, Drawing No. 2273, of May 13, 1994. The Clerk of Courts shall transmit a certified copy of the judgment and survey to the Territorial Registrar for this purpose.
Judgment shall enter accordingly.
It is so ordered.
Faleafaga, Paolo, and the Utu family witness are candidates for the vacant Utu matai title. Presently, Paolo is off-island for medical treatment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486419/ | Order Granting In Part and Denying In Part Motion for Summary Judgment:
INTRODUCTION
Plaintiff Wing Hop Lee, Ltd. brought this action against the defendants to recover upwards of $300,000 which it claims was advanced to the defendants for business purposes, but which was neither used nor returned. Through a consent judgment, defendant Ki Byung Soo ("Ki") was judged liable to the plaintiff in the amount of $325,151.35. Also through a consent judgment, defendant Ki Byung Inn was dismissed from the case. This leaves only Tuuga Tinoisamoa, Ki's wife, and defendant Samoa Sharksfin *77Trading Co. ("Samoa Sharksfm"). The Plaintiff has moved for summary judgment against these parties.
STANDARD FOR SUMMARY JUDGMENT
Under T.C.R.C.P. 56, a party will receive summary judgment when there are no issues of material fact, and the party is otherwise entitled to judgment as a matter of law. The moving party bears the burden of establishing a prima facie case showing that no material facts are at issue. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Once the moving party has established its prima facie case, the burden shifts to the adverse party to produce, by affidavit or otherwise, evidence showing that material facts are in issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
[A]n adverse party may not rest upon the mere allegations or denials of [her] pleading, but [her] response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If [she] does not so respond, summary judgment, if appropriate, shall be rendered against [her].
T.C.R.C.P. 56(e). A court can grant summary judgment with regard to some issues but not others, including granting summary judgment on the question of liability but not damages. T.C.R.C.P. 56(c)-(d).
DISCUSSION
Samoa Sharksfin was apparently established around 1979 for the purpose of purchasing sharks' fins from local fishermen for companies in Asia. The business was licensed as a sole proprietorship in the name of Tuuga, shortly after her marriage to Ki. The business is not a corporation. Tuuga and Ki disagree as to who primarily ran the business. They agree that they both ran it in the early years, but Tuuga claims that Ki ran it alone in the latter years, while Ki claims exactly the opposite.
Although it is unclear how many clients Samoa Sharksfin had, its primary client was the plaintiff. Samoa Sharksfm was to buy shark's fins with money advanced by the plaintiff and then ship them to the latter in Hong Kong. The plaintiff claims that betv|een August 1994 and February 1995, it advanced a sum of $325,151.35 to Samoa Sharksfin for the pinchase of fins. It further claims that no fins were Shipped to it from these advances, nor *78was the money returned. Samoa Sharksfin is now apparently insolvent.1
In order to prevail on a motion for summary judgment, the moving party must present sufficient evidence to show that no material facts are in issue. See D. Gokal Co. v. Daily Shoppers, Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989). The only evidence the plaintiff has produced, other than the admissions in Tuuga's answer, is Tuuga's deposition, which the parties stipulated would be part of the record for the purposes of this motion. Despite its lengthy transcript, this deposition tells us next to nothing, and does very little toward the plaintiffs cause of establishing an absence of disputed facts.
As near as we can tell, the only material fact not in dispute, based upon the evidence, is that Samoa Sharksfin was owned by Tuuga as a sole proprietorship.2 As the owner of Samoan Sharksfin, which is not a corporation, Tuuga is liable for its debts, including debts that were incurred because moneys were advanced on an unfulfilled contract and were never returned. Cf. A.S.C.A. § 30.0114(6) ("private property of stockholders is to be exempt from corporate debts"); 18 Am. Jur. 2d Corporations § 5 (1985); Ramirez v. United States, 514 F. Supp. 759 (D.P.R. 1981). Tuuga claims that she did not know about the transactions because her husband Ki ran the business. This is irrelevant. Tuuga also claims that Samoa Sharksfin was a "family business," as if this is a legal doctrine that will protect her from liability. It is also irrelevant.
Tuuga owned Samoa Sharksfin. Ki was either an employee of the business, or at most, a partner with Tuuga.3 However, while Ki’s status as *79an employee or partner may have made a difference as to his liability, it matters not one whit regarding Tuuga's liability. If Ki was an employee, Tuuga, as sole owner, is solely responsible for Samoa Sharksfin's debts. If Ki were a partner,' then Tuuga is jointly and severally liable for Samoa Sharksfin's debts. Henderson v. Wadsworth, 115 U.S. 264 (1885); 59A Am. Jur. 2d Partnership §§ 638-639 (1987). In either case, she is liable to the plaintiff for the entire debt.4 3 C.J.S. Agency §§ 406-408 (stating that a principal is bound by contracts made by its agents in its name); 59A Am. Jur. 2d Partnership § 639 (stating that each partner is jointly and severally liable for the debts of the partnership).
All of the parties apparently agree that the business license was issued in Tuuga's name, rather than Ki's, to avoid the more restrictive licensing requirements placed on nonresidents. See A.S.C.A. § 27.0207. Tuuga further claims that Ki was the one responsible for the business and that she had almost nothing to do with it. We fail to see the relevancy of this. A Samoan resident does not escape liability for the debts of his/her/their business by claiming that he/she/they was/were merely "fronting" for another person. Even if this practice is widespread, that does not change the laws of liability. Residents considering "fronting" a business should seriously consider the liability to which they may be exposing themselves before doing so. We conclude that the plaintiff is entitled to summary judgment on the question of Tuuga's liability. She is personally liable to the extent that the plaintiff can prove the business was liable as a sole proprietorship.
The plaintiff, however, has not presented evidence on any other issue. Notably, it has failed to present any evidence on the issue of Samoa Sharksfin's liability or the extent of damages. Judging by the Defendants' Motion in Opposition to Summary Judgment, establishing the extent of liability probably would have been simpler than establishing the liability itself. But the plaintiff has left us wanting, and we must save that determination for a later day.5
*80CONCLUSION
The plaintiffs Motion for Summary Judgment is granted on the sole issue of Tuuga's liability with regard to the debts of Samoa Sharksfm while it was a sole proprietorship. The plaintiffs Motion for Summary Judgment is denied on all other issues.
It is so ordered.
It does not appear that Samoa Sharksfin underwent any formal bankruptcy proceeding. No affirmative dissolution of the business took place. See Dep. of Tuuga Tinoisamoa at 23.
Plaintiff admitted this in her answer and confirmed it in her deposition. There apparently now exists a corporation by the same name of Samoa Sharksfin, which has some relationship to the defendants, their present attorney, and possibly also the Plaintiff. The business of this corporation and its relation to the parties is unclear. Its relationship to the sole proprietorship is also unclear. We make no determination with regard to this corporation, which is not a party to this case.
However, under the strict requirements for showing a partnership between family members, it is unlikely that Tuuga could have proven Ki *79was a partner in the business. See 59A Am. Jur. 2d Partnership, § 207 at 349 (1987).
The apportionment of liability between Tuuga and Ki is not at issue in this motion.
The consent judgment with regard to Ki does nothing as far as determining the liability for Samoa Sharksfm or Tuuga. No dollar amount *80is even mentioned in Tuuga's deposition. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486420/ | Decision and Order:
INTRODUCTION
Plaintiff is an American Samoa Government retiree drawing a certain annuity under the Government Employees Retirement Fund (hereinafter the "fund"), set up by A.S.C.A. §§ 7.1401 etseq. (hereinafter the "Act"). The defendant Board of Trustees (hereinafter the "board") was established by the Act to administer the retirement fund. See A.S.C.A. § 7.1410. Defendant George Odom is the executive officer appointed by, and responsible to, the board to manage the fund and the retirement office.
Plaintiff seeks an increase in his annuity claiming entitlement to additional service credit under A.S.C.A. § 7.1430(f), for time which he spent off-island in furtherance of his education.1 Plaintiff additionally seeks the reinstatement of his benefits to reflect the inclusion of his six months of employment with the Governor’s Office between August 1989 and March 1990. The board denied both requests.
*82FACTS
The salient facts in this matter are as follows: Plaintiff was first employed by the government when he worked for the Fono shortly after completing high school. On January 13, 1959, plaintiff left this employment to attend school on the mainland. After obtaining his law degree in 1967, plaintiff returned to the territory at the expense of the Department of Education in response to the latter's representation that there was a job available for him at the local Attorney General's Office. Upon arrival, however, plaintiff was told that there was no position available for him at the Attorney General's Office, and he thereupon set himself up in private practice. On January 3, 1981, plaintiff re-entered government employment when he was elected to the Senate from Sua County, Eastern District. He served two terms in the Senate and again left the territory. Plaintiff returned in August 1989, to work for then-Govemor Peter T. Coleman to liaise with the Fono. A written service contract consisting of eleven pages was drawn up and executed between plaintiff and the government.2 This agreement, styled "Independent Contractor Service Contract," stipulated a performance term of one month, commencing August 29, 1989, and ending September 28, 1989. The agreement further recited a "professional fee" of $2,000 for the performance to be rendered. The term of the agreement was extended on two succeeding occasions: first on October 2,1989, for a further month, and then on October 10, 1989, for a term ending March 31, 1990. Although plaintiff was principally hired to liaise with the Fono, his duties subsequently involved writing speeches for the Governor, acting as the Governor's orator at traditional functions, and representing the Governor at meetings of the South Pacific Commission. During this time, plaintiff was paid the stipulated contract fee "upon invoice," after it was certified by the Governor's Office. Payment was made without any tax withholding or deductions whatsoever and the government filed, pursuant to applicable revenue laws, Revenue Form 1099 reporting total monies it had paid to plaintiff.
The Board of Trustees denied plaintiffs claim for prior service credit under § 7.1430(f) on the basis that plaintiff did not return to government *83employment within two years of his completion of studies, as the enactment required. The board's denial of plaintiffs service credit claim for the six months he worked for the Governor's Office was based on the board's assessment of his employment status as thát of an "independent contractor," ineligible under A.S.C.A. § 7.1421(3).3
DISCUSSION
I. Prior Service Credit
A.S.C.A. § 7.1430(f) reads:
Any person employed by the government who takes leave of absence without pay or terminates from such employment in order to further his education, may upon returning to employment with the government, claim retirement credit for such time spent in furthering his education, by paying to the retirement fund contributions which he would have paid had such time spent on education not been excluded by virtue of his leave of absence without pay or termination, together with regular interest thereon, from the date such contributions would have been made, had such time so spent not been excluded, to the date of actual payment; provided, however, that this section shall apply only to those persons who resume employment in the government within 2 years after completing studies.
Id. (emphasis added). Plaintiff urges a reading of § 7.1430(f) such as would render the proviso inapplicable in his circumstances, reasoning that he was ready, willing, and able to comply with the proviso, but that he could not do so simply because the government did not have the promised job for him. He submits that such a construction of the enactment ought to be available in view of the twin legislative policy goals behind the Act, that is, to provide for employees in their old age, and to encourage higher education.
*84While these laudatory policy goals of the Act are not lost on us, tire construction advocated by plaintiff is entirely baseless. Plaintiff would have us ignore the proviso altogether and read into § 7.1430(f) an exception to the unambiguous language used by the Fono. The language employed in the proviso is very straightforward, eligibility is limited to those "who resume employment" within two years. Id. (emphasis added). The Act does not talk about extending eligibility to those who could have resumed employment within the two-year period, but for the availability of a promised government job.4 We see neither the need nor the legislative authority to effectively render the proviso nugatory with the overly imaginative reading suggested by plaintiff. If the Fono had wanted to provide for the scenario suggested by plaintiff, it could have. It has not.
II. Additional Service Credit
Similarly, we find plaintiffs second claim for service credit to be without merit. Plaintiff argues that notwithstanding his service contract, which speaks unequivocally of his employment relationship with the government as that of an "independent contractor," he should be treated otherwise for purposes of the Act. He claims that while he worked for Governor Coleman, he was not independent in that he was subj ect to the direction and control of Governor Coleman who gave him his work assignments. He argues that he is not, therefore, an independent contractor, as that term is used in § 7.1421, but rather an "employee" as that term is defined under § 7.1403(f) (defining "employee" as "any person in the employ of the government, in all occupational classifications").
The evidence is overwhelmingly in favor of the board's assessment of an independent-contractor relationship. Again, plaintiff urges the court to close our eyes to the reality of the document; and to disregard the legal relationship painstakingly documented thereunder, as well as the manner in which performance due from the government was deliberately set out and later implemented. The explicit contract language designated plaintiff an "independent contractor" and is prima facie evidence of his status as such. He must present evidence to overcome this and show that a different *85employment relationship existed.
The primary question in determining whether plaintiff was an independent contractor is the question of who had control ovér his work. See Hearst Publications v. National Labor Relations Bd., 136F.2d 608, 612 (9th Cir. 1943); Watson v. Commissioner of Internal Revenue, 81 F.2d 626, 627 (3d Cir 1936). That plaintiff may have been given his assignments by Governor Coleman does not necessarily equate with direction and control of his performance under the contract. For instance, it is unlikely, and there is no evidence to suggest the contrary, that Governor Coleman had directed plaintiff as to how he should perform as a lobbyist before the Fono or how he should perform the role of talking chief. Clearly, Governor Coleman had hired plaintiff for his specialized competence, and, indeed, plaintiff had testified that he was sought out by Governor Coleman to liaise with the Fono in light of the fact that he had previously been a member of the Senate.
Another question to be considered in determining whether someone is an independent contractor is the method of payment by his employer. The fact that a person is paid a lump-sum amount for work undertaken, as compared to being compensated on an hourly basis, tends to show an independent contractor relationship. See 41 Am. Jur. 2d Independent Contractors § 13, at 759-60 (1968). Plaintiff received contract fees "upon invoice," not hourly wages, thus tending to show that he was an independent contractor. The fact that an employer does not deduct taxes from earnings tends to evidence an independent contractor relationship. See id. at § 22, at 773. The government did not withhold taxes from plaintiffs paychecks, also tending to show that he was an independent contractor.5
Furthermore, Section 7.1403(f), which broadly defines the term "employee," does not advance plaintiffs cause in any way. On the contrary, Section 7.1421, which enumerates ineligible persons, speaks also of "employees [that] are not eligible for membership in the fimd," including, among others, independent contractors. This same section excludes from fund eligibility those employees "whose services are compensated on a fee service," A.S.C.A. § 7.1421(2), as well as those employees "whose employment is *86purely temporary, seasonal, intermittent, part time, or only for a specific project." A.S.C.A. §7.1421(4). Clearly, plaintiff is ineligible under either of these subsections as well. Accordingly, we conclude that it was well within the board's province to rule as it did against plaintiff.
For reasons given, judgment will enter in favor of the defendants.
It is so ordered.
The Act provides for an "operative date" of January 1,1971, the date on which the fund began its operations. See A.S.C.A. § 7.1403(m). The Act also grants credit for service prior to the fund's operative date, under certain enumerated circumstances, including separation from government employment for purposes of further education. See A.S.C.A. § 7.1430.
We note that the then-Attomey General who approved the service contract as to form is none other than plaintiffs counsel, now in private practice.
Apparently, plaintiff was previously allowed service credit for this period of employment but with the filing of his suit, the board revisited plaintiffs case and subsequently determined, with the advice of the Attorney General, that this period of employment was ineligible for service credit. The board adjusted down plaintiffs annuity accordingly.
We were supplied no details behind the Department of Education's involvement with manpower matters of the Attorney General's Office. It is to be noted, however, that the matter of government employment is extensively regulated and is administered by the Department of Human Resources. See A.S.C.A. §§ 7.0101 et seq.; A.S.A.C. §§ 4.0101 et seq.
Other factors normally considered in distinguishing between an employee and independent contractor relationship include control of premises, control of workers and by whom they are paid, and furnishing of tools and appliances. See 41 Am. Jur. 2d Independent Contractors §§ 5-23, at 743-74 (1968). None of these factors appears applicable here. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486421/ | Order Granting Motion for Default Judgment and Awarding Punitive Damages:
Plaintiff John Newton ("Newton"), as the administrator of the estate of Daniel Kingzett ("Kingzett" as an individual), brought this action for damages against defendant Jack Taleka ("Taleka") following Taleka's conviction of murder in the second degree for killing Kingzett.
Taleka is serving concurrent sentences of imprisonment of 23 years on the homicide conviction and lesser terms of imprisonment on five other convictions of related offenses at the American Samoa Government's correctional facility. After he was served with process in this action, he failed to answer or otherwise legally appear, and the clerk of courts entered his default. The court heard the motion for a default judgment on May 10, 1996, Taleka having been timely served with the notice of the hearing.
At the hearing, Newton advised the court that he was seeking punitive damages only and submitted the motion on his pleadings for the court's decision. The court took the motion under advisement.
DISCUSSION
A right of action for personal injuries did not survive either the tortfeasor's or injured person's death at common law, and thus a civil action was not recognized in wrongful death situations. In 1846, Lord Campbell's *88Act changed this status of the law, and all American, jurisdictions now permit such actions. B.E. WrrKlN, 6 SUMMARY OF CALIFORNIA Law, Torts § 1196 at 632 (9th ed. 1988).
American Samoa is no exception. A.S.C.A. §§ 43.5001 & 43.5002; Fa'avae v. American Samoa Power Authority, 5 A.S.R.2d 53, 58 (Trial Div. 1987). Pertinent to this action, A.S.C.A. § 43.5002 provides:
An action or cause of action... shall not abate by death. . . of a party . . . but shall in all cases, where a cause of action... arose in favor of such party prior to his death. . . survive, and be maintained by his representatives ... and in case such action has not been begun... the action may be begun... in the name of his representatives ....
Award of punitive damages for wrongful death is a statutory creature. See Doak v. Superior Court, 65 Cal. Rptr. 193, 199-201 (1968). American Samoa has not enacted any statute authorizing punitive damages arising out of a homicide causing instant death, unlike California, for example. See Cal. Civil Code § 3294(d). Thus, we must find that Kingzett survived for some duration to give rise to a cause of action. Fa'avae, 5 A.S.R.2d at 58.
The death certificate states that Kingzett was dead on arrival at the LB J Tropical Medical Center. It also shows that the death was caused by "hypovolemic shock" and "profuse bleeding" from "multiple traumatic wounds." Taking judicial notice of Taleka's criminal prosecution, Kingzett was initially immobilized by a stab wound to the head. ASG v. Taleka, CR No. 15-94 (Trial Div. 1994). We find from these facts that while Kingzett died only moments after he was attacked, he was not instantly killed, and a cause of action for pain and suffering damages from his personal injuries did accrue before his death.
Punitive damages are normally awarded only when the injured person sustains actual damages. See Letuli v. Lei, 22 A.S.R.2d 77, 85-86 (Trial Div. 1992), aff'd. Lei v. Letuli, AP No. 20-92, slip op. (App. Div. Nov 15, 1993) (modified on other grounds). Newton has waived any award of actual damages. ■■ However, Taleka attacked and killed Kingzett, and the fact of actual harm, not the monetary award, is controlling. See Esparza v. Specht, 127 Cal. Rptr. 493, 495-96 (Cal. 1976).
Punitive damages are appropriate when a person suffers actual injury as a result of another person's malicious conduct. Letuli, 22 A.S.R.2d at 86; *89Scott v. Donald, 165 U.S. 58, 88-90 (1897); Nappe v. Anschelewitz, Barr, Aseu, & Bonello, 447 A.2d 1224, 1230-32 (NJ. 1984); Feld v. Merriam, 485 A.2d 742, 747-48 (Pa. 1984). "Malice" includes conduct which is intended to cause injury; or which is despicable by nature, that is, blatantly vile or loathsome to ordinary decent people, and carried on with willful and conscious disregard for the rights of safety of others. See Cal. Jury Inst., Civil, BAJI 14.71 & 14.72.1 (8th ed. 994). Talekaactedmaliciouslywhen he struck Kingzett in the head with} a blunt object and repeatedly stabbed Kingzett with a knife, resulting in Taleka's homicide conviction.
Punitive damages are not easily quantified in wrongful death actions. Life is precious and not readily susceptible of monetary evaluation. Kingzett unquestionably suffered a painful death, however brief his pain may have been endured. However, punitive damages are principally awarded for the sake of example and by way of punishment. Letuli, 22 A.S.R.2d at 86. Viewed from this perspective when a defendant has already been criminally prosecuted and sentenced, punitive damages are not unreasonable double punishment. See Roshak v. Leathers, 560 P.2d 275, 861-865 (Or. 1977) (also published, with annotation, at 98 A.L.R.3d 858). Still, criminal punishment may be properly considered in mitigation of punitive damages. See Brownand v. Scott Lumber Co., 269 P.2d 891 (Cal. 1954).
ORDER
1. Newton is granted a default judgment against Taleka.
2. Taking into account the factors discussed above, we award $50,000 in punitive damages against Taleka.
3. This award is the property of Kingzett's estate and shall be distributed under the law applicable to the pending probate proceedings, Estate of Kingzett, PR No. 28-95.
Judgment shall enter accordingly. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486422/ | Order Denying Motion for Reconsideration or New Trial:
On June 24, 1996, plaintiff Faleafaga Peni ("Faleafaga") moved for reconsideration of the court's opinion and order, entered on June 20,1996. Hearing on the motion was set on July 11, Í996. On July 2,1996, Faleafaga moved ex parte to stay construction of the proposed new dispensary by defendant American Samoa Government ("ASG") and the other defendants on the land at issue in Amouli, American Samoa, scheduled to commence on July 3, 1996, pending the reconsideration hearing, and to expedite the hearing. The court denied the motion to stay but granted the motion to expedite the hearing, and reset the hearing ori July 3, 1996.
On July 3,1996, the court heard the motion, as á motion for reconsideration or new trial, pursuant to Á.S.C.A. § 43.08Ó2 and T.C.R.C.Í*. 59. Counsel were present, except counsel for intervenor Paolo Sivia ("Paolo"), who did not file a motion for reconsideration or new trial.
DISCUSSION
Contrary to Faleafaga's assertions, substantial evidence supports the reasonable inference fóundby the court that Utu represented the Faleafaga and Paolo families when he signed the 1'923 deed conveying a defeasible fee interest in the communal lands of those families to ASG for the Amouli dispensary site. Since we did not marshal! this evidence in a separate discussion in-the opinion' and Order* we will set forth several salient facts.
The deed itself sets the tone for Our findings. It specifically recites the participationof the village chiefs in the survey process. The witnesses from Amouli, except for one from tire Utu family, unequivocally testified that the dispensary site was'Comprised* when the survey Wás made and ever since, of separate communal lands of the'Faleafaga and Paolo families. They also acknowledged that ASG's interest in the land is well accepted in the village.
Faleafaga’s witness Gogo SUli, sa'o of his Amouli family, was present dining the 1923' proceedings, m essence, Chief Gogo confirmed the underlying communal' status of the site and the participation of the Faleafaga and Paolo families in the land transaction. He went on to state *92that the U.S. Navy informed Amouli of ASG's need for a dispensary site, that Utu Suaese as the leading matai called the village matai together to discuss this requirement, and that Faleafaga offered his family's communal land for this purpose. Apparently, the Paolo family's communal land was not specifically discussed at the meeting, as construction of the nurses' quarters was not then under consideration. In our view, Chief Gogo explained that Utu and the Navy dealt with each other only to facilitate the negotiations and deed signing.
Faleafaga's witness Fuata Pepa, sa'o of his Amouli family, was also present during the 1923 proceedings. In essence, Chief Fuata likewise verified the underlying communal status of the site and the participation of the Faleafaga and Paolo families in the land transaction. He further stated that the deed was properly made in the manner of the era as a transfer of "Amouli" land for public use.
We also repeat that ASG's title interest in the land was well established. The deed is not flawed by irregular formalities, including lack of notice. Faleafaga claims that because the Amouli matai were so unsophisticated in those days, they in general, and the Faleafaga and Paolo titleholders in particular, could not have understood the legal aspects of land documents. We find that this plea, repetitiously declared during the trial and still by this motion, is almost totally speculative under the evidence, and is certainly unconvincing. We have no doubt that even if they were unfamiliar with deed technicalities, the matai knew the purpose of the land transaction and understood the nature of the proceedings.
We also take issue with Faleafaga's misplaced charge that we are setting dangerous precedent. We did not in any way suggest that a matai has any inherent legal authority to convey another family's communal land. Surely, our decision does not erode a sa'o's exclusive authority to convey his own family's communal lands. The present case is strictly limited to the unique circumstances surrounding this particular transaction in 1923, and is only precedent for like situations in die same era in which the evidence shows that ASG, under the former U.S. Navy administration, dealt with a leading matai of a village when acquiring land for public use.
Under the evidence in this case, we could have found that the Utu family is the communal landowner of the reversionary interest in the dispensary site. However, we were convincingly persuaded that the Faleafaga and Paolo families own this interest. Faleafaga and Paolo would better expend resources perfecting their families' communal land interests. We gave them the opportunity by our decision, but we cannot close out any contrary claim by the Utu family, which was not a party to this action. Now that ASG is under a court order to recognize their communal land interests, Faleafaga *93and Paolo could, after reciting their communal land titles, convey anew a defeasible fee interest to ASG in the dispensary site. They could also offer the lands for title registration as their respective communal lands, if they want to seek a definitive resolution against any claim the Utu family may still want to assert over these lands.
ORDER
The 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/8486423/ | Order Denying Motion To Correct Illegal Sentence and Revising Dates of The Detention Condition of Probation:
On November 6, 1995, this court sentenced defendant Theresa Fanuaea Gurr Leiataua ("Leiataua") to two concurrent five-year terms of imprisonment for her convictions of two counts of bank larceny and fraud in violation of A. S.C. A. § 28.0111. Execution of the sentence was suspended and Leiataua was placed on probation for a period of five years. She was required to serve a 20-month period of detention as one of the conditions of probation, subject to refinement when and if the pending motion for reconsideration or new trial was withdrawn or denied.
On January 11, 1996, after the motion for reconsideration or new trial was denied and following a further hearing on fixing the final conditions of probation, we revised the detention condition. We retained the 20-month detention period, but suspended execution of 10 of those months and required Leiataua to serve the remaining 10 months, commencing January 16, 1996 and ending November 15,1996.1 She was to be detained for the first three months without release, except by prior court order or in a medical emergency. Beginning on or after April 16, 1996, she was permitted daytime work release to perform gainful employment, leaving the correctional facility no earlier than 6:30 a.m. and returning there no later than 5:00 p.m., Monday through Friday of each week. She could commence work release only after the employer's submitted written verification of her employment submitted to her probation officer.
On February 5, 1996, however, this court granted Leiataua temporary *95release from the correctional facility for purposes of traveling to Hawaii for medical examination and, if necessaiy, for treatment. Leiataua was to serve her remaining detention time as condition of probation upon her return to American Samoa, with one half-day added for each day she spent on the medical release, or with a minimum of one day added, depending on the circumstances, for each day if she was malingering.
Modification of the Detention Condition
Leiataua now argues that our order increasing her period of detention for every day of her medical release violates the double jeopardy prohibitions of the United States Constitution and the Revised Constitution of American Samoa. See U.S. Const, amend 5; Revised Const, of Am Sam art. I § 6. Leiataua relies solely, for this contention, on a statement by the U.S. Supreme Court in United States v. Benz, 282 U.S. 304, 307 (1930) (quoting Wharton, Criminal Pleading and Procedure § 913 (9th ed.)):
As a general practice, the sentence, when imposed by a court of record, is within the power of the court dining the session in which it is entered, and may be amended at any time during such session, provided a punishment partly suffered be not increased. . . . [T]o increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution....
In this case, however, detention was ordered as a condition of probation, pursuant to A.S.C.A. § 46.2206, and any condition of probation may be modified by the court at any time. A.S.C.A. § 46.2205(b). The U. S. Supreme Court clearly stated that the legislature has the power to permit the courts to modify conditions of probation in view of changed circumstances.
The dissenting opinion asserts that our interpretation of congressional intent is inconsistent with the common-law rule that “a punishment already partly suffered be not increased.” That common-law rale simply does not apply when Congress has provided a court with the power to modify a sentence in light of changed circumstances. For example, a court may impose a sentence and probation, under the general probation statute____If the defendant violates the terms of his probation, the court may “increase” the punishment by requiring him to serve the initial sentence.
Ralston v. Robinson, 454 U.S. 201, 217 n.10 (1981).
*96Circumstances in this case materially changed after our order of January 11. On February 5, unlike in other jurisdictions, Leiataua was required to leave the jurisdiction of this court in order to receive the specialized medical diagnosis then indicated. The medical Release gave Leiataua a temporary reprieve from her period of detention and diluted the punishment, rehabilitative and deterrent aspects of her detention. It also gave her opportunity to further weaken these detention purposes by needlessly prolonging her stay in Hawaii. The addition of one half-day of detention, or more if appropriate, for every day of release from detention was, and still is, intended to strengthen the detention objectives in a way that is rationally related to the manner in which it was weakened by the reprieve from detention. The added detention time was also aimed at inducing Leiataua to complete her medical tests and return to American Samoa in a timely manner.2
Aside from the fact that we only changed a condition of her probation, not Leiataua's sentence, we also point out that in one sense, we did not even increase the period of detention. We imposed a 20-month detention period on Leiataua, the permissible maximum under A.S.C.A. § 46.02206(2), and suspended the execution of 10 of those months. The modification of the detention period only requires her to serve a portion of the suspended 10 months, which in no event could ever exceed the 20-month maximum. More important, however, the modification is expressly authorized by law and is based on an actual change in circumstances.
For the above reasons, we will deny Leiataua's motion to correct the sentence. 1
Revised Dates of Detention
Leiataua's medical release in Hawaii began on February 16, 1996, and ended when she returned to American Samoa on June 19,1996, a period of 135 days.3 She actually returned to custody on June 25, 1996, five days *97later, for a total release time of 140 days. Thus, adding 67 and one-half days to the detention period for the time on medical release, Leiataua now must serve 207 and one-half days in detention at the correctional facility beyond November 15, 1996, or until noon on June 19, 1997.
We will not modify the three-month no-release period before Leiataua may commence work release, but will reset die earliest starting date for work release. Leiataua served 21 days of the three months prior to her release on February 5. She must serve another 69 days before she has complied with this order. Thus, we will now establish September 3, 1996, the first workday in September, as the date when she may commence work release. The employer's prior submission of written verification of Leiataua's employment to her probation officer remains a prerequisite for work release to begin.
Order
1. The motion to correct the sentence is denied.
2. Leiataua's present detention period now ends at noon on June 19, 1997.
3. Leiataua may commence work release on or after September 3, 1996, provided she has actual gainful employment, which the employer has previously verified in writing to her probation officer. She may then leave the correctional facility no earlier than 6:30 a.m. and return no later than 5:00 p.m., Monday through Friday, to perform her employment.
It is so ordered.
The order of January 11, 1996, mistakenly set the ending date on December 15, 1996. This miscalculation is a clerical error and is formally corrected by this present order.
Leiataua was diagnosed free of her feared disease at least as early as April 22, 1996, and ultimately further testing scheduled on June 2, 1996, was canceled. According to other reports, she was very active in other activities while in Hawaii. We are inclined to believe that Leaitaua violated at least the spirit of our February 5 order, and we could be persuaded that she was in fact malingering.
Leiataua was not remanded to the correctional facility immediately upon her return on June 19,1996, but was permitted to remain in a release status in order to participate in the funeral and related activities for her mother on June 20-23, 1996. On June 24, 1996, she was remanded to custody as of 9:00 a.m on June 25, 1996. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486425/ | Order Denying Motion for Summary Judgment:
Plaintiff Pal Air International, Inc. ("Pal Air") has moved for summary judgment on the issue of its ownership of stock in defendant Samoa Aviation, Inc. ("Samoa Air"). The motion was argued during a telephonic conference in chambers on June 24, 1996. Counsel Ashley and Togiola *105were present, and counsel Hardesty participated from Reno, Nevada.
I. Standard of Review
Pal Air made a compelling argument and presented one of the best-written and most thoroughly supported motions for summary judgment that we have seen in some time. Nevertheless, we remind ourselves that well-written briefs, while they are pleasant to read and do much to carry forth a party's arguments, do not of themselves win a motion. Pal Air carries a substantial burden to receive summary judgment. A strongly made argument, even one that may be sufficient to prevail at trial, will not necessarily earn a favorable ruling on a motion for summary judgment.
To prevail on a motion for summary judgment, the moving party must 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); Amerika Samoa Bank v. Pacific Reliant Indus., 20 A.S.R.2d 102, 107 (App. Div. 1992); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962).
"In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor." Clark v. Kizer, 758 F. Supp. 572, 574 (E.D. Cal. 1990). It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968).
In deciding a motion for summary judgment, the court must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party. ASPA v. National Pacific Ins., 23 A.S.R.2d 100, 101 (Trial Div. 1993); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
II. Discussion
Pal Air claims that it was an original owner of 25,000 shares of stock in Samoa Air. This is undisputed. Pal Air further claims that it still holds these shares, and that it can assert its rights as a shareholder. Defendants James Porter and Constance Porter (collectively "the Porters"), on the other hand, argue that they have purchased all 25,000 shares of stock from Pal Air, and that it is, therefore, no longer a shareholder in Samoa Air. The Porters' allegation raises a genuine issue of material fact as to whether Pal Air continues to hold stock in Samoa Air, unless Pal Air can prove that it still owns stock as a matter of law, that is, that the sale alleged by the *106Porters is legally unenforceable. Pal Air asserts several arguments for this proposition, but before turning to those arguments, we must first determine the question of applicable law.
A. Applicable Law
Pal Air argues that Nevada law should apply while the Porters argue that American Samoa law is better applied. Both parties agree that we should follow the "modem rule" for deciding the question of applicable law in this case. The modem rale provides for the application of the law of the forum with the most significant relationship to the transaction and the parties. See generally 16 Am. Jur. 2d Conflict of Laws § 83, at 139-43 (1979). We believe this is the appropriate rale to apply to conflict of law questions regarding contracts.
In determining which forum has the most significant relationship to a transaction and the parties, five factors are of primary consideration: "(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and(e) the domicile, residence, nationality, place of incorporation and place ofbusiness of the parties." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188(2) (1971). In applying the modem rule, the court does not count contacts, but rather considers which contacts are the most significant and determines where those contacts are located. Smith v. Hughes Aircraft Co., 783 F. Supp. 1222, 1228 (D. Ariz. 1991); 16 Am. Jur. 2d Conflict of Laws § 84, at 1245.
Leiataua was not remanded to the correctional facility immediately upon her return on June 19, 1996, but was permitted to remain in a release status in order to participate in the funeral and related activities for her mother on June 20-23, 1996. On June 24, 1996, she was remanded to custody as of 9:00 a.m. on June 25, 1996 Leiataua was not remanded to the correctional facility immediately upon her return on June 19,1996, but was permitted to remain in a release status in order to participate in the funeral and related activities for her mother on June 20-23, 1996. On June 24, 1996, she was remanded to custody as of 9:00 a.m. on June 25, 1996. The place of contracting, as well as the site of all negotiations, is Reno, Nevada. Although the Porters state in their brief that negotiations took place in American Samoa, James Porter's affidavit-the only affidavit upon which the Porters rely-states only that negotiations took place in Nevada. Cf Resp. to Pl.'s Motion for Summ. J. at 2 [hereinafter Resp.] with Aff. of James A. Porter at 1. Thus, the first two factors weigh in favor of the application of Nevada law.
The place of performance is contested. Pal Air claims that the place *107of performance was to be Nevada.3 The Porters argue that performance was to be partially in Nevada, where payment was to be made, and partially in Samoa, where they claimed the stock was to be delivered. However, nothing in any affidavit supports the Porters' contention. In the absence of evidence to the contrary, the place of performance is considered to be the place of contracting, Mutual Life Ins. Co. v. Cohen, 179 U.S. 262 (1900), which was Nevada. When the ultimate object is the payment of money, the place of performance is considered to be the place where the payment is received, Reighley v. Continental Illinois Nat'l Bank & Trust Co., 61 N.E.2d 29 (1945), which also was Nevada. This factor seems to weigh in favor of the application of Nevada law. But even accepting the Porters' argument, this factor, at best, would be neutral, weighing equally in favor of the application of Nevada and Samoa law.
The location of the subject matter of the contract, Pal Air's shares in Samoa Air, is also contested. Pal Air places the stock in Nevada. The Porters contend that the shares "may have been located in Illinois[, having been]... pledged by Pace to the DuQuoin State Bank." Resp. at 2 (emphasis omitted). However, the Porters have attached essentially illegible exhibits to their response and have provided no explanation as to what the exhibits are supposed to show. Even taking the assertion in the response, that the shares were "pledged" to an Illinois Bank, at face value, there is no indication that this resulted in the delivery of shares to Illinois or any other change in the location of the shares from Nevada. Furthermore, even if we provide the Porters with every benefit of the doubt, inferring facts that are entirely absent from their affidavit and exhibits, placing the location of the shares in Illinois does nothing to help advance their argument for the application of Samoan law. Based upon the facts we are given, this factor probably weighs in favor of the application of Nevada law, and, at most, is neutral.
Finally, all parties have agreed that the last factor is split between Nevada and American Samoa, and, therefore, favors neither. As a group, the factors favor the application of Nevada law. In fact, no factor favors the application of American Samoa law. There is no overriding policy reason for us to apply American Samoa law instead of Nevada law. Thus, we will apply Nevada law to determine the existence and effect of a contract, which application will carry over to trial.
B. Oral Contract
*108The Porters first allege that they made an oral contract with Bendall to buy all of the shares of Samoa Air stock from Pal Air, through Pace Aviation. Pal Air denies the contract and argues that even if such a contract existed, it would be unenforceable under Nevada's Statute of Frauds, which states that any "contract for the sale of securities is not enforceable . . . unless . . . [tjhere is some writing signed by the party against whom enforcement is sought." Nev. Rev. Stat. § 104.8319(1). However, the statute continues by stating that a contract for the sale of securities can be enforced where "payment has been made." Id. at § 104.8319(2).
The Porters claim that $25,000 was wired to Pace Aviation, which was supposed to fulfill their end of a complicated, and as yet not fully clear, exchange of assets between Pal Air, Sandy Cox ("Cox"), Pace Aviation, Ltd. ("Pace Aviation"), a defendant in the companion case, CA No. 50-95, and the Porters, which would have resulted in the Porters owning 25,000 shares of Samoa Air stock formerly owned by Cox and Pal Air. Pal Air, in opposition, claims that the $25,000 was wired in payment for an airplane engine purchased from Pace Aviation by Samoa Air. While the details of this contract are unclear, and the documentary evidence appears to favor Pal Air's version of the facts, we must view the evidence in the light most favorable to the Porters. James Porter claims that the $25,000 was payment for stock and that Robert G. Bendall ("Bendall"), another defendant in CA No. 50-95, knew this. Whether an oral contract exists, what its terms were, and whether payment was made to overcome the Statute of Frauds are all genuine issues of material fact that must be determined at trial and preclude summary judgment on this issue.
C. Written Contract
The Porters also claim that they had a written contract between themselves, Pace Aviation, and Cox, which also involved Pal Air and Sierra Aviation Group, Inc., for the transfer of the same 25,000 shares of stock in Samoa Air from Pal Air and Cox to the Porters. Pal Air again denies the contract and asserts that any contract would have been unenforceable under the Statute of Frauds. Although the Porter's argument for a written contract appears even more specious than their argument for an oral contract, the same genuine issues of material fact nevertheless arise: does a contract exist, what are its terms, and does it satisfy the Statute of Frauds. These issues must be decided at trial, not in a motion for summary judgment.
D. Number of Shares Sold
Finally, Pal Air asserts that even if one of the above contracts existed, Pal Air was only obligated to sell 12,500 shares of stock, a like number to be sold to the Porters by Cox. Pal Air argues that this would still leave it holding 12,500 shares of Samoa Air stock. As artfully drawn as this *109argument is, it does not eliminate all genuine issues of material fact. Assuming a contract exists, we do not know the terms of that contract. The Porters claim that, when Cox did not deliver his 12,500 shares to Bendall, Bendall was obliged to cover the missing shares with 12,500 additional shares of his own. Aff. of James A. Porter at 3.- While we are highly doubtful that these were the terms of the contract, and though the Porters acted in a way that negatived this situation, this remains an outstanding question of fact, which is properly resolved at trial.
III. Conclusion
Thus, viewing the evidence in the light most favorable to the Porters, as we must, we cannot grant summary judgment in Pal Air's favor. The motion for summary judgment is denied. The questions of whether Pal Air and the Porters contracted for the sale of Pal Air's stock in Samoa Air, what the terms of that contract were, whether that contract was executed, and whether the contract satisfied the Statute of Frauds will be examined at trial, and Nevada law will be applied to these issues.
We schedule the trial on August 29, 1996, at 9:00 a.m.
It is so ordered.
Pal Air denies the existence of a contract. See infra. However, for purposes of the conflict of law factors, we assume arguendo that a contract exists. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486426/ | Order Denying Motions to Dismiss:
INTRODUCTION
Three prisoners escaped from the Tafuna Correctional Facility ("TCF"), where they had been confined following conviction. On March 25, 1996, Bernard escaped from the prison by walking through the open front gate. He was arrested a few hours later and returned to confinement. Patu and Lafoga walked out the front gate of the TCF on April 2, 1996. Patu returned to the facility later that afternoon. Lafoga was arrested and returned to TCF the next day.
Following their respective returns to custody, all three were removed from the general population and placed in maximum security. OnMay21,1996, the government arraigned all three for escape from confinement in violation of A.S.C.A. § 46.4627. The defendants have moved to dismiss the criminal actions on three grounds, all of which we deny, for the reasons given below.
DISCUSSION
I. Double Jeopardy
The defendants first claim that their criminal prosecution constitutes double j eópardy. They claim that, having already been subj ected to punishment by prison officials, in that they were moved from the general prison population into maximum security, they cannot now be tried by the government.
Article I, Section 6 of the Revised Constitution of American Samoa, which mirrors the Fifth Amendment of the United States Constitution, provides that "No person shall twice be subject for the same offense to be twice put in jeopardy of life or liberty." Federal law interpreting the Fifth Amendment is persuasive in our interpretation of our Double Jeopardy Clause.1 The defendants have not cited a single case to support their argument of double jeopardy, which is sparse. This is not surprising, because the law is firmly against them. Every U.S. Circuit Court of Appeal *112that has examined the question has ruled that prison discipline does not preclude a subsequent criminal prosecution. See, e.g., United States v. Rising, 867 F.2d 1255, 1259 (10th Cir. 1989); Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir. 1982); Fano v. Meachum, 520 F.2d 374, 376 n.1 (1st Cir. 1975), rev'd on other grounds, 427 U.S. 215 (1976); United States v. Herrerra, 504 F.2d 859, 860 (5th Cir. 1974); United States v. Stuckey, 441 F.2d 1104, 1105-06 (3rd Cir. 1971); United States v. Apker, 419 F.2d 388 (9th Cir. 1969); United States v. Shapiro, 383 F.2d 680, 683 (7th Cir. 1967); Hamrick v. Peyton, 349 F.2d 370 (4th Cir. 1965); Gibson v. United States, 161 F.2d 973, 974 (6th Cir. 1947). We agree that this is the rule under our Double Jeopardy Clause. Thus, disciplinary actions by prison officials do not constitute jeopardy to preclude a subsequent criminal trial.
II. Rule 5(a)
The defendants next argue that the prosecution should be dismissed as a violation of T.C.R.Cr.P. 5(a). Rule 5(a) reads, in pertinent part: "An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the next sitting of the district court." The first time the defendants were taken before a court was at their arraignment on May 21, 1996, a significant time after their respective arrests.
Criminal procedure in the High Court must conform as nearly as may be practical to the Federal Rules of Criminal Procedure. See A.S.C.A. § 46.0501. We consider interpretations of the federal rules by federal courts to be highly persuasive in our interpretation of the local rules, which mirror the federal rules. See American Samoa Gov't v. Isaia, CR No. 65-95, slip op. (Trial Div. March 28, 1996); Fanene v. American Samoa Gov't, 4 A.S.R. 957 (Appellate Div. 1968). Unfortunately, the federal cases cited by the defendant have almost nothing to do with the present situation. See United States v. Jernigan, 582 F.2d 1121 (9th Cir. 1978) (holding that dismissal is appropriate if officer delays executing arrest warrant until such time as arrestee cannot be brought before magistrate until serving long weekend in jail); United States v. Osunde, 638 F. Supp. 171, 176-77 (N.D. Cal. 1986) (holding that Rule 5(a) applies to criminal charges while a person is being held by immigration officials). The cases cited by the government are even less relevant. See United States v. Lovasco, 431 U.S. 783 (1977) (dealing with the Sixth Amendment right to a speedy trial); United States v. Marion, 404 U.S. 307 (1971) (same).
On the other hand, we were able to locate immediately with very little research effort the appropriate interpretation of Federal Rule 5(a). "The provisions of Rule 5 . . . may not be availed of by a prisoner in escape status." Rush v. United States, 290 F.2d 709, 710 (5th Cir. 1961); see 1 *113Charles Alan Wright, Federal Practice & Procedure § 71, at 77 (2d ed. 1982 & Supp. 1994) ("Rule 5 does not apply ... to a prisoner who has escaped____"); see also Redinger v. United States, 404 F.2d 310, 312 (10th Cir. 1968); Government of Virgin Islands v. Lovell, 378 F.2d 799 (3rd Cir. 1967); Wakakshan v. United States, 367 F.2d 639 (8th Cir. 1966), cert. denied, 386 U.S. 994 (1967); Rademach v. United States, 285 F.2d 100 (5th Cir. 1960); Edmonds v. United States, 273 F.2d 108 (D.C. Cir. 1959), cert. denied, 362 U.S. 977 (1960); cf. United States v. Carignan, 342 U.S. 36, 42 (1951) (holding that Rule 5 does not apply where confession was made before arrestee was presented to magistrate when he was arrested for a different crime). A prisoner already in custody who is merely returned to custody following an escape does not possess the liberty interest protected by Rule 5. Therefore, he is not denied any liberty interest where Rule 5 is not followed.
Thus, the local application of Rule 5 should follow the clear federal application of Rule 5, which does not apply to an escaped prisoner.
III. Selective Prosecution
The defendants' final argument is as ill-constructed as their first two. They claim that their prosecutions must be dismissed because they have been selectively chosen for prosecution. However, mere selectivity in prosecution does not present a problem. Oyler v. Boles, 368 U.S. 448 (1962). To prevail under this defense and have his indictment dismissed, a defendant must show that his prosecution was "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification," and that others similarly situated have not been prosecuted. Wayte v. United States, 470 U.S. 598, 608 (1985); Oyler, 368 U.S. at 456; Yick-Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); United States v. Insco, 496 F.2d 204 (5th Cir. 1974); United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en banc); United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972); United States v. Steele, 461 F.2d 1148 (9th Cir. 1972). Selective prosecution claims are reviewed raider ordinary equal protection standards. Wayte, 470 U.S. at 608.
The defendants have not claimed that they belong to a suspect or quasi-suspect class, let alone that their prosecutions are based upon their membership in this class. Nor have they claimed that they have had a fundamental right violated. They claim that they have been selected out for prosecution because their escapes were publicized in the newspaper. Assuming this is true, it is of no consequence in determining the level of scrutiny to be applied. Furthermore, their attempt to analogize their case to United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), is entirely misplaced. In Steele, the court stated explicitly and at length that the defendants had been singled out for prosecution because they exercised their fundamental *114First Amendment right of freedom of speech. See id. at 1151-52. The defendants have absolutely no claim that they are being prosecuted because they exercised a constitutionally guaranteed right like that in Steele.
Thus, the defendants' claim is properly analyzed under the rational-basis test. Under this test, the government need only show that its actions are rationally related to a legitimate state interest. F.C.C. v. Beach Communications, Inc., 508 U.S. 997 (1993). Any reasonable purpose will suffice. The weight stands firmly in favor of the government.
The defendants have not even presented an argument that the government cannot meet this test. Clearly, the government has a legitimate interest in preventing and deterring prison escapes. This is particularly true where prisoners commonly walk out the front gate of the prison, as the defendants allege. We cannot say that the decision to prosecute only the most-publicized cases is unrelated to the interest of deterring escape. Even if the defendants could prove every other element of this claim, they could not prevail.
CONCLUSION
The motions to dismiss are denied.
It is so ordered.
Interestingly, the Defendants have only moved for dismissal under the American Samoa Double Jeopardy Clause,, not the Double Jeopardy Clause of the Fifth Amendment. In the current case, however, our analysis of each would be the same. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486427/ | Order Denying Petition for Rehearing and Order to Show Cause:
This petition for rehearing arises from a dispute between two people holding the Fanene title of the Village of Pago Pago. Underlying this dispute is appellant Fanene Kava’s ambition to exercise influence in the management of the land Lalopu'a. The trial court dismissed this action with prejudice, holding that it was barred by res judicata, having been litigated repeatedly. Fanene v. Fanene, LT No. 6-94, slip op. (Land & Titles Div. April 13, 1994). This court affirmed based on res judicata, holding that the exact issues raised by appellant had been resolved in Fanene v. Fanene, 19 A.S.R.2d 69 (Land & Titles Div. 1991), which was, itself, decided on grounds of res judicata. Fanene v. Fanene, AP No. 11-94, slip op. at 3 (App. Div. April 9, 1996).
Appellant concedes that this issue has been litigated before, but argues that our constitutional duty to protect Samoan custom should lead to a relaxation of the rule of res judicata. See REVISED CONST. OF AM. SAMOA, art. I § 3.
STANDARD OF REVIEW
A rehearing is not a matter of right, but is a privilege granted at the discretion of the appellate court. 5 C.J.S. § 1409 (1985). The function of a rehearing is to correct errors of law or fact that the appellate court may have overlooked, leading to material errors. 5 C.J.S. § 1410 (1985).
DISCUSSION
Appellant alleges that we applied the doctrine of res judicata too rigidly and in derogation of greater policy interests in preserving Samoan custom. It is true that the underlying values of res judicata must sometimes be balanced against the policies implicated by its application. Spiker v. Hankin, 188 F.2d 35, 38-39 (D.C. Cir. 1951). It is also true that the protection of Samoan custom is of primary constitutional importance in the legal and political system of American Samoa. REVISED CONST. OF Am. SAMOA, art. I § 3. However, it is not true that simply because a judicial decision implicates a compelling question of policy, the decision can never be final.
We recognize that the preservation of Samoan tradition is of paramount importance in American Samoa’s constitutional system. We also recognize that the courts have a duty to interpret the law in accordance with Samoan custom whenever possible. In this case, however, the court has definitively *117interpreted the relevant tradition. The fact that appellant refuses to accept the court’s interpretation neither makes the decision any less binding, nor entitles her to litigate the issue indefinitely, because of its acknowledged importance.
Appellant cites former Chief Justice Gardner for the proposition that western legal principles and common law labels, such as the rule of stare decisis, do not always describe Samoan custom adequately. See Tavai v. Silao, 2 A.S.R.2d 1, 2 (Land and Titles Div. 1983). For instance, reliance on precedent does not always take into account the “shifting sands of custom.” Id. Appellant then uses this statement to argue that the principle of res judicata does not comport with Samoan custom. Perhaps this is because the entire western court system is contrary to Samoan custom.
As eloquently stated by former Governor Coleman:
Our American legal system — which operates in Samoa— is based on English jurisprudence as it has evolved over the centuries. It’s a system of conflict resolution which produces clearly identifiable winners and losers. Our Samoan culture, on the other hand, is based on the thousands of years of the evolution of a Polynesian heritage of conflict resolution by consensus building. Whenever possible, we, as Polynesians, try to avoid conflict. When we can‘t avoid conflict, we try to resolve it so everyone goes away a winner if at all possible.
Peter Tali Coleman, Peter Tali Coleman on theF.B.I. Report, SAMOANEWS 10 (Aug 7, 1995).
Appellant is again attempting to use the courts of American Samoa to achieve a result that she could not achieve in the Samoan way, while arguing that Samoan custom supports her contentions. The western style court system delivers clearly identifiable winners and losers by providing decisive final decisions and orders that are legally binding and enforceable by the collective force of the community. Litigants who cannot win family support for their views, and decide instead to take their chances in court, should be aware that their interpretations of custom may not be persuasive to the court either.
Appellant cites Davis & Cox v. Summa, 751 F.2d 1507 (9th Cir. 1985), for the proposition that the doctrine of res judicata “is supported by reasonable public policy also.” Appellant’s Memo, at 3. Although we can find no language to this effect in the cited opinion, it does state, “A final judgment on the merits bars a subsequent action between the same parties or their privies over the same cause of action. The judgment prevents litigation of *118all grounds and defenses that were or could have been raised in tire action.” Id. at 1518 (citations omitted). In our opinion affirming the judgment of the trial court, we specifically found that “appellant or appellant’s predecessor raised or could have raised in previous cases every issue appellant has raised in the present case.” Fanene v. Fanene, AP No. 11-94, slip op. at 3 (April 9, 1996).
Furthermore, a petition for rehearing is meant to alert the court to any legal issues or authorities which it may have overlooked in the course of its decision, and will not be granted merely for the purpose of reargument of issues which have already been fully briefed, argued, and decided. Owens v. Hagenback-Wallace Shows, 112 A.L.R. 113, 124 (R.I. 1937). Appellant’s argument regarding the doctrine of resjudicata was adequately briefed on appeal,[Appellant’s Br. at 19-20], and was plainly rejected by this court. We see nothing in appellant’s petition that we have previously overlooked.
RULE 11
In affirming the judgment of the trial court, we said:
The issues before the trial court have been litigated repeatedly, and need not be litigated again. The biggest mystery .to us is why appellee has not attempted to impose... sanctions on appellant under T.C.R.C.P. Rule 11 or for taking a frivolous appeal. Perhaps such an action would finally convince appellant that the continuance of these lawsuits wastes both her and the court’s time and resources.
Fanene v. Fanene, AP No. 11-94, slip op. at 4 (April 9, 1996) (citation omitted). Despite this stem warning, and our explicit rejection of his arguments, appellant's counsel brought this petition for rehearing, rearguing the same tired arguments that he had attempted on appeal, wasting more of the court’s and his client’s time and resources.
On March 1, 1996, the Chief Justice adopted an amended version of T.C.R.C.P. 11, which provides, in relevant part:
(b) By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying that to the best of the [attorney’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ...
*119(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law....
It is presently manifest to this court that appellant's counsel violated this professional standard by filing this frivolous petition for rehearing, against the explicit warning of sanctions in our prior opinion.
ORDERS
The petition for rehearing is denied.
Appellant's counsel shall, within 30 days after the entry of this order, file with the court a written response to show cause, if any he has, why he should not be sanctioned for violation of T.C.R.C.P. Rule 11(b).
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486430/ | Opinion and Order on Damages:
INTRODUCTION
Plaintiff Richard Johnson seeks compensation for monies advanced by him to defendants Robert B. Coulter, South Pacific Engine and Repair, Inc., and Samoa Napa, Inc., for services provided by him as an accountant, and for office equipment given to them. Initially, Johnson claimed that the monies advanced and services performed were for the formation of a partnership between himself and Coulter in the two defendant companies. In the first part of this bifurcated trial, we rejected Johnson's partnership theory. See Johnson v. Coulter, et al., 28 A.S.R.2d 218 (Trial Div. 1995). Johnsonnow seeks to have his advances to the defendants repaid and his services compensated.
*127DISCUSSION
I. Loans
Since we have aheady rejected Johnson's partnership theory, his only remaining tack is to attempt to recover the monies advanced to the defendants as loans. The defendants do not deny that these loans were made. Johnson lent the defendants $5,000 in April 1989, and an additional $65,029.41 between August 1989 and February 1990, for a total of $70,029.41.
The defendants claim, first of all, that they have repaid a portion of this amount. Specifically, they claim to have made three payments against the debt in the amounts of $7,895, $1,500, and $676, for a total of $10,071. Johnson, on the other hand, claims that these amounts were given to him to pay his expenses for a business trip on behalf of the defendants. We are not convinced, and will offset all three payments, leaving an unpaid balance of $59,958.41.
The defendants next claim that this balance was repaid by transferring Coulter's stock in Precision Machine to Johnson. However, Coulter's shares were transferred to Trevor Simmons, not Johnson. The defendants claim that Simmons was holding these shares on Johnson's behalf, but they have failed to prove this claim. The title of the shares was in Simmons' name. This is prima facie evidence that he was the hue owner. The defendants did not call Simmons to testily. As we stated in our earlier Opinion and Order, business people dealing in sophisticated business dealings should reduce their agreements to writing. We do not accept this argument.
Johnson, on the other hand, has presented an extensive written argument that he is entitled to restitution damages above and beyond the amount conveyed to the defendants. However, Johnson has not proved unjust enrichment, fraud, or any other quasi-contract theory that allows him any recovery beyond disgorgement of the money conveyed. See Dan B. Dobbs, Handbook on the Law of Remedies § 12.1 (1973); RESTATEMENT OF RESTITUTION § 150 (1937) ("In an action of restitution in which the benefit received was money, the measure of recovery for this benefit is the amount of money received.").
Thus, the defendants owe Johnson $59,958.41, plus interest accruing from the date of the various loans. Where no written agreement accompanies a loan, a 6% interest rate is inferred. See A.S.C.A. § 28.1501; Ghiselli Bros., Inc., v. Ryan, Inc., 22 A.S.R.2d 57, 59 (Trial Div. 1992). The defendants' assertion that interest should only accrue until March 24, *1281993 when "Johnson refused to accept repayment of the loan," Def.'s Closing Arg. at 6, is baseless. First, the rule from the case they cite, Murphy v. T. Rowe Price, 8 F.3d 1420 (9th Cir. 1993), is based upon the interpretation and application of a California statute that has no parallel here. Second, an offer of settlement is not a "tender of payment." This argument has no legitimate basis.
Applying the defendants' $10,071 payment to the oldest loans, a breakdown of principal and interest still owed is as follows:
Date Loan Amount1 Interest2 Total
4/01/89 $ 00.003 $ 00.00 $ 00.00
8/07/89 $ 293.824 $ 123.27 $ 417.09
8/07/89 $ 7,535.18 $ 3,161.12 $ 10,696.30
8/18/89 $ 33,735.65 $ 14,097.33 $ 47,832.98
9/11/89 $ 5,193.76 $ 2,149.94 $ 7,343.70
1/05/90 $ 8,500.00 $ 3,355.47 $ 11,855.47
2/01/90 $ 4.700.00 $ 1.835,34 $ 6.535,34
TOTAL $ 59,958.41 $ 24,722.47 $ 84,680.88
Therefore, we enter judgment in favor of Johnson for $84,680.88.
II. Services Rendered
Johnson worked for the defendant companies for slightly over a year, from April 1,1989 until June 1990. He claims that he worked 60 to 80 horns per week during this time. We believe this figure is greatly exaggerated, at least so far as he is referring to accounting services. He apparently did not work regular hours, and the evidence just does not otherwise show that he was working between 9 to 12 hours per day, seven days per week.
He also claims that the market value of his services was $70,000 per year. *129This figure is apparently based upon his opinion of the market. Johnson did not call any witnesses to testify as to what the normal value of an accountant doing work such as his would be. Johnson is not a licensed accountant and was not when he worked for the defendants. We seriously doubt that the market value of a licensed accountant in American Samoa is $70,000, let alone an unlicensed one. Additionally, there was testimony tending to show that Johnson's work was substandard.
While Johnson worked for the defendants, he was provided with a room and the use of a vehicle. These had some value, but did not cover the entire value of Johnson's services. We award Johnson an additional $20,000 to compensate him for the entirety of services rendered for the defendants.
III. Office Equipment
Finally, Johnson alleges that he conveyed $5,000 worth of office equipment to the defendants. As a matter of fact, he has failed to adequately prove either the existence of this equipment or its value.
CONCLUSION
Johnson is entitled to the repayment of the loan principals advanced to the defendants in the amount of $59,958.41, plus accumulated interest in the amount of $24,722.47, a total of $84,680.88. He is also entitled to compensation for his services in the amount of $20,000. Post-judgment interest of 6% will accumulate on the judgment until paid.
Judgment shall enter accordingly.
It is so ordered.
We have applied the defendants' repayments to the loans oldest-in-time. We have chosen to award no interest on these offsets.
We have awarded simple interest on the loan amounts.
Loan amount - repayment = $5,000 - $5,000 = $0.
Loan amount - repayment = $5,364.82 - $5,071 = $293.82 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486431/ | Order Granting Motion to Forfeit Bond:
Defendant Ana Togialeoli was scheduled to appear for trial on charges of Assault in the First Degree on June 18, 1996, but failed to appear. Defendant was released on bail in the amount of $ 10,000, on the condition that she not leave or attempt to leave the territory, among other conditions. In lieu of a cash bond, Toloumu Lin assured defendant's compliance with the conditions of release by giving to the court her written and secured undertaking. The defendant's counsel acknowledged that the defendant fled to Western Samoa on May 4, 1996. The Government now moves for forfeiture of bail and entry of default. The Public Defender appeared and opposed the motion.1
*131T.C.R.Cr.P. 46(e)( 1) states: “If there is a breach of condition of a bond, the district court or High Court shall declare a forfeiture of the bail.” (emphasis added). At face value, this language does not seem to provide any discretion whereby we may not order forfeiture of bail if a condition of the bond is violated, as in this case.
Failure to appear for trial and violating travel restrictions are ample justification for forfeiture of a bond. Babb v. United States, 414 F.2d 719, 723 (10th Cir. 1968); Brown v. United States, 410 F.2d 212, 218 (5th Cir. 1982).
The government's motion is granted. The defendant's default is entered and bail/bond, assuring her compliance with conditions of release, is hereby declared forfeited.
The Clerk of Courts is directed to serve a copy hereof on the parties and to the surety, Toloumu Lin.
It is so ordered.
Anticipating forfeiture, the public defender argued for the remission of forfeiture under T.C.R.Cr.P. 46(e)(2), appealing to the court's "sound discretion." This argument is premature; however, a T.C.R.Cr.P. 46(e)(2) motion may be subsequently availed by the surety. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486432/ | Opinion and Order:
*133This case is relatively straightforward, both as to the facts and the law. On February 13, 1995, at approximately 6:00 a.m., the defendant vessel-M/V Fotu o Samoa, owned by defendant Western Samoa Shipping, was docking in Pago Pago Harbor. As the ship was backing down, one of the engines continued forward, causing the ship to lose control. The cause of the accident was a frayed throttle cable for the starboard engine, which became stuck in the sheathing through which it passed. The Fotu o Samoa struck the Curved Air,' a sailing vessel owned by plaintiffs William and Nisha Rizzo, which had been dry-docked for repairs. The Curved Air was knocked from its cinder-block supports and pushed along the shore. The port float of the Curved Air punctured the hull of the Fotu o Samoa. The Curved Air, along with personal property belonging to the Rizzos, was damaged.
Liability in this case is not really an issue. The Fotu o Samoa struck a dry-docked vessel when the throttle on its starboard engine malfunctioned due to disrepair. The agent for Western Samoa Shipping, Raymond Bancroft, effectively admitted that the throttle cables for the engines were, as a matter of course, never inspected and that they were never replaced until they had frayed so badly that they caused a malfunction, as happened here. Mr. Bancroft attempted to justify his company's policy of non-inspection or replacement by stating that it was impossible to view the cables where they passed through the sheathing. This argument is not convincing.
When a moving vessel strikes an anchored vessel, a presumption of negligence on the part of the moving vessel arises. 70 Am. JUR. 2d Shipping § 654 (1987). This presumption is even stronger where the moving vessel lurches onto the shore and strikes a dry-docked vessel. Furthermore,
[pjersons engaged in the business of navigation are bound to see that the vessel is seaworthy, well manned, and equipped for the business in which it is engaged, and whenever a collision ensues from the defective condition or unfitness of the colliding vessel for the voyage,... the vessel and the owner are liable.
Id. § 616 (footnote omitted). Failing to inspect or regularly replace a cable prone to fraying which results in navigational difficulties to a ship is negligent. In fact, such action may constitute gross negligence or willfulness, but the Rizzos have failed to prove such in this case.1 It is no *134defense to say that the company normally waits until such a malfunction occurs before replacing equipment that is known to periodically fail.
Having disposed of the question of negligence, the primary debate in this case centered around the measure of damages:
Damages in collision cases are estimated in the same manner as in other suits of like nature for injuries to personal property. The award should include all losses proximately resulting from the collision, the general rule being that the owner of the vessel is to be placed in the same position he would have occupied had the disaster not occurred. Although the injured party may be entitled to full indemnity, the respondents are not, as a rule, liable for such damages as might have been reasonably avoided by the exercise of ordinary skill and diligence, after the collision on the part of those in charge of the injured ship.
Where repairs are practicable, the measure of damages is the cost of restoring the injured vessel to the condition in which it was at the time of the collision....
Id. § 656, at 871. The Curved Air is a high-tech trimaran sailing vessel. It uses numerous high-tech composite materials in place of more standard materials. These materials are lightweight and extremely strong. They are also far more expensive than standard materials, both in terms of material cost and in terms of the increased skilled labor required to build with them.
W e have a plethora of estimates for the repair of the boat and other damages before us. First, we have the preliminary claim sent by Mr. Rizzo to Western Samoa Shipping about two weeks after the accident. The total estimate is $45,985, broken down as follows:
Materials to repair boat: $ 9,935
Labor to repair boat: $ 30,250 (605 hours at $ 50/ hour)2
*135Labor & crane to relocate boat: $ 800
Shelter: $ 5,000
Other personal property: n/a
Second, we have a damage assessment prepared by Mr. Rizzo, apparently around November or December 1995. This report is structured much the same as the first Rizzo report, but does not list all of the materials listed in the first report. Some of the prices have also been changed, mostly lowered. The labor estimates are all greatly reduced. The total estimate equals $39,642. This report gives the following figures:
Materials to repair boat: $ 5,782
Labor to repair boat: at $ 50/ hour) $ 19,750 (395 hours
Labor & crane rental to relocate boat: $800
New shelter: $ 2,500
Other personal property: $ 10,810
Mr. Rizzo appears to know more about composite materials and composite construction than any other witness. Unfortunately, he is an interested party, and his ability to function as an expert witness is questionable. We assume that the first estimate is higher than the second because it constituted an "offer" to the defendants to settle the case.3
Third, we have an estimate prepared at the request of the Rizzos by Lewis Tung and Lawrence Goodson. Mr. Tung, who testified at trial, has extensive experience with composite materials and construction. Unfortunately, he has limited experience with marine surveying and is not a licensed surveyor. The Tung/Goodson report's material estimates match the first Rizzo report almost exactly. Their labor estimates are even higher than that of the first Rizzo report. The Tung/Goodson’s report provides a total damage estimate of $61,585:
Materials to repair boat: $ 9,9254
Labor to repair boat: $ 37,500 (750 hours at $ 50/ hour)
*136Labor & crane rental to relocate boat: n/a
New shelter: n/a
Other personal property: $ 14,160
This report seems to be largely a copy of the first Rizzo report, which is of questionable value, as discussed above.
Fourth, we have a report prepared by Michael Spencer of Westside Shipping at the Rizzo's request. This report is very brief, and is not broken down into components like the others. We have numerous problems with this report, and question its impartiality. Among other things, the report is of hearsay value and there is a possible conflict of interest for Westside Shipping. This report makes no mention of composite materials or construction. The total estimate is $12,895. It contains the following partial estimates:
Materials to repair boat: $ 2,725
Labor to repair boat: $ 35/ hour) $ 9,520 (272 hours at
Labor & crane rental to relocate boat: n/a
New shelter: n/a
Other personal property: n/a
Outside labor: $750
Fifth, we have a report prepared by Wickham Marine at the request of the defendants. Mr. Wickham has a great deal of experience in marine surveying, but very little experience with composite materials. His report contradicts the other reports by stating that there is little or no composite construction and that the boat contains foam, which it does not. His labor factor does not reflect the local market and he does not include estimates for composite materials. For these reasons, we attribute little value to his report. He gives a total estimate range of $7,304.37 to $8,612. The higher amount is broken down as follows:
Materials to repair boat: $3,482
Labor to repair boat: $5,940 (270 hours at $22/hour)
Labor & crane rental to relocate boat: $400
New shelter: n/a
Other personal property: n/a
Sixth, we have a report prepared by Maselino Ioane at the request of the defendants. Ioane is a shipbuilder currently residing in American Samoa with considerable boat building experience. However, his experience with composites seemed to be very limited, and the epoxies listed in his report do not seem to be suitable matches for the composites he listed. According to his own testimony, he spent a very short time examining the boat. Ioane *137was not a convincing expert witness. Of considerable note to us, however, is the fact that Ioane lists his labor rate at $50/hour, the same as Rizzo's. Ioane's total estimated price is $8,550, parsed as follows:
Materials to repair boat: $4,100
Labor to repair boat: $4,750 (95 hours at $50/hour)
Labor & crane rental to relocate boat: n/a
New shelter: n/a
Other personal property: n/a
Thus we have six estimates supposedly prepared by six expert witnesses.5 Of these six, the most experienced expert in the type of composite construction with which we are dealing is Mr. Rizzo. He is, however, a party to this action and his testimony is, therefore, troublesome.6 The second most competent witness in the field of composite construction, Mr. Tung, is not a certified surveyor, and seems to have primarily parroted one of Rizzo's reports.7 The Ioane, Wickham, and Spencer reports are simply inapplicable-they deal with the wrong materials and construction techniques for this boat, and thus are of little help in assessing damages.
We are not required to assess damages with mathematical precision, though we strive to be as accurate as possible. See Cunningham v. City of Overland, 804 F.2d 1066, 1070 (8th Cir. 1986). In striving to come to an accurate determination of damages to the boat, we feel we must also discuss the damage estimates for the personal property.
*138The Rizzos have submitted a list of 21 personal property items for which they are seeking compensation.8 The prices on this list seem highly inflated to us. For instance, they have valued their 1972 Ford van at $2,500. There was extensive testimony, however, as to the dilapidated condition of this van. It is questionable whether it even ran before the accident. From our examination of the photographic exhibits and testimony, we believe its value to be closer to $200 - $300. They value a damaged container at $ 1,000, the price that they paid for it. From our assessment of the evidence, there is little or no damage to this container. Furniture damage was estimated at $ 1,500, a price that we find far too high. In all, we believe that the nearly $11,000 personal property claim made by the Rizzos is probably worth about $2,000 - $3,000.
We have more skill, as laymen, in assessing the value of the Rizzos' personal property than we do in assessing the damage to a high-tech sailing vessel. While Mr. Rizzo was the most convincing expert regarding this type of construction, we are left with doubt about his veracity in making estimates for the boat's repair. While we do not think that he inflated the boat repair estimates as much as those for the personal property, we are convinced that there was some inflation. Troubling to us is the fact that the Rizzos submitted no supporting receipts whatsoever. According to Mr. Rizzo's testimony, the damage suffered by the Curved Air in the collision is very similar to damage suffered by the boat during Hurricane Ofa. He has been repairing that damage for the past few years, yet he produced no receipts for the materials he purchased, and no estimates of the time he spent in making these repairs. He did not even produce a receipt for the crane, which he has already rented to relocate the vessel.
Additionally, Mr. Rizzo has consistently priced all labor at the rate he charges for shipbuilding and repair — $50 per hour. This price was confirmed by Ioane as a fair price for shipbuilding by someone of Mr. Rizzo's experience. However, this does not make it a fair rate for such things as clean up or relocating a ship. Even if Mr. Rizzo does this work himself, and even if he could prove, which he has not, that he is missing time from shipbuilding that would otherwise be compensated, he does not receive a shipbuilder’s salary for work that is not shipbuilding.
Having said all of this, we believe the most accurate basis for estimating damages to be Mr. Rizzo's second report, estimating ship repair costs at $5,782 for materials, $ 19,750 for labor, and $800 for relocation-a total of *139$26,332. For the reasons listed above, we believe this estimate is inflated, and thus award $22,000 in total for ship repair. We award an additional $3,000 for other property damage including the claimed damage to the shelter.
Judgment will accordingly enter in favor of the plaintiffs and against the defendants in the amount of $25,000.
It is so ordered.
Where a company is aware that fraying such as this is going to occur, resulting in navigational difficulties and possible collisions, the failure to take steps to prevent such an occurrence seems to us to be grossly negligent, *134reckless or willful. However, in order to so find, we require evidence of the standard of care in the industry, the number of accidents which occur from throttle cables fraying, the cost of replacement, etc. The Rizzos have presented no such evidence, and thus we cannot find gross negligence or more.
This report only includes labor times, without an hourly rate. We have *135assumed a $50 per hour rate for Mr. Rizzo's labor.
We are aware that parties to a lawsuit often inflate estimates when communicating to achieve a better "bargaining position."
We have not corrected the mathematical errors in this report, but have simply totaled the material subtotals provided.
Two of the reports were prepared by Mr. Rizzo, while one was prepared by two people--Tung and Goodson.
We have further reason to believe that the Rizzos may have inflated the estimate for the boat repair because their other estimate for personal property damage is substantially inflated. See infra.
The defendants went to great length at trial to show how the Tung/Goodson report was similar to the preliminary report sent by Rizzo to Western Samoa Shipping. We note that the two reports are not identical, but are similar. This does not, however, mean either that there was collusion or that the reports have no value. It is quite likely that Tung, and Goodson, the only experts besides Rizzo who seem competent to assess damages to composite construction, could have substantially agreed with Mr. Rizzo's assessment and provided the same or similar numbers. This is particularly true where we are dealing with materials which only have one or a very few suppliers, and where there is only one competent builder in the territory, meaning that prices are fixed.
Calling this list "personal property" is not wholly accurate, since it also includes labor for clean up. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486433/ | Order Denying Motion to Dismiss Count III:
The question before us is whether a tort exists in American Samoa for bad faith delay in paying insurance claims, notwithstanding a statute imposing *140penalties for delay.
From the pleadings, we glean the following: On September 24, 1995, Paisano's Restaurant, owned by Paisano's Corporation ("Paisano's") suffered a fire, which caused significant property damage. Paisano's tendered an insurance claim to National Pacific Insurance ("NPI"), which has not, at present, made payment on the claim. On May 24,1995, Paisano’s filed this lawsuit, claiming, among other things, damages in tort for bad faith delay on the part of NPI in failing to settle Paisano's loss. NPI argues that the bad faith tort does not apply in American Samoa because a legislative enactment has replaced it. We were provided the benefit of well-written and well-researched memoranda by counsel.
DISCUSSION
There exists at common law a tort for bad faith delay in paying legitimate insurance claims. Spencer v. Aetna Life & Casualty Ins., 611 P.2d 149, 151-53 (Kan. 1980); Aetna Casualty & Surety v. Broadway Arms, 664 S.W.2d 463, 465 (Ark. 1984); Gruenberg v. Aetna Ins., 510 P.2d 1032, 1037-38 (Cal. 1973); Communale v. Traders & General Ins., 328 P.2d 198, 203 (Cal. 1958). Several courts, however, have held that the bad faith tort has been preempted by statutes that have the same object. Kush v. American States Ins., 853 F.2d 1380, 1384-86 (7th Cir. 1988); Spencer, 611 P.2d at 158; Debolt v. Mutual of Omaha, 371 N.E.2d 373, 377 (Ill. 1978); Kinney v. St. Paul Mercury Ins., 458 N.E.2d 79, 82-83 (Ill. 1983) Leonard v. Fireman’s Ins., 111 S.E.2d 773, 775 (Ga. App. 1959); Tate v. Aetna Casualty & Surety, 253 S.E.2d 775, 777 (Ga. 1979); Duncan v. Andrew County Mutual Ins., 665 S.W.2d 13, 18-20 (Mo. 1983). As nearly as we can tell, the bad faith statutes referred to in these cases have four elements in common: (1) the object of punishing delay; (2) setting the penalty as a percentage of the total insured loss; (3) permitting recovery of attorney's fees and costs by the insured; and (4) a required showing by the insured of bad faith on the part of the insurer. See Kush, supra at 1384 n.2; Duncan, 665 S.W.2d at 19 n.3; Kinney, 458 N.E.2d at 81; Debolt, 371 N.E.2d at 377; Leonard, 111 S.E.2d at 775. American Samoa's statute includes all of these elements except the requirement that the insured demonstrate the insurer's bad faith. A.S.C.A. § 29.1577 reads:
In all cases where loss occurs and the insurer liable therefore fails to pay the same within the time specified in the policy, after demand made therefore, the insurer is liable to pay the holder of the policy, in addition to the amount of such loss, 12% damages upon the amount of the loss, together with all reasonable attorney's fees for the prosecution and collection of the loss ....
*141The enactment provides liquidates damages at 12% of the total insured loss, plus attorney's fees, for delay in paying a legitimate insurance claim. Furthermore, it imposes strict liability for delay, so a demonstration of bad faith on the part of the insurer is not necessary to trigger the 12% penalty. NPI essentially argues that the statutory penalty for delay has preempted any common law remedy, while Paisano's argues that the bad faith tort survives and may be imposed in addition to the statutory remedy, since the statute does not require a showing of bad faith for the imposition of the penalty.
The Supreme Court of Arkansas addressed the same legal question, and concluded:
Appellant argues that the ... penalty and fees statute ... pre-empt[s] the area upon which the tort of bad faith is founded. We do not agree with this argument. .. . The penalty and fees statute is the primary remedy an insured has against an insurer who fails or refuses to pay a claim when there is no bad faith. . . . [This remedy does not deal] with the area of bad faith much less pre-empts it.
Broadway Arms, 664 S.W.2d at 465 (emphasis added; citations omitted). In other words, when the statute penalizing delay in paying insurance claims does not rest upon a showing of bad faith, the bad faith tort may provide an additional penalty. We are disposed to follow this construction and read local statute accordingly. By employing language in A.S.C.A § 29.1577 that speaks of all cases, the Fono did not limit the enactment's reach only to cases of bad faith.1 The legislature has clearly seen fit to afford a higher punishment for the bad faith of the insurer, in addition to the fixed level of *142compensation provided for the insured in the case of any delay regardless of bad faith. While it is of course open to the Fono to include language in the statute eliminating the bad faith tort, we hold that the present language § 29.1577 does not do so.
The motion to dismiss Count III is denied.
It is so ordered.
NPI cited to McMoore v. National Pacific Insurance, CA No. 31-93, slip op. at 1 n.l (Trial Div. November 29, 1994), in which this court suggested in dicta that the relevant statute was perhaps punitive rather than compensatory in nature, and that some sort of showing of fault or bad faith on the part of the insurer was envisaged. Since attorney's fees and costs were not addressed by the claimant in that case, this argument was not essential to the opinion. On further reflection, however, and actually confronted here with the issue, we are unable to reconcile this contradictory dicta with the plain language of the statute. The statute is applicable "[i]n all cases where loss occurs and the insurer liable therefore fails to pay the same within the time specified in the policy, after demand made therefore.. .." A.S.C.A. § 29.1577 (emphasis added). The statutory language simply does not leave any room to prevent recovery for a failure to demonstrate bad faith on the part of the insurer. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486435/ | Order Denying Motion for Summary Judgment:
We earlier denied defendant National Pacific Insurance Company's ("NPI") motion for summary judgment, satisfied on the extent of the record then before us that a genuine issue of fact existed as to whether a provision of the relevant insurance contract between the parties was entered into by mutual mistake, and thus opening the contract to reformation. See American Samoa Power Authority v. National Pacific Ins., 23 A.S.R.2d 100 (Trial Div. 1993). NPI has since moved for summary judgment, arguing the absence of mutual mistake, and hence the absence of any further issues of fact.
The underlying dispute involves a transaction in which plaintiff American Samoa Power Authority ("ASPA") agreed to purchase insurance for a turbine that it had rented. The language of the insurance agreement clearly indicates that insurance would only cover damages resulting from the negligence of ASPA or its employees. There is no indication that the damage involved in this case was related to the negligence of ASPA or its employees. ASPA complains that it was unaware of this limiting language, and that the limitation does not represent the true intentions of the parties. Conversely, NPI argues that the language of the agreement reflected exactly the extent of coverage that it offered to ASPA.
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). The facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material, are presumed to be trae, and that all inferences are construed in a light most favorable to the non-moving *147party. Ah Mai v. American Samoa Government, 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
NPI claims that in our denial of its earlier motion for summary judgment, we delimited the issues for trial to the issue of whether or not there was a mutual mistake regarding the limitation of insurance coverage to damages resulting from the negligence of ASPA employees. Nowhere in the opinion did we so delimit the issues. We simply found that the issue of mutual mistake presented a genuine issue for trial. See American Samoa Power Authority v. National Pacific Ins., 23 A.S.R.2d 100. However, since ASPA has presented no other legal theory in defense against this motion for summary judgment, we base the present order solely on whether or not this case can proceed to trial on the issue of mutual mistake.
It is basic contract law that a party to a contract has a duty to read the contract and "may not later complain that he did not read the instrument or that he did not understand its contents." JOHN D. Calamari & JOSEPH M. Perillo, Contracts § 9-42 (2d ed. 1979). An exception to this general rule exists for contracts induced by misrepresentation for the reason of mistake. Id. at § 9-43(c). If the mistake occurs because of the failure of one party to read the contract, however, it will not ordinarily justify avoidance of the contract. Id.; Sanger v. Yellow Cab, 486 S.W.2d 477, 481 (Mo. 1972). Both parties must be mistaken about the relevant contract term to justify reformation of the contract. United States v. Fowler, 913 F.2d 1382, 1389 (9th Cir. 1990).
[A] mutual mistake of fact occurs where the parties to an agreement have a common intention, but the written contract erroneously reflects that intention due to a mistake on the part of both parties in writing the-agreement. Accordingly, in order for the affirmative defense of mutual mistake to be sustained, defendant must raise fact issues showing that both parties were acting under the same misunderstanding of the same material fact.
Newsom v. Starkey, 541 S.W.2d 468, 472 (Tex. 1976) (emphasis added).
ASPA's rendition of the facts is, essentially, that NPI never informed ASPA about the limitation of insurance coverage to damage caused by the negligence of ASPA or its employees, and that ASPA was not otherwise aware of this limitation. ASPA does not allege fraud on the part of NPI, nor *148that NPI was mistaken as to the contents of the document. These circumstances give rise to a factual question as to whether the language of the policy contradicts an actual agreement entered into by the parties, or if the fault belongs solely to ASPA.
When a party signs an instrument without reading it, it is clear that in a loose (but not legal) sense he is operating under a mistake as to the contents of the document. Under the rules previously stated, however, he is not ordinarily allowed to avoid the contract. Nonetheless, the situation is different if the writing does not reflect the agreement previously made and the term was not omitted by agreement. In such a situation most courts have granted reformation for mutual mistake despite the negligence involved in failing to read the document, the parol evidence rule, and the Statute of Frauds.
John D. Calamari & Joseph M. Perillo, Contracts § 9-43 (2d ed. 1979) (citations omitted). Even if we assume ASPA's argument to be correct, it does not support the finding of a mutual mistake, because it does not attempt to show that NPI was mistaken as to the contents of the agreement, nor that NPI had ever agreed in any way to provide more extensive coverage than what was enumerated in the written policy. ASPA's argument makes factual claims only about what ASPA requested, not about what NPI agreed to provide. The deposition of Victor H. Stanley (at 29) does provide testimony, however, that NPI's representative agreed with Mr. Stanley to provide the more extensive coverage. We are puzzled as to why this testimony received no mention in ASPA's memorandum opposing summary judgment.
A motion for summary judgment may be denied at any time and for any reason when the court concludes that justice is served by proceeding to trial rather than resolving the case on motion. Charles Alan Wright, Law of Federal Courts § 99 (2d ed. 1972). Finding that an issue of material fact exists regarding the extent of coverage that NPI agreed to provide, we deny the motion for summary judgment.
ORDER
The motion for summary judgment is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486785/ | ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT
On April 16, 2002, we denied defendants motion for partial summary judgment. In essence, we determined that there were still genuine issues of material fact to be resolved which would require a trial. Almost one year later, on April 2, 2003, defendant renewed their same motion, citing more or less the same evidence but interpreting it in a different light. There is no basis for reconsideration of a denial of a summary judgment motion. We will not entertain a motion which asks us to undertake the same analysis we have already undertaken.
Ironically, at oral argument counsel stated “judicial economy” as one reason for reconsideration, in that we would be spared having to sit through six or more days of trial. But “judicial economy” is just not a factor that a T.C.R.C.P. 56 evaluation admits. The Court may not abdicate its responsibility to provide a forum for resolving factual disputes simply because it might save it time. If anything is a waste of judicial economy, it is duplicitous motions requiring the Court’s attention.
*104Defendant’s motion for partial summary judgment is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486437/ | Order on Motion to Modify Conditions of Probation:
The defendant was convicted of Assault in the First Degree, a Class B Felony, and was sentenced to five years imprisonment. Execution of sentence was suspended for a period of five years and the defendant was placed on probation for five years, subject to a number of conditions. The defendant was required to, among other things, undertake a term of detention of twenty months at the Tafuna Correctional Facilities ("TCF"), without any release whatsoever, except for medical emergency. We earlier granted defendant's request to modify this condition of probation, citing hardship to his dependents, to permit his participation in work release programs provided by the TCF. Defendant has now served a little over 15 months of his detention and he has again moved for further modification of his probation to allow his early release from the remainder his probationary detention. The thrust of defendant's motion is the enhancement of rehabilitative goals, and his eligibility thereunder.
In 1987, the Fono amended A.S.C.A. § 46.2206 to permit thé sentencing court to impose as a condition of probation a term of detention of up to one-third of the authorized maximum sentence of imprisonment. In so doing, the Fono made it quite clear that the sentencing court may also take into account retributive goals, as well as rehabilitative goals, when framing an appropriate sentence. Atuatasi v. Moaali'itele, 8 A.S.R.2d 53 (1988), *152aff'd sub. nom. 9 A.S.R.2d 67 (Appellate Div. 1988); see also American Samoa Gov’t v. Fa'amoni, 17 A.S.R.2d 114 (Trial Div. 1990). Obviously, by imposing the extended probationary detention term, beyond traditional, "shock value" detention terms, the court had additional sentencing goals in mind beyond rehabilitation.
After due consideration to the favorable testimony of the Assistant W arden, defendant's employer, and to the submissions of counsel, and after careful review of the circumstances of the offense for which the defendant was convicted, and the sentence imposed in this matter, the court is not persuaded that the term of detention as heretofore modified, should be further varied.
The motion is, therefore, denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486438/ | Decision and Order For In Custodia Legis Costs:
INTRODUCTION
The hearing in this matter resumed June 7,1996, having commenced March 5, 1996, and continued to the later date. Evidence was presented on the issue, inter alia, of the payment of custodia legis fees, which had been incurred by plaintiff for the arrest of the vessels Clover #7 and Clover #8. Three objections to the payment of the fees were made. On June 10,1996, we ordered the three objecting attorneys to present written memoranda in support of their objections, or they would be waived. *154Hyundai Merchant Marine Co., Ltd chose not to file a memorandum, and thus its objection is waived. YKL Japan, Ltd. ("YKL") filed a memorandum on June 12,1996. Itochu Corporation and Grace Shipholding S.A. filed a memorandum June 18,1996. Finally, Pacific Northern Marine Fuels, Inc. ("PNMF") filed a response memorandum on June 27,1996. No other memoranda have been filed.
DISCUSSION
When a vessel is seized and sold, the costs of holding the vessel in custodia legis are generally given priority over other claims where "equity and good conscience" so require. New York Dock Co. v. Steamship Poznan, 274 U.S. 117, 122 (1927). However, claims incurred while the vessel is in custodia legis must be proven and supported just as any other claim. Not only must the claims be equitable and reasonable, they must inure to the benefit of all claimants. See Kingsgate Oil v. M/V Green Star, 815 F.2d 918, 922 (3d Cir. 1987). PNMF has moved this court to pay the funds it has expended in custodia legis for the two vessels in this case.
As of June 7, 1996, PNMF claims total expenditures in custodia legis for the Clover #7 of $30,278.25: $22,739.06 for mooring, $668.94 for shore power, $6,715.25 for watchmen, and $155 for advertising. As of June 7, 1996, it claims total custodia legis expenditures for the Clover #8 of $40,694.77: $27,390.88 for mooring, $668.94 for shore power, $12,479.95 for watchmen, and $155.00 for advertising. The charges for mooring and shore power include interest.
I. Mooring And Shore Power
YKL has objected to the payment of the mooring and shore power fees on the basis that they are usurious. Southwest Marine, who docked the vessels while under arrest, has invoiced its services with interest on past due accounts accruing at 18%. They have billed interest for every invoice presented to PNMF. There was no written agreement between the parties to the contract, Southwest Marine and PNMF. The American Samoa usury statute states:
Except as otherwise provided in this title, no person may charge more than 15 percent a year as interest on a debt or obligation, and no agreement to pay a rate of interest higher than 6 percent a year shall be enforceable unless the same is in writing and is signed by the party to be charged.
A.S.C.A. § 28.1501(a). Thus, in the absence of a written agreement signed *155by the party to be charged, any interest rate above 6% is usurious.1 For usurious interest charges, Samoan law provides:
Any person who . . . extends credit in any manner whatsoever and takes, receives, reserves, or assesses interest... thereon at a rate higher than that allowed by law . . . shall forfeit to the debtor the full amount of the debt or obligation upon which the unlawful interest. . . was charged.
A.S.C.A. § 28.1510. Thus, YKL argues that the custodia legis fees charged by Southwest Marine are illegal and that PNMF should not be repaid for incurring an illegal debt.
The primary defense offered by PNMF is that YKL, who is not a party to the contract between Southwest Marine and PNMF, has no standing to seek that the contract be voided. As the Shantilal Court stated "the . . . forfeiture provision [creates] a defense for debtors in civil court." Shantilal Bros., Ltd., v. Samoa Miscellaneous, Inc., 29 A.S.R.2d 210 (Trial Div. 1996) (emphasis added). Since no claim is currently before the court on the Southwest Marine contract, and since Southwest Marine, the debtor, is not even a party to this action, A.S.C.A. § 28.1510 is not directly applicable.
On the contrary, what is presently before the court is PNMF's claim to have expenses paid which they have incurred in custodia legis. They want these funds to be paid out of the proceeds from the sale of the ships. YKL has an interest in how this fund is expended and has standing to challenge payment of unreasonable docking fee, whether or not PNMF eventually challenges the underlying contract in another action.
Thus the sole issue currently before the Court is the determination of reasonable and equitable custodia legis fees. After the Court determines what custodia legis fees are reasonable and equitable, it may then give priority to those fees:
A person furnishing goods or services to a vessel after its arrest (in custodia legis) does not acquire a maritime lien against the vessel for the value of those goods or services. A district court sitting in admiralty, however, has *156inherent equitable power to give priority to claims arising out of the administration of property within its jurisdiction where 'equity and good conscience' so require.
Kingsgate Oil v. M/V Green Star, 815 F.2d 918, 922 (3d Cir. 1987); see New York Dock Co. v. Steamship Poznan, 274 U.S. 117, 122 (1927). The court will only reimburse custodia legis expenses that are reasonable and equitable. This is the only way to ensure that the interests of all parties are protected.
Although the usury statute is not directly applicable, this Court finds it useful in the determination of reasonable interest charges. So stating, the Court finds 6% to be the maximum reasonable interest rate on an oral contract for indebtedness.
The custodia legis fees for mooring and shore power will be paid from the proceeds of the vessels' sale but interest on past due accounts shall be charged at 6% rather than at the unreasonable rate of 18%.
II. Watchmen
Itochu and Grace Shipholding ("Grace") have objected to the payment ofanycwsiotfia/egf.yfeesafterDecember 11,1995, the date upon which the sales of the vessels were supposed to be final. Those sales were delayed because the purchasers did not produce the payments on that date. Itochu and Grace state the correct standard for determining which expenses qualify as administrative expenses that will receive priority: "'administrative expenses' are recoverable when the expenditures inures [sic] to the benefit of all claimants, where it contributed to [or created] the fund now available.'" Itochu Br. at 3 (quoting Kingsgate Oil v. M/V Green Star, 815 F.2d 918, 918) (modification in original). They claim that the expenses incurred after December 11, 1995, did not inure to the benefit of all the claimants. We disagree.
When the buyers failed to produce the capital on the appropriate date, the ships were required to remain under custodia legis. This was not the fault of PNMF, who was required to continue incurring those expenses. While Itochu might make an argument that those expenses are properly charged against the buyers, such a claim is not before us. In order to obtain the funds upon which all parties now claim, the vessels had to remain under the jurisdiction of the court. We will not charge the cost of the buyers' failure to PNMF who undertook the burden of maintaining the vessels in custodia *157legis.
CONCLUSION
Thus, the claimed custodia legis fees for mooring the vessels at Southwest Marine and for shore power approved with interest accruing on past due amounts at the rate of 6%. The other custodia legis fees are approved in full.
PNMF will submit to this Court a recalculation of Mooring and Shore Power charges using the approved rate of interest. PNMF will also be paid $6,715.25 for watchmen and $155 for advertising on the Clover #7, for a total of $6,870.25; and $12,479.95 for watchmen and $155 for advertising on the Clover #5, for a total of $12,634.95.
It is so ordered.
The writing requirement has also been held to apply to A.S.C.A. § 28.1503, which provides that a maximum interest rate of 18% may be charged on certain business debts. See Shantilal Bros., Ltd., v. Samoa Miscellaneous, Inc., 29 A.S.R.2d 206 at 211 (Trial Div. 1996). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486440/ | Decision and Order:
This outstanding matter has been slow in getting to trial owing to the many, but unfortunately unsuccessful, attempts by the parties to resolve their dispute extra-judicially. Trial herein concluded on July 9, 1996, and counsel were ordered to submit post-trial briefs to be filed by plaintiff on or before August 9,1996, and by defendants on or before September 6,1996. Neither party has filed a brief to date. Accordingly, no briefs will be entertained at this time and the parties are deemed to have submitted the matter on the record.
FACTS
The facts in this matter are rather straightforward. Defendants are members of the Maluia family of Nu'uuli, occupying a part of Maluia communal land known as "Asofitu," located in Nu'uuli.
The plaintiffs are not members of the Maluia family. However, they are also occupying a part of Asofitu pursuant to a lease agreement concluded with the Maluia family's senior matai, Maluia Laumua, and duly approved by the Governor on October 29,1990, in accordance with the requirements of A.S.C.A. § 37.0222. They have built a house on Asofitu. The plaintiffs originally came upon Asofitu at the invitation of the defendants and for many years, the parties lived harmoniously together in a typically Samoan household fashion. In this quasi-family setting, plaintiffs contributed not only to the defendants in the latter's traditional obligations of tautua, but they also contributed directly to the Maluia family's senior matai. Eventually, it was decided that plaintiffs should have their own house. In furtherance of this purpose, and to accommodate the American Samoa Development Bank's home-lending requirements, the parties procured, in plaintiffs' name, a separation agreement and a long-term lease from the senior matai to provide the requisite security to the bank for a loan to plaintiffs. Thereafter, plaintiffs built their home, a 50' x 30' three bedroom house, utilizing not only loan proceeds but also personal savings that they and their older children had accumulated.
For a time, the parties continued living together as a congenial family unit *161until plaintiffs decided that defendants' familial demands had become too excessive and onerous. According to plaintiffs, the straw that apparently broke the camel's back was plaintiffs recurringly costly monthly telephone bill, which was largely due to the defendants' overseas calls, but apparently left to be paid by plaintiffs. Plaintiffs subsequently took the tactful remedial measure of cutting their telephone, and from that point on the harmonious family setting began to deteriorate, escalating at times to physical altercation. Defendants attempted to oust plaintiffs, but the latter stood their ground. Eventually this lawsuit arose.
Plaintiffs sued to enjoin defendants from interfering with their quiet enjoyment of the leasehold. They pray in the alternative not only for equitable restitution for the value of improvements, but market value of the lease, if they are forcibly dispossessed of Asofitu. They have indicated a willingness to leave Asofitu if they could be justly compensated. The defendants, on the other hand, essentially argue that since the plaintiffs, being non-members of the Maluia family, were brought onto Asofitu at their instance; that since plaintiffs are no longer welcomed, they are no longer entitled to be on Asofitu. Additionally, the defendants take the unyielding stance that plaintiffs should not only be made to leave their family's land, but that they can take their house with them.
DISCUSSION
Plaintiffs' have a valid lease agreement duly executed by the matai, assented to by the Governor, and recorded with the Territorial Registrar. They have a leasehold estate in Asofitu, to the extent provided by the lease including the right to quiet enjoyment under Article 2. Defendants' unsupported arguments, confusing customary entitlement to communal land and a leasehold entitlement to that land, are for naught. At the same time, we are not impressed with the senior matai's attempts to go back on the separation and lease agreements, citing lack of understanding as to what was entailed by the instruments he had signed. In an earlier interlocutory hearing, the senior matai testified that he had given the lease and separation agreement to the non-family plaintiffs because he was persuaded by defendants. His apparent change of heart is unconvincing.
CONCLUSION
Plaintiffs are clearly entitled to the permanent injunction they seek against the defendants in order to secure their right to quiet enjoyment contained in Article 2. Accordingly, the defendants, their aiga, agents, servants, attorneys and all those in active concert with them are hereby enjoined and restrained from any further interference with plaintiffs quiet enjoyment of their leasehold estate, as more particularly defined in that *162lease agreement between entered into between Maluia Laumua and plaintiffs, recorded with the Territorial Registrar in Lease Agreement, Volume LA-90, at page 192.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486441/ | Decision and Order:
This dispute concerns a portion of the land "Tafeta."1 The disputed area, as delineated by plaintiffs survey, contains approximately 2.37 acres and is situated entirely within a bend in the main highway as it winds uphill toward Aoloaufou and A'asufou. We noted during our visit to the site that much of what is encompassed in plaintiffs' survey is a rather steep windswept slope that nonetheless bears evidence of cultivation in the way of scattered coconut trees and some hardy breadfruit trees. At the same time, this acreage includes, at the bottom of the cliff, a sizeable flat area which apparently resulted from past excavation by the American Samoa Government to station the very large water tank and booster pump that are found there today. Defendant, although objecting to all of plaintiffs' claim, *164has merely surveyed this flat area (approximately .826 acres), laying claim to the same on his family's behalf.2
In 1990, plaintiffs surveyed their claim and offered the same for registration with the Territorial Registrar as the communal family land of the Tauaola family of Aoloaufou.3 Defendant Tuia'ana Moi, a Faleniu matai, objected to the plaintifFs’ offer of registration on the basis that plaintiffs claim was within "Tafeta," which was appurtenant to the village of Faleniu. Defendant further claimed that this disputed area had been assigned to his family by the Faleniu village council.
DISCUSSION
While the area claimed by plaintiffs may well have been a part of early Faleniu village clearings, we are satisfied on the evidence that the disputed area has been in the exclusive use and occupation'of the Tauaola family since the late 1940s early 1950s following the Second World War. We believe that the Tauaola family was part of that "postwar migration" of "ambitious and/or adventurous" Aoloau families that this court spoke of in Magalei v. Asifoa, 19 A.S.R.2d at 91, as having descended downhill and settled lands on the south slope side of the mountain; the disputed area abuts these other various Aoloau holdings awarded in Magalei. The evidence shows that the Tauaola family not only maintained crops within the disputed area over the years but they also maintained residential and work huts. We found no evidence of any recent interest asserted by the Tuia'ana people in and to the disputed area nor any interference with the Tauaola family's use and occupation until the issue of water-storage rents recently came into being. Indeed, the extent of the Tuia' ana survey bespeaks the limited extent of defendant's interest in the general vicinity, being coincidental only with that area on lease to the government. It is apparent therefore that any claims that the Tuia'ana family might have had in times past have been effectively abandoned for the many years of use and occupation by the Tauaola.
We are satisfied on the evidence that the Tauaola family's occupation of the disputed area has been continuous, open, notorious, and hostile to any *165claim of ownership by the Tuia'ana family, for a period in excess of twenty years required by the adverse possession statute then in force. A.S.C.A. § 37.0120 (prior to 1982 amendment).
We accordingly conclude that the land area as depicted in plaintiffs' survey, has been acquired by the Tauaola family of Aoloau through adverse possession. The disputed area shall be recorded with the Territorial Registrar's Office as the communal land of the Tauaola family of Aoloaufou, subject to reconciliation of plaintiffs' boundary lines with those boundary lines of the adjacent land claims as previously established by the decision in Magalei v. Asifoa, supra.
It is so ordered.
Tafeta is a large land area located inland of Faleniu village and south of the mountain plateau that contains the villages Aoloaufou and A'asufou. Tafeta features prominently in recent Faleniu village history as well as on the records of land and titles division. See Magalei v. Asifoa, 19 A.S.R.2d 86, 88 (Land & Titles Div. 1991).
The water tank and booster pump are generating revenue for the owner of the disputed area. An accumulating fund is currently being held on stake by the government pending the outcome of this litigation.
In court, however, plaintiffs subsequently attempted to assert a change of theory from that of communal land ownership to individual land ownership. After the close of testimony, plaintiffs reverted on final argument to their original premise of communal ownership. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486442/ | Petitioners Adrienne Stephens, Jason Stephens, Nicholas Stephens and Adelita Stephens ("the Stephens children") bring this motion for reconsideration to request that the court: (1) include the smaller parcel of the land in the constructive trust; (2) name only the Stephens children as the tenants in common; (3) appoint someone other than respondent Cecilia M. Stephens ("Cecilia") as the guardian of Stephens children's estates in the land; and (4) cancel the orders to James Stephens ("James") in his capacity as guardian ad litem for the Stephens children.
DISCUSSION
Our findings of fact in the opinion and order of June 3, 1996 ("the decision") have been apparently misread in certain respects. Thus, we will reiterate those findings particularly relevant to the reconsideration issues to clarify the decision.
Under the evidence, James and Cecilia did not contemplate any particular development or use of either the smaller parcel or larger parcel of land when these parcels were purchased, the smaller parcel first, during their marriage. Cecilia held title to both parcels, legally necessary as between James and Cecilia. When divorce proceedings ensued, she was awarded both parcels by court order, based on their mutual agreement. After their divorce and at James' continual urging, Cecilia finally agreed to build the house on the larger parcel. Based on the actual mortgage, she at least implicitly agreed to use both parcels as collateral for bank financing of this project. The house was substantially built in due course and became real property and an integral part of the underlying land.
Both James and Cecilia understood that the project would be for the benefit of the Stephens children. They did not expressly agree, though, on Cecilia's retained interest in the land or prospective interest in the house. Both understood that Cecilia would live there with the Stephens children. However she articulated her thoughts, Cecilia did not intend to give up her entire title to the land and did expect to gain a permanent interest in the house. James, on the other hand, thought, since in his mind he would be paying for the house,1 that Cecilia was giving her title to the land and any *167potential title to the house to the Stephens children. In short, James and Cecilia did not have a complete meeting of the minds with respect to their intentions on title to both parcels and the house when they entered the rough oral agreement presented by the evidence.
Most important, we are not now trying to fully reconstruct and enforce a rather imprecise oral accommodation. Finding no intent to establish a trust in connection with the agreement, we are not creating a resulting trust to resolve this action. Rather, we are creating a constructive trust as an equitable remedy to protect the Stephens children's best interests under the present circumstances.
1. Inclusion of the Smaller Parcel
The smaller parcel and the larger parcel were purchased separately, with defined legal boundaries. A third party now has a contract to purchase the smaller parcel. Hence, the distinction between the two parcels is not merely abstract, as argued, but is a legal reality. They do not need to be treated as a single unit for purposes of the constructive trust.
We did use the word "dedicate" too loosely. Strictly, a person "dedicates" private real or other property to a general or public purpose. See generally, 23 Am. Jur. 2d, Dedication (1983). This is not the present situation. Moreover, our reference should have been to the larger parcel, not the house, in describing Cecilia's agreement to the house project. However, the larger parcel and house are indistinguishable now. They exist as a single unit of real property for purposes of the constructive trust.
Above all, we believe that inclusion of the smaller parcel in the constructive trust, except for the portion needed to ingress and egress the larger parcel, is not necessary to protect the Stephens children's best interests.
2. The Beneficiaries of the Constructive Trust
The Stephens children next argue that the court's order is inconsistent in that it conveys a partial interest in the larger parcel and house, and the separated portion of the smaller parcel, to Cecilia. Again, in light of the discussion *168above, we believe that total exclusion of Cecilia's existing title interest in the larger parcel and house is not necessary to protect the Stephens children's best interests.
We will refine the decision to clearly limit the constructive trust property to the Stephens children's undivided 80% interest in the larger parcel and house, and the separated portion of the smaller parcel.
3. Guardian of the Stephens Children's Estates
A guardian is a fiduciary. Indeed, as this court has stated the "[d]uty of a guardian or other fiduciary to be zealous in the protection of the interests of those to whom the fiduciary duty is owed is at its highest in situations wherein these interests may compete with the personal interests of the fiduciary." In re Guardianship of Tedrow, 1 A.S.R.2d 72, 73 (Trial Div. 1988).
Although there has been some indication that Cecilia has, in the past, overlooked the Stephens children's best interests, she is now officially charged with the unscrupulous unselfishness required of a fiduciary. As a fiduciary, Cecilia will be legally bound to perform her duties as a guardian in the Stephens children's best interest. If she fails in her duties, the Stephens children have recourse in the courts. However, any assertion that Cecilia has breached her fiduciary duty as guardian of the Stephens children's estates in the larger parcel of the land is unripe. We certainly expect that Cecilia, apprised of her duties as guardian of the Stephens children’s estate, will perform those duties.
4. Jurisdiction Over James Stephens
"[OJne is not bound by a judgment resulting from litigation in which he is not designated as a party and to which he has not been made a party by service of process." Raid v. Puailoa, 1 A.S.R.2d 85, 89 (Appellate Div. 1983). James voluntarily dismissed his cause in this action in a timely manner, pursuant to T.C.R.C.P. Rule 41(a), and this court no longer has jurisdiction to make orders directed at him in this action.
We will delete the requirements that James shall pay for the resurvey to define the right of way in the smaller parcel and make the construction loan payments to the mortgagee bank. We still maintain our expectations. James clearly has a duty to perform on his financial obligation to the bank.
ORDER
*1691. We deny the motion for reconsideration, except as to the orders directed to James in his capacity as guardian ad litem.
2. We amend the order in the decision as follows:
a. Paragraph 1 is amended to read:
1. A constructive trust is imposed on an undivided 80% interest in the larger parcel and house, and in a 24-foot wide strip along the southern boundary of the smaller parcel from the public road to the larger parcel, with Cecilia as the trustee and the Stephens children as the beneficiaries.
b. The last two sentences of paragraph 2 are amended to read:
Cecilia shall submit all proposed documents intended to comply with this order to the court for approval before the documents are executed and recorded no later than 90 days after the date of entry of the order on motion in part denying and granting motion for reconsideration. Cecilia shall pay for the resurvey needed to divide the smaller parcel.
c. Paragraph 5 is deleted.
d. Paragraph 6 is renumbered paragraph 5 and, consistently with the order denying interim motion on possession and repair of house, entered on July 15, 1996, the following sentence is added at the end of this paragraph to read:
This order is limited to routine maintenance, upkeep and repair.
3.The clerk of the court shall have certified copies of this order delivered to the America Samoa Bank and T erritorial Registrar of American Samoa.
It is so ordered.
The relative financial contributions by James and Cecilia to the house project, however equal or unequal, are not a major factor in on our decision. Our decision is based solely on our determination of the Stephens children's best interests. Thus, counsel's financial analyses are not persuasive. *167Moreover, the respective interests that James and Cecilia own in the business enterprise known as the Stephens Distributorship are properly a matter for the court to decide in the divorce proceedings. Even if this issue is to any extent relevant to resolution of this action, the evidence before us, consisting of virtually nothing about the history and none of the records of the business, is insufficient to definitively determine the share each has, or is entitled to have, in this business. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486443/ | Order Denying Motion for Reconsideration:
I. INTRODUCTION
On May 2,1994, we issued a decision finding defendant Samoa Gases hable in a products liability case in the amount of $47,455.96 plus 6% post-judgment interest. On June 21,1995, Samoa Gases paid $51,963.69 to the court registry to satisfy the judgment, and that amount was later forwarded to plaintiff Interocean Ships, Inc. ("Interocean"). On October 23, 1995, Interocean made a motion in aid of judgment, because it had been unable to cash the checks that had been issued to it. The reason it could not cash the checks, based upon information from its off-island counsel, was that *171Interocean had merged into a different corporation.
The motion in aid of judgment was the first time it was brought to our attention that, during the course of the proceedings, the plaintiff corporation had ceased to exist due to its merger into a new corporation.1 We were aware that, under the common law, when a corporation ceases to exist, it loses its capacity to sue. We were also aware that American Samoa had no statute that explicitly continued the right to sue following a corporate dissolution. If a judgment had been rendered where the corporation had no power to sue, as it arguably had in this case, then the case should have abated and the judgment was void.
On December 4,1995, we ordered both parties to brief us on the applicable law to determine whether or not the judgment was properly rendered. In that order we asked specific questions dealing with the status of Interocean, conflict of laws, interpretation of file local and foreign corporate statutes, and assignment.
For all practical purposes, both parties failed to brief us in any useful way. Thus, on March 7,1996, we issued an order stating that, without arguments to the contrary, the common law still applied in American Samoa. Under the common law, the judgment in favor of Interocean was void, and had to be vacated. We ordered Interocean to return the checks issued to it to Samoa Gases.
On March 15, 1996, Interocean moved for reconsideration. The motion came regularly for hearing on April 1,1996, with counsel for both parties present.
II. DISCUSSION
A. New Arguments Will Not Be Considered
We will not consider arguments in a motion for reconsideration or new trial that could have been raised in the original action but were not. Olotoa v. Bartley, 3 A.S.R.2d 21, 22 (Land & Titles Div. 1986); see also Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76, 82 (Trial Div. 1989). Counsel for Interocean had adequate opportunity to present the legal arguments it now makes in its motion for reconsideration. These arguments are untimely and will not be considered.
*172The only arguments we will consider from Interocean are those arguments prompted by our order vacating the earlier judgment. These are the questions of subject matter jurisdiction, collateral attack, and enforcement of a settlement.
B. Subject Matter Jurisdiction
Interocean points out that we have improperly equated lack of capacity to sue on its part with subject matter jurisdiction. See Interocean Ships, Inc. v. Samoa Gases, 29 A.S.R.2d 110 at 112 (Trial Div. 1996) [hereinafter Order Vacating Judgment]. Although this may be trae, it does not change the disposition of our order or give Interocean relief therefrom. As a court, we are required to examine the validity of our suits when it comes to our attention that such a suit may be void, for lack of subject matter jurisdiction or otherwise. Thus, in this case, even if we were not examining a question of subject matter jurisdiction, we were still faced with the question of whether our judgment was valid or void. Where it appears that a judgment is void, and a party has moved the court to aid in the enforcement of that judgment, we must examine the validity of the judgment, whether the examination is on subject matter grounds or other grounds, including the lack of capacity to sue.
C. Collateral Attack
Interocean claims that our order vacating judgment is an impermissible collateral attack upon the judgment. Judgments are not generally subject to collateral attack. See 46 Am. Jur. 2d Judgments § 621, at 781-82 (1969). However, this rale does not apply where the judgment is void. Id. at 782. As we discussed in our earlier order, under the common law, a judgment rendered in favor of a corporation that has lost its capacity to sue is void. See Interocean Ships, Inc. v. Samoa Gases, 29 A.S.R.2d 110 at 112 (Trial Div. 1995); Interocean Ships, Inc. v. Samoa Gases, 29 A.S.R.2d 201 at 207 (Trial Div. 1995). This mirrors the common law rule that a judgment rendered in favor of a plaintiff who died during the suit is void. See 46 Am. Jur. 2d Judgments § 649, at 807. No rule bars collateral attacks on such judgments. Thus, assuming arguendo that our order represented a collateral attack, there is no rule barring it.
*173D. Enforcement of the Settlement
Finally, Interocean argues that they have entered into a valid settlement with Samoa Gases and that this court is bound to uphold that settlement. In other words, Interocean argues that our order invalidates the settlement between the parties. As a practical matter, this may be true, but as a legal matter it is absolutely irrelevant. The settlement between the parties is not presently before the court. The only issue before us is whether the judgment entered on Interocean's behalf was valid. It was not. As such, Interocean has no right to enforcement of the judgment, regardless of any settlement they may have entered into with Samoa Gases.
The settlement between the parties is simply a contract between them. See Omaha Nat'l Bank v. Mullenax, 320 N.W.2d 755, 760 (Neb. 1982). If Interocean wants to sue Samoa Gases based upon the contract, it may do so, but it has not. Of course, Samoa Gases may have numerous defenses, including mutual mistake. All of those issues are properly considered in an action under the contract.
E. Policy Considerations
Additionally, Interocean has claimed that, as a matter of policy, our order is problematic. Specifically, they claim that our opinion will allow *174corporations to avoid debt by dissolving during a lawsuit and will cause foreign corporations to be confused as to their status in American Samoa. This is not the case. Our order vacating judgment is based upon the fact that Interocean did not brief the legal issues that we asked it to brief. We resolved this case under the common law because Interocean did not make an argument that any other law applied. Had counsel for Interocean acted with a modicum of care in submitting its brief, the earlier decision may have come out differently.
This will not affect other corporations in other cases, assuming that they properly brief the issue of the law applicable to their case. Thus, in most cases, we would expect the law of the forum of incorporation to apply under conflict of laws principles. Interocean did not timely make this argument. Similarly, we have not settled the question of how the American Samoa corporations code is to be interpreted on the issue of maintaining a lawsuit following corporate dissolution. Interocean did not timely brief this issue either. We will reach these issues when they are properly placed before us. Until then, corporations need not unnecessarily worry that an anomaly in American Samoa law will keep them from conducting business here.
III. CONCLUSION
The motion for reconsideration is denied. If it has not already done so, Interocean is ordered to comply with the mandates of the Order Vacating Judgment immediately.
It is so ordered.
At the time of our Order Requiring Further Briefing, we believed Interocean had merely dissolved. We later learned that it merged into another corporation. Under the common law, on which this case was decided, this makes no difference.
We are not sine that our order actually represented a collateral attack on the judgment.
[A]n attack is regarded as direct where the proceeding in which it is made is brought for the purpose of impeaching or overturning the judgment, and as collateral if made in *173any manner other than by a proceeding the very purpose of which is to impeach or overturn the judgment. Stated affirmatively, this mle is that a collateral attack upon a judgment is an attack made by or in an action or proceeding that has an independent purpose other than the impeaching or overturning of the judgment, although impeaching or overturning the judgment may be necessary to the success of the action. Under this rule, an attack is regarded as collateral where the regularity of the judgment is presented as an incidental issue.
46 Am. Jur. 2d Judgments § 631, at 790 (footnotes omitted). "The challenge of the integrity of a judgment in the action wherein the judgment is rendered is regarded as a direct attack upon the judgment." Id. § 632, at 791. Thus, motions to vacate, reconsider, amend or modify a judgment are all direct attacks. We are unsure about the nature of a motion in aid of judgment, and have not been briefed on this issue. As we stated, however, the issue is irrelevant since the judgment is void as a matter of law and no rule bars the collateral attack of void judgments. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486444/ | Opinion and Order:
Plaintiff Molipopo Mailo ("Molipopo") brought this action to void a deed of land to defendant/cross-defendant Rosalia Aumavae ("Rosalia"), a mortgage of the land by Rosalia to defendant/cross-claimant Amerika Samoa Bank ("ASB"), foreclosure of the mortgage, and sale of the land to defendant/cross-claimant Iosefo Talolo ("Talolo"). We preliminarily enjoined consummation of the sale to maintain the status quo, pending the decision.
Molipopo, ASB and Talolo were present during the trial with their counsel. Rosalia was duly served with non-resident process on the cross-complaint but did not appear at the trial.
FACTS
Molipopo is a 59-year old widow. In 1969, Molipopo and her husband acquired several acres of land, named "Seugaali‘i," in Ili‘ili, American Samoa, to assure her place to reside after his death. They registered the land with the Territorial Registrar as her individually owned land. Molipopo sold at least three 60x60-foot parcels of this land during ensuing years, principally to raise funds for immediate living expenses. She signed deeds prepared by the buyers, after full payment of the $3,000 purchase price, on these occasions. Thus, she at least has familiarity with deeds and other aspects of land transactions.
Rosalia is Molipopo’s niece, and they shared a mother-daughter relationship, particularly at times during Rosalia’s childhood. In 1989, Rosalia requested Malipopo to designate but not convey a portion of "Seugaali‘i" on which Rosalia’s brother could build a house upon returning from overseas. Molipopo pointed out an area adjacent to her store for this purpose. Rosalia contemporaneously gave Molipopo $1,000 for current living expenses. Molipopo also signed a paper on Rosalia’s representation and her belief that *177her signature would be used to obtain necessary permits for the construction. The paper was blank, except for nonessential printing.
Rosalia transformed the blank paper into a warranty deed of 0.25 acres of individually owned land, assertedly within "Seugaali’i," from Molipopo to her, dated September 28, 1990. Iosefa Tei, who was then Rosalia’s coworker at the American Samoa Government’s Department of Public Safety and a notary public, executed an acknowledgement of Molipopo’s signature, when in fact Molipopo did not appear before him for this purpose by his own admission.1 The Territorial Registrar registered the deed, with both an internal description and an attached survey of the land, on October 30,1990. ASB then loaned Rosalia $ 15,000, evidenced by her promissory note, dated November 23, 1990, and secured by a mortgage of the plot, dated January 15,1991.
Rosalia defaulted on the loan repayment, and under the agreement, ASB foreclosed the mortgage nonjudicially. ASB obtained a resurvey during the foreclosure proceedings. ASB then learned that the plot as originally surveyed was entirely outside of any land owned by Molipopo and was actually located a substantial distance westward. It also learned that the plot as resurveyed bisected Molipopo’s store.
When Molipopo found out about Rosalia’s default, she sought ASB’s assistance to save her property. She deposited $500 with ASB to further this effort. ASB apparently considered accepting Molipopo as the loan obligor, but ultimately made the executive decision that she was unable to assume the debt and foreclosure sale to another was necessary to protect its interests. ASB refunded the $500. Molipopo commenced this action after Talolo became the expectant purchaser of the land in 1994. Talolo is one of Molipopo’s neighbors.
DISCUSSION
*178A grantor cannot deed land he or she does not own. The deed in this case described land totally outside Molipopo’s individually owned land. Reformation may be in order if this circumstance was, for example, a mistake. However, in this case, overriding factors are present. Molipopo signed a blank paper, which was procured by Rosalia’s misrepresentations and later converted into a deed.
The traditional elements of actual fraud in contract or tort are (1) a false representation or concealment of a material fact, (2) made with knowledge of its falsity, (3) with the intent to induce the person to whom it is made to act upon it, and (4) such person acted in reliance upon the representation (5) to his damage. See, e.g., Pinney & Topliff v. Chrysler Corp., 176 F. Supp. 801, 803 (S.D. Cal. 1959). If the fraud goes to the inception or execution of the agreement, so that promisor is deceived as to the nature of his act, and actually does not know what he is signing, mutual assent is lacking, and the agreement is void. See, e.g., Development Bank v. Ilalio, 5 A.S.R.2d 1 (Trial Div. 1987); Trout v. Taylor, 32 P.2d 968 (Cal. 1934); Bryce v. O’Brien, 55 P.2d 488 (Cal. 1936); Green v. McAdam, 346 P.2d 474 (Cal. App. 1959).
We are persuaded under the totality of evidence in this case that Rosalia took undue advantage of her familial relationship with Molipopo. Rosalia clearly and knowingly misrepresented the fact that she sought designated but not conveyed land for her returning brother’s house and obtained Molipopo’s signáture for construction permits on blank paper. She wanted Molipopo to act upon her concealed purpose of acquiring title in her name to a portion of Molipopo’s land. Molipopo acted in expectation of Rosalia’s honest dealing and now faces loss of the falsely deeded plot.
We find no facts under the evidence showing that Molipopo either ratified the deed or is estopped from denying its validity as a result of her negligence, laches, or other cause. See Green, 346 P.2 at 478-79. We can only conclude that Molipopo was actually defrauded and that as between her and Rosalia the agreement is void.
Ordinarily, ASB would have intervening third person rights in this transaction. A mortgagee for value and without notice of any defect is entitled to protection as a bona fide encumbrancer. See, generally, Osbourne, Law of Mortgages at 316-35 (2d ed. 1971). Unquestionably, ASB gave value when it loaned Rosalia $15,000. Registration of the deed to Rosalia served to give all, including ASB, notice of the conveyance. A.S.C.A. § 37.0210(b); Vaimoana v. Tuitasi, 18 A.S.R.2d 88, 96 (Appellate Div. 1991).
However, as ASB later discovered, the land described was not the land *179actually intended to be conveyed and mortgaged. Unless reformed, the deed conveyed nothing to Rosalia. We think that ASB was under a duty to ensure that land described in a deed and mortgage to secure a loan was actually owned by the mortgagor and, failing to inquire, is constructively notified of the defect and acted at its peril. See National Resources, Inc. v. Wineberg, 349 F.2d 685, 690 (9th Cir. 1965).
Moreover, since the deed was absolutely void by reason of Rosalia’s fraud upon Molipopo, ASB is not protected as a bona fide encumbrancer, even though it acted in good faith. See Trout, 32 P.2d at 970; Bryce, 55 P.2d at 489.
ASB must seek recovery from Rosalia, who occasioned the fraudulent loss under the evidence before the court. See Trout, 32 P.2d at 970; Green, 346 P.2d at 479. Rosalia has been served with process and is in default on the cross-complaint. However, ASB has not yet moved for a default judgment against her. She was also not of record noticed of the trial. Accordingly, we can only leave the cross-complaint pending at this time.
ORDER
1. The deed by Molipopo to Rosalia, mortgage by Rosalia to ASB, foreclosure proceedings, and sale of the land by ASB to Talolo are void.
2. The Clerk óf Courts shall have a certified copy of the judgment registered with the Territorial Registrar.
3. The cross-complaint by ASB against Rosalia remains pending.
It is so ordered. 4
Besides further illustrating Rosalia’s deceit in creating the deed, we also make special note of the notary’s dishonesty. His notarial act falsely states that Molipopo personally appeared and acknowledged her signature. The acknowledgement is in the customary form. Although not statutorily required for the validity of deeds, acknowledgements are commonly used in deeds in this jurisdiction. False acknowledgements corrupt and mock the procedure and should not be tolerated. Unfortunately, unlike every other American jurisdiction, our Legislature has yet not seen fit to regulate notaries. As a result, notaries cannot be sanctioned, criminally or civilly, at least with any specifically directed statutory penalties.
Editor’s Note: Mailo v. Aumavae, 31 A.S.R.2d_(Land & Titles Div. 1996)(order clarifying and amending part of opinion and order), amends the language of the first two paragraphs on this page. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486445/ | Order Granting Petition for Summary Eviction:
FACTS
This action arises out of a lease entered into by plaintiff, American Samoa Government ("ASG"), and defendant, Sipa Anoa'i ("Anoa'i"). Specifically at issue is Section 10 of the lease agreement, which reserves ASG the power to terminate the lease on 120 days notice "[i]n the event Lessor designates the premises for demolition." Apparently the premises have been so designated, in order to facilitate a parking lot for a proposed new library. Notice of the termination was initially delivered to Anoa'i on April 3,1995. Since then ASG has allowed Anoa'i to remain on the property for designated periods due to delays in the demolition and construction. The final extension, however, was to terminate on May 1,1996. Anoa'i agreed to vacate at this time, but did not. On May 28, 1996, ASG again served Anoa'i further notice to vacate and subsequently filed a notice of termination with the Territorial Registrar on July 31, 1996.
ASG asserts that all requirements under Section 10 of the lease have been *181met and .that Anoa'i is a holdover tenant subject to summary eviction under A.S.C.A. § 43.1405(2)(A). Anoa'i, on the other hand, submits that ASG has no grounds to terminate the lease, and alternatively claims that ASG not only failed to give proper notice of the termination, but has also failed to perform a condition precedent to termination. ■
DISCUSSION
Anoa'i's first argument is that ASG may not terminate the lease in order to build a parking lot for the new library. He reads the lease as only allowing demolition of the leased premises "in connection with the development of the Executive Office Building"; and that since the library is not in connection with the Executive Office Building, Anoa'i urges that the new library's attendant parking lot is therefore not a contingency contemplated under the lease's termination clause.
Anoa'i has misread the lease. The agreement states that "the [leased] premises are located in the vicinity of Lessor's new executive office building and may be designated by Lessor for demolition in connection with the development of the area surrounding the building." The terms of the lease nowhere require that the demolition be "in connection with the development of the EOB," rather the lease simply states that the demolition may occur "in connection with the development of the area surrounding the [EOB] building." Since the new library is in connection with the development of the area surrounding the Executive Office Building, ASG has proper ground for exercising its right to terminate under the lease agreement.
Next Anoa'i argues that he was not provided proper notice in accordance with the provisions of the lease. Notice was originally provided to Anoa'i on April 3,1995, well before the 120 day requirement. The lease does not contain any specific requirements as to the substance of the notice; it only requires that the notice is written. We are satisfied that ASG's written notice reasonably apprised Anoa'i of the designation for demolition of the leased premises and the subsequent termination. Anoa'i's argument that ASG was somehow obligated to re-notice after the initial 120 day period had expired is specious. The 120-day notice requirement is a minimum time requirement, not a mandatory time requirement. We find that ASG has met the notice requirements of the lease, and has further met the seven-day notice requirement of A.S.C.A. § 43.1405(2)(A).
Finally, Anoa'i argues that ASG has breached the lease requirements which *182allow Anoa'i "the option, with Lessor’s prior consent which shall not be unreasonably withheld, to either relocate to another building owned by Lessor in the general vicinity of the premises, ... or to construct a new facility in the general vicinity of the premises."1 Anoa'i argues that ASG did not present Anoa'i with alternative site options and that the one site proposed by Anoa'i was unreasonably rejected by ASG.
The lease agreement clearly puts the burden on Anoa'i to submit a proposal to ASG. ASG’s only duty under the lease is to not unreasonably withhold its written consent to that proposal. ASG has no affirmative duty to assist Anoa'i in the exercise of his option. We are satisfied on the record that ASG met this requirement.
On May 11, 1995, Anoa'i submitted a proposal to be relocated to the building occupied by the Drug Free Program and the South Pacific Games Committee.2 The Real Property Management Board (“RPMB”) considered Anoa'i’s proposal and declined the request based on the limited amount of space available at the proposed site. We have no reason to believe that the RPMB was acting unreasonable in its denial. Moreover, it was shown tha t ASG actually went beyond its duty and affirmatively assisted Anoa'i in his efforts to relocate. ASG’s actions, considered in totality, appear to us to have been more than reasonable.3
On the foregoing, we conclude that ASG has properly terminated the lease agreement and is entitled to the immediate possession of the premises, *183under A.S.C.A. § 43.1405(2)(A). ASG’s petition for summary eviction is, therefore, granted.
It is so ordered.
The Lease also contains an option "to rehabilitate the premises in a manner which is architecturally and operationally compatible with the development of the . . . area." This option is not viable since you cannot renovate a gym to function as a parking lot.
Anoa'i proposed two other options: that the ASG rehabilitate the current site and that he be given preference for other government facilities. The first was not viable. The second is not available under the lease.
It is unclear whether the provision regarding the option to relocate is a condition precedent to the termination. The cases are split on whether termination is conditioned on the performance of such a termination option. See Am. JUR. 2d, Landlord and Tenant § 1012 (1995). If the provision is a condition precedent then termination would be conditioned upon ASG’s performance of the provision. The actual lease provision was, at best inartfully crafted. It seems to start out as a condition precedent and then mutate into an incomprehensible proviso. This ambiguity, however, is ultimately unimportant since we find that ASG has adequately performed on the provision, whatever the provision’s legal classification. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486447/ | Order Denying Motion to Dismiss Party:
PROCEDURAL HISTORY
This case originally went to trial in March of 1992. It concluded with the title "Faumuina" being awarded to defendant A.P. Lutali. Plaintiff and the other losing defendants filed motions for reconsideration which were denied. Plaintiff and the other losing defendants then moved to perfect appeal. On September 14, plaintiff moved to dismiss his appeal "[f]or the sake of peace and harmony in the family" and in reliance on the propriety of the trial court’s decision. The Appellate Division honored his request.
The case then went up on appeal. The Appellate Division vacated the decision of the Land and Titles Division and remanded. The appellate court’s decision was based, in part, on what it deemed was an unperformed duty of recusal upon the associate judges whom sat at the trial level. The case is now once again before the Land and Titles Division having being first placed on calendar for trial for August 26, 1994. After numerous joint requests by the parties to postpone trial for further family discussion, the defendants bring this current motion to dismiss plaintiff as a party in the new trial.
DISCUSSION
Defendants argue that the lower court’s judgment was final as to plaintiff when his appeal to dismiss was granted. In support of this contention defendants cite to a footnote in Security Pacific National Bank v. MV Conquest, 4 A.S.R.2d 59, 64 (Trial Div. 1987). There Chief Justice Rees stated that "a judgement remains final even though it is later found to be incorrect" to all who failed to perfect their appeal. Id. The Security Pacific court, however, did not explain this holding and cited no authority for its assertion. This court will not speculate as to the Security Pacific court’s reasoning for this statement. Rather, we feel compelled to limit its holding to the facts at issue in that case.
The Fourth Circuit, however, has addressed this very issue at bar, in Werner v. Carbo, 731 F.2d 204 (4th Cir. 1984), and we find its reasoning *4persuasive.1 In 'Werner, the court held that "when one judgment rests upon a contemporaneous judgment which has been reversed or otherwise vacated . . . Rule 60(b)(5) should apply," thus allowing relief from the final judgment. Id. at 208. The court, however, went on to discuss the holding in Maryland Casualty Co. v. City of South Norfolk, 54 F.2d 1032 (4th Cir. 1932), which was not decided on Rule 60(b) or its antecedents but rather as a matter of general law. Id. In Maryland Casualty some of the parties appealed and some did not. The parties who appealed were successful in their appeal and the parties who did not appeal still received the benefits of the successful appeal. Id. Specifically, the defendants in Maryland Casualty argued that the materialmen in the casé who did not appeal from the original final decree were bound thereby, and it was error to enter decrees in their behalf, notwithstanding the original decree was reversed on appeal taken out by other defendants. The court disagreed stating:
The first decree was entered in [defendants] favor on the sole ground that the bond did not guarantee the claims of the materialmen. In this question all materialmen were interested; and a single decree was entered denying the claims of all of them. This decree was reversed on the former appeal; and we think that there can be no question but that this reversal inured to the benefit of all persons interested under the bond, whether they appealed or not; for it reversed their right to recover under the bond.
54 F.2d at 1038-39.
We find this reasoning persuasive. As in Maryland Casualty, the parties here all had an interest in the matai title. A single decree was entered denying all, except Lutali’s, right to that title, This decree was vacated and the case was remanded. In these circumstances, the vacation of the judgment jnured to the benefit of all of the losing parties, whether they perfected their appeal or not, because it vacated the' underlying judgment and granted them rights to a new trial on their interest in the title Faumuina.
Moreover, matai title cases warrant equitable consideration unnecessary in other cases because in matai title disputes it is not merely the individual claimant(s) who have an interest in the matai title, but also those family’members who support the claimant(s). To truncate these *5interests on a procedural technicality would hardly seem to be consistent with the interests of justice. As we have once before stated, "the Court should interpret the statutes [governing matai title disputes] so as to minimize the extent to which customary law is modified or overridden by the imported procedural framework in which, it. now must be applied." Ma'ae v. Fuimaono, 6 A.S.R.2d 75, 77 (Land & Titles Div. 1987). See also A.S.C.A. § 3.0242(b) ("In any matter . . . where strict compliance with any rule of practice or procedure maybe inequitable or inconvenient, the Land and Titles Division may act in each case in such manner as it considers most consistent with natural justice and convenience.").
Here plaintiff dismissed his action based upon his reverence to the trial court and in order to keep peace in the family. His efforts were, however, ultimately futile because the other parties went ahead with the appeal. The appellate court decided that the trial court’s decision was in error, and has remanded the case for a new trial. To bar the plaintiff from again asserting his rights and the rights of all the family members who supported his candidacy, would be inequitable and unfair. Accordingly, we exercise the discretion given in § 3.0242(b) and allow plaintiff Fautua L.T. Faumuina, and those Faumuina family members supporting his candidacy, to assert his succession rights to the matai title Faumuina.
Based on the foregoing, the motion to dismiss is denied.
It is so ordered.
Although Werner was decided under F.R.C.P. 60(b)(5), its discussion and its reliance on Maryland Casualty Co. v. City of South Norfolk, 54 F.2d 1032 (4th Cir. 1932), are directly applicable to the motion at bar. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486786/ | ORDER DENYING MOTIONS FOR CHANGE OF VENUE
We have consolidated the motions of the three defendants because they each seek the same relief: a change of venue. Each defendant was arrested and charged with various counts of Promoting Prostitution in the First Degree: Wei Ki Fang, one count; Siituu Sanerivi, six counts; and Wei Li Fang, nine counts plus one count of assault in the second degree. The defendants argue that the pre-trial publicity has been massive, pervasive, and prejudicial. Also, because both Wei Ki and Wei Li Fang are Chinese nationals — though Sanerivi was bom in Western Samoa— counsel for Wei Ki Fang submits that (he publicity is the product of bigotry from a “culture which admits but never really accepts people who are not bom here.” On these grounds they all seek a change of venue.
Discussion
I. Pre-trial Publicity
“A fair trial in a fair tribunal is a basic requirement of due process.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) (quoting In re Murchison, 349 U.S. 133, 136 (1955)); see generally Km.. SAMOA Rev. CONST., art. I, § 2; U.S. CONST., amend. V. When the trial is conducted in front of a jury, due process assures an accused of, inter alia, certain minimal protections: 1) “a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power,” Sheppard v. Maxwell, 384 U.S. 333, 350 (1966) (quoting Chambers v. Florida, 309 U.S. 227, 236-37 (1940)); 2) “a panel of impartial, ‘indifferent’ jurors,” Irvin, 366 U.S. at 722; and 3) “the requirement that the jury’s verdict be based on evidence received in open court, not from outside sources,” Sheppard, 384 U.S. at 351. See Murphy v. Florida, 421 U.S. 794 (1975); Rideau v. Louisiana, 373 U.S. 723 (1963).
*107Due process is violated when inflammatory and pervasive publicity taints a jury pool, resulting in preconceived ideas by often misinformed jurors. The Supreme Court has established two ways in which to' show such a taint — presumed (or inherent) and actual prejudice. See Irvin, 366 U.S. at 728 (actual prejudice); Rideau, 373 U.S. at 723 (presumed (or inherent) prejudice); Nevers v. Killinger, 169 F.3d 352, 362-63 (6th. Cir. 1999); United States v. Washington, 813 F. Supp. 269, 272-73 (D. Vt. 1993). Actual prejudice requires a showing “that it is reasonably likely that a fair and impartial jury cannot be secured.” Bell v. Lynbaugh, 663 F. Supp. 405, 417 (E.D. Tex. 1987). It is “discerned only by reviewing both the extent and nature of the [pre-trial] publicity and the responses of the prospective jurors in voir dire.” Nevers, 169 F.3d at 362 (citing Irvin, 366 U.S. at 725-28) (emphasis in original); see also Am. Samoa Gov’t v. Snow, 26 A.S.R.2d 78, 80 (Trial Div. 1994). At this point, such an inquiry is premature, as there has not yet been jury voir dire.
The defendants are left then with the highly difficult task of showing that the publicity up until now has created an atmosphere of presumed prejudice. A showing of presumed prejudice “is rare, and is reserved for exceptional cases where the influence of the news media negatively pervades the proceedings, either in the community or courtroom.” Washington, 813 F. Supp at 272; United States v. Moreno, 815 F.2d 725, 731-39 (1st Cir. 1987); Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985). It can be proven without the benefit of juror interviews because the atmosphere created belies any claim of impartiality. See Rideau, 373 U.S. at 727; Moreno, 815 F.2d at 753 (Torruella, J., dissenting); Coleman, 778 F.2d at 1543; Washington, 813 F. Supp. at 272-73. But the defendants carry a heavy burden of showing oversaturation of highly sensationalized news coverage. See Coleman, 778 F.2d at 1490; Commonwealth v. Drumheller, 808 A.2d 893, 902 (Pa. 2002).1
Applying these standards, and based on the paltry evidence before us, defendants have not presented a compelling case of prejudice. To begin with, they cite only newspaper articles and editorials. There is no *108evidence whatsoever of prejudiced radio or television coverage or public sentiment generally. But see Rideau, 373 U.S. at 723; Coleman, 778 F.2d at 1487. Furthermore, the newspaper articles, while prone to hyperbole, are not inflammatory. Granted, some of the headlines describe the defendants of a “prostitution ring” or “sex ring.” But, the articles make an effort to point out that the defendants have not been found guilty; rather, they are alleged to have committed the crimes. In fact, most of the articles contain an attempt to reproduce testimony and arguments from court, heard in a public forum open to all. That is, they contain information that an average citizen would be privy to were he to go to court himself. Finally, the defendants reproduced only six articles, a far cry from the type of overwhelming saturation which can lead to a presumption of prejudice. See Coleman, 778 F.2d at 1491-1537.
The letters to the editor, on the other hand, are more opinionated. They do contain conclusory, matter-of-fact pronouncements of guilt. Some are indeed embarrassingly slanted against the defendants on account of their race. We refuse, however, to find that a few rogue letters to the editor represent the beliefs of an entire society. But see Coleman, 778 F.2d at 1491-1537. These few letters do not represent a society scornful of outsiders, as counsel Reardon would have us believe. Instead, by attempting to influence the public, these letters affirm that race-based accusations lack merit and credence.
One might question why a newspaper would choose to publish such letters in the first place. Perhaps they believe that such a tabloid styled format is profitable. Or, perhaps they have a policy of publishing all letters, regardless of content.2 In either event, the airing of narrow-minded, prejudiced opinions is protected in our society precisely because it exposes the absurdity and weaknesses of the speaker’s views. But by protecting this type of speech, we need not sweepingly attribute it to all. We need only recognize it represents a very limited section of society.
*109Finally, we note that if we were to make any finding of prejudice, it is more likely to follow the opportunity to listen to potential jurors. See, e.g., Washington, 813 F. Supp. at 273; Drumheller, 808 A.2d at 903. Only then can we meaningfully gauge the public’s sentiment.
n. Remedies
The defendants have asked that if we find no prejudice at this juncture, that we revisit the motion once again after voir dire. Thus, while we need not now decide the proper remedy were we to find prejudice, the possibility remains. We note then that were a showing of prejudice to be made, the remedy would not be a change of venue.
A change of venue is a common remedy stateside, but is unsuitable here in American Samoa. See Moreno, 815 F.2d 725; cf. In re San Juan Star Co., 662 F.2d 108, 117 (1981) (finding that change of venue unsuitable in Puerto Rico and alternative remedies appropriate). A change of venue stateside is sought in the hopes that moving the trial out of the jurisdiction where the prejudice has tainted the jury pool will result in a neutral jury elsewhere. See Irvin, 366 U.S. at 719-21. This is but a pipe dream here in American Samoa.
It is no secret that our island community is small. We have but one jury roll. All the registered voters on the island are part of that roll. Transferring a case to another part of the islands would only result in a physical change of venue; but, inherently, the proceedings would be the same. The jury would be selected from the same pool. Furthermore, because of the compact social structure of this island community, chances are that if the media has created a prejudicial environment it will have infected the farthest comers of the Territory. If anything, moving a criminal case would likely cause a great inconvenience to all the parties, including the Court.
Defendants cite A.S.C.A. § 46.0601 to support the notion that a transfer is possible. This enactment reads:
In any case where the interest of justice or the convenience of parties, witnesses or the court requires, the Chief Justice or the Associate Justice may order that a session of any division of the High Court adjourn from the courthouse to sit at any appropriate place in American Samoa.
This statute, however, was enacted in 1969 (P.L. 11-54) long before criminal jury trials in American Samoa were 'found to be neither “impractical nor anomalous,” and, therefore, constitutionally mandated. See King v. Andrus, 452 F. Supp. 11, 17 (D.D.C. 1977). Rather, the statute is geared towards physically holding court in a more convenient *110location in the Territory; for example, this power might be invoiced in a case involving a dispute in Manu'a, where the majority of witnesses would be unable to attend a court session in Fagatogo. But the situation would have to be extreme. Indeed, we cannot recall any instance where this section has been used in recent times. The statute simply does not contemplate a change of venue of the type sought by the defendants. Compare Fed. R. Crim. P. 21(a) with A.S.C.A. § 46.0601 and Fed. R. Crim. P; 21(b).
Therefore, if prejudice were ever proven at the preliminary stages of a criminal prosecution, we would have to explore other alternatives. See Moreno, 815 F.2d at 731. A change of venue is not constitutionally required; instead, we need only assure a fair trial.3
Order
We accordingly deny the motion for change of venue. We will, however, allow the defendants to submit a voir dire questionnaire ahead of time for the court’s review not later than two weeks before trial. The questionnaire should provide the questions in both English and Samoan. It may include any inquiries about media exposure. The questions should be amenable to a yes or no response. More importantly, the questions shall not touch on 1) any anticipated instructions; 2) the verdict to be returned when those questions are based upon hypothetical facts or situations; 3) substantive arguments of the case; and 4) data available from jury information sheets. Then, based upon the answers, during voir dire, we will take appropriate steps in establishing whether any of the jurors has been prejudiced including individual voir dire if necessary.
It is so ordered.
The Supreme Court has reversed a conviction only once on this ground:
In the Rideau case, the community at large was exposed to a lengthy televised confession which had been taped while the defendant was in custody and without advice of counsel. The confession was aired several times to tens of thousands of people in the community. The Supreme Court held that such broadcasting tainted the community and that any subsequent court proceeding “in a community so pervasively exposed to such a spectacle could be but a hollow formality.
Washington, 813 F.Supp at 272 (citing Rideau, 373 U.S. at 762); see Coleman, 778 F.2d 1487.
A newspaper need not establish a reason for publishing the articles and letters contained in its editions. Freedom of the press is paramount to a just, transparent society and we are powerless to restrain, save for a few limited situations. Of course the press has ethical obligations to be objective and truthful-even more so when covering the happenings of a small island community and even more so when the island’s media outlets are virtual monopolies. The ability to influence carries a moral burden that should not be shunned just to sell papers. Yet newspapers should be forewarned: as of now, no “court has yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionaHy protected in plying his trade.” Irvin, 366 U.S. at 761 (Frankfurter, J., concurring).
This is hardly the first, nor the last, criminal matter to receive considerable pretrial press attention. Nor is this the first case where the emotive, but baseless, plea of jury taint has been heard. The decision in King v. Andrus, supra, has proven rather insightful. Jury trials, in serious criminal cases, have proven to be both practical and not anomalous in a relatively small island community. Even so, there is always the available option of a bench trial to allay any lingering defense suspicions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486787/ | ORDER ON MOTION FOR PSYCHIATRIC EXAMINATION
Defendant brings this motion seeking: (1) a court-ordered mental examination to determine whether the defendant is competent to stand trial; and (2) a court-appointed psychiatrist to assist him in his defense.
I. Competency to Stand Trial
The defendant first seeks a court order allowing for a psychiatric evaluation to determine whether he is competent to stand trial. The American Samoa Government (“ASG”) has acquiesced. Our power to order an examination is explicitly authorized by A.S.C.A. § 46.1303. This aspect of the motion will be granted.
II. Assistance in Presenting Insanity Defense
Defendant also seeks at this time a court order appointing him a psychiatrist to assist him in presenting an insanity defense. Defendant’s motion is not duplicative since competency to stand trial and insanity require two different legal standards. See, e.g., United States v. Williams, 998 F.2d 268, 264 n.15 (5th Cir. 1993). Furthermore, due process requires a court to provide an indigent defendant access to a competent psychiatrist if he shows “that his sanity at the time of the offense is to be a significant factor at trial.” Ake v. Oklahoma, 470 U.S. 68, 83 (1985); see Duren v. Hopper, 161 F.3d 655, 664-65 (11th Cir. 1998). To meet this burden a defendant must do more than offer “undeveloped assertions that the requested assistance would be beneficial].]” Caldwell v. Mississippi, All U.S. 320, 323 n.1 (1985); see Duren, 161 F.3d at 665 (a defendant must demonstrate a substantial basis for the defense). “Rather, the defendant, at a minimum, must make a factual showing — must present specific evidence — that his sanity at the time of the offense is truly at issue.” Williams, 998 F.2d at 263 n. 14 (quoting Williams v. Collins, 989 F.2d 841, 845 (5th Cir. 1993)).
At this point, the defendant has not carried his burden. Granted, the defendant has filed a declaration that he intends to use insanity as an affirmative defense. While this weighs in favor of finding that his sanity will be a significant factor at trial, this declaration, standing alone, does not suffice. Indeed, were it enough, any defendant would be able to file a declaration and be appointed a psychiatrist regardless of the merit of his motion.
We thus require a greater factual presentation than the one defendant has provided. Most of his argument speaks to his present state of mind, *113which is relevant to his competency but not relevant to his sanity at the time of the alleged criminal action. See Williams, 998 F.2d at 263 n. 14. We do not, however, rule out the possibility that the defendant will be able to make this showing later on. But, at the very least, the initial finding of whether the defendant is competent to stand trial is highly relevant to this inquiry and we will postpone any further hearing on the matter until that determination has been made. See Ake, 470 U.S. at 86 (incompetence to stand trial is factor when determining whether due process required court appointed expert).1
Order
We order that defendant undergo a psychiatric evaluation. Subsequently, we will hold a hearing pursuant to A.S.C.A. § 46.1305 to determine whether he is competent to stand trial: whether he “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960); see generally Am. Samoa Gov’t v. Taylor, 16 A.S.R.2d 44 (Trial Div. 1990).
The motion is granted in part and denied in part.
It is so ordered.
We also leave open the possibility of a bifurcated trial, where, though the defendant wishes to present insanity as a defense, the issue never arises because of a complete acquittal on the underlying charges. See generally Am. Samoa Gov’t v. Taylor, 19 A.S.R.2d 99 (Trial Div. 1991). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486788/ | *115ORDER GRANTING MOTION FOR PUBLIC FUNDS TO INVESTIGATE WITNESSES
Defendants bring this motion for funding to interview witnesses in (Independent) Samoa. Defendants have been declared indigent and have been appointed public counsel. Their motion, therefore, falls under the ambit of AM. SAMOA Rev. Const, art. 1 § 6, which provides every defendant with the right to have the effective assistance of counsel. See generally Suisala v. Moaali'itele, 6 A.S.R.2d 15 (1987) (incorporating Federal effective assistance of counsel standard); A.S.C.A. §§ 46.0502 and 46.1001.
The effective assistance of counsel requires a State or Territory to “take steps to assure that the defendant has a fair opportunity to present his defense.” Ake v. Oklahoma, 470 U.S. 68, 76 (1985).
[M]ere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and ... a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw material integral to the building of an effective defense.
Id. at 77. In order to comply with this minimal due process requirement, we must assure that the ‘“basic tools of an adequate defense’ [are] provided to those defendants who cannot afford to pay for them.” Id. (quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971)).
One basic tool of an adequate defense “is funds to pay the necessary and essential expenses of interviewing the material witnesses.” United States v. Germany, 32 F.R.D. 421, 423 (1963) (interviewing witnesses is “an essential ingredient to an attorney effectively representing a defendant in a criminal case”); United States v. Prods. Mktg., 281 F. Supp. 348, 352 (D. Del. 1968). It would be fundamentally unfair for a defendant to forego this basic tool of trial preparation on account of wealth (or lack of). Therefore, we agree with defendants that Article 1 § 6 of the Territorial Constitution guarantees them this right.
One impediment, however, is that funding for these expenditures is limited. This is especially problematic in American Samoa, where an overwhelming majority of defendants rely on public counsel. We do not have a funding scheme like they have, for example, at the federal level under the Criminal Justice Act of 1964, 18 U.S.C. 3006A, and administered through local court mies and orders. See, e.g., Criminal Justice Act Plan, Eastern District of California-, Order 2, Criminal Justice Act Plan of the United States District Court for the Northern *116District of California Pursuant to the Criminal Justice Act of 1964, as amended.
Therefore, we cannot grant these motions outright. Generally, before approving funding, we must require a defendant to show “why the requested services are ‘necessary’ to an adequate defense and what the defendant expect[s] to find by using the services.” United States v. Gonzalez, 150 F.3d 1246, 1251 n.4 (10th Cir. 1998) (articulating standard under the Criminal Justice Act); United States v. Sanchez, 912 F.2d 18, 22 (2d Cir. 1990). A determination of what is “necessary” should not be overly rigid as long as “a reasonable attorney would engage such services for a client having the independent financial means to pay for them.” United States v. Hartfield, 513 F.2d 254, 257 (9th Cir. 1975) (quoting United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973)). Based on the affidavit submitted by counsel and the evidence from the hearing, we find that the defendants have presently met this burden.1 Among other things, the Attorney General has access to a number of potential witnesses who are currently in Samoa. The Public Defender’s request is reasonable.
We grant their motion for funding.2
It is so ordered.
Additionally, these sort of motions could be considered ex parte, so as not to cause the defendant to reveal his defense. See Am. Samoa Gov’t v. Petaia, CR No. 39-99, Order Granting Motions for Public Funds to Hire Expert Witness (Trial Div. March 2, 2000); United States v. Greschner, 802 F.2d 373, 379-80 (10th Cir. 1986). Though the present motion was heard in open court in an adversarial forum, there was no prejudice to the defendants as they did not reveal anything of strategic importance.
Though it is not entirely clear from where these funds will come, it is apparent that the Public Defender’s office does not have adequate resources for conducting investigations off-island or for other reasonably necessary trial expenses such as expert witnesses. See Petaia, supra, note 1. The Public Defender’s office receives only $249,500 a year or roughly less than 0.1% of ASG’s total budget. See P.L. 27-25 (2002). Far be it for us to suggest to the Fono how best to appropriate this type of funding. Various options are available, such as mimicking the federal system or giving the Public Defender’s office more money in their annual budget. But, one way or another, this funding must be made available as it is necessary to comply with the Constitution’s guarantee of representation. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486789/ | OPINION & ORDER
In what is perhaps becoming an all too frequent occurrence, we are called on again to resolve a dispute originating within the Legislative Branch. At issue is the extent of the House of Representatives’ power to punish its own members and what procedures, if any, they must follow when exacting punishment.
*119I. FACTUAL BACKGROUND
Based on the evidence adduced at trial, we make the following findings: Plaintiff, Muavaefa'atasi Ae Ae Jr., (“Muavaefa'atasi”) is the duly elected Representative for House district No. 9, Maoputasi No. 3, encompassing the village of Pago Pago. On Friday, February 7, 2003, the House Committee on Parks and Recreation met on the House floor to discuses a pending resolution that had been introduced by Muavaefa'atasi. The Committee had “resolve[d] itself into a committee of the Whole,” House Rules III(2)(C), which allows any representative to sit in on the meeting. Thus, Muavaefa'atasi, though not a member of that committee, was in attendance.
The resolution concerned a measure for sanitary improvements in Pago Park. Plaintiffs concern was the use of the park for a number of public events, such as cricket games, although lacking in adequate public toilet facilities in the area. In attendance, therefore, at the hearing as witnesses were the Director of Public Works as well as the Director of Parks and Recreation. During the hearing, Muavaefa'atasi became agitated; he felt that other representatives were using the forum to make derisive remarks about his village, and hence the dignity of the Maoputasi. For example, at one point, Muavaefa'atasi had remarked about people being forced to use the surrounding trees and bushes because of the lack of public bathrooms. Representative Fetu Fetui, Jr., (“Fetui”) seized on that to facetiously ask the Director of Parks and Recreation: “poo ni tagata soifua, vae ane, tulou le maota, poo ni ta 'ifau o fa 'atitipa solo (whether it was people or, with due respect to the dignity of this meeting place, “ta 'ifau” (pets or dogs) that were defecating in the park)?” The director, quite rightly, replied that that was not part of his department’s duties.
When Muavaefa'atasi was finally given the opportunity to speak, he attempted to refocus the dialogue. However, he was repeatedly interrupted by Representative Atualevao Gq/atasi Afalava (“Afalava”). Muavaefa'atasi had to request the chairman to direct Afalava to allow him to continue. Even after the chairman had sided with Muavaefa'atasi's procedural position and had given the latter leave to continue with his statement, Afalava was not to be quieted; he continued to interrupt Muavaefa'atasi. Whereupon, the chairman, perhaps in exasperation, ruled: “Afioga Afalava o le a fa 'auma. Muavae, fail sau saunoaga mulimuli o le a fauma le tatou iloiloga (Honorable Afalava it is going to be closed. Muavae, make your final remarks as our hearing is going to be closed.)” Muavaefa'atasi then abmptly concluded his presentation but not without suggesting to the chairman, “ae sili ona fa 'atonu au ta 'ifau ia, vae ane le marnalu Ole Maota, e sill ona salapu le gutu (it would be best if you instruct your pets or dogs, with due respect to the dignity of this meeting place, that they should shut their *120mouths).” The audio record then reveals an ensuing heated dialogue between Afalava and Muavaefa'atasi:
Afalava: Ua tele le le mafaufau o oe. (You have been very disrespectful.)
Muavae: Leaga . . . nuu o matou. -Ua te-le lau tala na fai ile matou nu'u. (Because ... it is our village. You have made derogatory statements about our village.)
Afalava: Tautala lou gutu, ae te pala'ai. Ua e iloa. Tautala lou gutu ae te pala'ai. (Your mouth speaks, but you are cowardly. You know. Your mouth speaks, but you are cowardly.)
Muavae: E te tautala e a? (Why do you speak at all?)
Following an audible suggestion from somebody that the two ought to take themselves outside, there followed a clamorous and rowdy exchange, which is largely indecipherable. Muavaefa'atasi had to be restrained. Eventually, he left the House floor and went to his office.
After calm had been restored and after the chair had excused and apologized to the witnesses, the committee continued with their meeting and discussed, at the request of Afalava, what had just transpired. The committee decided to report the incident at the next regular session of the House, which was scheduled for 10:00am that very same morning, along with the recommendation that Muavaefa'atasi be punished.
At the regular session, the committee chairman made an oral1 committee report to the House with the recommendation, “[e] [t]atau ona fa'amalolo sina tasi pe lua vaiaso ([that Muavaefa'atasi] should be suspended for a week or two.” The report sparked a debate as to what sort of discipline should be meted out: the possibilities ranged from forgiveness to suspension. The Speaker of the House, Matagi Ray McMoore (“Matagi”), referred the matter to the House Standing Committee on Rules and Procedures2 to be taken up the next Monday, February 10, 2003.3
*121Two things are particularly significant about the Friday session. First, Muavaefa'atasi himself was not present. After the committee meeting, Muavaefa'atasi took some additional time to collect himself and he did not go to the regular session until the debate regarding his punishment had ended. Thus, Muavaefa'atasi did not have actual notice of the scheduled Rules Committee meeting for Monday. Second, there was never a debate as to whether Muavaefa'atasi had actually violated any rule or law or whether he was generally disorderly. Instead, misconduct was presumed and the discussion simply focused on the extent of the punishment.
That Monday, the Rules Committee met “of the Whole” to discuss Muavaefa'atasi’s fate. Muavaefa'atasi was not in attendance, as he was, according to his testimony, feeling ill that day-though it is not clear that he even knew the meeting was taking place. At the hearing, the representatives in attendance discussed the incident. The committee voted unanimously in favor of discipline. At that point, the debate turned to whether the punishment should be expulsion or merely suspension. The record of the proceedings revealed that after an inquiry as to applicable law and after the chairman, Vice Speaker Savali Talavou Ale, had advised that expulsion required a two-third’s majority, whereas the law was silent on suspension (fa'amalolo), Afalava moved as follows:
Ua le manino i afioga i ali'i faipule. O lo'u manatu lea sa avatupei ona e maua mai, amata atu neifa'ato'a toefo'i mai le afioga i le ali 'i faipule pe a toe a 'e le Fono ia Iulai. Leai se totogi, prohibit, 'aua ne 'i toe sau i totonu o le compound e le fa 'aaoga foi le ofisa. 'Aua ne 'i toe sau i totonu o le ofisa. O le condition lea o la 'u lafo lea oute avatu. Fa 'afetai. (It is not clear to the honorable representatives. My opinion previously presented is that it should start now and the honorable representative can return when the Fono reconvenes in July. No pay, prohibit, nor may he enter into the compound to use the office. He may not come to the office. These are the conditions of my motion I am presenting. Thank you.)
While Muavaefa'atasi garnered some support in the form of pleas for leniency, a majority of the committee eventually voted, nine to two, to adopt Afalava’s motion for suspension until the July session, including forfeiture of pay, allowances, access to his office and House grounds.
*122Later that morning, the House convened a regular session and took up the disciplinary matter. A quorum was present. By motion, the Rules Committee chairman orally introduced the recommendation4 of discipline adopted earlier that morning. Although representative Lavea Seali'itu F. Mauga rose in án effort to further address the issue and invite further reflection, the Speaker summarily called a vote on the Rules Committee’s recommendation to suspend. When the vote was called, the recommendation passed by a vote of eleven to three. Eleven comprises a bare majority of the entire House Consisting of 20 voting members and 21 total members. See AM. Samoa Rev. CONST, art. II, § 2.
Though it is unclear what sort of notice is normally required in order to put an item on the day’s agenda, it is obvious that no advanced notice was given that the suspension vote was going to take place. Furthermore, there is no indication that any representative, at any time, paused to consider that Muavaefa'atasi was not present at any session or committee meeting in which his suspension was discussed. Muavaefa'atasi obviously then did not have an opportunity to present a defense, call witnesses, or even speak.
Following the session, Matagi wrote a letter to Muavaefa'atasi advising him of his suspension. The letter was delivered to Muavaefa'atasi at his residence later that evening. For some reason, Muavaefa'atasi did not read the letter but instead brought it with him on Tuesday, February 11, 2003. When he entered the House floor that morning, Matagi inquired whether Muavaefa'atasi had read the letter. Affirming that he had not, Matagi informed Muavaefa'atasi that the House had voted to suspend him. Muavaefa'atasi requested to address the House but leave was denied him.5 The Sergeant-at-Arms was directed to escort Muavaefa'atasi out and prohibit him from even entering his office. Not wanting to get the Sergeant-at-Aims in trouble, Muavaefa'atasai complied. When he attempted to return to his office later that week, he found that the locks had been changed.
The suspension is still in effect. Since February 11, 2003, Muavaefa'atasi has not had access to his office, his supplies, his staff, or the House generally. He has nonetheless tried his best to serve his district, doing what he can outside of the legislative context. But, for all *123intents and purposes, house district No. 9, Maoputasi No. 3, has remained without representation.
II. CLAIMS FOR RELIEF
Muavaefa'atasi urges relief on several grounds. He seeks three declaratory judgments: 1) that the House’s conduct is an unconstitutional restraint on his right of free speech; 2) that the House’s conduct is an unconstitutional taking of a property interest; and 3) due to the House’s unconstitutional conduct, the suspension is a nullity and without authority. As we understand his second and third claim, Muavaefa'atasi is challenging whether or not the House afforded him due process of law by using the procedures, as previously detailed, in conducting the hearings and by imposing such a severe sentence. The defendants seem to agree with this interpretation. There is no question that, with the exceptions discussed below, these three issues are properly before us, ripe for review, and not barred by any jurisdictional impairment. See, e.g., Agaoleatu v. Matagi, 7 A.S.R.3d 64, 68 n.3 (Trial Div. 2003) (Court should not interfere in legislative controversies unless they present conduct inconsistent with the Constitution); Fa 'amausili v. The Senate, 6 A.S.R.3d 259, 263-64 (Trial Div. 2002); Dank v. Benson, 5 P.3d 1088, 1094-96 (Okla. 2000) (Opala, L, concurring) (impairment of a lawmaker’s access to informed deliberation is justiciable).
Muavaefa'atasi also seeks a writ of mandamus against Matagi, as Speaker of the House: 1) granting Muavaefa'atasi all the rights and privileges accorded any representative; and 2) affording him all the rights and privileges guaranteed by the American Samoa Revised Constitution and the Constitution of the United States. We would be apprehensive to entertain such relief because in so doing, we would be confronted with constitutional issues concerning separation of powers, legislative immunity, and the inherent powers of the court. We think such a discussion is better left for another day, when it appears wholly necessary.
Rather, “[a] court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. A declaratory judgment can then be used as a predicate to further relief, including an injunction.” Powell v. McCormack, 395 U.S. 486, 499 (1969) (citations omitted). Therefore, it is sufficient for our purposes here to merely note that ‘“the government, like everyone else, is bound by court orders in proceedings to which it is a party.’” Fa'amausili, 6 A.S.R.3d at 265 (quoting Am. Samoa Gov’t v. Satele, 7 A.S.R.2d 154, 156 (Trial Div. 1988)). “We are confident that the [House] will abide by our ruling on the counts for declaratory relief.” Id.
*124m. DISCUSSION
A. Powers at Issue
Several constitutional provisions are at the forefront of this case. The most prevalent is the section granting the House the power to “determine its rules of procedure, punish members for disorderly behavior and, with the consent of two-thirds of its entire membership, may expel a member, but not a second time for the same offense.” Am. Samoa Rev. Const, art. n, § 11. These are the “primary power[s] by which legislative bodies preserve their ‘institutional integrity’ without compromising the principle that citizens may choose their representatives.” Whitener v. NcWatters, 112 F.2d 740, 744 (4th Cir. 1997). Commenting on the Federal counterpart, one scholar noted:
No person can doubt the- propriety of the provision authorizing each house to determine the rales of its own proceedings. If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the council of the nation of a like authority. But the power to make rules would be nugatory, unless it was coupled with a power to punish for disorderly behavior, or disobedience to those rules.
Id. (emphasis added) (quoting Joseph Story, Commentaries on the Constitution of the United States § 419).
We do not take lightly the structure of the Constitution in creating this purely legislative prerogative of disciplining its own members. Normally, the courts must refrain from prying into matters “that admit of legislative adjudication rather than judicial resolution.” Fa'amausili, 6 A.S.R.3d at 264 (quoting Tuitasi v. Lualemaga, 4 A.S.R. 798, 810 (Trial Div. 1973)). We should not, for example, resolve disputes dealing solely with internal legislative rales, see Brown v. Hansen, 913 F.2d 1118, 1121-22 (3d Cir. 1992), or purely legislative functions, see Dank, 5 P.3d at 1092.
We have an obligation, however, to review governmental actions or laws that conflict with, or are limited by, constitutional provisions. See Fa'amausili, 6 A.S.R.3d at 260 (“We must fulfill our mandate as the arbiter of the law of the land”). Any legislative act, whether *125intracameral6 or not, must comply with the basic tenets of due process. See id. at 271-72; AM. SAMOA REV. CONST, art. I § 2. Though “due process is a fluid concept, [and] may have diverse applications in different situations [it encompasses the] basic principle of fair play.” Fa'amausili v. The Senate, CA No. 88-02, slip op. at 6 n.3 (Trial Div. Jan. 31, 2003) (Order Denying Motion for Stay of Execution).
B. Free Speech
Muavaefa'atasi’s first argument is that the House’s actions violated his right of free speech as protected by Am. SAMOA REV. CONST, art. I, § 1 and U.S. CONST, amend. I. We disagree. Free speech is not absolute; it may, in certain, narrow situations be regulated. See Konigsberg v. State Bar of Calif, 366 U.S. 36, 49-51 (1961). Legislative speech is no different. The Constitution provides that “[n]o member of the Legislature shall be held to answer before any tribunal other than the Legislature itself for any speech or debate in the Legislature.” Am. SAMOA rev. Const, art. n, § 12 (emphasis added). This provision, on the one hand, protects legislators from having to defend their decisions, arguments, or conduct-i.e, speech — outside of the Legislature (even against suits by other legislators). See McGovern v. Martz, 182 F. Supp. 343, 346 (D.D.C. 1950). On the other hand, this provision is “an assertion of the legislature’s exclusive jurisdiction to punish speeches made in the course of legislative business.” Whitener, 112 F.3d at 745 (emphasis in original). It reflects a conscious balance struck by the framers of the Territory’s Constitution. Thus, whether to punish a sitting legislator for his legislative speech rests squarely with the Legislature and is immune from our review. Contrast Bond v. Floyd, 385 U.S. 116 (1966) (Congress cannot exclude a duly qualified member-elect from being seated on account of his political views).
Furthermore, assuming we could question the Legislature’s decision, Muavaefa'atasi has not shown why his speech in this situation should be protected.
[Muavaefa'atasi] was disciplined for his lack of decorum, not for expressing bis view on policy. We cannot conclude that the [House] was without power to regulate uncivil behavior . . . . Indeed “[t]he greatest concern over speech within a deliberative body is that members might engage in personal invective or other offensive remarks that would unleash personal hostility and frustrate deliberative consideration.”
*126Whitener, 112 F.3d at 745 (quoting David S. Bogen; The Origins of Freedom of Speech and Press, 42 Md. L. Rev. 429, 436 (1963)).
C. Other Constitutional Restraints
We do not have the power to review whether it was proper for the House to punish Muavaefa'atasi for what he said; indeed, as noted, such power is specifically enshrined in the legislative branch. But whether to punish is not the same as how, and to what extent, the Legislature can punish. The Legislature cannot cloak itself in the punishment clause, art. II, § 11, and disregard other constitutional limitations. Accordingly, we will not turn a blind eye to the utter lack of fairness that has cast a shadow of doubt over Muavaefa'atasi’s suspension and left his constituents without representation.
i. Expulsion or Suspension
The House claims that it expressed restraint by suspending Muavaefa'atasi as opposed to expelling him. Nothing could be further from reality. Granted, by definition, Muavaefa'atasi is merely suspended, i.e., barred for a period of time, and not expelled, i.e., barred permanently. In this case, from Muavaefa'atasi’s standpoint, this is a distinction without a difference: because of his complete ban on taking part in any legislative process or using any House resources, for all intents and purposes, he has been expelled. See Dank, 5 P.2d at 1096 (Opala, J., concurring) (arguing that prohibition on informed deliberation is akin to pro tanto expulsion).7
Expulsion for a very good reason requires a super-majority vote. Am. SAMOA REV. Const, art. II, § 11 (two thirds vote). This procedure ensures a reflective and thoughtful decision by the entire legislative body and not just the triumph, on a whim, of a mere majority. Once again, commenting on the federal counterpart, one scholar noted:
*127And as a member might be so lost to all sense of dignity and duty, as to disgrace the house by the grossness of his conduct, or interrupt its deliberations by perpetual violence or clamor,the power to expel for very aggravated misconduct was also indispensable, not as a common, but as an ultimate redress for the grievance. But such a power, so summary, and at the same time so subversive of the rights of the people, it was foreseen, might be exerted for mere purposes of faction or party, to remove a patriot, or to aid a corrupt measure; and it has therefore been wisely guarded by the restriction, that there shall be a concurrence of two thirds of the members, to justify an expulsion.
Joseph Story, Commentaries on the Constitution of the United States, Book III, ch. XII § 835 (emphasis added).8
Therefore, a suspension of Muavaefa'atasi’s magnitude, contradicts the purpose and constrictions of the expulsion clause. It allows a simple majority to effectuate an end-around assault on the super-majority requirement of art. II, § 11. See supra note 7.
Expulsion provides another safeguard to democratic values: it allows for the vacant position to be filled by the affected constituents thereby extending continuous representation to the district of the barred representative. AM. SAMOA REV. CONST, art. II, § 13. Muavaefa'atasi has been completely prohibited from participating in the legislative process-he could introduce no hills and could not vote on any pending ones, he has been locked out of his office, and he has been banned from using any House resources. Had he been properly expelled, these consequences would have naturally befallen him. His constituents, however, would have been allowed to elect a new representative to fill the vacancy.
Perhaps the biggest losers in this controversy are the constituents of District No. 9, for they have now gone almost six months without a voice in the House of Representatives. See Agaoleatu, 7 A.S.R.3d at 66-67 (stating that the people of American Samoa “are the true beneficiaries of the Government’s operations”); Ammond v. McGahn, 390 F. Supp. 655, 660 (D.N.J. 1975) (“The action by the [legislative body] in denying a Senator ... the opportunity to attend its deliberations deprived her constituents of the Equal Protections of the law”); Dank, 5 P.3d at 1096 (Opala, J., concurring). In American Samoa, where only one legislative chamber is chosen by popular vote, representation in the House is the *128singular method of securing a voice for the voters in the political process. Thus, Muavaefa'atasi’s suspension is in a way more pernicious than a constitutional expulsion.
We reiterate that the power to punish is the “primary power by which legislative bodies preserve their ‘institutional integrity’ without compromising the principle that citizens may choose their representatives.” Whitener, 112 F. 2d at 744 (emphasis added). The House’s actions have compromised that principle. See supra note 7.
This is not to say, however, that a member could never be removed from the House for disorderly conduct. The legislative leadership needs the power to maintain order in its proceedings, just as a court needs authority to maintain order in its proceedings. But the power to remove a representative should only be exercised to the extent necessary to restore order in the House’s proceedings. See, e.g., House Rule II(2)(C) (if a member “persists in his disorderly conduct he shall not be permitted to take his seat during the remainder of the day’s session except upon satisfactorily [sic] pledge given by him to the House for future good behavior”); Whitener, 112 F.3d at 741 (board member censured for one year and removed from standing committees); Gewertz v. Jackman, 467 F. Supp. 1047, 1054 (D.N.J. 1979) (Assemblyman removed from appropriations committee). Otherwise, the unbridled power to suspend can be always be used by a bare majority for purposes of affecting floor votes on any issue and thereby affect a legislative agenda, but such would be the antithesis of representative government.
ii. Due Process
Not only did the House fail to comply with the two-thirds requirement for expulsion, it failed to comport with due process. It is evident that Muavaefa'atasi was not given notice of the four different times when the House, either in committee or in regular session, debated and voted on his conduct and punishment. And, in his absence, the House conducted these meetings without affording Muavaefa'atasi the opportunity to be heard: to address the other Representatives, to possibly call witnesses on his behalf, or to cross-examine those that testified against him. These minimal standards are the cornerstone of due process. See Fa'amausili, 6 A.S.R.3d at 272; Ferstle v. Am. Samoa Gov’t, 7 A.S.R.2d 26, 49 (Trial Div. 1988); Cf. Rideau v. Louisiana, 373 U.S. 723, 726 (1963). “The opportunity to be heard is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Fa'amausili, 6 A.S.R.3d at 272 (citing Powell, 395 U.S at 510 n.30); Ferstle, 7 A.S.R.2d at 49 (quoting Matthews v. Eldridge, 424 U.S. 319, 333 (1976)).
*129We can only speculate as to what would have happened had Muavaefa'atasi been in attendance at any of these hearings. But given the serious nature of the punishment, the House had a duty to postpone debate until Muavaefa'atasi had notice or was present, even if his absence was unexcused. As the evidence clearly shows, Muavaefa'atasi was not afforded a meaningful opportunity to be heard and present a defense either going to the merits of the charge against him or in mitigation of punishment. His offending comment was in essence taken out of its context and placed before the House in a conclusory fashion. Had Muavaefa'atasi been afforded the opportunity to be heard, his testimony could have been especially beneficial to those members who were not present at the time of the incident complained of. For instance, it was quite clear from the record of the various proceedings that the severity of the punishment meted out was in part premised on the perception that Muavaefa'atasi’s reference to ta’ifau was in fact a reference to all House members. But then Muavaefa'atasi was not allowed the opportunity to place before the House membership the distasteful innuendos his own interpretations of the language used by others at the time, such as Fetui’s pregnant question to the Director of Parks and Recreation for evidence as to defecating people or dogs in the vicinity, coupled with representative Afalava’s determined attempts to interrupt him on the floor.
Moreover, the disciplinary proceedings, as they unfolded, basically revealed that in Muavaefa'atasi’s absence, the primary target of his verbal assault, Afalava, actively participated throughout these disciplinary proceedings not only in the roles of instigator and complainant, but that of being part of the prosecution team, being a part of the fact-finding body, and being a part of the judicial and sentencing body. It goes without saying that this sort of scenario is totally at odds with our notions of due process and basic fair play.
Finally, the House consistently violated its own internal rules including denying Muavaefa'atasi the right to speak when he was finally informed of his suspension. Standing alone, departure from internal rules is not a denial of due process. However, in this case, it evinces a calculated attempt to compromise Muavaefa'atasi’s procedural due process rights by expediting the process with minimal dissent on the record.9
*130IV. CONCLUSION
On the foregoing, we conclude and declare that Muavaefa'atasi’s suspension from the House of Representatives of the Legislature of American Samoa as of February 10, 2003 is constitutionally invalid. Accordingly, we further declare that Muavaefa'atasi remains a sitting representative for House district No. 9, Maoputasi No. 3, entitled to all rights and privileges pertaining to his elected office, including but not limited to voting privileges, full pay and allowances accruing and unpaid after February 10, 2003.
It is so ordered.
In apparent contradiction to House Rules which requires a Committee report to be in writing. House Rules III(4)(A).
The assignment of this matter to the Rules Committee is curious, given the scope of that Committee’s jurisdiction. The Rules Committee deals with “all proposed amendments to House Rules and adjournment resolutions. In addition, the Committee may provide guidelines for member travel, committee meeting rooms and committee staff and for the introduction of bills.” House Rules III (1)(B)(1).
The House actually complied with its own internal rules regarding notice. Committee meetings must be announced “at least 3 calendar *121days in advance of the meeting date.” House Rules HI(3)(B). However, it is unclear whether they also “include[d] the meeting and agenda in the daily journal,” as further required by that same mle.
Motions may be made orally. House Rules IV(6)(B). But again, committee reports, including any findings and recommendations, must be in writing. House Rules III(4)(A). This recommendation was not.
Despite the fact that the House rules allow for reconsideration of any vote. House Rules IV(7).
The term, meaning “occurring in and applicable to the internal operations of a legislative chamber,” is taken from Dank, 5 P.3d at 1094 (Opala, J., concurring).
To hold otherwise would easily allow the House to slide down a slippery slope of impermissible conduct. What if, for example, the House imposed the suspension until the end-of the term? Or if they suspended a Representative for six months, but for the six months before his term expired? By calling it a suspension, the House would be allowed to expel a member without complying with the constitutional requirements of expulsion. Therefore, the House’s own labels cannot be dispositive of the type of punishment they have handed down. Instead, we must look beyond semantics at the real effect of the punishment. In this case, even though Muavaefa'atasi is allowed to return, his suspension has had the same effects as an expulsion.
Justice Story’s treatise may be found on-line at: http://www.utulsa.edu/law/classes/rice/ConstitutionaFStorey/story_hist_ const_privilege.html.
The House relies on Mason’s Manual of Legislative Procedure to fill in the blanks when their own published rules are wanting. Perhaps the Manual should have been consulted in this instance. Had the House done so, resort may have been had to Chapter 13, Decorum in Debate, which details how to handle an episode such as the one that took place and requires, inter alia, the right to address the body. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486790/ | OPINION AND ORDER
Defendant, a current inmate serving the first of three, 5-year consecutive prison terms for assault, at the Territorial Correction Facility, has filed a petition for a writ of habeas corpus with this court. The Court has carefully reviewed the petition and the exhibits attached thereto.
Discussion
The privilege of a writ of habeas corpus is provided under Article I, Section 7 of the Revised Constitution of American Samoa. This writ has been described as “the great writ” which provides “immediate relief from illegal detention.” Suisala v. Moaali'itele, 6 A.S.R.2d 15, 18 (Trial Div. 1987). We examine the pro se pleadings in this case as broadly as possible without regard to the technical niceties demanded of attorney-drafted pleadings.
Petitioner prays the Court to commute his sentence to time served or reduce his sentence to three years with the privilege of work release from the Territorial Correction Facility to be granted immediately. This Court lacks the authority to grant these prayers. The work release program at the correctional facility is, by statute, supervised by the Warden. See A.S.C.A. § 46.2521 et seq. Nor may this Court, under the writ of habeas corpus or otherwise, commute petitioner’s sentence. That power is exclusively exercised by the Governor under Article IV, Section 9 of the Revised Constitution of American Samoa.
*132Petitioner’s prayers notwithstanding his petition must be reviewed to determine if it presents on its face a showing that his confinement is unlawful. Relying upon A.S.C. v Adams, 29 A.S.R.2d 160, 161 (Trial Div. 1996) (citing Dunlap v. Swope, 103 F.2d 19 (9th Cir. 1939)), only petitioner’s present sentence, and not the two prospective, consecutive 5-year sentences, is considered for purposes of his allegation of current illegal confinement.
Petitioner alleges: he has not been given permission to attend church services on Saturdays; that the correctional facility does not provide inmates with clothing, sheets, towels, soap, etc.; that the meals served at the facility are not nutritious; that his cell is hot and not well ventilated; and that petitioner doesn’t always get to exercise every day.
Although petitioner presents a grim picture of his life in confinement, “[hjabeas corpus is not a vehicle for the courts to inquire into management of the prison system, unless ‘exceptional circumstances’ rise to the level of ‘constitutional deprivation.’” Am. Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32, 38 (Trial Div. 1987). On its face, this petition does not assert any factual situation, which, if true, would present circumstances of illegal detainment predicated upon cruel or unusual punishment or any other restraint in violation of petitioner’s constitutional rights. Petitioner’s remedy lies with the executive branch, not with the Court under a habeas corpus proceeding.
As to petitioner’s allegations that he didn’t fully understand his plea agreement and that his lawyer failed to file a timely motion before the sentencing court to reduce his sentence, we have carefully reviewed his allegations. We return however, to the issue we addressed above as to petitioners present sentence of 5 years for Count I, Assault in the Second Degree.
Petitioner states that his first plea agreement included a dismissal of all counts except Counts I and VI. Petitioner’s claims that he was surprised at his subsequent hearing with the proposal that he would enter pleas of guilty to Counts I, II, and V with the government dismissing the balance of the charges.
Petitioner is presently serving his sentence for Count I. His allegations that his future sentences may result in his illegal detention when those sentences commence do not presently support the issuance of a writ while he is serving a legal sentence.
Conclusion
The petition filed in this matter, broadly construed in favor of this pro se prisoner, does not allege facts which if proven to be true would *133demonstrate his current detention is illegal. Petitioner’s current remedy is exclusively with the executive branch of government. He is strongly advised to avail himself to the administrative remedies for his grievances . concerning his personal circumstances in confinement. He may also avail himself to the parole board with respect to his current sentence. And finally, he may petition the Governor for relief.
To ensure that the executive branch officers with authority over these matters are fully informed on the status of this particular legal action by petitioner, the Clerk of Courts shall cause a copy of this Opinion and Order and a copy of the petition and exhibits to be served upon the Attorney General, the Commissioner of Public Safety, Counsel to the Governor, and the Public Defender.
The petition is denied.
Order
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486792/ | ORDER ON MOTION TO SET TRIAL
The modem day accessibility of the Pago Pago Harbor coupled with American Samoa’s status as a United States Territory has given rise to a unique, yet often unsatisfying forum for the resolution of maritime disputes. These complications are exacerbated in this case by attorneys who, while attempting to out-maneuver opposing counsel, have manipulated jurisdictional deficiencies and tested our patience.
A. The Trouble with Admiralty Law in American Samoa
The Constitution of the United States explicitly grants the federal judiciary the power over “all cases of admiralty and maritime jurisdiction.” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law, Practitioner Treatise Series, § 1-6 (2d ed. 1994) [hereinafter SCHOENBAUM, Practitioner Treatise] (quoting U.S. CONST, art. Ill, § 2). The origins of the language are unclear, but their purpose is without doubt. Id. Before the drafting of the Constitution, each state exercised sovereign powers, including the power of their courts to hear admiralty matters. Id. However, “[t]he experience of the uncontrolled and divergent activity of these state maritime courts was largely responsible for the apparently uncontroverted view among the delegates and drafters of the United States Constitution that there should be a system of national admiralty courts.” Id. Such a system, where federal courts “serve as both fora and interpreters of maritime law . . . provide[s] uniform rules of law for the business of shipping, . . . facilitate [s] maritime commerce, [and] appl[ies] uniform remedies for persons traveling or working on navigable waters in connection with these maritime activities.” THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME Law, Hornbook Series, § 1-2 (2d ed. 1994).
When American Samoa became a Territory, it added yet another port to the jurisdiction of the United States. In part, it was the U.S. Navy’s interest in the “deep-water harbor at Pago Pago that originally brought the two sovereigns together.” See STANLEY K. LAUGHLJN, Jr., The Law of United States Territories and Affiliated Jurisdictions § 3.3 *141(1st ed. 1995). Over the years, Pago Pago harbor’s usefulness as a strategic naval station dwindled but instead gave way to a vibrant fishing and maritime shipping economy. See, e.g., In re complaint of Interocean Ships, Inc., 2 A.S.R.2d 76, 84-5 (App. Div. 1985). (Murphy, C.J., concurring); The Vessel Pac. Princess v. Trial Div. of the High Court, 2 A.S.R.2d 21, 24 (App. Div. 1984) (Gardner, C.J., concurring). As a consequence, this Court was called upon to accommodate the growing need for a local admiralty forum.
An early case from the Appellate Division reluctantly declined to hear an admiralty suit absent a grant from Congress — or by the Fono acting on behalf of Congress. See generally Swift v. Trial Div., 4 A.S.R. 983 (App. Div. 1975). The Fono obliged, explicitly overruling Swift and amending the High Court’s jurisdictional reach to include in rem suits. See Pub. L. 14-18 (1975); see also Interocean Ships, Inc., 2 A.S.R.2d at 83 (Murphy, C.J., concurring); Meaamaile v. Am. Samoa, 550 F. Supp. 1227, 1236-37 (D. Haw. 1982). But the grant of admiralty jurisdiction at the local level was a temporary band-aid. It left voids that could only be filled at the national level by Congress.
Yet Congress, either deliberately or through benign neglect, has excluded American Samoa from participating equally and fully in the federal scheme. See, e.g., Star-Kist Samoa, Inc. v. The M/V Conquest, 3 A.S.R.2d 25, 28-31 (App. Div. 1986); Interocean Ships, Inc., 2 A.S.R.2d at 82 (Murphy, C.J., concurring); The Vessel Pac. Princess, 2 A.S.R.2d at 24 (Gardner C.J., concurring). Even though we are a Territory, Congress could have granted — and still can grant — the High Court the same competence that federal courts have in admiralty matters. See Meaamaile, 550 F. Supp. at 1236-37. Congress had done so before with other Territorial courts. See, e.g., The “City of Panama”, 101 U.S. 453 (1879) (Territory of Washington); United States v. Canter, 26 U.S. 511 (1828) (Territory of Florida). Instead, looming over us has been Acting Chief Justice Murphy’s perceptive observation that “owners of vessels entering Pago Pago harbor have fewer substantive rights than in any other American harbor, and perhaps fewer rights than afforded by Commonwealths having free association compacts with the United States.” Interocean Ships, Inc., 2 A.S.R.2d at 84.
B. Specific Discrepancies in Jurisdiction
It is still true that the High Court cannot issue an injunction pursuant to 46 U.S.C. § 185 and halt proceedings in a “district court of competent jurisdiction,” even though it would promote judicial economy and overall convenience:
It has been held that the purpose of 46 U.S.C. § 185 is to permit all actions to be consolidated in one action which will dispose of all claims *142against a vessel owner. Proceedings under section 185 have also been said to be designed to marshal all claims against a vessel and owner. Certainly these purposes aré not promoted by denying the High Court the power to enjoin proceedings in other forums. Interocean Ships, Inc., 2 A.S.R.2d at 84 (Murphy, C.J., concurring) (citations omitted); see In the Matter of Complaint of Voyager, Inc., 23 A.S.R.2d 47, 48 (Trial Div. 1992); Fa'atasiga v. The M/V Ocean Pearl, 19 A.S.R.2d 59, 60 (Trial Div. 1991). Additionally, the High Court cannot transfer civil actions to other district courts under 28 U.S.C. § 1404(a), despite the statute’s explicit language that transfers are “for the convenience of parties and witnesses, [and] in the interest of justice.” See The Vessel Pac. Princess, 2 A.S.R.2d at 21. Congress has yet to rectify these obvious defects that plague the High Court’s limited admiralty jurisdiction.1
C. What Can be Done?
One esteemed colleague contemplated possible solutions to this dilemma:
First, Congress could extend federal jurisdiction to the High Court as it has done in other territories by providing that the High Court have the jurisdiction of a United States District Court.... Second, it could place American Samoa under the jurisdiction of a United States District Court, such as the United States District Court of Hawaii .... Third, it could create a United States District Court for the territory.
*143The Vessel Pac. Princess, 2 A.S.R.2d at 24-25 (Gardner, C.J., concurring) (citations omitted). With the one exception already mentioned, that of the Ship Mortgage Act, Congress has not adopted any of Chief Justice Gardner’s suggestions. To be sure, the defects in the High Court’s jurisdiction are not dire. Admiralty cases usually proceed in this Court without incident; but there are always exceptions.
D. Why this Case Presents a Problem
It was just a matter of time before a case like the present one came along. The Plaintiff, Joao Alves (“Alves”), allegedly injured himself while working on the MTV Koorale. On April 12, 2002 Alves filed an in personam action against M & F Fishing, the owner of the MTV Koorale, in the U.S. District Court for the Southern District of California. Three days later, Alves filed an in rem action against the MW Koorale here in the High Court. Matters proceeded in the U.S. District Court with only one notable incident: early on, it seems Alves’ request for a $2 million bond was denied. In any event, a trial date is set for September 30, 2003.
Otherwise, after Alves filed his claim in this Court, no further action was taken until September 13, 2002, when Alves had the MW Koorale arrested. The basis for the arrest was the same incident that gave rise to Alves’ in personam suit in California. Had the MW Koorale been arrested in any other State or Territory that has a U.S. District Court, then, under 25 U.S.C. § 1404 (a), the in rem court could have transferred the case to California so that the in rem and in personam claims could be heard together. See SCHOENBAUM, Practitioner Treatise, § 21-10. But, as noted, we are not empowered to order a 1404(a) transfer.
The last time the possibility of a transfer was before us, the in rem suit was barred by the statute of limitations, and thus, having found we lacked the power to transfer the action, the suit was dismissed. See The Vessel Pac. Princess, 2 A.S.R.2d at 21. This time, however, the case is not time barred and we are forced to hear it, even though similar proceedings are ongoing in California. As far as we can tell, this is the first time such a situation has arisen, but, if the conduct of the parties is any indication, there is no guarantee that it will be the last.
Indeed, the situation could have been prevented had the parties, acting through then lawyers, chosen a more civil, efficiency-oriented approach. The parties could have reached a settlement, either dismissing the case outright or, at least, agreeing to certain procedures that would avoid litigation in two courts.2 Instead, the parties seem more interested in *144accumulating litigation costs and attorney’s fees, having already filled up two accordion folders with paper before even reaching discovery. Neither side is absolved from blame and their burdens are their own doing.
Others are equally burdened but, however, wholly blameless — namely, local merchants and this Court. Two motions exemplify these burdens. Firstly, Southwest Marine, Inc., (“SWM”), a local shipyard owner, has sought to intervene in the action for payment arising out of services they say they provided to the substitute custodian while the vessel was under arrest. See Order On Motion To Intervene, June 17, 2003.3 Secondly, in the motion before us, Alves is asking us to postpone setting a trial date to await the outcome of the trial in the California District Court in September.
Discussion
The problem of parallel litigation arises from time to time in the federal system. No clear test, however, has emerged. See generally Evergreen Marine Corp. v. Welgrow Int'l Inc., 954 F. Supp. 101 (S.D.N.Y. 1997); Superior Sav. Ass’n v. Bank of Dallas, 705 F. Supp 326 (N.D.Tex 1989); Bamdad Mech. Co. v. United Techs. Corp., 109 F.R.D. 128 (D.Del. 1985). But even if there were a clear way to resolve this dilemma at the federal level, such a test would he anomalous in this case.
This suit portrays an abuse by the plaintiff of a stark wanting in the High Court’s admiralty jurisdiction, as it interplays with admiralty litigation generally in the United States. Thus, any consideration of a stay that only takes into account the familiar considerations of judicial efficiency or convenience of the parties has serious shortcomings in this specific instance. Instead, we must be wary of the forum manipulation at play here, and strive to assure that it is not repeated. Until and unless Congress acts to provide for a U.S. District Court for American Samoa, or otherwise appropriately empower the High Court in its national scheme of admiralty adjudication, we cannot sit idly by and let litigants *145use this Court as a pawn in trial tactics.
Alves proffers two reasons in support of staying the suit in deference to the California trial: 1) to prevent a waste of judicial resources, and 2) that the pleadings are not yet finished. As noted, normally, judicial efficiency is a paramount consideration in exercising this Court’s inherent discretionary powers to stay a proceeding. See Evergreen, 954 F. Supp. at 103. But we find that Alves’ reasoning is disingenuous.
Alves is not concerned with expending resources. At oral arguments, counsel stated that if the case proceeded here, “these witnesses are still going to testify, and they’re still going to get paid, and the attorneys are still going to get paid.” But, because of the possibility of res judicata,4 Alves’ preference is to proceed with the case in California because, in his lawyer’s own words, “[The High Court] tends to give lower damages for pain and suffering than what someone gives in the Mainland.” When pressed he submitted, “they’ve [the defense] got an advantage [here in American Samoa].”
Here, we see conceptual problems with plaintiffs tactic. While plaintiff has filed in American Samoa, bringing into play economic consequences to the Territory, he apparently has no intention whatsoever to litigate his rights in American Samoa — since he obviously feels that his chances for a greater damages award are better before a California jury.5 Thus, the whole point to plaintiffs suit here is simply to utilize the High Court as collection forum for a potential in personam judgment out of California, since there is no procedure in place at law whereby the High Court could insist on a transfer of all proceedings against the vessel to American Samoa.
This is problematic. The procedures governing the arrest of a vessel are more relaxed than the procedural due process requirements normally required with other pre-judgment seizures of property, “including effective notice, meaningful judicial review, and a right to a prompt hearing after the seizure.” SCHOENBAUM, Practitioner Treatise at § 21-6. Having failed to meet his burden to attach any of the defendant’s property or even receive a bond in California, Alves was able to use the *146relaxed admiralty procedures and the unique jurisdictional posture of this Court to get around these due process requirements.
On the other hand, the defendants’ purpose in bringing this motion to set an early trial date is not lost on us. While we understand that the defendants did not choose to be sued here in American Samoa, they too are quite clearly involved with the same exercise of assessing the tactical advantages/disadvantages with venue. Accordingly, they are pressing for a trial setting in the High Court before the one scheduled in California, to presumably complicate Alves’ case and to obtain what the parties seem to believe is a defendant-friendly forum in which to litigate the case.
We have had enough. Before proceeding any further with this matter, we desire to be thoroughly briefed on the question of whether or not this Court should not just formally defer to the Southern District Court of California by outright dismissal of these proceedings, either for lack of prosecution, forum non conveniens, and/or any other reason meriting our discretion.
Conclusion
We realize that admiralty litigation in American Samoa can be, at times, murky. Nonetheless, it will remain a part of the Territory’s jurisprudential culture for some indefinite time. Therefore, all parties, and this Court, have a duty to work with — not against — the procedures in place. The litigants should not attempt to play the High Court against a federal court; rather they should endeavor to avoid, to the extent possible, inflaming the friction inherent with the bringing of an admiralty suit in American Samoa. This Court should also strive to avoid confrontation with our federal counterpart; but, at the same time, we cannot allow any party to exploit the High Court and the Territory’s limited resources for their gain.
Order
On the foregoing, the following order is entered:
Plaintiffs brief on the issue of dismissal is due within 30 days of filing hereof. Defendants have 15 days to reply with an additional 5 days thereafter for plaintiff to close the argument.
It s so ordered.
In 1988, Congress did grant the High Court jurisdiction to enforce a preferred ship mortgage lien, thus including us in the federal scheme on this narrow point. See United Air Lines Employees’ Credit Union v. M/V Sans End, 15 A.S.R.2d 95, 100 (Trial Div. 1990) (citing 46 U.S.C. §§ 31325-25, added by P.L. 100-710). However, this grant followed an era that was “fraught with confusion and uncertainty.” Id. Originally, the Trial Division had ruled that it had no authority to foreclose on a ship’s mortgage. See Sec. Pac. Bank v. M/V Conquest, 2 A.S.R.2d 40, 42 (Trial Div. 1985). Upon a motion for reconsideration, the Trial Division reversed itself. Id. The Appellate Division reversed yet again, reinstating the Trial Division’s original ruling. See Star-Kist Samoa, Inc. v. M/V Conquest, 3 A.S.R.2d 25, 31 (App. Div. 1986). Finally, left with no choice, on remand the Trial Division held that it did have the power to foreclose a ship mortgage, not on account of the Ship Mortgage Act but rather by the general admiralty and equity jurisdiction of the High Court. Sec. Pac. Nat’l Bank v. The M/V Conquest, 4 A.S.R.2d 59, 64-65 (Trial Div. 1987). Thus, Congress has acted once to amend an admiralty related statute to include American Samoa — but even then, the gesture had no substantive effect since we had reached the same result under the law of equity.
The biggest obstacle prompting the impasse seems to have been the parties’ inability, or unwillingness, to agree on a bond amount in the *144U.S. District Court. From the record, we note that the Magistrate refused to order a bond for Alves’ asking price of $2 million. In this Court, the defendants have argued from the start that the in rent suit was a pretext to gamering the bond — and accompanying leverage — that Alves failed to obtain in California. If true, it only goes to show that minimal compromise would have spared us the burden of this suit.
Whatever the outcome of this case, whether Alves prevails or not, either here and/or in California, his tactics have encumbered local resources. While the Territory is normally receptive to an infusion into the local economy, the precarious outcome of litigating in two forums could result in a trail of unpaid, disappointed, and litigious merchants.
This theme was evident early on in the proceedings:
Court: Then how do we deal with probably inconsistent judgment [in the two cases]?
Attorney: We have to deal with it res judicata collateral estoppel.
Court: First out the door with a paper judgment?
Attorney: It’s almost what it comes down to. That’s what .the case seems.
Jury trials in civil actions are not available in American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486793/ | ORDER GRANTING MOTION TO CONTINUE TRIAL
Plaintiff American Samoa Government (“ASG”) moves for continuance of the jury trial in this prosecution, now scheduled to begin on August 19, 2003. Defendant Dianne Majhor (“Majhor”) opposes the motion. The motion was heard on August 11, 2003. Both counsel and Majhor were present.
The right of a defendant in a criminal prosecution to a speedy trial is at the heart of the issue. This fundamental right of an accused is guaranteed by Article I, Section 6 of the Revised Constitution of American Samoa of 1966, and the Sixth Amendment to the United States Constitution. Speedy trial protection minimizes the possibility of lengthy pretrial incarceration and consequential deprivation of liberty and disruption of life resulting from unresolved criminal charges. United States v. MacDonald, 102 S. Ct. 1497, 1502 (1982). The right attaches when a defendant is officially accused. Id. at 1501.
Denial of the speedy trial right must be determined on case-by-case basis. The Supreme Court’s test for this determination balances the length of delay, reasons for delay, timeliness and vigor of the defendant’s assertion of the right, and the degree of prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). Application of the Barker test is appropriate for an analysis of the issue when raised in this jurisdiction. Pene v. Am. Samoa Gov’t, 12 A.S.R.2d 43, 45 (App. Div. 1989).
1. Length of Delay.
A threshold showing that the length of delay is presumptively prejudicial to the defendant usually triggers the need to consider the remaining factors. Barker, 404 U.S. at 530. It has been said that in general one year is presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992).1
*149Majhor has been incarcerated since her arrest on March 16, 2003, except for two or three days before her arrest on a different but incidental offense charged in CR No. 20-03. The presumption concept attached to one-year delay has a ways to go. Nonetheless, the length of delay to date is already substantial and sufficient to evaluate the remaining three factors.
2. Reason for Delay.
The Court considers whether the delay is deliberate, neutral, or valid. Intentional prosecutorial delay, usually for some strategic purpose, is always suspect. Barker, 407 U.S. at 531. There is no evidence, however, that ASG has deliberately caused the delay for any unjustified purpose in this case.
To the contrary, the delay is attributable to several justifiable ends. This case is one of 10 prosecutions arising out of the same factual situation. Expert forensic analysis and testimony from sources outside of American Samoa are involved. The alleged facts as a whole, as well as the legal issues, are unique and relatively complex. The investigation of this incident has been, and still is, ongoing. ASG needs substantial time for proper preparation of all the cases for presentation at trial. The continuing preparation has also led to investigation of potential prosecutions of other alleged offenses.
Moreover, it only makes good sense to resolve the prosecutions for the alleged homicide underlying this case before dealing with the prosecutions of alleged subsequent tampering with evidence. The paramount public interest is best served by first having fair and impartial trials of the homicide prosecutions, untainted by the evidence introduced during the trial of the collateral tampering prosecutions.
At this juncture, the pretrial conferences in the three homicide prosecutions are scheduled, at the request of the defendants in those cases, on September 15, 2003. The trials in those actions will probably be scheduled during those conferences. This scheduling will provide a logical basis for scheduling the trial in this case.
3. Timely Assertion of Speedy Trial Right.
Majhor first asserted her right to a speedy trial by her motion filed on May 13, 2003. She certainly did so in a timely manner, and the Court initially sought to accommodate her demand by the August 19, 2003 trial setting. However, unless Majhor is suffering actual prejudice by the delay, the timeliness of her speedy trial demand does not of itself override the reasons for delay noted above.
*1504. Prejudice to the Defendant.
Recognized prejudice from delay usually encompasses oppressive pretrial incarceration, anxiety and concern, or impairment of defenses. Barker, 407 U.S. at 532. The defendant must demonstrate actual prejudice in one or more of these three areas, or in some other significant way. United States v. Greer, 60 F.2d 1383, 1386 (10th Cir. 1980); Pene, 12 A.S.R.2d at 45.
In light of the reasons for delay noted above, Majhor’s pretrial incarceration and heightened anxiety, if any, during the delay are not persuasive reasons to proceed with the trial on August 19, 2003. See United States v. Van Dyke, 605 F.2d 220, 226 (6th Cir. 1979); United States v. Taylor, 578 F.2d 108, 109 (5th Cir. 1978). Significant specific impairment of her defense would be persuasive, but at this point, Majhor has failed to show any such impairment.
Order
ASG’s motion to continue the jury trial in this action is granted, and the scheduled trial date on August 19, 2003, is vacated. When the trial dates in CR Nos. 8-03, 9-03 and 10-03 are known, the Court will conduct a hearing in this action to reschedule the trial to commence on a date after the probable completion of the trials in those three cases.
It is so ordered.
The federal Speedy Trial Act, 18 U.S.C. §§ 3161-3174, sets specific time limits in order to further implement the speedy trial right in federal criminal prosecutions, and also provides for expansion of the time by several excludable delays. The Speedy Trial Act does not, however, apply to prosecutions in American Samoa, where the issue is more appropriately analyzed under the Barker test. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486794/ | OPINION AND ORDER
Plaintiff, YHT, Inc. (“YHT”’) seeks payment from Defendant Progressive Insurance Company (“Progressive”), its insurer, for damages caused by a fire at YHT’s office. We hold that YHT is not entitled to payment.
FACTUAL FINDINGS
Based on all the evidence adduced at trial, we make the following factual findings.
On February 23, 2000, a fire destroyed the contents of YHT’s office. The cause of the fire was undoubtedly arson. The signs were clear: an explosion was heard prior to the fire; gasoline containers were found in two different rooms; gasoline residue was found in the bathroom; YHT’s *152president, Yu Chun Yung (“Yu”), admitted that there were no flammable materials in the building; the extent and speed of the fire indicated it was artificial; and the fire was at night, when it was less likely to be detected and extinguished.
.Shortly thereafter YHT looked to cash in on their policy, but Progressive balked. Among other things, Progressive suspected foul play. Specifically, Progressive suspected that YHT, through Yu, had a hand in the arson. Their own investigation, coupled with help of the local authorities, produced several suspicious factors.
At trial, two experts helped put these factors into perspective. The first was Peter Webb (“Webb”). Webb is a claims investigator and loss adjuster. He is trained in basic fire cause and origin investigation and investigation of arson insurance fraud. Throughout his twenty-year career, Webb has investigated hundreds of claims. The other expert was Gary Luff (“Luff’). Luff is a fire expert in New Zealand, and has 19 years experience in the field of fire scene investigation. He has examined over 1,600 fire scenes. Together, their testimony illuminated the suspicious conduct that implicates YHT.
YHT had taken out a $6 million insurance policy with Progressive just six weeks before the fire. The policy only covered damage due to fire and certain natural disasters; YHT did not seek any other coverage (e.g., theft). Furthermore, the policy was rather large, given that the office was modestly sized.
In the weeks leading up to the fire, Yu repeatedly asked a progressive underwriter, Tavita Tamua, whether Progressive could cover a $6 million claim Also during that time, YHT’s business was suffering. It was financially strapped. Yu had just learned that YHT would not be able to export for sale elsewhere in the United States its recently acquired stock of computer chips — which if they were actually in YHT’s office at the time of fire, had been smuggled into American Samoa. See YHT, Inc. v. Progressive Ins. Co., 6 A.S.R.3d 108, 110-11 (Trial Div. 2002). Moreover, Yu seemed generally unfamiliar with electronics manufacturing.
After the fire, it was determined that it was set from inside, with no signs of forced entry — the insinuation being that the arsonist entered with a key. Yet the only people who had a key to the office were three YHT principals: Yu, Francis Fomai’i (“Fomai’i”), the landlord of the YRT office building who became a YHT Vice President after the fire, and YHT Vice President Ki Seok Bae (“Sae”).
When seeking payment, YHT was evasive and inconsistent. Yu failed to answer 19 questions put to him by Webb and faded to complete the *153Claim Form and Schedule of..Loss Form Webb furnished him. furthermore, in the original contradi, YHT claimed $60,000 for Plant and Machinery Business Fixtures and Fittings. Yet, at trial, YHT submitted that much of the $60,000 was for leasehold improvements. But Yu could not produce invoices or even details about these improvements.1 More importantly, Progressive’s policy with YHT clearly did not cover leasehold improvements.
YHT also failed to provide much documentation for the tangible property it claimed it lost,2 the defense being that its records were burned in the fire. Many of these items, such as office chairs and a television set, contained metal parts that would have left discoverable remains. But there were no remains of this kind found at the scene of the fire.
Finally, Luffs testimony also ruled out the possibility of vandalism or revenge. In his opinion, it would be unusual for a vandal or vengeful person to set a fire from within, or even go through the trouble of buying gasoline. And, as already noted, only three people possessed keys to the building. Without evidence of forced entry, Luff was at a loss for how a vandal could have gained access to the office.
DISCUSSION
Public policy dictates that if an insured sets fire to his property, either intentionally or willfully, he shall be denied the right to collect from his fire insurance. See, e.g., Allstate Ins. Co. v. Dorothy McGory, 697 So. 2d 1171, 1174 (Miss. 1997); 18 GEORGE J. COUCH, COUCH ON INSURANCE § 74:663 (2d ed. 1983) [hereinafter “COUCH”]; A.S.C.A. § 29.1571 (“An insurer is not liable for a loss caused by the willful act of the insured”). The majority rule places the burden on the insurer to prove its claim by a preponderance of the evidence. See Vexrastro v. Middlesex Co., 540 A.2d 693, 695-97 (Conn. 1988); Rena Inc. v. Brien, 708 A.2d 747, 751 (N.J. Super. A.D. 1998); Couch, § 74.667; 44 AM. Jur. 2d Insurance § 2017 (1982) [hereinafter “Insurance”].
There are three common elements to this defense: “1) incendiary fire, 2) motive on the part of the insured to destroy the property, and 3) opportunity on the part of the insured to set the fire or to procure the *154setting of the fire by another.” Allstate, 697 So.2d at 1174, Rena Inc., 708 A.2d at 751 (citing Alexander V. Tenn. Farmers Mut. Ins. Co., 905 S.W.2d 177, 179 (Tenn. Ct. App. 1995)). As might be expected, direct evidence of arson is often elusive; instead, an insurer may rely on circumstantial evidence. See Don Burton, Inc. v. Aetna Life & Cas. Co., 575 F.2d 702, 706-07 (9th Cir. 1975); Elgi Holding Inc. v. Ins. Co. of N. Am., 511 F.2d 957, 959 (2d Cir. 1975); Allstate, 697 So. 2d at 1174; Rena Inc., 708 A. 2d at 751; Insurance, § 2017; 34 Proof of Facts 3d 291, Arson Defense § 4 (1995) (“Arson Defense").
A. Incendiary Origin
As already alluded, we have no doubt that the fire was caused by arson, i.e., that it had an incendiary origin. We need only repeat our findings of facts: an explosion was heard prior to the fire; gasoline containers were found in two different rooms; gasoline residue was found in the bathroom; Yu admitted that there were no flammable materials in the building; the extent and speed of the fire indicated it was artificial; and the fire was at night, when it was less likely to be detected and extinguished. The two experts, Webb and Luff, drew the same conclusion.
B. Motive to Destroy Property
Our findings also show that YHT had motive to destroy its property. Among other things, business was not good. One of their biggest investments, almost $6 million worth of computer chips, was unmarketable. YHT had also recently taken out a hefty insurance policy. We find that the combination of these circumstances shows motive on the part of YHT. See, e.g., Beznco Sales & Salvage Inc. v. Gulf Ins. Co., 759 S.W.2d 336 (Mo. App. 1988); Arson Defense, §§ 6-12.
C. Opportunity
The final prong requires us to determine whether YHT had the opportunity to cause the fire. Two points should be emphasized. First, Progressive need not demonstrate that the insured personally set the fire — though of course that would suffice. Instead, it need only show that the insured had the opportunity to procure the setting of the fire. See Don Burton, Inc., 575 F.2d at 705; Allstate, 691 So. 2d at 1174; Rena Inc., 708 A.2d at 751. Secondly, because YHT was a corporation, it can be precluded from recovery on the policy if the fire can be traced to any of its corporate officers. See COUCH § 74.679. Thus, YHT can find little solace in the fact that Yu himself was not in the Territory the night of the fire, since its other corporate officer was here. Moreover, Fomai’i testified that he himself was in the office building the night of the fire and that, while Yu was away, Bae also had access to the building.
*155Therefore, we think the facts support the finding that YHT had the opportunity to set the fire. The most glaring fact is that the fire was set from inside the building, without any evidence of a forced entry. Logically, then, the culprit must have gained access by key. The only people who had a key to office were Yu and Bae, two corporate officers, and Fomai’i. While this evidence does not conclusively show that one of these three started the fire, it at least proves by inference that one of them was involved and had the opportunity to procure the setting of the fire. See Verrastro, 540 A.2d at 696-98.
„ CONCLUSION
We conclude that Progressive has proved, by a preponderance of the evidence, that the fire which burned down YHT’s office had an incendiary origin, and that YHT itself had both motive and opportunity to destroy the building. Accordingly, YHT’s claim for recovery on the policy is denied. Because of our holding, we do not reach Progressive’s other defenses.
ORDER
YHT’s action is dismissed with prejudice.
It is so ordered.
Progressive Senior Vice President, Greg Duffy, testified that it was not unusual for an insurance company to not have ownership information of insured property on file. However, when a claim is submitted, the policyholder is then required to prove ownership to protect against fraud and because insurable interests may have shifted since the time of the policy’s inception.
YHT’s itemized goods totaled $14,673, about half of which was actually supported by invoices. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486796/ | ORDER DENYING MOTION TO DISMISS
Petitioner Leota Vaea Ainu'u (“Leota”) filed a petition for dissolution of marriage. Respondent Tasiaeafe Ainu'u (“Tasiaeafe”) moved, pursuant to T.C.R.C.P. 12(b)(1), to dismiss the action on the ground that this court lacks subject matter jurisdiction over the petition. In particular, Tasiaeafe contends that Leota fails to meet the one-year residency requirement under A.S.C.A. § 42.0206(a)(1). The Court, having heard and considered counsels’ arguments, will deny the motion.
Standard of Review
In deciding a motion to dismiss for lack of subject matter jurisdiction, the burden of proof is on the party claiming jurisdiction. See 5A Charles Alan Wright and Arthur R. Miller, Federal Practice AND PROCEDURE § 1350 (3d ed. 1998). Both the movant and the petitioner may use affidavits and other supporting material to challenge or prove subject matter jurisdiction. Id.1
*160Discussion
At issue is whether Leota has met the one-year residency requirement under A.S.C.A. § 42.0206. A.S.C.A. § 42.0206(a)(1) provides that “the petition shall be dismissed if upon the evidence presented the court finds . . . that it has not been established that either the petitioner or respondent has been a bona fide and continuous resident of American Samoa for at least one-year next preceding the commencement of the action or proceeding.”
“[T]he term ‘residence,’ as used in a statute governing subject-matter jurisdiction over a marriage dissolution proceeding is equivalent to domicile, unless a contrary intent is shown.” 24 Am. JUR. 2d Divorce and Separation § 202 (1998). Thus, proof of either residency or domicile will satisfy the one-year residency requirement under A.S.C.A. § 42.0206.
Leota and Tasiaeafe were married on December 22, 1984 in American Samoa. Leota continuously lived in American Samoa until 1998. In 1998, he was transferred by his employer, the United States Department of the Interior, National Park Services, to Nevada. According to Leota, he always intended to return to his home in American Samoa and never intended to change his domicile to Nevada. Acting in accordance with this intention, Leota maintained his voter registration in American Samoa and returned to vote in local elections in 1998 and 2000. In October 2002, Leota returned to American Samoa and is currently employed by the American Samoa Government.
Under these facts, Leota’s domicile is and always has been American Samoa. Although Leota moved to Nevada for four years, he claims he never intended to make Nevada his new domicile. “To change domicile, actual residence and the intent to change legal residence must occur. One must remove to the new residence without the intention of returning to the old as such.” In re The Marriage of George W. Bates, 474 N.E.2d 140, 143 (Ind. Ct. App. 1985). In addition, “[a] temporary absence from one’s domiciliary state because of work or employment at another place does not of itself effect a change of domicile.” 24 AM. JUR. 2d Divorce and Separation § 213 (1998). Since Leota viewed his move to Nevada as a temporary job transfer and always intended to return to American Samoa, his domicile remained in American Samoa. Accordingly, we conclude that petitioner has been a “bona fide and continuous resident of American Samoa” as required under the statute. As such, this Court has subject matter jurisdiction over the dissolution petition.
*161Ordfer
For the reasons stated above, the motion to dismiss is denied.
It is so ordered.
Petitioner seeks to convert this motion into one for summary judgment because both parties have introduced materials outside of the pleadings. However, extra-pleading material is appropriate in the Rule 12(b)(1) context and, therefore this motion is properly considered as a motion to dismiss. See, e.g., Biotics Research Corp. v. Heckler, 710 F.2d 1375, *1601379 (9th Cir. 1983). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486797/ | PRELIMINARY INJUNCTION
Plaintiffs brought this action for preliminary and permanent injunctions enjoining Defendants from using “Iuni Lakapi Amerika Samoa” as the name of their corporation. Plaintiffs’ application for a preliminary injunction was heard on August 22, 2003, with both counsel present. During the hearing, the Court invoked T.C.R.C.P. 65 to advance and consolidate the trial on the merits with the application hearing.
A preliminary injunction is properly issued when “there is a substantial likelihood the applicant will prevail at trial on the merits” and obtain a permanent injunction against the opposing party, and “great or irreparable injury will result to the applicant before a full and final trial can be fairly held” on the permanent injunction issue. A.S.C.A. § 43.13010.
Defendants acknowledge that they named their corporation “Iuni Lakapi Amerika Samoa.” They also acknowledge that they use this name in conducting the affairs of the corporation, even after the Territorial Register, correctly or incorrectly, voided the registration of their corporation so named and informed Defendants of her action. They are apparently relying on an opinion issued by the Attorney General that their use of this name does not violate A.S.C.A. § 30.0104(a), which provides that “[t]he name of each corporation must be such as to distinguish it upon the records of the territorial registrar from the name of any other corporation.”
We disagree with the Attorney General. The name of Plaintiffs’ corporation, registered in 1990, is “American Samoa Rugby Football Association.” The two names are clearly different at face value. However, “Iuni Lakapi Amerika Samoa” is a literal translation in the Samoan language of “American Samoa Rugby Football Association” in the English language.
The right of a corporation to the exclusive use of its corporate name is a common-law right, and equity will prohibit another from using a similar name has the potential to deceive the public.
*1636 Fletcher Cyclopedia dE Corp. §"2422 (1926).
The protection of a corporate name against use by another person or business entity has been frequently based on the theory of fraud and the resulting deception of the public. The injury guarded against is twofold: (1) Public confusion caused by the palming off of goods and services of another corporation; and (2) Diversion of business from another corporation. The ultimate question is whether a person or entity is using a name to deceive the public into purchasing goods or services that they believe belong to another corporation.
Id. at § 2423.
The common-law principles are, in our view, codified in A.S.C.A. § 30.0104(a). Accordingly, if the public is likely to be deceived by the similarity of the corporate names, injunctive relief is appropriate. In American Samoa, where most people speak both Samoan and English, the likelihood of public confusion from the Defendants’ use in the Samoan language as their corporation’s name the identical official name of Plaintiffs’ corporation in the English language is great. The public is likely to assume the names are interchangeable and belong to the same corporate entity.
Apparently, for several years, Plaintiffs have not actively pursued the affairs of the American Samoa Rugby Football Association, particularly towards achieving the objectives of promoting and developing rugby for both local and regional competition. Additionally, Plaintiffs may be serving as officers without complying with selection procedures of the Association’s bylaws. Defendants proclaim to have organized the Iuni Lakapi Amerika Samoa to overcome this inertia of purpose and the bylaw violations. Nonetheless, for preliminary injunction purposes, the likelihood of issuing a permanent injunction against Defendants upon completion of the trial on its merits is substantial, and until then, Plaintiffs will be greatly harmed by public confusion over which corporation is sponsoring noticed activities through Defendants’ continuing use as a corporate name the Samoan translation of Plaintiffs’ English corporate name.
The issue would be simply resolved if Defendants would select a clearly distinct name and amend their articles of incorporation accordingly.
*164Order
1. During the pendency of this action, or until further order of the Court, Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from using “luni Lakapi Amerika Samoa” as the name of their corporation.
2. Either Plaintiffs or Defendants may move to schedule a date for completion of the trial of this action.
It is so ordered. | 01-04-2023 | 11-18-2022 |
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