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https://www.courtlistener.com/api/rest/v3/opinions/8486448/ | Order Clarifying and Amending Part of Opinion and Order:
One part of our discussion in the opinion and order, entered on September 24, 1996, needs clarification, and we will do so on our own motion.
We stated in the first full paragraph on page 6 of our decision that "We think that ASB was under a duty to ensure that the 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."
*7The word "duty" may mislead. We did not mean to impose an affirmative duty upon a mortgagee to check a mortgagor’s ownership of land used as collateral for a loan or risk losing foreclosure rights on default of the underlying loan. We only intended to point out that a mortgagee cannot foreclose against land described in a deed and mortgage which the mortgagor does not actually own, in the absence of any basis for reformation of the mortgagee’s deed. The mortgagee’s fraud in inducing her grantor’s conveyance of the land rendered the deed void and precluded the possibility of reformation in this case.
ORDER
1. The opinion and order is amended by deleting the first and second full paragraphs on page 6 in their entirety and substituting the following paragraphs therefor:
However, as ASB later discovered, the land described was not the land actually intended to be conveyed and mortgaged. Unless reformed, the deed conveyed nothing to Rosalia, and ASB is constructively notified of the defect. See National Resources, Inc. v. Wineberg, 349 F.2d 685, 690 (9th Cir. 1965).
Since the deed was absolutely void-by reason of Rosalia’s fraud upon Molipopo, ASB cannot obtain reformation of the deed and 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.
2. The Clerk of Courts shall have a certified copy of this order registered with the Territorial Registrar.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486449/ | Order ¡Denying Motion For New Trial:
On April 16, 1996, plaintiff American Samoa Government ("ASG") filed the information in this action, charging defendant William Su‘a ("Su‘a") *9with the crimes of assault in the second degree and unlawful use of a weapon. Trial by jury commenced on August 27, 1996, and on August 28, the jury found Su‘a guilty of both offenses as charged.
We scheduled sentencing on September 18, 1996. Despite the statutory direction of A.S.C.A. § 46.2402 to file a motion for a new trial within 10 days after the announcement of the judgment or sentence, Su'a prematurely filed a motion for new trial on September 6. The motion was set for hearing on September 17, but we rescheduled the hearing on September 18 for argument after pronouncing the judgment and sentence.1
On September 18, we adjudicated Su'a guilty of both offenses and sentenced him to two consecutive terms of three years' imprisonment. We suspended execution of the sentence and placed Su'a on probation for three years on the condition, among others, that he serve a period of 18 months' detention at the correctional facility, with credit for his incarceration of the approximately six months' incarceration awaiting trial and sentencing.
DISCUSSION
Su'a essentially raised two grounds for a new trial. First, he claimed that we granted, over his objection, ASG's request to continue the trial without good cause due to the absence of ASG's witnesses. Second, he asserted that the jury's verdict cannot stand, because the jury returned the verdict in about five minutes and necessarily failed to properly deliberate. Further to the second issue, he specifically maintained that the jury did not, as a matter of law, consider the evidence of self-defense. In addition, he declared that the foreperson stated immediately after the jury was discharged that despite his efforts, the jury refused to deliberate or discuss the evidence.
1. Continuance.
ASG's first witness during the trial, the victim of the assault, testified after the lunch break on the first day. Then, ASG was unable to produce another witness. Other witnesses to the assault and the doctor who examined the victim were under subpoena and instructions to be in the *10courthouse at 1:30 p.m. The prosecutor was given opportunity to call his office about the nonappearances but was still unable to proceed or immediately explain the witnesses’ absence. We then granted, over Su‘a’s objection, ASG’s motion to continue the trial until the following morning to produce the witnesses.
A trial court may grant or deny, in its sound discretion, a continuance during trial to obtain a witness. People v. Laursen, 501 P.2d 1145, 1153 (Cal. 1972). The decision to grant or deny a continuance will not be overturned except upon a showing of clear abuse. United States v. Real Property Located at Incline Village, 47 F.3d 1511, 1521 n.5 (9th Cir. 1995). The court must take into account such factors as the benefit the movant expects, the likelihood of producing the witness, the burden on the jurors, court and other witnesses, and foremost whether the continuance will achieve or nullify substantial justice. Laursen, 501 P.2d at 1153.
The missing witnesses were on island, under subpoena, and available to testify. While other witnesses to the assault may have been cumulative, they may also provide a more accurate perspective on the totality of circumstances than the victim. The doctor would best describe the nature and extent of the physical results of the encounter. The testimony of these witnesses was relevant, material, and reasonably necessary. An overnight delay was not unduly burdensome on any of the trial participants.
ASG sought the slight delay in this situation to adequately present the prosecution case and let the jury decide the accused’s guilt. Above all, the continuance served not to repudiate but to promote substantial justice.
2. Jury Deliberations.
The jury reached the verdict in about five minutes. No rule requires a jury to deliberate for any set length of time. See United States v. Anderson, 561 F.2d 1301, 1303 (9th Cir. 1977) (per curiam) (upholding verdict that jury reached after "brief deliberation”), cert. denied, 434 U.S. 943, 98 S. Ct. 438, 54 L. Ed. 2d 304 (1977); United States v. Brotherton, 427 F.2d 1286, 1289 (8th Cir. 1970) (five to seven minutes); Kimes v. United States, 242 F.2d 99, 100-01 (5th Cir. 1957) (20 minutes) (order denying rehearing), cert. denied, 354 U.S. 912, 77 S. Ct. 1299, 1 L. Ed 2d (1957). Substantial evidence supported the jury’s verdict in this case, and we "can well understand why the jury took no longer in coming to a decision." Wall v. United States, 384 F.2d 758, 762 (10th Cir. 1967) (verdict upheld after one hour of deliberation). *11Su‘a attempted to show that the jury did not deliberate in fact by subpoenaing the foreperson. However, the foreperson testified that the jurors did deliberate, the self-defense issue included, and unanimously agreed on Su‘a guilt. He also denied making the post-verdict statements defense counsel attributed to him. Counsel’s investigator testified in an effort to impeach the foreperson by prior inconsistent statements. The foreperson’s prior statements might have been misunderstood, but in any event, we believe his in-court testimony.
We also take this opportunity to express our displeasure with defense counsel’s tactic in calling the foreperson to testify and state the appropriate principles involved. We probably would have followed our instinct at the time and upheld an objection, if made, to this evidence.
A juror may not impeach his own verdict once the jury has been discharged. McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed. 1300 (1915). This rule was formulated to foster several public policies: (1) to discourage harassment of jurors by losing parties eager to have the verdict set aside; (2) to encourage free and open discussion among jurors; (3) to reduce incentives for jury tampering; (4) to promote verdict finality; and (5) to maintain the viability of the jury as a judicial decisionmaking body. Gov’t. of Virgin Islands v. Gereau, 523 F.2d 141, 148 (3rd Cir. 1975).
Moreover, while "extraneous" influences on the jury’s deliberations can overturn a jury verdict, "[ejvidence of discussions among jurors, intimidation or harassment of one juror by another, and other intrajury influences on the verdict... is not competent to impeach a verdict." Id. 523 F.2d at 149-50 (citing United States v. Kafes, 214 F.2d 887 (3rd Cir. 1954); United States v. Blackburn, 446 F.2d 1089 (5th Cir. 1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 679, 30 L. Ed. 2d 665 (1972); United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969), cert. denied, 395 U.S. 981, 89 S. Ct. 2141, 23 L. Ed. 2d 769 (1969); United States v. Kohne, 358 F. Supp. 1046 (W.D. Pa. 1973), aff’d, 487 F.2d 1395 (3rd Cir. 1973), cert. denied, 417 U.S. 918, 94 S. Ct. 2624, 41 L. Ed. 2d 224 (1974)).
The discharged foreperson’s testimony and out-of-court remarks are not competent evidence for impeaching the verdict, because they undermine his own verdict, and concern intrajury discussions that inhere in the jury’s verdict and must be protected by a veil of secrecy and confidence. See United States v. Homer, 411 F. Supp. 972, 976-79 (W.D. Pa. 1976). We will not allow, on our own motion if necessary, jurors to be put in this position in the future.
CONCLUSION
*12We deny the motion for a new trial. It is so ordered.
On September 4, 1996, Su'a also filed a motion for a judgment of acquittal, under T.C.R.Cr.P. 29(c), which was also scheduled for hearing on September 17 and postponed until September 18. The court heard and orally denied this motion before pronouncing the judgment and sentence on September 18. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486450/ | Order Granting in Part and Denying in Part Motion for New Trial:
I. INTRODUCTION
On November 28, 1995, we issued our opinion and order finding defendant Voyager, Inc. ("the owner") liable under the Jones Act, 46 U.S.C. App. § 688, and the general maritime cause of unseaworthiness, and finding the owner and defendant M/V Voyager ("the vessel") (collectively "defendants") liable for unpaid maintenance and cure.1 Under the Jones Act and unseaworthiness claims, we awarded plaintiff *15Everett Clifton ("Clifton") $807,750 for lost earning capacity and disability plus $50,000 for pain and suffering. We awarded an additional $1,795.99 for unpaid maintenance and cure. We also awarded costs in the amount of $2,330.39. We set post-judgment interest to run at 6% from the date of the order. Defendants filed a motion for new trial.
II. DISCUSSION
A. Defendants’ Reply Brief Will Be Struck
Defendants filed their motion for a new trial on December 8, 1995, and their supplemental memorandum on December 12, 1995. Clifton filed his response on January 9, 1996.2 For purposes of this order, we will refer to Clifton’s brief as a response, and defendants’ subsequent brief as a reply. The hearing on this motion was held January 11, 1996. At the hearing, counsel for both sides agreed to waive oral argument and submit the motion on the briefs. We asked defendants’ counsel whether he would like additional time to draft a reply to Clifton’s response. He said that he would not. We urged defendants’ counsel to at least take additional time to read Clifton’s response. However, he said that was unnecessary, and that he was willing to submit the motion on the briefs as submitted. We took the matter under advisement at that time.
Six weeks later, on February 21, 1996, defendants filed a reply brief with the court, despite their earlier assurance that they would not. T.C.R.C.P. 59(c) appears to give us discretion over whether to allow the *16filing of a reply in a motion for new trial.3 However, even without such discretion, we need not, and as a general rule will not, accept filings made after a matter has been submitted. This is particularly true where we specifically asked an attorney whether he would like additional time to make a filing, and he, in return, specifically answered that he would not. For these reasons, defendants’reply brief will be struck.
B. Standard of Review
The decision to hold a new trial is within the discretion of this court. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278, 106 L. Ed. 2d 219, 240 (1989). We grant a motion for a new trial only where the moving party can show that the original decision is contrary to the clear weight of the evidence. See, e.g., Day v. Amax, Inc., 701 F.2d 1258, 1263 (8th Cir. 1983). Of course, on a motion for a new trial, we will not consider arguments that the moving party failed to raise during the original trial. Olaotoa 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).
C. Liability
Defendants have continually conflated the concepts of negligence and unseaworthiness in their brief.4 However, as we discussed in our opinion and order, Jones Act negligence and unseaworthiness are two separate and distinct claims. Thus, although defendants lump them together in their arguments, we must deal with each concept separately.
. 1. Jones Act Negligence
*17We found that Clifton proved both elements of a Jones Act negligence claim: (1) that there was a negligent act by the owner, and (2) that there was a but-for causal connection between the act and the injuries sustained. See Martin J. NORRIS, The LAW OF Seamen § 30:34, p. 458. Defendants challenge our finding of (a) negligence (a breach of a legal duty) and (b) our finding of actual, or “but-for” causation.
a. Jones Act Negligence: Duty and Breach of Duty
Defendants allege that Clifton did not meet his burden of proving the existence of defendants’ duty and breach of duty. The Jones Act and interpretive case law, not a plaintiff, establish a defendant's immutable duty of care to the plaintiff. The duty of care that employers owe to seamen m.der the Jones Act is identical to the duty of care that employers owe to employees under the Federal Employer's Liability Act ("FELA"), 45 U.S.C. Sections 51 et seq. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 523, 1 L. Ed. 2d 511, 514 (1957). As we stated in our original opinion and order, the duty of care employers owe under the FELA is not merely a duty to exercise reasonable care, as in the typical negligence suit, but is rather a duty to exercise “great care”. See Op. & Order at 11 (citing Boeing Co. v. Shipman, 411 F.2d 365, 371 (5th Cir. 1969); Nelsen v. Research Corp. of Univ. of Hawaii, 805 F. Supp. 837, 848 (D. Hawaii 1992)). Under the Jones Act, the owner owed Clifton a duty to exercise great care in the instant case.
While the question of duty is a question of law, the issue of breach of duty is a question of fact. “[DJeterminations of negligence in admiralty cases are findings of fact which will be given application unless clearly erroneous.” Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th Cir. 1995) (quoting Hasbro Industries, Inc. v. M/S St. Constantine, 705 F.2d 339, 341 (9th Cir. 1983), cert. denied, 464 U.S. 1013, 78 L. Ed. 2d 717 (1983)). In general, “fact finding does not require mathematical certainty. [Factfinders, whether jurors or judges] are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.” Schultz v. Pennsylvania Ry. Co., 350 U.S. 523, 100 L. Ed. 2d 668, 671 (1956) (emphasis added). In the context of a Jones Act claim, determining that a factual conclusion is “clearly erroneous” is particularly difficult, because under the Jones Act “the burden of proof is much less than the burden required to sustain recovery in ordinary negligence actions.” Nelsen, 805 F. Supp. at 848.
Clifton testified that the operator reversed the vessel's engines and caused the fishing net to become entangled with and fused to the vessel’s *18propeller.. As a matter of common sense, we believe that when a fishing net is trailing the vessel in water, an operator exercising “great care” would not reverse the engines. Defendants’ own witness admitted that such an occurrence is extremely rare. From this circumstantial evidence, this court reasonably inferred that Clifton met his burden of proving that the owner failed to exercise great care when its agent allowed the net to become entangled in the vessel’s propeller. We decline to hold that these factual findings were clearly erroneous.
Defendants charge that this court improperly imposed on defendants a burden of disproving the elements of Clifton's claim. However, defendants misunderstand the Court’s approach to the evidence. The evidentiary value of a plaintiff’s case is always buttressed by the absence of credible evidence to the contrary. We found negligence not because defendants failed to disprove elements of Clifton's claim, but because Clifton’s evidence, as viewed in light of defendants’ failure to present contradictory evidence, supported such a finding.
Our earlier statements that “[w]e are unable to understand how a fishing net becomes severely entangled around a vessel’s propeller in the absence of negligence,” 29 A.S.R.2d 82 at 91, and that “[t]his case approaches one of res ipsa loquitor,” Id., do not evince our intent to shift the burden to a defendant or to apply the doctrine of res ipsa loquitor. Rather, these strong statements simply reflect our supreme confidence in our finding that the owner was negligent.
b. Jones Act Causation
Defendants argue that “any negligence . . . connected to the[] net being caught in the propeller had no causal effect on plaintiffs claimed injuries which occurred when plaintiff was assisting in releasing the net.” Def.’s Brief at 7. (capital letters omitted). In particular, defendants protest that this court did not consider proximate causation, i.e., the question of whether it was foreseeable that the owner's negligence would play a part in producing the injuries. Defendants cite cases from general maritime law. As this court has already stated, however, the Jones Act does not follow general maritime law. The Jones Act does not require a showing of proximate causation, but only a showing that the defendant's breach of duty played any part, no matter how small, in bringing about or actually causing the injuries. See 29 A.S.R.2d at 92 (citing Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 1 L. Ed. 2d 493, 515 (1957) (FELA); Belanger v. Cenac Towing Co., 1989 U.S. Dist. LEXIS 8755 (E.D. La. 1989)); see also Chisolm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 63 (5th Cir. 1982).
*19Since the question of but-for causation under the Jones Act is a question of fact, see MARTIN J. NORRIS, THE LAW OF SEAMEN § 30:37, at 505-06, a factfinder’s conclusions with respect to causation must stand unless clearly erroneous. McAllister v. United States, 348 U.S. 19, 20, 99 L. Ed. 20, 24 (1954); Exxon, 54 F.3d at 576. Proving cause in fact is simply a matter of proving that the defendant’s act contributed to the string of events leading to the eventual injuries. The question is often phrased as: “But for the defendant’s acts or omissions, would the plaintiff have been injured?”
Defendants state that
the evidence establishes that the net became entangled in the propeller and the vessel then came to a stand still. As of that time, there was no claimed injuries to Plaintiff. Therefore, the condition of the vessel at that time [or the negligence leading to it] did not cause any injury to Plaintiff.
Def.’s Br. At 8. However, “[njearness in time or space is not the proper test of cause in fact.” 57A AM. JUR. 2d Negligence § 465, at 445. A causal chain can continue for a great deal of time into the future or through many intervening occurrences. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928). Thus, if A causes B, B causes C, and C causes D, then A, B and C are all causes in fact of D, though each may not necessarily be a proximate cause. See WILLIAM L. PROSSER, Handbook of the Law ofTorts § 41, at 237 (4th ed. 1971); 57A Am. JUR. 2d Negligence § 454, at 437.
In the instant case, the owner's negligence was the first in a string of events leading to Clifton's injuries. Therefore, the court did not err in its finding of causation under the Jones Act. Whether it was foreseeable, at the time of the owner's negligence, that Clifton would suffer a hand injury from the owner's negligence is not a relevant inquiry under the Jones Act.
2. Unseaworthiness
In our original opinion and order, we found as a matter of fact that the vessel was unseaworthy, and that the vessel's unseaworthiness was an actual and proximate cause of Clifton's injuries. Because defendants have conflated the issues of negligence and unseaworthiness, we are unsure whether defendants are attacking the court’s factual finding that the vessel was unseaworthy. For the record, we find no clear error in the conclusion that a vessel that has no functioning propeller and is “dead in *20the water’ is unfit for its intended purpose. See 29 A.S.R.2d 82 at 89; Nelsen, 805 F. Supp. at 850.
Defendants have, however, gone to great lengths to challenge our factual findings with respect to causation under the unseaworthiness claim.
In a cause of action due to unseaworthiness, “a plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 1988). We reaffirm the conclusion that the vessel’s unseaworthiness (a) actually and (b) proximately caused Clifton's injuries.
First, after employing the cause in fact analysis contained in the discussion of the Jones Act above, we have no trouble affirming the earlier finding that the vessel’s unseaworthiness was a cause in fact of Clifton's injuries. The unseaworthiness was a “substantial part” of the chain of events that led to his injuries. In fact, it was the second in a chain of events initiated by the owner's negligence, which we also have deemed to be a cause in fact. But for the inability of the vessel to function properly, Clifton would not have sustained his injuries.
In unseaworthiness cases, the plaintiff must not only establish cause in fact, but also proximate cause, i.e., “that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” Johnson v. Offshore Express, Inc., 845 F.2d at 1354. The question of proximate cause examines whether a cause is so attenuated in time or space, or whether an act or actor has intervened in the causal chain, so as to relieve the defendant of liability. The requirement of proximate causation stems from the belief that imposing liability on every cause in fact can violate “common sense, logic, precedent, fairness, and a ‘rough sense of justice.’” 57A Am. Jur. 2d Negligence § 482, at 464.
Defendants argue that “[t]he actual force causing the claimed injury was the work (i.e., the cutting away at the net), not any accident relating to the net becoming caught.” However, Prosser states that it is “obvious that if a defendant sets a fire which burns down the plaintiff’s house, no court in the world will relieve him of liability upon the ground that the fire, rather than his act, was the nearest or the next cause of the destruction of the house.” PROSSER, supra, § 42, at 246-47. Thus, in the instant case, we categorically reject the notion that the work on the net was an independent intervening cause that should absolve defendants, when the vessel’s unseaworthiness caused the need for the work in the first place. Clifton's- injuries were a direct result of the vessel's unseaworthiness.
*21Next, defendants contend that Clifton’s injuries were unforeseeable. The foreseeability question restricts the imposition of liability to cases in which the injuries to the plaintiff are the natural and reasonably predictable consequences of a negligent action, or in this case, of a ship’s unseaworthiness. It is clearly foreseeable that a crewmember must repair a vessel when it is damaged to the point of being “dead in the water.” Volunteering to assist in such repairs is “a normal response to the stimulus of a dangerous situation.” See New York Cent. Ry. Co. v. Brown, 63 F.2d 657, 658 (6th Cir. 1933). Thus, Clifton's injuries were a foreseeable result of the unseaworthy condition of the vessel, which had a fishing net tangled about its propeller.
Chisholm v. Sabine Towing and Trans. Co., 679 F.2d 60 (5th Cir. 1982), the case that defendants cite and ultimately misread, does not challenge the factual findings in this case. In that case, the plaintiff injured his back throwing unsecured scrap metal overboard. In one part of the opinion, the circuit court denied recovery for the plaintiffs unseaworthiness claim on the ground that the injury did not occur while the plaintiff was working to remedy the vessel’s unseaworthy condition. Id. at 63. However, the case at hand is inapposite. Clifton was working to free the net from the vessel’s propeller; unlike the plaintiff in Chisolm, Clifton was trying to remedy the unseaworthy condition when he sustained his injuries. ‘The danger which invited the response was the cause of the injury.” Id. Though Chisolm is factually distinguishable from the instant case, our opinion is fully consistent with the law of Chisolm.
In sum, the question of proximate cause considers temporal and spatial proximity, incorporates the foreseeability of a plaintiffs injury, and distinguishes natural and ordinary consequences from extraordinary consequences. This court originally found that the vessel’s unseaworthiness was close in time and space to Clifton's injuries, and that his injuries were a foreseeable, ordinary, and natural result of the vessel’s unseaworthiness. After further review, we find that those factual findings are not clearly erroneous.
3. Medical Causation
Defendants also assert that, as a medical matter, Clifton’s injuries could not have been caused by his work in freeing the net from the propeller.5 *22At trial, we found that Clifton had established medical causation, based upon the expert evidence presented by Doctors Vineyard and Tuato’o. Defendants challenge our finding of fact with a barrage of misrepresentations and new evidence.
a. Qualifications of the Expert Witnesses
"A trial court has broad discretion concerning the admissibility or exclusion of expert testimony . . . EW Truck & Equipment Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992) (citing Reno-West Coast Distribution Co. v. Mead Corp., 613 F.2d 722 (9th Cir. 1979), cert. denied, 444 U.S. 927 (1979)). Despite this broad discretion, defendants object to our acceptance of the expert testimony at trial because it does not follow the criteria for admissibility of expert testimony articulated in Daubert v. Merrell Dow Pharmaceutical, Inc., _ U. S._, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). However, defendants did not raise the issue of the Daubert criteria at trial. We will not accept arguments on issues raised for the first time in a motion for a new trial if they could have been properly raised at trial. Moea'i v. Alai'a, 12 A.S.R.2d 91, 93 (App. Div. 1989). This is true even in the case of an "interesting and possibly important argument" such as the one raised here. See Olotoa v. Bartley, 3 A.S.R.2d 21, 22 (Land & Titles Div. 1986).
Clifton offered, and the court accepted, the doctors’ expert testimony without objection or challenge from defendants. Thus, defendants’ belated Daubert argument will not be considered in this motion.6
b. Challenge to Expert Evidence
In addition to challenging the qualifications of the expert witnesses, the defendants now also challenge the evidence the experts presented. Defendants have attempted to disprove medical causation by quoting medical definitions for carpal tunnel syndrome ("CTS") which have been accepted by other courts. See Def.’s Br. at 10. This new evidence does not advance defendants’ cause.
First, defendants knew that evidence was to be presented at the trial, and not afterward. They had every opportunity to contradict the testimony that Clifton’s work in freeing the net caused his CTS. They may not now *23present evidence that was available at the time of the trial to challenge the Court’s factual findings with respect to causation.
Second, even if defendants had presented this evidence at trial, we conclude that their evidence would not have affected, and does not affect, our factual determination on causation. Defendants aver that "[CTS] could not have been caused by the one-day work performed by Plaintiff in releasing the net from the propeller." Def.’s Br. at 10. However, their citations do not unequivocally stand for this proposition. Their sources define CTS as "commonly," but not exclusively, "caused by occupational activities which require ‘repeated flexion, pronation, and supination of the wrist.'" Melendez, 1990 U.S. App. LEXIS at *10. This definition does not indicate the minimal duration of repetitive motion necessary to cause CTS, nor does the definition state that repetition is necessary in all cases of CTS. The definition does not preclude the possibility that Clifton's efforts to free the net could lead to CTS.
Clifton’s expert witnesses told us that his efforts could and did lead to CTS. Where a factfinder makes a decision based on “one or two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. Bessemer City, 470 U.S. 564, 575, 84 L. Ed. 2d 518, 529-30 (1985). Thus, we conclude that there was no error in our finding of medical causation.
4. Inevitable Hazards
Defendants posit that an "inevitable hazards" defense should preclude liability in this case. The case that defendants cite, Massey v. Williams McWilliams, Inc., 414 F.2d 675 (5th Cir. 1968) states that "there are inevitable hazards-some of a severe nature-in the calling of those who go down to sea in ships, hazards which when not occasioned by negligence or unseaworthiness have to be borne by those who follow the calling." Id. at 678 (emphasis added). Thus, even accepting that the inevitable hazards "doctrine" for which defendants argue is not an inapplicable assumption of risk argument, see 29 A.S.R.2d at 94, it is still no defense where, as here, a court has found negligence and unseaworthiness.7
5. Primary Duty Rule
*24In our opinion and order, we noted that defendants "evince[d] a fundamental misunderstanding of th[e] [primary duty] rule." 29 A.S.R.2d at 92-93. We stated the correct rule, and defendants’ new arguments do not sway us from our convictions that we correctly interpreted this straightforward doctrine.
6. "Warranty of Being Fit for the Voyage"
Defendants once again raise the argument that a seaman owes a shipowner a "warranty of being fit for the voyage and of being of normal agility and coordination." Def.’s Br. at 14. In our opinion and order, we noted that no such warranty exists and castigated defendants for the manner in which they had presented the argument. See 29 A.S.R.2d at 94 & n.5.
In their latest brief, defendants continue to claim that a warranty of fitness for duty exists and cite three cases for the proposition. None of these cases discuss the concept of a warranty of fitness for duty. See Gibson v. International Freight Corp., 173 F.2d 591 (3d Cir. 1949); Bilger v. Maritime Overseas Corp. 304 F. Supp. 1024 (N.D. Cal. 1969); Curry v. United States, 327 F. Supp. 155 (N.D. Cal. 1971). In fact, we have never even seen that language — "warranty of fitness for duty"— except in defendants’ briefs.
7. Gottshall
Additionally, defendants take issue with our legal reasoning on the issues of causation, medical causation and the "warranty of fitness for duty" by claiming that we have relied upon overruled law. Specifically, they claim that a case we cited in our opinion, Nelsen v. Research Corp. of the Univ. of Hawaii, 805 F. Supp. 837 (D. Haw. 1992), was overruled by the Supreme Court in Consolidated Rail Corp. v. Gottshall, _U.S._, 114 S. Ct. 2396, _L. Ed. 2d_ (1994). However, Gottshall does not explicitly or implicitly overrule, or even mention Nelsen.
Defendants, therefore, have failed to show clear and prejudicial error warranting a new trial with respect to liability.
D. Damages
Defendants also take issue with our award of damages. The measure of damages is a question of fact. Johnson v. Offshore Express, Inc., 845 F.2d at 1356. A trier of fact enjoys substantial discretion in determining the amount of damages to award. Neiman-Marcus Group, Inc. v. Dworkin, 919 F.2d 368, 372 (5th Cir. 1990). The factfinder is not required to calculate damages with mathematical precision, Cunningham *25v. City of Overland, 804 F.2d 1066, 1070 (8th Cir. 1986), and a reviewing court may only modify a damages award if the award does not have a rational basis. Dworkin, 919 F.2d at 372.
We believe that our awards for pain and suffering, medical costs, and maintenance and cure have a rational basis. However, after further review of case law on the issue of lost future wages, we are left with the definite and firm conviction that in our original opinion and order, we committed a mistake in the manner in which we calculated damages for Clifton’s lost future wages. Where the trier of fact has not properly considered factors enunciated in judicial precedent, the findings will be clearly erroneous. Cf. Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 492 (5th Cir. 1985).
The goal in awarding damages for lost future wages is to replicate as accurately as possible the injured plaintiffs lost stream of future income. Deakle v. John E. Graham & Sons, 756 F.2d 821, 830 (11th Cir.), rehearing denied 763 F.2d 419 (1985) (citing Jones & Loughlin Steel Corp. v. Pfeifer, 462 U.S. at 533-38, 76 L. Ed. 2d at 780-84). Lost stream of income is composed of the difference between what the injured party would have earned had he not been injured and what his forecasted actual earnings will be, given his injuries. Id.
We now believe we erred in our previous calculation of Clifton's total expected future wages as an uninjured seaman. As defendants correctly point out, we did not use Clifton's actual earnings at the time of the accident as the base from which to determine Clifton's future earning capacity but for his injuries. We recognize that this approach was consistent with the approach of Louisiana state courts in Landry v. Melancon, 558 So.2d 1143 (La. App. 1989), and Flose v. Fakouri, 371 So.2d 1120 (La. 1979). However, after further research and consideration, we choose to follow the approach articulated by the Fifth Circuit in Hernandez v. M/V Rajaan, 841 F.2d 582 (5th Cir. 1988), corrected on other grounds on denial of rehearing, 848 F.2d 498, cert. denied, Dianella Shipping Corp. v. Hernandez, _U.S._, 102 L. Ed. 2d 562, cert. denied, _ U.S._, 102 L. Ed. 2d 970 (1988); see also Turner v. Inland Tugs Co., 689 F. Supp. 612, 621 (E.D. La. 1988). The Hernandez court rejected the expert’s lost wage calculations because they were based on an uninjured longshoreman’s average annual salary; instead the court used as a basis for calculating future earning capacity the plaintiff’s actual earnings at the time of the incident, which were substantially less than the average annual salary because the plaintiff was only a part-time longshoreman. 841 F.2d at 587.
We believe that the Hernandez opinion, in essence, incorporates the concept of foreseeability the Supreme Court articulated in Jones & *26Loughlin Steel Corp. v. Pfeifer, 462 U.S. at 536, 76 L. Ed. 2d at 783 (authorizing adjustments in the calculations of future earning capacity for “foreseeable” promotions and “foreseeable” productivity growth). Based on the Jones & Loughlin Steel Corp. and Hernandez decisions, we believe that it is generally foreseeable that an uninjured plaintiff will continue his employment at his current wage rate, in his current position, and for the same number of hours per annum*. Just as a court may consider foreseeable raises and promotions in determining future earning capacity, courts should also be able to consider foreseeable upgrades in employment status from an unemployed or part-time employee to full-time employee-but only if the evidence at trial “reliably demonstrate^]” that it is foreseeable that the individuál would have achieved full-time employment status at a particular juncture. Jones & Loughlin Steel Corp. v. Pfeifer, 462 U.S. at 535, 76 L. Ed. 2d at 782. While an individual’s big break could be “right around the corner”, a court cannot, absent reliable evidence presented at trial to the contrary, speculate that the individual would be employed more often than he was employed during the year prior to the injury.
In the instant case, while there was testimony from Clifton and the vessel’s captain to support the conclusion that if he had not been injured, Clifton would be promoted to an assistant engineer in 10 years, there was no testimony to support the notion that Clifton's work schedule was going to involve more than one trip per year.8 In a real sense, we determined what Clifton uninjured could possibly have earned in the future, not what he would have earned based on the evidence reliably demonstrated at trial. Therefore, in our original opinion and order, we should have judged Clifton's future earning capacity from his actual earnings during the year prior to the injury. We purport to do so now.
*27Defendants correctly point out that the evidence at trial indicated that Clifton was earning at the time of the accident, at most, an annual salary of $4,000: he only went on one trip during the previous calendar year, a trip that could, at best, bring in 1000 tons of fish;9 at $4 per ton, his income from his one annual trip was, at best then, $4,000. We have no other evidence that Clifton earned income from any other employment. Therefore, for the purposes of computing lost wages, we should have concluded that Clifton would have earned $4,000 per year as a fisherman.
From credible evidence at trial, we concluded that Clifton was on track for a promotion to assistant engineer after 10 years, a promotion that would have increased Clifton’s annual gross income to $11,000 ($11 per ton on a ship that catches at most 1000 tons of fish each trip, working one trip eacb year) for the remaining 29 years of his working life. Thus, considering as we must the increase in earnings Clifton would have obtained as a result of reliably demonstrated promotions, Jones & Loughlin Steel Corp., 462 U.S. at 535, 76 L. Ed. 2d at 782, we should have concluded that he would have earned $11,000 per year as an assistant engineer.
Further review of the trial record compels us not only to reconsider our valuation of the amount Clifton would have made but for the injuries, but also to reconsider our valuation of the amount Clifton is earning, or will likely earn, after his injuries. In our original order and opinion, we took judicial notice of figures that were not contained in the trial record, but were from the American Samoa Statistical Digest for 1992. Based upon the figures contained therein, we estimated that Clifton’s earning potential was reduced by 45%. Defendants correctly point out that we must base our calculations on the evidence, and not speculation. See Def.’s trial brief at 19-20.
We should have given adequate weight to Clifton's own testimony that he currently earns $7 per hour at Net Systems in Washington State. See Deakle v. John E. Graham & Sons, 756 F.2d 821, 831 (11th Cir. 1985) (“[the court] can look to his proven post-injury earnings for a figure below which the jury could not have reasonably chosen amounts intended to represent his expected annual salary installments, absent reliable evidence that [the plaintiff’s] condition will deteriorate”); Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1143-44 (7th Cir. 1985), cert. denied 475 U.S. 1094, 89 L. Ed. 2d 892 (1985) (requiring, in *28lost wages claims, that the court consider the injured plaintiffs opportunities in other markets). At a wage rate of $7 per hour, Clifton is now annually earning $14,616 for full time employment ($7 per hour x 2088 work hours in a calendar year). Thus, even assuming that he receives no fringe benefits, raises or promotions, Clifton will make more in his current position at Net Systems than he would have made as an uninjured fisherman ($4,000 per year) or as an uninjured assistant engineer ($11,000 per year). In short, Clifton will not suffer a loss in wages in the future because of the injuries that he sustained.
We now hold that the original damages award for lost wages of $807,750 did not have a rational basis.
Because Clifton has not had opportunity to challenge the accuracy of these findings, and because counsel for both parties created a poor factual record on the issue of lost wages, we hold further that Clifton may either accept a remittitur in the total amount of $807,750, or he may opt for a new trial on the issue of damages for lost wages under the dictates of Deakle, Hernandez and Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983) (en banc), cert. denied sub. nom., Heinrich Schmidt Reederei v. Byrd, 467 U.S. 1252, 82 L. Ed. 2d 842 (1984) (Culver II). We emphasize that the scope of the new trial is limited exclusively to the issue of damages for lost wages, for we find no clear error as to the question of defendants’ liability or as to the questions of damages for pain and suffering and maintenance and cure.
III. CONCLUSION
The motion for a new trial is granted in part and denied in part. Clifton may either acquiesce in the remittitur of $807,750, or he may submit to a new trial on the issue of damages for lost wages. If a new trial is held, the parties may try only the issue of damages for lost wages; neither party shall address any other issues of law or fact involved in this case.
It is so ordered.
We found that the case, as pled, would not lie against defendant Captain Frank Gargas, the captain of the vessel. See 29 A.S.R.2d 82 (Trial Div. 1995).
Clifton has styled his response brief as "Reply to Motion for New Trial." We wish to point out that this is not, in fact, a "reply" brief. A reply brief is that filed by a plaintiff replying to a defendant’s answer or by an appellant replying to an appellee’s response. See BLACK’S Law dictionary 1169 (5th ed. 1979); A.C.R. Rule 28(a)-(c); T.C.R.C.P. 7(a). Defendants have also mis-styled their reply brief as "Defendant’s Response."
The distinction between a response and a reply brief is important because of the procedural limitations placed upon each. For instance, no reply brief is allowed in a trial court unless ordered by the court. See T.C.R.C.P. 7(a). In appellate court, response briefs are limited to a prescribed format, while reply briefs are not. Compare A.C.R. Rule 28(b), with A.C.R. 28(c). With regard to motions for new trial, it appears that the court rules prescribe certain time limits for motions and responses, but may allow replies only by leave of the court. See T.C.R.C.P. 59(b)-(c).
Rule 59(c) states that "[t]he court may permit reply affidavits." Because the sentence immediately preceding this speaks in terms of "opposing affidavits and memorandum," we assume that we would also have discretion over whether to allow the filing of reply memorandum. We do not know of any instance where such permission has been denied. However, the ultimate question of our discretion need not be decided today, since we will strike defendants' reply brief on other grounds.
The first sentence of defendants’ argument concerning negligence and unseaworthiness states that "It was not negligent or unseaworthy for the vessel’s net to become caught in the vessel’s propeller." Def.’s Br. at 5. Besides using the word "unseaworthy” in a grammatically incorrect mannér, this sentence demonstrates how defendants have continually dealt with the two concepts as if they were one concept with similar principles of application.
Medical causation is really part of the cause in fact and proximate cause inquiries discussed above. However, because the defendants have dealt with it at length in a separate section of their brief, we have also decided to deal with it separately here.
We wish to make clear that we have neither accepted nor rejected the Daubert criteria. Our ruling is based upon the defendants’ failure to raise the argument at trial. Thus, the question of whether we would apply the Daubert criteria if they were properly raised at the appropriate time during trial remains open.
Furthermore, even if such an affirmative defense did exist, the rare occurrence of entangling a net within the propeller of a vessel cannot be considered “inevitable.”
Without defining the parameters of the category of items that enhance the foreseeability of full-time employment, we note that if there is evidence that the most recent year of sporadic or no employment is an anomaly due to illness, sabbatical, schooling, or the like, then a court might have reason to believe that a return to full-time employment would be foreseeable. Moreover, if a neophyte’s brief work history shows a steady, but marked increase in the number of hours worked, then a court may have reason to conclude that it is foreseeable that the individual’s career will soon progress to full-time employment. In the case at hand, however, there is no evidence that the year prior to Clifton's injuries was anomalous, nor is there any evidence that Clifton, who worked on three trips in six or seven years, was about to work more regularly. We have no evidence from which to infer that full-time employment was in Clifton's foreseeable future.
The evidence at trial indicated that fishing vessels typically have an annual catch of 5000 tons and make between five and 10 trips per year. Examining the evidence in the light most favorable to Ciflton, the largest amount of fish a vessel could gather on one trip is 1000 tons. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486454/ | Decision and Order:
On or about February 20, 1992, plaintiff Ape Poutoa ("Ape") sustained injury following a head-on automobile collision with an American Samoa Government ("ASG") vehicle. Ape’s vehicle, a 1985 Izuzu Trooper, was rendered a total loss. The parties have stipulated that the Blue Book’s retail value of the vehicle is $5,950, and wholesale value to be SS.SOO.1
Riding in the vehicle with Ape at the time were his wife Sisigafu‘a and daughter Elise. The driver of the ASG vehicle was defendant Sefo Pasene ("Pasene"). According to Pasene’s version, the collision arose after he had fallen asleep at the wheel. On the other hand, Sisigafu’a claims that Pasene crossed the highway median toward oncoming traffic after overtaking several vehicles.
Ape and his family filed suit against ASG for damages for personal and property injury, and loss of consortium, alleging negligence on the part of ASG’s employees Pasene, for operation of the vehicle, and Pasene’s supervisor, Vala Ieremia (hereinafter "Ieremia"), for entrusting the vehicle to Pasene in the first place.
There is no dispute as to Pasene’s negligent operation of the vehicle. The question is whether ASG is liable under A.S.C.A. § 42.1211.2 ASG *42contests liability on the grounds that Pasene could not have been acting within the scope of employment, since he was not formally employed by ASG.3 We hold that ASG is liable.
The evidence shows that Pasene was at all relevant times, a resident immigrant under the sponsorship of Ieremia ("Ieremia"), who at all relevant times, was employed by ASG as principal of its Vocational Educational School ("Voc Ed") at Tafuna. According to Dr. Lealofi Uiagalelei ("Uiagalelei"), Director of the Department of Education at the time of the accident, Ieremia had succeeded an expatriate contract employee who was apparently hired by the Department of the Interior under certain federal funding that set up the Voc Ed. This expatriate’s employment terms included his access to an ASG vehicle after hours. He was effectively allowed complete discretion over the vehicle’s use, although it was understood that the vehicle would be used during the day for Voc Ed purposes. The Department of Education permitted this same arrangement with the Voc Ed vehicle to continue into Ieremia’s tenure. According to Uiagalelei, Ieremia effectively had complete control over the use of the Voc Ed’s vehicle, including its use after hours.
Ieremia had earlier approached Uiagalelei about hiring a replacement grounds-keeper/janitor for Voc Ed, since he was dissatisfied with the performance of Voc Ed’s incumbent and aging, but career service, grounds-keeper/janitor; he urged Uiagalelei for more able-bodied help. Uiagalelei testified that he was not receptive to the idea of terminating a career service employee without sufficient documentation of poor performance on his personnel file. Ieremia nonetheless retained Pasene to work at Voc Ed, while promising the latter that his paper work was being processed. On this representation, Pasene understood that ASG would eventually pay him. Indeed, by the time of the accident, Pasene had dutifully worked at Voc Ed for a period of approximately eighteen months, working directly under the control and direction of Ieremia.
On the day in question, Pasene had reported to work as usual at the Voc Ed and went about his usual duties of cleaning the premises and carting away trash using the Voc Ed vehicle. Ieremia had to leave early that day *43for some business in the town area, and as the vehicle was being utilized for trash removal at the time, he instructed Pasene to deliver the vehicle at the end of the day to ASG’s Motor Pool compound. In fact, Ieremia’s directive, as well as Pasene’s previous operation of the vehicle, were not in accordance with the executive branch’s duly published rules relating to the use of ASG motor vehicles. Among other things, Pasene did not have an ASG Driver’s Permit to operate a government vehicle, as required by A.S.A.C. § 4.0707(2) and (4).
DISCUSSION
A. Liability
ASG's argument is essentially that: (1) Pasene was illegally hired, was not a government employee, and that vicarious liability can therefore not attach; and (2) no employment contract exists, and it is therefore impossible to determine whether Pasene was acting within the course and scope of his employment while driving the vehicle.
ASG has erroneously focused on the narrow questions of whether a formal employment relationship existed between the Pasene and ASG, and whether Pasene’s conduct was within the scope of a written job description. The proper inquiry involves the broader questions of whether a common law master/servant relationship existed between Pasene and ASG, and whether Pasene was acting within the scope of that. agency when he engaged in tortious conduct.
While there are many forms of agency, the relationship of master and servant is a species of agency in which the principal may be liable for the torts of the agent. See RESTATEMENT (SECOND) OF AGENCY, § 219 (1984). Whether a master/servant relationship has been established depends on a number of factors, the most important of which is the master's right to control the physical conduct of the servant. See Restatement (Second) of Agency, § 220(1) (1984). Servants are also capable of appointing subservants, who act under the primary control of the servant but who create liabilities for both the servant and the master. See Restatement (Second) of Agency, § 5, comment e on Subsection (2); id. § 219, comment b (1984).
ASG, in essence, argues that Pasene is not ASG's subservant because Ieremia had no actual authority to give ASG's consent to beget a subservant. The government further states that the Director of the Department of Education had not given express written consent to Pasene's employment and that Ieremia's attempt to hire Pasene was "void" because it was not in accordance with administrative regulations.
*44However, under certain circumstances, a servant may appoint a subservant although the servant has no actual authority to appoint.
A general agent for a disclosed or partially disclosed principal subjects his principal to liability for acts done on his account which usually accompany or are incidental to transactions which the agent is authorized to conduct if, although they are forbidden by the principal, the other party reasonably believes that the agent is authorized to do them and has no notice that he is not so authorized.
Restatement (Second) of Agency, § 161 (1984).
In the instant case, the evidence at trial indicated Ieremia, the head of a Voc Ed, was solely responsible for maintaining the Voc Ed educational facilities in good working order. Defendants failed to challenge effectively Ieremia's testimony that after the hurricane, many individuals in government positions equivalent to Ieremia were "hir[ing]" workers without formal paperwork to fulfill maintenance, repair, and sanitation duties. Thus, Ieremia's act of hiring Pasene was "incidental" to his ASG-authorized function of ensuring that the Voc Ed was a clean, safe educational environment. Furthermore, while hiring did not "usually accompany" Ieremia's duties under normal conditions, it appears that undocumented temporary hiring did "usually accompany" the duties of ASG servants after a hurricane. Pasene, for his part, reasonably and actually believed that Ieremia had the power to appoint him as a general or special subservant, received no notice to the contrary, and consented to act on behalf of Ieremia, according to Ieremia's direction, and for ASG's business purposes. The evidence thus indicates that Ieremia subjected his master, ASG, to liability for Pasene's actions by creating a valid master/servant/subservant relationship. The fact that no contract was signed, nor consideration given to Pasene does not undermine the validity of this agency relationship. See Malloy v. Fong, 37 Cal.2d 356, 232 P.2d 241 (1953); Georgeson v. Nielson, 252 N.W. 576 (Wis. 1934).
Finally, ASG claims that Pasene acted outside the scope of his agency because ASG internal policy prohibited the use of a vehicle by one without an ASG driver's permit. While we have no written document outlining the nature and extent of Pasene's duties as ASG's subservant, we have no trouble determining that the scope of that agency relationship includes Pasene's operation of a government vehicle, pursuant to a direct order of his government supervisor, to return the vehicle to a government Motor Pool Compound. In the present case, ASG furnished the vehicle, the instrumentality of' harm; ASG commonly authorized servants to utilize the instrumentality of harm; and Pasene used the instrumentality *45of harm at a time, place, and for a purpose generally authorized by ASG. For these reasons, Pasene’s tortious conduct, although not expressly authorized, is within the scope of employment. See Restatement '(Second) of agency, § 229 (2) (a), (b), (h) (1984). The present case is thus factually distinct from Tauiliili v. ASG, 13 A.S.R.2d 61 (Trial Div. 1989), in which the government employee operated a government vehicle after work hours, in the absence of express direction from a government supervisor, and for a personal, rather than a business purpose.
Moreover, inherent in the power of agency, is the power of the agent to subject the principal to liability for unauthorized conduct. See Restatement (Second) of Agency, § 8A, comment b (1984) (stating that a master's liability for the faulty conduct of a servant performing the master's business does not stem from tort theory, but rather inheres in the agency relationship itself); id. § 219(2)(d) (stating that the master is still liable for the torts of his servants acting outside the scope of their employment where the servant was aided in accomplishing the tort by the existence of the agency relation). As long as the servant is acting in his master's business and intends so to act, the master will be liable for the servant's actions, even if there is no "connection between the [master's conduct and the harm done." Id. Again, in the instant case, Pasene was driving the vehicle for a legitimate ASG purpose at the time of the act, Pasene was intending to further ASG's interests in so acting, so ASG must be liable for Pasene's "unauthorized" conduct.
The implications of adopting the ASG position would be alarming. If the government were to prevail, then the government would have an incentive to maintain sloppy records, to make verbal rather than written contracts for services, hire illegal aliens, etc. Any technical deviation from government hiring policies would enable ASG to harvest the fruits of labor and yet skirt liability under the Government Tort Liability Act because "the 'hiring' was void." Alternatively, the government could simply create an internal regulation that- "no person shall drive government vehicles and a reckless or negligent manner" and argue that the regulation would obviate ASG's liability for the tortious conduct of its government drivers. We cannot allow self-serving statements to render impotent the common law doctrine of respondeat superior and to eviscerate the public policy interests that the doctrine advances.
B. Damages
At the time of the collision, Ape was 70 years of age and a retiree. Following the collision, he was transported to the LBJ Tropical Medical Clinic (the "hospital), where he was found to have a very swollen left lower thigh and knee, as well as a very swollen left scrotum. Additionally he was observed with abrasions on the left side of his knee, *46and contusions about his lower back. X-Rays revealed a very comminuted fracture of the lower third left femur; this area of bone was shattered into pieces.
Dr. Vaiula Tuato'o, an orthopaedic surgeon and Chief of Surgery at the LBJ Tropical Medical Center was consulted the following day on a course of treatment. Initially, treatment was extended traction with Ape flat on his -back for about four months while he was monitored by repeated X-rays. After traction, Ape was slowly introduced to course of physiotherapy, first to a period of readjustment after being inert for 4 months, and then gradually towards ambulation with the aid of crutches. One month after traction, Dr. Tuato‘o began encouraging Ape to put some weight on the injured leg, and eleven months after the accident, Ape was allowed to walk with one crutch. Dr. Tuato‘o also attested to ongoing pain suffered by Ape and his being periodically prescribed with pain medication, although Ape was also seen to be a model of tolerance and of cheerful disposistion notwithstanding the trauma that befell him.
By the time of trial, two years after the collision, new bone, "callus," had set in and apparently fused all the shattered bone fragments into a "solid" whole. The process of healing was by then nearly complete. However, Dr. Tuato‘o also testified to an anticipated total knee replacement operation that was already scheduled off-island. He further testified that while Ape’s pre-accident medical records revealed complaints about pain in his knees as well as degenerative signs through the normal aging process, the severe stage of osteoarthritis in Ape’s non-injured right knee was significantly advanced as the result of his favoring his left knee during the healing process. On cross-examination, Dr. Tuato'o ventured the opinion that about 50% of Ape’s degenerative changes that he was then experiencing was attributable to the trauma that he suffered, and 50% to non-trauma factors such as age and obesity. We noted from Ape’s pre-accident medical records that he had a well documented history of complaints relating to pain in his knees, commencing as early as 1982.
Trial was subsequently continued while Ape left the island for a further operation which took place in February 1994. The off-island operation as explained by Dr. Tuato’o was the total knee replacement which he had earlier alluded to. According to Dr. Tuato'o, the operation while eliminating the pain previously experience by Ape, also produced a permanent disability in terms of range of movement in the knee; that while normal range of flex is 140°, Ape’s resultant range of flex was about 45°. Translated in terms of everyday practicalities, Dr. Tuato‘o stated that Ape could no longer sit cross-legged in traditional fashion, and he could no longer bend down to pick things up. Finally, Dr. Tuato'o further recommended that if Ape’s degenerative related pain problems are to be arrested altogether, a total knee replacement operation *47was required on his right knee as well. In the meanwhile, Ape continues to be prone to pain.
With regard to Sisigafu'a and Elise’s claims, the former testified that she had the wind knocked out of her, and that the collision caused their vehicles windshield to shatter and fall onto her inside the car, resulting in her receiving cuts and abrasions to her face and feet. She testified that her injuries were cleansed and treated at the outpatient clinic and was later discharged with analgesips. She further claimed that she required seven stitches to one of her feet, although we were not provided with any supporting medical records to this effect. In terms of her daughter’s claim, Sisigafu‘a testified that Elise suffered a cut on area of her eyebrow.
Taking into account typical damage awards in American Samoa for pain and suffering, the extent of Ape’s disability attributed to the trauma, as well the likelihood of future medical attention, we assess Ape’s general damages in the sum of $40,000. We assess his property damage, total loss of the vehicle, in the sum of $6000. With regard to Sisigafu'a and Elise’s claim we assess the former’s general damages in the sum of $1,500, and the latter’s general damages in the sum of $500. We found the evidence insufficient to establish plaintiffs’ other items of damage claimed.
Judgment will enter against the defendants accordingly.
It is so ordered.
We are not aware of an established wholesale used-car market on-island, nor were we shown any evidence to this effect.
A.S.C.A. § 43.1211 provides a remedy against ASG for damages arising because of death, personal, and/or property injury caused by the negligence of any government employee, while acting within the scope of his office or employment.
ASG initially admitted that Pasene was its employee. Just before the scheduled date of trial, however, ASG moved for leave to amend its answer and retract its admission of employment. For reasons already discussed elsewhere, leave was denied. See Ape v. American Samoa Government, CA No. 99-92, (Trial Div. 1993) (Order On Motion to Amend Pleadings, Add Parties, and Cross-Claim, entered Dec. 29, 1993). Nonetheless, the government continues to argue against liability, contending that Pasene was not acting within the scope of his employment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486455/ | Order Denying Motion for Summary Judgment and Granting Motion to Dismiss:
I. Introduction
On March 3, 1973, defendant American Samoa Government Office of the Territorial Registrar ("Registrar") registered title to approximately 19.52 acres of land known as “Olepa” ("Olepa land"), situated in the Village of Iirili, American Samoa, as individually owned land of Aigafealofani Faatafuna Sagapolutele ("Aigafealofani"). On September 28, 1976, Aigafealofani conveyed the Olepa land to his children, Vai F. Sagapolutele, Ta’afili F. Sagapolutele, Latea F. Sagapolutele, Tala'i F. *49Sagapolutele, plaintiff Tuputala F. Sagapolutele ("Tuputala"), Pou F. Sagapolutele, Ausane F. Sagapolutele, and Ulualo F. Sagapolutele ("the children"), as tenants in common. However, on December 8, 1981, this court, citing procedural defects, set aside Aigafealofani’s original title registration without prejudice to his subsequent offer of title registration of the Olepa land. See LT No. 55-78 (February 3,1982)(amended order).
On April 23, 1982, Aigafealofani again offered the Olepa land for title registration. On May 24,1982-, members of the Sagapolutele family filed a timely objection to the registration with the Registrar. On March 15, 1993, the Registrar submitted the dispute to this court for judicial determination. However, on October 14, 1983, the court dismissed the action, LT Case No. 23-83, "for mootness because of the death of Aigafealofani Faatafuna Sagapolutele the senior matai of the Sagapolutele family."
On July 17, 1991, the children conveyed a portion of the Olepa land to plaintiff Roy J.D. Hall, Jr. ("Hall") as his individually owned land, 0n October 17, 1994, defendant Sagapolutele Malaeola Anthony ("Sagapolutele"), then and now sa’o of the Sagapolutele family, entered into a lease agreement with himself and his wife, defendant Matalua Sagapolutele ("Matalua"), for a portion of the Olepa land. The portions conveyed to Hall and leased to Sagapolutele and Matalua overlap. On December 6, 1994, Hall and the children objected to the proposed lease on the grounds that they respectively owned portions of the leased lanfi as their individually owned land.
On March 20, 1996, after the Secretary of Samoan Affairs certified that the dispute was irreconcilable and the Land Commission recommended approval, the Governor approved the lease. Sagapolutele and Matalua proceeded with development of the leased portion. Then, June 25, 1996, Hall, Tuputala and unnamed persons similarly situated to Tuputala (collectively "plaintiffs") commenced this action to quiet tifie and enjoin activity on the leased portion by Sagapolutele and Matalua. Plaintiffs also sought to void and require the Registrar to "de-register" the lease.
We issued a temporary restraining order and, after a hearing, a preliminary injunction against Sagapolutele and Matalua pending determination of the parties’ legal rights to the disputed property. Plaintiffs now move for summary judgment on> the grounds that the Sagapolutele family's claims to the Olepa land as communal land were extinguished when they failed to renew their objections following the 1983 dismissal, and that Aigafeolafani thus acquired de facto title to the land as his individually owned land. The Registrar also moves to dismiss the cause of action against her for failure to state a claim upon which relief can be granted.
*50III. Discussion
A. Standard of Review
A motion for summary judgment, pursuant to T.C.R.C.P. 56, will be granted only if the moving party can demonstrate that there are no triable issues of fact. Etimani v. Samoa Packing, 19 A.S.R. 2d 1, 4 (1991); Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 276 (1986).
B. Dismissals of Actions
Involuntary dismissals preclude revisiting a controversy when the court fails to otherwise indicate that the dismissal is "without prejudice," or when the dismissal operates as an adjudication on the merits. See Wright & Miller, Federal Practice and Procedure § 2373 (1971 & Supp. 1994). For example, dismissals for lack of jurisdiction, improper venue,' or failure to join a party will not prevent a party from raising the issues in the future because they do not address the merits of the underlying cause of action. Id.
The court dismissed LT No. 23-83, "for mootness because of the death of Aigafealofani Faatafuna Sagapolutele the senior matai of the Sagapolutele family". Plaintiffs allege that the court's order dismissing LT No. 23-83 constituted a "final order" that adjudicated the merits of the controversy.
We believe that the court's inartfully written order in LT No. 23-83 was primarily a response to the death of one party to the dispute, and not because the controversy was "moot." Because the death of one party, like lack of jurisdiction or improper venue, has nothing whatsoever to do with the merits of a case or controversy, we find that the court did not adjudicate the issues on the merits when LT No. 23-83 was dismissed.
Furthermore, since LT No. 23-83 constituted the sole objection to Aigafealofani’s application for registration, the court was obliged by statute to direct the Registrar to register title to the Olepa land as Aigafealofani's individually owned land had the dismissal permanently snuffed out the Sagapolutele family’s claims to the land as communal land. A.S.C.A. 37.0104(b) ("Upon adjudication of the matter by the High Court, the territorial registrar shall register the land as directed by the court."). The court’s failure to direct the Registrar to register title to the land with Aigafealofani indicated that the involuntary dismissal would be "without prejudice."
*51Therefore, we conclude that on October 14, 1983, the court dismissed LT No. 23-83 without adjudicating the merits of the underlying land title controversy. Both Aigafealofani’s offer of title for registration and the Sagapolutele family’s objections were unaffected by the dismissal order.
Plaintiffs essentially argue that because the court's order of'dismissal listed "Chiefs and Members of the Sagapolutele Family" as "Plaintiffs," that the Sagapolutele family had a burden, under T.C.R.C.P. Rule 60(b) to file another lawsuit within á reasonable time in order to preserve their objection. Plaintiffs fail to recognize that the language of the title registration statute does not require aggressive prosecution by an objector. A.S.C.A. 37.0101(b) states that "[n]o title to land shall be registered unless the registrar is satisfied that there is no conflicting claim thereto . . . ." Since the court's order did not adjudicate the merits of the issues in LT No. 23-83, the Sagapolutele family's objection remained on file with the Registrar. The existence of that objection, as a matter of law, precluded Aigafealofani from receiving a certificate of title registration for the Olepa land.
Because the 1982-83 dispute between Aigafealofani and the Sagapolutele family was never resolved, the validity of the children’s 1991 conveyance of a portion of the Olepa land to Hall is uncertain. Significant triable issues of fact regarding title to the Olepa land remain. Thus, we will deny the motion for summary judgment.
C. Defendant Registrar’s Motion to Dismiss
Defendant Registrar has not wronged plaintiffs. The Registrar has steadfastly refused to register title when there was a “conflicting claim thereto." A.S.C.A. § 37.0101(b). The Registrar waited, and is currently waiting, for "adjudication of the matter by the Court." A.S.C.A. § 37.0104. While the Registrar may be a valuable witness for both parties in this dispute, plaintiffs have not stated a claim against the Registrar upon which relief can be granted. Thus, pursuant to T.C.R.C.P. Rule 12(b)(6), we will dismiss the cause of action against the Registrar.
III. Order
For the foregoing reasons, plaintiffs' motion for summary judgment is denied, and the Registrar’s motion to dismiss is granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486456/ | Order Granting Defendants’ Motion for Summary Judgment:
I. Introduction
On September 9, 1965, defendant Patea S. of Vatia ("Patea") filed an application with the Office of the Territorial Registrar ("Registrar") to register real property entitled "Laloulu," approximately .581 acres of land in Vatia, as communal land of the Patea family. Taulaga of Vatia ("Taulaga, Sr.,), the father of the present plaintiff, Taulaga Maresala Masaniai (hereafter "plaintiff") and Masaniai of Vatia filed objections to the title registration, and the matter was subsequently tried before the High Court of American Samoa.
On September 2, 1966, the High Court granted Patea's application and directed the Registrar to register the land Laloulu as the communal land of the Patea family. Patea v. Taulaga, 4 A.S.R. 739 (1966).
In 1987, and again in 1989, the High Court rejected plaintiffs attempts to reopen the litigation, granted the Patea family's motion for summary judgment, and awarded the latter their attorney's fees. Taulaga v. Patea, *534 A.S.R.2d 186 (1987); Taulaga v. Patea, 12 A.S.R.2d 64 (1989). In 1990, the High Court’s Appellate Division upheld the 1989 decision of the High Court’s Land and Titles Division. Taulaga v. Patea, 17 A.S.R.2d 34 (1990).
Plaintiff now files an "Action for Declaratory Judgment and Equitable Reliefs," and requests this court to revisit the issue of title to Laloulu on the following grounds: (a) that Taulaga, Sr., died prior to the date of the original trial, and that a formal successor to his matai title did not represent the Taulaga family’s interests at trial; (b) that fraud and collusion occurred at the first trial, obviating the defense of res judicata and warranting a new trial on the merits.
II. Discussion
In the instant case, plaintiff is seeking to set aside and vacate the High Court’s decision and judgment in Case No. 270-1965, and to reset the matter for a new trial. In the 1989 Land and Titles Division decision, the High Court dismissed plaintiff’s action for a new trial because plaintiff failed to request relief from the 1966 judgment within a reasonable time. Taulaga v. Patea, 12 A.S.R.2d 64, 65-66 (1989). While in 1987 plaintiff requested relief under T.C.R.C.P. 60, yet in the instant case he requests relief under the "court’s power of equity pursuant to provisions of Chapter 11 of Title 43 of the American Samoa Code Annotatefd] (ASCA)."
We find that a reasonable limitations period must again apply. Plaintiff is requesting a new trial, and cannot evade Rule 60 consequences by simply omitting reference to the Rules. The High Court has recognized finality in Land and Titles decisions as an especially significant public policy interest, and even under our equitable powers, we refuse to entertain the merits of a claim raised thirty years after we have issued a final order.
We hold that plaintiff’s cause of action is time barred.
III. Order
As there are no triable issues of fact for determination, Etimani v. Samoa Packing, 19 A.S.R.2d 1, 4 (1991); Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 276 (1986), Defendant’s motion for summary judgment is granted and the above entitled matter is DISMISSED.
The defendants are awarded reasonable attorney’s fees and litigation costs against plaintiff in an amount to be approved by the court upon verified application by defendants.
*54It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486457/ | Opinion and Order:
PROCEDURAL HISTORY
Originally this case aro'se from a discovery dispute in Samoa Aviation, Inc. v. Robert G. Bendall, Pace Aviation, Ltd., and Pal Air International, Inc., CA No. 50-95. In a separate effort to gain access to documents which defendants in this action, James Porter ("James"), Constance Porter ("Constance"), and Samoa Aviation, Inc. ("Samoa Air"), were purportedly withholding, plaintiff Pal Air International, Inc. ("Pal Air")1 *55brought the present action to inspect those documents as a shareholder, rather than as an opposing litigant. Since both actions were related this court initially consolidated them. However, it later became apparent that the present action needed resolution prior to proceeding to trial in CA No. 50-95. The Court thus separated the cases and set the present action for trial. Plaintiff moved for summary judgment, which was denied on July 15, 1996. Trial on the merits began on September 5th and was concluded on September 6,1996.
THE ISSUE
As stated above, Pal Air brought this shareholder action to inspect documents which were being purportedly withheld in CA No. 50-95. Undisputedly, Pal Air was at one time a shareholder in Samoa Air. Indeed, the parties stipulated that as of November 28, 1988, Pal Air owned 25% of Samoa Air.2
The core issue, however, is the current ownership of the 25% interest which Pal Air once owned. Pal Air contends that it still owns these shares. James and Constance contend that they purchased the shares from Pal Air. Specifically, James and Constance contend that, in February 1992, they entered into an oral agreement in Reno, Nevada, with Bendall to purchase these shares. They assert that the oral agreement was consummated by the payment of $25,000 pursuant to that agreement.
DISCUSSION
*56The central question is whether there was indeed an oral agreement for the purchase of the Samoa Air stock from Pal Air. Both parties agree that James and Constance discussed with Bendall purchase by James and Constance of the Samoa Air stock owned by Pal Air. Bendall, however, testified that the discussion concerned a stock swap whereby James and Constance would purchase shares of Sierra Pacific Aviation, another corporation owned by Bendall, and trade some of these shares for the shares of Samoa Air. Bendall stated that this agreement, although discussed, was never consummated.3 Pal Air does, however, admit that the James and Constance transferred $25,000 to Pace Aviation soon after the February meeting.
James and Constance testified that the oral agreement was for the purchase of Samoa Air stock and the subsequent payment of $25,000 to Pace Aviation, by Bendall’s direction, consummated that agreement. In support of their contention, James and Constance produced copies of a wire transfer receipt for $25,000, issued on February 26,1996.
Bendall does not dispute the receipt of this $25,000 wire transfer. Instead he testified that this money was not made pursuant to a stock purchase because such an agreement was never reached. Bendall claims that this money was simply credited to Samoa Air’s account and later applied toward the purchase of an airplane engine.
Constance, however, produced copies of the checks which were used to purchase that airplane engine. Specifically, the engine was ordered on or about August 12, 1992 for $49,500. Prior to the order Samoa Air made a $20,000 down payment on the engine. This down payment was made by a check for $10,000 dated August, 1992 and a wire transfer for $10,000 dated August 7, 1992. Samoa Air agreed to pay the balance of roughly $30,000 in four monthly installments of $7,500.
*57On September 8, 1992, Samoa Air made the first $7,500 payment. Samoa Air made the second $7,500 payment on October 7, 19924, and a third payment of $5,000 on November 18, 1992.5 The final installment was paid for with a portion of an insurance claim check. Thus, Samoa Air has, separately and apart from the February 26 wire transfer, accounted for the entire purchase price of the airplane engine.
We find the evidence presented by James, Constance and Samoa Air persuasive on this issue. Pal Air countered the assertion by James, Constance and Samoa Air that the $25,000 wire transfer was for the purchase of stock by contending that this money was applied to the purchase of the engine.6 This contention is adequately rebutted by reliable evidence of separate payments for the airplane engine.
As discussed in our "Order Denying Motion for Summary Judgment," issued on July 15, 1996, under Nevada law an oral contract for the sale of securities can be enforced where "payment has been made." Id. at p.6 0citing Nev. Rev. Stat. § 104.8319(2)). We believe that James, Constance and Samoa Air have adequately shown that, pursuant to the oral agreement, the payment for the shares "has been made." Thus, under Nevada law we find that there was an enforceable oral contract for the sale of 25,000 shares of Samoa Air stock owned by Pal Air for the purchase price of $25,000, which was consummated when James and Constance paid this amount to Pace Aviation, as directed by Bendall.7
*58Pal Air had the burden to prove, by a preponderance of the evidence, that it is a present shareholder in Samoa Air, with the attendant inspection rights of corporate records. Pal Air has failed to meet its burden.
ORDER
Judgment shall be entered in favor of Samoa Air, James and Constance, and against Pal Air.
Trial in CA No. 50-95 is scheduled on Tuesday, February 4, 1997, at 9:00 a.m.
It is so ordered.
Although Pal Air is the formal plaintiff in this action, Pal Air’s owner, Robert G. Bendall ("Bendall"), was the sole owner, director and president of both Pal Air and Pace Aviation, Inc. at all times relevant to this action. Both companies were quite similar and seemed to perform overlapping functions on behalf of their owner. During the trial there was some issue *55as to which company owned the shares, which company the oral contract at issue was with, and which company received payment for the shares. These distinctions, however, are unimportant. Both companies were corporate veils for Bendall. Under both American Samoa and Nevada law, the court may disregard the corporate fiction in circumstances such as those in this case. See E.W. Truck & Equipment Co. v. Coulter, 19 A.S.R.2d 61, 66 (Trial Div. 1991); McCleary Cattle Co, v. Sewell, 317 P.2d 957, 959 (Nev. 1957). We will overlook the fiction of separate corporate identities for purpose of this case.
Bendall put these shares in the physical possession of the DuQuoin State Bank in Illinois, as part of a loan security arrangement, after Pal Air acquired ownership of them. Bendall testified that the loan or loans are currently paid in full, but the bank still has possession of the Samoa Air shares. He stated that he did not retake possession of the shares in anticipation of possible future credit transactions. We have in evidence only copies of the share certificates made in 1988.
Sandy Cox ("Cox") also held 25% of Samoa Air’s stock in 1988. Cox would have transferred his Samoa Air shares to Bendall or one of his corporations in exchange for Sierra Pacific stock, as part of the proposed Sierra Pacific transaction. However, since this transaction was never completed, Cox retained ownership of his Samoa Air shares.
Apparently, James and Constance learned that Cox still owned these shares after this action was filed and, on August 2, 1995, they purchased the Cox shares.
This payment actually ended up being for $7,440 due to the fact that Constance failed to include the $60 processing fee with there check to the bank. Pal Air later wrote off this $60 shortfall.
James A. Riske ("Riske") paid the $2,500 balance on this installment directly to Pal Air. Riske was also involved in Samoa Air stock transactions. See n.6 infra.
Pal Air seemed to argue that, even if there was a valid oral agreement for the sale of the stock, the sale was not unanimously approved by Samoa Air's stockholders, as required by Samoa Air's original bylaws, and is therefore invalid. The sale restrictions in the bylaws were adopted for the stockholders' benefit. As such the stockholders may waive them. Here we believe that the stockholders' continual disregard of these sales restrictions effectively waived them, and Pal Air is estopped from now asserting this restriction. See 18A Am. JUR. 2d Corporation § 695.
In yet another but separate transaction involving Samoa Air's stock, Riske testified regarding Bendall's pledge of two and one-half percent of outstanding Samoa Air shares as security for a loan of $7,500. When *58Bendall defaulted on the loan, these shares presumably became Riske’s property. James and Constance purchased these shares from Riske on June 25, 1995. The evidence does not clearly show which Samoa Air shares Bendall intended to pledge for the Riske loan. However, under our findings, Bendall did not own or control any Samoa Air shares to pledge on the date of the loan agreement, April 14, 1994. It appears, therefore, that James and Constance needlessly bought Samoa Air shares from Riske, at least for purposes of the issue before us. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486459/ | Opinion and Order:
Procedural History
On May 26, 1994, plaintiff Development Bank of American Samoa ("DBAS") commenced this action to recover indebtedness to DBAS from defendants HAJ Corporation ("HAJ") dba Poly Impex, Hans A. *62Langkilde ("Hans"), and W. Joseph Langkilde ("Joseph"). Hans and Joseph separately answered the complaint, but HAJ neither answered nor otherwise appeared in response to the complaint.
On November 8, 1994, with leave of the court, DBAS filed the first amended complaint, adding Icewich Fale and Pepaco as fictitious names used by HAJ, and defendants Sasa Langkilde ("Sasa") and Pepaco as a sole proprietorship ("Pepaco SP").
On November 17, 1994, Joseph moved for default judgment against HAJ for failure to answer his cross-complaint. We heard this motion on December 28, 1994, and awarded default judgment in Joseph’s favor against HAJ on January 3, 1995.
On December 13, 1994, DBAS moved for default judgment against HAJ, Hans, Sasa, and Pepaco SP for failure to answer the first amended complaint. Since Sasa and Pepaco SP answered the first amended complaint on January 26, 1995, DBAS pursued default at the hearing on January 27, 1995, on the motion only against HAJ and Hans.
On March 9, 1995, we awarded DBAS default judgment against HAJ in the principal amount of $68,497.87, plus prejudgment interest, costs, and reasonable attorney’s fees. However, at the January 27 hearing, we declined to default Hans, since his answer to the initial complaint was fundamentally responsive to the amended complaint, but directed him to answer the amended complaint. When he failed to answer by March 9, we gave him a deadline of March 17, 1995. Hans answered the amended complaint on March 16,1995.
On September 29, 1995, we separated trial of the cross-complaint and counterclaim, pursuant to the parties’ stipulation. The original action on the amended complaint then came regularly for trial on February 8 and 9, 1996, to determine Hans’ and Joseph’s individual liability for HAJ’s adjudicated indebtedness. Hans, Joseph, and all counsel were present. We took the matter under advisement, considered the evidence, and make the following findings, conclusions, and order.
Findings of Fact
The parties stipulated that although HAJ once did business as Pepaco, Sasa took over this particular activity, but it no longer operates. DBAS also indicated that it would not presently proceed with its claim against Sasa and Pepaco SP. Hence, given HAJ’s default on DBAS’s claim, we must only determine the responsibility, if any, that Hans or Joseph has, or both of them have, in their individual capacities, for HAJ’s debt to DBAS. Essentially, the issues turn on the interpretation and application *63of the documents signed by DBAS, Hans, and Joseph during the course and conduct of HAJ’s business operations.
1. HAJ’s corporate history.
First, however, we will briefly review HAJ’s history. We take judicial notice of RFD Produce v. HAJ, CA No. 116-93 at 2-3 (Trial Div. July 28, 1995)(order permanently staying execution against vehicle) for some facts relevant to this purpose. •
HAJ was incorporated in American Samoa in 1983. It has engaged in several businesses under the fictitious names Poly Impex, Icewich Fale, and Pepaco. As Poly Impex, HAJ principally imported and wholesaled food and related items. As Icewich Fale, it operated a restaurant. As Pepaco, it primarily imported and wholesaled paper products.
The incorporators, shareholders, and officers were three brothers, Hans as president, Joseph as vice president, and J. Anthony Langkilde ("Anthony") as secretary/treasurer. Until 1988, all three brothers were involved in daily corporate concerns. The shares were informally divided, without written agreement or stock certificates, among Hans, 40%, Joseph, 20%, and Anthony, 40%. In 1988, Anthony left HAJ and, by written agreement signed by him and Hans, surrendered his ownership interest in exchange for extinguishment of his indebtedness to the corporation. Hans and Joseph retained their respective officer roles and remained active in daily corporate affairs. The shares, again informally, were equally redivided between Hans and Joseph.
In 1990, however, Hans became the general manager of the Rainmaker Hotel. Although Hans remained a principal, Joseph carried on most corporate matters until 1993. However, by letter to Hans, dated February 9, 1993, Joseph resigned from HAJ. Hans tried to continue HAJ’s businesses, but eventually the businesses lost their vitality and are now defunct.
2. HAJ dealings with DBAS.
On December 19, 1990, pursuant to a corporate borrowing resolution, HAJ, represented by Hans and Joseph, obtained a revolving line of credit with DBAS up to $100,000 exclusively for inventory purchase. A promissory note was to evidence each advance of funds, due and payable in full in 90 days, plus interest, computed daily on the unpaid balance at the lesser of the maximum lawful rate or the prime rate for commercial loans published in the Wall Street Journal plus 3%. All advances and accrued interest were to be paid in full when the agreement terminated on November 15,1991.
*64On December 19, 1990, HAJ, by Hans and Joseph, also signed a security agreement with DBAS, pledging equipment, inventory, and receivables as collateral for the line of credit. Additionally, Hans and Joseph signed a continuing guaranty, under which they were personally responsible for HAJ’s timely payments of the line of credit and future debts, and jointly and severally liable for all or any part of these debts in the event of HAJ’s default. DBAS agreed to extend or continue the line of credit and other financial arrangements to HAJ in consideration of receiving the guaranty.
The court has not been provided with any detailed history of HAJ’s dealings with DBAS from December 19, 1990, until February 19, 1992, when Joseph wrote on HAJ’s behalf to DBAS, and February 24, 1992, when DBAS responded. DBAS then granted HAJ’s request to extend the period of HAJ’s repayment of the outstanding line of credit obligation and to permit further line of credit advances, apparently for 60 days, while DBAS was considering renewal of the line of credit.
The next activity in evidence was HAJ’s request, by Joseph, to DBAS on May 18, 1992, to "roll over" $13,500, presumably HAJ’s then current debt to DBAS. Then three line of credit draws followed, represented by HAJ’s promissory notes, two dated September 1, 1992, in the principal amounts of $30,517 and $12,185.72, and the third dated September 28, 1992, in the principal amount of $25,699.15. Each note included interest at 12%, pursuant to the prime rate plus 3% formula, and was payable in full approximately 90 days later. Hans and Joseph signed the three notes on HAJ’s behalf. They also signed the second note in their individual capacities. It is the sum'of these notes, $68,399.87, which DBAS claimed in this action as the principal amount owed to it.
In January 1993, and a second time in early February 1993, DBAS notified HAJ, through Joseph, of the nonpayment of the notes for these three advances. Then, on February 9, 1993, Joseph resigned from HAJ. His resignation letter also unilaterally disclaimed "any debts incurred by HAJ Corp." He simultaneously notified DBAS, Amerika Samoa Bank, and the Bank of Hawaii of his resignation and liability disclaimer. Hans, by letter actually dated February 8, 1993, also advised DBAS of the resignation and Joseph’s withdrawn authority to act on HAJ’s behalf.
On March 5, 1993, Hans again wrote to DBAS and, expressing reliance on the line of credit and confidence in HAJ’s business future, asked to work out a way to continue the line of credit arrangement. On May 20, DBAS responded by entering a new line of credit agreement, substantially the same as the 1990 agreement, but signed only by Hans *65on HAJ’s behalf. Although April 6, 1993 is the stipulated termination date, April 6,1994 actually defined the intended life of this agreement.
On May 26, 1994, when the three notes remained unpaid, DBAS commenced this action. On August 16, 1994, Joseph’s counsel advised DBAS that it could obtain a prejudgment attachment on HAJ’s assets without posting a bond and that Joseph was prepared to provide a list of those assets. Joseph did prepare a list of HAJ’s assets as of January 23, 1993. A writ of attachment was issued on January 13, 1995, but no property was successfully levied.
The line of credit agreement, continuing guaranty, and three promissory notes entitle DBAS to recover attorney’s fees and collection costs in the event of default.
Discussion
The central issue in this case is the validity and scope of the continuing guaranty signed by Hans and Joseph. Neither has asserted that the guaranty was invalid ab initio. Rather, both argue that the guaranty expired on November 15, 1991, with the initial line of credit agreement. Joseph also argues that his letter of resignation effectively absolved him of any personal liability on the debts. Finally, both Hans and Joseph assert the defenses of laches and unclean hands based upon DBAS’s failure to timely obtain a writ of attachment on assets of the now defunct HAJ Corporation.
First, we note that a guaranty is a contract and the rights of guarantors must be determined from the language of the contract. See, U.S. v. Little Joe Trawlers, Inc., 776 F.2d 1249,1254 (5th Cir. 1985). Thus, we will look to the plain language of the continuing guaranty to determine the rights of Hans and Joseph.
1. Future Liability
On the question of future liability, the continuing guaranty is unambiguous. It states that the "liability under this Guaranty is continuing" and mentions nothing about the coterminality of the guaranty with the initial line of credit agreement. Indeed, the very title of the agreement contains this indication. We find no reason to second guess this plain and unambiguous language.
The guaranty does set forth ways to limit future liability, including written notice to DBAS that the guarantor is ending his future liability. Joseph’s letter of February 9, 1993, effectively limited his liability at that time. However, as the guaranty makes clear, that written notice had no *66effect on the liability that existed prior to that date. Since the debts at issue were all incurred prior to Joseph’s letter, his notice has no effect on the outcome of our decision.
2. Laches and Unclean Hands
A guaranty of payment, unlike a guaranty of collection, is an absolute promise by the guarantor to pay the debt, when due, if it is not paid by the borrower. Upon the borrower’s default, the guaranty of payment enables the creditor to collect debt from the guarantor without seeking collection from the borrower. See e.g. 38 Am. JUR. 2d Guaranty § 112 (1968); Phillips Factors Corp. v. Harbor Lane of Pensacola, Inc., 648 F. Supp. 1580, 1583-84 (M.D.N.C. 1986).
The continuing guaranty is also unambiguous on the issue of principal liability. It sets forth the liability of Hans and Joseph as "primary, absolute and unconditional." It is quite clearly a guaranty of payment. Indeed the guaranty specifically waives the right of Hans and Joseph to require the DBAS to "take action against the Borrower or any other person or entity, or foreclose upon, sell or dispose of any collateral, before collecting the indebtedness from me."
The arguments by Hans and Joseph based on the defense of laches and unclean hands, therefore, lack merit. If DBAS is not required to take any action to collect the debt from the borrower, it surely has no affirmative duty to timely pursue a writ of attachment on HAJ's assets.
Conclusion
Based on the foregoing we find Hans and Joseph personally liable to DBAS, under their continuing guaranty, in the principal amount of $68,497.87, accumulated interest as of November 4, 1994 of $13,436.54 and continuing interest of $17.12 from November 4, 1994 to the date this judgment is entered. DBAS is also awarded collection costs and reasonable attorneys' fees, and shall submit a schedule of these costs and fees for the court's approval.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486460/ | Decision and Order:
This is round two of an intra-family dispute we had earlier considered, and thought resolved, exactly four years ago in Utu v. Alaimalo, 22 A.S.R.2d 92 (Land & Titles Div. 1992) (hereafter the "1992 case"). The parties in the present case are all members of the Utu family occupying portions of Utu family land in Auasi, known as "Oloie." Except for Utu Sinagege Morris (“Utu”), the senior matai of the Utu family who has since passed away, the Utu family members before the court today are the same individuals who were before the court in 1992.
The 1992 case centered on a 55-year lease of a 60' x 60' residential site (hereafter the "lease") proposed by Utu for the defendants, David and Sopo Etimani (hereafter the "Etimanis"). Plaintiff Alaimalo Tumuialii (hereafter "Alaimalo"), a lesser matai of the Utu family, had there objected to the lease claiming that the leased area encroached on her family's land.1 The 1992 court ruled in favor of the senior matai and the *68Etimanis, finding that the proposed residential site, which was pointed out to the court during its visit to the disputed area, was the communal land of the Utu family, and that said site had previously been assigned to the Etimanis’ side of the family.
Three years after the commencement of the 1992 case, the Etimanis started to build the residential structure on the land that Utu had offered to them for lease. After the Etimanis began to level and excavate the site for the laying of their foundation, Alaimalo again objected and eventually filed this action seeking injunctive relief. Alaimalo contends that the Etimanis’ construction encroaches beyond the leased area onto her family’s side of Oloie, and that the Etimanis have cut down coconut trees planted by her ancestors.
We granted a preliminary injunction, after noticing that the Etimanis’ site plan received into evidence varied in description with that of the 60’ x 60’ area described in the lease that was the subject matter of the 1992 case.
At trial, Alaimalo called Lawrence French, a licensed surveyor, who affirmed the court’s earlier impression that the Etimanis’ construction site was not the same area of land described in the lease. Furthermore, Mr. French testified that he had physically mapped out the area described in the lease and discovered that the leasehold description actually referred to an area which lay more toward the rear of Oloie, where building would be impractical due to a steep incline.
Alaimalo urges the court to strictly enforce the court’s decision in the 1992 case, that is, to confine the Etimanis' entitlement to the leasehold site as measured and outlined by Mr. French. Moreover, Alaimalo argues, without evidentiary foundation, that since the leasehold site encompasses part of the steep incline at the rear of Oloie, any site excavation by the Etimanis to accommodate a residence would seriously undermine the physical integrity of the area and render the area prone to erosion and potential land slides. As an afterthought, then, Alaimalo asks the court to permanently enjoin the Etimanis from excavating or leveling the actual leasehold site.
The Etimanis did not attempt to controvert Mr. French's findings, admitting that their original surveyor had misdescribed the area which Utu had pointed out for their new home. They claim, however, that their foundation was actually within that physical 60' x 60' area which the senior matai Utu had shown them for their home site.
*69The ultimate purpose of plaintiffs’ submission is unmistakable — to exclude the Etimanis altogether from. Oloie. In other words, plaintiffs hope to achieve through a surveyor’s error, a mistake beyond the control of the plaintiffs and the court, that which plaintiffs could not and did not achieve on the merits in previous litigation. Alaimalo’s argument is specious.
This court does not rely exclusively on lease descriptions to determine the physical areas involved in a land dispute. Judges personally conduct site visits to ascertain the area of land in dispute. We are convinced that the description contained in the lease did not reflect the physical land area which Utu had designated for the Etimanis’ use and to which Alaimalo had lodged a claim. We, the panel of judges that viewed the property in 1992, are of the opinion that the 1992 case did not adjudicate a dispute over a piece of land as described in the lease; rather, we are of the opinion that the 1992 case adjudicated a dispute involving a 60’ x 60’ plot of land (a) that was within an area of Oloie previously assigned for the use of the Etimanis’ side of the' family, see Utu v. Alaimalo, 22 A.S.R.2d at 93; (b) that was situated between then existing Etimani family structures and then existing Alaimalo family structures; (c) that did not incorporate any part of the slope at the rear of Oloie; and (d) that abutted, but did not incorporate, the rather defined curtilage area incorporating graves, flower gardens, and a lawn area maintained by the Alaimalo side. The 1992 case found that the Etimanis were entitled to a piece of land with these characteristics, and affirmatively repudiated Alaimalo’s interest in a piece of land with these characteristics.
We are unable to glean from the evidence presented at trial the exact metes and bounds of the Etimani land entitlement, because neither the lease nor the record before us correctly reflects the Etimanis’ 60’ x 60’ residential site.2 However, Alaimalo has no cognizable legal interest in the precise location of the Etimanis’ residential construction, except the *70interest in the curtilage. Therefore, we enjoin permanently the Etimanis’ construction on or use of the curtilage area and order the removal of any property thereon. But we will leave designation of the exact location of the Etimanis160' x 60' site, within the area outlined above, to the matai of the Utu family,3 who has the authority or pule over "the division, allocation, and reallocation of land to individual family members for their use." Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87 (Land & Titles Div. 1989).
It is so ordered.
Plaintiffs' side of the family, specifically the descendants of Alaimalo Faimafili, earlier attempted unsuccessfully in 1989 to claim Oloie for themselves to the exclusion of the rest of the Utu family. See Sivia v. Alaimalo, 13 A.S.R.2d 95 (Land & Titles Div. 1989), appeal dismissed 17 A.S.R.2d 25 (App. Div. 1990). The 1992 case with the Etimanis was *68another attempt by plaintiffs' side to reassert that claim to exclusive ownership. Utu v. Alaimalo, 22 A.S.R.2d at 92 (Land & Titles Div. 1989).
The Etimanis never bothered to present at trial testimony from their initial surveyor(s) to explain the reason for the error, and to clarify the area that was supposed to have surveyed and reduced to metes and bounds for the Etimanis at the very outset. Rather, the Etimanis were merely content to resubmit another site plan that changed the site description and contained the unenlightening notation: "Incorrection Coordinations 1st Plot Plan." The Etimanis did not elucidate how the data for the new site plan was obtained, nor whether the surveyor who prepared the second site description was the same "professional" who had created the 1992 site description. Accordingly, we are without the benefit of an explanation as to the nature of the surveyor's error.
We take judicial notice of the concluded proceedings in In Re the Matai Title "Utu" of Amouli, MT No. 03-96, (Land & Titles Div. 1996) and note that a successor to the matai title Utu has been chosen. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486461/ | *71Order Denying Motions To Amend Complaint And For Summary Judgment, and Setting Trial Date:
On April 11, 1995, plaintiff James Donovan ("Donovan") filed this action to recover damages for alleged delinquent payment of rent owed by defendant Patrick Coffin ("Coffin") to Donovan for use of various equipment and machinery. Donovan included in the damages 18% interest on the overdue accounts, as set forth in the rental invoices.
On May 3, 1995, Coffin answered, disputing the amount owed and raising "a usurious rate of interest" in defense. On August 4, 1995, Donovan moved to amend the complaint to remove the claim for an 18% interest rate but did not append the amendment. On June 28, 1996, Donovan again moved to amend the complaint, with the amended complaint. On July 24, 1996, Coffin objected to the amended complaint and moved for summary judgment on the grounds that the debt should be forfeited under A.S.C.A. § 28.1510. Donovan's motion of June 14, 1996, to set a trial date is also pending.
DISCUSSION
I. Motion to Amend Complaint
T.C.R.C.P. 15(a) governs the amendment of pleadings. Donovan's motion to amend came after a responsive pleading was filed. Thus, the court's leave to amend is required but is "freely given when justice so requires." Id. In this instance, Donovan would have the court allow the amended complaint to avoid A.S.C.A. §28.1510. We discuss the applicability of that statute below. However, Donovan's attempt to circumvent forfeiture of the debt through an amended complaint is plainly not in the interest of justice. Moreover, we do not believe the mere amendment would bar Coffin's usurious interest defense. The debt is allegedly based upon invoices, which on their face charge an 18% interest rate.
Thus, Donovan's motion to amend the complaint will be denied.
II. Summary Judgment
Coffin's motion for summary judgment is based upon A.S.C.A. § 28.1510, which sets forth a criminal penalty, including debt forfeiture, for charges of usurious interest, and Shantilal Bros. Ltd v. Samoa Misc., Inc., 29 A.S.R.2d 210(Trial Div. 1996), which granted civil forfeiture for the same violation. We agree with Coffin that, if shown, a charge of usurious interest in violation of A.S.C.A. § 28.1510 acts to forfeit the entire debt upon which the usurious rate was charged. Shantilal at 212. *72However, we do not believe that a usurious interest rate has necessarily been shown in the instant case.
Coffin and Donovan have apparently assumed that the 18% interest rate was usurious under A.S.C.A. § 1501(a), which sets the maximum interest rate for personal loans or obligations at 15% a year. However; a separate statute governs loans or obligations madb to businesses "for the purpose of . . . carrying on or acquiring a business or corrimercial investment." A.S.C.A. § 28.1503; see also Max Haleck, Inc. v. Trans United Marketing, Inc., AP No. 15-77, slip op. at 5 (App. Div. Dec. 2, 1977).
Based on the complaint, answer and oral arguments, the debt was possibly incurred as a regular part of Coffin's business activities. .As such the debt may fall squarely within the ambit of debt incurred "for the purpose of. . carrying on or acquiring a business." A.S.C.A. § 28.1503. A.S.C.A. § 28.1503 allows a maximum 18% rate of interest to such loans. Thus, Donovan may not have violated § 28.1503 and be subject to the forfeiture penalty under § 28.1510. However, we lack sufficient evidence to determine whether Coffin signed the invoices stating the 18% interest rate. This rate is still subject to the requirement of § 28.1501(a) that agreements for an interest rate higher than 6% be documented by a writing signed by the party to be charged. Shantilal at 215. ■
In short, genuine issues of material fact remain unresolved. Thus, Coffin's motion for summary judgment will also be denied.
ORDER
Donovan's motion to amend the complaint and Coffin’s motion for summary judgment are both denied. Trial is scheduled on January 3, 1997, at 9:00 a.m. at the courthouse in Pago Pago.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486462/ | Order Denying Motions To Sever, Surpress Evidence and Change Venue, and Concerning Jury Voir Dire:
On October 15, 1996, defendant Ricky Pu'aa ("Pu'aa") moved to sever the trial, suppress his statements, suppress all evidence seized, and change venue or permit extensive voir dire of prospective jurors by the court and counsel or the court. On October 23, 1996, defendant Poe Faumuina ("Faumuina") moved for attorney conducted voir dire after the court's inquiries to the jurors. We heard all motions on November 6, 1996. All counsel were present. Pu'aa was also present, and Faumuina waived his right to be present.
DISCUSSION
1. Severance
Pu'aa ánd Faumuina are jointly charged by plaintiff American Samoa Government ("ASG") with possession of a controlled substance, to wit: methamphetamine, on or about April 12, 1996, in American Samoa, in violation of A.S.C.A. § 13.1022(a). The joinder is based on T.C.R.Cr.P. 8(b). Pu'aa now moves to sever the trial under T.C.R.Cr.P. 14, which states in pertinent part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in a complaint or an information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice may require.
Pu’aa cites United States v. Sheikh, 654 F.2d 1057 (5th Cir. 1981) in support of his motion. The trial court’s refusal to sever was upheld in *75Sheikh. The key factors in that case are notably similar to those highlighted by the motion in this case. First, however, we will state the standards applicable to severance, which the Sheikh court also enunciated clearly.
The trial court must weigh the prejudice to a defendant by a joint trial against the interests of judicial economy, and factor in the means of lessening the detriment. Sheikh at 1064. The trial court abuses its discretion in refusing a severance when the defendant is denied a fair trial because the prejudice in a joint trial cannot be effectively alleviated and thus compels separate trials. Id. "The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive." Id. at 1065.
As in this case, each codefendant in Sheikh asserted lack of knowledge of the controlled substance in the container. These defenses are not antagonistic. Each codefendant in Sheikh also claimed the container belonged to another codefendant. These defenses are antagonistic, irreconcilable, and mutually exclusive. Neither Pu‘aa nor Faumuina has yet to expressly make this contention. Perhaps Faumuina does implicitly, but Pu‘aa has not disclaimed bringing the container to American Samoa. Moreover, neither Pu‘aa nor .Faumuina has yet to bolster any finger pointing by claiming knowledge or belief that the other knew the controlled substance was present in the container. This factor materially minimized any prejudice in Sheikh. In sum, Pu‘aa has not shown compelling prejudice on the basis of antagonistic, irreconcilable, and mutually exclusive defenses.
Moreover', as ASG points out, the United States Supreme Court recently declined to adopt a rule mandating severance whenever codefendants have conflicting defenses, noting that "Rule 14 does not- require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion." Zafiro v. United States, 122 L. Ed. 2d 317, 325 (1993). The Zafiro court enumerated some instances where prejudice might be found, none of which are apparent in the case at bar.
This court clearly has "a continuing duty at all stages of the trial to grant severance if prejudice does appear." United States v. Kopituk, 690 F.2d 1289, 1316 (11th Cir. 1982). Currently, however, no showing of compelling prejudice appears. We have no reason to believe that the defenses offered by Pu’aa and Faumuina will be so antagonistic as to be irreconcilable and mutually exclusive. Indeed, at this point we have no *76reason to believe that the defenses will be more then merely marginally antagonistic.1
Pu'aa’s counsel also foresees that Faumuina’s counsel will be hostile and adversarial towards Pu‘aa during the trial to the point of denying Pu‘aa a fair trial. However, we are confident at this point that if that risk of prejudice becomes apparent, less dramatic measures, such as limiting instructions and trial supervision will suffice to cure any such risk. See Zafiro, 122 L. Ed. 2d at 325; Sheikh, 654 F.2d at 1066.
As such, Pu‘aa’s motion to sever will be denied.
2. Suppression of Pu‘aa’s Statements
Pu‘aa next moves to suppress the statements he gave to law enforcement officers after his arrest on the grounds that he was not informed of and did not waive his Miranda rights before he made the statements. Pu‘aa was arrested and made both oral and written statements while he was at the Pago Pago International Airport. Pu‘aa made an oral statement and then a written statement. The written statement bears a beginning time of 2:45 a.m. and concluding time of 3:00 a.m. He was also warned and signed a waiver of his Miranda rights, which bears a time of 1:51 a.m. Both parties agree that police officer Paulo Leuma, not Pu’aa, filled in these times.
Pu‘aa testified at the hearing that his statements were compelled prior to him receiving his Miranda warning. Kaleialoha Cadinha, Pu‘aa’s girlfriend, testified, in support of his claim, that she received a collect phone call from Pu’aa while he was incarcerated in the territorial correctional facility, where he was taken after his interrogation at the airport. She testified that the phone call was made between 2:00 a.m. and 2:30 a.m. American Samoa time. She called American Samoa later to confirm Pu’aa’s arrest. Pu‘aa argues that this testimony puts into serious *77doubt ASG’s position that Pu‘aa’s statements, the written statement beginning at 2:45 a.m., were made after he waived his rights.
Both officer Leuma and customs officer Se Lautogia testified that the waiver was signed before the statements were given. They did not agree on the exact time the documents were signed, but both agreed the waiver came first. The order, and not the exact time, is the important issue.
Although no witness gave a perfectly lucid description of events, we find that ASG’s witnesses gave more reliable accounts. The testimony by Pu‘aa and Cadinha on the time of their phone calls also presents a best evidence problem. Surely telephone records or bills exists which contain Pu‘aa’s long distance collect call to Hawaii and Cadinha’s subsequent long distance calls to American Samoa. Pu‘aa failed to proffer such a record or bill.
We find that Pu’aa was fully apprised of his Miranda rights and waived those rights before he gave his oral statement and then wrote and signed his written statement. Thus, Pu’aa’s motion to suppress his written statement will be denied.
3. Suppression of Evidence Seized
Pu‘aa also moves to have the seized evidence, the brief case containing the controlled substance, suppressed. Pu‘aa argues that the customs search at the airport was an unconstitutional search and seizure in violation of Pu’aa’s right to travel as protected by the U.S. Constitution.
Further, Pu‘aa argues that the Legislature of American Samoa cannot enact a statute defining U.S. citizens and nationals as "foreign" and then subject those "foreign" persons to a search when traveling between U.S. jurisdictions, specifically from Hawaii to American Samoa, when the U.S. Congress has defined an “alien” in U.S.C.S. § 1101(a)(3). He asserts that the supremacy clause of Article VI of the U.S. Constitution precludes the territorial legislation.
The extent the due process clause of the U.S. Constitution may apply to American Samoa is still unclear. See Banks v. American Samoa Government, 4 A.S.R.2d 113, 124-125 (1987). However, as the Banks court stated, the U.S. Constitution does not apply when it would tend to be destructive of traditional Samoan culture. We believe that to the extent the U.S. Constitution would deprive ASG of the ability to search the luggage of persons entering American Samoa, it is inapplicable in American Samoa. This situation is the kind where rights which may be *78fundamental in the United States would tend to be destructive to the traditional culture. Id2
Moreover, Article I, § 3 of the Revised Constitution of American Samoa specifically authorizes the enactment of legislation to protect the lands customs and culture of American Samoa. This statute falls squarely within the ambit of that constitutional authorization.
Pu'aa's next argument, regarding the supremacy clause, is spurious at best. A.S.C.A. § 27.1001(i) defines "foreign" as meaning "any place beyond the limits of American Samoa." The Legislature of American Samoa has not condemned a class of people by passing this statute. Rather, the Legislature has merely defined a term for purposes of a particular statute. This definition does not diminish the citizenship of anyone who travels beyond the borders of American Samoa. Nor does it. attempt to modify 8 U.S.C.S. § 1101(a)(3), the U.S. Constitution, or American Samoa's Instruments of Cession with the United States. Rather it simply defines the term "foreign" for purposes of applying the customs regulations set forth in A.S.C.A. §§ 27.1001-27.1031.
As such this statute implicates neither the right of intrastate travel as guaranteed by Article IV, § 2, nor the supremacy clause of Article VI of the U.S. Constitution. Thus, Pu'aa’s motion to suppress the evidence seized as a result of the customs search will be denied.
4. Change of Venue
Pu'aa moves for a change of venue in light of certain pretrial publicity and suggests that ASG should fund travel to Hawaii to obtain an impartial jury.
There is, of course, no other venue available for ASG's felony prosecutions other than the High Court. Pu'aa's motion for change of venue is therefore denied.
5. Jury Voir Dire
*79Alternatively to a change of venue, Pu‘aa moves for extensive voir dire of the prospective jurors by the court and his counsel or by the court alone. Faumuina moves to allow his counsel to voir dire jurors in addition to the court’s inquiries.
Both Pu‘aa and Faumuina submitted comprehensive questions for jury voir dire in conjunction with these motions. We will study those questions in preparing for the court’s voir dire and ask the prospective jurors the ones, at least in substance, we consider appropriate. We will also take every reasonable precaution to ensure that counsel may effectively exercise Pu'aa’s and Faumuina’s right to challenge jurors for cause and peremptorily.
Faumuina cites T.C.R.Cr.P. 24(a) as authorizing attorney conducted voir dire. On the other hand, A.S.C.A. § 3.0232(b) seems to mandate that jury voir dire is the court's exclusive province. The statute prevails over court rules. See, e.g., 16 Cal. Jur.3d (Rev.), Courts § 162 (1983); see also Southwest Metal Fabricator v. Internacional de Aceros, S.A., 503 F.Supp. 76, 78 (S.D. Texas 1980). However, we intend to consider this matter further and will advise counsel of the court's final position before the trial begins. If we conclude that attorney conducted voir dire is permissible, and if during voir dire it appears useful to have counsel question the prospective jurors, we will allow all counsel to participate in the process directly.
ORDER
We deny Pu'aa’s motions to sever, suppress statements and other evidence, and change venue. We will make a final ruling on the motions to allow attorney conducted jury voir dire before the trial begins.
It is so ordered.
Pu'aa also claims compelling prejudice in Dennis Fuimaono’s deposition testimony. However, we do not yet have this deposition before us to evaluate for this or any other purpose. Moreover, we will observe that, to the extent Fuimaono’s testimony incriminates Pu'aa, Faumuina is not the apparent direct source. If Pu'aa is ultimately convicted,. Fuimaono’s testimony may or may not contribute to that result. All incriminating evidence is prejudicial by nature, but that feature does not itself impair admissibility or require severance. Furthermore, we do not now know whether Fuimaono’s testimony, either in person or by deposition, will actually be adduced at the trial or, if it is, by whom.
Even were the U.S. Constitution applicable in this instance, we believe that this statute would surely pass constitutional muster. Since no suspect classification is involved the statute would need only pass the rational basis test. Surely this statute is rationally related to the legitimate public interest of regulating imports into American Samoa, and safeguarding against dangerous or illegal materials. This is particularly true so long as American Samoa is outside the customs area of the United States. See 19 U.S.C.S. § 1401(h). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486463/ | Opinion and Order:
Plaintiff, Korea Deep Sea Fisheries Association (hereafter "KDSFA"), is an entity organized under the laws of the Republic of South Korea. KDSFA was established to secure provisions and services in overseas ports for its membership of Korean fishing boat owners. KDSFA maintains an office in American Samoa, reporting to its main office in Pusan, Korea.
The local office was managed in the early 1980s by a W.K. Kim (hereafter "Kim"), assisted by defendant/counter-claimant In Saeng Lee (hereafter "Lee"). Sometime in the mid 1980s, Kim left KDSFA to become a boat owner himself, operating as the Kyung Yang Trading Company, and joined KDSFA as a boat owner member. Since Kim’s leaving, Lee became KDSFA’s local manager, and he has so remained to date.
*81Defendant Ho Pyo Hong (hereafter "Hong"), together with his wife Aotearoa Hong, have been, since the early 1980s, in the business of provisioning fishing boats that operate out of American Samoa. Hong, doing business under the name "Koreansa Shipping Agency," started out selling live hogs to various fishing boats. He later extended his services to the supply of other food and dry goods lines as well. In time, he was invited by KDSFA’s local representatives to supply KDSFA beats.
At the outset, of what was to.become a virtually exclusive franchise, Hong quickly befriended Kim and Lee. Initially, KDSFA advanced Hong seed money to fill its early orders given for supply. Subsequently, as his business took a dramatic turn in growth, Hong began to supply KDSFA orders on credit. The order and supply process between the parties was given as follows: an order for a particular vessel’s needs would be given to KDSFA, who in turn would pass the order to Hong. Hong would then proceed to fill the order by purchasing from local wholesalers and retailers. After an order was put together, Hong would deliver the same to the vessel where its receipt would be acknowledged in writing on the original invoice by either the vessel’s captain or some other ranking officer. Hong would then tender the original invoice to KDSFA for payment and KDSFA would in turn forward Hong’s billing to the vessel’s owner. The owner would then send the payment to KDSFA and the latter would then pay Hong by way of KDSFA check drawn on the local branch of the Bank of Hawaii.
At least that was the way the business relationship was supposed to have operated. In practice, the relationship between the parties developed into one of credit sales on "open account" basis. In addition, Lee after taking over management from Kim, began to periodically ask Hong for cash loans citing one emergency or another attributed to some KDSFA vessel coming into port. Lee’s loan requests became increasingly regular and some entailed substantial five figure amounts. Hong begrudgingly gave these cash advances, no doubt very mindful of the essentially exclusive nature of his franchise with the KDSFA boat community, including his exclusive purchasing access to KDSFA boats for shark fins, a commodity with lucrative export potential.
Over time, the relationship became strained as Hong saw his receivables grow and as he anxiously pushed Lee for payment. He became increasingly uncomfortable with the folding of Kim’s Kyung Yang Trading Company, then one of his larger KDSFA-receivables. There were some attempts to address and resolve the payment of Hong’s receivables, including joint accounts reconciliation efforts and a failed debt-workout scheme, conceived in July 1992. The plan contemplated both Lee and Hong’s taking over the operation of Kim’s failing Kyung Yang Trading Company with the aim of paying off a number of *82KDSFA’s accounts payable, including Hong’s receivables which were rounded off at $700,000. The scheme never quite got off the ground. As a result, Hong began threatening lawsuits and the arrest of various KDSFA vessels despite Lee’s placating overtures about mutual future business prospects.
On August 14, 1992, KDSFA took the initiative and beat Hong to the courthouse. KDSFA filed suit alleging that Hong owed it $960,745.66; it claimed that this sum was the net result of all funds it had given Hong over the years, less the goods that the latter had supplied to KDSFA vessels. KDSFA further sought injunctive relief to stop Hong’s communicating "false," "slanderous," and "libellous" accusations concerning KDSFA and its members. Hong, it seems, had made no secret of the fact of the deteriorating business relationship with KDSFA and his threats to have various KDSFA vessels arrested.
Hong immediately responded with his own counterclaim, alleging KDSFA’s indebtedness to him in the amount of $2,441,917.70.
DISCUSSION
Trial herein was a drawn out tedious affair mired not only in language barriers but in a mountain of fragmentary proofs. It became clear at trial that business records were not tailored with the needs of an auditor in mind.
I. KDSFA’s Claim
If KDSFA’s tendered proofs were the extent of its business records, it’s accounting system consisted solely of the company checkbook. This meager accounting system, however, was not kept in a fashion designed to promote clarity of transactional records. To the contrary, the canceled checks tendered into evidence bespeak a checkbook riddled with ambiguity and vagueness. KDSFA’s checks revealed numerous "cash" payments, equivocal memo entries, and in some instances, no explanatory memo entries whatsoever. A large number of the non-cash checks, made out indiscriminately to either "H.P. Hong" or "Koreansa Shipping Agency," merely bore the vague notation of "payment of account," without reference to any invoices, loans, vessels, or KDSFA member. Moreover, the evidence also revealed that memo entries were not always contemporaneous with the making of the check. A former bookkeeper of KDSFA, who now works for Hong, testified to after-the-fact false memo entries by Lee on canceled checks. At the same time, Hong testified about Lee’s recurring practice of asking him to cash large KDSFA checks that would necessarily reference him when the checks were ultimately negotiated with the bank. This testimony is consistent *83with the apparent deliberately equivocal manner in which Lee kept the KDSFA check book.
In our assessment of the proofs, appearances rather than substance, ambiguity rather than exactness, seems to be the order of KDSFA business records. Unmistakably, Lee’s accounting method was done to muddle rather than to accurately chronicle monetary transactions, an accounting manner which readily lends itself to controversy. But when the ulterior goal is the absence -of objectively verifiable record keeping, then any attempt at parol explanation of unverifiable items is immediately suspect.
We are satisfied that KDSFA’s lawsuit lacks any basis whatsoever. The evidence 'ailed to even remotely substantiate KDSFA’s claims of substantial cash advances to Hong. Rather the evidence indicates the opposite. From KDSFA own proofs, consisting of Hong’s supply invoice copies, apparently obtained through discovery, dated between 1984-92, together with all of KDSFA’s canceled checks referable to Hong and issued between the same time period, a net figure on these written exhibits results in favor of Hong in the amount of $299,518.55.
KDSFA’s claims, however, rest principally on parol explanation relating to such questionable items of proof as "cash" check payments and unsubstantiated claims of third-party payments. In order to arrive at its numbers and its asserted credit standing, KDSFA essentially asks the court to resolve all ambiguity in its records, which ambiguities were intentionally created by KDSFA, against Hong. Furthermore, we note that while KDSFA has initiated suit in its own stead, as opposed to in the name of its association members, it nonetheless finds it convenient to cite member bankruptcies in an effort to elude responsibility on some $1.3 million worth of Hong’s invoices. KDSFA’s claim to having advanced $1.3 million on behalf of insolvent members not only contradicts its agency argument, but sorely stretches the limits of credulity. There is something disingenuous about suing as a corporate entity, or as an association of boat owners for undisclosed members' and then citing agency principles in the way of defense to avoid the defendant’s counterclaim.1 Just as disingenuous, is KDSFA’s attempt to assert, for the *84very first time at closing arguments, the contention that all of Hong’s pre-1989 accounts ought to be time barred under applicable statutes of limitations.2
From all outward appearances, KDSFA’s filing suit amounted to nothing more than a sham preemptive strike to distract attention from Hong’s threats of law suits against different KDSFA members’ vessels. KDSFA’s complaint will be dismissed for want of proof, with attorney’s fees, entailed in the defense of suit, awarded to Hong.
II. Hong’s Claim
In terms of satisfactory audit trails, Hong’s accounting system as reflected by his proofs tendered, was hardly any better than KDSFA’s. The accounting records tendered consisted of a note pad maintained by Hong, in Korean characters, which he claimed he had kept to detail loans that he had made over the years to KDSFA, together with a set of "red books" kept partially in English and partially in Korean and Chinese characters. Defendant also tendered into evidence a GSA issue "Record Book," maintained by Mrs. Hong to record her recollections of significant business transactions. These records were not in themselves particularly illuminating, let alone verifiable, while some quite clearly appear to have been made comprehensible only to its author, rather than maintained for ready third-party review.
Although the documentary evidence alludes to a business relationship between the parties dating back to 1984, the starting point of Hong’s proofs is a claimed 1987 accounts reconciliation exercise with Lee.
*85Hong professes that such an exercise resulted in Lee’s acknowledgment of KDSFA indebtedness to him in the amount of $185,542.50, as of July 1, 1987, for food, cigarettes, pigs, and fishing gear supplied KDSFA vessels. Hong claims that Lee had so acknowledged this indebtedness in his sales logs-one of the "red books."
From our perusal of his sales log, Hong’s claim to an agreement from Lee is not readily apparent. In our assessment of the proofs, Hong’s pre-1987 claim is found to be insufficiently supported. We fail to see why Hong’s starting point should be a contentious reconciliation exercise, with its inherent evidentiary value problems, when hard copies of his pre-1987 invoices are available to him, together with access to KDSFA’s canceled checks for the same time frame. Hong’s tact becomes evident when we consider his post-1987 claims.
The next premise of his claim is that his post-1987 invoices reveal goods and services supplied by him to KDSFA vessels in the total amount of $2,519,221.64, while payments received from KDSFA and Samoa Packing total $1,906,169.69, a difference of $613,051.95. This net figure is significantly higher than that net figure of $299,518.55, arrived at when utilizing actual supply invoices against canceled payment checks. As with KDSFA’s showing, Hong’s manner of manipulating proofs in this regard, readily lends itself to appearances rather than substance. His parol explanation also leaves much to be desired.
On the other hand, the evidence does suggest that a net balance is owing Hong when his invoices are tallied up against verifiable payments, while taking into account either side’s admissions against interests. These are the least questionable proofs available.
We accept, and so find as fact, that loans made by Hong to KDSFA total $642,000, as stipulated by KDSFA; that Hong’s invoices received on record are true and correct as to the goods and cost of goods he supplied tp KDSFA, save for those invoices relating to supply of non-KDSFA vessels as conceded by Hong; that the extent of payments made on account by KDSFA to Hong, are the sum of those KDSFA checks received on the record, less the total of those KDSFA "cash" checks contested by Hong as having been given to him for cashing; that third-party payments, principally by Samoa Packing, made on goods and supplies from Hong to KDSFA vessels total $211,430, as stipulated to by Hong.
We reject KDSFA’s contention that the failed debt-workout plan of July 1992 somehow resulted in accord and satisfaction, and the discharge of KDSFA’s indebtedness to Hong. From our perusal of the relevant documents, we are unable to agree with the construction advocated by *86KDSFA, even under the most imaginative reading. From the documents, we conclude that the work-out plan merely offered Hong something in the way of light at the end of the tunnel — a seemingly viable payment plan. This payment plan not only contemplated the satisfaction of Hong’s receivables, but also the payment of third-party accounts, some of which were incurred with Lee’s personal guarantee. In our view of the evidence, all that this plan really achieved was the abeyance of Hong’s threatened law suit(s). Hong recanted his forbearance, however, when he discovered that certain fish proceeds that should have gone toward the payment plan, were diverted elsewhere by either Lee or Kim, or by both.
ORDER
On the foregoing, the following order will enter: Hong shall, within 30 days of date hereof, file with the Clerk a verified accounting, consistent with our findings and conclusions herein, of monies due and payable on account, with a copy of that accounting to be served upon KDSFA. Hong shall further submit a schedule of attorney’s fees (exclusive of fees incurred in prosecuting his counterclaim) for the court’s approval.
KDSFA shall have 20 days to file any opposition to the accounting filed by Hong, and if there be none, judgment will be entered accordingly. Otherwise, the Clerk shall thereupon set this matter for further hearing upon KDSFA’s filing of any opposition.
It is so ordered.
In most states the common law rule regarding suits by and against unincorporated associations has been changed and modified by statutory enactments. American Samoa has no such enactment. At common law, an unincorporated association could not sue or be sued under its own name. See 6 Am. JUR 2d Associations and Clubs, § 51. However, it has been held that an unincorporated association which held itself out as capable of contracting in the association's name, is estopped when sued on the contract, from asserting that it is incapable of being sued. Id., see *84also Askew v. Joachim Memorial Home, 234 N.W.2d 226, 236 (1975) (stating that "an association doing business as a legal entity may, if the facts and circumstances warrant, be estopped to deny its own existence"). We believe that this is an appropriate approach for dealing with such circumstances. Here KDSFA did business with Hong as a legal entity. Moreover, KDSFA instituted the present action in its own name. Equity mandates that KDSFA be estopped from now denying its existence as a legal entity, rather than merely an agent of its members. We thus find that KDSFA is a legal entity, with the capacity to sue and be sued on its own behalf.
For one thing, counsel alluded to the wrong statute of limitations. Second, the relationship that developed between the parties was on the basis of "open account," and every subsequent KDSFA partial payment "on account" acknowledged that indebtedness. In such circumstances, the statute of limitations is tolled. See In re Badger’s Estate, 156 Kan. 734, 137 P.2d 198, 205 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486465/ | Order Denying Motion for Reconsideration or New Trial:
This court convicted defendant Theresa Fanuaea Gurr Leiataua ("Leiataua") on two counts charging the offenses of larceny and fraud as an officer of the Development Bank of American Samoa ("DBAS"), following a lengthy bench trial which ran from May 23 to June 5,1995.:
Leiataua now moves for reconsideration or new trial on the grounds that: (1) we factually erred in finding that Leiataua’s loan was not properly approved by DBAS’s Board of Directors; (2) approval of the loan by DBAS’s President was sufficient, as a matter oflaw, to justify Leiataua in receiving the loan; (3) as a borrower. Leiataua had the prerogative to *90utilize loan proceeds any way she chose once the loan was disbursed; (4) we erred in finding intent to defraud or injure DBAS, since Leiataua had the intention and capacity to repay the loan; (5) we erred in our application of United States v. Krepps, 605 F.2d 101, 104 (3d Cir 1979), because the Krepps defendant fraudulently channeled a loan through a third-party before it was disbursed to the defendant, whereas Leiataua received her loan in her own name; and (6) we erred in our interpretation of facts surrounding the disbursement of a check for $2,691.05.1
I. Factual Issues.
As to the first, fourth, and sixth errors claimed by Leiataua, we made specific factual findings regarding those issues and have been given no persuasive reason to revisit those findings. ,
II. President’s Approval , ,
Leiataua complains that it was not her responsibility to see that her loan was properly authorized, and that she had a right to apply for a loan and to rely on the authorization of DBAS’s President. This argument is clearly frivolous and indeed is almost ludicrous when one considers that Leiataua was Vice President for Loans at the time her loan was obtained, and initiated disbursement of the loan to herself.
Certainly the average citizen who walks into a bank is not responsible to make certain that the bank follows its own authorization procedures, but the Vice President for Loans is in a position to know the procedures and carries a fiduciary duty to see that they are followed. Furthermore, we made specific factual findings that Leiataua never made a loan application specifically for DBAS’s purchase of her Amerika Samoa Bank loan. We would be remiss if we failed to point out, as we did in our earlier opinion, that the average citizen also could not expect to walk into DBAS and be granted a loan to refinance another debt which was in danger of acceleration and foreclosure and not guaranteed by DBAS.
*91
III. Borrower’s Prerogative
Leiataua cites United States v. Gens, 493 F.2d 216, 222 (1st Cir. 1974) for the proposition that the borrower of funds may apply the funds to any purpose he/she sees fit, regardless of the declared purpose of the loan on the application. Gens simply does not support that argument. Gens concerns circumstances where a third-party is utilized to obtain credit for the real borrower. The First Circuit held that such activities were not inherently harmful to the bank where "the named debtor is both financially capable and fully intends to repay the loan." Id. at 233 n.15. If Gens has any application to the present case whatever, it is for its statement that harm to a bank is established if there are "special circumstances demonstrating injury or risk of injury to the bank despite the obligation of a financially responsible party to the bank.". Id. at 222 n.14. In the present case, Leiataua used her position as Vice President for Loans to bail herself out of a bad situation with another financial institution, and in so doing imposed a loan for a substantial amount of money for unauthorized purposes on the financial institution which she had a fiduciary duty to serve.
IV. Application of United States v. Krepps
Leiataua attempts to distinguish United States v. Krepps, 605 F.2d 101, 104 (3d Cir.- 1979), based on the fact that it involved circumstances where a loan officer approved loans for third parties, the proceeds of which were then transferred back to the loan officer. The broad principle behind Krepps, however, is that a bank officer who uses deceptive tactics in a process of self-dealing (by making loans for personal private gain or other advantage) is guilty of misapplication of funds. Id. at 106-07.
The motion for reconsideration or new trial is denied.
According to our previously announced intentions, the hearing to set the beginning date of Leiataua’s probation and to structure her final conditions of probation, and to consider any further, motions filed properly after today, is scheduled on December 26,1995, at 9:00 a.m.
It is so ordered.
We have other grounds for denying this motion, and thus will not take up a detailed ánalysis of the Government’s argument that the defense has waived its objections to the sufficiency of the evidence by failing to renew the? motion to acquit at the conclusion of all of the evidence, or in a timely manner after the verdict, as required by T.C.R.Cr.P. 29(c). For our purposes, it is sufficient to note that Rule 29(c) specifically applies to jury verdicts, and therefore a formal motion to acquit at the conclusion of a bench trial is *■ unnecessary. CHARLES Alan WRIGHT, Federal Practice and Procedure, Criminal 2d § 469; Hall v. United States, 286 F.2d 676, 677 (5th Cir. 1960). The not guilty plea.itself is sufficient to ask the court for a judgment of acquittal. Id. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486467/ | Opinion and Order:
The petition of Ipolito Felise seeks judicial review of a decision and order of the Workmen's Compensation Commission (hereafter the *97"Commission") denying his application for permanent total disability benefits.
FACTUAL BACKGROUND
On March 10, 1988, petitioner suffered two "transient ischemic attacks,” minor strokes, while at work. The attacks left him partially paralyzed. Petitioner subsequently sought, and was paid, temporary total disability compensation benefits. While .petitioner apparently recovered most of his abilities, his treating physician recommended an early retirement based on his disabilities. Petitioner then sought permanent total disability benefits status, under A.S.C.A. § 32.0605, citing "stress induced illness."
The petitioner was sent to Hawaii where he was examined by a cardiologist, Dr. Wesley Kai, of the Straub Hospital and Clinic. Based on Dr. Kai's finding that petitioner's medical problems were not related to cardiac disease, but instead to petitioner's chronic renal failure, diabetes and hypertension, his benefits were terminated by his employer's insurer for workmen's compensation, Continental Insurance Co., pursuant to A.S.C.A. § 32.0661.
Upon termination, petitioner sought a formal hearing before the Commission. A hearing was held on October 28, 1992. The Commission denied petitioner's claims stating:
There is no evidence that the claimant suffered a disabling stroke, and while there was evidence that stress, diabetes, renal disease and cardiac problems tend to aggravated each other, the only relationship between the claimant's condition [] and his work appears to be that the attacks occurred while claimant was at work. There was no evidence presented that claimant was suffering any stress other than the stress usually associated with any job and there was no evidence that claimant's occupation was unusually stressful.
Petitioner now appeals the Commission's decision and order.
STANDARD OF REVIEW
We review the Commission's order to determine if it was "in ■ accordance with the law." A.S.C.A. § 32.0652. This review requires the court to uphold the Commission's order if it is supported by "substantial ■ evidence.” Continental Insurance Co. v. Workmen’s Compensation *98Commission, 15 A.S.R.2d 130, 133 (Trial Div. 1990);1 see also Continental Insurance Co. v. Workmen’s Compensation Commission, 7 A.S.R.2d 105 (Trial Div. 1988); Hartford Fire Insurance v. Workmen’s Compensation Commission, 1 A.S.R.2d 57 (Trial Div. 1981). This standard requires the court to affirm the Commission’s order if a "reasoning mind could have reached the factual conclusion the agency reached." Id., at 133; see also Continental Ins. Co. v. W.C.C., 8 A.S.R.2d 152, 155 (App. Div. 1988).
DISCUSSION
Applying the above standard to the case at bar, we find substantial evidence to support the Commission’s findings that the petitioner was not suffering from an "occupational disease" which arose out of and in the course of employment. A.S.C.A. § 32.0520.
Moreover, although all parties agree that stress and hypertension can contribute to heart disease, petitioner submitted little, if any, evidence which showed a casual relationship between his stress on the job and his asserted "occupational disease." But even had petitioner offered such evidence, he would also have to show that the stress inherent in his job is greater than that which all workers are occasionally subjected. See Pence v. McSwain, 623 N.E.2d 201, 203 (Ohio App. 1 Dist. 1993).
Petitioner offered little evidence on this issue. Indeed, he testified before the Commission that prior to his strokes he "was going to work over there for three months, which I had never had any work, I only come in the morning to punch my card, find a place to sit, because nobody ever give me the work or a job to do." How doing nothing all day could somehow subject the petitioner to greater stress than other workers is difficult to imagine.
CONCLUSION
We find that the record substantially supports the Commission's finding of non-work related disease and therefore deny petitioner's claim for total disability benefits. The Commission's finding is affirmed.
*99It is so ordered.
Petitioner argues that the Commission failed to rebut the presumption of compensability embodied in A.S.C.A. § 32.0642. We note that once the employer submits evidence which shows other causes for the injury, this may constitute sufficient evidence to rebut the presumption, and once rebutted the presumption drops out of the analysis. See 15 A.S.R.2d at 134 n.2. There was sufficient evidence presented at the agency hearing by the employer to rebut the presumption of compensability, and thus the presumption drops out of our analysis. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486468/ | Opinion and Order Denying Plaintiff’s Motion for Reconsideration:
I. Introduction
On September 2, 1966, after a trial on the merits, the High Court of American Samoa accepted the title claim of defendant Patea S. of Vatia and his family to real property entitled "Laloulu," .581 acres of land in Vatia. The court rejected the adverse claims of Taulaga of Vatia and Masaniai of Vatia and directed the Office of the Territorial Registrar to register the land Laloulu as the communal land of the Patea family. Patea v. Taulaga, 4 A.S.R. 739 (Trial Div. 1966).
*100In 1987, and again in 1989, the High Court’s Land and Titles Division rejected attempts by Taulaga Maresala Masaniai ("Taulaga II"), the son of Taulaga of Vatia, to reopen the litigation. Taulaga v. Patea, 4 A.S.R.2d 186 (Land & Titles Div. 1987); Taulaga v. Patea, 12 A.S.R.2d 64 (Land & Titles Div. 1989). In 1990, the High Court’s Appellate Division upheld the 1989 decision of the Lánd and Titles Division. Taulaga v. Patea 117 A.S.R.2d 34 (App. Div. 1990).
On February 1, 1996, Taulaga II filed yet another action, styled "Action for Declaratory Judgment and Equitable Reliefs," attacking the 1966 judgment as void for lack of jurisdiction and as obtained through fraud. In an Opinion & Order entered October 30, 1996, we granted defendants’ motion for summary judgment, dismissed Taulaga IPs complaint, and awarded defendants reasonable attorney’s fees and litigation costs. Taulaga II now moves for reconsideration of the court’s most recent decision.
II. Discussion
In our original opinion and order, we granted defendant’s motion for summary judgment with a rather cursory opinion although satisfied that Taulaga IPs claim lacked merit. Though we find ño error in that original opinion and order, we nevertheless realize that the thin opinion may lead to some confusion as to the state of the law. Therefore, we set out here to explain in greater detail the reasoning behind the court’s decision and order. ...
In his complaint, Taulaga II seeks relief from the 1966 judgment, and his claims are therefore subject to T.C.R.C.P. 60, entitled "Relief from Judgment or Order." This is what we meant when we stated in the original opinion and order that Taulaga II was subject to Rule 60 and could not "evade Rule 60 consequences merely by omitting reference to the Rules." We find no error in this statement.
T.C.R.C.R. 60 states:.
[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for . . . (3) fraud. (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void. . . ; The motion shall be. made within a reasonable time, and for reasons (1), (2), and (3) [fraud], not more than one year after the judgment, order, or proceeding was entered or taken... . . This rule does not limit the power of a court to *101entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.
In the present case, Taulaga II’s complaint essentially alleges that the 1966 judgment is void for lack of jurisdiction, and that the 1966 judgment was obtained by extrinsic fraud, the kind of fraud that is practiced in obtaining a judgment in the course of litigation. See 37 AM. JUR. 2d Fraud and Deceit § 5 (1968 & 1993 Supp.). Because these causes of action fit neatly within the categories outlined in T.C.R.C.P. 60(b), we think that if Taulaga II's "Action for Declaratory Judgment and Equitable Reliefs" is a "motion" for relief from judgment, then Taulaga II was required to file the motion "within a reasonable time" of the 1966 judgment (and no later than one year after the 1966 judgment on the claim t>f extrinsic fraud).
We also believe that if the Taulaga II's "Action for Declaratory Judgment and Equitable Reliefs" is characterized as an "independent action," and therefore not subject to the limitations period' contained in T.C.R.C.P. 60(b), the action is nevertheless subject to a "reasonable time" filing requirement. While T.C.R.C.P. 60'creates an exception for "independent actions" and precludes the application of T.C.R.C.P. 60(b)'s limitations period for "motions," it does not preclude the application of the Statute of Limitations for attacking judgments, nor does it preclude the application of the equitable doctrine of laches. See Fed. R. Civ. P. 60, Advisory Committee Notes, 1946 Amendments (West 1996) ("Where the independent action is resorted to, the limitations of time are those of laches or statutes of limitations."). In American Samoa, the Statute of Limitations bars actions to set aside a judgment which are not filed within 5. years of the rendition of the judgment, see A.S.C.A. § 43.0120(4), and the doctrine of laches bars an independent action for relief of judgment which has not been filed within a reasonable time. See Lockwood v. Bowles, 46 F.R.D. 625, 629-30 (D.D.C. 1969) (barring on grounds of laches an independent action for relief of judgment due to an alleged "scheme" to defraud the court, because the party seeking relief did not exercise due diligence in presenting its claim, and the opposing party was prejudiced by the fourteen-year delay).
In our. original opinion and order, we stated that Taulaga II's claim was subject to T.C.R.C.P. 60(b) and a "reasonable limitations period." We did not explicitly state whether the source of this "reasonable limitations period" was the language of Rule 60(b) applicable to "motions," or the language of Rule 60(b) applicable to "independent actions." We did not exclusively attribute the reasonable time filing requirement, because a reasonable time filing requirement can be derived from either the Rule 60(b) language limiting motions, or the laches limitations applicable to *102independent actions. Therefore, our original opinion and order may have been afflicted with undue brevity on the issue of T.C.R.C.P. 60(b), but it does not possess anything approaching clear error. We properly established that Taulaga II was required to file his "Action for Declaratory Judgment and Equitable Reliefs" within a reasonable time, and we appropriately concluded that filing a request for relief of judgment three decades after the 1966 judgment was entered was not within a reasonable period of time.
We also wish to further develop our understanding of the broad concept of "time barred" as we used the term in our original opinion and order. As noted earlier, the American Samoa Code Annotated bars all actions to set aside judgments when the actions are not filed within five years of the rendition of the judgment, A.S.C.A. § 43.0120 (4). Therefore, not only is Taulaga II's "Action for Declaratory Judgment and Equitable Reliefs" time barred because it was not filed within a reasonable time after the 1966 judgment was entered, Taulaga II's action is time barred because it was not filed within 5 years of the 1966 judgment as required by the applicable statute of limitations.
Finally, we would like to reiterate the public policy interest in finality of judgments to which we alluded in our original opinion and order. In Reid v. Puailoa, 23 A.S.R.2d 101 (Land & Titles Div. 1993), this court stated that "[t]he strong interest in finality of judgments means Rule 60(b) is rarely available, even if a judgment is subsequently found to be Wrong." Id. at 104, The importance of judgment finality is especially strong in regards to land titles, where certainty and security are essential. Id. at 109 (citing Ritter v. Smith, 811 F.2d 1398, 1401-02 (11th Cir. 1987); Collins v. City of Wichita, Kansas, 254 F.2d 837, 839 (10th Cir. 1958)). In the instant case, defendants have enjoyed title to property for 30 years following the rendition of a final judgment, and expended a great deal of time and energy defending that title; this case vividly illustrates the need for finality in land and title matters.
This matter should be put to rest. However, if we accept Taulaga II's position that a judgment can be attacked by independent action "at any time," we are making vulnerable every single judgment that this court ever entered. As long as future plaintiffs label their complaints as an "independent actions" for relief from judgment, they would be able to avoid the limitations period prescribed in T.C.R.C.P. 60, the limitations period imposed by A.S.C.A. § 43.0120, and the limitations period imposed by the doctrine of laches; We must reject any interpretation of T.C.R.C.P. 60 that would create such widespread insecurity.
We therefore affirm our holding that Taulaga II's action is time barred because Taulaga II did not file the action within a reasonable time as *103dictated by T.C.R.C.P, 60 provisions regarding motions, or alternatively, because Taulaga II did not file the action within a reasonable time as dictated by the doctrine of laches applicable to independent actions, or alternatively, because Taulaga II did not file the action within five years of the 1966 judgment as required by A.S.C.A. § 4Q.0120. We fiirther affirm our holding that this conclusion is consistent with and supported by the important public policy interest in judgment finality in land and titles matters. We conclude that defendants' motion for summary judgment was properly granted.
III. Order
For the foregoing reasons, Taulaga II's motion for reconsideration is DENIED,
Defendants are awarded reasonable attorney's fees and litigation costs against Taulaga II in an amount to be approved by the court upon verified application by defendants.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486470/ | Order Granting Plaintiff’s Motion for Payment of Costs In Custodia Legis, Denying Plaintiffs Motion to Release of Part of Proceeds, and Denying Intervenors’ Motions for Sanctions:
*108This matter came on for hearing December 16,1996, upon plaintiff TCW Special Credits, Inc.’s ("TCW") motion for: 1) approval and payment of in custodia legis costs in the amount of $121,067.59; and 2) the release of $4,000,000 of the $6,000,000 realized at the sale of the vessel Kassandra Z. The sale proceeds are presently on deposit with the court’s registry. All plaintiffs-in-intervention object to the motion and seek T.C.R.C.P. Rule 11 sanctions against TCW.
DISCUSSION
I. Payment of In Custodia Les is Costs
There being no objection to the motion, and the court being satisfied that costs claimed are equitable, reasonable, and inured to the benefit of all claimants, the motion for payment of in custodia legis costs, in the amount of $121,067.59, from the sale proceeds, is granted. The Clerk shall disburse from the sale proceeds accordingly.
II. Release of Funds
TCW, citing no authority, but appealing to "common sense" and "equity," argues that the money now sitting in the court’s registry, collecting minimal interest, could be better used. While this is true, we do not, however, believe that the wholesale release of funds to TCW is in all the parties’ best interest. ’ ' ¡ ;
TCW submits that in the "extraordinary" event that the senior claims of the crewmen are greater than $2,000,000, TCW would remain liable for that balance. TCW points to the court’s Order on Motion for Interlocutory Sale, entered September 12, 1996 ("Sale Order"), as suggesting the court’s prior agreement with this contention. TCW argues that the Court’s setting of a minimum cash bid of $2 Million somehow translates as the Court’s preliminary assessment of the worth of the senior lienholders’claims.
This argument is . wrongly footed and founded on some basic misconceptions. First, the court’s decision to set the minimum cash bid at $2,000,000 was not based on its estimation of the senior lienholders’ claims. Rather, the court’s setting of a minimum cash bid term in its Sale Order entailed a number of countervailing factors, besides the crewmen’s concerns. (These countervailing factors were recited in the Sale Order.) Significantly, the court was concerned with the immediate sale of the vessel, in the interests of not only minimizing res deterioration and continuing in custodia legis expenses, but in confronting the reality of the impending hurricane season — an argument strongly canvasséd-by TCW at its motion for interlocutory sale, and in its opposition to plaintiff-in-*109intervention, Clipper Oil Company’s, subsequent motion to amend the terms of sale. The court was further concerned with enhancing sale price by not setting an overly prohibitive minimum bid, but allowing TCW to protect its interests by granting it the opportunity to credit bid-another factor strongly canvassed earlier by TCW. To this end, the court took into account market realities in American Samoa and past experience with court-ordered sale of fishing boats. At the same time, we took judicial notice of, and hence also into account, the large number of hurricane-beached fishing vessels that continue to litter the Pago Pago Bay to date. TCW’s claim therefore that the court’s setting of a minimum cash bid of $2 Million somehow translates as the court’s preliminary assessment of the worth of the senior lienholders’ claims, is fanciful and entirely erroneous.
Second, the Sale Order’s reference to TCW’s continuing liability to the senior lienholders’ was related to the contingency of a TCW purchase of the Kassandra Z, utilizing its credit bid facility. However, the Kassandra Z was purchased by an independent third party. As such, the Sale Order has no bearing on the funds now held within the court.
Finally, TCW’s continuing commitment to pay the senior lienholders’ claims is simply that, a commitment. In the event that the senior lienholders’ claims rise above $2,000,000, this court, if the motion is granted, would no longer have a res. to look to, and thus would no longer have in rem jurisdiction over an amount above $2,000,000. Rather, the court would merely have personal jurisdiction oyer TCW. The court is remiss to exchange $4,000,000 in cash for TCW’s word.1
III. Sanctions
The plaintiffs-in-intervention have moved for sanctions based on their contention that the motion to release funds is not "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." T.C.R.C.P. II.2 .Plaintiffs-in-intervention correctly point out that TCW cites no *110authority in their memoranda which allows for the release of funds. However, plaintiffs-in-intervention fail to cite any authority which explicitly disallows the partial release of funds once one of the claimants have partial judgment.3 Although, the circumstances in this case warrant a denial of TCW’s motion, we are not summarily dismissing the propriety of such a motion, under the proper circumstances. TCW’s motion, although not persuasive, has merit under equitable principles. As such Rule 11 sanctions are inappropriate.
CONCLUSION & ORDER
TCW’s motion for payment of in custodia legis costs is granted, and it motion to release a part of funds is denied. Plaintiffs-in-intervention’s motion for sanctions is denied.
It is so ordered.
The court might entertain a motion to release funds, if the funds release were replaced with a suitable bond, or a motion which suggests alternative investment measures. However, no such motions have been filed.
Plaintiffs-in-intervention base their motion for sanctions on a mischaracterization of TCW’s motion as one for summary judgment. We do not believe that TCW’s motion, if granted, would require this court to determine the merits of any of the underlying claims.
TCW has received a default judgment in the amount of $9,694,780.66, plus interest (entered on September 26, 1996). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486472/ | Order on Motions to Proceed In Forma Pauperis and for Relief from Judgment:
Defendant Michael Adams is serving concurrent 30 year prison terms at the Territorial Correctional Facility, following his conviction on two counts of second-degree murder. On January 28, 1997, defendant filed his pro se application 1) for leave to proceed in forma pauperis; and 2) for relief from judgment and sentence entered herein. Defendant essentially seeks to have his sentence amended to allow him-work release and he cites the Federal Rule of Civil Procedure 60(b)(6) — the federal counterpart of the High Court’s Trial Court Rules of Civil Procedure, Rule 60(b)(6). Since the defendant is asking relief for judgment and sentence in a criminal proceeding, Rule of Civil Procedure 60(b)(6) is inapplicable to the present case.
Notwithstanding, the judgment and sentence in question was entered over 10 years ago and is final; it is not open to further reconsideration by the sentencing court at this point in time.1 Any relief from sentence, in the way of commutation, lies exclusively within the. executive’s competence. See Section 9, Art. IV, Rev'd. Const, of Am. Samoa. . .
The motion to amend sentence to permit work release must be, and is hereby, denied.
It is so ordered.
Any appeal from the judgment and sentence of the trial court must be directed to the High Court’s Appellate Division and follow the dictates of A.S.C.A. § 46.2402(a). See American Samoa Government v. Falefatu, 20 A.S.R.2d 127 (App. Div. 1992). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486474/ | Opinion and Order:'
INTRODUCTION
On August 23,' 1996', defendant Byung Soo Ki,("Ki".).was sentenced to a six-month' term of imprisonment at the Territorial Correctional Facility, following-his comictión for assault. On-September 30,-:1996,..the Acting Commissioner, of-Public Safety approved daily ’work release for the defendant, who left custody for the first time on October ?, 1996, The Attorney General’s office subsequently learned of the release and filed with t.ie court oh-October 17, 1996, an expedited request for bearing of its motion to prohibit any further work release for the defendant. Grounds cited for the motion was that work release was granted in violation of the Department of Public Safety "Standard Operating Procedures Manual"' ("SOPM"), Section 7.1.L6, which required that "[a] 'person sentenced on a misdemeanor :may be eligible.or-..weekend-after serving a minimum óf three months.'-'. Affidavit of. [Plaintiff’s] .Counsel, at-2. We granted'the expedited-request and :set the matter for hearing, on October 21, 1996.- • j, - ;¡ «■ ■
At the hearing! defendant sought summary dismissal of-the motion, árguing that the = Court had-no jurisdiction.‘on :matters of .prison ’ administration,an- executive function." .We ,summarily rejected defeiidaht’s cohtention,- noting’our inherent jurisdiction to ensure that, the court’s'process was-properly enforced and not. negated ..through arbitrary executive action. ■ ‘Moreover, there'is .a. strong presumption-.in favor1 of judicial review Of-agency action which can be overcome' only by. cl.ear and convincing evidence that the-Forio intended' to cut off review, above ‘the agency* level. See National Ass'n of Postal Sup'rs v. U.S. Postal Service, 602 F.2d 420 (D.C. Cir. 1979); Jaimez-Revolla v.Bell, 598 F.2d 243 (D.C Cir. 1979) Defendant has not resentedq]ear apd convincing -evidence- that .the. Fono intended,.the Territorial,. Correctional, inability''to conduct prison affairs beyond the puryjew, of. tlje l^gh Cpurp . r.~
.-(After, .hearing, from, counsel,., we continued., .the matter and .ordered an ;;,eyidentiar,y¡iheai:mg,,.requiringl.pm,qhg1,pth1er,things,,,the .presence,'Of die Warden of'.the--d’err;itor,ial.,CqrreQtip.nahFacility áh(í..sub,séquently,"the ;,;presencepf-the4ctipg'CpmmissipneK0fPublic-Safety,‘i'
*120DISCUSSION
The Commissioner of Public Safety does not possess unbridled discretion to release willy nilly persons sentenced by the Court to a term of imprisonment at the Territorial Correctional Facility. A.S.C.A. § 46.2303(c), provides:
A sentence of imprisonment for a misdemeanor shall be for a definite term and the Court shall commit the defendant to the territorial correctional facility .... for the term of his sentence until released under procedures established elsewhere bv law.
The Fono has not passed any laws authorizing anyone to grant prisoners temporary releases under any circumstances.2
Assuming, without deciding, that "law" in A.S.C.A. § 46.2303(c) encompasses rules and regulations that the Governor or his Executive Agencies promulgate pursuant to Article IV, § 6 of the Revised Constitution of American Samoa, we hold that the SOPM rules with respect to early release programs must comport with the requirements of the Administrative Procedure Act. Unlike portions of the SOPM dealing exclusively with internal management, see Sala v. American Samoa Government, 21 A.S.R.2d 50, 58 (Tr. Div. 1992), SOPM sections dealing with work release are "rules" as the courts have construed the term: they are generally binding on the affected public, they provide specific standards to regulate future conduct, and they make a substantive impact on the rights and duties of persons subject to their limitations. See United States v. Articles of Drug, 634 F. Supp. 435, 457 (N.D. Ill. 1985). These SOPM rules must, therefore, be adopted according to the APA. See also Ramer v. Saxbe, 522 F.2d 695, 697 (D.C. Cir. 1975) (recognizing that the Bureau of Prisons is an "agency" within the *121definition of the APA, and that its rulemaking is subject to the APA’s applicable requirements).3
Rulemaking under the APA requires several steps, including giving meaningful advance notice of the terms or substance of the proposed action; providing interested persons reasonable opportunity to submit "data, views, and arguments, orally or in writing;” filing the rule with the Secretary of American Samoa, with the Clerk of the House of Representatives, and with the Secretary of the Senate; and making the rule available for public inspection. A.S.C.A. §§ 4.1004, 4.1005,4.1008, 4.1010, 4.1020(a). In the instant case, the Governor and the Commissioner of Public Safety failed to follow these APA procedures and failed to give the SOPM rules and regulations dealing with prisoner release programs the force and effect of law.
Finally, even if SOPM rules constitute "law" prescribing the procedures for prisoner release, the Acting Commissioner of Public Safety's decision in the instant case to release a prisoner who had not served a minimum of three months at the Territorial Correctional Facility, contrary to the SOPM's own Section 7.1.1.6, was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See Pullman-Standard v. U.S., 529 F. Supp. 283 (D. Ill. 1981) (emphasis added).
CONCLUSION AND ORDER
The Acting Commissioner of Public Safety authorized work release for Defendant in violation of A.S.C.A. § 46.2303(c) because the release was *122not according to procedures prescribed by law. Therefore, Defendant is hereby ordered to remain in custody at the Territorial Correctional Facility for the duration of his sentence, unless and until there is a change in the law governing prisoner release.
The Clerk of Courts shall- cause a copy of this Opinion and Order to be served not only upon the parties but also upon the Commissioner of Public Safety and the Warden of the Territorial Correctional Facilities.. •
It is so ordered.
Oti'tHe d'áy-pfi6‘r*fó'ifh¿ evi'dehtiaryíheáring^therActingí Commissioner informed the prosecuting attorney’ that he-bad decided-. torevqke-.the defendant’s work release. The prosecuting attorney then withdrew his *120motion on the ground of mootness; however, the court on its own motion extended the scope of the hearing to review the Commissioner of Public of Safety's traditionally asserted release powers.
The United States Congress has enacted a statute requiring persons sentenced to a term of imprisonment to remain in the custody of the Bureau of Prisons unless released according to specific statutory guidelines, see 18 U.S.C.S. § 3621; however, unlike the Fono, Congress also expressly provided the conditions for releasing prisoners prior to the expiration of their sentence. See 18 U.S.C.S. § 3621-22, 3624 (Lawyer’s Co-operative Publishing, 1990 & 1994 Supp.).
Rule making is an essential component of the administrative process and is often the preferred method for developing agency policies. TransPacific Freight Conference of Japan/Korea v. Federal Maritime Commission, 650 F.2d 1235, 1244-45 (D.C. Cir. 1980), cert. denied, Sea-Land Service, Inc. v. Federal Maritime Commission, 451 U.S. 984 (1980). However, rule making must follow certain procedures if the rules are to become effective, procedures that “minimize the dangers of arbitrary and irrational decision-making.” See State of S.C. ex rel Patrick v. Block, 558 F. Supp. 1004, 1015 (D.S.C. 1983). “[It] is only when decisions are made in an atmosphere of public understanding, awareness, and participation that resulting rules and regulations reflect a spirit which is consistent with our form of government and thus entitled to the respect of the courts.” Id. (citing New Jersey v. United States Envtl. Protection Agency, 626 F. 2d 1038, 1045 (D.C. Cir. 1980) and Weyerhauser Co. v. Costle, 590 F.2d 1011, 1028-29 (D.C. Cir. 1978)).
The Secretary of American Samoa is the Lieutenant Governor. Am Samoa Rev. Const., art. IV, § 3. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486475/ | Opinion and Order:
On February 2, 1996, plaintiffs Congregational Church of Jesus in Samoa ("CCJS") and Amerika Samoa Bank ("ASB") filed this action against defendant American Samoa Government ("ASG"), to have the parties' rights and obligations under a lease- agreement and related documents judicially declared and to prevent the ASG from evicting the CCJS from the leased premises pendente lite.
The court issued a temporary restraining order forestalling the ASG from immediately evicting the CCJS and stopping the CCJS's use of the leased premises. On February 14 and 15, 1996, the court regularly heard the order to show cause on issuing a‘preliminary injunction to the same effect pendente lite. All counsel were present.
During the hearing, the court advanced and consolidated the trial on the merits with the hearing on the prelimin.ry injunction application,- in accordance with T.C.R.C.P. 65(a). At the conclusion of the hearing, the court imposed a preliminary injunction, incorporating the terms of the temporary restraining order. On February 26, 1996, the ASG answered the complaint and counterclaimed for alleged Violations of the American Samoa Coastal Management Act, for summary eviction, and for unpaid . liabilities under the lease. The court conducted further trial proceedings . on May J'3 and 14, 1996, with all counsel present.
FINDINGS OF FACT
The story of the present controversy truly began in 1986 and puts at issue some 0.83 acres of land, within or immediately adjacent to Pago Pago Park, in Pago Pago, American Samoa, and the building and fixtures on the land. Those premises, which the ASG owned in 1986, were commonly known as the "bowling alley" and had housed a privately-*126operated bowling alley during two earlier periods. In 1986, the ASG was searching for a third private operator.
On October 24, 1986, the ASG leased the land to Coral Corporation ("Coral"), an American Samoa corporation. The ASG also sold the building and fixtures to Coral for $75,000, $50,000 paid in cash and $25,000 payable in monthly installments, evidenced by a promissory note.
Coral was to operate indoor recreational facilities on the premises, featuring bowling, eating, and related activities. Coral could, with the ASG’s prior written consent, use the premises for other commercial or business purposes, not inconsistent with the ASG’s policies and plans then in effect for Pago Pago Park.
The initial lease term was nine years, from October 20, 1986, to October 19, 1995. Coral was given options to renew the lease for four successive nine-year terms, by exercising the option in writing at least three months prior to the end of the first and each succeeding term.
Coral was allowed rent-free use of the land for the first six months. It was then required to pay monthly, beginning in April 1987, $900 in rent for the land, along with $245 on the amortized $25,000 of the purchase price of the building and fixtures. The rent was subject to periodic adjustments, pursuant to A.S.C.A. § 37.2025, fixed by renegotiation or arbitration. Coral was also committed to, and did, invest a minimum of $575,000 in the premises during the first lease year to carry on the authorized purposes of the lease.
Paragraph E of clause 15 of the lease permitted Coral to assign the lease or sublet the premises, with the ASG's prior written consent, not unreasonably withheld; provided that Coral remained primarily liable for performance of the lessee's lease obligations and the premises continued to be used only for the purposes permitted by the lease, unless the ASG gave prior written consent for other uses.
Coral or any successor was authorized under paragraph O of clause 15 of the lease, as amended on December 5, 1988, to use the leasehold, with the ASG's prior written consent, not unreasonably withheld, to secure loans by commercial financial institutions for purposes related to the lease purposes; provided that, in the event of a default of the loan, the *127security agreement must require the lending institution to assume all of the lessee’s lease duties, including the rental payments.1
On June 29, 1987, the ASG consented to Coral’s mortgage of the leasehold to the ASB. The consent gave the ASB the right to enforce the mortgage, including upon foreclosure authority, without the ASG’s further consent, to sublet or assign the leasehold, so long as the assignee assumed all of the lessee’s lease obligations. The ASG’s consent to mortgage remained unchanged when paragraph O was amended.
Contemporaneously with the paragraph O amendment, on December 5, 1988, the ASB loaned Coral $660,000. The loan proceeds were used primarily to acquire furniture, fixtures and equipment for the recreational facilities on the premises, with those items as the collateral for the loan. The ASB made another smaller loan to Coral a year later.
The bowling alley operation failed once again, and on November 15, 1990, the ASB commenced action against Coral, CA No. 101-90,2 to collect on the loan promissory notes, foreclose on the loan security, and appoint a receiver. The court appointed the ASB as the receiver on December 6, 1990. The ASB carried on as the receiver until it was discharged in 1993 after the CCJS entered the picture in 1992.
On July 5, 1991, Coral notified the ASG’s Real Property Management Board in writing of its intentions to suspend operations, except for the lounge and restaurant, and sell the existing bowling furniture, fixtures and equipment, and requested the board’s approval to rent the bowling alley space for storage or warehouse purposes while searching for an experienced U.S. joint venturer. The ASG’s response, if any, is not in evidence. On June 12, 1992, the ASB wrote to the Governor, confirming the receivership and offering the ASG first opportunity before proceeding with a planned public auction of the furniture, fixtures and equipment. Again, the ASG’s response, if any, is not in evidence. Jim Brittle, the key person in the Coral program, personally informed the Governor’s Chief of Staff of developments during the 1990-1992 period.
On August 18, 1992, the CCJS purchased the building and fixtures from Coral, and Coral assigned leasehold to the CCJS. The ASB also loaned *128the CCJS $675,000 to finance the acquisition, secured by the leasehold and the building and fixtures.3 On August 28, 1992, in CA No. 101-92, the court approved the transactions, and the ASB paid the ASG $27,150 to bring the lease rent and amortization payments to the ASG current.4
From August 18, 1992 to the present time, the CCJS used the premises to conduct fund-raising bingo games in the building, renamed "Tautua Community Hall" ("hall"), and rented the hall for the same purpose, regularly to other churches but. also to the ASG (for a proposed sports. stadium) and occasionally for other meetings.5 The CCJS also subleased restaurant and lounge space. The CCJS held a "grand opening" in September 1992, which included bingo in the program. The Governor attended this event.
During this period, the CCJS made the lease rent and amortization payments to the ASG through the ASB. The ASB did not deliver the payment checks to the ASG every month but did deliver them at frequent intervals. Apparently the CCJS and ASB thought that the payments were totally current. However, as of October 19, 1995, when the initial term of the lease and the amortization payment period ended, $10,800 was still outstanding on the total of the rent and amortization payments due for that period. The amount due the ASG on this combined amount was reduced to $2,550 as of December 31, 1995. The CCJS and ASB acknowledged and are ready to pay this deficit.
The CCJS is current in paying the note to the ASB for the $675,000 loan. The outstanding balance on this long-term note is approximately $600,000.
*129On August 19, 1994, the CCJS applied for land use and building permits to construct extensions on both sides of the hall. The estimated project completion date was September 30, 1994. However, the ASG’s Development Planning Office ("DPO") did not forward the application to the Governor until February 14, 1995. The Governor signed the declaration of ASG-owned land on February 21, 1995, and returned the application to the DPO on February 22. Then, on March 15, 1995, the DPO advised the CCJS to apply separately to the ASG’s Zoning Board for a variance.
The CCJS received clear, written direction from the ASG not to begin construction until both the land use and building permits were issued. The CCJS also understood that application for those permits would be processed under the ASG’s project notification and review system ("PNRS"), which is administered by a board comprised of representatives of the ASG agencies concerned with land use development, and issued only when the application review is completed with all necessary agency approvals. Nevertheless, the CCJS ignored this admonition and proceeded to construct the extensions.
The ASG caught up with this violation and discovered other violations in early 1995, and then issued formal stop orders on the partially but significantly completed work on February 16 and 22, 1995. However, the CCJS continued the construction, at least for a time. On February 28 and March 10, 1995, the ASG’s site inspectors recorded noncompliarice with a 50-foot stream setback and additional parking space requirements for commercial developments, and unauthorized drainage into the adjacent stream through a pipe extending from the hall, in addition to the lack of permits, and recommended denial of the application for the permits and removal of the extensions.
On March 23, 1995, with the PNRS board’s prior approval, the board’s chairman, citing the lack of permits, stream setback, and stop order violations, and citing the civil penalties provision of the American Samoa Coastal Management Act of 1990 ("ASCMA"), gave the CCJS 60 days to either remove the extensions and certain solid waste (largely scrap metal) behind the hall or pay a $30,000 fine and dispose of this waste, and 15 days to notify the DPO of its decision.
Apparently, representatives of the CCJS and the DPO had several discussions about the situation after the CCJS received the March 23 letter. However, on May 23, 1995, the CCJS informed the DPO that it opted for the fine alternative, but requested abeyance pending the Governor’s follow-up decision on the matter when the Governor returned .from an off-island journey.
*130The deadline for the CCJS’s exercise of the option to renew for the second nine-year term of the lease was July 19, 1995. The CCJS let this date pass without exercising the option. No other significant developments occurred, at least in evidence, imtil September 1995. The ASG’s Parks and Recreation Commission ("PRC") became active in the matter in that month.
On September 12, 1995, CCJS and ASB representatives were notified by telephone of a PRC meeting to take place the following day. The CCJS and ASB representatives conferred about the meeting and also the expiration date of the initial term of the lease. They prepared a letter addressed to the ASG’s Director of Administrative Services to exercise the option to renew the lease for the next nine-year term.
The CCJS and ASB representatives attended the PRC meeting on September 13, 1995. The PRC discussed but did not make any decisions on the CCJS situation. After the PRC meeting, the CCJS and ASB representátives met with the Lieutenant Governor,' who was then the Acting Governor. After they explained the current lease situation, the Acting Governor signed the approval line on the letter exercising the option to renew.
The PRC next met on the matter on October 12, 1995'. This time the CCJS and the ASB received no notice and did not attend the meeting, but again the PRC only reviewed the CCJS situation and did not take any final action. However, the PRC took a different tack on November 1, 1995, with a reconstituted membership. This time the PRC voted to notify the CCJS that the lease would not be renewed. The CCJS and ASB received no notice of the meeting and were not in attendance.
On November 7, 1995, the PRC forwarded this recommendation to the Governor, ánd the Governor in turn notified the CCJS. Both documents gave as reasons the untimely exercise of the option to renew-, disallowed use of the premises, accumulated solid waste and, in connection with the hall extensions, the lack of land use and building permits, disregard of the stop orders and violation of the mandated stream setback. The CCJS was told to vacate the premises by January 1, 1996. The Governor also advised the CCJS that the ASG opted not to purchase the building, equipment and other personal property as permitted under clause 13 of the lease.
. The CCJS and ASB asked the Governor to reconsider this decision, and on November 28, 1995, the Governor directed the PRC to meet on the ' issue, saying he would support whatever decision the PRC reached. On November 29, 1995, the PRC re-examined the matter- and renewed the *131decision to terminate the lease. Once again the CCJS and ASB were not notified and did not attend this meeting. They learned of this development when the Governor wrote to the CCJS on December 20, 1995 and repeated the ASG’s position taken on November 7, 1995, except to delay the termination date to January 15, 1996.
The ASB, on January 11, 1996, and the CCJS, on January 16, 1996, reiterated their appeals to the Governor. , The Attorney General responded. On January 23, 1996, he ordered both entities to surrender the premises and remove any personal property within 10 days of receipt of this notice on the grounds that the CCJS and ASB were trespassers. The CCJS and ASB filed this action on February 2, 1996.
DISCUSSION
I. Claims by the CCJS and ASB.
A. Standing.
First and foremost, this court must address the issue of the CCJS’s and ASB’s standing to claim redress. The ASG argues that the CCJS and ASB have no standing to assert any rights under the lease agreement ("Coral lease") and related documents because the assignment of the Coral lease from Coral to the CCJS was invalid.
The ASG correctly points out that, under paragraph E of clause 15 of the Coral lease, the ASG’s prior written consent is an essential prerequisite to a valid lease assignment by the lessee. However, the ASG incorrectly claims that the Coral lease was assigned to the CCJS without such consent. ■ ,
1. Actual consent.
On June 29, 1987, the ASG consented in writing to Coral’s mortgage of the leasehold to the ASB to secure loans by the ASB to Coral. The ASG also consented to the following arrangement in that document: that “upon foreclosure thereof the Mortgagee [the ASB] may without further consent of the Lessor [the ASG] or the Lessee . . . sell and assign the. leasehold estate by assignment.'...” See Trial Exh. D (emphasis added).
The ASG’s consent was not withdrawn, and was therefore still effective in 1990, when the ASB first chose to judicially foreclose the mortgage, with an interim receivership to keep the premises operational, and on August 18, 1992, when Coral assigned the leasehold to the CCJS. The ASG had actual knowledge that the ASB was pursuing these remedies in accordance with the 1987 consent to mortgage, and the ASG failed to *132object.6 Therefore, the Coral lease was assigned to the CCJS with the ASG’s actual consent, given on June 29, 1987.
2. Waiver.
The ASG waived its right to object to the lease assignment to the CCJS when it accepted the CCJS’s performance under the lease terms, even if Coral acted without the ASG's affirmative consent to the assignment. See Pacific Gas & Electric Co. v. Universal Electric & Gas Co., 271 P 377 (Cal. App. Ct. 1928) (citing Staples v. Somerville, 57 N.E. 380 (Mass. 1900) and Kinser v. McMurray, 181 N.W. 691 (Iowa 1921)). The ASG recognized and dealt with the CCJS as an assignee when it accepted rent payments from the CCJS under the terms of the Coral lease. The ASG is therefore estopped from claiming that the CCJS did not assume the rights and obligations under the Coral lease through a valid assignment.
Thus, alternative grounds exist for finding a valid assignment of the Coral lease to the CCJS: (a) because the ASG operatively consented to the assignment of the Coral lease to the CCJS by the 1987 consent to mortgage, or (b) because the ASG waived its right to object to the assignment when it accepted the CCJS's performance of leasehold obligations. We therefore hold that the CCJS has standing to sue as the assignee of the lessee’s interest in the Coral leasé, and the ASB has standing as the CCJS's leasehold mortgagee.
B. Declaratory relief.
Next, we address the CCJS's and ASB's request for declaratory relief as to the rights and duties of the parties to the Coral lease.
1. The Coral lease was never effective.
The Legislature of American Samoa must by statute be given the opportunity to disapprove any lease of the ASG's láhd for a period of 10 years or longer. A.S.C.A. § 37.2030; see Tuika Tuika v. Governor of *133American Samoa, 4 A.S.R.2d 85 (Trial Div. 1987). The Legislature has 30 days after it receives a submitted lease to adopt a disapproval resolution under § 37.2030. Any lease subject to legislative review becomes effective only after- this 30-day period passes without negative action. The court in Tuika stated pointedly: “The Court further declares that all leases of government land in excess of ten years signed by the governor after the filing date of this action on June 25, 1986 will not be effective unless they are submitted to the Fono for review.” Tuika, CA 74-86 at 1 (Trial Div. Sept. 9, 1986)(order granting declaratory and injunctive relief).
Legislative review provides another and broader perspective to guard against improvident long-term public land use. The statute provides the Legislature with a check on the Governor's executive power, by giving the Legislature the opportunity to review and disapprove any lease that will give the lessee an interest in government land for more than 10 years. Thus, the statute rationally and reasonably serves a legitimate public policy interest.
The Coral lease granted the lessee, Coral, or its assigns, the unilateral power to “renew” the lease for up to four successive terms of nine years each for a total of 45 years. The law traditionally distinguishes lease “extensions," which continue an existing lease, from lease “renewals,” which create an entirely new lease. See Haleck v. Lee, 4 A.S.R. 519, 540-41, 554-55 (Trial Div. 1964). For the purposes of A.S.C.A. § 37.2030, however, this formal distinction is irrelevant when, as in this case, a lessee has unilateral power to continue the leasehold. Unilateral options can give a lessee complete and exclusive control over the use of land, whether they are "extensions" or "renewals," for prolonged periods. Section 37.2030 is designed to prevent the ASG Executive Branch from entering into leases that tie up government land for 10 years or more without the Legislature's independent evaluation. This court cannot overlook a legislated directive and grant the ASG's Executive Branch carte blanche to tie up public land and avoid legislative review for an extensive period, simply by entering into leases that give lessees unilateral options to “renew” for a series of terms of less than 10 years each — the method employed in the Coral lease. We will not permit application of the technical legal distinction between extensions and renewals of leases to subvert lawful public policy enacted by the Legislature. See Haleck v. Governor, 4 A.S.R. 968, 973 (App. Div. 1971).
The Coral lease, entered into after June 25, 1986, and potentially binding for 45 years, has never been subjected to legislative review. Therefore, the Coral lease has never become “effective," in accordance with the mandate of A.S.C.A. § 37.2030.
*1342. Effect of an invalid lease.
The Restatement (Second) of Property § 2.3, comment d.,7 states:
Where, in addition to entry into possession under an invalid lease, rent is paid and accepted under the lease, a periodic tenancy is created. By the payment and acceptance of such rent, the parties have given further indication of their intention to be bound by the invalid lease, and the periodic tenancy provides a measure of security of their expectations.
Coral and the CCJS, its assignee, took possession of the land under an invalid lease, yet the ASG accepted payment of monthly rent from both Coral and the CCJS under the terms of the Coral lease. The parties thus created and maintained an at will periodic tenancy with all the terms of the Coral lease except duration.8 Id. § 2.3(2). This tenancy was terminable at the will of either the lessor or the lessee with one month’s notice. Id. §§ 1.5 & 2.3, comment d.
On November 7, 1995, the ASG notified the CCJS that the ASG decided to terminate the tenancy with the CCJS and directed the CCJS to vacate the premises by January 1, 1996, which was later postponed to January 15, 1996. The ASG thus gave at least one month’s notice, as is required to terminate a periodic tenancy involving monthly rental payments.
Therefore, we conclude that the CCJS no longer has any rights to occupy the land beyond those of any holdover tenant at sufferance, and that we *135cannot grant the CCJS’s and ASB’s request to enjoin the ASG from attempting to evict the CCJS from the property through lawful means.
3. Due process.
The CCJS and ASB also submit that the decision of the Governor and the PRC to end the Coral lease deprived them of both procedural and substantive due process of law.
a. Right to a hearing.
A claim of denial of due process, either procedural or substantive, cannot be sustained, absent proof of a deprivation of a ‘liberty’ or ‘property’ interest within the meaning of the Due Process Clause of Article I, § 2 of the Revised Constitution of American Samoa, see Ferstle v. American Samoa Govt., 7 A.S.R.2d 26, 49 (Trial Div. 1988), or of the Fifth or Fourteenth Amendments of the U.S. Constitution. Webster v. Redmond, 599 F.2d 793, 796 (7th Cir. 1979), cert. denied, 444 U.S. 1039 (1979); Mathews v. Eldridge, 424 U.S. 319, 332 (1976); Dash, Inc. v. Alcoholic Beverage Control Appeals Bd., 683 F.2d 1229 (9th Cir. 1982); Hunter v. Florida Parole & Probation Commission, 674 F.2d 847 (11th Cir. 1982).
Not every interest is protected by procedural due process guarantees. See Board of Regents v. Roth, 408 U.S. 564, 570 (1972) (“the range of interests protected by procedural due process is not infinite”). Courts will not grant a party procedural due process rights, without examining the nature of the interest at stake to determine whether the party has a constitutionally protected claim of entitlement to the interest or has merely a unilateral expectation of the interest. See id. at 571, 577 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The claim must be derived from a statute or legal rule or through a mutually explicit understanding to be an enforceable right or entitlement. Riverview Investments, Inc. v. Ottawa Community Imp. Corp., 769 F.2d 324, 327 (6th Cir. 1985) (citing Leis v. Flynt, 439 U.S. 438, 442 (1979); see also Roth, 408 U.S. at 576-7 (noting that the legitimacy of an expectation to specific government benefits can be grounded in statutory or administrative standards).
Though the CCJS and ASB believed that the Governor and PRC were depriving them of a leasehold and related entitlements without affording them an opportunity to be heard, the CCJS and ASB were in legal reality requesting that the Governor either continue an at-will periodic tenancy or establish a new lawful lease. Though courts have eschewed rigid definitions of “liberty” and “property” interests, we believe that an interest in continuing an at-will periodic tenancy is not a *136constitutionally protected “liberty” or .“property” interest. An at-will tenant may have a subjective need or desire for the relationship to continue but not a legitimate expectation for it to continue. Roth, 408 U.S. at 577; Riverview Investments, Inc. v. Ottawa Community Imp. Corp., 769 F.2d at 327. No statute or administrative rule gives an at-will tenant an expectation that an at-will periodic tenancy will continue indefinitely and will be terminated only, “for cause.”
Additionally, we believe that one’s interest in securing a future leasehold interest is not a constitutionally protected “liberty” or “property” interest. In Board of Regents v. Roth, the United States Supreme Court rejected the proposition that a university deprived a teacher of procedural due process when it failed to provide the teacher with a hearing after deciding not to rehire him following the expiration of his one-ye.' r contract. 408 U.S. at 575. Similarly, we think it stretches the concept of “liberty” and “property” too far to suggest that a person is deprived of liberty or property because an at-will periodic tenancy is not affirmatively prolonged. See Ferry v. Udall, 336 F.2d 706, 714 (9th Cir. 1964) (“there is no constitutional requirement to a right to a hearing where only a potential privilege to purchase United States land is involved”).9
The Governor may voluntarily choose to grant audiences to anyone who seeks to maintain an at-will periodic tenancy or who proposes to lease government property. However, we hold that due process does not mandate that the Governor must conduct formal administrative hearings whenever he exercises his discretion to terminate an at-will periodic tenancy or acts on a proposal to lease government land.
b. The PRC’s role.
Although we find that due process did not require any hearing on this matter because the CCJS’s interests were not constitutionally protected “property” interests, we want to discuss the nature of the PRC’s *137administrative proceedings. The CCJS and ASB aver that the PRC is an agency for purposes of the Administrative Procedures Act ("APA"), A.S.C.A. §§ 4.1001-4.1044, and conducted hearings concerning the Coral lease, which evolved into a contested case under the APA and thus required unafforded due process rights of reasonable notice and an opportunity to be heard. The ASG views the PRC as a non-APA agency providing advisory decisions and without authority to process a contested case.
We agree with the ASG’s position. Unquestionably, the PRC is a statutory agency of the ASG's Executive Branch. A.S.C.A. § 18.0101(a). An APA agency, however, "means each . . . commission . . . authorized by law to make rules or to determine contested cases." A.S.C.A. § 4.1001(a).10 A.S.C.A. § 18.0102, which outlines the PRC’s powers and duties, does not authorize the PRC to make rules or to adjudicate disputes. The statute merely empowers the PRC to "develop policies and programs,” to “review and make recommendations to the Governor,” and to “perform other assignments as the Governor may make.” A.S.C.A. § 18.0102. The PRC’s meeting minutes show that the PRC regularly makes recommendations to the Governor on private uses, by lease or license, of park lands. But offering recommendations is neither rule making nor adjudication. The PRC's action did not “determine” the CCJS's or ASB's legal rights, duties, or privileges. A.S.C.A. § 4.1001.
Therefore, since the PRC proceedings did not constitute resolution of a contested case under the APA, we also hold the CCJS and ASB had no right to notice of, or meaningful participation in, the PRC meetings, as a matter of procedural due process.
c. Substantive due process claims.
We also conclude that the Governor's decision to terminate an at-will tenancy or to accept or decline a proposal for a new lease is not vulnerable to substantive due process attacks. We emphasize that because a periodic tenancy is not a constitutionally protected property interest, substantive due process was not violated.
*138However, we wish to address the CCJS’s and ASB’s contention that the ASG’s actions were an abuse of discretion. This court ensures that the ASG's Executive Branch respects a party’s substantive due process rights by determining whether decisions of the Governor and his executive agencies were arbitrary and capricious, pretextual, or without a rational basis. Anthony v. Franklin County, 799 F.2d 681, 684 (11th Cir. 1986); Barnett v. Housing Authority of the City of Atlanta, 707 F.2d 1571, 1577 (11th Cir. 1983).
The Governor has “general supervision and control” of the ASG's executive functions, A.S.C.A. § 4.0111(b), including the lease of government land. We believe that a decision regarding the lease of government land is a matter solely within the Governor’s discretion. See Ferry v. Udall, 336 F.2d at 712 (stating that a “decision of whether or not it would be in keeping with sound policy to sell a particular parcel of land at a certain offered price involves the exercise of informed discretion.”).
The Governor was fully aware of the CCJS's and ASB's desire to continue the Coral lease, consulted with the PRC, and decided to terminate the Coral lease. He gave as reasons the untimely exercise of the option to renew for a second nine-year term, disallowed use of the premises, accumulated solid waste, disregard of land use and building permitting system, and violation of the stream setback. We cannot say on the evidence that the Governor’s decision was arbitrary, capricious, or an abuse of his discretion. Therefore, we also conclude that his decision did not deprive the CCJS and ASB of substantive due process from this perspective.
Since we hold that the CCJS's and ASB's claims are without merit,11 we now turn to the ASG's counterclaims.
II. The ASG’s counterclaims.
A. American Samoa Coastal Management Act and Administrative Rules.
The ASG alleges that the CCJS violated the laws enacted and administrative rules promulgated in support of the American Samoa *139Coastal Management Program and the accompanying land use and building permit system.
1. The constitutionality of the American Samoa Coastal Management Act of 1990.
First, as a defense, the CCJS and ASB challenge the constitutionality of the American Samoa Coastal Management Act of 1990 ("ASCMA"). A.S.C.A. §§ 24.0501-24.0510. This issue is particularly important, because the ASCMA provides the legal foundation for land use permits, A.S.C.A. § 24.0505, and the implementing administrative rules ("ASCMP rules") for the land use permit system. A.S.C.A. § 24.0506.
The CCJS and ASB argue that the ASCMA was enacted in violation of the policy protective legislation provision set forth in Article I, § 3 the Bill of Rights, of the American Samoa Revised Constitution of 1967. This section reads:
Section 3. Policy protective legislation. It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons. No change in the law respecting the alienation or transfer of land or any interest therein, shall be effective unless the same be approved by two successive legislatures by a two-thirds vote of the entire membership of each house and by the Governor (emphasis added).12
The Legislature enacted ASCMA only once in P.L. 21-35. Thus, the issue centers on the meaning of the phrase "alienation or transfer of land or any interest therein." The CCJS and ASB interpret this phrase to apply to legislation respecting interests in land of any kind and nature. The ASG applies the phrase to legislation respecting the alienation or transfer of any title interests, legal or equitable, in land.
*140We agree with the ASG’s position on this issue. The policy set forth in § 3 is straightforward and clear. The protection afforded the Samoan people is prevention of the loss of their lands and way of life and language. Land use regulations impact activities on land and the manner in which an owner or possessor deals with land, but they do not divest title interests. Land use regulations also do not inherently impair cultural patterns. We do not find any ASCMA provisions that require double enactment, and therefore hold that the act is valid as enacted.
2. The validity of the American Samoa Coastal Management Program rules.
Second, the CCJS and ASB question the validity of the ASCMP rules, adopted by the Director of the Development Planning Office ("DDPO") pursuant to A.S.C.A. § 24.0506(a). In general, rule making is an essential component of the administrative process and is often the preferred procedure for the evolution of agency policies. Trans-Pacific Freight Conference of Japan/Korea v. Federal Maritime Commission, 650 F.2d 1235, 1244-45 (D.C. Cir. 1980), cert. denied, Sea-Land Service, Inc. v. Federal Maritime Commission, 451 U.S. 984 (1980). Administrative rules serve the important function of implementing the legislature's will without engaging in the time-consuming and often unfair process of case-by-case adjudication. See Ernst & Ernst v. Hockfelder, 425 U.S. 185, 213 (1976); Mason v. National Flood Insurers Ass’n, 431 F. Supp. 1021, 1023 (D. Okl. 1977) (stating that “a rule or regulation must be in furtherance of intention of the legislature as evidenced by the acts of the legislative body”). If properly promulgated, administrative rules have the force and effect of law and the presumption of validity, and much deference is due the agency charged with the administration of the statute. See Lugo v. Simon, 426 F. Supp. 28, 34 (D. Ohio 1976).
The CCJS and ASB challenge the ASCMP rules on the grounds of noncompliance with the rule-making process set forth in the APA.13 The ASG resists that challenge on the grounds that the CCJS failed to demonstrate prejudice by any rule-making deficiency, and that the DDPO substantially complied with the rule-making procedures, the standard required by A.S.C.A. §4.1009(a).
*141Rule making under the APA involves several procedural steps. First, the ASG agency exercising rule-making authority must give at least 20 days notice of the adoption, amendment, or repeal of any non-emergency rule. A.S.C.A. §§ 4.1004 and 4.1010. The notice must include a statement of either the terms or substance of the proposed action or a description of the subjects and issues involved, and the time, place and manner in which persons may present their views on the matter. A.S.C.A. § 4.1004. The notice must be mailed to all persons who have requested advance notice of the agency's rule making, and must be at least publicized in all news or broadcasting media operated by the ASG. Id.
Next, the agency must give all interested persons reasonable opportunity to submit "data, views, and arguments, orally or in writing," either at a public he iring or by other suitable means, and consider those submissions before the rule is adopted, amended, or repealed. A.S.C.A. § 4.1005. These provisions are intended to ensure that rule making by administrative agencies is infused with openness, explanation, and participatory democracy which is essential to minimize the dangers of arbitrary and irrational decision making. See State of S.C. ex rel Patrick v. Block, 558 F. Supp. 1004, 1015 (D.S.C. 1983). A public hearing was required for the ASCMP rules. A.S.C.A. § 24.0506(a).
Third, the agency must file the rule with the Secretary of American Samoa, and with the Clerk of the House of Representatives and the Secretary of the Senate of the Legislature. A.S.C.A. § 4.1008. The Secretary of American Samoa is the Lieutenant Governor. Am. Samoa Rev. Const., art. IV, § 3. The rule becomes effective 20 days after the filing is complete, or later if required by statute or the rule. A.S.C.A. § 4.1009(c)(1).
Lastly, the agency must make the rule available for public inspection. A.S.C.A. § 4.1020(a). No rub is valid or effective until this public inspection requirement is met, except as to any person who has actual knowledge of the rule. A.S.C.A. § 4.1009(b).
The printed ASCMP rule is prefaced by the DDPO's letter of-November 22, 1994, informing the Governor of the rule's adoption. The DDPO states in this letter that before adoption, the proposed rule was noticed, the subject of extensive commentary by public hearing and other means, and reviewed. Even though we do not have the specific documentary evidence before us, we accept the DDPO's letter and printed rule as demonstrating substantial compliance with all applicable rule-making procedures, including a public hearing and public inspection, except the requisite filing.
*142The DDPO has not filed the ASCMP rules with the Secretary of American Samoa and the Legislature. This omission is significant. The filing enables the Secretary to fulfill his responsibilities, under A.S.C.A. § 4.1020(b), to keep a permanent register of the administrative rules adopted by the ASG's various agencies and, under A.S.C.A. § 4.1003, to publish regularly the rules. By carrying out these functions, the Secretary fully informs the ASG's other agencies and the public at large of that which the law requires of them.14 Furthermore, filing gives the Legislature an opportunity tp learn. how the Executive Branch is administering legislative enactments, and gives the Legislature a basis for recommending appropriate changes in the rules. A.S.C.A. § 4.1009(d). Thus, because the ASCMP rules were not filed with the Secretary of American Samoa and the Legislature, the ASCMP rules were not adopted in substantial compliance with the statutory mandates for rule making.
*143However, despite procedural deficiencies, administrative rules are valid and enforceable against persons who have actual knowledge of the rules. A.S.C.A. § 1009(b). The CCJS applied for land use and building permits for construction of the hall extensions, under the ASCMA and ASCMP rules, and certainly had actual knowledge of the ASCMP rules.
Thus, the ASCMP rules are valid and effective as to the CCJS.15
3. Construction without permits.
The ASCMA requires a land use permit for "all uses, developments, or activities which impact the coastal zone.” A.S.C.A. § 24.0505(a). The coastal zone includes all private and public land in American Samoa, except lands solely under federal control. See A.S.C.A. § 24.05003(a). Thus, the CCJS needed to obtain a land use permit for construction of the hall extensions before commencing any work on. the project, in accordance with the land use permit system implemented by the ASCMP rules. See ASCMP rules § 26.0207(a) and related definitions in ASCMP rules § 26.0204. A building permit was also a prerequisite to actual construction. See 1 Uniform Building Code, Short Form § 301(a) (1964), adopted by A.S.C.A. § 26.1001.16
The CCJS applied for both land use and building permits to construct the hall extensions in August 1994. Although the applicant clearly has the responsibility to obtain necessary permits and approvals, see ASCMP *144rules § 26.0207(b), apparently the CCJS's application loitered in the DPO until it was forwarded for the Governor's necessary approval for construction on the ASG's land in February 1995. We think that the CCJS's frustration over the bureaucratic process, coupled with the CCJS’s desire to meet the estimated completion date of September 30, 1994, at least partially explains the significantly completed construction of the hall extensions by February 1995. In any event, however, the CCJS violated the law by building without the requisite permits.17
When construction begins without the land use and building permits, the project may be stopped. ASCMP rules § 26.0218; Uniform Building Code § 106.1 (1964).18 The CCJS was served with proper stop orders on February 16 and 22, 1995, but continued with the hall extension project. Unquestic nably, the CCJS violated these lawful orders as well.
Because the hall extension construction did not comply with the ASCMP rules, the CCJS is responsible for removing the extension and properly disposing of all resulting solid waste on the land.
4. Administrative fines.
The ASCMA provides for civil fines imposed by this court for violations the ASCMA or ASCMP rules not to exceed $5,000 per day against individuals and $10,000 per day against corporations. A.S.C.A. § 24.0505(a) & (b). On March 23, 1995, the chairman of the PNRS board purportedly levied a $30,000 fine on the CCJS as part of one of two options given for the CCJS to take in response to three cited violations of building without a land use permit, building within the 50-foot stream setback required by the ASCMP rules § 26.0228(d)(2), and failing to comply with the stop order issued on February 16,1995.
The ASCMA does not provide any adir'nistrative authority to assess fines. The unlawful attempt to exact this penalty from the CCJS was a flagrant abuse of power. Although the CCJS tentatively capitulated, this *145illegal assessment was fortunately set aside by later events. The PNRS board cannot impose, collect, or attempt to impose or collect, fines for failure to comply with the ASCMA or ASCMP rules.
B. Summary Eviction
The ASG gave proper notice to terminate the at-will periodic tenancy with the CCJS.19 The ASG explicitly notified the CCJS that it was unwilling to negotiate a purchase of the building and fixtures. Therefore, even though the CCJS has "purchased" the building, or will have purchased it upon paying the amortized purchase price in full, the at-will periodic tenancy only permits the CCJS to remove machinery, equipment and personal property from the premises upon termination of the lease relationship.20 The CCJS must vacate the land.
C. The CCJS’s account payable.
While the Coral lease required the lessee or its assignees to make monthly payments of $900 for rent and $245 for the amortized balance of the purchase of the building and fixtures, a total of $1,145, after the first six months during the initial term of the lease, the ASB actually paid $1,150, monthly in effect, on the CCJS’s behalf. We cannot tell from the ASG’s accounting in evidence exactly how the ASG credited these payments to rent or the amortized balance. However, the CCJS clearly owed the ASG $10,800 on the combined amounts on October 19, 1995, which was reduced to $2,550 as of December 31, 1995. The CCJS is prepared to pay the deficiency.
The CCJS also still possesses and uses the premises by virtue of the temporary injunction. It should bring current any rent due and unpaid for the continuation of the periodic tenancy, and remit payment for any unpaid portions of the amortized purchase price for the building and fixtures.
CONCLUSIONS OF LAW
*146We will reiterate and summarize our conclusions of law.
1. The ASG consented to the assignment of the Coral lease in the event of Coral’s loan default by the consent to mortgage of June 29, 1987. Moreover, by accepting rent from and dealing with the CCJS, the ASG waived its right to object to the CCJS’s assumption of rights and obligations under the lease. Therefore, the CCJS is properly before the court as the lessee in this dispute. The ASB is properly before the court as the leasehold mortgagee.
2. The ASG effectively granted the lessee in the Coral lease the use of public land for 45 years by giving the lessee the unilateral right to exercise options to renew at the end of an initial nine-year term for up to four additional lease terms. This grant contravened statutory public policy, un css and until the Legislature reviews and fails to disapprove the lease. Because the Coral lease has not been submitted to the Legislature for review, the Coral lease never became effective.
3. Because the Coral lease was ineffective, the CCJS had an at-will periodic tenancy with the ASG, which incorporated all the terms of the Coral lease except duration. Both parties were able to terminate the at-will periodic tenancy with or without cause at any time, as long as the party seeking to terminate the tenancy provided at least one month’s notice. The ASG gave one month’s notice to the CCJS and lawfully terminated the at-will periodic tenancy as of January 15,1996.
4. The benefit of maintaining an at-will periodic tenancy or entering into a new lease agreement is not a liberty or property interest giving rise to substantive or procedural due process rights. The Governor's decision to terminate an at-will tenancy in government land or refuse to lease government land did not result in deprivation of substantive due process and did not require the minimal procedural due process elements of notice of and meaningful participation in a.i administrative hearing. The PRC did not violate procedural due process by excluding the CCJS and ASB from its meetings regarding the Coral lease, because the PRC is empowered only to make recommendations to the Governor, not to adjudicate contested cases or promulgate rules.
5. The Governor’s decision to terminate the at-will periodic tenancy or to decline forming a new lease was not arbitrary, capricious, or an abuse of his discretion in violation of substantive due process considerations.
6. The ASCMA is not unconstitutional on the grounds that it was not enacted by two successive legislatures. The ASCMA affects land use but does not divest title interests or impair cultural patterns.
*1477. The ASCMP rules were not promulgated in compliance with statutory directives because the DDPO, the authorized rule maker, has not filed the ASCMP rules with the Secretary of American Samoa and the Legislature. However, the ASCMP rules are binding and enforceable on the CCJS and ASB, since each had actual knowledge of the rules.
8. ■ The CCJS built the hall extensions without the requisite land use permit in violation of A.S.C.A. § 24.0505(a) and without the requisite building permit in violation of § 301(a) of the 1964 Uniform Building Code, enacted by A.S.C.A. § 26.1001.
9. The ASCMA does not empower the PNRS board to assess fines administratively for failure to obtain the required land use permit or to comply with a stop work order, or for any other violations of the ASCMA or ASCMP rules.
10. The CCJS must leave the premises and remit payment to the ASG for its remaining liabilities from the at-will periodic tenancy and subsequent tenancy at sufferance.
ORDER
The CCJS shall, within 30 days after the entry of this order:
1. remove the hall extensions built without land use and building permits;
2. remove from - the land all solid waste resulting from demolition of the hall extensions from the land, at the CCJS's expense and with due consideration to the lawful property rights of other landowners near the land and disposal site and between both locations;
3. vacate the land, and reeenter the premises only to exercise its remaining rights under paragraph B of clause 13 of the Coral lease; and
4. remit payment to the ASG the total amount of outstanding liabilities for rent under the at will periodic tenancy and holdover tenancy at sufferance, to and including the day the CCJS vacates the land, and for unpaid portions of the amortized purchase price for the building and fixtures.
The temporary injunction is dissolved 30 days after the entry of this order.
It is so ordered.21
We take judicial notice of this action.
At the ASB’s request, Western Appraisal Services estimated the value of the building at $675,000 as of February 15, 1994.
Although filed after the court approved the sale to the CCJS, the receiver’s final report of September 24, 1992 includes the ASG in the list of Coral’s creditors. The ASB mailed the final report to all creditors on October 20, 1992, in connection with its motion to discharge the receiver and dismiss the action. No one, including the ASG, objected to either the final' report or the motion. The court heard the motion on January 8, 1993 and discharged the ASB as the receiver on January 19,1993.
While there is conflicting evidence on whether the CCJS or its bingo. "sublessees" or "licensees" consistently obtained the requisite license from the ASG for their activities, we are satisfied that there was substantial compliance with this requirement. The licensing process is also additional evidence that the ASG was aware of the activities on the premises.
In 1990, this court approved the transaction whereby the CCJS assumed Coral’s obligations under the mortgage with the ASB. Though the ASG did not participate in those judicial proceedings, and did not receive notice of the approval hearing, the ASG did receive notice of the hearing to discharge the receiver. Furthermore, the ASG was fully aware of Coral's loan default and the circumstances leading to the CCJS's takeover of the prernises. The ASG did not terminate the Coral lease when the ASB was judicially appointed as the receiver, even though á receivership can trigger termination under clause 13 of the Coral lease.
This section of the Restatement deals with the effect of a lease that is invalid because it violates the Statute of Frauds, not the effect of a lease that is ineffective because it violates A.S.C.A. § 37.2030. However, failing to conform to statutory writing requirements, which renders a lease "invalid," and failing to conform to the legislative review requirement of § 37.2030, which renders a lease "ineffective," are similar in that both involve deviations of technical requirements created and defined by statute. Therefore, without statutory guidance regarding the effect of a lease contravening § 37.2030, we believe that the situations are sufficiently analogous to warrant the application of the same legal principles.
The option to renew for successive lease terms is a nullity, and thus, the CCJS's purported exercise of the option, with the Acting Governor's approval, on September 13, 1995 had no legal effect.
Since an at-will periodic tenancy is much like an open purchase order for goods, and an application for the privilege of leasing government land is much like a bid for government business, a contrary ruling in this case would unreasonably burden the ASG. Individuals and corporations doing business with the ASG could demand formal administrative hearings because the'Governor refused to purchase goods or services under an open purchase order, or because the Governor refused to select their bid and award them a contract for goods or services. The transaction costs of procuring necessary goods and services for the ASG would skyrocket.
A rule "means each agency statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practical requirements of any agency," excluding "statements of internal management and not affecting private rights or procedures available to the public, or intra agency memoranda." A.S.C.A. § 4.1001(g). A contested case "means a proceeding ... in which the legal rights, duties, or privileges of a party are determined." A.S.C.A. §4.1001(b).
The CCJS and ASB also claim that the CCJS made a timely but rejected demand for arbitration. This issue is immaterial to the outcome, in our view, but we want to point out the ambiguous and the poorly drafted quality of the arbitration provision in the Coral lease.
The emphasized portion of § 3 is substantively repeated in the article on the Legislature. Am. Samoa Rev. Const., art. II, § 9.
Rules can be contested for noncompliance with adoption requirements only within two years of their effective date. A.S.C.A. § 4.1007. The ASCMP rules were adopted on November 22, 1994, less than two years prior to the filing of this action.
The A.S.A.C. was first published in 1982 and was annually supplemented through 1989. No supplements have been published since to include in the A.S.A.C. either the ASCMP rules or any other rules adopted in and after 1990. Obviously, the Lieutenant Governors in office from 1990 to the present time have neglected to carry out, as the Secretary of American Samoa, the duty prescribed by A.S.C.A. § 4.1003 to publish the administrative rules at least once every two years.
The court takes judicial notice that the Lieutenant Governors in office from 1978 through 1990 maintained a permanent register of the administrative rules, as required by A.S.C.A. § 4.1020(b). This register included not only the rules as adopted, but also the public notices of the intended adoption of 'each rule, certificates of the adoption, and the acknowledgments of filings of each rule with the Secretary, the Clerk of the House of Representatives and the Secretary of the Senate. The court sought to inspect the register, and after a cngthy search, the Governor's Office produced the register for 1985 through 1990 from a closet. Apparently, the register since 1990 has been neglected and does not exist, and the register before 1985 is now lost or misplaced.
The APA is very important. Administrative rules have the force and effect of law, if properly adopted under the APA. However, the ASG's Executive Branch has apparently not taken the APA very seriously in recent years. While the Lieutenant Governors were ultimately responsible for this laxness, we think their failure to comply with the law was principally inattention by the ASG's legal advisors, particularly within the Governor’s Office but also in the Executive Branch outside of the Governor's Office.
Under § 24.0506(b) of the ASCMA, the rules preceding the ASCMP rules, A.S.A.C. §§ 26.0201-26.0211 (Rule 12-88), remain in effect until the ASCMP rules are promulgated as final rules. The ASG should still comply with the rule filing requirements for the ASCMP rules. Otherwise, the ASG may not be able to enforce the ASCMP rules against a person who is without actual knowledge of the ASCMP rules and must rely on the predecessor rules, which may or may not cover a particular current situation.
Each edition of the Uniform Building Code is issued with the approval of the International Conference of Building Officials. The comparable current licensing provision is the Uniform Building Code § 106.1 (1994). The ASG's Department of Public Works ("DPW") usually refers to standards in the current edition of the Uniform Building Code for oversight of building construction. However, in American Samoa, the outmoded 1964 edition of the Uniform Building Code, Short Form is still the only legally enforceable law in this field. Despite the significant changes in building methods since 1964, the Legislature has turned down bills to enact an updated building code on numerous occasions.
The ASG requests the court to impose fines and exemplary damages pursuant to A.S.C.A. §§ 24.0509(a) and(b) for the CCJS’s failure to obtain the necessary permits before construction, and for the CCJS’s violations of two stop orders. These statutory provisions give the High Court discretion to determine the amount of the fine against a corporation, and only set a ceiling of $10,000 per violation. Given the circumstances of this case, and since there is no statutorily compelled “floor” for violations of A.S.C.A. § 24.0509(a), we decline to impose any fine on the CCJS for these violations.
See also Uniform Building Code § 104.2.4 (1994).
The ASG raised the issue of improper use of the premises, specifically the regular conduct of bingo games by the CCJS and its sublessees or licensees, suggesting that this use was disallowed under the terms of the Coral lease and possibly criminal under A.S.C.A. § 46.4301. We do not need to address this issue, however, because the CCJS's at-will periodic tenancy was terminable for any reason, with or without cause, upon one month's notice.
See Coral lease, clause 13.B.2.
The ASG can still honor the obligations to Coral it undertook in 1986 and to the ASB in 1987, and, in 1992, led the CCJS and ASB to reasonably believe would be carried forward. It can enter into a new *148lease agreement, at least for the duration of the CCJS/ASB loan transaction, to protect the CCJS's and ASB's legitimate financial interests, and, if required, submit the new lease for legislative review under A.S.C.A. § 37.2030 and support approval of the lease before the Legislature. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486476/ | Order Denying Defendant’s Motion to Dismiss:
FACTS
*149On or about October 16, 1996, customs officers at the Tafuna International Airport searched defendant’s luggage in the course of routine inspections and found an 18 inch pipe, also known in the vernacular as a "bong," together with two packages of cigarette rolling paper. On November 4, 1996, defendant was charged with unlawful possession of a controlled substance; to wit, marijuana, in violation of A.S.C.A. §§ 13.1022 and 13.1006. On January 9, 1997, defendant filed a motion to dismiss and a hearing on the motion was held on January 17, 1997.
DISCUSSION
In American Samoa, "it is unlawful for a person to possess a controlled substance." A.S.C.A. § 13.1022(a). Marijuana is a controlled substance within the meaning of § 13.1022(a). See A.S.C.A. § 13.1006. The statutory scheme that combats drug use also provides that "marijuana" means "all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin." A.S.C.A. § 13.1001(h).
Defendant acknowledges that he was found in possession of an 18 inch bong with marijuana resin on its walls. However, he moves to dismiss the charge against him on the grounds that some state courts have inferred that a statute proscribing possession of a controlled substance assumes, as a matter of equity and common sense, that the quantity of the controlled substance be large enough for a person to use the controlled substance for its common purpose. Additionally, defendant posits that the statutory prohibition of possessing a controlled substance assumes that the substance will not be "residues, much altered from their original form." Under this second theory, a defendant will not be guilty of possessing a controlled substance if there is insufficient evidence to support an inference that the defendant knew of the presence and narcotic character of the residues.
We need not answer the first question of law defendant has presented. Even if this court were to find that the statute only forbids possession of a "usable" amount of marijuana, see, e.g., People v. Leal, 413 P.2d 665, 670 (Cal. 1966), there is sufficient evidence in the record for a reasonable fact-finder to conclude that the marijuana resin was of sufficient quantity that one could chip the resin off the bong and smoke it for hallucinogenic effect, i.e., use it for its common purpose.
Second, we categorically reject the proposition that marijuana must appear in its "recognizable" or "customary" form for an individual to be *150guilty of unlawful possession of marijuana. See, e.g., Id., 413 P.2d at 668 (Cal. 1966); People v. Melendez, 225 Cal. App. 2d 67, 72, 37 Cal. Rptr. 126, 130 (Cal. Ct. App. 1964); People v. Aguilar, 223 Cal. App. 2d 119, 121-23, 35 Cal. Rptr. 516, 518 (Cal. Ct. App. 1963). The Fono has explicitly included marijuana resin as a disallowed controlled substance and did not distinguish between typical and atypical forms of marijuana resin. Accepting defendant’s argument would frustrate underlying legislative policy unequivocally expressed by providing an easy legal loophole to individuals engaged in the consumption or sale of controlled substances, to avoid legal responsibility by simply modifying the controlled substance to give it an "unorthodox" look.
Finally, we are not impressed with defendant’s contention that "there is insufficient evidence to support an inference that the defendant knew of the presence and narcotic character of the residues." The fact that marijuana resin was found on a "bong," an instrument which may be used for the consumption of marijuana, is sufficiently suggestive of knowledge not only as to the resin’s presence but its narcotic character.
CONCLUSION & ORDER
Defendant’s arguments are unpersuasive. Accordingly, the motion to dismiss is hereby DENIED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486477/ | Order Denying Motions For Relief From Judgment And To Proceed In Forma Pauperis:
On January 28, 1997, Augustine M. McKenzie (“McKenzie”) moved the Trial Division of the High Court for relief from the judgment and sentence in this criminal action under the Federal Rules of Civil Procedure, Rule 60(b)(6), which is identical to Rule 60(b)(6) of the High Court's Trial Court Rules of Civil Procedure. McKenzie also moved for an order permitting him to proceed in forma pauperis without prepayment of fees and costs or security.
Since McKenzie requests relief from the sentence of a criminal proceeding, Civil Procedure Rule 60(b)(6), whether territorial or federal, is inapplicable to the present case. Furthermore, the judgment and sentence in this case is final, and the Trial Division of this court lacks any authority to overturn final judgments and sentences in criminal matters. Any relief from the judgment and sentence at this time is exclusively within the executive's authority through commutation, reprieve or pardon. See Rev. Const. OF Am. Samoa, art. IV, § 9 of the. The motion for relief from judgment must be denied.1
*152We will also dismiss the motion to proceed in forma pauperis on the grounds that McKenzie’s supporting affidavit failed to state the nature of the action, defense or appeal, and failed to state his belief that he is entitled to redress. See Rule 24 of the High Court's Appellate Court Rules; cf 28 U.S.C.S. Section 1915.
ORDER
The motions for relief from judgment and for leave to proceed informa pauperis are denied. It is so ordered.
We note that in McKenzie v. Tuimavae, Civil Action No. 113-94 (Dec. 14, 1994), this court granted summary judgment against McKenzie, who had claimed, among other things, that the revocation of *152his release program violated due process. Additionally, on April 9,1996, this court denied McKenzie’s motion for temporary release from his sentence of life imprisonment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486478/ | Order Granting Defendant Partial Summary Judgment:
On December 8, 1995, plaintiff Veronica Paaga ("Paaga") filed a complaint against the defendant Development Bank of American Samoa ("Bank") that stated eleven allegations regarding the Bank’s conduct. The complaint reflects little if any regard to the general requirement of T.C.R.CV. 8(a) that the complaint "contain a short and plain statement of the claim showing that the pleader is entitled to relief." Rather, the pleading incoherently alludes to the Bank’s "arbitrarilly (sic) and unlawfully" dismissing Paaga "without notice"; its abetting the American Samoa Government in the "malicious prosecution" of Paaga, resulting in "embarrassment, defamation of character, great mental anguish, financial hardship and emotional distress to Paaga."
The Bank, discerning a cause of action stated in the complaint for unlawful employment termination, moved, pursuant to T.C.R.C.P. 56, for summary judgment on Paaga’s claim of wrongful discharge. The Bank argues that the claim fails as a matter of law because Paaga was an "at-will" employee, whose termination did not require "just cause" or even an explanation. In its supporting affidavit, the Bank, through its President, avers that the employment relationship between the parties was governed by the terms of its Employee Handbook, which effectively spells out an employment "at will" relationship. The handbook provides that "employment with the Bank is at will. Therefore, either the employer or employee can terminate the relationship with or without cause, for any reason or no reason, upon notification of the other party." (emphasis added).
Paaga has responded that summary judgment is inappropriate because the facts alleged in support of her complaint, if proved at trial, would entitle her to relief for wrongful discharge. At oral argument on the Bank’s motion, Paaga claimed that under the common law, she possessed a right to continued employment unless terminated for cause. Furthermore, she claims that the handbook contained conflicting evidence that, if viewed in the light most favorable to her, could lead a reasonable fact-finder to conclude that she acquired an actual or implied contractual right to be terminated only under certain conditions and circumstances.
*154DISCUSSION
Under the common law, and contrary to Paaga’s view, if the parties to an employment contract have neither fixed a definite term of employment nor created any contractual obstacle to the right of discretionary discharge, then the contract is for employment at will and the employer may without liability discharge the employee for any reason. Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d 162, 165 (Trial Div. 1987). At the same time, T.C.R.C.P. 56(e) states the following:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party .may not rest upon the mere allegations or denials of his p' '.ading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
In the instant case, Paaga simply counters the Bank’s claim, an at-will relationship, by simply denying the applicability of the handbook, because it may have been "only a draft" at the time of her hiring, because it was improperly distributed, and because the drafters of the handbook had a different meaning of "at will employment." There is no attempt on Paaga’s part to counter the Bank’s claim with a contrary showing of an employment relationship that was other than at will, barring the Bank the right of discretionary dismissal. That is to say, Paaga has not presented evidence in her pleadings and supporting affidavits that, if proven at trial, would support her claim that her employment contract contained an implied or actual provision protecting her from arbitrary termination.
However, even if the handbook did )t govern the employment relationship, the fact remains that Paaga has not made any credible allegations that the Bank had made any oral or written representation to her that her employment was terminable only under specific circumstances. In other words, even if the handbook did not create an "at will relationship" between Paaga and the Bank, we find nothing in the pleadings or supporting affidavits to support Paaga’s contention that the handbook created an obstacle to discretionary discharge.
Paaga’s pleadings and affidavits contain a sole allegation of employer conduct that might constitute an employer guarantee of job security. Ironically, Paaga relies on the very handbook she claims was ineffectual. She claims that the handbook’s "Resignations and Dismissals" section creates a genuine issue of material fact as to whether her employment could be terminated only under certain conditions. The handbook states, *155on page five, that "[t]he Bank may dismiss employees for just cause including the performance of unsatisfactory work, reduction in the work force, or the curtailment of the Bank’s business." However, we cannot construe this sentence as creating a contractual guarantee that the Bank could dismiss employees only for just cause. Immediately subsequent to the sentence illustrating examples of dismissals for just cause, the handbook provides that "[t]hese reasons are not all inclusive and dismissals for other reasons may be made at the Bank’s discretion." Moreover, the first sentence of .the "Resignation and Dismissals" section reiterates that "Employment with the Development Bank of American Samoa is on an ’at-will’ basis, and the Bank reserves the right to discharge employees at any time for any reason." Thus, the handbook language about dismissals for "just cause" merely identifies a subset of the potential reasons for which an employee could be terminated, and it does not purport to override the common law presumption that the employment was at will.
CONCLUSION & ORDER
Paaga has not presented sufficient facts which, if proven at trial, could persuade a reasonable fact-finder to find that she had a "just cause" clause in her employment contract, and that the Bank wrongfully terminated her employment.
Accordingly, Bank’s motion for summary judgment as to Paaga’s wrongful discharge claim is granted.1
It is so ordered.
Since the Bank’s motion did not address the issue of "malicious prosecution" and its claimed attendant consequences, we intimate no opinion on any such cause(s) (to the extent that any may be stated in the complaint). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486479/ | Order Granting Motion For Reconsideration:
On October 24, 1996, this court found defendant Paul Clarke (“Clarke”) civilly liable for breach of an at-will employment contract with plaintiff Atlantic, Pacific, Marine, Inc. (“APM”) and awarded APM $8,665.00 in damages. Clarke moved for reconsideration on the grounds, among other reasons, that the justice presiding in the trial court should have disqualified himself from the case.1
*157On September 15, 1977, the High Court adopted the Code of Judicial Conduct. Canon 3(C)(l)(d)(i) states that:
A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where ... he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person ... is a party to the proceeding, or an officer, director, or trustee of the party.
Betty Cavanagh, an APM officer, is the spouse to Sean Gregg, APM’s President. Betty Cavanagh is also the cousin by blood and sister by legal adoption of the trial justice’s wife. While cousins are in the fourth or more remote degree of relationships, brothers and sisters are within the second degree of relationships under both the civil and canon law systems of calculating consanguinity. See 42 AM. JUR. 2d, Judges § 142; 1 CALIFORNIA DECEDENT ESTATE ADMINISTRATION 805 (Victor L. Chuan, Irving Slater, eds. 1971). Therefore, the trial justice was disqualified from hearing the case under Canon 3(C)(1)(d)(i), because Betty Cavanagh is a “person within the third degree of relationship to either [the judge or the judge’s spouse]” and an officer of APM, a party in the case. Additionally, the trial justice was disqualified because Sean Gregg is “the spouse of [a person within the third degree of relationship to either the judge or the judge’s spouse]” and also an APM officer.
The Code of Judicial Conduct further states that a judge disqualified
may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the judge’s relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding.
*158Canon 3(D). The trial justice stated his relationship to Betty Cavanaugh and Sean Gregg on the record, at the beginning of the trial, and received unequivocal waivers from both parties’ counsel. However, those waivers were ineffective. The parties and lawyers did not discuss the issue of judicial disqualification “independently of the judge’s participation” and did not "agree in writing that the judge’s relationship was immaterial."
As the Commentary to Code Canon 3(D) explains, “the procedure is designed to minimize the chance that a party or lawyer will feel coerced into agreement.” While the trial justice had the spirit of Canon 3(D) in mind, he clearly overlooked substantial compliance with the prescribed procedure and, thus, remained disqualified from hearing the present case.2
Since the trial justice was disqualified from hearing this action, the motion for reconsideration is granted. The order of November 8, 1994, denying the motion to quash service of process, and the opinion and order of October 24, 1996, awarding judgment to APM and damages in the amount of $8,665.00, are vacated.
It is so ordered.
Clarke first raised this issue by this motion, citing A.S.C.A. § 3.1007(a), which in apparent material part reads:
No judge shall sit in any case in which he, or a family of which he is a member, has a substantial interest,. . . *157or is a member of the same family with any party to the case.
In our view, this statute is not free of ambiguity, but we need not address these concerns, as another specific edict is clearly applicable.
We believe that counsel were also not precisely thinking of the Canon 3(D) requirements. Counsel act unconscionably if they deliberately wait until an adverse decision is rendered before moving to disqualify a judge. See In re Matai Title Tauala, 15 A.S.R.2d 65, 67 (Land & Titles Div. 1990). Sanctions could then well be in order. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486494/ | *5OPINION
GOODWIN, Acting Associate Justice.
G.M. Meredith and Associates (GMA) sued Blue Pacific Management in CA No. 108-90 to recover unpaid compensation for services rendered by GMA to Blue Pacific as agent of Pago Plaza. Blue Pacific counterclaimed for damages caused by alleged defects in the design and installation of the skylight by GMA at the office building owned by Plaza. After the other issues in the litigation were resolved in the trial court, trial proceeded on the counterclaim, ending with a judgment in favor of Blue Pacific. This judgment, for $20,900, the only subject of this appeal, is affirmed.
The damages were measured by the costs incurred by Blue Pacific in replacing the original skylight designed and installed by persons employed and supervised by GMA after Hurricane Ofa removed and destroyed it. The counterclaim was tried on a negligence theory, although there was no direct evidence of a specific design defect, or of specific acts of negligence. The proof was that GMA undertook to design and supervise the installation of a skylight and performed the work in a manner that permitted the skylight to be destroyed by the first hurricane to come along, in a geographic region that is frequently visited by such storms.
The proof was that the skylight could not survive the force of Hurricane Ofa, which all agreed was not of extraordinary force or violence by hurricane standards in Samoa. There was also proof that the replacement skylight survived Hurricane Val, a hurricane of substantially greater force than that of Ofa. Accordingly, the court made findings of fact to the effect that GMA had undertaken to design and supervise installation of a skylight that would withstand winds of hurricane strength; that hurricanes are common in the vicinity of Pago Pago; that the skylight installed by GMA was defective; and that GMA's architect was negligent in the design and supervision of the construction of the defective skylight, and that GMA was liable to Blue Pacific for the foreseeable costs of replacing the defective installation.
The appeal argues that the statement of the trial court that it was relying on the doctrine of res ipsa loquitur fatally infects the other findings and requires reversal of the judgment.
We hold that whether the Latin phrase was employed with pristine acuity or was merely a response to mantra-like prompting by prevailing counsel, it was harmless.
*6As this court held in Iosia v. National Pacific Ins. Ltd., 20 A.S.R.2d 123 (App. Div. 1992),
res insa loquitur [is] no more than one form of circumstantial evidence. . . . The inference of negligence to be drawn from the circumstances is left to the jury. They are permitted, but not compelled, to find it.
In other words, the doctrine, when applicable, merely establishes a permissive inference of negligence which the factfinder is not required to adopt.
Id. at 124-25, quoting Prosser, Torts 40 (5th ed. 1984). The trial did not hold GMA strictly or absolutely liable for the skylight. Rather, it inferred from circumstantial evidence that GMA negligently designed and supervised the construction of the skylight. The operative facts of this case were simple, the proof was clear, and the judgment was consistent with the proof.
The appeal also assigns error to the trial court's taking judicial notice of the comparative strengths of hurricanes at various times and places. While an effort was made by the defense to dispute the exact wind strengths at various times and places, these statistics were not likely to prove any disputed fact. The inescapable fact was that the defendant undertook to build a skylight in hurricane country, knowing that if the skylight was not carefully designed and installed with sufficient windproofing safeguards, it would not survive the foreseeable storms likely to assault the building site. Contrary to the arguments of the defense, the case was not decided upon a theory of strict or absolute liability. It was perfectly proper to treat the matter as a simple negligence action for damages caused by the errors and omissions of an architect or of a subcontractor.
AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486495/ | OPINION
KRUSE, Chief Justice.
Procedural History
On April 16, 1996, appellant, Antonio Pule, was cited for Driving under the Influence (A.S.C.A. § 22.0707), Careless Driving Causing Injury and Property Damage (A.S.C.A. § 22.0701), and Not Possessing a Driver's License (A.S.C.A. § 20.0210). The nonpossession charge was dismissed prior to trial. Appellant entered pleas of not guilty and requested a jury trial, which was had on June 5, 1996. The jury unanimously found appellant guilty of both offenses. On June 7, .1996 appellant was sentenced to a suspended imprisonment term of two years and *9suspension of his license for eight months. Appellant now appeals both the decision and the sentence.
Discussion
The appellant presents five issues on appeal: 1) whether the guilty verdicts were clearly erroneous; 2) whether the trial court erred in only allowing each party two minutes for closing argument; 3) whether the conviction of multiple offenses violated A.S.C.A. § 46.3107(3) and (4); 4) whether appellant was penalized for exercising his right to jury trial; and 5) whether the court violated appellant's right to a fair trial.
A. Sufficiency of Guilty Verdicts
First, appellant argues that there was no evidence of any injury, thus precluding a conviction of Careless Driving Causing Injury. However, Mr. Lolohea testified that his car door was pushed inward contacting his leg and as a result of the accident he experienced pain in his legs, side and back. (Tr. 12:5-11). A.S.C.A. § 46.3111(19) defines physical injury as "physical pain, illness, or any impairment of physical condition."
The findings of the trial court may not be set aside by the appellate division unless clearly erroneous. A.S.C.A. § 43.0801(b); Uigalelei v. Ulufale, 17 ASR 2d 158, 160 (App. Div. 1990). The jury obviously found Mr. Lolohea's testimony persuasive, and we do not believe this finding is clearly erroneous. Mr. Lolohea's testimony is more than sufficient for the jury to conclude that the appellant's careless driving caused injury or physical pain to one or more individuals.
Second, the appellant argues that the ASG did not prove beyond a reasonable doubt that the appellant was driving under the influence. Appellant's argument is premised on his assertion that the he had "spiked" chew in his mouth at the time of the breathalyzer test which rendered the test ineffective.
Again we review the jury's verdict for clear error. The record below reveals that the appellant, in attempting to overtake a vehicle that was turning off of the highway, crashed into it. Two police officers testified that they observed that appellant's eyes were red and that his breath smelled of alcohol. The appellant admitted to having drank two beers and a shot of tequila. The appellant failed the Horizontal Eye Nystagmus Test, and refused to perform the other two field sobriety tests. Further, the appellant's testimony, that he had tequila spiked tobacco in his mouth at the time of the breathalyzer, was contradicted by the appellant's wife's testimony. (Tr. 49:13-16, 66:21-67:5). Again we believe that jury's finding was not clearly erroneous. There was *10substantial evidence presented at trial for the jury to find that the appellant was driving under the influence, quite apart from the results of the alco-sensor breath test.
B. Closing Argument
Appellant argues reversible error on the court's part in limiting closing arguments to two minutes, claiming that it deprived him of opportunity to fully and fairly present his defense. See Woodham v. Roy, 471 So.2d 132 (Fla.App. 4 Dist., 1985).1 Appellant asserts that the case involved a novel, unique and complex defense, and that there were five witnesses. As such, appellant believes he was denied the opportunity to adequately present his case.
A trial court has wide latitude and discretion in supervising the time limits, the scope, and the extent of argument and summation. See Trawick v. Manhattan Life Ins. Co. of New York, N. Y., 484 F.2d 535, 538 (5th Cir. 1972). A trial court's decision on this matter is subject to review for abuse of discretion. Id. at 538-39. Regardless of the time allotted for closing argument, there was strong evidence to support the appellant's conviction. We doubt that extending time for closing arguments would have changed the jury's verdict. As such, we conclude that there was no abuse of discretion in this case.
Moreover, as noted, counsel failed to object to the time limit. Generally when counsel fails to make a timely objection to some purported trial error, there must be a showing of plain error to afford a basis of reversal. See United States v. Geise, 597 F.2d 1170, 1199 (9th Cir. 1979). T.C.R.Cr.P. Rule 52(b) defines "plain error" as "errors or defects affecting substantial rights." As stated, the evidence against the appellant was overwhelming. Where the evidence against a defendant is so strong that the absence of the purported error would not have changed the jury's verdict, plain error is seldom found. Id. Since there was strong evidence to support the appellant's conviction, we believe that the trial *11court's time limitation on closing arguments did not affect substantial rights of the appellant.
C. Violation of A.S.C.A. $ 46.31Q7Í31 and (4)
Appellant argues that his conviction on both Driving Under the Influence and Careless Driving was in violation of A.S.C.A. § 46.3107(3), which states that a person cannot be convicted of more than one offense if:
(3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of conduct.
Appellant asserts that Careless Driving is the specific conduct which the Driving Under the Influence statute prohibits, but then also seems to assert that Driving Under the Influence is a merely a specific instance of Careless Driving.
We find that a violation of either statute is not necessarily a violation of the other. One can be sober and still drive carelessly, and one can be driving safely but be stopped at a roadblock and be charged with Driving Under the Influence.
D. Penalization for Exercising Right to Jury Trial
Appellant claims that he was penalized for exercising his right to jury trial. He bases this claim on a certain comment by the trial judge to counsel during a conference in chambers and upon his belief that the sentences given for first offenders are usually more lenient then the one imposed on him.
During the pretrial conference, the trial court judge told counsel that if appellant were found guilty, he would be held in custody pending the court's sentencing. We do not believe that this constitutes a threat that the judge would penalize appellant for exercising his right to a jury trial. Further, the sentence handed down was well within the sentencing guidelines afforded under the applicable statutes. See A.S.C.A. §§ 46.1902, 22.0707, 22.0701, 46.2301, 46.2101, 46.2204, 22.0211 and 22.0212.
Since the judge did not threaten to impose a stricter penalty if the appellant failed to accept the plea bargain, and since the sentence was within the applicable guidelines, we are not persuaded that the trial court penalized the appellant for exercising his right to a jury trial.
*12E. Violation of Right to Fair Trial
Again, appellant argues that he was prejudiced by the purported "threats" of the trial judge concerning the exercising of his rights to a jury trial. The judge also alerted the counsel as to the cost of a jury trial. Apparently appellant believes these statements "discouraged" him from seeking a jury trial. However, the appellant received a jury trial, and therefore there is no cognizable prejudice, regardless of whether he was "discouraged" or not.
Conclusion
For the reasons stated above the judgment appealed from will be AFFIRMED.
It is so Ordered.
The Woodham court stated, quoting the Florida Supreme Court, that:
The limitation of the time for argument must of necessity, within reasonable bounds, rest in the discretion of the trial court. This is the general rule. The right may be waived, but, when requested, reasonable time must be allowed. The question to be determined is what is reasonable time, and this depends upon the facts and circumstances of the case.
Id. at 133 (quoting May v. State, 103 So. 115, 116 (1925))(emphasis supplied). The appellant, however, did not request that the time for argument be extended. Moreover, as explained above, we believe that the time limit was not unreasonable given the facts and circumstances of this case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486496/ | OPINION
RICHMOND, Associate Justice.
Statement of Case
On May 12, 1992, Valovalo Aoelua ("Valovalo") offered the title "Aoelua," one of four High Talking Chiefs for the Village of Afono, for registration. Manu Mika Lealai ("Manu") and Fetulele Levea Tagoa'i ("Tagoa'i") counterclaimed. Before trial Tagoa'i withdrew his claim.
A.S.C.A. § 1.0403 sets forth four criteria to be considered when deciding a matai title: 1) best hereditary right; 2) wish of majority or plurality of the family clans; 3) forcefulness, character, personality and knowledge of Samoan custom; and 4) value of candidate to family, village and country. After a trial on the merits the court found that Valovalo prevailed on the first criterion; that no one prevailed on the second criterion; that Valovalo prevailed on the third criterion; and both candidates ranked equally on the fourth criterion. The court then awarded the title to Valovalo. Manu appealed.
Discussion
Manu appeals, submitting that the trial court's findings are in error. This court can set aside findings of the trial court only if they are clearly erroneous. Uigagalelei Iona v. Ulufale Safue, 17 A.S.R.2d 158, 160 (App. Div. 1990). Upon review of the record we find that there was substantial evidence to support the trial court's holding.
The decision of the trial court is affirmed.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486498/ | OPINION AND ORDER
Introduction
In 1988, Samoa Aviation, Inc., ("Samoa Air") entered into certain lease purchase agreements with Robert G. Bendall and Pace Aviation, and PAL Air, Inc., (collectively, "Bendall") for certain airplanes, engines, equipment, and spare parts (collectively, "aircraft"). In 1995, a dispute arose over compliance with the agreements and the parties sued each other. The trial court consolidated Civil Action Nos. 50-95 and 70-95 and issued a preliminary injunction enjoining Bendall from interfering with Samoa Air's possession, enjoyment and use of the aircraft.
While these matters were pending, the Federal Aviation Administration ("FAA") threatened to withdraw the aircraft's registration unless (a) the FAA received flight information necessary for renewing registration renewal under the name of a Canadian citizen (Robert G. Bendall), or (b) a United States citizen registered the aircraft. Samoa Air filed a motion with the Trial Division to appoint a United States citizen as trustee for the aircraft, so that the aircraft could qualify for FAA registration without submitting the flight information.1
On September 7, 1995, the trial court judge granted Samoa Air’s motion and appointed Samoa Air's counsel, Marshall Ashley, a United States Citizen, as trustee for both parties "solely for the purposes of holding title to the aircraft." The court further stated that "[t]itle to such aircraft is hereby transferred to the Trustee .... Possession and operation of the aircraft shall remain with [Samoa Air]."
Discussion
Bendall challenges the Trial Division's actions in three respects. First, Bendall argues that the Trial Division of the High Court of American Samoa has no authority to appoint a trustee and to transfer title of the *18aircraft to that trustee. Second, Bendall claims that even if the Trial Division has such authority, the Trial Division committed reversible error in appointing Marshall Ashley, counsel for Samoa Air, as trustee to hold title to the aircraft and to register the aircraft with the FAA. Finally, Bendall argues that permitting the trustee to register the plane in his own name violated federal laws and regulations.
Court's Inherent Powers
Bendall argues that the court has no power to create a trust, to transfer property to the trust, and to appoint a trustee to take care of trust property for the best interest of the beneficiaries. However, a court has the inherent power to do what is reasonably necessary for the proper administration of justice. Matter of Alamance County Court Facilities, 405 S.E.2d 125, 129 (N.C. 1991). This power is not expressly granted to, nor withheld, from courts by the American Samoa Revised Constitution of 1967 or the Department of Interior, but "must nonetheless be conceded to the judiciary as a separate department of government because [its] exercise is deemed absolutely essential for the performance of the court's constitutionally mandated mission." Winters v. City of Oklahoma City, 740 P.2d 724, 728 n.1 (Okla. 1987) (concurring and dissenting opinion of Opala, J.).
In the instant case, the Trial Division held that justice required maintaining the status quo during the pendency of the trial, enjoining Bendall from interfering with Samoa Air's use of the aircraft in its commercial airline operations, and preserving Samoa Air's ability to provide uninterrupted inter-island transportation for the people of American Samoa. When the FAA threatened to ground the aircraft if they were.not registered according to federal law, the court recognized that the aircraft's registration could not be renewed under the name of Robert Bendall. Thus, to promote a just result and the continuation of the status quo, the court took dramatic yet focused action by creating a trust, appointing a trustee, ordering registration in the trustee's name, and narrowly circumscribing the trust's duration and the trustee's powers. This action was within the court's inherent power.
Furthermore, the Trial Division did not "divest" Pace Aviation of "legal and ownership title and rights to the aircrafts," as Bendall suggests, because Bendall has yet to prove that he is the lawful owner of the aircraft at trial. The court has temporarily transferred title to the aircraft to the trustee for the benefit of the aircraft's true owner, whom a trial on the merits shall determine. If a trial on the merits determines that Bendall is, as he claims, the true owner of the aircraft, then the court shall transfer the aircraft from the trust to him at the end of the trial and the registration may be modified at that time.
*19Propriety of Appointing Samoa Air's Counsel as Trustee.
Bendall argues that appointing "counsel for an interested party to a dispute as a 'trustee' would fail to pass muster in any review." Because counsel cites no legal principles or authority for this proposition, and because Mr. Ashley has no powers beyond those that the court deems necessary to give him, we reject Bendall's argument.
The decision and order of the Trial Division is AFFIRMED.
Since Robert Bendall was a Canadian citizen, the FAA would not register the aircraft in his name until it received proof that the aircraft flew 60% of its flights within the jurisdiction of the United States. Samoa Air could not so proffer. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486499/ | OPINION AND ORDER
Procedural History
The American Samoa Government ("ASG") is entitled, pursuant to A.S.C.A. § 43.1001, to acquire by condemnation real property for public use. The ASG filed two documents for the condemnation of two parcels of land belonging to defendant Neil Annandale ("Annandale"). Pursuant to A.S.C.A. § 43.1010 the amount of compensation for the parcels was determined by a panel of three arbitrators who issued their Arbitration Award on August 19, 1996 assessing the value of Parcel A at $2.90 per square foot for a total of $5,800.00 and the value of the right of way in Parcel B at $50.00. Annandale now appeals the finding as to Parcel B.
Jurisdiction and Standard of Review
A.S.C.A. § 43.1011 provides for the appeal of the arbitration award and states that:
[o]n appeal, the appellate division may hear such evidence, including the testimony of the arbitrators, as is material, may *21approve, modify, revise, or reject the award of the arbitrators, and may either make a new and different award or resubmit the matter to the same or different arbitrators to be appointed in the same manner as the original arbitrators.
The statute does not clearly establish a standard of review. Given the nature of condemnation proceedings, the Court looks to the legislature for guidance in the standards of review of administrative proceedings. A.S.C.A. § 4.1044 provides the standard of review on appeal from administrative decisions and specifically provides for remand of cases if substantial rights of the petitioner have been prejudiced because the decision is, inter alia, in violation of applicable constitutional or statutory provisions or made upon unlawful procedure. A.S.C.A § 4.1044(1) and (3).
However, as discussed below, we need not specifically determine the proper standard of review under A.S.C.A. § 43.1011 to decide this case.
Statement of Facts
Parcel B is a quarter acre of land. The condemnation of a right of way on Parcel B was initiated as part of a government sewer project. As part of this project an underground pipe and a manhole were installed on Parcel B.
Discussion
Without addressing the substantive arguments made by the parties, we find that the arbitrators failed to follow the procedures set forth in A.S.C.A. § 43.1010(d), (e) and (f), which state:
(d) The award shall be determined by a majority of the arbitrators after viewing the property involved and considering such evidence concerning the value of the property as may be submitted by the interested parties.
(e) The award shall be made within one month after the arbitrators have entered upon their duties, or have been called on to act by a notice in writing from any party unless the court sets a different time. The chairman of the arbitrators shall, within the time limit for the award, file the determination of the amount of the award with the court, enclosed in a sealed cover endorsed with the names of the parties to the arbitration.
The court shall open the award and forward a copy of the same to the parties.
(f) [T]he decision of the arbitrators shall be final if notice of appeal is not served within the time limited by law.
*22The clear language of the statute requires more than a filing of the naked financial award. The "determination of the amount of the award" (not the "award"), is required to be filed with the Court.
In this matter the "award" of $50.00 for Parcel B was filed with no findings or conclusions of the panel, reflecting how the award was determined, as is required by law. We therefore find the award with respect to Parcel B, should be reversed and remanded.
Conclusion
We reject the Arbitration Award as to Parcel B». The determination of the compensation for Parcel B shall be remanded to the same arbitrators, who shall view the property involved, take such additional evidence as to the property's value as may be submitted by the parties pursuant to A.S.C.A. § 43.1010, and reduce to their findings to writing. These findings should include a determination as to the placement of the sewer line through the property, use and building restrictions applicable to the easement, government access requirements, and conclusions as to the effects of such encumbrances upon the market value of Parcel B. This written determination and the final dollar award shall then be filed with the Court pursuant to A.S.C.A. § 43.1010.
This opinion and order shall be stayed for 14 days to allow the parties to meet, confer, and attempt to resolve this controversy through good faith negotiations. If an agreement is reached within that period the parties shall timely file a written notice with the Court and a proposed Order to dismiss.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486500/ | OPINION
RICHMOND, Associate Justice.
Statement of Case
On August 6, 1993, Appellant Felei P. Misaalefua ("Felei") filed his succession claim to the Misaalefua title with the Territorial Registrar. His claim precipitated counterclaims by the appellants Lemaga F. Faoa ("Lemaga"), Malae Tito ("Malae"), Manu Ma’atifa Eleasaro ("Manu"), and Sua Putuga Potasi ("Sua"), and appellee Tauiliili Hudson ("Tauiliili").
A.S.C.A. § 1.0403 sets forth four criteria to be considered when deciding a matai title: (1) best hereditary right; (2) wish of majority or plurality of family; (3) forcefulness, character, personality and knowledge of Samoan custom; and (4) value of candidate to family, village and country. After a trial on the merits, the trial court found that appellant Manu Ma'atifa Eleasaro prevailed on criterion 1; that no one prevailed on criterion 2; and that Tauiliili prevailed on criteria 3 and 4. The court then awarded the title to Tauiliili. The other candidates appealed.
Discussion
Each appellant appeals on the ground that the trial court’s decision as to the various criteria was in error.
*25A. Best Hereditary Right
Appellants raise two significant questions of law and one on factual findings relating to the trial court's decision regarding the best hereditary right. On appeal questions of law are reviewed de novo. A.S.C.A. § 43.0801(b). Anderson v. Vaivao, 21 A.S.R.2d 95, 97-98 (App. Div. 1992). In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision. Amerika Samoa Bank v. Pacific Reliant Industries, 20 A.S.R.2d 102, 107 (App. Div. 1992).
As a first question of law, Felei and Lemaga argue that the "Sotoa rule" should not have been applied in this instance. The Sotoa rule calculates the blood relationship of the candidate to the original titleholder. In re Matai Title Sotoa, 2 A.S.R.2d 15 (Land & Titles Div. 1984). When the original titleholder is known, the Sotoa rule can be less arbitrary than the traditional rule. However, the Sotoa rule is only suited in certain circumstances. The Sotoa rule is appropriate where, as in Sotoa, the family traditionally traces the blood relationship back to the original titleholder. See In re Matai Title Sotoa at 15; see also In re Matai Title Tauaifaiva, 5 A.S.R.2d 13, 15 (Land & Titles Div. 1987). Use of the Sotoa rule may also be appropriate in cases where some clans of the family have not held the title for several generations, even those its members are entitled to a chance at the title. See In re Matai Title Laie, 18 A.S.R.2d 35, 37 (Land & Titles Div. 1991).1 Finally, use of the Sotoa rule may be appropriate where the family history is largely harmonious. See In re Matai Title Lolo, 25 A.S.R.2d 175, 176 (Land & Titles Div. 1994).
The circumstances in this case make the use of the Sotoa rule appropriate. There is a unanimity as to the original titleholder in family history due to the recent origin of the Misaalefua title. Because of this unanimity, the less arbitrary Sotoa rule is appropriate. Therefore, we hold that the trial court properly employed the Sotoa rule in ranking the candidates' hereditary rights.
As a second question of law, Lemaga contends that Tauiliili's 1/128 blood level is de minimus, and should be discounted entirely. In support of this contention, appellants rely on dicta in In re Matai Title Faumuina, LT No. 1265-72, slip op. at 13 (Trial Div. 1973). This reliance is unfounded for several reasons. First, this language is merely dicta. Second, the trial court's decision in Faumuina was reversed and remanded on appeal. Lutali v. Fuamuina, AP. No. 70-73 (App. Div. 1974). Finally, the court has recognized candidates with a blood relationship as small as 1/4096. See *26Asuega v. Manuma, 4 A.S.R. 616, 624 (Trial Div. 1965), aff'd, 4 A.S.R. 947 (App. Div. 1967). We believe a bright line rule on this issue would be arbitrary, and we decline to create one by judicial fiat.2 Moreover, a conclusion that 1/128 is too tenuous a blood relationship would be particularly inappropriate when using the Sotoa rule and measuring blood connections to the original titleholder. The appearance of remoteness many generations later does not diminish the fact of blood connection.
Sua and Felei dispute the trial court's application of the Sotoa rule, pointing out the evidentiary conflicts in the candidates' claimed genealogies from the original Misaalefua. This contention attacks the trial court's factual findings. Unlike questions of law, this court can set aside the trial court's findings of fact only if the findings are clearly erroneous. A.S.C.A. § 43.0801(b). The trial court was in the unique position to observe each claimant's demeanor on the witness stand. The trier of fact is in the best position to determine the weight and accuracy of the testimony. We hold that the trial court's findings on the candidates' hereditary rankings are sufficient under the clearly erroneous standard.
B. Wish of Majority or Plurality of Clan
The trial court found that there were four clans: Tuimálie, Agafala, Vaepala, and Faoliu. Lemaga and Sua assert that this finding is erroneous. We, however, conclude that the trial court's findings as to the current family clans was not clearly erroneous.
After determining the clans, the court found that no candidate had the support of the majority or plurality of the clans. Lemaga and Sua argue that the fact that the trial court found that no one prevailed on criterion 2 is a concrete indication that the trial court failed to render adequate findings on this issue. However, Lemaga and Sua fail to recognize that a finding that there was no majority is an adequate finding if it is not clearly erroneous. We believe that the trial court's findings in this regard are sufficient. There was sufficient evidence in the record indicating that no candidate had the support of the plurality or majority of the clans.
C. Criteria 3 and 4
Each appellant except Felei disagrees with the trial court's decision on criterion 3. All appellants dispute the decision on criterion 4. The trial court found that Tauiliili factually prevailed on criteria 3 and 4, and we do not find that this decision was clearly erroneous. Although we agree that a *27more detailed comparison between the candidates would be helpful, we do not believe the findings are patently insufficient.3
Conclusion
For the reasons set forth above, the trial court's decision is affirmed.
It is so Ordered.
In light of the many recent matai title decisions which have awarded title to a candidate who did not prevail on best hereditary right, we question the continued use of the Sotoa rule for this equitable purpose.
Such a rule is better left to the legislative process.
We express hope that in future matai title case, the trial division will better detail the findings and analysis of these two criteria. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486501/ | *29OPINION
KRUSE, Chief Justice.
On June 20, 1995, appellant Nu'usila Suani was charged with one count of unlawful possession of a controlled substance (márijuana) and one count of possession of a prohibited weapon. He was tried on November 20, 1995, and found guilty of unlawfully possessing a controlled substance in violation of A.S.C.A. § 13.1022. Because of a prior conviction for the same offense, appellant was sentenced to twelve years imprisonment. The court granted in part appellant's motion for reconsideration and reduced appellant's sentence to ten years. This appeal followed.
Facts
On April 7, 1995, the police, through the Office of the Attorney General, filed an application with the District Court for a warrant to search appellant's residence and land for "marijuana and related paraphernalia." However, the pre-prepared search warrant form presented to, and executed by, the District Court only addressed "marijuana plants." (No. SW 06-95). Armed with the warrant, a number of police officers visited appellant's home to execute the warrant. When the officers attempted to serve appellant with the search warrant, a heated verbal exchange ensued.
At some juncture during the argument, one of the officers began to search the land area surrounding appellant's residence. This search revealed two growing marijuana plants located approximately 30-40 yards from the residence. The officers placed appellant under arrest, led the appellant into his residence in handcuffs, and proceeded to search inside his home. The officers found in appellant's house a marijuana joint and an unopened briefcase containing "a .38 revolver, 462 marijuana seeds, a glass smoking pipe, three packets of cigarette rolling paper, and other drug paraphernalia." 29 A.S.R.2d 38, 39 (Trial Div. 1995) (Order Partially Granting Motion to Suppress).
At trial, appellant moved to suppress all of the evidence obtained during the search. The trial court denied the motion with respect to the two marijuana plants, but suppressed the marijuana joint and contents of the briefcase on the grounds that both the joint and the briefcase were beyoiid the scope of the warrant and that the briefcase's contents did not come within the "plain view" warrantless search exception.1
*30The trial court entered a guilty verdict on the charge of unlawful possession of the marijuana plants found in the general area around his house. Appellant now appeals his conviction claiming, among other things, that the evidence was insufficient to establish beyond a reasonable doubt that he "possessed" the marijuana plants found near his residence.
Discussion
For appellant to prevail on a claim of insufficient evidence, he must show that no rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Mares, 940 F.2d 445, 458 (9th Cir. 1991); United States v. Sanchez-Mata, 925 F.2d 1166, 1167 (9th Cir. 1991). "The inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the [trial court] could reasonably arrive at its verdict." United States v. Mares, 940 F.2d at 458.
A.S.C.A. § 13.1022 provides that "[e]xcept as authorized by the director [of medical services], it is unlawful for a person to possess a controlled substance." Marijuana is a controlled substance. A.S.C.A. §§ 13.1001 (a), 13.1006. In this matter, the trial court found that:
After discussions with an angry Suani for some 20 minutes, [Public Safety Officer] Leuma searched the area surrounding the house. This area was bush land and not under active farm crop cultivation by anyone other than Suani. Leuma located a growing plant, approximately two feet in height, which he visually recognized as marijuana, surrounded by a cleaned area and encircled by wire mesh, about 40 yards west of the house. He then found another plant, which he also visually recognized as marijuana, growing largely under the same conditions, about 30 yards north of the house.
Opinion and Order, entered Nov. 27, 1995, slip op. at 2. On the basis of these findings, the trial court concluded that "[appellant] was in constructive possession of the plants." Id.
In our view, the mere fact that appellant was defensive and angry under police interrogation and that he lived 90-120 feet from the two marijuana plants growing in nearby bush land is insufficient evidence to permit a conclusion beyond a reasonable doubt that the appellant was in *31"possession" of a "controlled substance." To establish "possession" of a controlled substance, the government must present sufficient evidence that the defendant had dominion and control over the contraband. See United States v. Kearns, 61 F.3d 1422, 1424-25 (9th Cir. 1995); Untied States v. Ramos-Rascon, 8 F.3d 704, 711-12 (9th Cir. 1993); Untied States v. Medrano, 5 F.3d 1214, 1217-18 (9th Cir. 1993).
Even viewing the evidence in the light most favorable to the prosecution, we hold that the evidence presented at trial failed to identify the appellant as the one who exercised dominion and control over the land where the plants were found. There was no evidence that he supervised the cultivation, ordered the planting, or joined a conspiracy to grow marijuana in the area, nor was there evidence that he handled or sampled or controlled access to the marijuana plant. Cf. Kearns, 61 F.3d at 1425 (stating that "brief sampling of the marijuana, in the absence of other steps taken to give him physical custody of or dominion and control over the drugs, is not sufficient to constitute 'possession'."); Medrano, 5 F.3d at 1217-18 (reversing a conviction on the grounds of insufficient evidence where there was no evidence at trial that undercover officers, who had placed contraband in the trunk of the defendant’s car pursuant to the defendant's instructions, had returned the car keys to defendants). To the contrary, as appellant points out, there was testimony at trial that indicated that the land area where the marijuana plants were growing was communal land, accessible to any number of his extended family members. Thus, the fact finder concluded unreasonably from the evidence presented at trial that appellant possessed the marijuana plant.
American Samoa's habitable land is largely composed of communally held real property without fences or rigid boundaries. If appellant's conviction is allowed to stand, we can envision situations in which the police would discover a marijuana plant on communal land, accuse anyone within a certain radius of the plant of possessing the plant, wait for a defensive or angry reaction, and then make an arrest for unlawful possession of a controlled substance. To the contrary, we are loathe to allow the setting of such a precedent but expect more from our police.2
*32Because we hold that the fact finder's conclusions were unsupported by sufficient evidence, we must reverse the appellant’s conviction.
Conclusion
For the reasons stated above, appellant's conviction is hereby REVERSED.
It is so Ordered.
Although the record suggests that the government might have advanced an argument for reconsideration of the suppression order on the grounds that the seizure of the brief case was incident to arrest, the government *30neither moved for reconsideration nor attempted to appeal the suppression order.
As a side note, we feel constrained to say that the prosecution of this case leaves more to be desired. First, the Attorney General's office committed a clerical error by limiting the scope of the warrant to "marijuana plants," rather than "marijuana and related paraphernalia." Additionally, while the marijuana joint found in appellant's home, the handgun, the quantity of marijuana seeds, and drug paraphernalia contained in the brief case, are compelling evidence of marijuana and weapon possession, the admissibility of these items of proof was not as vigorously pursued by the government as it might have been. If the government is going to seek convictions that entail extended prison *32terms, it behooves the government to be less lackadaisical with regard to available evidence that should ordinarily secure conviction. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486504/ | ORDER DENYING PETITION FOR REHEARING
*41Introduction
This controversy began when appellant Punefuolemotu M. Tuaolo ("Punefu") filed a claim to the matai title "Tuaolo" of the village of Pago Pago. • Ip. response,/to ,- Ppnefu's, action,appellant ,Saelua: Faate'a ("Tutuvanu") and appellee Manaia E.T. Vaivao Fruean ("Vaivao") filed counterclaims. After, a trial on-the; iperits,the trial- court awarded the title to Vaivao. Punefu and Tutuvanu,, appealed the trial court's decision, alleging (1) that the trial court's decision was clearly erroneous, and (2) that an appearance of partiality among the sitting associate judges impermissibly tainted the trial court's proceedings.
On June 16, 1997, this court issued an -opinion and order that rejected appellants' contentions and affirmed the decision of the trial court. On Jime.27., 1997, Punefu.filed a petition for ,rehearing. , . : .
Discussion
"A rehearing is not a matter of right, but is a privilege granted at the discretion of the appellate court," Fanene v. Fanene, 30 A.S.R. 2d 115, 116 (1996). The decision of an appellate court will stand unless the .petitioner cap present an argument demonstrating, that tfte appellate court "overlooked-or misapprehended" particular, "points of law or fact:" A.C.R. 40. .
Ip.the instapt-case, Punefp's petition;for rehearing primarily rehashes the sanie sarguments, that¡ he. presented an the initial appeal-arguments, that we concluded were ,unpersuasive.,. See Toleafoa v. American Samoa Gov't, 26 A.S.R.2d 71, 72 (App. Div. 1994); see also Soli Corp. v. Amerika Samoa Bank, 25 A.S.R.2d 94, 95 (App. Div. 1993). We find nothing in the petition-for rehearing-that exposes "demonstrable mistake" in our June 16, 1997, Opinion and Order. Toleafoa at 72. ■ , . ;
Accordingly, the petition fpr rehearing is p.ENIED.,
It is so Ordered, | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486505/ | *43OPINION
GOODWIN, Acting Associate Justice.
Gary W. Bradcock appeals from a summary judgment entered in favor of the government in his action for damages brought under the tort claims act. A.S.C.A. § 43.1201 et seq. The trial division held that the action was barred by Bradcock's failure to commence the action until two years, nine months, and seventeen days after his alleged injury. We affirm the judgment.
On January 7, 1992, while returning to the ship where he was employed as Chief Engineer, Bradcock was injured in an attack by an unknown assailant. He alleges that the injury occurred because the American Samoa Government was negligent in its duty to provide adequate security for the waterfront area.
On September 30, 1993, Bradcock filed a government tort administrative claim with the ASG Attorney General pursuant to A.S.C.A. § 43.1205. This claim was effectively denied on December 30, 1993. A claim is deemed denied if three months elapse after the filing of the claim with no reply by the Attorney General. See A.S.C.A. § 43.1205.
On October 25, 1994, Bradcock filed this action. On January 6, 1995, the ASG moved for summary judgment on the ground that the two year limitation period prescribed in A.S.C.A. § 43.1204 had expired. Placing its decision on the grounds of laches, the trial division granted summary judgment in favor of the ASG.
We begin with § 43.1204, which states that "[a] tort claim against the government shall be forever barred unless an action on it is begun within 2 years after the claim accrues."
The trial division in Mataipule v. Tifaimoana Partnership, Ltd., 16 A.S.R.2d 48 (Trial Div. 1990), held that a claim accrues for purposes of § 43.1204 when the administrative claim is denied. The next year, in Randall v. American Samoa Government, 19 A.S.R.2d 111 (Trial Div. 1991), the trial division questioned Mataipule because of a concern that Mataipule effectively grants a four-and-a-half year statute of limitations to tort claimants against the government "in curious contrast to the two years given those who have been injured by private persons.” Randall, 16 A.S.R.2d at 116.
We need not canvas all the problems created by “accrues” as held in Mataipule in this case because it is possible to harmonize § 43.1204 and the plain meaning of “accrues” with the legislative purpose of § 43.1204 *44by means of the familiar doctrine of tolling. When a plaintiff files a claim with the Attorney General at any time within the two-year period provided by § 43.1204, the running of the two-year period is stayed and the statute is tolled for such time as the Attorney General takes to act upon the claim or until such time as the claim is denied by default, as happened in this administrative claim.
In Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1523 (9th Cir. 1987), in dealing with a statute of limitations problem in a Clean Water Act case, the court said: “In this circuit, the rule is that ‘if prior resort to an administrative body is a prerequisite to review in court, the running of the limitations period will be tolled during the administrative proceeding.’” (citations omitted). We believe the same policy applies to a mandatory administrative procedure as a condition to filing a claim in court.
The principal purpose of statutes of limitations is to prevent plaintiffs from sleeping on their rights and to give defendants relief from stale claims. That purpose is served by the requirement that prompt resort be had to the administrative claim procedure, and it is further served by requiring prompt filing in court within the statutory period after the administrative claim has been processed.
In this case, the trial court was faced with the precedent of the Mataipule case, and the warning in the Randall case that the purpose of the statute of limitations could be frustrated by delay filing the administrative claim, especially when followed by further delay in filing the court action. The trial court met this situation by adapting the equitable principle of laches to both Bradcock's administrative claim and to his delay from December to the next October in filing his court action.
In order to draw something of a bright line for these tort claims against the ASG and to resolve the tension between the Mataipule case and the statute of limitations, we adopt the tolling principle for the period of administrative processing, and add that time to the remaining time under the statute of limitations. In the case at bar, the plaintiffs delay, whether reasonable or not, a matter that was not explored in the trial court, was prejudicial to the defendant, and was taken at the peril of the plaintiff when no effort was made for ten months to go to court after the administrative claim was denied. Accordingly, the judgment of the trial division is affirmed.
AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486507/ | Initially, plaintiff Bank of Hawaii ("BOH") filed this action to recover the unpaid principal balance, interest, attorney's fees and costs on a promissory note executed by defendant General Repairs, Inc. ("General Repairs"), secured by a chattel mortgage in two 1995 Chevrolet mini buses (respectively "bus #1" and "bus #2"), and guaranteed by defendant George Neru ("Neru"). Later, BOH filed an amended complaint to additionally set aside the conveyances of both buses by General Repairs and Neru to defendant American Samoa Government ("ASG"), recover possession of the buses from ASG, and enforce the security agreement.
On November 13, 1996, the court entered a default judgment in BOH's favor against General Repairs and Neru for $45,509.12, including prejudgment interest of $5,398.52, post-judgment interest at the rate of 11.75% per year, and an as yet undetermined amount of attorney's fees and costs. The cause of action against ASG came regularly for trial on January 31,1997, with both counsel and Neru present.
Facts
On November 16, 1994, ASG issued a "Solicitation for Bids," No. 571-95, to procure a 1995 Chevrolet mini bus. On February 7, 1995, ASG, using this solicitation, awarded General Repairs contracts for the purchase of bus #1 for ASG's Special Education program, Purchase Order No. P50186, and bus #2 for its Vocational Rehabilitation program, Purchase Order P50188.
ASG paid General Repairs $16,726.50 of the contract price for bus #1 on or about March 6, 1995, and the balance of $31,063.50 on or about July 14, 1995. A-Z Bus Sales, Inc. ("A-Z Sales") invoiced bus #1 to General Repairs on May 8, 1995, and shipped the bus from California on a South Seas Steamship Co. Inc. ("South Seas Steamship") vessel. Bus #1 arrived in American Samoa on or about September 6, 1995, under a bill of lading, dated June 8,1995, designating "American Samoa Government c/o General Repairs" as the consignee. Bus #1 was released to ASG, without assessment of any import excise tax.
*54ASG paid General Repairs $16,027 of the contract price for bus #2 on or about March 17, 1995, and the balance of $29,763 on or about May 15, 1995. A-Z Sales also invoiced bus #2 to General Repairs on May 8, 1995. However, A-Z Sales actually shipped a 1996 Chevrolet mini bus ("bus #3"), in lieu of bus #2, from California on a South Seas Steamship vessel. Bus #3 arrived in American Samoa on or about September 16,1996, under a bill of lading, dated August 29, 1996, designating "American Samoa Government Department of Education" as the consignee. Bus #3 was also released to ASG, without assessment of any import excise tax.
On May 26,1995, BOH loaned General Repairs $70,000, payable in full on August 24, 1995. On the same date, Neru, as president of General Repairs, signed a Security Agreement/Chattel Mortgage ("security agreement") providing BOH security for the repayment of the loan. The security agreement granted a security interest in, among other things, bus #1 and bus #2. General Repair failed to pay off the loan on time and BOH extended the due date to November 13, 1995. Then, on December 29, 1995, when General Repairs still had not fully paid the loan, BOH and General Repairs refinanced the loan, with a new due date of March 31,1996.
On May 12, 1996, after General Repairs failed to pay the refinanced loan, BOH notified ASG that General Repairs was not permitted to transfer BOH's security, bus #1 and bus #2, without BOH's consent and that BOH did not consent to the transfer of the buses to ASG. On July 3, 1996, ASG responded by denying that General Repairs had ever held title to the Vehicles and thus could not have granted a security interest in them.
On August 1, 1996, BOH requested that ASG relinquish bus #1 and stated that BOH intended to take possession of bus #2 upon its arrival in September 1996. On August 1, 1996, BOH also notified General Repairs and Neru that it demanded delivery of bus #2 upon its arrival in American Samoa. ASG presently retains possession of both bus #1 and the replacement bus #3.
ASG has procured buses and vans from General Repairs in the past. A partial list includes three buses and two vans in 1994. However, neither General Repairs nor Neru is licensed as a dealer of any kind of vehicles, and neither offers buses for sale to the general public.
BOH asserts a security interest in both bus #1 and bus #3 and wishes to foreclose on that interest. ASG asserts that it owns both buses free from BOH's claims.
*55Discussion
In American Samoa secured transactions are governed by the common law except where those principles have been modified by statute or are otherwise inappropriate to local conditions. Dev. Bank of American Samoa v. Reed, 5 A.S.R.2d 135 (Trial Div. 1987).
A.S.C.A. § 27.1510 dictates when a chattel mortgage is valid:
No mortgage, bill of sale, conditional sales contract, deed of trust or conveyance or personal property which is not accompanied by a permanent delivery thereof to the vendee is valid as to persons who do not have actual knowledge thereof unless all of the following conditions are met:
(1) it is in writing signed by the person to be bound and attested to by at least one witness;
(2) it is filed with the territorial registrar within 10 days after its execution;
(3) it truly states the consideration upon which it was based or the debt or liability which it was intended to secure, and contains a description of the specific article, articles, or land sold or mortgaged.
Of course, one cannot grant a chattel mortgage or security interest in property without first having some rights in that property. Here the parties disagree as to whether General Repairs or Neru ever had any property interest in any of the buses at issue.
The resolution of this question depends largely on when and to whom A-Z Sales transferred title to the buses. A-Z Sales' invoices state that General Repairs is the customer to whom the buses were sold. However, this alone does not dictate when and to whom the title attached.
Under the common law, title passes as soon as the bargain is struck. See J.W. Ehrlich, Ehrlich's Blackstone, 395 (Nourse Publishing Co. 1959). Thus, under the common law, General Repairs would have had title to both vehicles on May 8, 1995, the dates of the invoices and the apparent date when the "bargain was struck." However, it appears that, under this rule, ASG acquired title to bus #1 and bus #2 on February 7, 1995, when it accepted General Repairs bid and rendered purchase orders P50186 and P50188. Thus, when the common law is applied to the situation at bar it appears that ASG acquired title from General Repairs before General Repairs could have acquired title from A-Z Sales. Obviously, General Repairs could not possibly transfer a title which it did not have.
Instead of speculating on how the common law might deal with such a situation, however, we find it more appropriate to determine that this is one *56of those instances in which the common law is inapplicable to present conditions. The short passage from Erlich's Blackstone on this issue did not, and could not, properly address the transfer of title in complicated sales contracts. In Blackstone's time sales contracts were simple.1 Contracts did not deal with delivery to foreign lands or installment sales or purchase orders. As such, we believe that this common law principle is ill suited for determining when the transfer of title occurs in today's sophisticated global economy.
Although the common law does not adequately address the issue of title transfer in the modem context, the Uniform Commercial Code ("UCC") does. Under UCC § 2-401(2) it is clear that:
(2) ... title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading
(a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but
(b) if the contract requires delivery at destination, title passes on tender there.
Although the UCC has not been adopted in American Samoa,2 we believe its wisdom on this subject is reasonable, especially in light of inappropriate applicability of the common law. From the evidence, it appears that the contract between General Repairs and A-Z Sales required A-Z Sales to ship the buses but did not require delivery at destination.3 Therefore, title transferred from A-Z Sales to General Repairs, upon A-Z *57Sales' tender of the buses to South Seas Steamship. This occurred on June 8,1995, for bus #1 and on August 29,1996, for bus #3 .
Thus, prior to their arrival in American Samoa, and after the signing of the security agreement, bus #1 and bus #2, described in the security agreement and in the A-Z Sales invoices, were owned by General Repairs. As such the security agreement was valid, ab initio, to those buses as described. The question then turns on whether the security agreement is valid as to bus #1 and bus #3 now in ASG's possession and, if initially valid as to these buses, whether subsequent events have invalidated BOH's security interests.
I. Bus#l
Bus #1 is without question the same bus described in the security agreement. It is the same year, make and model and has the exact same VIN number. As such, BOH's security interest in bus #1 had vested upon its arrival to American Samoa. Thus, when the title passed from General Repairs to ASG (upon delivery to ASG by General Repairs), that title was encumbered by BOH's security interest. Although ASG asserts that it had no actual knowledge of the security agreement, the security agreement was filed pursuant to A.S.C.A. § 27.1510 and, thus, ASG has constructive knowledge of BOH's non-possessory lien against bus #1.
A. Buyer in Ordinary Course
ASG, however, argues that it is a buyer in the ordinaiy course and should not have constructive knowledge imputed to it. We disagree. First, the "buyer in the ordinaiy course" doctrine was not available, as such, at common law. Rather there were common law cases which recognized that a mortgage on a stock of goods, wares, and merchandise was void as to purchasers of such goods. See e.g. Boice v. Finance & Guaranty Corp., 127 Va. 563, 102 S.E. 591 (1920). This common law approach was not truly a "buyer in the ordinary course" rule but rather was based on the principle of equitable estoppel, which we will address separately below.
The "buyer in the ordinary course" doctrine was a label used by the UCC in an attempt to organize and codify these common law principles. UCC § 1-201(9) defines a buyer in the ordinaiy course of business as a person who:
in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in goods buys in ordinaiy course from a person in the business of selling goods of that kind but does not include a pawnbroker.
*58UCC § 9-307(1) goes on to state:
A buyer in ordinary course of business . . . takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer know of its existence.
These UCC provisions make good commercial sense when, for example, a dealer or retailer collateralizes inventory for credit purposes. Thus, under the UCC, if we were to determine that General Repairs was in the business of selling buses, ASG would have taken both bus #1 and bus #3 free and clear, even with actual knowledge of BOH's security interest. We, however, do not believe that the evidence suggests that General Repairs or Neru was in the business of selling buses. Neither General Repairs nor Neru is a licensed bus dealer. More important, they do not hold themselves out to the general public as bus dealers. The present and past transactions are occasional, occurring only when ASG periodically procures buses and vans. As such, even if this court were to apply the UCC's rule regarding "buyers in the ordinary course," we do not find that General Repairs or Neru is "in the business of selling" buses.
B. Equitable Estoppel or Laches
As discussed above, the common law recognized a quasi-buyer in the ordinary course doctrine. ASG argues that the common law rule of equitable estoppel should be applied in this circumstance. ASG's argument is based on BOH's failure to assert it rights to bus #1 until well after BOH knew that ASG had gained title and possession of bus #1. We believe that Tumber v. Automation Design & Mfg. Corp, 324 A.2d 602 (1974) is closely on point with the case at bar.
In Tumber an owner entrusted a machine to a corporation under a lease agreement which was never completed. The owner acquiesced to the use of machines by two others and the machines were later purchased by another corporation. A couple years later the original owner demanded the machines. The court held that the original owner was the one who made the wrongful sale possible and should bear the loss by being estopped from asserting title. In the case at bar, BOH knew that bus #1 was going to be sold and delivered to ASG, in violation of the security agreement. Bus #1 arrived in American Samoa on or about September 6, 1995 and was immediately delivered to ASG. BOH waited until May 12, 1996, to assert any interest in bus #1. BOH knew at the signing of the security agreement that ASG was the end purchaser of bus #1, yet waited until over eight months after ASG took possession and title to bus #1 to assert its interest. We believe that BOH's actions as to this bus were unreasonable and that it *59should bear the loss by being estopped from asserting its security interest in bus #1.
II. Bus #3
Bus #2, the vehicle specifically in the security agreement, and bus #3, the vehicle that actually arrived in American Samoa, are different vehicles. ASG argues that since bus #2 and bus #3 are not the same vehicle, the security agreement does not cover bus #3.
As stated above, A.S.C.A. § 27.1510 dictates when a chattel mortgage is valid. The description requirements set forth in subsections (1)-(3) only apply to "persons who do not have actual knowledge thereof." Both General Repairs and ASG had actual knowledge of BOH's security in two buses. Two buses are described in the security agreement, were sold to General Repairs by A-Z Sales, and arrived on island. Regardless of their model years and VIN numbers, all parties knew that these buses were the buses to be covered by the security agreement.4 Specifically, ASG knew of this securily interest before it took title and possession of bus #3 in place of bus #2. As such, we find that BOH has a valid security interest in bus #3.
Therefore, since the equitable considerations discussed as to bus #1 are not applicable to bus #3, we find that BOH has an enforceable security interest in bus #3.
Conclusion
General Repairs owned bus #1 and bus #3. BOH had a security interest in both of those vehicles, which attached prior to General Repair's transfer of title to ASG. As to bus #1, we find that BOH is estopped from asserting its security interest. As to bus #3, we find BOH's security interest is valid and enforceable and order foreclosure of that security interest. General Repairs' transfer of bus #3 to ASG is set aside, and ASG must surrender possession of bus #3 to BOH.
It is so Ordered.
Indeed in his discussion of title transfer, Blackstone uses an example of a sale of a horse for ten pounds. This common law principle was meant to apply to such simple sales. See J.W. Ehrlich, Ehrlich's Blackstone, 395.
The UCC has, however, been adopted in every state save Louisiana. In addition, the UCC has also been adopted in the District of Columbia and in territory of the Virgin Islands. 67 Am. Jur. 2d, Sales. 1.
We note that there is a strong presumption against the creation of destination contracts and in the absence of a contract term or trade usage to the contrary, a contract which contemplates the transportation of goods from the seller to the buyer will be interpreted as a shipment contract and not as a destination contract. 67 Am. Jur. 2d, Sales. 393.
Even the A-Z Sales invoice indicated bus #2 was the bus being shipped to General Repairs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486509/ | ORDER DENYING MOTION TO DISMISS
Defendants move to dismiss the plaintiffs original complaint for lack of jurisdiction and for failure to state a claim pursuant to T.C.R.C.P. Rule 12(b).
*64Defendants argue that the High Court lacks jurisdiction in this matter due to plaintiffs initial failure to plead the jurisdictional amount. Plaintiff, however, has since filed an amended complaint pleading the jurisdictional amount. The amended complaint was filed after the motion to dismiss but before the defendant's answer.
T.C.R.C.P. Rule 15(a) allows a party to amend his pleadings once, as a matter of course, any time before a permitted responsive pleading is served. A Rule 12(b) motion to dismiss, such as the one now before us, is not a responsive pleading for purposes of Rule 15(a). See Wright, Miller & Kane, Federal Practice & Procedure, Civil 2d § 1483. Defendants' argument regarding plaintiffs initial failure to state the jurisdictional amount is therefore moot. Further, we do not find that the amendment is made in bad faith.
Defendants also argue that the complaint fails to state a claim upon which relief can be granted. However, we find that the plaintiffs amended complaint sufficiently states a claim.
For the reasons set forth above defendants’ motion to dismiss is denied.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486510/ | ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF’S CAUSE OF ACTION WITHOUT PREJUDICE
I. Introduction
On April 4, 1996, plaintiff Anthony Tauai filed a complaint in the High Court against the American Samoan Government ("ASG") for unpaid wages. In that complaint, Tauai claimed that he has worked for the Department of Port Administration as a career service employee since 1983, that he performed duties as a "seaman" until December 4, 1989, and that he performed the duties of a port "captain" at the express request of the Director of Port Administration from December 4, 1989, until October 23, 1995. Tauai claimed that during his service as a port captain, he was paid only the lesser salary of a seaman, and that he was therefore entitled to judgment against ASG for the difference in value between a seaman's salary and a captain's salary for the period of his service as a port captain.
After the parties stipulated to a number of material facts, ASG moved for summary judgment on Tauai's claim, on the grounds that Tauai's appointment was never approved by the Director of Manpower Resources as required by A.S.C.A. § 7.0206(e). Tauai opposed ASG's motion and filed its own motion for summary judgment, claiming that Tauai was entitled to his unpaid captain's wages on the theory of quantum meruit.
*66II. Discussion
Tauai has requested declaratory and other relief in his complaint. This court has discretion to refuse declaratory relief when, under all the circumstances, it is not necessary or proper at the time it is sought. A.S.C.A. § 43.1102; Sala v. American Samoa Government, 21 A.S.R.2d 50, 57 (Trial Div. 1992). Exhaustion of administrative remedies is a prerequisite to judicial review in the context of most actions for declaratory relief. Sala, 21 A.S.R.2d at 57 (stating that the "exhaustion of administrative remedies standard does not absolutely preclude earlier judicial action, but such action is permissible only in exceptional circumstances.").
The American Samoa Administrative Code establishes a three-part procedure for handling employee grievances within the Executive Branch. A.S.A.C. § 4.0903. In the instant case, it appears, at the very least, that the Personnel Advisory Board, PAB, the advisory agency charged with reviewing employment disputes, has not had an opportunity to review this case. See Plaintiffs Complaint, at 3 (alleging that the "director of Manpower Resources has denied plaintiffs appeal and refuses to bring [the] matter before the Personnel Advisory Board as directed in A.S.A.C. § 4.0902.").
We are unable to determine from the record before us that the 3-part grievance procedure was properly followed. We believe, as did the court in Sala, that the procedures established in A.S.A.C. § 4.0903 are "significant step[s]" in dealing with employee grievances. 21 A.S.R.2d at 57. Therefore, we deny the cross-motions for summary judgment, dismiss this action without prejudice, and direct Tauai and Director of Manpower Resources to follow the procedures established in A.S.A.C. § 4.0903.
Tauai must submit his grievance in writing to his supervisor, if he has not yet done so. A.S.A.C. § 4.0903(b)(1). The Director of Manpower Resources must conduct an informal hearing in accordance with the Personnel Operations Manual, if he has not yet done so. A.S.A.C. § 4.0903(b)(2). Once the Director of Manpower Resources has issued a "final decision" on the matter, then Tauai must carry his case as an appeal to the PAB. A.S.A.C. § 4.0903(b)(3).
III. Conclusion
Accordingly, Tauai's motion for summary judgment is denied; ASG's motion for summary judgment is denied; Tauai's complaint is dismissed without prejudice; and Taui and the Director of Manpower Resources are directed to comply with A.S.A.C. § 4.0903.
*67It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486799/ | ORDER DENYING MOTION TO TERMINATE PREGNANT PLAINTIFFS, RETURNING THEM TO WORK AND AD JUDGING CONTEMPT
Current Procedural Events
On August 16, 2000, Vietnamese plaintiffs (“plaintiffs”) again asked the Court to hold defendants Daewoosa Samoa, Ltd. (“Daewoosa”) and Ku - Soo Lee (“Lee”) (together “defendants”) in contempt and require defendants to abide by certain orders entered in this case. On August 24, 2000, defendants sought permission to terminate three pregnant plaintiffs and return them to Vietnam. Both motions were heard on September 22, 2000.
*173On September 26, 2000, plaintiffs requested, yet again, that we find defendants in contempt for allegedly labeling the eight plaintiffs who attended the September 22, 2000 hearing “troublemakers” and refusing to put them back to work. The hearing on this motion was held on September 29, 2000.
Finally, on October 5, 2000, plaintiffs appealed to the Court to hold defendants in contempt for failing to put five plaintiffs, including three pregnant plaintiffs, back to work. We heard this motion on October 10, 2000. ■/. ,
Discussion
The Court has issued various orders that are relevant to the August 16, September 26, and October 5, 2000 contempt applications. These orders enjoined defendants from: (1) terminating the sponsorship of plaintiffs without affording them an opportunity to consult with then attorneys and to appear before the Immigration Board (“December 29, 1999 order”); (2) preventing plaintiffs from working at Daewoosa because they are plaintiffs in this action (“April 4, 2000 order”); and (3) pressuring plaintiffs to terminate or in any other manner preventing or discouraging any of them from prosecuting these actions (“July 14, 2000 order”). The three orders were duly and regularly made. Defendants had knowledge of the three orders and ability to comply with them.
A. Labeling of Plaintiffs and Termination of Sponsorship
The evidence received at the September 22, 2000 hearing established that, by letter dated August 15, 2000 (“August 15th letter”), Lee, on Daewoosa’s behalf, requested the Immigration Board to terminate Daewoosa’s sponsorship of 38 plaintiffs. The listed plaintiffs were described as “problem workers” for various reasons cited on a list that defendants posted at Daewoosa’s premises. The reasons remain unproven. Lee attended the Board’s hearing on the matter on August 16, 2000. Defendants argue that, in contacting the Immigration Board, they merely intended to ask for the Board’s guidance regarding certain incidents of public criticism of their operations. Again, however, the incidents of criticism remain unproven. Moreover, the plain terms of the August 15th letter belie this claim and illustrate that defendants’ real purpose was to terminate Daewoosa’s sponsorship of the listed plaintiffs.
After attending the September 22, 2000 hearing, plaintiffs Dung Thi Mirih Tam, Bui Binh Hung, Nguyen Ban Bhanh, Dong Thi Hao, Ngo Thu Hang, Truong Le Quyen, Nguyen Thi Time Dung, and Nguyen Thi Thanh Thuy were labeled “troublemakers” and not permitted to return to work when Daewoosa resumed operations during the week of September *17425, 2000. At the September 26, 2000 hearing, -defendants failed to proffer any reasonable explanation for this failure. Accordingly, we specifically ordered defendants to return all plaintiffs to work on the following Monday, October 2, 2000.
In publishing derogatory labels of certain plaintiffs as “problem workers” and “troublemakers” on two separate occasions, defendants willfully and contemptuously violated the April 4, 2000 order and July 14, 2000 order. In referring Daewoosa’s sponsorship of those plaintiffs to the Immigration' Board for termination without affording them opportunity to consult with their counsel, defendants willfully and contemptuously violated the December 29, 1999 order.
B. Pregnancy Discrimination
On September 26, 2000, we also ordered defendants to assign plaintiffs to alternative work if any of them were unable to perform work duties due to pregnancy. However, defendants failed to return three pregnant plaintiffs, Nguyen Thi Hanh, Do Thi Kim Thuy, and Cao Thi Thuy (together “pregnant plaintiffs”) back to work, or assign them alternative work. The pregnant plaintiffs are the subject of defendants’ motion to terminate plaintiffs due to pregnancy. This issue was first taken up at the September 22, 2000 hearing and again at the October 10, 2000 hearing.
The issue of whether defendants may legitimately terminate or restrict employment of plaintiffs solely because they are pregnant is of first impression before this Court. Defendants have a policy, at least implicitly, to terminate female employees who become pregnant.1 The fundamental issue at this juncture of the proceedings is whether defendants’ no tolerance for pregnancy policy is permissible under the laws of American Samoa.
Many states prohibit employers from discharging or restricting employment agreements for reasons that will contravene public policy.2
*175Public policy must be clearly established by statute or constitution. Both local and federal law have been recognized as valid public policy sources in wrongful discharge claims. See Green v. Ralee Eng’g Co., 960 P.2d 1046, 1056, 1061 (Cal. 1998) (finding that federal regulations are a valid pubhc pohcy basis if consistent with authorizing statute); Faulkner v. United Techs. Corp., 693 A.2d 293, 295 (Conn. 1997) (allowing pubhc pohcy based upon federal law even though the plaintiff failed to allege any specific connection between the federal statute and the pohcy of the state); Badih v. Myers, 36 Cal. App. 4th 1289 (Cal. App. Ct. 1995) (finding pubhc pohcy against pregnancy discrimination in state constitution and federal law).
In Badih, the California court allowed an employee, who was discharged on account of her pregnancy, to maintain a cause of action as a violation of California’s pubhc pohcy against pregnancy discrimination. See generally Badih, 36 Cal. App. 4th 1289. Analyzing both amendments to Title VII and California constitutional provisions, the Badih court found a fundamental pubhc pohcy against pregnancy discrimination. See id.
1. American Samoa Rules Support Anti-Pregnancy Discrimination Public Policy
American Samoa’s administrative rules, having the force and effect of law, protect pregnancy-related illness. Government employees are entitled to “earn sick leave at the rate of 4 horns or 54 workday for each full biweekly pay period.” A.S.C.A. § 4.0506(a)(1). The rules recognize that “incapacitation related to pregnancy and confinement” is a disability that is chargeable to accrued sick leave. A.S.A.C. § 4.0506(c).
Pregnancy-related disability is also excepted from the strict requirement that absent proof of illness, sick leave may only be granted for up to three days. If the due date of birth is medically certified, maternity leave is liberally allowed for up to six weeks prior and six weeks subsequent to birth. See A.S.C.A. § 7.1202(b); A.S.A.C. §§ 4.0506(c), 4.0509(b).
These administrative rules applied in American Samoa’s cultural context, which promotes the aiga or family well-being, clearly demonstrate a territorial pubhc pohcy in favor of protecting the working mother-to-be against discrimination based on pregnancy.
2. Title VIIProtects against Pregnancy-Related Discrimination in the Workplace
*176In 1978, in reaction to the Supreme Court’s decision in General Electric v. Gilbert, 429 U.S. 125 (1976), that pregnancy discrimination was not sex discrimination, Congress passed the Pregnancy Discrimination Act (“PDA”), which explicitly banned pregnancy discrimination. 42 U.S.C. § 2000e(k); see Newport NewsSipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669 (1983) (finding employer’s health plan, which afforded less protection to pregnantspouses, violated PDA); California Federal Sav. and Loan Ass’n v. Guerra, 758 F.2d 390 (9th Cir 1985).
When Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision.
Badih, 36 Cal. App. 4 at 1294 (citations omitted).
The PDA amended the terms “because of sex” or “on the basis of sex” in Title VII of the Civil Rights Act of 1974 to include “because of or on the basis of pregnancy, childbirth, or related medical conditions,” and provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(lc) (emphasis added). In California Federal Sav. and Loan Ass’n, 758 F.2d 390, the Court, in upholding a California statutory provisions allowing employees up to four moths leave for pregnancy related illness held that the PDA required states to provide equal employment opportunities to pregnant women.
By making pregnancy a substitute for sex in Title VII’s antidiscrimination mandate, Congress procured forpregnancy that which it had already procured for sex: a guarantee against discrimination of all varieties, including facially neutral policies with a disparate impact.
Id. at 396 (citation omitted).
The trend in federal law towards explicitly protecting pregnancy classifications at work as sex-based discrimination, and guaranteeing equal employment opportunity of pregnant workers, illustrates a clear public policy against employment discrimination based on pregnancy. The administrative rules of American Samoa are consistent with this policy.
Based upon Title VII and the Territory’s regulatory scheme, American Samoa has formulated a public policy against pregnancy discrimination in the workplace. On its face, defendants’ no tolerance for pregnancy policy discriminates against the pregnant plaintiffs on *177account of their pregnancy. Unless defendants can demonstrate a legitimate interest in their policy, which interest can not be achieved through a variety of less drastic, and sexually neutral means, defendants’ guidelines are an infringment on American Samoa policy, and are therefore, impermissible. At the October 10, 2000 hearing, defendants suggested but failed to present any convincing evidence that they had a legitimate safety concern for the pregnant plaintiffs that could not be addressed by assigning them alternative duties.
Like defendants’ other actions, the motivation for their refusal to permit the pregnant plaintiffs to work comes across as an effort to discourage them from pursuing this action simply because they are plaintiffs, again in violation of the April 4, 2000 order and July 14, 2000 order. Therefore, we will deny the motion to terminate the pregnant plaintiffs and hold defendants incontempt once more for not returning them back to work.
Order
1. Defendants’ motion to terminate the pregnant plaintiffs and return them to Vietnam is denied.
2. Defendants shall put the pregnant plaintiffs back to work, retroactively with pay from October 2, 2000. If for some legitimate reason they cannot perform their normal duties due to their pregnancy, defendants shall assign them to alternative duties, without any loss of pay.
3. For the reason stated above, defendants are adjudged in contempt of court for their violations of the Court’s orders of December 29, 1999, April 4, 2000, and July 14, 2000.
4. In light of defendants’ constant failure to heed this Court’s orders, and the non-deterring effect of previously imposed sanctions, it appears that we must resort to the severe penalty of imprisonment and more substantial fines before defendants will begin to take the Court’s orders seriously. Accordingly, Lee is sentenced to imprisonment for 10 days at the Tafiina correctional facility. Lee and Daewoosa are also each fined $10,000.
5. In addition, defendants shall pay, not later than seven days after the entry of this order, directly to Virginia L. Sudbury and Christa Tzu-Hsiu Lin, plaintiffs counsel, $1,000.00, as and for-attomey’s fees and costs incurred in these contempt proceedings.
6. We will give defendants one final chance to demonstrate their willingness to toe the line and comply with the Court’s orders. Execution of Lee’s term of imprisonment and each of the defendants’ *178fines is suspended on condition that they comply with all orders of the Court in this action, including but not limited to timely payment of the $1,000.00, as and for attorney’s fees and costs incurred in these contempt proceedings, to plaintiffs’ counsel.
It is so ordered.
Although defendants deny entering any written contracts with their employees or with the two employment agencies in Vietnam procuring the employees, a written employment contract was admitted into evidence at the October 10, 2000 hearing. The contract states in pertinent part: “If employee . . . female employee [sic] getting pregnant during working period, they will be dismissed.” (Ex. 1 at 7.) However, none of the three pregnant plaintiffs are parties to this contract or any other known contract. Regardless, elicited testimony from both Lee and Soliai demonstrate that defendants have a policy to terminate employees once they become pregnant.
Generally, these principles have been applied in tort actions for wrongful discharge. Nonetheless, where defendants’ intolerance for *175pregnancy pohcy is a matter of pubhc concern, these principles are applicable to the case at bar. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486800/ | ORDER ON CROSS SUMMARY JUDGMENT AND RELATED PENDING MOTIONS
Plaintiffs American Samoa Power Authority (“ASPA”) and Travelers Indemnity Company (“Travelers”), as subrogee of ASPA, move pursuant to T.C.R.C.P. 56 for partial summary adjudication on their breach of warranty claims against Defendant Deutz MWM Far East (PTE), Ltd. *181(“Deutz”).1 Deutz cross moves for summary judgment on the two claims for breach of warranty and also moves to dismiss ASPA from the lawsuit. In addition, before the Court, are a number of additional motions brought by the parties and discussed in detail below.
I. MOTIONS TO STRIKE
A. Deutz’s Motion to Strike
Deutz moves to strike portions of Travelers’ memorandum of law and exhibits 9 and 10 thereto. Deutz argues that large portions of Travelers’ memorandum of law should be stricken because Travelers makes conclusory and unsupported statements in its partial motion for summary judgment. However, none of the authorities cited by Deutz supports its contention that portions of Travelers’ memorandum should be stricken. Rather, the cases cited by Deutz merely demonstrate that an affidavit filed in support of summary judgment that does not comply with Rule 56(e) may be stricken. Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 831 (1950), overruled in part by Lear, Inc. v. Adkins, 395 U.S. 653 (1969); Wells Dairy, Inc. v. Travelers Indem. Co., 241 F. Supp. 2d 945, 955-58 (N.D. Iowa 2003); Servants of Paraclete, Inc. v. Great Am. Ins. Co., 866 F. Supp. 1560, 1564-68 (D.N.M. 1994); Jewell-Rung Agency, Inc., v. Haddad Org., Ltd., 814 F. Supp. 337, 339 (S.D.N.Y. 1993). Deutz does not seek to strike a supporting affidavit but, rather, seeks to strike portions of Travelers’ legal memorandum. We refuse to distort these cases by extending them to a party’s legal briefing. Deutz’s motion to strike portions of Travelers’ memorandum is denied.
In addition, Deutz claims that exhibits 9 and 10 to Travelers’ motion do not comply with the requirements of T.C.R.C.P. 56(e), and Deutz moves to strike them as inadmissible hearsay evidence.2 Exhibit 9 is a letter from ASPA to Deutz and exhibit 10 is a letter from Deutz to ASPA. Travelers does not address the admissibility of these exhibits in its response and fails to offer any exception to the hearsay mle that would allow these exhibits to be considered as evidence. Nonetheless, we find that exhibit 10 is admissible under T.C.R.Ev. 801(d)(2) as a party admission. However, in the absence of any explanation by *182Travelers to the contrary, we find exhibit 9 is inadmissible hearsay evidence. As such, Deutz’s motion to strike is granted in part and denied in part.
B. Travelers’ Motion to Strike
Travelers moves to strike all exhibits included with Deutz’s cross-motion for summary judgment that are offered to show intent under the parol evidence rule. Travelers fails to indicate specifically which exhibits (or portions thereof) it seeks to exclude under the parol evidence rule. See, e.g., Underwood v. Waddell, 743 F. Supp. 1291, 1293 n.1 (S.D. Ind. 1990) (denying plaintiff’s motion to strike “for failure to specify what specific portions of the affidavits are objectionable”); Seidelman Corp. v. Mollison, 10 F.R.D. 426, 428 (S.D. Ohio 1950) (“The Court cannot and should not be expected to go through the ... affidavit ‘with a fine-tooth comb’ and pick out the ‘certain portions’ which defendants . .. feel should be stricken.”). Accordingly, Travelers’ motion to strike Deutz’s exhibits is denied.
EL DEUTZ’S MOTION FOR RELIEF FROM ORDER
Deutz moves this Court, pursuant to T.C.R.C.P. 60(b)(1) and 60(b)(3), to vacate its October 24, 2002 order obliging Deutz to provide a surety bond. Deutz argues that discovery has revealed misrepresentations by ASPA’s counsel regarding ASPA’s claims and evidence suggesting APSA and Travelers do not have a viable cause of action. In response, Travelers agrees to reduce the bond by $100,000, the amount ASPA was previously seeking for its unpaid deductible. Travelers claims the remaining surety should remain intact in order to cover any adverse judgment found in favor of Travelers against Deutz.
We agree with Travelers and decline to relieve Deutz of its obligation to provide a surety bond. Deutz still faces the possibility of an adverse judgment and therefore, the surety bond should remain intact. However, during the September 29, 2003 hearing, the parties agreed to reduce the bond by $100,000, the amount attributable to the deductible that ASPA is no longer seeking to recover from Deutz. As such, Deutz’s motion for relief from order is denied; however, the surety bond may be reduced by $100,000 in accordance with our September 29, 2003 ruling.
HE. DEUTZ’S MOTION FOR CONTEMPT
Deutz moves this Court to find Travelers’ counsel in indirect contempt of court under H.C.R. 114 for failing to dismiss ASPA and for pursuing non-existent legal theories. As an initial matter, H.C.R. 114 requires “an affidavit stating the facts constituting the contempt and an Order to Show Cause re: Contempt must be filed with the Court.” Deutz has failed to *183comply with these procedural requirements. Moreover, we do not believe H.C.R. 114 was intended to be used in this manner. Deutz’s motion would have been more appropriately styled as a motion for sanctions under T.C.R.C.P. 11. In any event, Deutz’s motion lacks any merit and is denied.
IV. SUMMARY JUDGMENT
A. Background
ASPA is a quasi-independent governmental agency in American Samoa. A.S.C.A. § 15.0101. Travelers is an Illinois corporation with its principal place of business in Connecticut. Travelers insures some of ASPA’s equipment in the event of a covered loss. Deutz is a corporation organized under the laws of Singapore but is no longer in business.
ASPA purchased generating equipment for its Satala and Tafuna plants from Deutz. The parties originally entered into a contract on November 13, 1991. On July 29, 1993, ASPA and Deutz entered into Change Order Number 2 (“Change Order No. 2”), which revised the parties’ original contract. Change Order No. 2 provided for the sale and installation of a new generating unit and accompanying equipment. In addition, Change Order No. 2 provided ASPA with an extended warranty for certain parts. At issue in this case is the interpretation of the extended warranty provision in Change Order No. 2.
In 1999, the crankshaft faded. The parties dispute whether or not the damages caused by the crankshaft failure are covered by the extended warranty. Deutz claims it is not financially responsible under the terms of the warranty. On the other hand, Travelers claims Deutz breached its obligations under the warranty when it refused to compensate ASPA for the damages.
Eventually, ASPA replaced the generator. Travelers, ASPA’s insurer, compensated ASPA for the replacement of the generator minus a $100,000 deductible.3 In the initial complaint, Travelers brought this breach of warranty action as the subrogor of ASPA, and ASPA sought to recover its deductible. Travelers has since filed an amended complaint in which ASPA essentially abandons its claim for its $100,000 deductible.
On July 8, 2003, Travelers moved for partial summary judgment with respect to various issues regarding the breach of warranty claims. On September 4, 2003, Deutz responded to Travelers’ motion and filed its *184cross-motion for summary judgment on the breach of warranty claims and requested that ASPA be dismissed from this action.
B. Standard of Review
Since Travelers is seeking partial summary adjudication, its motion must be considered pursuant to T.C.R.C.P. 56(d). See, e.g., Wing Hop Lee, Ltd. v. Soo, 30 A.S.R.2d 76, 77 (Trial Div. 1996). Rule 56(d) “establishes a procedural mechanism whereby a district court can ... with the acquiescence of the parties, narrow the factual issues for trial.” Aurelio v. R.I. Dep't of Admin., 985 F. Supp. 48, 53 (D.R.I. 1997) (quoting Rivera-Flores v. P.R. Tel. Co., 64 F.3d 742, 747 (1st Cir. 1995)). The standard for determining a Rule 56(d) motion is identical to the standard used for determining a motion brought under Rule 56(c). Id.
Deutz brings its motion for summary judgment pursuant to T.C.R.C.P. 56(c). According to T.C.R.C.P. 56(c), summary judgment is appropriate when the pleadings and other supporting documents “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.” The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must then affirmatively show there is a genuine issue for trial. Id. at 324. “[A]ll inferences are construed in a light most favorable to the non-moving party.” Am. Samoa Power Auth. v. Nat'l Pac. Ins. Co., 30 A.S.R.2d 145, 146-47 (Trial Div. 1996); see also Pal Air Int'l, Inc. v. Porter, 30 A.S.R.2d 104, 105 (Trial Div. 1996).
“When both parties file cross motions for summary judgment, the court must consider each motion separately and apply controverted facts in a light most favorable to the nonmovant.” Stewart v. Nation Lease of Kansas City, Inc., 920 F. Supp. 1188, 1202 (D. Kan. 1996).
C. Discussion
1. Deutz’s Motion for Summary Judgment to Dismiss ASPA
Deutz seeks to dismiss ASPA from this action because ASPA no longer wishes to pursue its claim to recover its unpaid $100,000 deductible. Deutz does not challenge Travelers’ ability to sue as the subrogee of ASPA but, rather, claims that Travelers must sue in its own name.4 In *185response, Travelers has filed an amended complaint in which ASPA abandons its claim for the deductible, and Travelers now is the only party seeking relief. Travelers asserts that the Subrogation Receipt entitles it to sue in ASPA’s name. While this may be true, Travelers purports to sue both in ASPA’s name and in its own name as the subrogor of ASPA.
According to T.C.R.C.P. 17(a), “[ejvery action shall be prosecuted in the name of the real party in interest.” In United States v. Aetna Casualty & Surety Co., 338 U.S. 366 (1949), the Supreme Court noted:
If the subrogee has paid an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name. If it has paid only part of the loss, both the insured and insurer ... have substantive rights against the tortfeasor which qualify them as real parties in interest.
Id. at 381 (citation omitted); see also Travelers Ins. Co. v. Riggs, 671 F.2d 810, 812-13 (4th Cir. 1982); Wattles v. Sears, Roebuck & Co., 82 F.R.D. 446, 448-50 (D. Neb. 1979). In the original complaint, ASPA sued in its own name to recover its deductible and Travelers sued as the partial subrogee to ASPA’s remaining claim. See, e.g., Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108, 110-11 (Trial Div. 1993). However, because ASPA no longer seeks reimbursement of its deductible, it is no longer a real party in interest in this case. Assuming Travelers’ assertion that it can sue in ASPA’s name is correct, why did Travelers bring suit in its own name in both the original and amended complaint? Under Rule 17(a), Travelers, as the subrogee for ASPA, is the real party in interest in this action. Accordingly, ASPA’s name shall be stricken from future pleadings.5
2. The Warranty
Travelers and Deutz seek partial summary adjudication and summary judgment respectively, arguing different interpretations of the warranty. Contract interpretation is well suited to decision by summary judgment. See Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., *186132 F.3d 526, 530 (9th Cir. 1997); ECHO, Inc. v. Whitson Co., 52 F.3d 702, 705 (7th Cir. 1995). “Express warranties are interpreted according to general contract principles.” Bay Lines, Inc. v. Stoughton Trailers Inc., 838 So. 2d 1013, 1018 (Ala. 2002). Both parties agree that the warranty is unambiguous; however, the parties have vastly different interpretations of the warranty. “Summary judgment is properly used for interpreting a contract whose terms are considered by opposing parties to be clear and unambiguous, despite disagreement between the parties as to what the agreement provides.” Stradling v. Southland Corp., 924 F. Supp. 38, 40 (M.D. Penn. 1996); see also Klamath Water Users Prot. Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999); ECHO, Inc., 52 F.3d at 705. We have considered the evidence and agree with the parties that the warranty is unambiguous and therefore, ripe for our interpretation.
The parties primarily dispute the interpretation of two parts of the extended warranty: (1) the parties dispute proper interpretation of the warranty coverage for years 6-10 and (2) the parties dispute whether a condition precedent existed which required ASPA to perform preventative maintenance in years 6-10. The language of the extended warranty for years 6-10 is as follows:
YEARS 6-10. During the five (5) year period following the four (4) year extended warranty the contractor shall warrant the following parts against failure or defect on a pro-rata basis based upon a useful life of fifteen (15) years ... Crankshaft .... In the event of defect in any of these parts, or failure as a result of such defect, during the coverage period ASPA shall be entitled to credit against the replacement cost of the defective and/or damaged equipment in an amount equal to the percentage of assumed useful life then remaining on the date of discovery of defect or failure as a result of defect.
Travelers argues that the warranty covers the crankshaft in the event of either a failure or defect. Deutz argues that the warranty only covers a failure that is the result of a defect. We agree with Deutz.
Travelers’ position fails to view the warranty provision in its entirety but, rather, parses out the “failure or defect” language to create what we believe is an unreasonable interpretation. “The meaning of particular parts or words in a contract should be determined in light of and consistent with the general purpose of the agreement.” Eliasen v. Itel Corp., 883 F. Supp. 280, 289 (N.D. Ill. 1995). We believe the warranty when read in its entirety demonstrates that the parties intended the warranty to cover the crankshaft in the event of a defect or a failure as a result of such defect.
*187The language in the warranty which describes the remedy for a failure as a result of defect or for a defect in a covered part is instructive. The remedy sentence indicates that ASPA will be entitled to a specific sort of recovery in the event of a defect or a failure as a result of such defect. Nowhere is there any language indicating another remedy is available for a failure absent a defect. Travelers argues that this means the parties intended for the remedy to be unlimited in the event of a failure without a defect. We think this interpretation is unreasonable. Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1032 (9th Cir. 1989) (“Preference must be given to reasonable interpretations as opposed to those that are unreasonable ....”) (citation omitted); Eliasen, 883 F. Supp. at 289-90 (“[A]n interpretation that gives reasonable meaning to all provisions is preferable to one that leaves part of the language useless or inexplicable or creates surplusage.”).
Plaintiffs suggested interpretation expanding the warranty to cover any failure does not comport with the warranty when read in its entirety and is unreasonable. As such, we find that in order for Travelers to recover on its breach of warranty claim, it must prove either a defect in the crankshaft or a failure in the crankshaft as a result of such defect. We believe this is a material issue of fact that should be reserved for trial.6
The parties also disagree as to whether the warranty contained a condition precedent requiring ASPA to perform preventative maintenance. Deutz maintains that the warranty was only effective, “so long as ASPA shall perform the preventative maintenance program recommended by the manufacturer(s), as established by the contractor in commissioning and pursuant to its service contract.” Travelers argues that the “so long as” language was in the provision covering years 2-5 and was only applicable to those years. We agree with Travelers.
The disputed language is found in section 20.1 of the warranty, in the list of coverage for years 2-5. The part of the warranty covering years 6-10 is void of this language or any language regarding preventative maintenance.
*188Contracts should be read in their entirety; however, there is no language in the warranty to indicate the parties intended the condition precedent to apply to years 6-10. See, e.g., Emerg. Med. Care, Inc. v. Marion Mem. Hosp., 94 F.3d 1059, 1061 (7th Cir. 1996); Kennewick Irrigation Dist., 880 F.2d at 1032. In fact, based on the language in the warranty, the parties specifically limited the preventative maintenance provision to years 2-5. Although we may feel it would have been prudent for Deutz to impose a preventative maintenance requirement in years 6-10, we will not rewrite the parties’ agreement in order to fix a poorly worded contract. See, e.g., Pennbarr Corp. v. Ins. Co. of N. Am., 976 F.2d 145, 151 (3d Cir. 1992) (“[Courts] may not make a different or better contract than the parties themselves saw fit to enter into.”); Towers Hotel Corp. v. Rimmel, 871 F.2d 766, 774 (8th Cir. 1989) (“[Courts] are to determine what the parties intended by what they said and not what they might have said or what perhaps they should have said.”) (citations omitted). As such, we find that the warranty’s preventative maintenance provision does not apply to years 6-10.
In sum, Deutz’s motion for summary judgment on counts one and two of Travelers’ amended complaint is denied. Whether or not the crankshaft was defective or failed as a result of such defect is a fact issue more properly reserved for trial.
3. Deutz's Affirmative Defenses
Travelers seeks partial summary adjudication with respect to Deutz’s affirmative defenses. “[I]f [a] case involves other defenses that raise no material issues of fact they may be the subject of a partial summary adjudication in plaintiffs favor in accordance with the procedure prescribed in Rule 56(d).” 10B CHARLES Alan WRIGHT, Arthur R. Miller & Mary Kay Kane, Federal Practice and PROCEDURE § 2734 (3d ed. 1998); see also URI Cogeneration Partners, L.P. v. Bd. of Governors for Higher Educ., 915 F. Supp. 1267, 1279 (D.R.I. 1996) (“[I]n order to distill the issues to be tried, the Court may bar certain legal arguments and affirmative defenses if it is clear that they run counter to the governing law.”); Koch Indus., Inc. v. United Gas Pipe Line Co., 700 F. Supp. 865, 867 (M.D. La. 1988) (granting plaintiffs motion for partial summary judgment on defendant’s affirmative defenses).
Deutz bears the burden of proving its affirmative defenses at trial. Therefore, Travelers does not have the burden to produce any evidence demonstrating the absence of a genuine issue of material fact with respect to Deutz’s defenses. Rather, “the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S. at 323. Indeed, *189Travelers claims that Deutz has no evidence to support its affirmative defenses. As such, Deutz “must set forth specific facts showing that there is a genuine issue for trial.” T.C.R.C.P. 56(e). This showing must go beyond the pleadings. Id. “[A] party opposing another’s motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts.” Carpenters Fiji, Ltd. v. Pen, 28 A.S.R.2d 202, 203 (Trial Div. 1995) (citation omitted).
Deutz’s first affirmative defense is that ASPA failed to mitigate damages. While this is a viable defense in contract actions, Deutz has failed to provide any evidence that would support this defense. Deutz argues in its supporting memorandum that oils and metals were found in the crankshaft and claims that ASPA failed to maintain the machine. However, Deutz failed to provide the sort of supporting evidence required under Rule 56(e) to maintain these allegations. Absent any shred of evidence that ASPA failed to mitigate damages, this defense must fail.
Deutz’s second affirmative defense includes both laches and estoppel7. Deutz offers no response to Travelers’ arguments and suggests that Travelers has not met its burden on this issue. Deutz bears the burden at trial of proving this affirmative defense. After Travelers argued that Deutz has no evidence to support these defenses, Deutz, as the non-moving party, is required to come forward with some evidence of a dispute of material fact. Deutz has failed to do so and therefore, the affirmative defenses of laches and estoppel also fail. See, e.g., Fresnel Tech., Inc. v. Rokonet Indus. USA, Inc., No. 4:01-CV-1091-A, 2003 WL 21047137, at *4 (N.D. Tex. May 7, 2003) (granting judgment to plaintiff because the defendant failed to “come forward with summary judgment evidence to raise a genuine fact issue”).
Deutz’s third affirmative defense is that ASPA failed to fulfill a condition precedent by replacing the generator instead of pursuing a warranty claim or providing notice of defect or a reasonable demand. Travelers claims Deutz has no evidence to support this defense. Deutz’s response does not address this “condition precedent” but, rather, refers to other alleged conditions, specifically, that the component must be listed in the warranty and that a defect in the warranted component must have caused the failure. As such, Deutz has failed to point to any evidence supporting this defense. This defense fails.
*190Deutz’s fourth affirmative defense is that the warranty was voided because ASPA neglected to maintain or misused the equipment. Again, Travelers argues that Deutz has no evidence to support this defense. In response, Deutz fails to offer evidence to establish that ASPA failed to perform maintenance or misused the equipment. Deutz’s bare assertion in its memorandum that oils and metals were found in the generator standing alone does not suffice to defeat Travelers’ motion.
Deutz’s fifth affirmative defense is that ASPA negligently maintained and operated the equipment and therefore, any damage should be reduced according to ASPA’s comparative fault. Comparative fault is an appropriate defense in a tort action, not a contract one. A.S.C.A. § 43.5101; see also United States v. NHC Health Care Corp., No. 00-3128-CV-S-4-ECF, 2000 WL 33146582, at *2 (W.D. Mo. Nov. 15, 2000); Bank Brussels Lambert v. Chase Manhattan Bank, No. 93 Civ. 5298(LMM), 1999 WL 710778, at *3 (S.D.N.Y. Sept. 10, 1999). Moreover, Deutz has failed to present any evidence to support its assertion. Accordingly, Deutz’s fifth affirmative defense fails as a matter of law.
V. ORDER
1. Deutz’s motion for relief from order is denied.
2. Deutz’s motion to strike is granted in part. Travelers’ exhibit no. 9 is stricken from the record.
3. Travelers’ motion to strike is denied.
4. Deutz’s motion for contempt is denied.
5. Deutz’s motion for summary judgment is denied as to counts 1 and 2 of Travelers’ amended complaint. Deutz’s motion for summary judgment to dismiss ASPA is denied. However, because ASPA is no longer a party plaintiff to these proceedings, its name will be stricken from future pleadings.
6. Travelers’ motion for partial summary adjudication is granted in part. Deutz’s affirmative defenses 1-5 are stricken.
It is so ordered.
Since the filing of its motion for partial summary judgment, Travelers has filed an amended complaint essentially abandoning any claim by ASPA. As such, we refer to Travelers as the moving party throughout this order. See discussion infra.
Rule 56(e) “does not require an unequivocal conclusion that the evidence will be admissible at trial as a condition precedent to its consideration on a summary judgment motion.” Reed v. Ford Motor Co., 679 F. Supp. 873, 874 (S.D. Ind. 1988).
Travelers claims it paid ASPA approximately $1.6 million.
Travelers, as ASPA’s insurer, “by a right of subrogation, steps into the shoes of the insured and can recover only if the insured could have recovered.” E.H. Ashley & Co. v. Wells Fargo Alarm Servs., 907 F.2d 1274, 1277 (1st Cir. 1990). Moreover, a subrogee “may assert claims *185against the subrogor’s contractual obligor.” Vitkus v. Beatrice Co., 127 F.3d 936, 942 (10th Cir. 1997) (quoting Dome Petroleum Ltd. v. Employers Mut. Liab. Ins. Co., 767 F.2d 43, 45 (3d Cir. 1985)); see also Am. Employers Ins. Co. v. City of Chicago, No. 02 C 9304, 2003 WL 21254266, *1 (N.D. Ill. May 29, 2003).
We decline to grant Deutz summary judgment dismissing ASPA from this case. The more appropriate action is to strike ASPA’s name from the pleadings since it is no longer a party plaintiff.
Travelers asks this Court to find that its remedies are not limited based on the express warranty. We decline to do so. Travelers is not only limited by the language of the warranty (see discussion supra) but also is limited by law. “[A]s a general rule, an insurer can recover by way of subrogation against a wrongdoer responsible for a loss only such amounts as it has been compelled to pay under its policy,” See LEE R. Russ & Thomas F. Segadla, 16 Couch on Insurance § 223:85 (3d ed. 2000). Accordingly, we deny Travelers’ request for partial summary adjudication on this ground.
Although Deutz discusses the legal standards of estoppel in its memorandum, it fails to offer facts to show that it has met or could possibly meet each of the elements listed above. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486801/ | *192PRELIMINARY INJUNCTION
On November 13, 2003, Plaintiff Samoa Aviation, Inc. (“Samoa Air”) brought this action for injunctive relief preventing Defendant American Samoa Government (“ASG”) from terminating its lease of office and ticket counter space in the terminal building at the Pago Pago International Airport. ASG answered, denying any wrongful termination of the lease and affirmatively alleging various grounds precluding injunctive relief, and counterclaimed for Samoa Air’s immediate eviction from the leased premises. Samoa Air’s application for a preliminary injunction was heard on November 20, 2003. Both counsel were present.
Preliminary Injunction Grounds
A preliminary injunction is appropriately issued only when “(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.” A.S.C.A. §43.1301(j).
To show a substantial likelihood of success at trial on the merits, “a movant merely needs to raise questions so serious and difficult as to call for more deliberate consideration, or at least demonstrate a fair question for litigation.” Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101, 103-04 (Trial Div. 1995) (citations omitted). As a general proposition, the availability of an adequate legal remedy precludes equitable injunctive relief. See White v. Sparkill Realty Corp., 280 U.S. 500, 510 (1930). However, the existence of a legal remedy is not alone sufficient to deprive a movant of equitable relief. See Stewart Dry Goods Co. v. Lewis, 287 U.S. 9, 11 (1932). The legal remedy must be speedy, adequate, and efficacious, and preserve the movant’s rights at the present time and not as of a future date. Id.
Findings of Fact
1. The Lease Cancellation Notice
On November 6, 2003, ASG issued a notice entitled “Lease Cancellation” terminating Samoa Air’s lease of office and ticket counter spaces in the terminal at the Pago Pago International Airport (“the airport”). Samoa Air received the notice on or about the same day. The stated grounds for the termination was based on Article Xni(l)(F) of the parties’ lease agreement authorizing ASG to cancel the lease upon Samoa Air’s abandonment of air transportation service at the airport or *193reduction of service to and from the airport to less than four flights per day for a period of more than one month.
Samoa Air denies abandonment of its air transportation operations at the airport, and ASG does not advocate otherwise. Samoa Air concedes that it is not presently providing air service to and from the airport and that its service has been reduced below the four daily flights minimum for more than one month. Samoa Air maintains, however, that each party to a contract has a duty of good faith and fair dealing in the performance and enforcement of the contract, see RESTATEMENT (SECOND) OF CONTRACTS § 205 (1981), and that ASG has grossly violated that duty in a highly discriminatory manner.1
2. Context of the Lease Cancellation
Samoa Air is a federally licensed “Part 121” air service carrier. This status authorizes Samoa Air to provide scheduled commercial air services to and from the airport. It is the only “Part 121” air carrier with authority to provide air service between the airport and the Manu'a Islands and between the airport and [Western] Samoa. Polynesian Airlines (“PAL”) has similar status but as a foreign carrier operating from Samoa under different auspices. Locally, PAL only regularly operates flights between the airport and Samoa. “Part 121” status also imposes considerable legal regulatory requirements upon an air carrier, particularly in reference to marketing services and aircraft safety.
Samoa Air is presently unable to engage in air operations. It has only one Twin Otter aircraft. Under federally imposed safety standards, the aircraft’s components are subject to specified lifetimes. In July 2003, Samoa Air learned that changes in the aircraft’s frame would soon be required.2 Samoa Air’s flight operations completely ceased on this *194account on October 30, 2003. The time estimate to accomplish the frame changes is three to four weeks. Samoa Air attempted to lease another aircraft to service its Manu'a Island and Samoa routes during this period. Samoa Air made preliminary arrangements for the frame change and an interim leased aircraft. However, it did not have the ready cash to pay for the changes and the downpayment required to obtain the substitute aircraft.
Two other air carriers, Inter Island Air and Vision Air, have immediate capability to serve the route between the airport and the Manu'a Islands. Vision Air, however, is an authorized “Part 135” carrier, not a “Part 121” carrier. “Part 135” carriers can only operate charter services, contracted on a case-by-case basis. They cannot provide scheduled commercial air services, and are not subject to the same safety scrutiny as a “Part 121” carrier. Apparently, Inter Island Air does not yet have formal federal approval to provide air services.
3. Samoa Air’s Proposal for ASG’s Financial Assistance
In August 2003, the cessation of Samoa Air’s operations approached. As the only “Part 121” air carrier between the airport and the Manu'a Islands, Samoa Air representatives approached the Governor with a request for funds to alleviate Samoa Air’s immediate cash flow problems and enable it to lease an aircraft while its own aircraft was undergoing frame changes. The Governor denied the request and, in essence, stated that when he would inform Samoa Air of his plan to remove its “inept management” when he was ready.
A short time later, on August 31, 2003, the Governor proposed legislation to the Legislature of American Samoa to appropriate $500,000 to ensure continuing air service to the Manu'a Islands and give the Governor discretion to use the funds to cope with the transportation void. Samoa Air representatives then discussed with legislative committee members possible use of these funds on a reimbursable basis to alleviate its immediate cash flow problem They believed the legislators were favorably receptive to this idea.
The $500,000 appropriation was enacted without, as originally proposed, any limitation by specific directions on the Governor’s discretion for expenditure of the funds. On September 11, 2003, Samoa Air proposed to the Governor that it be afforded use of the appropriated funds on a reimbursable basis, $100,000 for the frame changes and $150,000 for the substitute leased aircraft. Citing a lack of necessary documentation, the Acting Governor rejected Samoa Air’s proposal on the same day. Though the rejection letter offered to meet for further discussions, the Governor’s legal counsel informed Samoa Air a short time later that its proposal simply would never be accepted.
*195The Governor has apparently authorized use of the appropriated $500,000 to subsidize, as may be necessary, PAL’s scheduled flight operations and Inter Island Air’s charter flight operations between the airport and the Manu'a Islands. The U.S. Department of Transportation has given PAL, though a foreign air carrier, temporary permission to service this route, apparently until the current problems with this needed service is solved.
4. Samoa Air’s Proposal to Aloha Airlines
In November 2002, addressing continuing complaints and other problems with Hawaiian Airlines’ air service between Honolulu and the airport, Samoa Air representatives proposed to Aloha Airlines representatives a joint venture under which Aloha would provide commercial air services to American Samoa with Samoa Air handling ground services at the airport and other necessary assistance through its facilities here. However, in the spring of 2003, the Governor directly requested Aloha Airlines to provide air services to American Samoa, and since then, Aloha has not returned Samoa Air’s communications to pursue the joint venture proposal.
It has now been publicly announced that Aloha Airlines will start providing air services to American Samoa in December 2003. Aloha representatives recently measured Samoa Air’s office space at the airport and, on the date of this application hearing, were present in the Territory preparing for this advent.
5. Samoa Air’s Charter Proposal to ASG
In June 2003, again addressing the ongoing air service problems with Hawaiian Airlines, a Samoa Air representative advised the Governor of its plan to charter aircraft from Omni Airlines to provide flights between Honolulu and the airport. The Governor concurred in the charter idea and indicated that ASG had funds available for this purpose. During this meeting, the Governor did not even look at Samoa Air’s written proposal and at least indirectly indicated that funds for this purpose would not be made available to Samoa Air.
However, later in June 2003, the Governor advised Samoa Air by a telephone call that ASG would financially help with deposits for charter flights. Acting on this information, Samoa Air spent considerable time and expense filing necessary paperwork with the U.S. Department of Transportation and hiring personnel in Hawaii and American Samoa to set up charter operations. One day in early July 2003, the Governor’s legal counsel asked Samoa Air to document its charter arrangements, but on the following day he advised Samoa Air that ASG would deal directly *196with Omni Airlines for a charter program and would only consider having Samoa Air handle ground services.
6. Samoa Air’s Indebtedness to ASG
Samoa Air has outstanding debts of approximately two million dollars, of which approximately $350,000 is owed to ASG for rent of Samoa Air’s airport facilities, landing fees, income taxes, and other charges. In turn, ASG owes Samoa Air a presently unspecified but lesser amount. Even after August 31, 2003, when the Governor directed all ASG agencies to route all requests for payments to Samoa Air to the Governor’s Office, Samoa Air responded to two requests by ASG’s medical center for emergency air services. Samoa Air has not received any payments from ASG for the two emergencies and only a single payment on another statement for outstanding services since the Governor’s directive.
ASG has a long-standing and well-known history of forbearance in debt collection efforts, not just debts owed by Samoa Air but also by other users of the airport’s facilities and other obligors generally, as well as delaying payments of its own obligations. ASG’s forbearances generally, and with respect to Samoa Air particularly, have yet not, by any reasonable characterization, reached the level of constituting a waiver of payment of debts to it. However, the forbearance in this case is certainly indicative of ASG’s relationship with Samoa Air in general and the manner of the performance and enforcement of the lease agreement in particular.
7. Samoa Air’s Diminished Sale Value
ASG is well aware that the present owners of Samoa Air are endeavoring to sell the company to another owner. On September 25, 2003, the Governor advised Samoa Air that, in effect, he had encouraged other airlines to work with Samoa Air on an American Samoan solution to the Manu'a air service problem. In October 2003, envisioning ASG’s forgiveness of Samoa Air’s debts, Island Air and Vision Air sought to buy Samoa Air. However, after negotiations, Samoa Air determined that neither Island Air nor Vision Air had sufficient funds to purchase and conduct Samoa Air’s operations.
The present owners of Samoa Air are in the midst of serious negotiations for the sale of the company to a reportedly respected and solvent airline operating out of the Territory of Guam. Samoa Air believes that the sale can be finalized in December 2003. The prospective buyer airline is aware of Samoa Air’s indebtedness and, according to Samoa Air, is willing and able to assume responsibility for the debts. The prospective buyer is also aware of ASG’s lease cancellation notice to Samoa Air and, *197again according to Samoa Air, views the loss of office and ticket counter space at the airport as substantially diminishing Samoa Air’s value. Samoa Air’s chief executive officer believes that this diminished value will seriously impact sale of Samoa Air at otherwise fair market value. It is therefore important that Samoa Air retains office and ticket counter space at the airport to get back on its financial and operational feet.
Conclusions
Taking into consideration the foregoing facts as a whole, we conclude that ASG has demonstrated an ongoing course of conduct that is tantamount to unfair, and perhaps bad faith, dealings with Samoa Air. ASG purposely interfered with Samoa Air’s performance of the four daily flights condition required by Article XIH(1)(F) of the airport office and ticket counter space lease agreement. See RESTATEMENT (SECOND) OF CONTRACTS § 205 Cmt. d. This interference, along with a habitual forbearance in collecting Samoa Air’s debts to ASG, show that ASG also abused its power to enforce the lease agreement. See id. § 205 cmt. e. The evidence warrants, at the very least, further and greater in-depth analysis of the lease cancellation and surrounding circumstances. For preliminary injunction purposes, the element of the substantial likelihood of success at trial on the merits and ultimate issuance of a permanent injunction in Samoa Air’s favor against ASG has been sufficiently shown. See Samoa Aviation, Inc., 28 A.S.R.2d at 103-05.
In regards to irreparable harm, ASG argues that Samoa Air’s injury, if any, is adequately remedied by monetary damages. However, the ruin of a party’s business constitutes irreparable harm. See Samoa Aviation, Inc., 28 A.S.R.2d at 105; see also Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985). The immediate termination of Samoa Air’s office and ticket counter space lease at the airport destroys Samoa Air’s efforts to continue flight operations, because, in the current situation, termination will irrevocably disrupt sale of the company at a fair market value to a buyer who is ready, willing, and able to take over Samoa Air’s air service operations. Furthermore, loss of American Samoa’s only “Part 121” carrier will cause harm to the people and Territory of American Samoa. See Samoa Aviation, Inc., 26 A.S.R.2d at 105. Therefore, the element of great or irreparable injury to Samoa Air as a result of the lease cancellation before a full and final trial can be held is also sufficiently established.
Samoa Air is entitled to a preliminary injunction preventing ASG from evicting Samoa Air from its leased premises at the airport.
Here, as in most disputes seeking judicial resolution, we encourage settlement. While it is not our role or intent to venture into the realm of the Executive Branch’s operations, perhaps, Samoa Air could be allowed *198to relocate to another space at the airport or share space with another carrier.
Order
1. Samoa Air’s application for a preliminary injunction against ASG is granted.
2. During the pendency of this action, or until further order of this Court, ASG, its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are enjoined: (1) from evicting or attempting to evict Samoa Air from its office and ticket counter space in the terminal at the airport, (2) from preventing Samoa Air from using common use areas at the airport as described in the Lease Agreement, and (3) from preventing Samoa Air full and free right of ingress and egress from the premises described in injunctions (1) and (2) above.
It is so ordered.
In addition to the matters discussed below, Samoa Air cites 49 U.S.C.A. § 47107 for the proposition that ASG, as the recipient of substantial federal airport development grants and by its discriminatory tactics in dealing with Samoa Air, has violated this statute by not complying with required non-discrimination assurances. We will not, however, evaluate this argument at this time but will leave it for further development, as may be necessary, at the trial of this action.
Samoa Air maintains that component lifetimes are only fixed under program projections at three-month intervals. While this may be literally accurate, Samoa Air must have been aware that the present time limitation was looming well before July 2003. We see no reason why Samoa Air did not initiate and develop concrete plans to deal with this readily expected event long before July 2003. Nonetheless, this lack of foresight does not overcome the track record of obstacles ASG put in Samoa Air’s way. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486511/ | ORDER ON MOTION TO STAY
Star-Kist Samoa, Inc. ("Star-Kist"), has filed its petition under A.S.C.A. § 32.0652, seeking judicial review of an order entered by the Workmen's Compensation Commission ("Commission"), levying a fine upon Star-*68Kist, and awarding the Real Parfy-in-Interest Taulua Vaomua ("Vaomua") certain workmen's compensation benefits. Star-Kist subsequently filed a motion to stay enforcement of the compensation order pending review.
A stay "shall" not issue unless it is shown that "irreparable damage" must "ensue to the employer." A.S.C.A. § 32.0652. Subsection (c) of this enactment moreover provides that an order staying enforcement of an award:
shall contain a specific finding, based upon the evidence submitted to the court and identified by reference thereto, that such irreparable damage would result to the employer, and specifying the nature of the damage.
We are unable to make such a finding, of irreparable damage, on the extent of the evidence before us. Star-Kist's only attempted showing at irreparable damage was framed in terms of Vaomua's financial inability to repay Star-Kist should the latter prevail in this court. The fact that Star-Kist might have difficulty recovering the repayment of compensation from the Vaomua if the award is reversed on appeal, is insufficient reason to grant a stay. See Maxon Marine Inc. v. Director, Office of Workers Compensation Programs, 63 F.3d 605 (7th Cir. 1995) (dealing with the comparable stay provision contained in the Longshore and Harbor Worker's Compensation Act ("LHWCA"), 33 U.S.C. § 921(b)(3), the model for the local Workmen’s Compensation Act). The Maxon court alluded to underlying Congressional policy in the LHWCA to "expeditiously" provide the injured worker with compensation benefits, rather than leaving him/her without assistance until the entire appeal process has run its course. See also Meehan Seaway Service v. Director, OWCP, 4 F.3d 633, 636 (8th Cir. 1993).
Star-Kist's reasons for issuance of a stay being, therefore, insufficient, the motion to stay enforcement of the award is denied.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486512/ | ORDER DENYING MOTIONS FOR RECONSIDERATION OR NEW TRIAL
This matter involves the ownership of two buses. Following trial, the court held that plaintiff Bank of Hawaii ("BOH") has a valid and enforceable security interest in one of the buses ("bus #3"), and that defendant American Samoa Government ("ASG") owns the other bus ("bus #1) free *70of BOH's claimed security interest. Each party now moves for reconsideration or new trial regarding the bus which it was not awarded. The court regularly heard the motions on May 8, 1997. Counsel for BOH and ASG were present.
Discussion
A. BOH's Motion
BOH argues that the court should not have awarded bus #1 to ASG. We awarded bus #1 to ASG based on the equitable doctrine of laches. Having considered the briefs and oral arguments, we conclude that BOH's motion for reconsideration or new trial is properly denied.
B. ASG's Motion
ASG filed its motion on Monday, April 14, 1997, the eleventh day after the court's opinion and order was entered on April 3, 1997. BOH moves to dismiss ASG's motion on the ground that the 10-day requirement in A.S.C.A. § 43.0802(a) for filing a motion for a new trial is jurisdictional. However, the Appellate Division has recently resolved this issue by definitively holding that the relief afforded by T.C.R.C.P. Rule 6(a), extending the period for time computations to the next business day when the last day falls on a Saturday, Sunday, or legal holiday, applies to the filing period for motions for a new trial. Pal Air International, Inc. v. Porter, 1 A.S.R3d 1, 1-3 (App. Div. 1997). Thus, BOH's motion to dismiss ASG's motion must be denied.
ASG argues that defendants George Neru and General Repairs, Inc. did not have any interest in the buses at the time that the security agreements were signed, and therefore the security agreements are invalid. This argument is specious at best. Of course a security agreement can secure after acquired properly. Every vehicle loan made by a bank has a security agreement on a vehicle that is not yet owned by the buyer. The passage cited by ASG for this assertion is dicta. The actual holding of the case is that a mortgage in after acquired property is valid. See McIntosh v. U.S., 439 P.2d 464, 467 (Utah 1968).
ASG also argues that the incomplete description of bus #3 precludes the attachment of the security interest. We found that ASG had actual knowledge of the security interest, thus making the description requirements of A.S.C.A. § 27.1510 inapplicable. ASG argues that the flawed description goes to the essence of the document itself, rendering the mortgage invalid and making the actual knowledge exception in A.S.C.A. § 27.1510 inapplicable. We disagree.
*71Although it is true that a mortgage must truly describe the property, we believe that a description is sufficient if it furnishes a reasonable basis for identification, even though it is not specific enough to fully identify the property by itself. See e.g. B.E. Witkin, 3 Summary of California Law, Secured Transactions in Personal Property § 14 (1987). Diocese of Samoa Pago Pago v. K.M.S.T. Inc., 18 A.S.R.2d 67 (Land & Titles Div. 1991), cited by ASG, is factually distinquishable. The security agreement in Diocese, unlike this case, did not describe any particular thing as collateral. Id., at 69-71. Diocese also recognizes the effect of a third party's actual knowledge of the security agreement when the property is described with reasonable certainty. Id, at 69; A.S.C.A. § 27.1510. Moreover, taking guidance from the Uniform Commercial Code, inclusion of an erroneous serial number has no effect on the validity of the security agreement when the property is otherwise adequately described. 68A Am Jur 2d, Secured Transactions, § 215. We believe the description of bus #3 was sufficient, and that any irregularities in that description did not render the mortgage invalid.
Thus, we conclude that ASG's motion for reconsideration or new trial should also be denied.
Order
BOH's motion to dismiss ASG's motion for reconsideration or new trial is denied. BOH's and ASG's motions for reconsideration or new trial are also denied.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486513/ | OPINION AND ORDER
Plaintiff sells and trucks loads of cinders. It sues defendant, a reading contractor, for breach of contract, alleging that it had supplied defendant a quantity of cinders which the latter had agreed to purchase by the "cubic yard." Defendant denies agreeing to such terms, claiming that it had simply purchased cinders from plaintiff by the "truckload," at $35.00 a load.
We find for defendant, satisfied on the evidence that the documentary evidence1 and prevalent business custom,2 pertaining to the sale of cinders, corroborate defendant's version of the parties' business relationship; that is, sale by the truckload. Defendant paid plaintiff $35.00 for each truckload delivered and received.
Judgment will accordingly enter for defendant.
It is so Ordered.
The billing and payment records.
The evidence established the absence of any on-island practice or manner of measuring volume sales. Rather the evidence simply pointed to a local practice of pricing and selling by the truckload. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486514/ | Plaintiff Opetaia Taliga ("Taliga") filed his complaint alleging an agreement between him and defendant Eliota Siaumau ("Siaumau") whereby Siaumau had agreed to transfer to him two automobiles, in return for his building Siaumau's residence. Taliga claims that he had substantially finished building Siaumau's home but that the latter never transferred the promised automobiles. He claims that the value of his labor in building Siaumau's home is around $8,000.
Facts
On the evidence, we find that the parties had agreed that Siaumau would transfer possession of one his taxis to Taliga. The taxi would be operated by Taliga, under Siaumau's license, for Taliga's own benefit. In return Taliga would build an extension to Siaumau's home.
*74As it turned out, the extension work evolved into a larger project, but the parties never finalized any understanding on the question of additional remuneration for Taliga. It was decided that they would talk about this upon completion of Siaumau's building project.
Taliga substantially completed a new structure for Siaumau, although he has yet to complete the interior finishing work. The bathrooms, kitchen, and living rooms remain incomplete to date. While Taliga claims that the work ceased when the Siaumau had run out of construction funds, Siaumau claims that Taliga was just too busy with his other carpentry projects to finish his home.
In the interim, Taliga had use of Siaumau's vehicle, running the same as a taxi until Taliga's intoxicated brother ran the vehicle into the sea. Because the vehicle was still registered in Siaumau's name, the police required Siaumau to remove the vehicle from the sea, which Siaumau did at his own expense.
Subsequently, Taliga sought the return of the vehicle. Siaumau refused until Taliga would reimburse him for his expense and time in hauling the vehicle out of the sea. Subsequent efforts to resolve their differences proved fruitless, and the vehicle deteriorated, in the meantime, beyond repair.
Taliga now sues for the value of his labor while working on Siaumau's home, because the vehicle is no longer available to him.
Discussion
We conclude on the evidence that the contract between the parties contemplated the transfer of possession of Siaumau's vehicle as a licensed taxi, and not title to or ownership of the vehicle. Since Taliga did not have a taxi license, title to the vehicle was not transferred because what Taliga really wanted was the vehicle's commercial value, a business license personal to Siaumau, and not transferable. See A.S.C.A. § 27.0212. Taliga, indeed, ran the vehicle as a taxi, under Siaumau's business license, for 18 months before it was damaged.
This arrangement between the parties was a sham on the territory's business license laws. It was, effectively, an agreement to violate or inhibit the business licensing laws, A.S.C.A. §§ 27.0201 et seq., and as such, it is illegal and unenforceable, being contrary to public policy. Papaali'i v. Pen, 18 A.S.R.2d 82 (Trial Div. 1991). There can be no recovery either on contract or on a quantum meruit for services rendered or other consideration furnished under an illegal agreement. See 17A Am Jur 2d, Contracts § 322. Accordingly, we decline to consider the *75merits of either Taliga's contract or quantum meruit claims, since both stem from this illegal unenforceable pact.
Conclusion
For reasons given, the complaint is dismissed and Taliga will take nothing thereby.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486515/ | DECISION AND ORDER
Facts
On September 2, 1992, plaintiff, a police officer, while on routine patrol in the Western District on a police motorcycle unit, received a dispatch to respond to a complaint about an escalating land dispute in the vicinity *76of Malaeloa village. As he traveled inland on the Malaeloa road with his emergency equipment operating, he noticed a vehicle coming from the opposite direction and heading directly toward him. As he attempted evasive action by pulling to the side of the road, the oncoming vehicle suddenly cut in front of his path, crossing the median, in an apparent effort to turn off the highway. A collision resulted and plaintiff was thrown from his motorcycle. He was rendered unconscious and suffered various injuries.
The other vehicle was driven by defendant Saua Togiola, a minor at the time who did not have a driver's license to operate a vehicle. The vehicle was co-owned by his mother, the defendant Tua Togiola, who had sent the minor out in the vehicle on some errand to her daughter's home.
Plaintiff was admitted to the LBJ Tropical Medical Center for a period of five days. He was initially treated for contusions on the neck and both shoulders but continued to complain thereafter of pain in the neck area and limitation of head movement. The hospital then sent him off-island, to Honolulu, for further evaluation of potential head injuries. The off-island medical examination ruled out cerebral or spinal injuiy, but found that plaintiffs neck and shoulder muscles had become very spastic. The course of treatment prescribed for plaintiff was physiotherapy, muscle relaxants and pain medication.
Dr. Vaiula Tuato'o, the Chief of Surgery at the local hospital, recently examined plaintiff. He additionally suspects nerve damage to plaintiffs trapezius muscle resulting in his tendency to hold his head slightly to one side. Prognosis is not clear although Dr. Tuato'o is optimistic that continuing exercise of the injured muscles is plaintiff's best course for physical recovery. Although plaintiff continues to date to experience pain and muscle deterioration some four years after the collision, we believe that with a more concerted effort toward exercise, plaintiff, a relatively young adult, would likely improve his present disability.
Finally, the evidence also revealed that while plaintiffs injuries have required him to do less physically strenuous work, this has not diminished his earning capacity. Indeed, after being absent from work for a period of six months while recovering, his change in employment from traffic patrol with Department of Public Safety to white collar criminal investigatory work for the Attorney General's office, has resulted in better pay benefits.
Conclusions
We conclude on the facts that defendant Saua Togiola was negligent in the operation of his vehicle, which he had no business driving in the *77first place.1 We also conclude that defendant Tua Togiola was negligent in her unlawful entrustment of the vehicle2 to her unlicensed and inexperienced son.3 We further conclude that the injuries suffered by plaintiff were proximately caused by the negligence of both defendants.
Taking into account plaintiffs injuries, his prognosis, economic future, and duty to mitigate his damages, we fix his damages as follows: $4,500 for lost earnings; and, general damages in the amount of $20,500, a total of $25,000.
Judgment will enter accordingly in favor of plaintiff against the defendants jointly and severally in the sum of $25,000.
It is so Ordered.
See A.S.C.A. § 22.0201, proscribing the operation of a motor vehicle in American Samoa without a valid driver's license.
See A.S.C.A. § 22.0222, prohibiting the entrustment of a vehicle to an unlicensed minor.
The minor's inexperience as a driver was very evident with his violation of A.S.C.A. § 22.0313, which required him to yield the right of way to the oncoming plaintiff before attempting his left turn off the highway. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486516/ | ORDER DENYING MOTION FOR RECONSIDERATION
On January 9, 1997, plaintiff Leasau L.K. Eseroma (“Leasau”) brought an action for a declaration that he is the duly elected Senator from Ta'u County and an injunction enjoining defendants Paopao Faresa (“Paopao”), Lutu Fuimaono (“Fuimaono”), and Leflti Fa'afetai (“Leflti”) from allowing Leflti to serve as the Senator from Ta'u County.
*79On February 27, 1997, this court issued an opinion and order denying Leasau’s requests for declaratory and injunctive relief. We held that an election in accordance with Article II, § 4 of the Revised Constitution of American Samoa (“Revised Constitution”), which requires Senators to “be elected in accordance with Samoan custom by the county councils of the counties they are to represent,” is (a) an election involving the participation of all, and not some, of the county councils who are constitutionally granted the responsibility for electing a Senator to represent their counties; (b) an election at which there is an extensive sharing of ideas on potential candidates, and a forging of a collective will as to who shall serve in the Senate. Further, we found as a matter of fact that on December 14, 1996, Lefiti, and not Leasau, had been elected to represent Ta'u County, Fitiuta County, and Faleasao County in the Senate in accordance with the requirements of Article II, § 4 of the Revised Constitution.
Leasau now moves for reconsideration of this court’s February 27 decision, claiming that the December 14 election was not conducted “in accordance with Samoan custom” as required under Article II, § 4. Leasau alleges that the December 14 meeting was fatally flawed in three respects: (1) because Ta'u County submitted two nominees to the Senate, rather than one; (2) because Lefiti was “ousted” by the Ta'u County Council, and yet participated in the December 14 meeting; (3) because To'oto'o La'apui disregarded the collective will of the assembly and impermissibly based his announcement on the relative rankings of Lefiti and Leasau.
Discussion
1. The Nomination of Two Candidates.
Leasau argues that the evidence presented at trial indicated that on the island of Ta'u, the county councils .of Ta'u County, Faleasao County, and Fitiuta County generally each nominate one candidate for the two Senate seats assigned to the island of Ta’u. Leasau contends that the submission of two names from Ta'u County deviated from this local “tradition” and therefore rendered the election unconstitutional.
Even assuming Leasau represents the facts correctly, we can not agree with his conclusion. Leasau’s argument assumes that any local practice during an election meeting is a “Samoan custom,” but the term “Samoan, custom” in Article II, § 4 can not be construed so broadly. Meredith v. Mola, 4 A.S.R. 773, 781 (Trial Div. 1973). In Meredith v. Mola, the Trial Division indicated in dicta that the manner of a Senate election “is determined by Samoan custom of the various counties.” 4 A.S.R. 773, 781 (Trial Div. 1973). However, this statement cannot be construed as suggesting that a body of electors must follow a Samoan custom of the county in order to satisfy the constitutional mandate that elections be “in *80accordance with Samoan custom.” (emphasis added). On the contraiy, this statement indicates that the Senate election provision of the Revised Constitution permits variation among the counties in the manner in which they conduct their Senate election meetings.
This court has only constrained county council decisionmaking by demanding that all the relevant county council members, and not just some, have an opportunity to participate meaningfully in the election of the Senators who will represent their counties. Mauga v. Lutu, 10 A.S.R.2d 115, 120 (Trial Div. 1989); Meredith, 4 A.S.R. at 782. Therefore, we cannot interpret “Samoan custom,” as it is used in Article II, § 4, to mean “Samoán custom of each county,” so-as to force Senate elections to be conducted in precisely the same manner for all eternity.1
Therefore, we affirm our initial opinion and order, which holds that the constitutional command that elections be “in accordance with Samoan custom” merely requires extensive sharing of ideas among county council members with regards to potential candidates, and a forging of a collective will as to who shall serve in the Senate.
2. The Participation of an “Ousted” County Council Member
In our February 27 decision, we held that it was not necessary to determine the exact composition of the Ta'u County Council because both of the factions claiming to be the “true” Ta'u County Council had an opportunity to participate in the election. Leasau now argues that the mere participation of “ousted” members tainted the election and rendered the election unconstitutional.
The reasoning we have just applied above is the appropriate response to Leasau’s contention. Just as an election is not tainted by consideration of extra nominees, the participation of non-council members is not a fatal flaw *81under Article II, § 4 of the Revised Constitution. As long as all the county council members are offered the opportunity to engage in the extensive sharing of ideas, and the decision reported to the Senate President reflects the collective will of the electoral body, the constitutional requirements are satisfied. We see no harm in permitting “ostracized” members of a county council to share their thoughts on an election. If these individuals have been truly ousted for illegal or immoral conduct, the rest of the electoral body will surely devalue their contributions to the discussion. Otherwise, the individuals’ speeches can only sharpen the debate on the candidates, and enhance the quality of the final collective decision.
3. To’oto’o La’apui’s “Announcement” of the Decision
Leasau argues that when to'oto'o La'apui of Fitiuta County announced the decision of the assembly on December 14, he considered only the fact that Lefiti was a fa'ami, a matai with higher rank than Leasau. Leasau thus contends that the election of Lefiti did not represent the collective will of the county councils of Ta'u County, Faleasao County, and Fitiuta County, as is required under Article II, § 4 of the Revised Constitution. Meredith, 4 A.S.R. at 782.
Leasau misstates the record. High Talking Chief Fofo Sunia (“Fofo”) testified at trial that the duties of the to'oto'o at county council meetings include the responsibility to “delineate the wish of the assembly.” Reporter’s Partial Transcript, at 18 (Chief Fofo’s Testimony). Fofo emphasized repeatedly that the to'oto'o do not issue “dictatorial demands,” Id., “like the decisions made by Hitler,” id. at 50. Rather, the to'oto'o “listen very carefully to the speeches being made,” Id., “tak[e] into account the wishes and the feelings of the general assembly,” Id. at 18, and bring closure to the assembly by presenting their impression of the collective will. Fofo indicated that one of the ideas shared at the meeting was that Lefiti should go to the Senate because he was a fa'ami. Fofo acknowledged and that Lefiti’s status “weighed heavily on [the to'oto'o], and it became of top priority in their minds.” Id. at 55. However, the fact that Fofo and the other to'oto'o were particularly impressed with one argument is in no way inconsistent with Fofo’s insistence that “[t]he decision was based upon the thoughts, the wishes expressed by the participants.” Id. at 59.
Therefore, we find no clear error in our previous conclusion that the election of Lefiti expressed the collective will of the county councils of Ta'u County, Faleasao County, and Fitiuta County.
Conclusion and Order
We find no clear error in our February 27 opinion and order finding the election of Lefiti as a Senator from the island of Ta'u to be consistent with *82the commands of Article II, § 4 of the Revised Constitution. Accordingly, Leasau’s motion for reconsideration is denied.
It is so Ordered.
A disturbing aspect of Leasau’s argument is that it has no apparent limitations. Under Leasau’s theory, it would seem that an election would be unconstitutional if the county councils usually served pork and taro at the election meeting feast, but instead served chicken and bananas. Even though the county council members would still extensively share ideas and shape the collective will, the mere presence of such foreign elements as chicken and bananas would render the election null and void. Thus, if we adopt Leasau’s interpretation of “Samoan custom,” the number of constitutional challenges to Senate elections would increase dramatically, and the court would be forced into lengthy fact-specific trials regarding the “Samoan custom” of each county and the degree to which the electoral body respected those county traditions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486518/ | ORDER GRANTING IN PART AND DENYING . IN PÁRT APPLICATION FOR WRITS OF EXECUTION AND GARNISHMENT
On April 10, 1991, this court entered judgment in favor of Nelson and Robertson Pty., Ltd. ("N&R") and against defendants "K.M.S.T., INC., an American Samoa Corporation, and J.J. YONG, a/k/a JUM-YONG JUNG, a/k/a MR. CHUNG," for the sum of $217,741.40 plus post-judgment interest calculated at 18% per annum.
On July 14, 1997, N&R .filed an application for a writ of execution against "J.J. Yong a/k/a Jum-Yong Jung, a/k/a Mr. Chung and Malaeimi Valley Mart” for satisfaction of the April 10, 1991, judgment, (emphasis added) Additionally, N&R applied for writs of garnishment addressed to Amerika Samoa Bank and Bank of Hawaii, to forbid the banks from payment of "any debt owed byyyou, now due or to become due, to J.J. Yong a/k/a Jum-Youg Jung a/k/a Mr. Chung and Malaeimi Valley Mart." (emphasis added)
Because the writs of execution and garnishment do not "conform to and follow the judgment" dated April 10, 1991, the Clerk of Courts is directed to only issue the writ of execution and writ of garnishment after striking the phrase "and Malaeimi Valley Mart." Merrifield v. Western Cottage Piano & Organ Co., 87 N.E. 379, 380 (Ill. 1909) (citing Hobson *88v. McCambridge, 130 Ill. 367, 22 N.E. 823; Kinkade v. Gibson, 209 Ill. 246, 70 N.E. 683; 1 FREEMAN ON EXECUTIONS, (3d Ed.). 42; HERMAN ON EXECUTIONS, 56).
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486519/ | ORDER DENYING MOTION TO DISMISS AND ISSUING PRELIMINARY INJUNCTION
Plaintiff Tuilefano Vaela'a, in his official capacity as the Chairman of the Immigration Board of American Samoa, brought this action for judicial determination of the validity of the amnesty program, the purpose of which is to legitimate the immigration status of certain undocumented aliens.1 Defendant Tauese P. Simia, in his official capacity as the Governor of American Samoa, initiated the program. Defendants Toetogata Albert Mailo, Robert Porter and Elvis Patea, in their respective official capacities as Attorney General of American Samoa, Acting Chief Immigration Officer and Assistant Attorney General, are carrying out the program.
On June 19, 1997, the court heard defendants' motion to dismiss and plaintiffs application for a preliminary injunction and took the motion and application under advisement, establishing a follow-up briefing schedule. Both counsel were present at the hearing. We have considered the testimony, counsel's oral arguments, documents filed before the hearing, and the follow-up briefs and supplements, and will deny the motion to dismiss and grant the application for a preliminary injunction.
*91Motion to Dismiss
Defendants moved to dismiss this action on the grounds that plaintiff lacks both the capacity and standing to sue.
I. Capacity to Sue
Defendants contend that plaintiff has no capacity to sue because there is no statutory authorization for the Immigration Board to sue on its own behalf. Defendants, however, mischaracterize plaintiffs status in this action. Plaintiff is not suing on behalf of the board. Rather he is suing as the person who currently holds the position of Chairman of the Immigration Board. He is the actual real party in interest in a suit which seeks to prevent Executive Branch officials from alleged unlawful exercise of his powers and duties as the Chairman.2 See A.S.C.A. § 43.1101 and T.C.R.C.P. Rule 17.
Thus, we hold that plaintiff has the capacity, and needs no separate statutory authorization, to sue on his own behalf in this action.
II. Standing to Sue
A plaintiff has standing to sue if he shows: (1) an injury to a legally protected interest that is concrete and particularized, and actual or imminent, not conjectural or hypothetical; (2) an injury that is causally related to the defendant's challenged conduct, and not resulting from independent action by some third party not before the court; and (3) the prospect of achieving redress for the injury from a favorable decision that is not too speculative. See Mulitauaopele v. Togafau, 26 A.S.R.2d 52, 53-54 (Trial Div. 1994) (citing Northeastern Fla. Chapter of the Assoc. Gen. Contractors of America v. City of Jacksonville, Fla, 508 U.S. 656, 663-664, 113 S.Ct. 2297, 2301-2302, 124 L.Ed. 2d 586, 595 (1993)).
We believe that the case law respecting the standing of a legislator to sue for an executive branch intrusion into the legislator's duties is both helpful and closely analogous. Clearly, the federal courts and this court recognize a legislator's standing to sue on his own behalf. See e.g. Senate v. Lutali, 26 A.S.R.2d 125, 127-129 (Trial Div. 1994) (Order Denying in Part and Granting in Part Motion to Dismiss).
*92The injury in those cases often centers upon the legislator's interest in performing the powers and duties of his office and the impairment that the legislator suffers when his powers, duties and the general efficacy of his office are usurped by executive branch action. Id. The injury in those cases is similar to the purported injury in the present case.
Here plaintiff is claiming that defendants are usurping his powers and duties as the Chairman of the immigration Board. This injury is concrete, particularized, and actual. Defendants have already instituted the amnesty program and granted authority to remain to more than 2,000 previously undocumented aliens.
This injury is clearly related to defendants' challenged conduct. Moreover, a favorable ruling on the declaratory relief would redress this injury by requiring defendants to terminate the amnesty program and by allowing plaintiff to exercise the powers and perform the duties of his official position.
We therefore conclude that plaintiff, suing as an individual who holds the office of the Chairman of the Immigration Board, has standing to sue for declaratory relief stating that defendants unlawfully exceeded their authority when they took over the Board's role to authorize aliens to remain in American Samoa.
Preliminary Injunction
Under A.S.C.A. § 43.1301 sufficient grounds for a preliminary injunction exist when:
(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and
(2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.
I. Substantial Likelihood of Success on the Merits
A court tests substantial likelihood of success by whether the movant has a good chance of success, evaluated in the court's discretion, not measured by any mathematical probability, and taking into account serious issues calling for more deliberate consideration. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101 (Trial Div. 1995).
Comparison of American Samoa's present situation with the federal system is instructive. Although the President, in concert with the Congress, has wide authority to control the country's borders and regulate the admission *93and exclusion of aliens, the President's authority over immigration matters is limited by the statutory grants of the Congress. Jean v. Nelson, 711 F.2d 1455, 1465-66 (11th Cir. 1983), on reh., en banc 727 F.2d 957, 963-65 (11th Cir. 1984), reh. den. 733 F.2d 908 (11th Cir. 1984), cert. granted 469 U.S. 1071 (1984) and aff'd 472 U.S. 846 (1985).
An "amnesty" program, somewhat similar to the Governor's amnesty program, has been instituted in the United States. See 8 U.S.C.A. § 1255(a). However, as is obvious by the source, this program was instituted by congressional action. The executive branch's power under this program was delegated to it by the Congress.
We similarly believe that both the Governor and Legislature of American Samoa have authority to protect American Samoa's borders, but that the Governor must act within the law, as set forth in both the American Samoa Code annotated and the American Samoa Administrative Code.3 The Governor's authority over immigration matters is limited by the statutory grant of the Legislature. The Legislature has not enacted any amnesty program into law.
The law gives the Immigration Board certain powers and duties, A.S.C.A. § 41.0205, including jurisdiction over the issuance to aliens of authorizations to remain in American Samoa. A.S.C.A. §§ 41.0205(1) and 41.0401. The Attorney General is charged with "the administration and enforcement of this title and all other laws relating to the entrance, immigration, registration, and status of aliens, except insofar as this title or such laws relate to the powers, functions, and duties conferred upon the board." A.S.C.A. § 41.0206.
The implementing administrative rules essentially reiterate the Board's powers and duties. A.S.C.A. § 41.0301. The Board has also delegated "all administrative duties" to the Attorney General and immigration officers, as the Attorney General deems necessary. A.S.C.A. § 41.0302. Immigration officers are employed in the Immigration Office, which is an agency within the Department of Legal Affairs, headed by the Attorney General.
The Immigration Board's authority over authorizations to remain in American Samoa vis-a-vis Attorney General's authority over "administration and enforcement" and "administrative duties" is not free of ambiguity. However, we lack sufficient basis in the evidence presented at the hearing to resolve that ambiguity to our satisfaction. Notwithstanding this hiatus, we still nóte that A.S.C.A. § 41.0201(b) clearly states that the immigration code is to be interpreted and construed to effect the general *94purpose of the laws limiting entry into American Samoa to persons of American Samoan ancestry, and their spouses and children. Obviously, the amnesty program by legalizing previously undocumented aliens does not effectuate the purpose of limiting enhy into American Samoa.
We do not need, however, to fully determine the meaning and scope of A.S.C.A. §§ 41.0205, 41.0206, and 41.0401 and A.S.C.A. §§ 41.0301 and 41.0302, in relation to each other and other provisions of the immigration laws and administrative rules, in order to decide on the issuance of the preliminary injunction. Whether the Attorney General and his subordinates are exercising granted or delegated immigration authority, they can process changes in the status of previously undocumented aliens to resident aliens only on a lawful predicate. Defendants rely on the Governor's pardoning power, not the immigration laws and administrative rules, to validate the amnesty program. Thus, the issue is whether the Governor acted within or in excess of his authority in employing his pardoning power to grant amnesty to undocumented aliens.4
Defendants contend that the Governor has unlimited power to grant amnesty under Article IV, Section 9 of the Revised Constitution of American Samoa, which provides that:
The Governor shall have the power to remit fines and forfeitures, commute sentences, and grants reprieves and pardons after conviction for offenses against the laws of American Samoa.
Defendants believe that this pardoning power may be used in an amnesty program to authorize undocumented aliens to remain in American Samoa. However, although the Governor has the power to pardon, simply naming the present program an "amnesty" program does not bring it within the scope of the Governor's pardoning power.
First, Article IV clearly only allows the Governor to grant pardons, or amnesty, after convictions. Based on the evidence, none of the undocumented aliens benefiting from the amnesty program has been convicted of any violations of the immigration laws. Moreover, even if the Governor was indeed granting pardons, or amnesty, after convictions for any such violations, those pardons would have nothing to do with changing a particular undocumented alien's status. Rather, this situation would be similar to the President of the United States granting undocumented aliens pardons, or amnesty, so the aliens are not automatically ineligible for a visa or automatically excludable. See 3A Am. Jur. 2d, Aliens and Citizens 834; *958 U.S.C.A. § 1182. The President would not be overriding the immigration laws, but would rather be using his pardon power as it was meant to be used and only granting reprieves for past offenses.
We conclude that the Governor's amnesty program is not a valid exercise of his constitutional pardoning power. Further, even when the Governor properly applies his pardoning power, the Immigration Board or Attorney General, on the Board's behalf, must still issue to the pardoned undocumented alien authorization to remain in American Samoa, in accordance with to the immigration laws and administrative rules. Thus, we hold that there is a substantial likelihood that the plaintiff will prevail at trial on the merits and that a permanent injunction will be issued against the defendants.
11. Great or Irreparable Injury
The concept of great or irreparable injury does not mean an injury that is beyond the possibility of repair without immediate protection. See Black's Law Dictionary 924 (4th ed. 1951). It includes wrongs, great or small, that ought not be inflicted on another person, Id., and may consist of "an overbearing assumption by a person of superiority and domination over the rights... of others." Fretz v. Burke, 55 Cal. Rptr. 879, 883 (1967). The repeated and continuing character of a wrong may be a significant factor. See Black's Law Dictionary at 925.5
We believe that defendants' assumption of plaintiffs powers and duties as Chairman of the Immigration Board, and incidentally those of the Board itself, particularly when repeated more than 2,000 times and potentially ongoing if the Governor again extends the amnesty program, is a sufficiently great or irreparable injury to justify a preliminaiy injunction. The significance of the wrong is further enhanced with respect to both plaintiff and the general public when considered in light of impaired integrity of the immigration laws and the administration of those laws.
Accordingly, we further hold that great or irreparable harm to plaintiff and the general public has resulted, and will continue to result, before a full and final trial on the merits can be fairly held on whether a permanent injunction should issue.
*96Order
For the reasons stated above, defendants' motion to dismiss is denied, and plaintiffs application for a preliminary injunction is granted.
During the pendency of this action or until further order of the court, each defendant, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from further implementing existing authorizations to remain and from processing additional applications for authorizations to remain in American Samoa to undocumented aliens under the Governor's amnesty program.
We also invoke T.C.R.C.P. Rule 65(a)(2). Any evidence received during the hearing on the application for a preliminary injunction on June 19, 1997, which would be admissible upon the trial on the merits, is part of the record of the trial and need not be repeated at the trial.
It is so Ordered.
We use the term "undocumented aliens" in this order to mean aliens who have reached the borders of American Samoa but have not been authorized to remain as residents in American Samoa, pursuant to the immigration laws, A.S.C.A. §§ 41.0201-41.0709, and rules, A.S.A.C. §§ 41.0201-41.1008.
We believe this situation is analogous to the situation in which a legislator sues on his own behalf but the action is based upon an alleged usurpation of his powers as a legislator. See e.g Senate v. Lutali, 26 A.S.R.2d 125, 127-129 (Trial Div. 1994) (Order Denying in Part and Granting in Part Motion to Dismiss).
An administrative rule, adopted under the Administrative Procedures Act, A.S.C.A. §§ 4.1001-4.1044, has the full force and effect of law. A.S.C.A. § 4.1009(c).
For purposes of this order, we accept defendants' position that words "pardon" and "amnesty" are essentially interchangeable, except to recognize that pardons are granted to individuals and amnesty is usually granted to a class or group of persons.
Commentators have suggested that the term irreparable injury "adds nothing to the broader concept of inadequacy of the legal remedy, and that both are merely shorthand expressions covering the factors which determine the right to an injunction." See B.E. Witkin, 2 California Procedure 1500 (2d ed. 1970). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486521/ | ORDER GRANTING MOTION FOR A STAY OF EXECUTION
Introduction
On January 16, 1990, this court entered judgment against defendants K.M.S.T., K.M.S.T. Wholesale, and J.J. Yong ("Yong") in favor of Plaintiff G.H.C. Reid & Co., Inc., ("Reid") in the sum of $48,804.11 plus court costs of $50 and interest calculated at 6% per annum.
After years of trying to recover on the judgment, Reid joined Petelo Uti ("Uti") and So Eun Joo ("Joo"), individually and dba Malaeimi Valley Mart ("MVM") as Gamishee/Defendants.
On July 1, 1997, this court declared that as a matter of equity, Yong constructively possesses MVM's assets; the court held that MVM's assets could be used to satisfy Reid's January 16, 1990, judgment against Yong.
On July 4, 1997, MVM filed a motion for reconsideration or a new trial. The Clerk set the hearing on the motion for August 4, 1997.
On July 15, 1997, MVM moved to stay execution of the judgment against MVM pursuant to T.C.R.C.P. 62(b). On July 18, 1997, this court held a hearing on the motion.
Discussion
T.C.R.C.P. 62(b) provides that "[i]n its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial." This court will not grant a stay of judgment pending appeal "automatically or casually." See Asifoa v. Lualemana, 17 A.S.R.2d 10, 12 (App. Div. 1990). Instead, because a stay of execution is essentially a form of injunctive relief, the court will "balance the equities" and determine whether or not the motion for reconsideration is likely to be successful. See Lutali v. Foster, 24 A.S.R.2d 81, 82 (Trial Div. 1993) (citing Asifoa, 17 A.S.R.2d at 13).
*102At the hearing on the motion for a stay of execution, Yong's counsel failed to present any argument on the issue of the likelihood of success of the motion for reconsideration. In the vast majority of cases, the absence of a showing that the movant is likely to prevail on the merits of the appeal is fatal to a motion to stay execution of judgment. See, e.g., Lutali, 24 A.S.R.2d at 83.
However, we believe that the court's discretion under T.C.R.C.P. 62(b) is broad enough to permit us nevertheless to seek a just result. See Carpenters Fiji v. Pen, 29 A.S.R.2d 58, 60 (Trial Div. 1995) (Order in Aid of Judgment) ("equitable principles and broad powers apply equally well to circumstances where a judgment debtor seeks a stay of execution"). To close down MVM and liquidate its assets is not in the best interest of either party.
Yong would have us balance the equities in his favor by creating a monthly repayment schedule for satisfaction of the debt over the course of one year. See Huff v. Huff, 15 A.S.R.2d 83, 86 (Trial Div. 1990). However, Yong is in no position to claim that he is entitled to a yearlong repayment schedule without posting some kind of security, as T.C.R.C.P. 62(b) expressly contemplates. Yong has demonstrated to this court that he is capable of crafting schemes to deprive creditors of judgment satisfaction.
Therefore, we believe that the balance of equities favors granting a stay of execution only if Yong deposits with the court a cash bond or irrevocable letter of credit from a financial institution for the entire amount of the debt, including interest and costs accruing to date. We have little doubt that a business with approximately three million dollars in annual sales and over $200,000 in annual profits (according to representations of MVM's counsel) will be able to post bond or convince a bank, insurance company, or other financial institution to provide an irrevocable letter of credit.1
Therefore, this court hereby stays execution of Reid's judgment against Yong and MVM until Friday, July 25, 1997, at 4:00 p.m. If Yong fails to present a cash bond or irrevocable letter of credit to the High Court for the entire amount of the judgment before this juncture, then the stay hereby granted will cease and the Marshal shall execute the writ of execution heretofore entered against MVM for the entire amount of the *103debt. If Yong posts sufficient security, as T.C.R.C.P. 62(b) expressly contemplates, then the Court Marshall shall remove the locks on MVM and stay execution of judgment until an order is issued disposing of the motion for reconsideration.2
Conclusion and Order
Accordingly, the motion for a stay of execution is granted.
It is so Ordered.
At the hearing on the motion for a stay of execution, Yong’s counsel claimed that negotiations with financial institutions were unavailing. We trust that this court’s order will lubricate the process of obtaining adequate security by assuring the financial institutions that MVM will be an active operation once the cash bond or irrevocable letter of credit is filed with the High Court.
We note that because Yong has moved for a stay of execution pursuant only to T.C.R.C.P. 62(b), the stay of execution would not extend automatically to the date of issuance of an appellate opinion, if an appeal becomes necessary. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486523/ | ORDER ON MOTION FOR RECONSIDERATION
Introduction
On January 16, 1990, this court entered judgment against defendants K.M.S.T., K.M.S.T. Wholesale, and J.J. Yong ("Yong") (collectively, "Principal Defendants") in favor of Plaintiff G.H.C. Reid & Co., Inc., ("Reid") in the sum of $48,804.11 plus court costs of $50 and interest calculated at 6% per annum.
On December 3, 1996, Reid filed a complaint against Garnishee Defendants Petelo Uti, So Eun Joo (Yong's wife), and Malaeimi Valley Mart requesting a "determin[ation]" that the Garnishee-Defendants give to Reid "money or property" belonging to the Principal Defendants.1
On July 1, 1997, after a hearing on the matter, this court relied on equitable principles and the doctrine of fraudulent conveyance and declared that Yong "constructively possesses a 100% interest in MVM, *108and that MVM's assets are therefore subject to Reid's judgment lien." G.H.C. Reid & Co., Inc. v. K.M.S.T., 1 A.S.R.3d 82, 86 (Trial Div. 1997).
Defendants and Defendant-Garnishees now move for reconsideration of the court's July 1, 1997, decision.
Discussion
Defendants' and Defendant-Garnishees' arguments can be distilled into two basic propositions: (1) there was no legal basis for declaring that Yong was the true owner of MVM; (2) that Reid's circumstantial evidence was insufficient to satisfy Reid's burden of proof.
Defendants and Defendant-Garnishees claim that our decision unlawfully and unfairly deprives Yong's wife of the right to work on her own behalf. See, e.g., Krebs v. Lay, 352 P.2d 577 (Or. 1960). Nothing in our original opinion and order suggests that a judgment debtor's spouse may not create his or her own business, even with the judgment debtor's assistance, where there is no fraudulent intent. However, a judgment debtor's spouse may not create his or her own business where the business is not actually that of the spouse and is instead only a device to keep from the judgment debtor's creditors the income of the business. See Schriock v. Schriock, 128 N.W.2d 852, 865-66 (N.D. 1964).
The instant case is quite different from Krebs, where the court found no evidence suggesting that the bank, which had foreclosed on the husband's mortgage and sold the property to the wife, had participated in a scheme to defraud creditors. Id. at 582. In the present case, we found circumstantial evidence indicating that Yong's brother knowingly arranged a loan with Yong's wife so that Yong could build a business without encumbrances from judgment creditors.2 In Krebs, no one inquired into the books of the company and "no one testified that income tax returns had been fried that did not reflect the income and expenditures." Id. In the present case, we have evidence that Yong-has failed to keep accurate records of the company's operations, that he has failed to file tax returns, and that MVM has been secreting compensation to Yong, at least in the form of goods and services. Finally, in Krebs, the court found no evidence that the wife was a mere figurehead for the husband. In the case at hand, the evidence indicated that Yong has called all the shots from the beginning. Id. Thus, contrary to the *109position of Defendants and Defendant-Garnishees, we affirm that this case is not about the spousal right to work, but is about the fusion of equity and the common law doctrine of fraudulent conveyance.
Defendants and Defendant-Garnishees argue that "there is no conveyance" that would justify inferring fraudulent conveyance from the court's findings regarding "badges of fraud." Te'o v. Manuma, 6 A.S.R.2d 135, 138-40 (Trial Div. 1987). This argument relies on an excessively formalistic and technical approach to this case, an approach that we rejected when we employed the principles of equity. Surely, if the law can invalidate the fraud inherent in transfers from judgment debtors to their spouses, the law should also disapprove fraud in the preceding transactions from conspirator lenders to the judgment debtors. We believe as a matter of equity that a "transferor" in a fraudulent transaction need not actually possess the asset prior to a conveyance of hold legal title to the asset prior to the transfer. See Te'o, 6 A.S.R.2d at 138 (transferor merely had "equitable title" in the property before she placed the property in the legal name of her children). Thus, as long as one person has equitable or legal possession of an asset, and somehow vests the asset in the legal possession of another so as to avoid judgment creditors, a fraudulent conveyance has, indeed, occurred.
In the present case, the court concluded from the evidence that, regardless of whether Yong personally held in his brother's cash, the loan was made to Yong, not to his wife, and that Yong constructively possessed the money used to start MVM. This startup financing, MVM, and all income from MVM's operations were fraudulently placed in the legal name of Yong's wife solely for the purpose of evading Yong's debts. Equity must serve to extend the application of the doctrine of fraudulent conveyance to the case at hand, rather than to constrain the doctrine's application to technical "transfers" from the transferor's legal coffers.
Therefore, we must affirm the legal reasoning in our original opinion and order and refuse to allow form to prevail over substance. We confirm that where a court finds (1) that a lender and borrower conspired to place loan proceeds in the name of a family member, (2) that the loan proceeds were actually used by the borrower — not the family member — to generate income for the borrower, and (3) that the scheme was marked by "badges of fraud" indicating intent to place the borrower's assets and income beyond the .reach of other judgment creditors, the court may properly conclude that the loan and its fruits are, as a matter of equity, the property of the borrower and subject to satisfaction of judgments against the borrower.
Defendants and Defendant-Garnishees also criticize the evidentiary foundation for the court's conclusions. They claim that "there is no *110direct evidence of fraud," as if circumstantial evidence can never justify a court judgment.
From the very nature of the action, direct proof of the fraudulent intent of the parties is an impossibility. For this reason and because the real intent of the parties and the facts of the transactions are peculiarly within the knowledge of those sought to be charged with the fraud, proof indicative of fraud must come by inference from the circumstances surrounding the transaction, the relationship and interests of the parties.
Maguire v. Corbett, 259 P.2d 507, 510 (Cal. Ct. App. 1953). It appears that defendants and defendant-Gamishees fail to grasp the difference between "no direct evidence" and "no evidence."
This court found the following relevant to the determination of the case at hand: (1) evidence that the wifé could not speak English or Samoan, see Trial Transcript at 27 (Testimony of So Eun Joo, "No speak English. No understand. ... No (understanding of Samoan), just little."), at 33 (Testimony of J.J. Yong, "... she cannot work. The Samoan language or English and then don't know the things and then as much as I can do . . . cannot communicate with the people"), at 15 (Testimony of Petelo Uti, stating that she could not understand his inquiries regarding tax filings because of the language barrier); (2) evidence that Yong's wife did not have sufficient business experience to run a store, see Trial Transcript at 20 (Testimony of Petelo Uti, "the wife does not know that much about running the business and that is probably the reason for Yong's involvement"); (3) evidence that Yong devised the plan to start up MVM, see Trial Transcript at 10 (Testimony of Petelo Uti, averring that Yong, not Joo, approached Uti about forming and operating a retail business), and at 33 (Testimony of J.J. Yong, stating that he, not Joo, approached his brother regarding the capital for MVM); (4) Uti's testimony about his longstanding friendship with Yong, his nominal role in running the business, and his concession that he has received no money from the business during the life of MVM, see Trial Transcript at 14-20 (Testimony of Petelo Uti); (5) evidence that Yong ran the business, see Trial Transcript at 5 (Testimony of Litia Ioane, stating that Yong was the manager of MVM), at 20 (Testimony of Petelo Uti, "the wife does not know that much about running the business and that is probably the reason for Yong's involvement"), and at 15A (Testimony of Tavita Manu, submitting that Yong acted as the "boss" of MVM); (6) evidence that Yong receives considerable non-cash compensation, a fact that Yong admits in his motion for reconsideration as "true;" (7) evidence that other aspects of MVM's formation and operation were tainted with fraud, see Trial Transcript at 11-12, 17 (Testimony of Petelo Uti, admitting that he did not invest $12,000 as the MVM business license application stated, and that MVM did not pay taxes to the American Samoa Government during tax years 1994, 1995, and 1996).
*111From the totality of these circumstances, this court then made a quite reasonable inference that J.J. Yong has attempted to deprive Reid of judgment satisfaction with a sham. Reid satisfied its burden of producing enough evidence to raise a presumption of fraud, but' Defendants and Defendant-Garnishees were content to rest on their characterization of issues and to offer only minimal effort at rebutting Reid's evidence. Accordingly, we reject the suggestion from Defendants and Defendant-Garnishees that there is no evidentiary basis for our factual conclusions.
The Defendants'/Defendant-Gamishees' motion for reconsideration is DENIED.
It is so Ordered.
The Court, which has become unfortunately accustomed to shoddy legal work, considered this request as a poorly worded request for declaratory relief. In this jurisdiction, the Trial Court Rules of Civil Procedure have done away with "technical forms of pleading," and pleadings are to be construed liberally so "as to do substantial justice," T.C.R.C.P. 8(e)(1), 8(f). Morgan v. American Samoa Government, 24 A.S.R.2d 164, 165 (Trial Div. 1993).
See G.H.C. Reid & Co., Inc. v. K.M.S.T., 1 A.S.R.3d 83, 86 (Trial Div. 1997) (Opinion and Order) (wife’s inability to speak English or Samoan and lack of business savvy, and fact that Yong, not wife, approached brother about loan suggests that the brother made loan to Yong, not wife). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486803/ | ORDER GRANTING IN PART MOTION TO DISMISS
Defendants Agaoleata C. Tautolo (“Agaoleatu”), TRT, Inc. (“TRT”) and American Samoa 2000, Inc. (“AS2000”) move to dismiss, pursuant to T.C.R.C.P. 12 (b) (6), the complaint for damages filed by Plaintiff Lorelei Haleck (“Lorelei”). Lorelei’s complaint alleges four counts against all three Defendants in relation to the termination of her employment at the McDonald’s restaurant in Tafuna. Lorelei alleges breach of contract for unpaid wages, breach of contract for wrongful discharge, intentional infliction of emotional distress, and alter ego liability. For the reasons stated below, we deny in part and grant in part the motion to dismiss.
Standard of Review
“In determining a motion to dismiss for failure to state a claim, the complaint is to be liberally construed and viewed in the light most favorable to the plaintiff.” Beaver v. Cravens, 17 A.S.R.2d 6, 8 (Trial Div. 1990). We must “take as true the material facts alleged in [Lorelei’s] complaint.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 276 (1976). Moreover, we should “read the complaint as liberally as possible and . . . draw all inferences in favor of the plaintiff.” Gagliardi v. Universal Outdoor Holdings, Inc., 137 F. Supp. 2d 374, 378 (S.D.N.Y. 2001).
Breach of Contract for Unpaid Wages
*205In count one of her complaint, Lorelei seeks damages for unpaid wages allegedly accrued during her' employment at McDonald’s. Defendants argue that Lorelei seeks $24,500 in damages that are barred by the statute of limitations applicable to oral agreements. We agree. “[AJctions founded on unwritten contracts . . . shall be brought within 3 years.” A.S.C.A. § 43.0120 (3). Lorelei is thus barred from recovering any damages which occurred prior to August 20, 2000. A.S.C.A. § 43.0120; Jennings v. Jennings, 19 A.S.R.2d 34, 38-39 (Land & Titles Div. 1991).
Lorelei alleges that in April 2001, she and other management level employees were reclassified in a cost-saving measure. Lorelei alleges her pay was reduced from $1,500.00 twice monthly to $1,041.67 twice monthly, and she seeks the $458.33 differential for the months in which she was paid the reduced amount. In addition, Lorelei claims she was paid one payment of $1,041.67 and another payment of $750.00 in July of 2001 and only one payment $750.00 in August of 2001.
Lorelei claims that the reduction in her wages and the non-payment of the August wages constitute a breach of her oral employment contract. Defendants claim that Lorelei cannot recover the $458.33 pay differential because she admits her salary was legitimately reduced along with other management employees as a cost saving measure. We agree. Even assuming Lorelei can establish her employment was not at-will,1 she may not recover the pay differential when she admits that her salary was reduced in April of 2001 for valid economic reasons. See, e.g., Gianaculas v. Trans World Airlines, Inc., 761 F.2d 1391, 1395 (9th Cir. 1985). However, this does not affect her allegations that she was only paid $750.00 in July and August rather than her salary payments of $1,041.67.
In sum, we decline to dismiss Lorelei’s claim for unpaid wages. However, Lorelei is precluded from recovering any pay differential that resulted from the April 2001 valid salary reduction. In addition, her request for damages which occurred prior to August 20, 2000, is barred by the applicable statute of limitations.
Breach of Contract for Wrongful Discharge
In count two of her complaint, Lorelei seeks damages claiming the Defendants breached her employment contract and wrongfully discharged her. Generally, “a contract of employment or to perform *206services for an indefinite period is . . . terminable at will by either party, without liability for breach of contract or wrongful discharge.” 6 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 2579. American Samoa follows this general rule.
The common law principle governing termination of an ‘at will’ employee is that, if the parties have neither fixed a definite term of employment nor created a contractual obstacle to the right of discretionary discharge, then the employer may discharge the employee under any circumstances without incurring liability.
Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d 162, 165 (Trial Div. 1987). Employment. manuals and handbooks may create contractual rights between the employee and her employer. See id. Lorelei alleges that “[t]he employment and training manual that [she] relied upon in accepting employment with McDonald’s implied that [she] would not be terminated without ‘good cause’ and that disciplinary action would be progressive.” (Compl. ¶ 32.) Similar allegations have been held sufficient to withstand a motion to dismiss in a number of jurisdictions. See, e.g., Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d434, 437-38 (6th Cir. 1988); Atsepoyi v. Tandy Corp., 51 F. Supp. 2d 1120, 1126 (D. Colo. 1999); Johnson v. N.T.I., 898 F. Supp. 762, 765-66 (D. Colo. 1995); Mulcahey v. Hydro-Line Mfg. Co., 707 F. Supp. 331, 335-36 (N. D. Ill. 1988); Brezinski v. F.W. Woolworth Co., 626 F. Supp. 240, 243 (D. Colo. 1986); Burns v. Preston Trucking Co., 621 F. Supp. 366, 368-69 (D. Conn. 1986).
Cases which have dismissed a plaintiffs complaint under a Rule 12(b)(6) motion had the benefit of reviewing the employee manual because it was attached to the complaint. Coatney v. Enter. Rent-A-Car Co., 897 F. Supp. 1205, 1207-11 (W.D. Ark. 1995) (dismissing plaintiffs allegations of breach of contract and wrongful discharge because of disclaimer in employment handbook); Bartenbach v. Bd. of Tr. of Nassau Library Sys., 657 N.Y.S.2d 200 (N.Y. 1997) (dismissing plaintiffs complaint because plaintiff failed “to allege anything more than an employment at will” when her employment manual “did not. . . limit the defendants’ right to discharge an employee at will to just and sufficient cause only.”). Unfortunately, we do not have the benefit of reviewing the manual at this stage.
In light of the standard for considering a Rule 12(b)(6) motion, Defendants’ motion to dismiss count two of Lorelei’s complaint is denied.
*207Intentional Infliction of Emotional Distress
In count three, Lorelei alleges Agaoleatu committed the tort of intentional infliction of emotional distress (“IIED”). As the basis for this claim, Lorelei alleges she was informed by another McDonald’s employee that that employee had been questioned by Agaoleatu regarding an alleged affair between that employee and Lorelei. After this conversation, Lorelei informed her manager of the situation and took a one-week leave. Shortly thereafter she met with Agaoleatu and her supervisor. At this meeting, Lorelei claims her supervisor wrongly terminated her for violating McDonald’s fraternization policy.2
As a matter of law, Lorelei’s allegations are insufficient to withstand a motion to dismiss. See, e.g., Balark v. Ethicon, Inc., 575 F. Supp. 1227, 1230-32 (C.D. Ill. 1983). First, Agaoleatu never confronted Lorelei directly with the allegations of fraternization, nor did he actually communicate her termination to her. Actions not directed at the employee have been held insufficient as a matter of law to support an EED claim. See Wolff v. Middlebxooks, 568 S.E.2d 88, 90 (Ga. Ct. App. 2002) (“[E]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.”) (quoting Ryckeley v. Callaway, 412 S.E.2d 826 (Ga. 1992)).
Moreover, several jurisdictions have found that more severe allegations did not state a claim for intentional infliction of emotional distress. See Sacharnoski v. Capital Consol., Inc., 187 F. Supp. 2d 843, 845 (W.D. Ky. 2002) (dismissing plaintiffs HED claim because allegations that employer forced employee to falsify employment records, and then terminated him for falsifying such records did not meet the level of outrageous conduct necessary to sustain an IIED claim); Jackson v. Blue Dolphin Comm. of North Carolina, L.L.C., 226 F. Supp. 2d 785, 793-94 (W.D.N.C. 2002) (dismissing IIED claim because allegations that employer “asked [plaintiff] to sign false affidavit” and “made a racially discriminatory statement to her” and terminated her from her position were insufficient to meet the requisite extreme and outrageous conduct necessary to sustain an IIED claim); Poulos v. Vill. of Lindenhurst, 2002 WL 31001876, *17 (N.D. Ill. Sept. 3, 2002) (noting that the defendants’ “alleged conduct-tampering with [plaintiffs] belongings, throwing firecrackers at her, making insulting remarks to and about her and engaging in a physical altercation with her~do not rise to- the level of outrageousness required to state an IIED claim”); Lydeatte v. Bronx Overall Econ. Dev. Corp., 2001 WL 180055, *2 (S.D.N.Y. Feb. 22, 2001) (allegations that defendant harassed plaintiff, denied her the same *208benefits her coworkers received, wrongfully terminated her, and retaliated against her were insufficient to meet the HED standard). As such, we grant Defendants’ motion to dismiss count three of Lorelei’s complaint.
Alter Ego Liability
Count four of Lorelei’s complaint is for alter ego liability in which she seeks to hold Agaoleatu individually liable for counts one and two of her complaint. Lorelei’s counsel admitted at the November 17, 2003 hearing on this matter that this count was improperly pled. It is well established that a “claim based on the alter ego theory is not in itself a claim for substantive relief.” 1 WILLIAM MEADE FLETCHER ET AL., Fletcher Cyclopedia of the Law of Private Corporations § 41.10 (perm, ed., rev. vol. 1999). However, Lorelei’s complaint does not seek separate relief under count four but, rather, seeks to hold Agaoleatu individually liable under counts one and two of her complaint. (Compl. ¶ 63.) In this regard, Lorelei has provided Defendants with sufficient notice of her claims and Defendants’ motion to dismiss count four is denied. See Gagliardi, 137 F. Supp. 2d at 379 (“In the end, the question must be whether plaintiff has complied with the requirements of Rule 8(a), [T.C.R.C.P.], to apprise the defendants of the charges asserted against them.”).
ORDER
Defendants’ motion to dismiss is granted in part. Count three of Lorelei’s complaint is dismissed. Defendants’ motion to dismiss the remaining counts is denied. However, Lorelei’s request for $24,500 in damages, which is outside the applicable statue of limitations, is stricken from the complaint, and Lorelei may not recover any alleged lost wages which occurred as a result of the April 2001 salary reduction.
It is so ordered.
“Under an at-will employment relationship, an employer can alter the terms of compensation provided he has given notice of the alteration to his employees and the employee thereafter continues his employment.” 27 Am. JUR. 2D Employment Relationship § 54 (1996).
Defendants request that paragraph 42 of Lorelei’s complaint be stricken as “immaterial, impertinent, and scandalous” material. We agree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486804/ | OPINION AND ORDER
On April 19, 2001, Lufilufi Lafoia Ava Peneuta (“Lufilufi”) offered the matai title Ava, from the village of Pavaia'i, for registration with the Office of the Territorial Registrar. Akapo Akapo, Jr. (“Akapo”), filed his objection and counter-claim with the Territorial Registrar on June 15, 2001. The matter was referred to the Secretary of Samoan Affairs for extra-judicial resolution from where it was returned by the Secretary with a certificate of irreconcilable dispute pursuant to A.S.C.A. § 43.0302. The dispute is before us in accordance with A.S.C.A. § 1.0409.
*212Findings
In these matters, the Court is guided by the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to family, village, and country.
1. Best Hereditary Right
Lufilufi traces her entitlement to Ava Lafoia Tulilefaga (“Tulilefaga”), her grandfather, and accordingly claims 25% hereditary right. By comparison, Akapo’s claim to the Ava title is 1.6%. However, he contends to prevail on this consideration arguing that Lufilufi has no Ava blood whatsoever. His supporters, a faction of the family led by Pagofie Fiaigoa, urge the court to find that Lufilufi’s father, variously referred to by the witnesses as either “Mapusaga” or “Lafoia Ava,” was not the natural issue of Tulilefaga, but rather a stranger that was raised from an early age by Tulilefaga and his wife Fenika. Both Pagofie and Taeaolelei Tialavea, an undisputed daughter of Tulilefaga, testified accordingly as to Lufilufi’s ancestry, on the basis of a “family account” handed down to them. In rebuttal, Lufilufi’s paternal aunt Folole Tulilefaga Ava, 85 years of age, testified that she, her late brother Lafoia Ava, Lufilufi’s father, and a third sibling Ailini, are the children of Tulilefaga by his first marriage to Ida Gaseuli Solitua. Her testimony was corroborated by 79 year old Fa'aliliu Paepule, a daughter of a former Pagofie titleholder, Saei, and granddaughter of a former Ava, Vili 1.
The conflicting family accounts as to Lufilufi’s heritage must be resolved in favor of Lufilufi’s version. Folole and her siblings were, for all intents and purposes, raised as Ava family members; they grew up in Pavaia'i, lived on family property, participated in family affairs, not as strangers, but in a manner consistent with family entitlement. Their descendants so continue to live today.
We find that Lufilufi is not only a blood member of the Ava family, but that she prevails over Akapo on the issue of hereditary entitlement.
2. Clan Support
There are four clans of the Ava family: Vili, Levale, Sivai and Sa. We find that while Akapo enjoyed some support from the Sa clan, we are satisfied Lufilufi’s candidacy enjoys support from all of the clans of the Ava family. Accordingly, we find that Lufilufi prevails on the issue of clan support.
*2133. Forcefulness. Character and Personality, and Knowledge of Samoan Customs
From our observation of the candidates and from our review of personal background and achievements, we find that Akapo prevails on this consideration. While both candidates fared equally on the factors of character and personality, and knowledge of Samoan customs, we consider Akapo’s personal achievements in education and career as a meteorologist to demonstrate greater forcefulness.
We find that Akapo prevails hereunder.
4. Value to Family. Village, and Country
On value to country, Akapo’s service to the territorial government and people of American Samoa clearly puts bim before Lufilufi. However, on value to family and village, Lufilufi’s service to family and village has unquestionably been superior to Akapo’s. She has rendered tautua (traditional service) to the Ava family and matai all her life, actively participating in family affairs, whereas Akapo’s primary ties have been to the Mase family in Vaitogi. Having lived and been raised within the Ava family, Lufilufi is, therefore, more familiar with family needs and family assets and would be better acquainted with those Ava family members who are confronted on a day to day basis with the family’s interests. See Aano v. Sitau, 2 A.S.R. 107, 110 (Trial Div. 1940). At the same time, Lufilufi renders tautua to the village of Pavaia'i, where the Ava title belongs, whereas Akapo’s service has principally been in Vaitogi where he holds a matai title.
We find in favor of Lufilufi on this criterion.
Conclusions
On the foregoing, we conclude that Lufilufi is qualified to hold the title Ava. She prevails over Akapo on the first, second, and fourth criteria. The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Ava, attached to the village of Pavaia'i, in candidate Lufilufi Lafoia Ava Peneuta.1
It is so ordered.
In view of our conclusions reached, we find it unnecessary to decide Lufilufi’s A.S.C.A. § 1.0403 motion to disqualify Akapo. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486805/ | OPINION AND ORDER
This controversy concerns the validity of an agreement executed by claimant Matu'u Timo (“Matu'u”), on behalf of the Matu'u family of Leone, separating as personal property a residential building to be constructed and owned by claimant Motuiliu Vesi Matu'u (“Motuiliu”) on the family’s underlying communal land, pursuant to A.S.C.A. §§ 37.1501-.1506. The Court holds that the separation agreement is legally valid.
Discussion
A. The Separation Agreement Proceedings
Matu'u and Motuiliu signed the separation agreement on October 30, 2000. It was presented to the Territorial Registrar, who on November 1, 2000, issued the notice of the proposed registration. In accordance with A.S.C.A. § 37.1504, the notice was posted at two public places in the Village of Leone and at the courthouse in the Village of Fagatogo for 30 days. The notice was also published in the Samoa News, a newspaper of general circulation in American Samoa, on November 2 and 16, 2000.
During the notice period, Mataivai McMoore (“Mataivai”), Peao Nu'u Asiata (“Peao”), Maliarosa Hunkin (“Maliarosa”), Simeamamao Tagi (“Simeamamao”), Niu Sale (“Niu”), Anasetasia Iakapopo (“Anasetasia”), and Matalena A. Ilaoa (“Matalena”) (collectively “the objectors”) objected to the registration. On December 6, 2000, the Registrar referred the controversy to the Secretary of Samoan Affairs for dispute resolution proceedings under A.S.C.A. § 43.0302. The Secretary issued the jurisdictional certificate of irreconcilable dispute on May 3, 2001, and the Registrar referred the matter to this Court for judicial resolution on May 30, 2001.
Apparently, the objectors initially focused on their claim to own the land at issue. At trial, however, they conceded that the land was communal land, but they maintained that the land is the communal land of both the Leoso and Matu'u families of Leone, and the holder of the Leoso title, as *216the sa 'o (“senior chief’ or “head chief’) of the extended Leoso family, was the proper person having pule (“power” or “authority”) over the land for purposes of entering the contested separation agreement. They also took the position that even if Matu'u had the pule, he abused his authority by not first consulting with them as family members and making an arbitrary and capricious decision.
B. The Land Occupants and Proposed Structure Location
The land underlying and adjacent to the proposed separated structure (“the land”) is located in Leone. The particular occupants relevant to the issues include Maliarosa, Simeamamao, Niu, and Anasetasia among the objectors. Vaiausia Matu'u (“Vaiausia”), who is Matu'u’s brother and Motuiliu’s father, also lives there. Ben Aigamaua (“Ben”) leases a house on the land.
Matu'u’s and Motuiliu’s plan situates the proposed separated structure within a four-sided plot of the land having three sides of 68.10 feet each and one side of 62.12 feet. Located adjacent to this plot are the houses of Vaiausia on the northerly side, Simeamamao on the easterly side, Anasetasia and Maliarosa, with a vehicle repair shop in between, on the southerly side, and Ben on the westerly side. The distance between the easterly and westerly side houses of Simeamamao and Ben is approximately 79 feet. The distance along a northwesterly/southeasterly line between the northerly side house of Vaiausia and the easterly side house of Simeamamoa’s house is approximately 44 feet. A 10-foot dirt access road to Maliarosa’s house and the repair shop on the southerly side runs in the area between the houses of Vaiausia and Simeamamao. The actual dimensions of the proposed house within the four-sided plot are not in evidence.
C. Pule over the Land
Only the sa 'o of the family owning communal land has the pule to enter an agreement pertaining to ownership of a structure on and separated from such land. A.S.C.A. § 37.1502(a).
In this connection, the parties introduced considerable evidence on the ownership of the land and the cognizant sa 'o, as well as their respective genealogies. The evidence raised factual conflicts. For example, Matu'u’s side maintains the land is the Matu'u family’s communal land subject to Matu'u’s pule, and the objectors maintain that the land is the communal land of both the Leoso and Matu'u families subject to the Leoso titleholder’s superior pule. Further, each side asserts that while its members are true blood members of the Matu'u family, the other side’s members lack this attribute. However, though findings on these and similar facts in dispute may be significant for the resolution of other *217issues, it is unnecessary to resolve them to determine the issues in this action.
The Matu'u family is a branch of the extended Leoso family. The holder of the Leoso title is the sa 'o of the extended family. However, the parties agree, or at least do not dispute, that without a holder of the presently vacant Leoso title, the holder of the Matu'u title has unquestionable pule over the land. The objectors concede that the holder of the Atofau title, another lesser title in the Leoso family, properly authorized Vaiausia to locate on the land. For purposes of this action, we find that the land is the Matu'u family’s communal land and that as the holder of the Matu'u family’s sa "o title, Matu'u had the pule to create the separation agreement at issue.
We further find that regardless of the blood unity issues raised by both sides, both Matu'u and Motuiliu, on one hand, and the objectors, on the other hand, are members of the Matu'u family. The objectors are descendants of a Catholic catechist couple who migrated from (Western) Samoa to American Samoa in the early 1900s. Whether it was under the pule of the holder of the Matu'u title or the Leoso title at the time, they or their daughter Malia Aloisia, after her marriage to Niu Aumoeualogo, permitted them to reside on and develop the land, at least since the 1930s. This customary assignment of communal land has continued, reaffirmed by subsequent holders of the Matu'u title, including Matu'u, to tiie present day for the objectors’ benefit. The objectors are recognized and accepted Matu'u family members.
Matu'u was bom on the land, apparently in Maliarosa’s house. Even if Matu'u Petelo, one of the previous Matu'u titleholders of record, and his wife Emelina Selesitina, another daughter of the catechist couple, adopted Matu'u’s father, Matu'u Timo, Sr., the title successor to Matu'u Petelo, as the objectors’ contend, Matu'u currently holds the Matu'u title. He, along with his brother Vaiausia, who resides on the land, and Motuiliu, Vaisausia’s son, who plans to live in his own house there, are also recognized and accepted Matu'u family members.
Matu'u clearly had pule to enter the separation agreement with Motuiliu.
D. Matu'u’s Decision Was Reasonable
A sa 'o is likened to a trustee of a family’s communal land, and in that capacity, he should ordinarily consult with the family, particularly with those members affected, before making any major decision impacting communal land uses. See Gi v. Temu, 11 A.S.R.2d 137, 141-42 (Land & Titles Div. 1989); Talili v. Satele, 4 A.S.R.2d 23, 27-28 (Land & Titles Div. 1987); Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983). This Court has also required a dissident family *218member to affirmatively allege and prove his good faith effort to settle a family problem with the sa'o and family as a condition precedent to bringing an action against the sa 'o. Toleafoa v. Tiapula, 7 A.S.R.2d 117, 123 (Land & Titles Div. 1983); Fairholt, 1 A.S.R.2d at 78. The objectors did not make any such allegation was made or offer any such proof.
However, lack of a sa 'o ‘s prior consultation or a dissenter’s good faith efforts at settlement may be excused, if constructive dialogue would be a useless gesture. Tiamalu v. Scanlan, 4 A.S.R. 194, 198 (Trial Div. 1961); Haleck v. Tiamalu, 3 A.S.R. 380, 388-89 (Trial Div. 1959); see also Gi, 11 A.S.R.2d at 142. In this action, the family discord was evident. The objectors adamantly, at least initially, claimed to own the land. On September 11 and October 26, 2001, almost immediately after the judicial resolution referral, the parties professed the need for a court order to keep the peace within their ranks. They also demonstrated antagonistic attitudes towards each other during the trial. No progress towards a constructive settlement of this dispute would have been gained by insistence on settlement discussions within the family as a prerequisite to our decision when in all probability they would have been fruitless.
A sa'o is obligated to respect long-term occupancy based on a customary assignment of communal land to a family member, as is the area surrounding Motuiliu’s proposed house site to the objectors. Gi, 11 A.S.R.2d at 141-42; Talili, 4 A.S.R.2d at 27. Ordinarily, the assignment is not revocable absent good cause. Gi, 11 A.S.R.2d at 142. However, the occupancy right flowing from an assignment is not absolute. Talili, 4 A.S.R.2d at 27. A sa'o still has authority to make decisions regarding family land, and the court will not interfere with a decision unless it is illegal, arbitrary, capricious, or an abuse of discretion. Gi, 11 A.S.R.2d at 142; Toleafoa, 7 A.S.R.2d at 118.
The objectors claim that Matu'u decision to enter a separation agreement with Motuiliu was arbitrary, capricious, and an abuse of discretion. They point to the proximity of the plot for Motuiliu’s proposed house to the neighboring houses, particularly Simeamamao’s existing house, as creating a fire and other safety hazards, upsetting the general well-being of the neighborhood through overcrowding, and blocking the access road to the buildings on the southerly side of Motuiliu’s plot. They also express concern over Matu'u’s favoritism for his nephew Motuiliu, and their perception that Matu'u plans to oust them from the land and relocate his close relatives there.
The objectors do not make persuasive arguments. The evidence shows that they accepted Vaisausia’s presence on the land, and that Matu'u is motivated by Motuiliu’s desire to live in a house near his father *219Vaisausia’s house. Their fear of further inroads onto the land by Matu'u’s close relatives is pure speculation under the evidence. The objectors conveniently ignore the likely size of the proposed house. A house the size of the four-sided plot would be enormous by local standards. The plan for the actual house is not known. A house of ample size can be readily situated within the plot so to leave approximately 20 feet between the Simeamamao’s house on the easterly side and Ben’s house on the westerly side of the plot. The house plan need not interfere with the access road that only serves Maliarosa’s house and the repair shop along the southerly side of the plot. A separate road already provides access to Anasetasia’s house at the same side.
We may think that Matu'u’s decision to grant a separation agreement to Motuiliu for his house does not make the best use of the land. However, we cannot say, and therefore do not find, that his decision was arbitrary, capricious, or an abuse of discretion in the lawful exercise of his pule over the Matu'u family’s communal land. The strained relationships within the Matu'u family remain a problem that Matu'u as the sa'o must solve. We can only enjoin the members of the family from taking abusive action against each other while Matu'u copes with this unfortunate situation.
Order
1. The separation agreement between Matu'u and Moluiliu, dated October 30, 2000, is legally valid. The Territorial Registrar shall register the agreement.
2. Matu'u and Moluiliu, on one hand, and Mataivai, Peao, Maliarosa Simeamamao Niu, Anasetasia, and Matalena, on the other hand, and their respective officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them, including but not limited to other members of their family, are mutually and permanently enjoined from assaulting, threatening to assault, molesting, annoying, harassing, or in any other manner disturbing the peace of each other.
3. The Clerk of the Court shall have a certified copy of this opinion and order served on the Territorial Registrar.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486807/ | OPINION AND ORDER
Plaintiff Te'o Lauti Tavai offered to register with the Territorial Registrar title to certain land “Pago,” located in the village of Vailoatai, as his own individually-owned land. Te'o’s claim was publicly posted between November 30, 2000, through January 29, 2001,1 and it had in turn attracted the objections of Lopati Fau, now holder of the Fau title of Vailoatai, and Te'o Malouamaua. The objectors both claimed that the land “Pago” was communal land of the Te'o family. Lopati Fau, a member of the Te'o family, so testified. We agree with the objectors and accordingly deny Te'o’s claim for the reasons that follow.
We take judicial notice of this Court’s decision in Te'o v. Fau, LT No. 40-86 (Land & Titles Div. 1987), entered September 8, 1987. The Court there awarded plaintiff, “Te'o Lauti Tavai, for himself and on behalf of the Te'o family of Vailoatai,” certain land located in the village of Vailoatai, known as “Pago.” See id. At the- time of the case, the land Pago was the subject of a lease with the federal government, with Fau Pulemau (objector Fau Lopati’s predecessor in-title) as lessor.
The 1987 judgment held, among other things, that:
1. [T]he land known as Pago in the village of Vailoatai, American Samoa is the communal land of the Te'o family under the control of the senior matai or sa'o of the family, Teo.
2. [] Fau is a talking chief (tulafale) title of the Te'o titleholder in Vailoatai.
Id. (emphasis added); {see also Stipulation to Entry of Judgment & Judgment 1-2). This is a final judgment, conclusive against the parties and Te'o’s present attempt to undo this fmal judgment by attempting to invoke the land title registration process, as set out in A.S.C.A. §§ 37.0101 et seq. (the “Registration Act”), is a futile and hopelessly ineffectual exercise.
*227Te'o’s goal here, quite obviously, is to skirt the statutory restrictions against the alienation of communal lands as contained in A.S.C.A. §§ 37.0201 et seq. (the “Alienation of Communal Land Act”). The process set out in the Alienation of Communal Land Act, regulating the alienation of communal land, requires not only the involvement of the Land Commission, to check against improvident transactions, but gubernatorial approval as well. See generally Pen v. Lavata'i, 30 A.S.R.2d 10, 13-14 (App. Div. 1996). But the Registration Act cannot trump the Alienation of Communal Land Act and it certainly does not provide a vehicle for evading the latter. Otherwise, the constitutionally mandated policy of protective legislation requiring the courts to interpret statutes in a way which is protective of the Samoan custom would be rendered quite meaningless. See AM. SAMOA Rev. CONST, art. I, § 3.2
In view of the foregoing, Te'o’s application to register title in individual ownership to land “Pago” in the village of Vailoatai is denied. The Territorial Registrar shall, accordingly, reject such application.
It is so ordered.
Incidentally, the survey offered by Te'o for registration was, on its face, procured in 1979, some 21 years before the offer to register title. However, from the Territorial Registrar’s file submitted to the Clerk’s office, it was not at all clear that the requisite statutory certifications by the surveyor and pulenu'u, pursuant to A.S.C.A. § 37.0102, were ever given.
Section 3. Policy of protective legislation.
It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons. No change in the law respecting the alienation or transfer of land or any interest therein shall be effective unless the same be approved by two successive legislatures by a two-thirds vote of the entire membership of each house and by the Governor. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486527/ | *130ORDER DEFERRING DETERMINATION OF DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS TO DISMISS FOR LACK OF PROSECUTION
The Motion of defendant American Samoa Government for Judgment on the Pleadings on this matter came for a hearing before this Court on August 25, 1997. The motion was properly brought before the court under T.C.R.C.P. 12(c). The Court declines to make a determination of the motion at this time. T.C.R.C.P. 12(d) states:
The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.
See also, Sterling v. Velsicol Chemical Corporation, 855 F.2d 1188, 1195 (6th Cir. 1988)("The method and timetable for deciding a Rule 12(b) motion under Rule 12(d) is left to the sole discretion of the trial judge who may defer that determination until trial."); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure. 1373 (1990)("The last portion of Rule 12(d) gives the court discretion to grant a preliminary hearing or to defer resolution of the issues until trial."); 2A James W.M. Moore, Moore's Federal Practice, 12.15 (1996)("The court, however, has discretion under Rule 12(d) to defer until the trial the hearing or determination of the motion.").
Pursuant to T.C.R.C.P. 12(d) determination of this motion will be deferred until this matter comes to trial.
We note, however, that since the filing of the complaint on September 28, 1993, the matter does not appear to have been diligently prosecuted. Unless good cause is shown to the contrary on or before October 24, 1997, the action will be dismissed with prejudice without further notice.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486528/ | JUDGMENT OF CONTEMPT
The order made on September 4, 1997, requiring defendants Toetogata Albert Mailo ("Attorney General") and Robert Porter ("Acting Chief Immigration Officer") to show cause why they should not be held in *132contempt of court for violation of the order entered on July 21, 1997, came regularly for hearing on September 17, 1997. The Attorney General and Acting Chief Immigration Officer were present with their counsel. Plaintiff Tuilefano Vaela'a ("Chairman of the Immigration Board") was also present with his counsel. The court heard testimony and has considered the evidence and counsel's argument.
Discussion
1. The order entered on July 21,1997, was duly and regularly made.
2. At all times since the making of the order, the Attorney General and Acting Chief Immigration Officer have had notice and knowledge of the order.
3. At all times since the making of the order, the Attorney General and Acting Chief Immigration Officer have had the ability to comply with the order.
4. The Attorney General and Acting Chief Immigration Officer have failed to comply with the order in the following particulars.
a. The order reads:
During the pendency of this action or until further order of the court, each defendant, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from further implementing existing authorizations to remain and from processing additional applications for authorizations to remain in American Samoa to undocumented aliens under the Governor's amnesty program.
b. After the order was issued and entered, the Attorney General orally instructed the Acting Chief Immigration Officer and later Assistant Chief Immigration Officer Fuimaono Kolumane ("Kolumane") not to further implement the existing authorizations to remain in American Samoa already issued to more than 2,000 undocumented aliens under the Governor's amnesty program. Kolumane was assigned to issue various immigration documents to these aliens. The Attorney General did not specifically address verifications of immigration status routinely issued to support school enrollments and similar needs of aliens authorized to remain. The Acting Chief Immigration Officer, in turn, also instructed Kolumane in similar general terms.
c. Because of the Attorney General's and Acting Chief Immigration Officer’s imprecise instructions, Kolumane issued 51 verifications of *133immigration status to enable school enrollments of aliens already authorized to remain under the amnesty program. The Chairman of the Immigration Board discovered these clear-cut violations of the order on September 3, 1997, and the Attorney General and Acting Chief Immigration Officer were apprised of them in short order.
d. The Attorney General heads the Department of Legal Affairs, which includes the Immigration Office as a division. He is responsible for his subordinates' compliance of the order. Likewise, the Acting Chief Immigration Officer is responsible for his subordinates' compliance' with the order. The Attorney General and Acting Chief Immigration Officer were inexcusably neglectful in failing to provide full and accurate instructions about this order to their staff assigned to carry out immigration aspects of the amnesty program.
5. The Attorney General's and Acting Chief Immigration Officer's inexcusable neglect constituted willful and contemptuous conduct in the context of the present situation. We need to send a message to public agency heads that they must fulfill their obligations and be abundantly careful in carrying out court orders applicable to their agencies' activities that affect public policies and interests.
Order
1. The Attorney General and Acting Chief Immigration Officer are in contempt of this court.
2. Imposition of punishment for the contempt is suspended on the condition that Attorney General, Acting Chief Immigration Officer, and their subordinates do not again violate the order during the pendency of this action.
3. This judgment of contempt will be purged when this case is finally closed, provided that the Attorney General and Acting Chief Immigration Officer have complied with the condition of suspending imposition of punishment.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486530/ | *142ORDER GRANTING MOTION TO DISMISS
Plaintiff Bank of Hawaii ("BOH") seeks judgment against defendant Emma Randall ("Randall") for $14,962.68, plus interest, attorney's fees and costs, based on an alleged default on a loan note, dated April 30, 1992. The trial date is December 5, 1997.
Randall filed a counterclaim against BOH and its attorney, Ellen A. Ryan ("Ryan"). The basis of the counterclaim is that Randall's credit ratings, good name, reputation, and career have been ruined because of BOH and Ryan's inaccurate assertions. Ryan moved to dismiss the counterclaim, and the motion came for hearing on October 20,1997.
Discussion
Randall's counterclaim is essentially a claim of malicious prosecution. A required element of such a claim is the termination of a prior action in favor of the party bringing the claim for malicious prosecution. See, e.g., H & H Farms, Inc. v. Hazlett, 627 P.2d 1161, 1167 (Kan. App. 1981)("[A]n action for malicious prosecution may not be asserted by way of cross-complaint or counterclaim in the original proceedings, prior to its termination, since it is essential that the original proceedings shall have previously terminated in favor of the party bringing the malicious prosecution action.") (quoting First Trust Co. of Montana v. McKenna, 614 P.2d 1027 (Mont. 1980) (quoting 52 Am.Jur.2d, Malicious Prosecution 14 at 195)); Bollinger v. Jarrett, 406 P.2d 834, 837 (Mont. 1965) (Defendant's counterclaim that plaintiff's action for balance due wrongfully injured the credit standing of the defendant could not be sustained on grounds of malicious prosecution because a claim of malicious prosecution requires proof of termination of a former proceeding in favor of the defendant.)
Because there has been no final determination of BOH's claim against Randall, Randall's counterclaim for malicious prosecution is premature and must be dismissed. H & H Farms, 627 P.2d at 1167; Izard v. Arndt, 483 F. Supp. 261, 264 (E.D. Wis. 1980).
Order
Randall's counterclaim is dismissed without prejudice. She may make the claim again only at the proper time.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486531/ | DECISION AND ORDER
Plaintiff Byung Soo Ki, dba Samoa Sharkfin Trading Co. ("Ki"), and defendant Ho Pyo Hong ("Hong") were at all relevant times shark fin dealers. They each bought shark fins from different oriental fishing vessels that called into the Territory, and they each prepared and exported the same off-island. In 1991, they merged operations to transact business with the fishermen as a single dealer, thus eliminating competition with one another. At the time, Hong had a virtually exclusive franchise to provision the fishing vessels of the Korea Deep Sea Fisheries Association ("KDSFA"). As a result, he had an edge over any rivals in the sharkfin business because he had ready access to the fishing boats of KDSFA. Ki, on the other hand, seemed to have greater access to the large quantities of the front money needed to acquire product.
*144A division of labor developed between the parties as Hong did the purchasing, cutting, drying, and preparation of the shark fins for export while Ki provided Hong the funds, in cash, to buy product from the fishermen and attended to the actual off-island selling, primarily to a buyer in Hong Kong. The mechanics of the parties' business was as follows: Hong would ask Ki for a certain sum of money to buy product whenever a fishing vessel was expected in port. Hong would later deliver the export-ready commodity to Ki for shipment off-island. From the proceeds of sale, Ki would first deduct the sum advanced to Hong in the first place and then the net, if any, was divided between them. According to Hong, he gained on some consignments and lost on others.
The business relationship lasted for two years, coming to an end after a falling out between Hong and KDSFA that culminated in a protracted, tedious lawsuit (see Korea Deep Sea Fisheries Association v. Hong, 31 A.S.R.2d 80 (Trial Div. 1996)) and the cessation of Hong's access to KDSFA's fishing vessels. Today, the parties are before the court on Ki's claim that $100,782.51 in cash advances made to Hong remain outstanding following the termination of their business relationship.
Ki claims that on October 21, 1991, he gave KDSFA's manager, In Saeng Lee ("Lee”), the sum of $50,000 at the request of Hong. He additionally claims that, on November 2, 1991, he also advanced to Lee the sum of $20,000 at Hong's request. Neither advance resulted in the purchase of shark fins. The balance of Ki's claim is his reckoning of net proceeds which he had advanced to Hong for shark fins but for which no product was acquired.
Hong contests owing Ki the $50,000 payment and $20,000 payment which the latter made to Lee. He flatly denies ever asking Ki to advance Lee such sums. As to the balance of Ki's claim, Hong while not disputing Ki's accounting, claims accord and satisfaction pursuant to an agreement that he and Ki had concluded after they had parted company. Hong's testimony is that Ki had agreed to retire the debt in exchange for Hong's transfer of his shark fin equipment to Ki and his forbearance from the shark fin industry. Hong testified that he additionally gave Ki a brand new retail refrigeration cooler. He further testified that he has, until recently, stayed out of the sharkfin business for the past five years.
Discussion
We find ourselves yet again immersed in that nebulous business environment of hand shakes and substantial cash dealings, where usual paper trails of checks, receipts, invoices, etc. are non existent and record keeping, if any, is purposefully secretive. Nonetheless we must decide *145between these totally competing parol claims and attempt to achieve justice.
We find that the evidence weighs in favor of Ki with regard to his $50,000 claim, the amount he testified he gave to Lee at Hong's behest. Although Hong denied under oath that he ever asked Ki to advance such a sum of money to Lee, he seems to have forgotten that he had previously tried to claim this very amount from KDSFA in a separate law suit. See Korea Deep Sea Fisheries Association v. Hong, 31 A.S.R.2d 80 (Trial Div. 1996). In his claim regarding loans he had made to KDSFA, Hong's accounting presented to the court in CA No. 78-92, contained the following entry:
12. OCT.21,1991 This amount is the cash check lent to Mr. Lee, In Saeng after I borrowed the check from Samoa Shark's Fins Trading Co. and then issued it as Korea Deep Sea account of Lee, In Saeng when he urgently requested me to make a loan. $50,000.00
(emphasis added). We accept this admission as corroborative of Ki's $50,000 item of claim. He shall have judgment accordingly.
With regard to Ki's remaining items of claim, the $20,000 advance to Lee and the remaining $30,782.51 balance, we find for Hong. Not only has Ki failed to sufficiently substantiate his $20,000 claim, but we accept Hong's version of facts as to his claim of accord and satisfaction achieved between he and Ki on the $30,782.51 indebtedness. Although Ki denies any post-termination settlement with Hong, he does not dispute the fact that Hong had given him equipment for shark fin preparation as well as a brand new cooler. Nor does Ki dispute the fact that Hong has stayed away from the sharkfin business until he decided to sue Hong. What Ki now attempts to assert, however, is inadequate value for his money. He argues that the sharkfin equipment needed repairs to the extent of $3000, although he is still using the same to date. He further attempts to downplay the value of the cooler by claiming that he has always been able and willing to pay for the cooler, but has not done so because Hong has not given him an invoice.
Not only does Ki's version of the facts sound less believable, but his "inadequacy of value" argument is legally unsound. He may not be relieved of his contract with Hong simply because he now feels that he has made a bad bargain and got the short end of the stick. Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 1, 5 (Trial Div. 1987).
On the foregoing, we conclude that Hong is indebted to Ki in the sum of $50,000. Judgment will enter accordingly for Ki against Hong.
*146It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486532/ | ORDER DENYING APPLICATION FOR WRIT OF MANDAMUS
Plaintiff is an inmate at the Territorial Correctional Facility. He fded motions for a show cause order directed against Charles Reavis ("Reavis"), Special Assistant to the Warden of the Territorial Correctional Facility, and other unnamed prison officials, alleging their refusal to allow him to "go to court, post office, shopping, banking, nor to renew [an] expiring [airplane] ticket."
We summarily denied plaintiffs contention that prisoners are somehow constitutionally entitled to leave the prison facilities to receive mail, shop, and conduct other personal business, but granted his show cause *147application insofar as he alleged his being denied access to the High Court's law library. (See Order to Show Cause, filed Aug. 8, 1997.)
The matter was set for hearing on September 4, 1997. On that date, the defendants appeared through the Attorney General's Office but failed to bring the plaintiff, offering as justification the plaintiffs failure to inform the Correctional Facility of his court appearance date. We treated the government's failure to have the plaintiff in court as prima facie evidence in support of plaintiffs complaint about lack of access to the court. We accordingly ordered the defendants to ensure plaintiffs access "to the court for all further hearings in this matter." (See Ruling and Order filed Sept. 5, 1997.)
On October 20, 1997, this matter again came before us when plaintiff applied for a writ of mandamus in order to compel the defendants to reinstate his work release program. Although the Correctional Facility previously allowed plaintiff to be employed by the American Samoa Power Authority, it terminated plaintiffs work release privilege, along with that of all other inmates release programs, after this court decided American Samoa Government v. Byung Soo Ki, 31 A.S.R.2d 118 (Trial Div. 1995) (Opinion & Order, filed Jan. 10, 1997). The decision in this case essentially struck down the Correctional Facility's various release programs as contrary to the statutory prohibition against the release of inmates except as authorized by law. Id., at 5. See A.S.C.A. § 46.2303(c). The court failed to find, and the parties were unable to point to, any such authorization in the law.
Given the state of the law as enunciated in the Byung Soo Ki case, which plaintiff did not question, we conclude that plaintiffs application for a writ of mandamus must fail. 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, 29 A.S.R.2d 116, 117-118 (App. Div. 1995).
The plaintiff is in jail, having been properly convicted of a double homicide. He has no plain right to work release, and the defendants have no plain duty to grant him work release. Indeed, they are prohibited from releasing inmates duly incarcerated by the criminal process.
Motion denied.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486533/ | OPINION AND ORDER
Introduction
This action was originally brought against defendant American Samoa Government ("ASG") and Hawaiian Airlines. The court granted summary judgment in Hawaiian Airlines' favor. The case against ASG then proceeded to trial as a medical malpractice cause of action.
Siliaga Lang ("Siliaga"), now deceased, was the wife of plaintiff Maanaima Lang ("Lang"), and the mother of plaintiff Nelly Lang. At the time of her death, Siliaga was 34 years old.
Siliaga's medical history shows that she was treated for cancer at the University of Washington in 1986. Between October 1988 and February 1989, Siliaga was treated several times as an outpatient at ASG's LBJ Tropical Medical Center ("LBJTMC"). She was treated for abdominal pain, urinary tract infection, increasing fatigue and anemia related to hydronephrosis and mild renal insufficiency, both kidney dysfunctions. She was hospitalized on February 8, 1989 due to severe shortness of breath and mild to moderate dehydration. David L. Stevig, M.D., Siliaga's *150principal physician at that point, directed blood tests, an ultrasound test, x-rays, and an electrocardiogram. These tests showed mild insufficiency of Siliaga's kidneys and some enlargement of her heart, but did not reveal the underlying causes of Siliaga's medical condition. Dr. Stevig therefore arranged to have Siliaga transferred to Tripler Army Medical Center ("TAMC") in Hawaii for more comprehensive evaluation and treatment. His instructions for Siliaga's transport included a nurse escort. Dr. Stevig saw Siliaga the morning she was transferred to TAMC. She had experienced vomiting and nausea in the night, so Dr. Stevig prescribed Compazine, an anti-nausea drug, to treat this problem should it occur en route.
On February 13, 1989, Siliaga was transported to the airport in an ambulance and boarded the aircraft to Honolulu. Throughout the journey, she had an intravenous line ("IV") attached and was using supplemental oxygen. She was accompanied by a nurse and Lang. Approximately one hour away from Hawaii, Siliaga appeared to become sick. The nurse then administered Compazine through Siliaga's IV. Within a short time after the administration of the drug Siliaga began kicking and screaming and asking for more oxygen. Soon she stopped breathing and went into cardiac arrest. At this point other medical personnel traveling on the plane came to assist Siliaga, using cardiopulmonary resuscitation ("CPR"). They continued with CPR until the plane arrived in Hawaii, where an emergency medical team took over and transported Siliaga to the emergency room at TAMC. Attempts to revive Siliaga continued at TAMC until she was pronounced dead later that day.
Discussion
To establish a cause of action for negligence a party must prove duty, breach, causation, and damages. See, e.g., William L. Prosser, The Law of Torts 39, at 143-44 (4th Ed. 1971). In a suit for injuries caused by alleged malpractice, the burden is on the plaintiff to prove by a preponderance of the evidence the recognized standard of medical care in the community, that there was a lack of reasonable and ordinary care or skill on behalf of the medical professional, and that the medical professional's negligence was the proximate cause of the injury. See, e.g., 61 Am. Jur. 2d, Physicians, Surgeons, Etc., 329-332. Injury, death, or an otherwise unsuccessful result of treatment does not itself shift the burden of proof, nor does it give rise to an inference of negligence. Id.
I. Duty
In a medical malpractice action, the duty of a medical professional is to act with the standard of care ordinarily exercised under the same or similar circumstances by members of the profession in the same or similar communities. See Portillo v. United States, 816 F. Supp. 444, 447 *151(W.D.Tex. 1993); East v. United States, 745 F. Supp. 1142, 1149 (D.Md. 1990); Sewell v. United States, 629 F. Supp. 448, 455 (W.D.La. 1986). The burden is on the plaintiff to prove by a preponderance of the evidence the recognized standard of medical care. The only evidence produced at trial on the issue of the applicable standard of care came through the Dr. Stevig's deposition in evidence and the testimony of Iotamo Saleapaga, M.D.
According to Dr. Stevig, it was reasonable to use Compazine on Siliaga to treat any possible nausea. He also stated that the treatment of Siliaga was commensurate with the standard of care in American Samoa. Dr. Saleapaga concurred with Dr. Stevig. Although Dr. Stevig would have laid Siliaga flat and raised her feet upon the onset of the apparent reaction to Compazine, he stated that he would not expect someone who is not a physician to undertake the same treatment. There was no evidence presented as to whether it was unreasonable for the physicians not to include instructions to the nurse on procedures applicable to, and possible adverse reactions to, Compazine.
Moreover, there was no evidence generally on the applicable standard of care for the accompanying nurse. Instead of presenting evidence on this issue, plaintiffs merely argues that a reasonable nurse should have known how to treat an adverse reaction to Compazine. Although there is some indication that this might be the case, that slight indication falls far below the preponderance burden which the plaintiff carries. Plaintiffs should have presented evidence on the standard of care for a nurse in American Samoa in relation to the administration of Compazine. Plaintiffs failed to do so. This court therefore is left without a barometer with which to measure the reasonableness of the nurse's conduct.
II. Breach
Unless it is proved otherwise, a physician is presumed to have carefully and skillfully treated his patient. As stated above, the only evidence in the record indicates that the initial prescription of Compazine for the treatment of possible nausea was reasonable under the circumstances. Without more evidence on this issue we find that plaintiffs have failed to meet their burden of showing breach of the physicians' duty of care by a preponderance of the evidence.
Further, as mentioned above, plaintiffs failed to offer testimony on the applicable standard of care for a nurse in this locality, both as to the standard of care required when accompanying a passenger generally and the standard of care required when administering Compazine. Since plaintiffs have failed to adequately provide this court with the applicable standard of care, we cannot determine whether that duty was breached on the part of the accompanying nurse. We again find that plaintiffs have failed to meet their burden.
*152III. Causation
Plaintiffs must proffer either medical evidence or the basis for the application of the doctrine of res ipsa loquitur to establish a causal link between Siliaga's death and ASG's actions. Res ipsa loquitur is applicable when (1) the event is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; (3) it was not due to any voluntary action or contribution on the part of the plaintiff. See Lang v. American Samoa Government, 24 A.S.R.2d 59, 61 (Trial Div. 1993). Res ipsa loquitur "applies to the consequences of professional treatment if such consequences would not ordinarily occur in the absence of the allegedly culpable conduct." Blincoe v. Luessenhop, 669 F. Supp. 513, 516 (D.D.C. 1987), citing Quin v. George Washington Univ., 407 A.2d 580, 583 (D.C. 1979).
Here plaintiffs assert that the res ipsa loquitur doctrine is applicable due to the fact that Siliaga died after being given the Compazine. Plaintiffs assert that it is more likely than not that Siliaga's death was caused by negligence. However, as Prosser explains, the mere fact that an injury occurred is not evidence of negligence. See Prosser, supra, 39, at 211. See also Blincoe, 669 F.Supp. at 517 (Res ipsa loquitur was inapplicable in a medical malpractice action brought by a patient who had suffered a cerebellar infarct after undergoing certain treatment procedures because the cerebellar infarct could be suffered as a result of a cause unrelated to the treatment procedures); Garrett v. United States, 667 F. Supp. 1147, 1163 (W.D.La. 1987) (Res ipsa loquitur cannot apply where the patient's adult respiratory distress syndrome, kidney failure and multiple organ system failure can occur in the absence of someone's negligence). Expert testimony is indispensable in determining whether negligence occurred. See Prosser, supra, 39, at 227. Plaintiffs presented little evidence on this issue.
Siliaga was a very sick woman, with possible problems which could not be treated or diagnosed at LBJTMC. This is the reason she was being transported to Hawaii. Compazine had been previously prescribed to Siliaga (though it is not apparent whether she ever used the prescription). Although there is some evidence which suggests that Compazine should not have been given, that evidence is insufficient to meet plaintiffs' burden. We do not find that Dr. Stevig's prescription or the nurse's administration of Compazine was inherently negligent. Moreover, we find it very troubling that plaintiffs failed to put on the nurse as a witness, or explain her absence. The nurse has significant first-hand knowledge of the entire chain of events. *153Without this and other evidence, we find that the doctrine of res ipsa loquitur is inapplicable to the case at bar.1
Because res ipsa loquitur is inapplicable, plaintiffs must produce some medical proof of causation. See, Blincoe, 660 F. Supp. at 517. Plaintiffs have failed to produce this evidence. There was no autopsy performed on Siliaga. The death certificate stated the cause of death as cardiac arrest due to, or as a consequence of, pericardial effusion due to, or as a consequence of, renal failure. The Honolulu medical examiner, however, stated the cause of death as cardiomyopathy. Finally, Dr. Stevig stated that he believed the cause of death was cardiac arrest, caused by a drop in blood pressure and unknown underlying conditions, not pericardial effusion or renal failure. "If the trier of fact can do no more than speculate as to which of several possible causes was the actual cause of the injury in question, the Defendant is entitled to judgment in its favor." Portillo v. United States, 816 F. Supp. 444, 447 (W.D.Tex 1993). We find that plaintiffs have failed to meet the burden of proof regarding causation.
IV. Damages
Because plaintiffs have been unable to establish the first three elements of a cause of action for negligence, we do not need to address the fourth element of damages.
Conclusion
We find that plaintiffs have failed to meet the burden required to establish a standard of care owed to them, the breach of that standard, or a causal connection between Siliaga's death and ASG's actions. The doctrine of res ipsa loquitur is not appropriate under the facts presented at trial.
Judgment is for ASG.
It is so Ordered.
Even if the doctrine of res ipsa loquitur were applicable, it merely establishes a permissive inference of negligence which the fact finder is not required to adopt. Iosia v. National Pacific Insurance Ltd., 20 A.S.R.2d 123, 124 (Trial Div. 1992). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486534/ | ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Introduction
Pemila Young (“Young”) and plaintiffs Antonio Mata (“Mata”) and Fa'aaliga Seumanutafa (“Seumanutafa”) were hired by defendant W.F. Management Co. (“W.F. Management”) to perform work in refurbishing the MW Conquistador. On March 30 or March 31, 1992, Young, Mata, and Seumanutafa entered and began cleaning a fish well on the MW Conquistador. They were later discovered unconscious. Mata and Seumanutafa sustained injuries as a result of this accident. Young was transported to LBJ Tropical Medical Center where he had periods of consciousness until his death several days later.
After repairs were completed on the Conquistador, it was certified by the U.S. Coast Guard and began to operate under the name MW Diana Lynn.
Plaintiff Estate of Pemila Young (“Estate of Young”) brought a wrongful death action and Mata and Seumanutafa brought personal injury actions against defendant MW Diana Lynn (“MW Diana Lynn”) and W.F.. *156Management, the vessel’s owner. It is asserted in all three cases that Young, Mata, and Seumanutafa are “seamen” and thus entitled to sue their employer pursuant to the Jones Act and general maritime law. The court consolidated the three cases.
W.F. Management moved for summary judgment on grounds that Young, Mata, and Seumanutafa are not seamen and thus not entitled to recover under the Jones Act or general maritime law. We heard the motion on December 12, 1996 and took it under advisement. We also scheduled a hearing on December 31, 1996 on a contemporaneous motion filed by Young, Mata, and Seumanutafa to compel W.F. Management to produce requested crew’s lists and sale and transfer documents for the M/V Diana Lynn, information relevant to the motion for summary judgment. Then, on December 31, 1996, we deferred ruling on the motion for summary judgment until the deposition of David L. Franklin, W.F. Management’s owner, concerning the hiring of Young, Mata, and Seumanutafa, was available. This deposition was later taken and was filed in this action on April 25,1997.
Discussion
I. Summary Judgment
“A party against whom a claim ... is asserted... may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” T.C.R.C.P 56 (b). Once the moving party has put forth a prima facie case, the party opposing summary judgment has the burden of showing that there are genuine issues of material fact which render summary judgment inappropriate. Amerika Samoa Bank v. Pacific Reliant Industries, 20 A.S.R.2d 102, 109 (App. Div. 1992); see also, Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 171, 173 (Trial Div. 1994). However, “In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party.” Lang v. American Samoa Gov’t, 24 A.S.R.2d 59, 60 (Trial Div. 1993).
W.F. Management maintains that the issue of whether Young, Mata, and Seumanutafa are seamen, and thus eligible to sue the MW Diana Lynn and W.F. Management under the Jones Act and general maritime law, is one of both law and fact which can be resolved on summary judgment when there is no dispute as to the material facts. The Estate of Young, Mata, and Seumanutafa argue that the issue of whether an individual is a seaman is a question of fact and cannot be appropriately decided on summary judgment.
The definition of a “seaman” under the Jones Act is better characterized as a mixed question of law and fact than as a pure question *157of fact. “The inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee’s precise relation to it. Nonetheless, summary judgment is mandated where the facts and the law will reasonably support only one conclusion.” McDermott Int’l Inc. v. Wilander, 498 U.S. 337, 356, 112 L.Ed.2d 866, 883 (1991) (citation omitted). See also, Kathriner V. Unisea, Inc., 975 F.2d 657, 660 (9th Cir. 1992) (upholding a summary judgment which precluded recovery under the Jones Act because the place where the plaintiffs were injured was not a “vessel in navigation”)
We conclude, therefore, that the issue of whether Young, Mata, and Seumanutafa are seamen is an issue appropriately decided on summary judgment.
II. Seaman Status
The Jones Act provides a cause of action to a seaman for personal injuries sustained in the course of employment. 46 U.S.C.S. App. § 688 (Law. Co-op. 1987). A recent case, Heise v. Fishing Co. of Alaska, Inc., 79 F.3d 903 (9th Cir. 1996), is quite similar to the case at bar and applies the legal definition of seaman as used in the Jones Act and general maritime law. In Heise, the court affirmed a district court’s summary judgment ruling that a temporary land-based repair worker was not a seaman under the Jones Act.
The Heise court used the two prong test set forth in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed2d 314 (1995):
First, ... an employee’s duties must contribute to the function of the vessel or the accomplishment of its mission.. . . Second, ... a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.
Id. at 368, 115 S.Ct. at 2190, 132 L.Ed.2d at 337 (quotations omitted); see Heise, 79 F.3d at 906; Wilander, 498 U.S. at 355, 112 L.Ed.2d at 882. The Chandris court also emphasized that:
the total circumstances of an individual’s employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon. . . . [T]he ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.
Chandris 515 U.S. at 370, 115 S.Ct. at 2190-91, 132 L.Ed.2d at 338. *158(quotations omitted); see Heise, 79 F.3d at 906; Wallace v. Oceaneering Int'l, 727 F.2d 427, 432 (5th Cir. 1984)
Young, Mata, and Seumanutafa were simply land-based employees who happened to be working on the M/V Diana Lynn at the time they were injured. W.F. Management hired them to perform repairs on the ship to help ready it for navigation. Seumanutafa did state that before the accident, John Mourian, W.F. Management’s port engineer, told him that Young, Mata, and himself were crew members. Moumian, however, had no authority to hire crewmembers. By their depositions and affidavits, Mata and Seumanutafa admit that, whatever their future expectations, they were not members of the crew when they were injured.1 Young, Mata, and Seumanutafa never signed the ship’s articles and were never on the vessel’s crew list.
“[T]he requirement that a seaman work at sea in the service of the ship embodies the first basic principle of the definition of seaman . . . .” Heise, 79 F.3d at 906 (emphasis in original) (citations omitted). Land-based workers are not seamen. The M/V Diana Lynn was not in navigation at the time of the accident. The vessel had been in dry dock and tied up at port undergoing repairs for at least three years. When the vessel was shifted from one position at the dock to another, it was not under her own power. As Mata and Seumanutafa state, the ship did not leave port until after the accident.
Young, Mata, and Seumanutafa do not, therefore, meet the definition of seaman as established in Chandris and subsequent cases.
Order
Because Young, Mata, and Seumanutafa were land-based, non-crew member employees while working on the M/V Diana Lynn, they are not seamen entitled to remedies under the Jones Act or general maritime law. We grant summary judgment in favor of W.F. Management and the M/V Diana Lynn and against the Estate of Young, Mata, and Seumanutafa.
It is so Ordered.
“. . . John Mourian promised us we would be crew members of the vessel when it left port. . .” Mata Aff. at 1. The Heise court addressed similar circumstances in which a plaintiffs belief at the time of injury that he would eventually be hired as a crew member was insufficient to raise the repair worker to seaman’s status. Heise, 29 F.3d at 906. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486536/ | On April 10, 1997, Defendant Abe Samana ("Samana") was arrested on a warrant issued by the District Court on charges of production of a controlled substance, possession of a controlled substance, and assault in the first degree. The District Court ordered that Samana be held without bail pursuant to Article I, Section 6 of the Revised Constitution of American Samoa. The District Court reaffirmed its decision at Samana’s initial appearance on April 11, 1997, when Samana moved to continue the preliminary examination on April 14, 1997, and at the preliminary examination on April 16, 1997. The case was transferred to this court, and on May 2, 1997, this court heard Samana’s renewed claim for release on reasonable bail.
Discussion
The Revised Constitution of American Samoa provides that
... All persons shall be bailable by sufficient sureties except where the judicial authorities shall determine that the presumption is great that an infamous crime, which term shall include murder and rape, has been committed and that the granting of bail would constitute a danger to the community....
Art. I, § 6. Thus, under the Samoan Constitution, Samana is entitled to release on reasonable bail unless (1) possession of a controlled substance, production of a controlled substance, or assault in the first degree is an “infamous crime”; (2) the presumption that Samana committed these crimes is great; and (3) Samana’s release on bail poses a danger to the community.
1. Infamous Crimes.
Samana argues that the Revised Constitution’s language expressly limits the category of “infamous crimes” to murders and rapes. We disagree. While the Revised Constitution indicates that the term “infamous crime ... shall include murder and rape,” the Revised Constitution does not state that infamous crime includes only the crimes of murder and rape and *168excludes all other crimes.1 A plain reading of the constitutional provision suggests that murder and rape are merely examples of the much larger category of “infamous crimes.”
The drafters of the Revised Constitution likely borrowed the term, “infamous crime” from the Fifth Amendment of the United States Constitution, which requires an indictment to hold a person “to answer for a capital, or otherwise infamous crime.” U.S. Const. Am. V. We hold that because of the close nexus between the United States and American Samoa Constitutions, the federal definition of “infamous crime” is the intended definition of “infamous crime” in Art. I, § 6 of the Revised Constitution.
In the federal system, the nature of the crime or the nature of the potential punishment can serve to make a crime “infamous.” United States v. Armored Transport, Inc., 629 F.2d 1313, 1318 (9th Cir. 1980) cert. denied, 450 U.S. 965 (1980). More specifically, the federal courts have stated that the class of “infamous crimes” includes, among other things, those crimes for which one may be imprisoned for more than one year. Barkman v. Sanford, 162 F.2d 592, 592-93 (5th Cir. 1947), cert. denied, 332 U.S. 816 (1947); United States v. Driscoll, 612 F.2d 1155, 1156 (9th Cir. 1980).
First degree assault is a Class B felony punishable by a term of imprisonment not less than 5 years and not exceeding 15 years. A.S.C.A. §§ 46.2301(2), 46.3520(b). First-time possession of a controlled substance is a class D felony punishable by a term of imprisonment up to 5 years. A.S.C.A. §§ 46.2301(4), 13.1023. First-time production of a controlled substance is punishable by a term o‘f imprisonment up to 20 years. A.S.C.A. §§ 13.1020. Thus, first degree assault, possession of a controlled substance, and production of a controlled substance are “infamous” crimes, which, like murder and rape, may not be bailable under Art. I, § 6 of the Revised Constitution if (a) the presumption is great that Samana committed these infamous crimes and (b) releasing Samana on bail constitutes a danger to the community.
2. The strength of the presumption ofguilt.
Sufficient evidence was presented at the preliminary hearing in support of its charges against Samana. Samana does not dispute this evidence in his *169motion to set bail. Therefore, for purposes of this motion, we determine that the presumption is great that Samana committed the three infamous crimes charged against him.
3. Danger to the community.
Samana would like us to deny bail only if there is “clear and convincing evidence” indicating that Samana is a threat to society. The Revised Constitution only requires the court to “determine” whether Samana constitutes a danger to the community. Nothing is said about heightened burdens of proof. However, assuming, without deciding, that we must find manifest evidence that Samana poses a danger to the people of American Samoa, we have no trouble finding that there is, indeed, clear and convincing evidence that Samana will be a danger in society if released on bail.
Evidence presented at the preliminaiy hearing shows that the defendant fired a handgun at police officers, and concealed that weapon prior to arrest. Based on this evidence, we are convinced that Samana has access to a gun and is willing to use violent force to evade lawful court orders. We have no crystal ball to foresee what will happen. But we are sufficiently concerned about what might happen that we feel compelled to hold Samana without bail pending his trial on the merits.
Conclusion
Accordingly, Samana’s motion to set reasonable bail is denied.
It is so Ordered.
We believe that if the drafters of this constitutional provision had intended to limit the categoiy of non-bailable offenses to murder and rape, they would have included language such as, “... except where the judicial authorities shall determine that the presumption is great that murder or rape has been committed . . . .” instead of adopting the term “infamous crime” from the Anglo-American legal tradition. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486537/ | Defendant Ricky Anthony Pu'aa ("Pu'aa") moves for reduction or modification of his sentence. The court heard the motion on June 9, 1997. Pu'aa and both counsel were present.
On Februaiy 25,1997, Pu'aa was sentenced on his conviction by jury of the offense of possession of the controlled substance of methamphetamine. The court sentenced Pu'aa to five years’ imprisonment, execution suspended. He was then placed on probation for five years, on several conditions, including that he serve a period of 20 months' detention, without release except for a genuine medical emergency or by prior court order.
Five years is the maximum term of imprisonment for possession of a controlled substance under current American Samoa law. Pu'aa would be eligible for parole in 20 months if we had imposed this maximum. Instead, we chose a probated sentence with 20 months' detention. We did so to retain direct control, for the longest permissible period, over Pu'aa's time in custody and to still hold in abeyance five years' imprisonment should he violate the conditions of his probation.
Pu'aa is now requesting that the court reduce or modify his detention period to permit release for remunerative employment, home plantation work, or further education. He justifies his request by alleging that he is remorseful, rehabilitated, has employment for his existing trade skills and professional architect ambitions, can be immediately useful to his family, has no prior *171criminal record, and poses no danger to society. In sum, he argues that the community would be better served if he was immediately engaged in more socially productive pursuits.
Pu'aa, however, overlooks a principal factor in the court's sentence. He stands convicted of possessing the illegal drug methamphetamine. He brought to American Samoa a large quantity of this drug planned for distribution. The immediate offense is very serious and clearly forebodes a present and future threat to this community. We purposely selected the available maximum under the law for a probated sentence and would have done likewise if we chose to impose an outright prison sentence. The intended deterrent effect of the sentence was and still is of paramount importance.
The motion to reduce or modify the sentence is denied.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486539/ | *175On March 9, 1997, Department of Public Safely ("DPS") officers received information from Tupu LeTilio that marijuana was being grown and cultivated on a plantation in Nu'uuli. The officers immediately drove to Nu'uuli and through the bush and up hills for thirty (30) minutes to the location of the suspected marijuana. They did not attempt to obtain a search warrant for the area. Upon arrival, the police confronted the defendant, Anetele'a Atafua ("Atafua"), who appeared to be attempting to conceal plants believed to be marijuana. The officers took custody of 16 plants.
On March 13, 1997, after forensic analysis of the seized plants tested positive for the active ingredient of marijuana, DPS officers executed an arrest warrant for Atafua. On March 25, 1997, the American Samoa Government ("ASG") filed an information against Atafua charging him with unlawful production of a controlled substance in violation of A.S.C.A. §§ 3.1020,13.1001(h) and (m), 13.1006, and 46.3207(a)(2).
Atafua now moves to suppress the evidence obtained during the search on the Nu'uuli plantation on the ground that the warrantless search violated Atafua’s constitutional right against unreasonable searches and seizures.
Discussion
Article I, § 5 of the Revised Constitution of American Samoa guarantees the right of individuals "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This provision protects only those who have a legitimate expectation of privacy with respect to the searched area. See Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 641 (1980); Rakas v. Illinois, 439 U.S. 128, 148, 99 S. Ct. 421, 433 (1978); Alderman v. United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 187 (1969) (stating that the right to be free from an unreasonable search is a "personal right" which "may not be vicariously asserted").
In the instant case, Atafua has neither asserted nor demonstrated that he has a property or possessory interest in the area of bush land on which the marijuana plants were discovered. We thus have insufficient information to conclude that Atafua had a legitimate expectation of privacy in the searched area, and we cannot conclude that the search violated Atafua’s constitutional rights. Even if the police violated someone else’s constitutional rights by failing to obtain a warrant before conducting the search on the property, such information does not justify exclusion of the seized evidence in Atafua’s prosecution.
*176Conclusion and Order
Accordingly, the motion to suppress is DENIED.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486542/ | ORDER DENYING MOTION FOR AN IN CAMERA HEARING
On April 16, 1997, the plaintiff American Samoa Government ("ASG") filed an information against Defendant Alapati Fa'atulu ("Fa'atulu"), alleging unlawful production of a controlled substance, in violation of A.S.C.A. §§ 3.1020, 13.1001(h) and (m), 13.1006, and 46.3207(a)(2), and unlawful possession of a controlled substance, in violation of A.S.C.A. §§ 3.1022 and 13.1006.
The information was filed after DPS Special Agent Va'aomala Sunia ("Sunia") executed a search warrant on the residence of Fa'atulu, the "curtilage thereof," and a Samoan fale near the main house. Fa'atulu now moves for an in camera hearing to examine the confidential informant who had allegedly supplied the police, and eventually the District Court, with the information leading to the search.
*185This motion for an in camera hearing is identical in virtually all relevant respects to the motion for an in camera hearing in American Samoa Government v. Samana, 1 A.S.R.3d 178 (Trial Div. 1997) (Order Denying Motion for In Camera Hearing). We agree with and adopt the Trial Division's reasoning in that case.
Thus, we conclude that in the instant case, the warrant clause of Article I, § 5 of the Revised Constitution of American Samoa was not violated when the judge issued a search warrant for the residence of Alapati Fa'atulu without learning the identity of the confidential informant.
In the affidavit in support of the search warrant, Agent Sunia stated that he had investigated the informant's criminal history (and found no record of a conviction); that he verified the informant's credibility with a fellow officer who had used the informant on previous occasions to uncover illegal marijuana possession; and that informant's statements were consistent with his own personal experiences with Fa'atulu and Fa'atulu’s residence. Thus, the issuing judge had a “substantial basis” for crediting the confidential informant's statements, and there is no reason to conduct an evidentiary hearing to reveal the identity of the informant. Samana, 1 A.S.R.3d at 180-81 (Order Denying Motion for In Camera Hearing).
Furthermore, we affirm the Government's privilege to conceal the identity of confidential informants where, as here, there has been no showing that an in camera hearing involving the confidential informant is in any way “relevant and helpful” to a particular legal theory advanced by Fa'atulu. Samana at 183.
Accordingly, the motion for an in camera hearing is DENIED.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486543/ | ORDER DENYING MOTION TO SUPPRESS
Introduction
On May 10, 1997, defendant, Peniamina Kolose Pino ("Pino"), a juvenile, was arrested and taken into custody accused of the crimes of Murder in the First Degree (A.S.C.A. § 46.3502) and Rape (A.S.C.A. § 46.3604). This court held a hearing regarding Pino's mental condition, and on July 2, 1997, issued an order denying the motion to prosecute Pino as a child.
*188On August 22, 1997, Pino moved to suppress any and all statements made by him to employees of the Department of Public Safety, claiming that he was seized illegally and that any such statements were neither voluntarily nor knowingly and intelligently made as required by Miranda v. Arizona, 384 U.S. 436 (1966). This motion came for hearing on September 15, 1997.
Discussion
The court finds that the statements Pino made to employees of the Department of Public Safety were not made as a result of an illegal arrest and were made only after he validly waived his Miranda rights.
A. Valid "Arrest"
Detective Sagapolutele's detention of Pino was not an illegal arrest in violation of his constitutional rights. Article I, § 5 of the Revised Constitution of American Samoa parallels the Fourth Amendment to the United States Constitution and provides a safeguard against "unreasonable searches and seizures." This provision of the Revised Constitution of American Samoa is implemented by A.S.C.A. §§ 46.0801-.0807. The statute provides a number of exceptions to the general requirement that a duly issued warrant is necessary for an arrest. Relevant to this case is the provision that:
A police officer is authorized, and it is his duty, to make an arrest without a warrant, in the following cases: ... (3) of persons found near the scene of a felony and suspected of committing it, where such suspicion is based on reasonable grounds and the arrest follows the crime by a short time.
A.S.C.A. § 46.0805.
In addition, as the government notes, in its Opposition to Motion to Suppress Statements, the standard for detaining a child1 or taking a child into custody is found in the Juvenile Justice Act of 1980, A.S.C.A. §§ 45.0201-.0215. Section 45.0201 provides that:
(a) a child may be taken into temporary custody by a law enforcement officer without order of the court:
*189(1) When there are reasonable grounds to believe that he has committed an act which would be a felony or misdemeanor if committed by an adult
(c) The taking of a child into temporary custody under this section is not an arrest nor does it constitute a police record.
Although the taking of Pino into custody, under the language of the statute concerning children, would not be an arrest, the two statutes do have the common element of "reasonable grounds." "Reasonable grounds," in the context of arrest, is substantially equivalent to "probable cause." American Samoa Gov't v. Luki, 21 A.S.R.2d 82, 83 (Trial Div. 1992). Probable cause for a warrantless arrest must exist when the arrest is made, and the government has the burden of showing probable cause. Id., citations omitted. Whether we apply the statutory provision concerning warrantless arrests in general, or the more specific provisions pertaining to detention of children, the requisite reasonable grounds were met in this case.
When Captain Leuta and Detective Sagapolutele detained Pino, they knew that a woman's body had been found that afternoon on the beach at Aua. They also knew that the woman had drowned, and that doctors had discovered bruising on the woman's neck indicating that she could have been strangled. They knew that the woman had been last seen the previous evening in the aumaga shack on the beach and that Pino had been seen in the same area at the same time. One witness had reported seeing Pino swimming in the ocean at the time the woman was last seen. Three of Pino's friends had reported seeing him coming from the ocean, wet and wearing shorts. They reported to the officers that Pino seemed nervous and ignored their invitation to join them. The officers also had spoken with Pino's father, who agreed to find Pino and bring him to the police station so he could be questioned. Prior to meeting the father at the police station the officers encountered Pino. When they mentioned that they wanted to ask him some questions, Pino fled.
*190This knowledge of the officers, combined with Pino's flight,2 provided sufficient probable cause for a warrantless arrest under A.S.C.A. § 46.0805 or for the taking of a child into custody under A.S.C.A. § 45.0201. Therefore, Pino's rights against "unreasonable seizure" under the Revised Constitution of American Samoa and the United States Constitution and his rights as enumerated in the warrantless arrest provisions of the American Samoan Code were not violated. The circumstances of his arrest or detention, then, will not serve as a basis to suppress any statements Pino made to employees of the Department of Public Safety.
B. Waiver of Miranda Rights
Any confession or statements given to the police must comply with the standard as established in Miranda v. Arizona, 384 U.S. 436, 444 (1966), with certain elements that have been modified or clarified over the years. "In essence, if a suspect 'voluntarily, knowingly, and intelligently' waives his right to remain silent and to an attorney, a statement made by a suspect who is in custody is admissible. American Samoa Gov't v. Gatoloai, 23 A.S.R.2d 65 (Trial Div. 1992), citing Miranda, 384 U.S. at 444. The relinquishment of rights must be voluntary in the sense of being a free and deliberate choice, and knowing and intelligent in the sense of having an awareness of the nature of the right and the consequences of waiving it. Moran v. Burbine, 475 U.S. 412, 421, 89 L.Ed.2d 410, 421 (1986). "Only if the 'totality of the circumstances surrounding the interrogation1 reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Id., citing Fare v. Michael C. 442 U.S. 707, 725 (1979). See also, Colorado v. Spring, 479 U.S. 564, 573 (1987).
*191The Juvenile Justice Act of 1980 provides a statutory implementation of the Miranda principle. Section 45.0204 provides that:
No statements or admissions of a child made as a result of interrogation of the child by a law enforcement official concerning acts alleged to have been committed by the child which would constitute a crime if committed by an adult are admissible in evidence against that child unless a parent, guardian or legal custodian were advised of the child's right to remain silent, tha[t] any statements made may be used against him in a court of law, of the right to the presence of an attorney during the interrogation, and of the right to have counsel appointed if so requested at the time of the interrogation. ...
Based on evidence presented before us at the hearing, we find that Pino's waiver of his Miranda rights was voluntary, knowing and intelligent. The evidence presented to us showed that there was no police intimidation, coercion, or deception, even when taking into account Pino's age and level of intelligence. See, Moran, 475 U.S. at 421. The testimony that Pino has a testable intelligence quotient equal to a second grader does not establish that Pino could not understand his actions in waiving his Miranda rights. See, e.g., People v. Cheatham, 453 Mich. 1, 36, 551 N.W.2d 355, 370 (1996)("Low mental ability in and of itself is insufficient to establish that a defendant did not understand his rights.").3 Also, his inability to read the Miranda form does not mean he was unable to understand his rights as they were being read to him. The level of understanding and comprehension with which Pino has interacted with the Department of Public Safety personnel involved in this case and the capabilities he has demonstrated to this court in previous hearings is evidence that Pino had the capability of understanding what he was doing when he waived his Miranda rights.
Pino claims that there is special scrutiny for the interrogation of a child. The protections afforded children in this jurisdiction are enumerated in the statute quoted above, A.S.C.A. § 45.0204. The statute requires the presence of a parent, guardian, or legal custodian when Miranda rights are explained and waived. The presence of a public defender or counsel will also fulfill the requirements of the statute. At the time Pino waived his rights, Pino's father was present, heard the officer recite each section of the Miranda form, and signed his name on *192the form, next to Pino's signature. The presence of Pino's father and his actions in regard to the Miranda waiver form show us that the requirements of A.S.C.A. § 45.0204 have been met.
The statement Pino made before being advised of his Miranda rights is not of consequence.4 It has no bearing on the validity of Pino's verbal statements and written confession made after administration of the Miranda warning.
Pino voluntarily, knowingly and intelligently waived his constitutional rights. In addition, the requirements of A.S.C.A. § 45.0204, which provide Miranda type protection for children, have been fulfilled. Therefore, the motion to suppress any and all statements made by Pino to employees of the Department of Public Services, is denied.
It is so Ordered.
A "child" is defined as "a person under 18 years of age or a mentally retarded or developmental^ disabled person regardless of age." A.S.C.A. § 45.0103(3).
United States v. Holloway, 962 F.2d 451, 461 (5th Cir. 1992)(holding that defendant's attempt to escape from officers was a sufficient additional factor to push the officers' reasonable suspicion over the threshold of probable cause); United States v. Silva, 957 F.2d 157, 160 (5th Cir. 1992)("Although defendant's flight from the officer is insufficient by itself to show probable cause, flight supplies another element to the reasonable suspicion calculus."). But see United States v. Duffy, 796 F. Supp. 1252 (D.Minn. 1992)(holding that when defendant chose to ignore officer's request to engage in conversation by running away, officers escalated a lawful attempt to conduct an interview into an unlawful arrest, and therefore evidence obtained in a search incident to the arrest must be suppressed). Although in the present case the officers also approached Pino with the intent to ask him questions, they, unlike the officer in Duffy, had additional information which supplied reasonable grounds for arrest or detention.
Cited in Defendant's Memorandum of Point and Authorities in Support of Motion to Suppress Statements. The full text of the case was submitted to the court on August 8, 1997 and is contained in the case file.
Pino was asked, "Do you know anything about the death of a Chinese woman from Aua?" He replied, "Yes." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486545/ | On May 10, 1997, police arrested juvenile defendant, Peniamina Kolose Pino ("Pino") for the crimes of Murder in the First Degree (A.S.C.A. § 46.3502) and Rape (A.S.C.A. § 46.3604). This court held a hearing regarding Pino's competency to stand trial and, on July 2,1997, issued an order denying the motion to prosecute defendant as a child. Pino then moved to suppress any and all statements made by him to the Department of Public Safety, claiming that he was seized illegally and that his statements were neither voluntarily nor knowingly and intelligently made as required by Miranda v. Arizona, 384 U.S. 436 (1966). We found that Pino's Miranda rights were not violated and thus, on October 13, 1997, denied his motion to suppress.
On November 28, 1997, Pino moved for reconsideration of our denial to suppress statements made by him to the Department of Public Safety. The defense claims that the burden of proof to show a valid waiver of his Miranda rights was improperly shifted from the prosecution to the defense. We have searched the record and find no support for this contention. The defense's assertion of "burden-shifting" is one of sheer invention.
Discussion
The prosecution showed by a preponderance of the evidence that Pino's waiver did not violate the requirements set forth by Miranda v. Arizona, Id. at 436, and adopted in this territory. See e.g. American Samoa Gov't v. Gatoloai, 23 A.S.R.2d 65, 69 (Trial Div. 1992). We find that Pino's waiver was "knowing and intelligent." Id. (Pino does not contest that his statement was "voluntary," the third prong of the Miranda test.)
Pursuant to a psychiatric examination, Dr. Malaefou Elisaia found "no significant impairment" of Pino's cognitive functions given his educational background. (See Psychiatric Evaluation of Dr. Malaefou Elisaia, M.D., dated June 25, 1997.) He deems Pino competent to stand trial and assist in his own defense. If he is capable of assisting counsel in his defense of murder in the first degree and rape, then it seems logical *197to conclude that he would have been capable of understanding the very elemental rights that Miranda affords, notwithstanding his academic stunting.
But even if he were not so capable, the Juvenile Justice Act of 1980 provides additional safeguards for juveniles. Under A.S.C.A § 45.0204, the "parent, guardian or legal custodian" must be advised of the child's Miranda rights in order for a waiver of those rights to be permissible. A.S.C.A § 45.0204. Because Pino's father was present during questioning and Officer Ta'ase Sagapolutele advised both Pino and his father of Miranda warnings, the requirements of § 45.0204 were met. Both Pino and his father signed the waiver form before Pino gave his statement. In contrast, we find Pino's argument and Dr. Lynn Albertson's findings, ostensibly upon which the defense relies, to be less than compelling. {See Psychological Evaluation of Dr. Lynn Albertson, Ph.D., undated but received by the Court June 26, 1997.) Dr. Albertson states that Pino functions at a second-grade level; Pino argues that because of this he was unable to form the understanding necessary to legally waive his rights. We disagree.
Functioning academically at a grade-school level does not necessarily preclude the comprehension of the basic rights Miranda affords. Apparently Pino, unlike other "second graders," is able to function adequately outside of a school setting and while left unattended, an ability that is evidenced by his repeated truancy. Moreover, we have had the benefit of listening to Pino, under oath, when he testified clearly and intelligibly in a civil proceeding, CA No. 66-97, which he and others brought against the Commissioner of Public Safety and Warden of the Territorial Correctional Facility. In that other matter, which is still pending, Pino was able to very competently assist his counsel in prosecuting his civil claim which has resulted in, among other things, institutional juvenile detention reform in the territory. The transcript of these proceedings has been made a part of this record. We believe, therefore, that Pino was and is capable of understanding his Miranda rights.
We find even less compelling Dr. Albertson's plea to provide Pino with "the academic and emotional support necessary to improve to the level that is possible for him to attain." The issue before Dr. Albertson was Pino's competency to stand trial for the murder and rape of Zhu Qunxin. The proximate issue before this court is whether or not Pino was capable of understanding the essence of his rights under Miranda when they were issued on May 9, not finding the means by which to secure the emotional and academic fulfillment of Pino's potential. The role of the court is determining culpability and issuing redress for these crimes, regardless of whether it will hinder or advance the defendant's academic *198standing. In light of all the evidence presented, we believe we properly denied Pino's motion to suppress and therefore deny defense's motion for reconsideration.1
It is so Ordered.
We would also like to note that Pino's notice of intent to use a defense based on mental condition, filed with the Clerk on October 8, 1997, is untimely. On July 15, 1997, we set the deadline for all pretrial motions for September 15,1997.
Rule 12(2)(b) of the High Court Rules of Criminal Procedure states:
If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice...
T.C.R.C.P. Rule 12(2)(b) (emphasis added). The notice is untimely, and Pino offers no cause for its late filing. This omission triggers T.C.R.C.P. Rule 12(2)(d) which allows the court to "exclude the testimony of any expert witness offered by the defendant on the issue of his mental state." T.C.R.C.P. Rule 12(2)(d). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486546/ | *200ORDER DENYING MOTION TO TRANSFER MATTER TO HIGH COURT
Introduction
On December 11, 1996, the American Samoa Government ("ASG") filed in the District Court of American Samoa a complaint against Defendant Lauenese "Taulaga" Fa'apito ("Fa'apito"), a 16 year old juvenile, charging Fa'apito with two counts of Assault in the Third Degree, a class A misdemeanor. On January 10, 1997, Fa'apito filed a motion to dismiss the complaint in the District Court, alleging that the District Court lacked jurisdiction over the matter. The District Court heard and denied the motion on January 16, 1997. After Fa'apito raised the issue of jurisdiction on two subsequent occasions, District Court Judge John L. Ward II encouraged Fa'apito to present a motion for transfer to the High Court. On April 1, 1997, Fa'apito filed a motion in the High Court to transfer his criminal prosecution to the High Court. On May 12, 1997, the Trial Division heard arguments on the issue of whether Fa'apito could be tried in the District Court, or whether the High Court had exclusive jurisdiction over the matter.
Discussion
Fa'apito is charged with two counts of Assault in the Third Degree, and therefore appears not to qualify for special proceedings as a "delinquent child" under the plain language of A.S.C.A. § 45.0103(9)(B)(I)1, a *201portion of the Juvenile Justice Act of 1980, A.S.C.A. § 45.0101, et. seq. ("JJA"). The ASG submits that a JJA petition for delinquency, with all its incidental procedural safeguards for minors, is not the appropriate way to deal with Fa'apito. Rather, the ASG contends, the ASG should be able to exercise its prosecutorial discretion to prosecute Fa'apito as an adult for a misdemeanor charge.
Apparently in contrast with the ASG's position, however, is A.S.C.A. § 45.0115(c)(2), which permits the Attorney General to proceed against Fa'apito as an "adult" for felony offenses. See American Samoa Government v. Julio, 9 A.S.R.2d. 128 (Trial Div. 1988). If A.S.C.A. § 45.0115(c)(2) allows the Attorney General such prosecutorial discretion only in cases involving a felony charge, then the JJA, as written, would fail to explain how to proceed against juveniles who are at least 14, but not yet 18 years of age and who have allegedly committed non-felonious crimes of violence. However, the JJA was designed to encompass any and all situations in which children break the law, and was not intended to permit certain juveniles to commit misdemeanor assaults without subjecting them to answer for their behavior through some form of adjudicatory proceeding; we must interpret certain JJA provisions in light of others to eliminate the apparent "gap" in coverage.
Thus, either (a) A.S.C.A. § 45.0103(9)(B)(I) implicitly only excludes from the definition of "delinquent children" those children older than 14 years of age who commit felony crimes of violence, or (b) A.S.C.A. § 45.0115(c)(2) does not prevent the Attorney General from charging certain children with misdemeanors as well as felonies, under certain circumstances, including when the child's conduct is a crime of violence. We hold that the latter is true, for the following reason:
While there are a number of other provisions in the JJA that talk about dealing with children as adults only in the context of felony charges,2 the JJA expressly contemplates prosecution of children for felonies and misdemeanors. A.S.C.A. § 45.0142(c)(1) requires the court to seal records of a child's case if "the subject of the hearing has not been convicted of a felony or of a misdemeanor . . . ,"3 Thus, if it is legal to *202proceed against children for misdemeanor charges, then when A.S.C.A. § 45.0115(c)(2) permits the Attorney General to charge certain children with felonies for, among other things, committing crimes of violence, the provision must not constrain the Attorney General from charging certain children with misdemeanors for committing crimes of violence.4
Since the Attorney General may try Fa'apito as an "adult," we hold that the High Court does not have jurisdiction over this criminal case. A.S.C.A. § 3.0208(a)(4) provides that the Trial Division of the High Court of American Samoa shall have original jurisdiction over all "juvenile cases." Though A.S.C.A. § 3.0208(a)(4) does not define the term "juvenile," we note that A.S.C.A. § 45.0115(c)(1) shows that a "child," a person under the age of 18, can be either a "juvenile" or "adult." That section states "... [when] the court finds it would be contrary to the best interests of the child or of the public to prosecute the child as a juvenile, it may enter an order certifying the child to be held for criminal proceedings as an adult." (emphasis added). Thus, whatever "juvenile" means in A.S.C.A. § 3.0208(a)(4), it can not mean a child who is prosecuted as an "adult."
In the instant case, Fa'apito is clearly a "child," but the Attorney General has decided to proceed against him as an "adult." Therefore, Fa'apito is not a "juvenile" and the High Court cannot assert jurisdiction over the matter under A.S.C.A. § 3.0208(a)(4). Furthermore, the High Court does not have jurisdiction over this case under A.S.C.A. § 45.0115(a)(1), which grants the trial division of the High Court exclusive jurisdiction over cases concerning "any delinquent child, as defined in subsections (2) and (9) of 45.0103," because, as we have stated earlier, Fa'apito is charged with a crime of violence and is excluded from the definition of "delinquent child" under A.S.C.A. § 45.0103(9)(B)(I).5
*203Therefore, because the High Court does not have jurisdiction over this criminal case involving an "adult" and a misdemeanor crime of violence, we must deny Fa'apito's motion to transfer this matter to the High Court.
Conclusion and Order
Accordingly, the motion to transfer the above-titled criminal case to the High Court is denied.
It is so Ordered.
A.S.C.A. § 45.0103(9) declares “delinquent children” to be children 10 years of age or older who has violated “ (I) any federal, state or territorial law; (II) any ordinance, the penalty for which may be a jail sentence; or (III) any lawful order of the court made under this title.” From this broad category, the statute excludes juvenile traffic offenders, A.S.C.A. § 45.0103(9)(C), and a narrow band of cases.
(B) This definition does not apply to:
(I) children 14 years of age or older who allegedly commit crimes of violence', or
(II) children who within the previous 2 years have been adjudicated a delinquent child, and the act for which the child was adjudicated a delinquent would have [been] a felony if committed by an adult or punishable by a maximum punishment of life imprisonment or death;
(III) children 14 years of age or older who allegedly commit any felony subsequent to any other felony which was the subject of a hearing in which the child was certified for criminal proceedings as an adult.
*201(emphasis added). Assault in the Third Degree is a crime of violence.
See A.S.C.A. § 45.0115(c)(1) (permitting the court to certify certain children to stand trial as adults for felony charges); A.S.C.A. § 45.0123 (granting the child, his parent, or his guardian the right to demand a trial by jury when the child is charged with a felony);
It appears that the plain language definition of “juvenile delinquent” in A.S.C.A. § 45.0103(9) tracks the protections afforded children under the provision for sealing court records in A.S.C.A. § 45.0142(c)(1). Any child who commits a misdemeanor or felony act of violence is not a *202juvenile delinquent, and any child who commits a misdemeanor or felony is not entitled to have the records of the court proceedings sealed.
At the same time, we must acknowledge and can not resolve the apparent conflict with language in A.S.C.A. § 45.0115(c)(1) that suggests that a child may be “a delinquent child ... by virtue of having committed an act which would constitute a felony if committed by an adult.” The JJA is a nightmare of draftsmanship, and it is incumbent on the Fono to clarify those circumstances under which children should face the adult criminal process, as well as those circumstances under which a child should face a petition for delinquency.
The JJA is a terribly drafted article, and it is incumbent on the Fono to clarify the circumstances under which children should face the adult criminal process.
We note that if Fa’apito had been charged with a felony, the High Court would have jurisdiction under A.S.C.A. § 3.0208(a)(2). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486547/ | *204PRELIMINARY INJUNCTION
Plaintiffs Stanley Gurr ("Stanley") and Peter Gurr ("Peter") applied for a preliminary injunction against defendants Bernard Gurr ("Bernard") and Tasi Suali'i ("Tasi") to enjoin certain activities on the land known as "Maloata" in American Samoa ("the land") during the pendency of this action. The court heard the application on May 1, 1997. The parties were personally present with their counsel.
Discussion
The land is registered with the Territorial Registrar of American Samoa as owned in "fee simple" by the "Heirs of Edwin William Gurr and Fanua Eleitano Gurr" ("heirs"). Stanley, Peter, and Bernard are among these heirs. Tasi is not a family member and has no title interest in the land.
The heirs who are actively concerned about activities on the land must, as matter of family policy, approve significant uses of the land. Bernard and Tasi have engaged, and continue to engage, in such uses without this approval.
Bernard removes sand and other material, which threatens erosion of the beach and Stanley's beach house. He also excavates a mountainside for a road to his plantation and cuts down rain forest. These removal and excavation activities were done without required government permits. More immediately important, they lastingly alter and diminish the resources of the land.
Bernard and Tasi are partners in cattle operations on the land. The cattle are kept within a fenced area encompassing a large portion of the land, but often roam freely beyond the fenced area and have damaged Stanley's farm and Peter's plants. The presence of cattle and their excretion outside the fenced area makes other areas within the land uncomfortable to use. Tasi also removes agricultural products and timber from the land.
Stanley, Peter, and other family members requested Bernard to terminate these activities, but Bernard has refused to do so. The situation between Stanley and Peter, on one hand, and Bernard, on the other, has escalated to open hostility and potential violence.
Clearly, these activities on the land by Bernard and Tasi have caused, and will continue to cause, great or irreparable injury to Stanley and Peter, while this action is pending, and demonstrate a substantial likelihood that Stanley and Peter will prevail at the trial on the merits.
*205Order
During the pendency of this action, or until Stanley, Peter and other heirs actively concerned about activities on the land approve the uses listed below, or until further order of this court:
1. Bernard, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from removing any sand or other natural materials from the beach or elsewhere, excavating for and constructing any road, and cutting or otherwise damaging any rain forest on the land;
2. Bernard and Tasi, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from engaging in any cattle operations on, and shall remove all cattle from, the land;
3. Tasi, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from removing agricultural products or timber from the land, using the land in any other manner, and entering the land.
Pursuant to T.C.R.C.P. Rule 65(a)(1), the evidence received during the hearing on this application for a preliminary injunction which is admissible at the trial on the merits shall be part of the record of the trial and need not be repeated at the trial.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486548/ | These six consolidated actions came regularly for trial on January 6, 1997, and concern the ownership of certain lands. Plaintiff/claimant Alai'asa Filifili Mailei for the Alai'asa family (collectively "Alai'asa") proceeded first and rested on January 10, 1997. AIT other parties then moved for involuntary dismissal of the Alai'asa claims. These parties, other than defendant/objector Tuia'ana Moi for the Tuia'ana family (collectively “the Tuia'ana”), objector/defendant Moea'i Uilata for the Moea'i family (collectively “the Moea'i"), and objector Seigafo E. Scanlan (for the Seigafo family) (collectively “the Seigafo”), also asked for assessment of *209attorney’s fees and costs against the Alai'asa or for sanctions of this nature under T.C.R.C.P. 11 against Alai'asa Filifíli or his counsel, or both. The Fanene also requested imposition of punitive damages against the Alai'asa.
The parties orally argued the motions on January 14, 1997. The court took the motions under advisement and established a schedule for filing further written arguments on the motions. The court has examined the evidence and weighed counsel’s oral and written arguments. We will, based on the findings of fact and for the reasons set forth below, grant the motions to dismiss relating to lands previously adjudicated by this court as owned by defendant/objector Fanene Aipopo Laulu for the Fanene Family (collectively "Fanene"), defendant/objector Fonoti Tafa'ifa (for the Fonoti family) (collectively “the Fonoti”), defendant/objector Tauiliili Pemerika (“Tauiliili”), objector Iseulaolemoana S. Sotoa, legal representative of the Estate of Salofi R. Satoa (“Satoa”),1 and the Tuia'ana.2 We will decline, in our discretion under T.C.R.C.P. 41(b), to render any judgment with respect to the Moea'i’s motion to dismiss until the close of all the evidence. We will also order the Alai'asa to pay reasonable attorney’s fees and costs to the successful movants, and issue an order to Alai'asa Filifili and his counsel to show cause why either or both of them should not be sanctioned for violations of T.C.R.C.P. 11 in prosecuting these actions. We will not impose punitive damages.
Findings of Fact
The land at issue ("parcel A") consists of approximately 176.85 acres and is located in part of the area known as Malaeimi on the Island of Tutuila, American Samoa. Parcel A is bounded on the north side in part by the main east-west public highway and in part by another parcel of land ("parcel B"), comprised of about 62.4 acres, lying between the main highway and parcel A. The boundaries on the remaining sides of parcel A are roughly defined by the neighboring villages of Nu'uuli to the east, Faleniu to the west and Tafuna to the south.3
*210On June 13, 1995, Alai'asa filed an action, LT No. 25-95, for an injunction preventing the Fanene, the Tuia'ana, the Moea'i,4 the Fonoti, and Tauiliili from interfering with his survey of parcel A. The court's order, entered on July 25,1995, upon these parties' stipulation, authorized Alai'asa to proceed with this survey without interference and to file a title registration claim.
The Alai'asa, Tuia'ana, Moea'i and Seigafo titles are matai of the Village of Faleniu. The Fanene title is a matai of the Village of Nu'uuli.
On October 27, 1995, Alai'asa filed the title registration claim with the Territorial Registrar. The Fanene, the Tuia'ana, the Moea'i, the Fonoti, Tauiliili, and Sotoa, objector Tuitoga Puailoa Fanene (a member of the Fanene but for the Puailoa family of Nuuuli), and objector Lauma Valoaga V. Moananu (for the Moea'i family) filed objections to Alai'asa's proposed title registration. The Territorial Registrar referred the matter to the Secretary of Samoan Affairs for dispute resolution proceedings, pursuant to A.S.C.A. § 43.0302. On July 17, 1996, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute, and the matter was submitted to the Land and Titles Division of the High Court for judicial determination.
The court consolidated six actions in due course. Originally, we included LT No. 26-96 in the consolidation, but later we dismissed this action and referred the matter to the Land Commission for completion of the administrative process applicable to the proposed registration of the lease of communal land involved in that action. On December 30, 1996, we delayed ruling on Alai'asa's motion to set aside the dismissal without prejudice in 1987 of LT No. 34-81, involving a portion of parcel A and the same or related parties, and to add this action to the consolidation, pending developments in the trial scheduled to begin only one week later.
The rulings on these motions to dismiss depend upon the legal impact of prior judicial decisions and title registrations. Hence, we will only briefly summarize Alai'asa's evidence during his case-in-chief on the substance of his title claim.
The Alai'asa presented testimony by several witnesses that the Alai'asa own parcel A as communal land as a result of original possession and *211cultivation long before 1900. Some of these witnesses appear to include parcel B as the Alai'asa’s communal land as well. However, the Alai'asa has not claimed parcel B by the pleadings and arguments. The Alai'asa also provided supporting documents evidencing a sale in 1888 by the Alai'asa of some nine acres of land in the Malaeimi area, but without clear proof of the exact location of this parcel and rejection in 1894 of the Fanene’s asserted ownership of these nine acres by the Land Commission and Supreme Court of Samoa in Western Samoa, which then had jurisdiction over controversies involving land in Tutuila.
We take judicial notice of the decisions of this court in the consolidated actions in Fanene v. Magalei, LT Nos. 64-77, 74-77, 54-77, 61-74, 60-77, 66-77, 73-77, 1090-90, 62-77, 63-77 and 72-76 (Land & Titles Div. 1980) ("the 1977 actions"), bearing directly upon the title to parcel B and various sub-parcels within parcel A. We also take judicial notice of the decision of this court in the earlier action, Tuutau v. Fanene, Case No. 1-1931 (1932) (“Case No. 1-1931”), dealing definitively with the title to parcel B. We will relate these parcels and sub-parcels to exhibit No. 12 or exhibit No. 14, or both, to particularize our findings for the parties and their counsel.5
This court decided in Case No. 1-1931 and reconfirmed in the 1977 actions that the Fanene own parcel B as communal land. Parcel B is shown on exhibit No. 12 as containing approximately 62 acres and on exhibit No. 14 as containing approximately 62.4 acres. Parcel B is registered with the Territorial Registrar as the Fanene’s communal land.
This court also adjudicated ownership of our designated sub-parcels of parcel A in the 1977 actions, as follows:
1. Sub-parcel A-l. The Fanene were awarded as communal land the area to the east of parcel B. This area is displayed on exhibit 14, marked parcel "1" and is about 85.402 acres. We cannot ascertain from the evidence whether the Fanene has registered sub-parcel A-l.
2. Sub-parcel A-2. The Fanene were awarded as communal land the area bordering the southwest side of parcel B. This area is depicted on exhibit No. 12 in light blue and on exhibit No. 14 as parcel "2" and encompasses about 4.418 acres.6 Leopole, a member of the Fanene, has the house on *212sub-parcel A-2 that is the subject of the Alai'asa encroachment claim in LT No. 12-90.
3. Sub-parcel A-3. The Fonoti were awarded as communal land the area immediately south of sub-parcel A-1.7 This area is shown on exhibit No. 12 below a solid blue line and is mostly shaded light blue.8 Sub-parcel A-3 is registered as the Fonoti’s communal land.
4. Sub-parcel A-4. Tauiliili owns as individually owned land the area contiguous to the southwest portion of sub-parcel A-3. This area is depicted on exhibit No. 12 in light green and contains approximately 24.4 acres. A portion of sub-parcel A-4 actually lies outside of parcel A. Sub-parcel A-4 is registered as Tauilili’s individually owned land.
5. Sub-parcel A-5. Sotoa was awarded as individually owned land the area immediately next to the northwest portion of sub-parcel A-4. This area is presented on exhibit No. 12 in light yellow and consists of approximately 21.15 acres. Most of sub-parcel A-5 is registered as Sotoa’s individually owned land.
6. Sub-parcel A-6. Uiva Te'o, who is not a party to the present actions, was awarded as individually owned land the area that borders portions of the west side of sub-parcel A-4 and south side of sub-parcel A-5. This area is shown on exhibit No. 12 in light blue. A small triangular shaped portion at the northeast comer of sub-parcel A-6, lodged between sub-parcel A-4 *213and sub-parcel A-5, is within parcel A. Sub-parcel A-6 is registered as Uiva Te'o’s individually owned land.
7. Sub-parcel A-7. TheTuia'ana were awarded as communal land the area directly adjacent to the northern boundaiy of sub-parcel A-5 and to the western boundaiy of sub-parcel A-2.9 This area is displayed on exhibit No. 12 unshaded. This area is also shown on exhibit No. 16. However, it is not yet clear how the survey in exhibit No. 16 comports with sub-parcel A-8, identified below. Sub-parcel A-7 is not registered.
Based on Case No. 1-1931 and the 1977 actions, this court has adjudicated title to all but one small area within parcel A. This area is an irregular crescent shaped area, which we designate as sub-parcel A-8, and is shown on exhibit No. 12, bounded on the northeasterly side by sub-parcel A-7, on the south side by sub-parcel A-5, and on the west side by the western boundary of parcel A, and is partly unshaded and partly shaded light blue. We are also unaware of any title registration of this area, though Kolone Moea'i Maui'a is indicated as the owner of the southern portion of light blue portion. The Alai'asa, the Tuia'ana, the Moea'i and the Seigafo, and perhaps others, may have outstanding competing claims to some or all parts of sub-parcel A-8.
The named parties to Case No. 1-1931 and the 1977 actions and notice given in the 1977 actions are important factual factors in deciding the motions to dismiss.
"Alaia of Faleniu," representing Alai'asa, was a party in Case No. 1-1931. He objected to the Fanene’s proposed title registration of parcel B on February 18, 1931, and withdrew his objection on August 24, 1932, before the trial. He was not present at the trial on September 7,1932.
"All of the Matai of Faleniu Village" were parties as a group to the 1977 actions. Alai'asa Filifili and his brother, who then held the Alai'asa title, were residing outside of American Samoa during the pendency of the 1977 *214actions. However, their sister Fanoia Alai'asa Pagofie, was residing in the Territory in 1977. She was then age 40 years, a school teacher, healthy and strong, and apparently the only adult member of the immediate family here.
Tuana'itau Tuia discussed the 1977 actions with Pagofie. He was then an experienced, and is still an active, legal practitioner in land and matai title judicial controversies. He testified at the present trial as a member of the Alai'asa. Pagofie contributed funds to the Faleniu matais cause in the 1977 actions and effectively joined this group party on Alai'asa's behalf.10 Tuana'itau took Pagofie to the courthouse to testify in the 1977 actions. However, upon arrival, she was told that Tuia'ana Moi was selected to testify on behalf of the Faleniu matai. She did not testify.
On May 5, 1976, before the Territorial Registrar, the Fanene offered to register the title to the land adjudicated in the 1977 actions.11 The Territorial Registrar publicly noticed the offer from May 6 to July 7, 1976, a period of 63 days. On July 8, 1976, the Registrar referred the offer to the Secretary of Samoan Affairs for dispute resolution proceedings under 11 A.S.C. 1002 (1973 ed.) (now A.S.C.A. § 43.0302). The list of objectors, including the Faleniu matai, comports with the eventual parties to the 1977 actions. The Secretary, after hearings, issued the jurisdictional certificate of irreconcilable dispute on September 15, 1977, and the matter was referred to this court for judicial determination.
On March 23, 1977, at a pre-trial conference, the parties attending agreed that the court would issue a public notice, distributed among various news media and American Samoa Government offices, of the consolidated cases and trial date on October 3, 1977, and of the parties’ need to register lands by certain dates. The notice was published in the Samoa News and Government News Bulletin at the very least.
Discussion
1. The Procedural Issue
*215Movants moved at the close of the Alai'asa’s case “for dismissal on the ground that upon the facts and the law [the Alai'asa have) shown no right to relief.” T.C.R.C.P. 41(b). Rule 41(b) mirrors former F.R.C.P. 41(b), now embodied in F.R.C.P. 52(c) and renamed a “Judgment on Partial Findings.”
The Alai'asa counter that the Federal Rules of Civil Procedure are inapplicable in proceedings before the court’s Land and Titles Division. A.S.C.A. § 3.0242(a). They urge that in the interests of justice, we should use our discretion, under A.S.C.A. § 3.0242(b), not to strictly employ T.C.R.C.P. 41(b), and require movants to introduce evidence in support of their respective land claims before deciding this case.12
The court has, as further directed by A.S.C.A. § 3.0242(a), prescribed special rules for land and titles matters. T.C.R.L.T. 1-8. The court has also emulated the Federal Rules of Civil Procedure, as contemplated by A.S.C.A. § 43.0201(a), to govern civil proceedings generally. There is no restriction by either statute or court rule on using the principles underlying the Federal Rules in land and titles matters. The clear intent of A.S.C.A. § 3.0242 read as a whole, along with A.S.C.A. § 43.0304 on interlocutory orders, is to allow the court flexibility to fashion practice and procedure in land or title cases as will facilitate proper adjudication of these matters, not to absolutely foreclose the use and guidance of the concepts of the Federal Rules.
The Land and Titles Division has previously adopted the principle underlying T.C.R.C.P. 41(b) and stated that “justice and convenience [are] disserved by requiring the many defendants in this case to present evidence and arguments in the slim hope that the plaintiff’s case would be struck by the evidentiary equivalent of lightning.” See Willis v. Fai'ivae, 10 A.S.R.2d 121, 140-142 (Land & Titles Div. 1986). We find no basis for disregarding this precedent. The Alai'asa have had a fair trial and opportunity to present their case. Thus, we will grant a movant’s motion to dismiss at the close of a claimant’s case if the claimant cannot establish in favor of his position even at this point in the trial a preponderance of the evidence. Id. at 141.
2. The Constitutional Protection of Land
*216Article I, section 3, of the Revised Constitution of American Samoa shields Samoans from “alienation of their land and destruction of the Samoan way of life and language.” This constitutional policy has unwaveringly endured the entire 97-year history of American Samoa and is a peerless cornerstone of public doctrine in the Territory. See Cession of Tutuila and Aunuu, April 17, 1900, Chiefs of Tutuila — United States, and Cession of Manu’a Islands, July 16, 1904, King and Chiefs of Manu'a-United States.
The Alai'asa seek to enlist this constitutional provision to support their land claims in this case, and argue that article I, section 3, commands the court to review land disputes with a biased eye in favor of communal land claims and against claims of individual ownership. They suggest that the constitutional provision mandates that the court presume all land to be communal land, and to “shift the burden” of persuasion to those with claims of individual ownership. The Alai'asa would have us award sub-parcel A-4 and sub-parcel A-5 to the Alai'asa, even though they are registered as the lands Tauiliili and Sotoa, because these sub-parcels were registered as “individually owned land.” In other words, the Alai'asa contend that the constitutional policy statement requires this court to invalidate any and every registration of individually owned land.13
While we concur that article I, section 3, is an important statement of policy, we find nothing in that constitutional provision which prohibits the alienation of communal land to other Samoans, nor limits the categories of Samoan land ownership. The concept of individually owned land was introduced by Samoans, see Fania v. Sipili, 14 A.S.R.2d 70, 71-72 (Land & Titles Div. 1990), condoned by the High Court, see Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40, 46 (App. Div. 1991), and continuously sanctioned by the Legislature of American Samoa via statute since at least 1949. See A.S.C. § 905 (1949 ed.); A.S.C. §§ 9.0103, 10.0112, 12.0201 (1961 ed.); 27 A.S.C. §§ 402, 1201 (1974 ed.); A.S.C.A. §§ 37.0101, 37.1502 (1981 ed.); A.S.C.A. §§ 37.0101, 37.1502 (1992 ed.)
Like all custom and cultures, Samoan custom and culture is fluid, alive, evolving, and adapting to changing conditions. Samoan society has accepted individually owned land as a legitimate form of ownership in the twentieth century. Therefore, we reject the proposition that individually owned land is inconsistent with article I, section 3, of the Revised Constitution, refuse to adopt in land disputes any requirement of “burden shifting” to the detriment of those with claims of individual *217ownership of Samoan land, and decline to contradict precedent and to effectively abolish individual ownership of land.
Instead, we turn to two other legal principles that are determinative in this case.
3. Res Judicata
The Alai'asa are attacking the validity of the 1977 actions, and perhaps Case No 1-1931. The gravamen of the movants’ motions for dismissal is the application of res judicata, the legal principle barring relief on previously adjudicated issues, when the finality of the judgment is the paramount interest. This court has adjudicated that the Fanene, the Fonoti, Tauiliili, Sotoa, or the Tuia'ana own almost all of the land now at issue in the 1977 actions and Case No. 1-1931.14 “The need for certainty with respect to land titles warrants a great deference to the need for finality of judgments.” Reid v. Puailoa, 23 A.S.R.2d 144, 146-47 (Land & Titles Div. 1993) (quoting Ritter v. Smith, 811 F.2d 1398, 1401-02 (11th Cir. 1987)).
A judgment in a prior case, between the same parties, or those in privity with them, and involving the same land title issue, is res judicata and therefore binds the parties and the court, notwithstanding the losing party’s contention that the judgment did not accord with Samoan custom. Aoelua v. Tela, 10 A.S.R.2d 20 (Land & Titles Div. 1989), aff’d 12 A.S.R.2d 40 (App. Div. 1989); Puailoa v. Estate of Lagafuaina, 12 A.S.R.2d 84, 85 (Land & Titles Div. 1986), aff’d 19 A.S.R.2d 40, 46 (App. Div. 1991).
Arguments that the prior decision was contrary to custom and violative of treaty either were or should have been presented to the court deciding that case, and it would be totally contrary to the principles of finality underlying the judicial process to relitigate a matter that has *218already been fully litigated. Tela v. Aoelua, 12 A.S.R.2d 40, 42 (App. Div. 1989)
The Alai'asa raise three points deserving comment. First, they assert that res judicata is a common law concept that is foreign and unsuitable to the Samoan legal system. Res judicata is a rule of substantive law and not of practice or procedure. Willis v, Willis, 4 A.S.R.2d 144, 145 (Land & Titles Div. 1987). The statute, A.S.C.A. § 3.0242(b), permitting the court to subordinate rules of practice or procedure to exigencies of justice and convenience cannot be used to set aside the postulate of res judicata and does not of itself empower the court to overturn a final judgment. The Alai'asa have failed to provide any convincing rationale for ignoring the interests of the finality of judgments in our system.
Second, the Alai'asa argue that they were not parties to the 1977 actions. They claim that only the family sa'o having pule or power over management of their communal lands can legally be a party to litigation, and that their sa'o, Alai'asa Filifili’s brother, was residing outside of American Samoa and was not, and could not be made, a party to the 1977 actions.
Contrary to the Alai'asa’s assertion, no statute or judicial decision requires that the sa’o personally appear and defend claims against the family’s communal land. Any family member can object to title registrations and defend the family’s interests in land. Tavaseu v. Paulo, 3 A.S.R.2d 97, 98 (App. Div. 1986). Here the Alai'asa’s interests were represented in the 1977 actions by the matai of Faleniu village and by his sister Fanoia Alai'asa Pagofie. Moreover, Fanoia was then advised by Tuana'itau Tuia, who was and is a member of the Alai'asa family and an able legal practitioner in land controversies. Therefore, the Alai'asa was a party to the 1977 actions, and Alai'asa Filifili, as the present sa'o, and all present family members are in privity with the Alai'asa as a party to the 1977 actions, for purposes the res judicata doctrine.15
Lastly, the Alai'asa contend that there was indeed fraud in the 1977 actions and therefore res judicata does not apply. The court has permitted attacks on judgments predicated on extrinsic mistake, surprise, excusable neglect, fraud, or similar circumstances, as well as facial nullity. See Willis, 4 A.S.R.2d at 145. The Alai'asa’s claim of fraud appears to be based on the facts that during the 1977 actions, Tuia'ana *219Moi represented the Faleniu matai, and that Fanoia Alai'asa Pagofie was told she would not need to testify. These facts, without more, do not prove fraud by a preponderance of the evidence.16
Thus, the Alai'asa’s arguments that somehow res judicata does not apply in the present actions are specious at best. The principle is applicable and protects the property interests in parcel B awarded the Fanene in Case No. 1-1931 and reconfirmed in the 1977 actions, and in sub-parcel A-l and sub-parcel A-2 awarded to the Fanene, in sub-parcel A-3 awarded to the Fonoti, in sub-parcel A-4 awarded to Tauiliili, in sub-parcel A-S awarded to Sotoa, and in sub-parcel A-6 awarded to Uiva Te’o in the 1977 actions. “There must be an end to litigation someday . . . .” Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40, 47 (App. Div. 1991) and Nouata v, Pasene, 1 A.S.R.2d 24, 35 (App. Div. 1980) (both quoting Ackerman v. United States, 340 U.S. 193, 198, 95 L. Ed. 207, 211 (1950)).
4. Waiver of Claims
The 1977 actions arose out of the Fanene’s offer on May 5, 1976, to register 265.9 acres of the land as the Fanene’s communal land. This acreage coincides approximately with parcel A and parcel B combined. The purpose of title registration, pursuant to A.S.C.A. §§ 37.0101-37.0111, is to record the ownership of surveyed land for the world to know. Registration has in rem effect, and any claimant who fails to object to the offer of registration by the end of the 60-day notice period prescribed by A.S.C.A. § 37.0103 loses his claim and is forever *220bound by the subsequent registration, in the absence of fraud or similar circumstances. Tufono v. Vaeao, 13 A.S.R.2d 47, 48 (Land & Titles Div. 1989); Pefu v. Sipili, 14 A.S.R.2d 70, 77 (Land & Titles Div. 1990).
Once again we take note that the Faleniu matai timely objected to the Fanene’s proposed title registration. However, assuming that the Alai'asa sa'o in 1976-1977 is not included in Faleniu matai’s number, the Alai'asa’s failure to object within the 60-day notice period resulted in the Alai'asa’s waiver and loss of any claim they had to the all portions of parcel A within the 265.9 acres. Tufono, 13 A.S.R.2d at 48. The Alai'asa sa'o’s absence from American Samoa at that time does not excuse the Alai'asa’s failure to object. Ifopo v. Siatu'u, 12 A.S.R.2d 24, 28 (App. Div. 1989); Meatua v, Taliu, 13 A.S.R.2d 13, 14-15 (Land & Titles Div. 1989); Vaimaona v. Tuitasi, 12 A.S.R.2d 68, 71 (Land & Titles Div. 1989). Thus, the Alai'asa are bound by the adjudications in the 1977 actions, whether or not they were parties to that action.17
5. Attorney’s Fees and Costs and Rule 11 Sanctions
The Aiai’asa have initiated litigation by these consolidated actions challenging the previously adjudicated ownership of large parcels of land. Most of the owners awarded these lands have also registered title to their lands. The Alai'asa’s causes of action were without merit ab initio. They have created clouds on the owners’ titles and disparaged the court’s decisions, at least for the duration of this litigation. Their actions have seriously disrupted the order intended under our land tenure system. They have wasted judicial resources. They have caused the landowners considerable and enduring emotional distress and expenditure of substantial and unnecessary time and money in defending their titles.
*221The undesirable effects of relitigating claims are unnecessary. They are readily avoidable if attorneys and their clients thoroughly research and clearly think through the issues. We need to send a message to attorneys and their clients that this kind of litigation is inappropriate and will bring serious consequences.
A party is entitled to recover reasonable attorney’s fees and actual costs from a claimant who unsuccessfully relitigates land titles. See Taulaga v. Patea, 4 A.S.R.2d 186, 187 (Land & Titles Div. 1987). Hence, we will direct the Alai'asa to pay reasonable attorney’s fees and costs to the Fanene, the Fonoti, Tauiliili, and Sotoa, and will assess the amounts upon verified application by these parties.
We will also address the motion for sanctions upon an attorney or a party for violations of the standards established by T.C.R.C.P. 11(b), which states, in relevant part:
(b) Representations to Court. By presenting to the court... a pleading, written motion, or other paper, an attorney ... is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, - -
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable inquiry;....
Rule 11(c) allows and provides procedures for imposition of the sanctions, including monetary sanctions. When sanctions are proposed on the court’s initiative, the attorney or party at risk must be given an opportunity to show cause why Rule 11(b) was not violated.
We believe that there is sufficient evidence of possible violations of Rule 11(b)(1), (2), or (3) to warrant an order to show cause against Alai'asa Filifili and his counsel. Even though it is the attorney whose signature violates Rule 11, it may be appropriate under the circumstances of the case to impose sanctions on a client. See Browning Debenture Holders Committee v. DASA Corp., 560 F.2d 1078 (2d Cir. 1977). After a hearing on this issue, we will decide what, if any, sanctions are appropriate. We give notice to Alai'asa Filifili and his counsel, however, that if we find that sanctions are in order, we will seriously consider' *222holding both of them jointly and severally liable for the amount of the attorney’s fees and costs set by the court as payable by the Alai'asa.18
Order
1. We reconfirm the Fanene’s title as communal land to parcel B, as awarded in Case No, 1-1931 and reconfirmed in the 1977 actions. We also reconfirm the Fanene’s title as communal land to sub-parcel A-l and sub-parcel A-2, the Fonoti’s title as communal land to sub-parcel A-3, Tauiliili’s title as individually owned land to sub-parcel A-4, Sotoa’s title as individually owned land to sub-parcel A-5, Uiva Te'o’s title as individually owned land to sub-parcel A-6, and the Tuia'ana’s title as communal land to sub-parcel A-7, as awarded in the 1977 actions.
2. We dismiss LT Nos. 76-90, 77-90, 78-90, and 14-96 with prejudice as these actions relate to parcel B, sub-parcel A-l, sub-parcel A-2, sub-parcel A-3, sub-parcel A-4, sub-parcel A-5, and sub-parcel A-7. These dismissals operate as an adjudication on the merits against the Alai'asa on their claim, if any, to register the title as communal land to parcel B, and on their claim to register the title as communal land to these sub-parcels within parcel A, and in favor of the Fanene, the Fonoti, Tauiliili, and Sotoa, and the Tuia'ana on their respective titles to these lands. Dismissal is unnecessary as to sub-parcel A-6, since Uiva Te'o is not a party to any of these actions.
3. The Territorial Registrar shall register sub-parcel A-l and sub-parcel A-2, shown respectively as “Parcel 1” and “Parcel 2” in the surveys on exhibit No. 14, in the Fanene’s name as communal land, in accordance with A.S.C.A. § 37.0104(b) and (c). For this purpose, the Fanene shall provide the Registrar with a copy of Survey Drawing No. 784-8-94 (exhibit No. 14), and shall ensure that the surveyor has placed boundary monuments on the land and has certified that the survey complies with all requirements provided by the laws and administrative rules of American Samoa. The Fanene shall pay all costs associated with the survey and registration.
*2234. We will not direct the Territorial Registrar to register sub-parcel A-7 in the Tuia'ana’s name as communal land at this time. The Tuia'ana shall, at their expense, file with the court a survey that depicts sub-parcel A-7, complies with all statutory and regulatory survey requirements, and clearly defines the boundaries of sub-parcel A-7 in relation to sub-parcel A-2, sub-parcel A-8 and any other adjacent parcels of land.
5. We dismiss LT No. 12-90 with prejudice, the action involving the Leopole’s alleged encroachment on sub-parcel A-2. This dismissal operates as an adjudication on the merits against the Alai'asa and in favor of the Fanene and Leopole.
6. We dismiss LT No. 25-96 with prejudice. This action is now moot.
7. We defer ruling on the motions to dismiss LT Nos. 76-90, 77-90, 78-90, and 14-96 insofar as these actions relate to sub-parcel A-8, until the close of all the evidence, and will then render a judgment on the issues presented. The trial on these actions with respect to any claims to sub-parcel A-8 by the Alai’asa, the Tuia'ana, the Moea'i, the Seigafo, or any other party will reconvene on September 8, 1997, at 9:00 a.m.
8. We further postpone the Alai'asa’s motion to set aside the dismissal without prejudice of LT No. 34-81, pending the close of all the evidence relating to sub-parcel A-8.
9. We award reasonable attorney’s fees and costs that the Aiai’asa must pay the Fanene, the Fonoti, Tauiliili, Sotoa, and the Tuia'ana. We will conduct a hearing on August 18, 1997, at 9:00 a.m., on the amount of these attorney’s fees and costs. We direct Alai'asa Filifili and the Alai'asa’s counsel, Tautai A.F. Faalevao, to appear at that hearing to show cause, if any they have, why either or both of them should not be sanctioned for violations of T.C.R.C.P. 11(b)(1), (2), or (3) in prosecuting these actions.
10. We deny the Fanene’s request for punitive damages against the Alai'asa.
It is so Ordered.
The caption in LT No. 14-96 originally named Salofi R. Sotoa, who is deceased, as a party. His estate, by Iseulaolemoana S. Sotoa as legal representative, actually filed the objection with the Territorial Registrar. Accordingly, on our own motion, we corrected the caption in LT No. 14-96 to reflect these facts.
We note for counsel’s benefit that based on out analysis of the motions to dismiss, in hindsight at least, these movants could have prevailed on motions for summary judgment. Although the motions for summary judgment would require elaborate documentary support in these actions, the motions would have avoided several days of trial.
The Malaeimi area also extends to the north from the main east-west public highway and is bounded there by the villages of Nu'uuli to the east, Faleniu to the west and Fagasa to the north. Malaeimi was once but is no *210longer legally recognized as a village. Matai of the four surrounding villages and Faleniu assert from time to time claims affecting Malaeimi, and the precise traditional boundaries of these villages and Malaeimi are still uncertain. See Puailoa v. Estate of Lagafuaina, 12 A.S.R.2d 54 (Land & Titles Div. 1989).
When LT No. 25-95 was filed, objector Moea'i Uliata was deceased. He was the head matai or sa'o of the Moea'i family when LT No. 77-90 was filed. The family has not selected the successor sa'o.
We are not definitively defining boundaries by metes and bounds, or by other means, through our references to exhibits Nos. 12 and 14. We immediately have before us neither issues over any existing boundary disputes among the parties nor adequate evidence to decide any such controversies.
The Alai'asa also claims this specific area as communal land in LT No. 78-90, as well as part of Parcel "A" as a whole in LT No. 14-96. This area *212contains 4.41 acres according to the survey filed in LT No. 78-90. See exhibit No. 4A.
We do not approximate the size of the Fonoti's award from the evidence before us. The Fonoti claimed approximately 34.04 acres in LT No. 61-77, 4.33 acres in LT No. 66-77, and 46.79 acres in LT No. 60-77, a total of 79.04 acres, but were awarded a slightly lesser amount when the court found that Fanene and the Fagaima family owned portions of the 34.04 acres.
The solid blue boundary line between sub-parcel A-l and sub-parcel A-3 was established by agreement between the Fanene and the Fonoti. See exhibit No. 13. Apparently, the Fonoti have registered only the shaded light blue area in sub-parcel A-3 with the Territorial Registrar. A small triangular area near the northwest comer of the Fonoti's registered land apparently conflicts with the agreement reached by the Fanene and the Fonoti. A larger area at the west end of the Fonoti's registered land overlaps with Sotoa's registered land (our designated sub-parcel A-5). Another larger area at the southwest end of the Fonoti's registered land overlaps with Tauiliili's registered land (our designated sub-parcel A-4). These mutually encroaching areas are depicted on exhibit No. 12. As previously indicated, however, we are not presently examining overlay issues.
The Alai'asa also separately claim as communal land in LT Nos. 76-90 and 77-90 two specific plots that coincide at least partially with this area. The first plot, containing about 4.16 acres per the survey filed in LT No. 76-90, lies across and appears to be entirely within the northern part of this area. See exhibits Nos. 3 and 3A. The second plot, containing about 2.98 acres per the survey filed in LT No. 77-90, lies across but appears to extend beyond the southern part of this area. See exhibits Nos. 5 and 5A. Part of this area lies between the first and second plots and appears to contain several more acres. The two plots and the part in between are included in Alai'asa's entire claim in LT No. 14-96, which we have designated as Parcel A.
Pagofie was a party in Tuia'ana v. Pagofie, LT No. 34-81, which this com! dismissed without prejudice in 1987, on its own motion, for lack of prosecution. LT No. 34-81 generally dealt with the land in sub-parcel A-6 and sub-parcel A-7, and dismissal of LT No. 34-81 could result in a favorable ruling for Tuia'ana in any subsequent title litigation. Hence, the Alai'asa moved to set aside this dismissal and consolidate LT No. 34-81 with the present actions. We deferred deciding this motion, on December 30,1996, a week before the trial, pending developments during the trial.
The offer was for 265.9 acres. Again, however, we are not presently dealing with precise acreage and are not making any attempt to equate the adjudicated acreage with the actual size of either this offer, parcel A, or parcel A and parcel B combined.
Section 3.0242(b) reads:
In any matter of practice or procedure not provided f or, or where the strict compliance with any rule of practice or procedure may be inequitable or inconvenient, the land and titles division may act in each case in such manner as it considers to be most consistent with natural justice and convenience.
While the Alai'asa stop short of making this sweeping statement, we believe that this is the logical implication of adopting the Alai'asa’s position in this case.
In spite of the fact that much of this land is already registered, the Territorial Registrar accepted the Alai'asa’s offer to registration. The Territorial Registrar should not process a proffered title registration if the title to the land is already registered. See the consolidated cases Uilata v. Puailoa, LT Nos. 8-87, 1-91, 39-93, 1-94, and 14-95, Order Remanding Matter to Land Commission and Denying Permission to File Survey with Registrar at 7 (Land & Titles Div. Oct. 17, 1996); A.S.C.A. § 37.0101(a). We cannot, however, fault the Registrar in this instance. Frankly, we probably misled the Registrar when we signed the stipulated order in LT No. 25-95, authorizing Alai'asa to proceed with his survey of parcel A and with filing his title registration claim.
Alai'asa Filifili and all present Alai'asa family members are clearly in privity with the Alai'asa who were parties to Case No. 1-1931. Apparently, the Alai'asa do not contend to the contrary, despite the lingering indications that they still claim to own parcel B.
Alternatively, the Alai'asa bring up the issue of relief under T.C.R.C.P. 60(b). Rule 60(b), however, provides for a method of direct attack on a judgment by motion in the same action, using essentially the same kinds of grounds available for collateral or direct attack in an independent action. The present actions are, of course, independent of the 1977 actions and are therefore inappropriately styled as a Rule 60(b) motion.
Nonetheless, considering the issue raised by a Rule 60(b) motion, for discussion purposes, the Alai'asa’s contention for relief still falls short. The only basis for relief under Rule 60(b) is the suggestion that somehow Tuia'ana Moi committed fraud while representing the Faleniu matai in the 1977 actions. Aside from the lack of any evidence of fraud, intrinsic or extrinsic, a Rule 60(b) motion on this ground must be made not more than one year after the judgment was entered. One year has long since past since the judgment was entered in the 1977 actions. The Alai'asa have not indicated the presence of any other Rule 60(b) grounds. See Reid v. Puailoa, 23 A.S.R.2d 101 and 23 A.S.R.2d 144 (Land & Titles Div. 1993) for a comprehensive discussion on the grounds for Rule 60(b) motions.
Because we are rejecting the Alai'asa’s claim to ownership of parcel A, two otherwise important issues are moot for purposes of this order but should be noted. First, the movants raised and the Alai'asa defended certain irregularities in the Alai'asa’s offer to register parcel A. We will, for future reference, only state, without detailing those deficiencies, that we are inclined to strictly view the prerequisite requirements for a proper proffer of title registrations, including the mandates on acceptable surveys, and would in any event expect substantial compliance with all requirements.
Second, the Alai'asa also claimed that their title to parcel A, and perhaps parcel B, could not be defeated by adverse possession, because adverse possession cannot be constitutionally applied to communal land and because of insufficient occupancy periods. We do not need to discuss either argument since they are premised on the Alai'asa’s rejected claim of ownership.
We cannot consider the imposition of the punitive damages the Fanene seeks against the Alai'asa. Punitive damages to punish and deter are generally appropriate when a person acts outrageously with evil motive or reckless indifference. Restatement (Second) of Torts § 908; but cf. Sialega v. Taito, 3 A.S.R.2d 78-80 (Land & Titles Div. 1986). However, we can neither decide whether punitive damages are applicable in the present situation nor characterize the Alai'asa’s conduct for that purpose, because the Fanene missed the essential step of pleading punitive damages. 3 B.E. Witkin, California Procedure 2400 (2d ed. 1971). We do not intend to set any precedent on punitive damages by this decision, other than this procedural ruling. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486550/ | *228ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs seek injunctive relief to enjoin the defendants from continuing the construction of a certain structure. Plaintiffs are members of the Pagofie and Ava families (the "family") attached to the village of Pava'ia'i; they claim that defendants' branch of the family stem from a customary adoption; and that, therefore, defendants as non-blood members have no rights to family land in Pava'ia'i known as Alefu. According to plaintiffs, defendants have unlawfully asserted pule over Alefu by causing a structure to be built thereon in the absence of senior matai.
Facts
The facts are that the family are presently without senior matai; both the Pagofie and Ava titles are vacant. The offending structure was built following the issuance of a building permit to defendant Folole Matagi ("Folole") for a 20’ x 20' structure to be built on Alefu. The permit application as presented to the authorities was signed by defendants Foma'i Paepule ("Paepule") and Trevor Tuiolosega ("Tuiolosega"), holding themselves out as lesser matai of the Ava/Pagofie families. However, neither title claimed by these defendants has been sanctioned by the family, nor registered in accordance with the requirements of A.S.C.A. § 1.0401-0414. Defendants Paepule and Tuiolosega are not matai of the family, they are pretenders;1 and the building permit obtained at their behest was therefore secured by ruse.
The structure in question, while in Folole's name, is being built for a relative of Folole's named Selema who is a stranger to the family. The latter is neither connected by blood nor adoption to the family.
*229Discussion
In these matters, we are guided by A.S.C.A. § 43.1401(j), which sets out the requirement of "sufficient grounds" for the issuance of a preliminary injunction; these are:
(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and
(2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.
Laying aside the issue of "blood" and "non-blood" family members, the defendants alone do not constitute the family. The building of the structure complained of is, in our view, tantamount to an unlawful assertion of pule by the defendants, as well as an unauthorized assignment of family land. There is no basis in either law or custom giving the defendants the right to unilaterally deal with the family's communal land to the exclusion of plaintiffs. Furthermore, the fact that the intended structure is for a non-family member, only aggravates the matter.
We conclude that while plaintiffs are likely to prevail at trial on the first criteria, we are not persuaded that plaintiffs have sufficiently shown irreparable injury if continuing construction is not enjoined at this stage of the proceedings. The structure is not a significant encumbrance, it is comparatively small and is built on stilts. It may therefore be relocated with ease, if need be, without any serious damage to the land. At the same time the structure is substantially complete structurally. Under these circumstances, the equities weigh against the exposure of a nearly complete structure to the ravages of the elements pending final disposition hereof.
On the other hand, we are satisfied that there is another sort of growing irreparable injury demonstrated on the evidence which, in the absence of senior matai, present a real and continuing threat to family peace and harmony. This threat to family unity stems from the defendants' demonstrated proclivity for unilateral assertion of control over family realty. See Ava v. Logoai, 22 A.S.R.2d 65 (Land & Titles Div. 1992) (Defendants' registration of family land as their "individually" owned land to the exclusion of the rest of the family was invalidated). Indeed, the defendants' concerted acts prompting this case is but another instance of such a family threat. Such actions should be enjoined in the interests of stemming the deterioration of continuing family peace and harmony.
*230Order
Under A.S.C.A. § 43.0304, the court is granted wide latitude in fashioning interim orders. On the foregoing, the following order will issue:
1. Application to enjoin continuing construction is denied.
2. Pending further order of court or sooner appointment of senior matai, the defendants, their attorneys, agents, employees, and all those in active concert with them are enjoined from taking any further action tantamount to the exercise of the pule reserved to the senior matai over land Alefu, unless such action is authorized by the family.
It is so Ordered.
Paepule singularly conferred himself a matai title, using the name of another tract of family land as his matai name, and then presented himself before the village council. On this basis, and quite apart from the unlawful nature of his claim, Paepule regards himself a lesser matai of the family.
Paepule similarly presented Tuiolosega to the village council, again bypassing the family, with a matai title attached to the village of Asau, Savai'i, Western Samoa. On this equally remarkable basis, Tuiolesega holds himself out as a lesser matai of the Ava/Pagofie families attached to the village of Pava'ia'i, Tutuila, American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486551/ | *231Plaintiff Ma'ave I'aulualo ("Ma'ave") and defendant Lili'i I'aulualo ("Lili'i") are members of the I'aulualo family of Afono village. Ma'ave seeks a preliminary injunction against Lili'i to enjoin the latter from encroaching upon a certain portion of family land known as "Togafa'itele," which Ma'ave claims was previously designated for his use and occupation by the late sa'o (senior matai) of the family I'aulualo Fatu.
Facts
The facts are that Ma'ave had a few years ago hired an earth moving machine to level a certain land area in order to provide himself a house site. In preparing the site, Ma'ave expended approximately $1,900 for the hire of the machine and village labor. His landscaping actions were taken in accordance with the late sao's exercise of pule1 designating Ma'ave the now disputed area. Furthermore, the clearing and leveling was also undertaken with the physical presence of Lili'i and his apparent support.
After the death of the sa'o, the I'aulualo title has been vacant since the death of I'aulualo Fatu, Lili'i developed second thoughts about Ma'ave's home site and began to go on the disputed site himself to clear overgrowth and plant coconut trees. When he was confronted by Ma'ave, Lili'i simply suggested to maintain the status quo until a new matai is appointed and qualified. Lili'i essentially asked the court for the same thing, that is, to maintain the status quo and to remand the matter back to the family for matai action in the future. We summarily declined Lili'i's request to effectively condone his interim self-help action. We took up Ma'ave's petition.
Lili'i's justification for going on the disputed area is that Ma'ave has not yet built his house and that he has left the land idle for too long. He additionally, asserts that it is he who is living in Afono (Ma'ave lives in the village of Vatia in the neighboring cove) and attending to family affairs.
Discussion and Conclusions
The preliminary injunction should be granted. Ma'ave has shown "sufficient grounds," pursuant to the requirements of A.S.C.A. § 43.1301(g) and (j), for interlocutory relief. First, we are satisfied that *232Ma'ave has shown greater likelihood at prevailing at trial than has Lili'i. The evidence reveals that Ma'ave's immediate rights to the disputed area are footed on matai pule, while Lili'i's claim appears to rest on the troublesome notion that he holds pule in the absence of a family sa'o, an alarming notion that can incite quarrels within the family. Indeed, Lili'i's attempts at interfering with Ma'ave's continued access to the disputed area can only be viewed as misguided efforts at usurping pule.
Second, we find, in terms of irreparable injury, the equities weighing in favor of Ma'ave. He not only has the clearly better right to immediate use and occupation of the disputed area, but he has also expended a great deal of money and effort in the land. He would certainly suffer cognizable immediate injury, if Lili'i is not enjoined from interfering with his access to the land, whereas Lili'i has absolutely nothing to lose if he is so restrained.
Order
IT IS THEREFORE ORDERED that Lili'i I'aulualo, his agents, employees, servants, attorneys, representatives, and all those in active concert and participation with them be and are hereby enjoined from in anyway interfering with Ma'ave I'aulualo's access to and use and occupation to that portion of I'aulualo family land, Togafa'itele, cleared and leveled by Ma'ave, pending final resolution of this matter.
"[P]ule is the authority vested in the matai to protect and conserve the family's assets. This authority includes the division, allocation, and reallocation of land to individual family members for their use." Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87 (1989). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486552/ | ORDER DENYING PETITION FOR INJUNCTIVE RELIEF
Introduction
Plaintiffs claim a certain 7.7-acre tract situated within a larger land area commonly known as "Tafeta." They seek to enjoin the defendants from any further encroachment onto this claimed area. Tafeta belongs to the people of Faleniu who cleared and took possession of the area in 1922. Magalei v. Togo, 3 A.S.R. 185 (Trial Div. 1955); Galoia v. Mamoe, 3 A.S.R. 245 (Trial Div. 1956); Lualemana v. Filo, LT No. 55-1961 (Trial Div. 1961), aff'd 3 A.S.R. 642 (App. Div. 1961); Magalei v. Lualemana, 4 A.S.R. 242 (Trial Div. 1961). The defendant Tuia'ana Moi ("Tuia'ana"), a Faleniu matai, claims the disputed area on behalf of the Magalei/Tuia'ana extended family of Faleniu. Fa'atalatala T. Maua, the second defendant, is joined in this matter because of a proposed extension to her daughter's home which is located on the disputed area. The proposed extension was the subject of a separation agreement executed by defendant Tuia'ana.
*234Plaintiffs' predecessor in interest, the late Robert S. Tago Seva'aetasi ("Tago"), first went upon the area in 1946 through the permission of the Chiefs of Faleniu. See Magalei v. Tago, supra; Magalei v. Atualevao, 19 A.S.R.2d 86 (Land & Titles Div. 1991). Subsequently, Tago tried, unsuccessfully, to assert his own independent claim to the area in derogation of his Faleniu grantors' rights. Id. See also Lualemana v. Tago, 3 A.S.R. 43 (Trial Div. 1952).
In Magalei v. Tago (the "1955 case"), the court rejected Tago's ownership claim based on an adverse possession theory. The court found that Tago's occupation was not "adverse" but "permissive." In Magalei v. Atualevao (the "1991 case"), the court also rejected Tago's claim grounded on a 1957 deed given him by two Faleniu matai. The court found "numerous flaws" in the deed itself, as well as total noncompliance with statutory law governing the alienation of communal land.1 While allowing that the flawed deed may have given Tago a license, the court stopped short of deciding which Faleniu family(s) owned the land that the 1957 deed purported to convey to Tago.
Today, Tago's children are attempting to resurrect their father's adverse possession claim, but with the added entreaty that it would be only fair for the court in 1997 to grant their adverse possession claim because in 1991 the court allowed the adverse possession claims of Aoloau villagers in the vicinity.
Discussion
We noted in our earlier order denying interlocutory relief that plaintiffs' cause faced immediate problems with the doctrines of res judicata and collateral estoppel. (See Order Denying Motion for Preliminary Injunction, entered April 27, 1995.) Plaintiffs, in apparent recognition of this predicament and the realization that their "fairness" plea would not stay the effects of the res judicata rule, contend that a new prescriptive period had begun to run after the 1957 deed. (See Plaintiffs' Closing Argument, at 6.)
We have two problems with plaintiffs' claim. First, the attempt to hatch a brand new adverse possession claim based on the 1957 deed would have been ripe for presentation to the court in the 1991 case. The judgment in the 1991 case, denying Tago's ownership claim, became conclusive not only as to that which was determined but also as to every other matter the parties might have raised and litigated. Manufacturers *235Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84 (Trial Div. 1988). There must be an end to litigation at some time.
Second, the 1957 deed is the antithesis of an adverse possession claim. The court in the 1955 case evicted Tago from Tafeta effective 1962; however, before the court's deadline, Tago again secured permission from Faleniu Chiefs to remain on Tafeta. Tuia'ana, a remarkably 92 years old, who would have been well toward adulthood when Faleniu first established Tafeta, testified that after the decision of the 1955 case was handed down, Tago went to Magalei, the father of the present titleholder, to let him remain on the land. Furthermore, the "flawed" deed itself evidences permissive, as opposed to adverse, possession. Tago did not therefore remain on Tafeta adversely, but permissively. As such, he was on the land merely as a licensee. See Magalei v. Tago, supra; Utu v. Fuata, 17 A.S.R.2d 104, 107 (Land & Titles Div. 1990). In these circumstances, any "activities on the land in pursuance of a license, no matter how extensive and no matter what the original state of the land, cannot give rise to a claim of ownership." Opapo v. Puailoa, 15 A.S.R.2d 48, 50 (Land & Titles Div. 1990), citing Tuileata v. Taliva'a, 3 A.S.R. 201 (Trial Div. 1956). See also Satele v. Uiagalelei, 6 A.S.R.2d 143, 145 (Land & Titles Div. 1987).2
Plaintiffs additionally argue that Tuia'ana has presented no credible evidence showing his extended family's entitlement to the disputed area such as would defeat any interests plaintiff may have been granted by the 1957 deed. We disagree. Tuia'ana testified that the disputed tract lay within a greater area of Tafeta that was given by the village council to the Magalei/Tuia'ana family when the village divided up Tafeta. There was no evidence to the contrary. Significantly, we note the conspicuous absence of other Faleniu families coming forward to controvert the Magalei/Tuia'ana family's claim to the disputed area. At the same time, we also note from previous cases involving this area, that the only Faleniu villagers who have unfailingly defended title to the area against the hostile claims of Tago and others, have been those of the Magalei/Tuia'ana family. This lends credence to Tuia'ana's claim of a village subdivision of the area in his family's favor. Finally, we note on the evidence that plaintiffs' occupation of the 7.7-acre tract itself is not exclusive; there are Tuia'ana family homes and graves within this area.
Conclusion & Order
With respect to the area of Tafeta claimed by plaintiffs, we conclude on the foregoing that the 7.7-acre tract is a part of the communal holding of *236the Magalei/Tuia'ana family of Faleniu in that greater land area known as "Tafeta." Conversely, we conclude that plaintiffs' interest in the disputed area is, at best, merely a license.
Plaintiffs' application for injunctive relief is, therefore, denied. Judgment will enter accordingly for the defendants.
It is so Ordered.
A.S.C.A. §§ 37.0203-0204, requiring Land Commission referral and gubernatorial approval; §§ 37.0101 et seq., proscribing the procedure for offering land for registration with the Territorial Registrar; and, §§ 37.0201 et seq., proscribing the procedure for conveying communal land.
The difference between the Aoloau villagers' claims, allowed by the court in 1991, and that of Tago's, is the difference between "adverse" and "permissive" use. Plaintiffs' call for fairness is, therefore, unfounded. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486553/ | *237The motion to dismiss came regularly before this court on May 21, 1997. All defendants join in the motion.
Alleged Facts
Plaintiffs suit is based upon an alienation of communal land of the family Fonoti, in the village of Tafirna. Plaintiff asserts that defendants Siolei Fonoti, Leloga Fonoti, Eseta Fonoti, Sila Poasa, Falesa Poasa, Asaua Fuimaono, Della Fuimaono, Mr. & Mrs. John Slade and Frank Gaisoa were granted deeds of individual title to Fonoti communal land from the present senior Matai of the Fonoti, Fonoti Tafa'ifa ("Tafa'ifa).
Plaintiff asserts that the defendants all filed their deeds with the Territorial Registrar. The deeds then came before the Land Commission for review. At the hearing for review plaintiff, and other family members, gave their objections to the alienation of the lands. On September 20, 1996 the Land Commission issued a recommendation to the governor to reject the attempts to alienate the Fonoti communal land. On November 8 and 10, 1996 the Governor approved the alienation of the parcels of Fonoti communal land, in spite of the Land Commission's recommendation.
Plaintiff first claims that she was not given adequate opportunity to be heard after the Land Commission hearing and before governor approval, and further complains that the Land Commission failed to provide her notice of the Land Commission's recommendation. Next, plaintiff claims that Tafa'ifa has breached her fiduciary duty as a Matai of the Fonoti family. Finally, plaintiff claims that the Governor's decision to approve the alienation of the parcels was, in essence, arbitrary and capricious.
Defendants move to dismiss the complaint for failure to state a claim upon which relief can be granted. T.C.R.C.P. 12(b)(6).
Discussion
A.S.C.A. § 37.0203 sets forth the required procedures for the alienation of communal land. The statute prohibits a Matai from alienating family lands without the written approval of the Governor. Before the Governor approves any document affecting title to land, it must be reviewed by the Land Commission. A.S.C.A. § 37.0203(a). Plaintiff does not contend that any of these procedural requirements were not met. Rather, plaintiff believes that there should have been additional requirements pursuant to A.S.C.A. 4.1000 et seq.
A.S.C.A. § 4.1025 requires that all parties in a contested case are entitled to be heard, in this instance, by the Land Commission. See also, *238Moetoto v. Tauleva, 28 A.S.R.2d 144 (1995). Here plaintiff admits to participating in the hearing before the Land Commission. Thus A.S.C.A. § 4.1025's requirement is obviously met.
A.S.C.A. § 4.1031 requires that all parties effected shall be notified of any decision and order, either personally or by mail. Although the Governor apparently issued his decisions on November 8 and 10, 1996, plaintiff claims that the Governor failed to provide the plaintiff with notice of these decisions, thus preventing the plaintiff from timely filing his petition for review. See A.S.C.A. § 4.1041. Although we will not discuss the merits of this claim, we believe that it does state a claim upon which relief can be granted.
Plaintiff also claims that Tafa'ifa has breached her fiduciary duty as a Matai of the Fonoti family. Defendants argue that since Tafa’ifa followed the statutory requisites for transferring communal land, she cannot be sued for breach of any fiduciary duty. Although we agree that plaintiff fails to assert that Tafa'ifa violated the statute, we cannot say that relief cannot be granted on a separate breach of fiduciary duty claim. We believe that plaintiffs second cause of action, may be a claim upon which relief can be granted.
Finally, plaintiff claims that the Governor's decision was, in essence, arbitrary and capricious. Defendant's argue that there can be no judicial review of the Governor's decision to alienate land. This argument is specious at best. A.S.C.A. § 4.1040 specifically grants a person a right to judicial review of a final decision.1 Although A.S.C.A. § 4.1041 requires that a petition for review be filed within 30 days after the final administrative decision, whether this requirement was met will depend on the outcome of the plaintiffs first cause of action. For now it is sufficient to recognize that the plaintiffs third cause of action states a claim upon which relief can be granted.
Conclusion
For the reasons stated above, defendants' motion to dismiss is DENIED.
For purposes of this statute the Governor qualifies as an "agency." See Moetoto v. Tauileva, 28 A.S.R.2d 144, footnote 1 (Land & Titles Div. 1995). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486554/ | *2ORDER DENYING MOTION FOR RECONSIDERATION
Intervenor/Real Party In Interest Mobil Oil Australia, Ltd. (“Mobil”) moves for reconsideration of the court’s Order Staying Contract Implementation and Judicial Proceedings issued on November 18, 1997. This matter came regularly for hearing on January 8, 1998.
Mobil’s position, which is supported by appellees American Samoa Government Office of Procurement (“ASGOP”) and Governor Tauese Sunia, is that the court erred in staying the proposed ASG-Mobil contract to operate the Territory’s petroleum storage depot (“tank farm”), because the court failed to hold an evidentiary hearing before issuing a “preliminary injunction.” We disagree.
This Court issued a stay, not a preliminary injunction. . A preliminary injunction may be issued only after “there has been a hearing in which sufficient grounds for the issuance of a preliminary injunction has been established by a preponderance of the evidence.” A.S.C.A. § 43.1303(a)(1). A stay of an administrative decision, on the other hand, may be issued by the court “on appropriate terms.” A.S.C.A. § 4.1041(b). An evidentiary hearing for such a stay is not mandated by statute nor is it contemplated in the applicable court rules. See A.C.R. 18.
We issued a stay only after considering the effects of preserving the status quo upon the parties and the public at large. We also considered the likelihood of petitioner’s success upon judicial review and the apparent impracticality of appellant BHP applying for a stay from ASGOP. Although not articulated in our order, we determined that no change in the tank farm operator status should be allowed until further order of the court only after carefully weighing these factors and finding cause to issue the stay.
The instant case involves a contested case, a quasi-judicial proceeding where a panel appointed by the governor reviews the decision of an administrative agency. Judicial review of these administrative proceedings is not governed by the standards of law, procedural rules, and evidentiary rules reserved for appellate review of judicial decisions. It is governed instead by the statutorily established criteria of fair play set forth under the Administrative Procedures Act, A.S.C.A. §4.1044.
We are presented with no compelling arguments to dissolve the stay or to hold any further hearings upon cause for its issuance. The stay stays. The motion for reconsideration is denied.
*3The parties have expressed concern with the pending administrative appeals process and its attendant delays. Our decision today does not foreclose any future reconsideration of our stay of judicial proceedings. Should any party believe that any issue joined in this matter is ripe for judicial review, it may file the appropriate motion.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486556/ | ORDER REVERSING AND REMANDING AWARD OF PROCUREMENT CONTRACT REQUEST FOR PROPOSALS 001-97
*12Petitioner BHP Petroleum South Pacific, Inc. (“BHP”) brought this action for judicial review of the administrative decision by respondents American Samoa Government (“ASG”), Office of Procurement, a duly organized agency of ASG (“ASGOP”), and Tauese P.F. Sunia, Governor of American Samoa (“the Governor”) to award the contract under the Request for Proposals 001-97 (“RFP 001-97”), Qualified Companies to Operate Fuel Storage Facilities (“the contract”) to intervenor/real party in interest Mobil Oil Australia, Ltd. (“Mobil”). BHP seeks a permanent injunction preventing ASG from entering the contract with Mobil and requiring ASG to enter the contract with BHP.
Background
ASG issued RFP 001-97 on January 21, 1997. ASG sought to contract a terminal operator for ASG’s petroleum products storage facilities and fuel dock, and for a principal supplier of petroleum products. The contract was for the period January 1, 1998 through December 31, 1999, with an option to renew for one year. BHP, Mobil, and two other companies, Shell Fiji (“Shell”) and Global Pacific Energy (“Global”) submitted proposals.
The Governor (acting as chief procurement officer) appointed a source evaluation board (“SEB”) to evaluate the proposals. The SEB did not reach a consensus on recommending a single prospect, so it recommended both BHP and Mobil to the Governor (acting as chief procurement officer). The SEB requested that “the Governor of the Territory of American Samoa determine to whom to award the contract between these two final contenders based on the findings herein.”
On June 16, 1997, the Governor (acting both as chief procurement officer and as the governor), issued General Memorandum 78-1997, which announced the award of the contract to Mobil. BHP, Global and Shell subsequently submitted then notices of dispute to the Governor (acting as chief procurement officer). A.S.A.C. § 10.0282(b) establishes the procedures to follow in such a dispute:
(b) Requirements. All such disputes shall be submitted in writing to the procurement officer making the decision. The procurement officer shall acknowledge receipt of the dispute within 5 working days of receipt and shall render a final decision within 30 working days after receipt of the dispute.
On August 7 and 8, 1997, the Governor (acting as chief procurement officer) issued his final decision in response to Global’s and BHP’s notices of dispute. BHP then filed an appeal with the Governor (acting as governor) on either August 22 or 26, 1997 and Global did so on September 22, 1997. A.S.A.C. § 10.0282(c) establishes the procedures to be used in *13such an appeal:
(c) Appeals. Appeals of a procurement officer’s final decision in a dispute may be made within -60 days of the date of the decision, provided such appeal is submitted in writing to the Governor. The Governor shall appoint a board of at léast three responsible persons knowledgeable of procurement to review such appeals and recommend appropriate action to the Governor. None of the board members shall have participated in the action under appeal. At least one of the board members shall be a qualified attorney. Hearing procedures and documentation shall be set forth in the Administrative Procedures Act, 4.1025 A.S.C.A. etseq., and the rules.
On October 14, 1997, stating that it was doing so because the Governor (acting as governor) had not yet appointed an appeal board as required by' A.S.A.C. § 10.0282(c), BHP petitioned this court for judicial review, and for a temporary restraining order, and preliminary and permanent injunctions preventing ASG from entering the contract with Mobil and requiring ASG to enter the contract with BHP. ASG, ASGOP and the Governor responded to this petition on November 7, 1997, and a show cause hearing was held on November 12, 1997. On November 18, 1997, the court stayed both implementation of the contract and further judicial proceedings.' Mobil moved to reconsider this order, and the motion was denied.
On November 6,' 1997, subsequent to 'BHP’s petition to the court, the Governor (acting as governor) appointed an appeal board. The appeal board held hearings on November 20 and 21,1997. BHP, ASG, Mobil and Shell were present at these hearings and presented testimony and evidence. Global was not present. The appeal board issued its Findings of Fact, Conclusions of Law, and Recommendations on February 20, 1998. The board determined that the Governor had authority to act as chief procurement officer, that there was sufficient notice to prospective offerors that a competitive negotiation process would be followed, and that BHP had failed to meet its burden in showing that Mobil’s bid was not responsive. The board also concluded that there had been flaws in the procurement process, and recommended remand of the procurement to the Governor (acting as chief procurement officer) and the SEB to correct these deficiencies.
The appeal board forwarded its recommendation to the Governor (acting as governor), who objected to the findings but agreed that it would be in the best interest of all the parties to concur with the panel’s recommendation. The Governor (acting as governor) then remanded the matter to the Governor (acting as chief procurement officer) and the SEB.
*14The Governor (acting as chief procurement officer) reconfigured the SEB by making a new appointment to the board. The SEB reviewed the original proposals, conducted discussions with the three offerors, and solicited best and final offers. The SEB then reviewed the best and final offers and forwarded its findings and recommendations to the Governor (acting as chief procurement officer) on March 30, 1998. The SEB ranked Mobil first, Shell second, and BHP third. The Governor (acting as chief procurement officer) adopted this recommendation and reissued a Notice of Award on April 24, 1998 advising of his decision to award the contract to Mobil.
BHP filed a notice of dispute with the chief procurement officer on May 4, 1998. The Governor (acting as chief procurement officer) reissued his notice of final decision, upholding his award to Mobil. BHP then, pursuant to A.S.A.C. § 10.282(c), filed a timely appeal with the Governor (acting as governor), requesting that he appoint an appeal board to review the renewed final decision of the Governor (acting as chief procurement officer).
On March 9, 1998, after the original appeal board issued its Findings of Fact, Conclusions of Law, and Recommendations but before the Governor (acting as governor) took any action on the recommendations, BHP filed the motion to enter “permanent orders” that is currently before this court. We held a hearing on this motion on April 14, 1998. On April 22, 1998, a minute order was issued to require ASG to file a complete record of the procurement appeal process by May 11, 1998. On April 29, 1998, ASG issued a notice that it had completed the administrative proceedings. ASG transmitted the administrative record of the procurement appeal process to the court on May 11,1998, and supplements to the administrative record on June 19 and 23, 1998. We held a further hearing on the motion to enter “permanent orders” on June 24,1998.
Standard of Review
The court’s authority to review administrative decisions in the procurement process is found in A.S.C.A. §§ 3.0208(c), 4.1040-, 1044 and A.S.C.A. § 10.0282. We do not substitute our judgment for that of the agency on questions of fact, but it is our place to determine questions of law. A.S.C.A. § 4.1043(b). Our review is confined to the record.. A.S.C.A. § 4.1043. Under A.S.C.A. § 4.1044, we may:
. . . reverse or modify the decision of the agency, or remand the case for further proceedings, if substantial rights of the petitioner have been prejudiced because the decision of the agency is: (1) in violation of applicable constitutional or statutory provisions;
*15(2) in excess of the statutory authority of the agency;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record;
(6) arbitrary, capricious or characterized by abuse of discretion.
Discussion
BHP posits that it was the lowest reasonable, responsive, responsible bidder meeting the requirements of the invitation for bids, that Mobil’s proposal failed to meet a number of the bid specifications, and that the procurement process was replete with errors. Most importantly, BHP argues that the Governor may not act as chief procurement officer. This issue is a question of law, and thus is subject to our review. It is also preliminary to the other issues raised by BHP. The appeal board found that the Governor has the authority to act as chief procurement officer. We disagree. We find that under the facts of the procurement process for RFP 001-97, the Governor violated both constitutional and statutory provisions by acting as chief procurement officer. We therefore do not need to consider the remainder of BHP’s claims.
American Samoa has a tripartite system of government. Reflecting the structure of the federal government established in the United States Constitution, the Revised Constitution of American Samoa clearly establishes three separate branches of government. The Legislature is established under article II, the Judicial Branch under article IE, and the Executive Branch under article IV. “The Constitution, in distributing the powers of government, creates three distinct and separate departments — the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of government mechanism. Its object is basic and vital, namely, to preclude a commingling of these essentially different powers of government in the same hands.” O’Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743, 77 L.Ed 1356, _ (1933), citation omitted. See also Loving v. United States, 517 U.S. 748, 756, 116 S.Ct. 1737, 1743, 135 L.Ed.2d 36, _ (1996).
The executive branch, as defined by the Revised Constitution of American Samoa, art. IV, includes the offices of governor, lieutenant governor, and secretary of Samoan Affairs. Some of the powers of the governor are conferred in article IV; the source of other powers are found in various sections of the statutory code. When taking office, the governor swears to “well and faithfully uphold the laws of the United States applicable to American Samoa, and the Constitution and laws of American Samoa.” Rev. Const. Am. Samoa art. V, § 6. The governor is charged with being “responsible for the faithful execution of the law,” and has the *16powers, duties and responsibilities as delegated to him by the American Samoa Code. A.S.C.A. § 4.0111.
The laws for which the governor is responsible for “faithful execution of’ are established by a separate branch of the government, the legislative branch. Article II of the Revised Constitution of American Samoa establishes the Senate and the House of Representatives as comprising the legislative branch and confers authority to this branch to establish laws of local application.
The system of appointment of certain officers of ASG highlights the importance of the separation of the branches of government, and the checks and balances that this separation should provide. Under this system, the office and the credentials required by the office axe created by the Legislature. The Legislature grants to the executive the power to appoint' the officer, but conditions this power upon confirmation of the appointment by the Legislature. Under A.S.C.A. § 12.0205, for example, the Legislature created the office of procurement and the position of chief procurement officer. The Legislature enumerated the method of appointment for this office in A.S.C.A. § 12.0206. “The Governor shall appoint and the Legislature shall confirm, a chief procurement officer.” Id. The Legislature also requires the chief procurement officer to have a certain number of years of experience in public procurement and demonstrated executive and organizational ability. Id.
By appointing himself as chief procurement officer, the Governor has violated both the statutes and the Revised Constitution of American Samoa. “The power to make appointments to public office does not necessarily and inherently belong to the governor. It must be derived from the constitution or statutes; otherwise, he may not possess it. More specifically, appointing power exists only in so far as it has been expressly conferred by the constitution and laws of the state.” 38 AM. JUR. 2D, Governor § 5 (1968 & 1993 Supp.); Leek v. Theis, 539 P.2d 304, 314-21 (Kan. 1975); Buchholtz v. Hill, 13 A.2d 348, 351-52 (Md. 1940).
Article IV, section 7 of the Revised Constitution of American Samoa states that “[t]he Governor shall have general supervision and control of all executive departments, agencies and instrumentalities of the Government of American Samoa.” This is a general supervisory power and gives the governor no power of appointment. Article IV, section 11 is the provision that gives the governor the power to appoint officials. Article IV, section 11 also indicates specific limitations of that power. The governor may freely appoint only those officials who are not elected, are not appointed by the Secretary of the Interior, or whose appointments are not otherwise provided for. The chief procurement officer is clearly an official whose appointment is “otherwise provided for.” The Governor must therefore *17follow the requirements established by the Legislature when appointing the chief procurement officer. A.S.C.A. § 4.0112 also discusses the governor’s appointment power. Markedly, it emphasizes that for particular positions, the governor’s power of appointment is subject to the confirmation of the Legislature.
The Governor cannot expand his specifically limited power of appointment to a degree where he can appoint himself as chief procurement officer. By statute, the Governor only has the power to make procurements himself in an emergency, “when there exists a threat to public health, welfare, or safety under emergency conditions as defined under 26.0105(d) ASCA.” A.S.C.A. §, 12.0213. Even in an emergency situation, the procurement must be as competitive as possible, and must be accompanied by a written determination of the basis for the emergency. Id.
Although we indicated in Haleck’s West, Inc. v. Coleman, AP No. 29-84, slip op. at 3 (Appellate Div. 1984), that the governor may in certain circumstances be empowered to award a contract, we did not indicate that the governor could appoint himself as chief procurement officer or that he could assume the duties of the chief procurement officer. In Haleck’s West, the governor had submitted an appointment of chief procurement officer to the Legislature, but the Legislature had not yet confirmed that appointment. In the present case, on the other hand, the Governor has submitted no name to the Legislature for confirmation. The Governor states that he has appointed himself as chief procurement officer.
Even if the Governor could appoint himself as chief procurement officer, he would need to do so within the limits specifically established by the Legislature. The Governor would need to show that he meets the qualifications required of the chief procurement officer. A.S.C.A. § 12.0206. And the Governor would need to submit his appointment of himself for confirmation by the Legislature. Id. The Governor has not done this.
The Governor thus may not unilaterally expand the power of appointment granted to him by these constitutional and statutory provisions. The Governor also is not at liberty to ignore or suspend the operation of these statutes. Rev. Const. Am. Samoa art. IV, § 12; see also, e.g. Olegario v. United States, 629 F.2d 204, 224 (2nd Cir. 1980) (“The Constitution’s grant of executive authority does not include the right to nullify legislative acts or ignore statutory directives.”); Zieske v. Butz, 412 F. Supp. 1403, 1406 (D. Alaska 1976) (holding that where Congress has established specific statutory directives, neither the judiciary nor the executive is at liberty to ignore them, even if the directives include words signifying some amount of discretion).
*18The,Governor,presents his general constitutional supervisory power set forth in article IV, section 7 of the Revised Constitution of American Samoa as justification for assuming the role of chief procurement officer. This supervisory power, however, does not allow the Governor to ignore operation of the statutes. The Governor must exercise his constitutional powers within the laws established by the Legislature, not in an attempt to avoid them. Cf. Vaela'a v. Sunia, 1 A.S.R.3d 88, 93-95 (Trial Div. 1997) (holding that the Governor, even if he were properly applying his constitutional pardon power to undocumented aliens, would still be bounded by the immigration laws and administrative rales.)
When the Legislature enacted the. American Samoa Procurement Act of 1983, A.S.C.A. § 12.0201-.0219, it carefully proscribed a system of government purchasing which would ensure predictability and fairness to all participants. By acting as chief procurement officer, the Governor1 disturbs the integrity of this system In the current case, for example, the Governor (acting as chief procurement officer) did not appoint an administrative appeal board until after BHP filed its first petition in this case with the court. Similarly, the Governor (acting as governor) did not take action on the appeal board’s February 20, 1998 Findings of Fact, Conclusions of Law and Recommendations until after BHP filed the current motion for “permanent orders’1. The sequence of these events appears to be a result not of coincidence, but of one person performing .two different legislated fimetions.
Similarly, by acting as chief procurement officer, the Governor disturbs the dispute process legislated within the procurement act. Under the Governor’s system, offerors or other participants disputing a procurement decision are faced with making an appeal first to the Governor acting as chief procurement officer, and then to the Governor acting as governor. The administrative rules clearly envisioned the procurement appeal process to include two different individuals carrying out the responsibilities of two separate offices.1 The rales did not envision the procurement appeal process to include one individual commingling the powers, of two separate offices.
We find, therefore, that the actions of the Governor in appointing himself as and acting as chief procurement officer in the procurement process for RFP 001-97, has exceeded the scope of his constitutional and legislatively granted powers, and has violated the Revised Constitution of American *19Samoa and the procurement provisions of the American Samoa Code Annotated and the American Sámoa Administrative Code. It follows that substantial rights of BHP have been prejudiced. Under A.S.C.A. § 4.1043(b), then, we reverse the decision of the Governor to award the contract under RFP 001-97 to Mobil.
In its motion for “permanent orders”, BHP not only seeks to permanently preclude ASG from entering the contract under RFP 001-97 with Mobil, but also seeks to have the court award the contract to BHP. We find that due to the constitutional and statutory errors in the procurement process for this contract, awarding the contract to BHP is not an appropriate remedy. Instead, if the ASG, ASGOP and the Governor intend at this time to procure a terminal operator for ASG’s petroleum products storage facilities and fuel dock and a principal supplier of petroleum products, they must do so by lawfully following the constitutional, statutorily, and administratively-proscribed procurement procedures.
Order
The Governor’s award of the contract under RFP 001-97, Qualified Companies to Operate Fuel Storage Facilities, to Mobil is reversed. In order for ASG and ASGOP to lawfully engage in future procurements,, the Governor must appoint an individual other than himself as chief procurement officer and submit his or her name to the Legislature for confirmation.
BHP’s petition for the court to grant award of the contract under RFP 001-97, Qualified Companies to Operate Fuel Storage Facilities, to BHP is denied.
We remand the procurement of the terminal operator for ASG’s petroleum products storage facilities and fuel dock, and for a principal supplier of petroleum products to ASG, ASGOP, and the Governor to initiate new procurement proceedings conducted in compliance with the constitutional, statutory and administrative procurement requirements. ■ .. .
It is so ordered.
An administrative rale, adopted under the Administrative Procedures Act, A.S.C.A. §§ 4.1001-.1044, has the full force and effect of law. A.S.C.A. § 4.1009(c). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486558/ | *28CONCURRING OPINION
WARD, Acting Associate Justice.
Although I concur in the result of the majority’s opinion, I do not agree that this case presents a valid claim of race-based discrimination under the land alienation-statutes. The jurisdiction of the trial court in this case was based on the areas of corporate, trust, and mortgage law. It is under this narrowly defined jurisdiction and these specific areas of law that I concur that the transactions at issue in this case were of no legal effect.
I
Although the facts in this matter are' not in dispute, neither are they in abundance. Appellant Craddick Development, Inc. is an American Samoan domestic corporation duly organized and licensed under the laws of this Territory.' It later became sole beneficial owner of one of the 1985 land trusts and co-beneficial owner with the Anderson Employee Pension Fund of the second 1985 land trust. A motley assortment of earlier “Deeds of Trust” and coincidental land transfers were combined and rolled over into the two respective land trusts established in 1985. Both trusts involved individually owned lands.
Douglas Craddick is dead and his appellant estate has no discemable direct, present interest in either of these two 1985 land trusts. The legal : status of appellant Anderson Employee’s Pension Fund, Robert Kerley, Trastee, Honolulu, Hawaii, is nowhere evident in the record. As a legal entity ostensibly engaging in business for profit within the Territory, A.S.C.A. § 27.0202(a), for purposes of this discussion it will be presumed to be a foreign corporation: i.e., “. . . a corporation for profit organized under laws other than the laws of American Samoa.” A.S.C.A. § 30.0101(d) (entitled “General Corporation Law”).
I concur in the result of the majority’s opinion only because the result reached in this case would have been substantially the same if it had been effectively argued by counsel before a trial court of clearly competent jurisdiction over the subject matter. This case began as a corporate trust case in the trial division of the High Court. At trial it was transformed into a land matter and decided, in no small part, by the trial division upon application of a single chapter of the Territory’s land laws to the facts found at trial. Upon appeal, the majority of this Court further expanded this case to address the federal question of how to balance an individual’s fundamental constitutional rights with the admittedly race-based land alienation restriction statutes appearing in Chapter 02, Title 37 of the American Samoa Code Annotated (“the Code”). This approach has resulted in jurisdictional inconsistencies and legal inaccuracies in both *29the trial court’s and the majority’s opinions.
Exclusive trial court jurisdiction over “all controversies relating to land” is granted by statute to the Land and Titles. Division of the High Court, A.S.C.A. § 3.0208(b)(2), not to the Trial Division of the High Court which heard and decided this case. Although the same justices and judges would sit and decide the case in either division at the trial court level, the consequences of jurisdiction become more apparent at the appellate division level. Under A.S.C.A. § 3.0221, the determination of a land case or controversy is made by a majority of the five member appellate panel. All other controversies (save for matai title cases) may be decided by any two of the justices serving on the appellate panel regardless of the vote of the remaining justice and the two Samoan judges. This statutory safeguard of local self-determination on culturally critical matters is forfeited unless the trial courts zealously guard their exclusive respective areas of subject matter jurisdiction.
The majority’s footnote #1, on page 22 indicates that the Trial Division may grant itself jurisdiction to hear land controversies. The statutes indicate a contrary conclusion in that only the Land and Titles Division may exercise both land and collateral issues in a single controversy. The Trial Division’s jurisdiction, and the consequential appellate review voting procedures are statutorily mandated and not subject to self ordered judicial expansion of prescribed subject matter jurisdiction. Regardless of the outcome of this particular case, we should diligently protect the cultural safeguards contemplated by the Legislature when so carefully constructing this process, rather than altering the process to protect a questionable product.
By relying solely upon that part of the trial division’s opinion dealing with the land alienation restrictive statutes in affirming that court’s decision the majority of this Court embraces a jurisdictional paradox. It decides a land controversy-appeal from a trial court which lacks subject matter jurisdiction over such a controversy. This dilemma can and should be avoided.
My concurrence in the result of the majority’s opinion is predicated upon the belief that the Trial Division did have jurisdiction over the subject matter of this controversy because the legal issues presented were confined to the justiciable areas of corporate, trust, and mortgage law. This distinction, albeit of anorexic proportion, appears to present the only rational alternative to reversal based upon lack of jurisdiction.
The status of the parties and the legal devices selected to implement their land development schemes present dispositive legal issues short of reaching and constitutionally justifying the race-based land alienation *30statutes of this Territory. Understandably), because such issues received little if any attention at the trial court level, the majority is reluctant to presently consider the application of local statutes other than those raised by counsel or utilized by the trial court. Yet to avoid the nagging jurisdictional issue, we appear compelled tq do so under our powers of de novo review of applicable law.
Indeed, by failing to address the existence of applicable corporate land acquisition statutes to the incorporated appellants in this matter, the majority leaves unexplained its legal., conclusion that corporations are “persons with non-native blood” and that any control over lands by corporations amounts to prohibited “non-Samoan, ownership of the land”. 2 A.S.R.3d at 24. Not to recognize specifically enacted corporate land acquisition statutes in ■ a matter involving corporate parties appears violative of fundamental justice, especially in light of the severe' forfeiture and penalty statutes which the trial court imposed upon these corporate appellants.
Article 1,-§ 3 of the Revised Constitution of American Samoa authorizes the- legislature tp enact legislation which “protects .the land, customs, culture, and -traditional Samoan family organization of persons of Samoan ancestry....” This “policy protective legislation,” duly enacted under a super-majority successive-session constitutional requirement, is integral to the overall land regulatory scheme adopted by the locally, elected and selected American Samoan members of the Legislature. The policy protective legislation is- codified not only in A.S.C.A. tit. 37, ch, 02, but also in other chapters of the Code. In our de novo review of the law applicable to the facts of this case, it appears prudent to first inquire whether the Legislature has provided specific guidance upon the issues under consideration before we resort to case law of questionable application to the Territory of American Samoa.
Certainly with Appellant Craddick Development, Inc., and arguably with Appellant Anders.on Employee’s Pension Fund, we are dealing with corporate persons subject to the local statutes which create, regulate, or authorize the legitimate use of their corporate powers. And, with the trust instruments voluntarily selected by the parties to initially legitimize their land development scheme, we are dealing with a highly regulated, artificial form of land ownership which must meet strict statutory requirements of validity or suffer nullification as a legal consequence.
Corporate land acquisition powers within the Territory are granted and regulated under A.S.C.A. § 30.0131. Unlike the Northern Marianas approach to regulating corporate, land acquisition powers by allowing only certain corporations owned and directed by a majority of persons of Northern'Marianas Island descent to . obtain title to, or long term *31ownership interest in, certain lands, American Samoa has determined that for land acquisition purposes both foreign, and domestic corporations within the Territory are “without race”. A.S.C.A. §30.0131.
Further, A.S.C.A. § 30.0131 prohibits the corporate acquisition of an . interest in. land unless the transaction is approved in writing by the Governor and recorded by the territorial registrar. Failure to comply ' with these two conditions precedent upon the valid exercise of corporate land acquisition powers nullifies the transaction under the statute’s enforcement clause: “... and no such acquisition or transfer may be of any effect until so approved and recorded.” Id.
In keeping with the trial division’s subject matter jurisdiction, I would decide this matter within the confines of applicable corporate law and simply rule that the corporate appellants could not acquire any interest in land without first meeting the two conditions precedent upon the exercise of such corporate powers. • This would obviate the need to discuss and decide whether such transactions were “alienations” of land or even prohibited alienations of land under the race-based restrictions of A.S.C.A. § 37.0204. As the trial.court found at pages 9 and 10 of its decision, appellants failed to apply for approval of these land transactions from the Governor. That finding of fact, although determined in a slightly different context, is controlling for purposes of nullifying any of the land transactions entered into by the corporate appellants without the prior written approval of the Governor under A.S.C.N §30.0131. ,.
The discretion granted to the Governor to regulate foreign and domestic corporation land acquisition powers within the Territory represents part of the Legislature’s facially race-neutral corporation regulatory scheme. The second part of this scheme is found under A.S.C.A. § 30.0 103, also specifically enacted under the super-majority, successive session requirement of the Revised Constitution. This statute provides corporations with the direct right of appeal to the U.S. Secretary of Interior concerning any adverse decision made by the Governor pursuant to the General Corporation Laws of the Territory. No comparable direct appeal to the Secretary is found in other land statutes applicable to natural individuals which require the Governor’s prior approval. This appears to. buttress the inference that the Legislature sought to regulate corporate individuals under a separate race-neutral classification.
Because these statutes were not raised, argued or discussed below, we need not determine today whether these statutes specifically authorize corporations to acquire title to individually-owned lands in the Territory. All that is necessary to decide this case is to find that the corporate appellants lacked the capacity to lawfully engage in these transactions *32until first complying with the conditions precedent upon the exercise of such corporate powers. As a consequence, these transactions were of no legal effect pursuant to A.S.C.A. § 30.0131.
The same rationale applies to the determination of the validity of the 1985 land trusts under local regulatory statutes. Both the trial court and the majority ably demonstrated that by prescribing the use of a particular type of land trust that could be utilized to convey beneficial land ownership to certain mixed marriage couples and the mixed race issue thereof, the Legislature had proscribed the< use of all other forms of common law land trusts that might otherwise be formed to circumvent the protective legislative policy objectives necessary to preserve and protect the Samoan culture and land tenure system. The problem with their rationale is that the Legislature, under the successive session super majority constitutional requirement, enacted two land trust statutes, not just the mixed marriage-mixed race issue exception to the land alienation restrictive statutes. The second such land trust statute is found under A.S.C.A. § 28.1005, which reads in applicable part that a locally licensed ‘bank may: “...acquire and hold title to land in trust for beneficial owners who are eligible under the laws of American Samoa to acquire and hold title to land,...”
Obviously, corporations that are "without race” cannot qualify as corporate beneficial owners of land under a statute restricted to mixed race marriages and offspring. Facially, however, A.S.C.A. § 28.1005 does not impose race, or blood levels of a particular race, upon the classification of persons eligible to use this type of land trust. What is specifically prescribed by this statute, however, is that any person desiring to legally acquire a valid beneficial ownership of land in trust must establish such a land trust with a locally licensed, federally regulated bank as trastee. No other entity, individual or corporate, is expressly empowered to acquire and hold title to land in trust under this statute.
The wisdom of the Legislature in prohibiting all persons other than federally regulated banks from serving in such a fiduciary capacity as trustee is amply demonstrated by the facts of this controversy. Both the trial court and the majority of this Court seem to agree that Appellee Magadaline Craddick failed to faithfully discharge her responsibilities as trustee of the two 1985 land trusts. What both opinions fail to declare, however, is that she was legally not qualified to acquire or hold title to land in trust for any qualified beneficial owner of such land trusts. That role has been specifically reserved for banks. Any purported conveyance of land to Magdaline as trustee for the 1985 land trusts must fail because she lacked the specifically prescribed, statutory authority as trustee to acquire any title to lands held in trust under A.S.C.A. § 28.1005. “Any *33conveyance to one who is not capable of accepting title is void for want of a grantee capable of taking the estate conveyed.” Petesa Congregational Christian Church et al v. Tu'inanau, 1 A.S.R.2d 22 (1980).
With respect to deciding the issue of whether the 1985 land trusts were valid, the dispositive issue is not blood or racé, but the legal capacity of the trustee selected by appellants to acquire and hold title to lands in trust. In short, appellants Craddick Development, Inc. and the Anderson Employee Pension Fund never acquired any beneficial interest in the individually owned lands because the trustee they selected lacked the legal capacity to acquire title to such lands.
The issue of the legal capacity of the trustee of the 1985 land trusts is of singular importance to the appropriate disposition of this case. Under A.S.C.A. § 28.1005 any person who is qualified to acquire and hold title to land may be a beneficial owner of a land trust administered by locally licensed, federally regulated bank as trustee. Obviously the Legislature did not intend the race-based land alienation restrictions to fully apply to this statute.-' Full application would prevent the initial land title transfer because the trustee bank arguably does not possess the requisite 50% Samoan blood necessary to acquire and hold title to land. The statute would be rendered meaningless by such an interpretation. Nor does the statutory restriction that,the trust’s beneficial owner be qualified to acquire and hold title to land facially limit the application of this statute to persons of one-half or more Samoan blood. Arguably, corporations duly approved by the Governor or the Secretary of Interior could qualify. Apparently so would the mortgagees who foreclosed individually owned land mortgages and acquired short term title to such lands for the unexpired balance of the term of the mortgage plus ten years under A.S.C.A. § 37.1110. This policy protective legislation enacted after this Court decided Craddick I, specifically authorizes such mortgagees, regardless of race or blood, to acquire short term ownership of individually owned lands upon mortgage foreclosure, provided such lands are ultimately reconveyed to individuals possessing the requisite Samoan blood.
By deciding this controversy on the applicable corporate powers and land trust statutes specifically enacted by the Legislature to address these very issues, this Court could avoid the apparent legal inaccuracies contained in the majority’s opinion. I am left with the distinct impression that the majority has concluded, without explanation, that any corporation is a “non-Samoan” and therefore statutorily prohibited from acquiring any interest in individually owned lands regardless of whether or not it has validly complied with the corporate land acquisition statutes. Although the application of such a holding to the parties to this controversy may *34present justice of sorts, the larger application of this opinion to those domestic corporations organized' under the laws of this Territory and owned and directed by persons of varying degrees of Samoan ancestry is alarming.
As I understand the trial court’s and majority’s opinion, every leasehold, easement, assignment of rents, license for use or any other interest in such lands conveyed to a corporation may now be voided at will by the owner of such individually owned lands. Not only may such conveyances apparently be voided as illegal “alienations” of “control” or “ownership” of individually owned land interests, but any improvements to such lands made by the occupying corporate entities would be forfeited to the owner of such lands under the penalty and forfeiture section (A.S.C.A. § 37.0230) of Chapter 02, Title 37 of the Code.
The forfeiture clause of this section applies only to that class of persons statutorily defined as “nonnatives,” being: “... any person who is not a full-blooded Samoan” ASCA § 37.0201(e). This penalty section dates back to one of the earliest'Naval Regulations promulgated to prohibit, at that time, any “native” (full-blooded Samoan as defined under A.S.C.A. §' 37.0204(c)), from alienating land to any “normative.” Gradually this clear cut distinction was statutorily altered to állow Samoan land owners to alienate their lands to “nonnatives” who possessed at least 3/4ths Samoan blood. Currently, the land alienation blood restriction is one-half or more Samoan blood.
The Legislature has enacted a separate penalty clause specifically applicable to corporate land transactions under A.S.C.A § 30.0131 which voids all transactions undertaken without the requisite approval of the Governor and proper recordation. If the Legislature had clearly intended the 90 year old penalty provision for violating the race-based land alienation laws of Chapter 02, Title 37, to apply to corporations who are without race, there would have been no reason to additionally create the separate, specific corporate penalty that nullifies non-conforming corporate land acquisition transactions. Nor is it plausible that the Legislature would authorize the regulated corporate acquisition of land or interests therein under Title 30 of the Code only to allow such transactions to be voided at will under Title 37 of the Code because such corporations are “non-Samoans.”
The majority’s opinion is made unclear by its repeated misuse of statutorily defined terms, such as “native” (i.e., a full-blooded Samoan) and “normative” (i.e., a person of less than full Samoan blood) and its use of undefined terms such as “Samoan,” “Samoan lands” and “non-Samoan.” This leads the majority into erroneous legal premises such as, “A Samoan cannot ‘alienate’ any Samoan lands to persons with less than *35foil native blood”. 2 A.S.R'3d at 24. But under A.S.C.A. § 37.0204(b), a native or nonnative person owning individually owned lands is free to alienate such lands to any other nonnative who possesses the requisite one-half or more native blood. Even when dealing with the far more regulated land category of “native lands” (i.e., communally owned family lands under the control of the family’s senior'matai), the statutes provide that such lands may, with the prior approval of the Governor, A.S.C.A.'§ 37.0204(a) & (b), be alienated to certain qualified non-nátives.
The majority’s conclusion that the beneficial ownership of land in trust by appellants “violates Section 37.0204(b)” because it could have resulted in land “. . . ownership by persons with non-native blood. . .” at page 24 is equally unclear. The majority fails to explain how it apparently concluded that foreign and domestic corporations are legally determined to be “non-Samoan or “persons with non-native blood.”
By statute corporate persons are without race and corporate land interest acquisition. powers exercisable on a case by case basis at the sound discretion of the governor, subject to review by the Secretary of Interior. The majority’s holding vitiates that corporate regulatory scheme, but supplies no alternative tool for deciding how to determine the “native blood” in corporate persons. Is it calculated by the Samoan ancestry levels of the corporate board of directors, the stockholders, or even the individuals who organize it? Clearly the Legislature opted to avoid these requisite blood measurement devices by declaring corporations without race. If the majority must set this approach aside, it appears incumbent upon them to explain how native blood is calculated when dealing with corporate land interest acquisitions.
Nor can I understand the statement on page 26 expressing the sentiment that: “... we cannot imagine anything that would so fundamentally alter the nature of Samoa . . .” .as allowing such “. . . non-foil blooded Samoans to own and control land. . .” Yet it appears this is precisely what was intended by the Legislature when enacting A.S.C.A. § 37.1110 which specifically authorizes such persons as I think the majority means' by “non-foil blooded Samoans” to acquire a short term “ownership (i.e., control)” of individually owned lands, regardless of race.
The generally adverse legal consequences of expanding and misapplying the defined terms associated with the land alienation laws of this Territory simply to decide this case far outweigh the need to do so in the manner chosen by the majority. This approach not only judicially alters the carefully enacted regulatory scheme of the Legislature but also stamps this case as a “controversy relating-to land” which the trial court lacked jurisdiction to hear and decide. This case can, and should be, decided upon consideration of applicable policy protective legislation *36specifically enacted to address the issues of law applicable to land trusts law and corporate land acquisition powers. The legal results would be essentially the same; the trusts are void and the interests in land attempted to be acquired by Appellants nullified. Jurisdiction would be preserved and both the majority of this Court, and the trial court when finally assessing damages, would be free to address the equities, rather than force application of a penalty and forfeiture section of law not clearly intended to apply to corporate land transactions .otherwise voidable under the General Corporation Law of this Territory.
II
Obviously I do not agree with the majority that appellants have demonstrated any injuries attributable to discriminatory race-based governmental actions. Appellants’ injuries were self-inflicted, within areas of the law dealing with corporate powers and the legal capacities of land trust trustees, under statutes either facially race neutral or expressly so. Yet if we must address the issue of fundamental rights raised by appellants, it would appear we might do better than the majority’s approach of simply posing, at page 26 that: “... even if the equal protection clause does apply to American Samoa, the land restrictions at issue' would not violate that clause.” The balance of page 26 of the majority’s opinion similarly exhibits laudable and genuine sentiment for preserving the Samoan culture and way of life, but only by way of subjecting the Territory’s race-based policy protective legislation to judicial strict scrutiny to decide if the Territory can demonstrate a compelling government interest in preserving its centuries old culture and communal land tenure system.
This controversy relates to interests in individually owned lands, not native lands (i.e., communally owned family lands under the control of the family’s senior matai). Individually owned lands of the species at issue here, are of recent and judicial origin. Unlike traditional life upon native communal lands where the family member’s entitlement to use of the property is conditioned upon that person’s, continuing obligation to render services to his family’s senior matai, individually owned lands are outside of the direct control of the senior matai. A family member on communal land who refuses to contribute to family cultural rituals may quickly find himself evicted from such lands, but a person residing upon his or her own individually owned lands has clear title to such property superior against any other person. Individually owned lands are freely alienable, subject only to one-half or more Samoan blood requirement in the vendee. Such lands are also mortgageable, and subject to involuntary alienation upon mortgage foreclosure.
*37The calm assurances of the majority notwithstanding, I remain unpersuaded that some future Appellate Division panel or éven a U.S. District Court in Washington, D.C., when applying strict scrutiny to the race-based land alienation restrictions applicable to individually owned lands, will always find the government’s argument compelling that the only way to preserve a culture founded upon communally owned lands under the control of a senior matai, is to similarly restrict ownership of individually owned lands not subject to a senior matai’s control, based upon race.
By treaty, the Deeds of Cession, and public laws duly enacted under the “needful Rules and Regulations” clause of Article IV, section 3 of the United States Constitution, the United States Congress has shielded the intertwined lands and culture of the Samoan people from the foil application of federal law that might destroy the Fa'a Samoa. Not unlike the rights afforded Native Americans to preserve their tribal customs and lands, Congress has provided a similar opportunity of cultural self-determination to the people of this Territory. This concern was indicated even when Congress first dealt with the Territory’s Deeds of Cession. Under 48 U.S.C. 1661(b), Congress specifically prohibited the application to the Territory of “. . . existing laws of the United States relative to public lands . . .” With this caveat, Congress then delegated its authority over the administration of the Territory to the President, who first used the Navy, then the Department of Interior, to directly administer the Territory while fostering the gradual development of a self-governing Territory.
The Revised Constitution of American Samoa was approved by the Secretary of Interior in the exercise of his powers over the Territory as delegated by Congress. The “policy protective legislation” section of the Revised Constitution, when first approved, reflected a delicate balancing of Samoan self-determination with federal oversight. The American Samoan Legislature was granted the conditioned authority to enact laws that its American Samoan members believed necessary to protect and preserve the Samoan culture and native lands that are so much a part of that culture and way of life. Balanced against these local powers of self determination, when the Revised Constitution was first adopted, was the clear retention of federal oversight powers exercised by the federally appointed Governor of the Territory through his legislation veto powers. Indeed, unless it is recognized that this federal oversight was part of the policy protective section when initially adopted, the clause in the first sentence of that section “. . . contrary to their best interests admits to no application. This clause represented the last vestige of the United States’ direct power to dictate what was or was not in the Samoans’ best interests, notwithstanding that two successive sessions of the local legislature by a 2/3rds or greater majority had declared what protective *38laws they thought were necessary to preserve the Samoan culture and land tenure system.
When the federally appointed Governor was replaced by amendment to the Revised Constitution providing for a locally elected Governor, commencing in 1977, the Secretary of Interior effectively granted to the American Samoan Legislature and Governor, the unfettered power to decide for themselves what changes in the land alienation laws could or should be enacted. Congress completed this process in 1983 by enacting 48 USC 1662a, which prohibits any amendment to or modification of the Revised Constitution except by Act of Congress.
The United States initially decided that to protect the Samoan culture, the fundamental right of Samoans to alienate their lands must be abridged. At that time the Samoans lacked the political power to protect their culture and lands from foreign encroachment. Gradually the United States fostered the development of Samoan self-government and self-determination and slowly returned the exclusive power to preserve the Samoan culture, lands, and way of life to those persons best qualified to decide such matters, the Samoan people, their locally elected Governor and House of Representatives and their ranking matais who serve in their Senate. Although achieved by different means, Congress has provided, by needful rule or regulation, American Samoans with the rights to manage their lands and preserve their customs similar to those rights of Native Americans to control their tribal lands and customs.
Although I disagree that this Court need reach the fundamental rights issue raised by appellants in order to decide this case, if we must do so, we should first determine whether Congress has insulated the locally enacted policy protective legislation statutes from those sections of the United States Constitution whose full application might result in reimposing federal control over the Samoan culture, land tenure system and way of life. Fundamental rights unquestionably extend to the general laws of the Territory of American Samoa. Whether such rights apply with full force to areas of law reserved by Congress for the exclusive regulation by this unincorporated territory’s locally elected Legislature and Governor is no longer settled law in this Territory.
The majority’s Opinion at page 26 indicates little analysis was conducted on the issue of whether the equal protection clause (by virtue of the 5th Amendment), applied to the Territory by this Court in Craddick I. Yet, it appears Craddick I dealt entirely with that constitutional issue. The Court first declared unequivocally that “. . . the constitutional guarantees of due process and equal protection are fundamental rights which do apply in the Territory of American Samoa. . .” Craddick I, 1 A.S.R. 2d 10, 12 (App. Div. 1980). Secondly, that Court held the blood restricted *39land alienation statute .. does create a classification based on race. . Id. Further, that Court held . . that statutes discriminating on the basis of race are subject to the strictest judicial scrutiny. . .” Id. The balance of pages 13 and 14 of the Craddick I decision is devoted to demonstrating a compelling state interest sufficient to justify the race based land alienation statute notwithstanding the Territorial application of the equal protection clause.
The opinion of the majority in the present matter appears to slightly retreat from the holding in Craddick I by prefacing its discussion with “.. . even if the equal protection clause does apply to American Samoa. . .”. Nonetheless, the majority then proceeds with applying the compelling state interest test, a judicial statutory construction device reserved only for determining whether a particular government public policy objective can only be achieved at the expense of an individual’s constitutional right to equal protection under the laws. Implicitly, the application of the compelling state interest test presupposes the determination that the equal protection clause applies to the Territory’s policy protective statutes. There can be no other legal explanation for the majority’s use of this test. As a consequence, this Court continues to subject the race-based policy protective legislation of this Territory to the disturbingly difficult burden of justification under the compelling government interest test.
Since at least 1917, race-base government restrictions upon an individual to freely alienate his or her lands have been viewed as unreasonable infringements upon recognized property and liberty interests protected by the due process clause of the 14th Amendment. Buchanan v Warley, 245 U.S. 60 (1917). For nearly 100 years both the executive branch and the Congress of the United States have clearly indicated that such 14th Amendment rights do not apply to the local laws applicable to the Samoan culture and land tenure system of this Territory. Congress has directly used and indirectly allowed the use of its Article IV powers to carefully preserve for the Samoan people the exclusive right to determine by local statute how their culture and land tenure system will be regulated. It appears overdue for the judicial branch to do likewise.
The majority’s opinion is also disturbing in its apparent reliance upon such documents as the Treaty of Berlin to judicially evaluate the present exercise of exclusive powers to enact policy protective legislation by the Legislature and Governor. Although benignly used by the majority , herein, I question whether this Court, or any other court, may set aside locally enacted policy protective legislation based upon its inconsistency with the 100 year old expressed interests of the colonial powers subject to that Treaty. For example, the Legislature has duly enacted A.S.C.A. § 37.1110 authorizing mortgagees other than persons of one-half or more Samoan blood to acquire short term title to mortgaged individually *40' owned lands upon -foreclosure. Since the Treaty of Berlin contains' a blanket prohibition against alienation of lands in the Islands of Samoa to * foreign nationals by sale; mortgage or otherwise, it appears that under the ..majority’s opinion at pages; 25-27 ' this Cohrt could‘judicially void'the Territory’-Si land-mortgage; statutes-ifut determined such statutes-¡were n “abhorrent-torthe-Treaty :of Berlin.::’’,«.•».,< ■ !
This approach seems to resurrect powers of the United States •/Government to; decide ^whether , a particular piece/of policy protective legislation is valid based upon whether the Court views the statute as ' being.-contrary ¡to .the Safnoans’ best, interests.. It. may prove, ultimately ..correct, but * it;, presently'.-.appears .at variance ¡-with the historical /.development of\salf/goverüment of .-this ;Territory and ; recently ¡enacted 9V4Lfcts(p!fGpn!gress>khdithe3Territory’s'JL-egislaturev.'s¿'3íiv-' smuiiiasteb •.■of trigu Ic&otJtdbeiioo s'lsubivibur m to sgnaqxy «.di k- bs'/oiávi ed ylno mo 1 efiktnericaiirShqrpa is?uqtridé’sfinéd forfistatfehoo’d../' Within -/the Lcuprenfly Lieyolvingijíphliticali.statuScéfttheüTer^iíoryíqü.appearsímoBejEe.flekiv.pithan .aefleCt-ive'.tO/ijüdiqiallyíirppo'se.rigOEOUSjdbnslitutibnal standards; an di-tests .J¡to'aferáscofslawvsólelyo:Df¡local (application Swhichs.Congress appears!Ito yh'dve;ñisulated'.froni?sueli.bhallenges:.ijiIt.appears more consistent .wife the </appaitehti neMorder iof thiiig&rto at 'leasticohsiderithe .legalnmplications-pf 48 U.S.C. .íkóóüaivWhile:1 addressingUhevappellañts’;..fundamentalarights arguments. It would certainly simplify our consideration of such issues /-toíidetfermineíwhetheD.this iact of Congress legálly transformed-the .polidy epiotectivesilegislktioni'sectioA ofe.thcbReVised ¿Constitution; fin to cone /Of ySongreSsls/ .“heedful ’--RuMd and 'Regulations" respectingjthe: Territory ¡or bóther/iBrópertytof>!tha/United;rStaíeá',”ilpürsüant tonits; inherentrpbwdrs -jdxércisáble:iuhdeÉiArtieleT¥,!ÍSeetion5^ ófitheUnitediStatéssGonstátutiéii. CSmgressíihíasísa-lfeády;l'idebide.dí',¡thatiliráceíb.aseTd poliéy prateetiSe :.ildgislatÍDn’dsi(U >sNeedful .Rüle-’ñifomthis. ¡unincorporated,- ¡ no - longer '.quite ¡.unorganized, territoriali posSessiomof the United .States, our¡task¡is .made (¡much-easifefl afcinA sjí :■ Oati sdr buwolla yin. Ui/n Uu írm? '{•írnib scrámaJub oí jilgrr svmrlo o adt elqoeq nsouicíi mw ¡ot ;o si; tíéneurowitjr. the.i/r.esultnóf ífhe majority:/that -,theS race/based ..polidy proteetiyealegislatibn'jirestí-i'Gfmguthenalienationv of. ...individually:' owned lands to persons of one-half or more native blood as enacted by the abeg-islatuxeds constitutional...!: Rdomofeagreeithat to.solfndd thatc.this. Court tmustuapplyútbfeivoopípélling cgoMémtíiént^lintéresthtest-'<;tO)irthis;-bpólic^ spiíoteb.tiydífegMati-0npalorqpqmparddtíf0Bfcomplianee.(SKith:.tlítoTréatysof yBed|nr¡ orií yd bean yl .gined ííguorblA :¡on‘jvoD -due .mdebigoJ -abiar lea /Rfn jfuoo led) xm ‘i0 <nuoD aids raribtJw i siu-nori YbcoMu&solélyfbeoajis&át appearslCpngres's rhassresplved the- fundamentdl trigbteissue’áu favorlof the Nméiican-Samoan-people./Until; anduuiless íC.dngr,es&&.ámendssqinfnod(iífies.¡i1herJRé/isSd9Gpnstitutióii, thenexclrteivie cpow.erctdíddtermihe thematjiire13ahdfscope;;of,rgce-based:policyfprb'tectWe \lBgM4tl0ntirds%ngithnthe)iLegislatui:e andd.Goverpor, ¡sübject:¡ to: judicial *41review based upon a reasonableness test. I would so hold. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486562/ | ORDER DENYING PETITION FOR REHEARING
On October 29, 1998, Petitioner Te'o J. Fuavai (“Te'o”) filed a petition for rehearing. Te'o sought a rehearing to contest this court’s order granting a motion to dismiss or quash the alternative writ of certiorari previously issued by this court. Te'o utilized the extraordinary writ of certiorari process to contest the judgment of contempt against him entered by the District Court on May 1, 1998. Due to the dilatory manner in which Te'o filed the petition for writ of certiorari, this court dismissed or quashed the alternative writ of certiorari on October 15, 1998. Te'o now petitions this court to rehear his case.
*57Standard of Review
Under A.C.R. 40, a petition for rehearing must contain “with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended.” The function of a rehearing is to correct errors of law or fact, leading to material errors. Fanene v. Fanene, 20 A.S.R.2d 115, 116 (App. Div. 1996) (citations omitted). A rehearing will not be granted merely for the purpose of reargument of issues which have already been fully briefed, argued, and decided. Fanene, at 118 (citation omitted); Tuaolo v. Fruean, 1 A.S.R.3d 40, 41 (App. Div. 1997). Nor will a rehearing be granted for issues raised for the first time in a petition for rehearing. Kale v. Combined Ins. Co., 924 F.2d 1161, 1169 (1st Cir. 1991); Costo v. U.S., 922 F.2d 302, 302-303 (6th Cir. 1990). The granting of a rehearing is at the discretion of the appellate court. Tuaolo at 41.
Discussion
Te'o moves for a rehearing on two grounds: 1) the Chief Justice should have recused himself from the hearing due to bias and prejudice and 2) Te'o’s due process rights were violated by imposing a 30-day time limit.
Both arguments are new arguments, raised for the first time in Te'o’s petition for rehearing. On this ground alone, the court may deny Te'o’s petition. See Holley v. Seminole Cty. School Dist., 763 F.2d 399 (11th Cir. 1985) (questions that had not been briefed or argued on the appeal would not be entertained when presented for the first time in a petition for rehearing); Costo, 922 F.2d at 302-303 (arguments that defendant misrepresented facts could not be raised for the first time in a petition for rehearing). Nor does Te'o contend that the court based its opinion on errors of law or fact, leading to material errors. Nevertheless, the court finds Te'o’s arguments desperate at best.
During December 1997, the Chief Justice presided in another contempt proceeding involving Te'o before the High Court, in an entirely separate matter, involving an entirely different set of factual circumstances. This very act, contends Te'o, creates an appearance that the Chief Justice harbors personal animosity against Te'o. The mere fact that a Justice presides over a similar matter involving the same party, however, does not in itself create some sort of bias or prejudice towards a litigant.
Te'o next contends that the appellate court erred in imposing a 30-day time limit. By imposing a 30-day time limit, Te'o claims that his due process rights were violated by the imposition of a retroactively applied 30-day time limit. In support of this argument, Te'o applies the statute of limitations doctrine by analogy. Te'o also asserts that Te'o has a right to *58petition for a writ of certiorari.
Te'o is only correct in the contention that Te'o has a right to petition for a writ of certiorari. This court, however, acknowledged that the right to petition for a writ of certiorari must be exercised within a reasonable time. Te'o v. Dist. Court of Am. Samoa, 2 A.S.R.3d 41, 42 (App. Div. Oct. 15, 1998). The court applied by analogy the period for filing an appeal under the Administrative Procedures Act because the scope of review is similar. Both review under a writ of certiorari and review of an administrative hearing are limited to whether a judicial body acted within the scope of its authority. Id. As such, a 30-day time limit was applied.
Te'o, notably, does not contend that the court committed an error of law or fact by applying the 30-day time limit. Rather, Te'o again puts forth a new issue that was not presented in its initial brief. “Issues that were not presented in the initial briefs and argument will seldom be considered when presented for the first time by a petition for rehearing.” 16 C. Wright & A. Miller, Federal Practice Procedure § 3986 (1st ed. 1977 & Supp. 1996). Te'o had every opportunity to espouse his due process argument at the initial hearing. His lack of diligence in raising this argument is not grounds for a rehearing.
Order
Te'o’s failure to raise arguments at the appropriate time warrants denial of his motion for rehearing. Therefore, Te'o’s petition for rehearing is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486564/ | ORDER DENYING MOTION TO SUPPRESS EVIDENCE AND MOTION TO DISMISS
Introduction
,^Ianaia Siva Pearson (“Pearson”) is charged with Burglary in thé First Degree (A.S.C.A. § 46.4030), Stealing (A.S.C.A. ,§ 46.4103); Unlawful ,Use of a Weapon (A.S.C.A. § 46.4203), two counts of Possession of an Unlicensed .Firearm (A.S.C.A. § 46.40221), and Assault in the First Degree (A.S.C.A. § 46.3520).
On October 23, 1997, Pearson filed a motion to suppress' evidence, ,,alleging constitutional violations-of his' rights and, on November 10, ■ 1997,. filed ..a-motion to dismiss, alleging destruction of evidence. Pearson seeks to suppress evidence obtained from his cousin, Albert Pearson (“Albert”), evidence found on the premises of his aunt, Evalani Viena (“Viena”), as well as his own statements made during custodial interrogation at the police station in Fagatógo. This court consolidated and heard both Pearson's motions on November 25, 1991; with counsel for both sides present.,
Facts
On July 19, 1997 at about- 4:17 a.m., a shooting at a house across the street from the High- Court in Pago -.Pago was reported to police. Detective Richard Sua'ava of the Department of Public Safety (“DPS”) investigated this incident and obtained information from Albert and others that Pearson had been involved in the shooting incident. Police also learned-that Pearson had broken into and stolen several items from a Toyota pickup track owned by Kuo Fu Sheng (“Sheng”).
At about- 6:00 a.m. on July 19, 1997, police brought a number of witnesses to the DPS station in Eagatogo for questioning. Officers were told that Pearson possessed ammunition, a .38 caliber revolver, and an Ml carbine. After learning that Albert had Pearson's .38 caliber revolver at his home, Captain Mageo directed Albert to bring the revolver back to *65the station which Albert did.
Police officers then went to the Motu o Fiafiaga Motel (“Motel”) at about 9:00 a.m. that same morning where they found Pearson asleep in the lobby. They took Pearson into custody and brought him to the Fagatogo station. After being given his Miranda warnings, Pearson admitted to Captain Fotu Leuta that he had broken into Sheng's pickup track. Police officers went back to the Motel at about 11:00 a.m. that day and asked the owner, Viena, to search the outside grounds of the motel.1 After Viena consented to this limited search, officers found Pearson's Ml carbine and sweater inside Viena's residence behind the motel, in a room later identified by Viena's daughter as belonging to Pearson.
Discussion
A. Motion to Suppress Defendant's Statement
Pearson seeks to exclude the incriminating statement which he had made to Officer Leuta, about his breaking into a parked vehicle. Pearson claims that police violated his constitutional rights by failing to abide by the requirements of Miranda,2
The evidence revealed that prior to questioning by officer Sua'ava, officer Fotu Leuta had presented and read to Pearson, DPS’s pre-printed form containing a largely verbatim recital of the Miranda warnings as *66formulated by the Supreme Court. This form was also signed by Pearson in front of Officer Leuta. Pearson, however, argues that his Miranda waiver was defective because of his inebriated and fatigued condition. He claims that his state of intoxication and lack of sleep at the time impaired his senses to so great a degree that he was unable to “voluntarily, knowingly and intelligently” waive his rights as required under Miranda. Miranda v. Arizona, 384 U.S. 436 (1966). Because of his “fragile state,” he claims that the burden should shift to the government to show a proper waiver of rights by the accused, a burden that Pearson contends was not met.
We disagree. The Miranda court suggests that the government should carry a “heavy” burden of proof to show a valid waiver of Miranda rights in certain instances when the rights of the accused may be jeopardized.' Id. at 475. However even if burden-shifting were appropriate, the proper standard by which to judge the validity of the defendant's Miranda waiver is merely preponderance of evidence, the lowest standard and one that we find was easily met in this instance. Colorado v. Connelly, 479 U.S. 157 (1986). Here, the evidence shows that even though Pearson was under the influence of alcohol and sleep deprived, his state of mind was not fragile enough to nullify the validity of his waiver. During the questioning at the police station, he was capable of engaging in meaningful dialogue with the officers and had the presence of mind to immediately ask police to explain the reason for his detention. Pearson was able to tell us exactly which officers were at the station when he was taken in and testify in great detail about his conversation with the officers.3 Indeed, his memory of the events surrounding his questioning seems astonishingly clear for someone who was, in his words, “pretty drunk,” ostensibly too drunk to understand the extremely elemental rights *67that Miranda affords and properly discharge them.
Even more curious than his ability to recall in minute detail the substance and chronology of his interaction with police is the diametric variance of his version of events with that of the police officers. It seems that when Pearson does not directly contradict the testimony of the officers, his memory fails him — inexplicably, conveniently, and completely. For example, he has lost all memory of signing the waiver form even when he had the essence of the waiver explained to him and his signature appears on the form.
In essence, Pearson claims that he would not have signed the form had he understood it and — so the argument goes — he was incapable of understanding the waiver when it was presented to him. We find his' claim to be unable to knowingly, voluntarily and intelligently waive his rights to be simply unbelievable. Pearson struck us as a person of above average intelligence, a graduate of a top-ranked university. Moreover, nothing on the record exists to suggest overbearance or excessiveness on the part of the officers, much less any hint of coercion. The motion for suppression will, therefore, be denied.
B. Motion to Suppress Ml Carbine and .Sweater
Even though police may have exceeded the bounds of Viena's consent to search her premises and thus may have violated Viena's constitutional rights, the violation of Viena's rights in this instance does not transmute to Pearson. Alderman v. United States, 394 U.S. 165, 174, (1969), holds that a Fourth Amendment right is a “personal right” which may not be vicariously asserted by another. The Supreme Court affirmed this position in Rakas v. Illinois, 439 U.S. 128 (1978), stating that “it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rale's protections.” Id. (emphasis added). Put another way, “the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967).
This “personal right” may be asserted one of two ways: through a privacy right or a possessory interest. In the seminal Fourth Amendment case of Katz, Justice Harlan wrote that privacy rights attach only to those who have “an actual subjective expectation of privacy,” one that “society is prepared to recognize as 'reasonable.'" Katz, 389 U.S. at 361; see Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
In the alternative, the accused must hold a possessory interest in the area searched. United States v. Jacobsen, 466 U.S. 109, 113 (1984)(holding that the Fourth Amendment is implicated “when there is some meaningful interference with an individual's possessory interest in that *68property.”) See also Boyd v. United States, 116 U.S. 616, 630 (1886) (emphasizing the importance of property rights, holding that an “invasion of private property, be it ever so minute, is a trespass.”) (quoting Entick v. Carrington, 19 How.St.Tr. 1029 (C.P. 1765). This court reiterated these doctrines in American Samoa Government v. Atafua, 1 A.S.R.3d 174, 175 (Trial Div. 1997), and American Samoa Government v. Prince Dunham, 1 A.S.R.3d 176, 177-78 (Trial Div. 1997), by holding that Article I, § 5 applies only to defendants who have a “legitimate expectation of privacy” or a “property or possessory interest.”
Here, Pearson had neither a possessory right nor any other “reasonable and legitimate expectation of privacy” in the room where police discovered the sweater and Ml Carbine. The police found him sleeping in the motel lobby, not the room searched. Viena testified that Pearson did not stay at her residence on any regular or consistent basis. She had not known that Pearson had been on her premises, much less that he had slept there bn the night in question. Instead, Albert, Pearson's “blood brother,” testified that Pearson often stays at his house, coming over there “whenever he likes.” Moreover, since Pearson apparently dropped off the sweater and Ml Carbine in one of the rooms and then went to sleep in the lobby, Pearson himself acted as if he subjectively knew that he did not have permission to stay inside Viena's home. All of these facts, singularly or combined, cast great doubt that Pearson held a possessory interest in the room where the evidence was found. Furthermore, Pearson's decision to sleep in an area open to many people, including at a minimum the guests of the motel and their guests, further •leads us to believe that Pearson did not have a subjective and reasonable “expectation of privacy” as required under Katz for his Fourth Amendment protections to attach. Katz v. United States, 389 U.S. at 351, 19 L.Ed. at 582. In light of this evidence, we cannot suppress the evidence found by the police on Viena's premises.4
*69C. Motion to Suppress .38 Caliber Revolver
No cognizable personal rights of Pearson were violated by Captain Mageo's command to Albert, a third party, to surrender Pearson's gun to police. Even if the rights of Albert were compromised, the rights of Pearson were not necessarily compromised. See Id.; Rakas, 439 U.S. at 131; Alderman, 394 U.S. at 174. Therefore, for the same reasons as discussed above, we deny defendant's motion to exclude the .38 caliber revolver.
D. Motion to Dismiss
We find Pearson's contention that the obvious lies his allies told police should be considered “statements with exculpatory value” to be preposterous. These witnesses, defendant's friends and family, initially offered the police nothing more than categorical denials of the defendant's culpability in the charged crimes. The initial statements were apparently conflicting, confused, and consisting of very little, if any, truth.
As a matter of practice, we will concede that it is probably best that police retain any and all statements given them, however ludicrous, sketchy, and unhelpful such statements may be. But even if this were the optimal course of police conduct, we find defendant's assertion of a Brady violation in the case at hand to be utterly devoid of any legal substance or merit. Brady v. Maryland, 373 U.S. 83 (1963) (holding that suppression of evidence favorable to a defendant who has requested it violates due process where the evidence is material either to guilt or punishment). We do not see how the fabrications told to DPS rise to the level of Brady violations.
Defense goes on to argue, desperately we may add, that even if the witnesses' statements were not exculpatory, they have value as material for cross-examination. See United States v. Bagley, 473 U.S. 667 (1985) (extending the holding in Brady to evidence with cross-examination value). In fact, under the American Bar Association Model Rules of Professional Conduct (1984) (“Model Rule”), as adopted in this jurisdiction under High Court Rule 104 in 1993, counsel would be under an affirmative duty to withhold from or advise the court of any testimony or evidence which is known to be untruthful, whether intended for direct or cross examination. See American Bar Association Model Rules of Professional Conduct, Rule 3.3.5 To do otherwise would mean “that the *70lawyer cooperate in deceiving the court, thereby subverting the truth-finding process that the adversary system is designed to implement.” Id.6 Moreover, Model Rule 8.4 (d) states: “It is professional misconduct to engage in conduct that is prejudicial to the administration of justice.”7 Model Code DR 7-102(A)(6) requires that a lawyer shall not “participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.” Most of the substance' of the . statements initially presented to the police, therefore, could not have been admitted in court in the first place. Accordingly, and with no further discussion, we deny Pearson's ill-founded motion to dismiss.8
.Conclusion and Order
Defendant's motions are accordingly denied as provided herein.
It is so ordered.
Viena testified that she gave police permission to “look outside of my yard right next to the Motel and by the club, and that was all.” That is, only “outside where I can see [the police].” She answered in the negative when asked by defense counsel whether she gave police permission to search her residence.
Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court held that:
•the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination.
. . . [PJrior to any questioning, the [defendant] must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, that he has the right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently.
384 U.S. at 444
Pearson's testimony on direct examination by Public Defender, Loretta Townsend, in which he relays his interchange with police may itself best underscore this point:
I remember saying I didn't know what I was being brought in for. And I asked [the officer], “What was I brought in for?”
And they had mentioned something about a shooting. And then I had told them, “I don't know of any shooting.” And then they said,... “I should come clean and tell others the truth.” ..
. And they had said something along the lines, “You should feel remorse for what you had done.” . . . And I said, “I really didn't know what they were talking about and how could I feel remorse for something I had no remorse for.”
Question by Loretta Townsend:
But you don't really recall making a statement about a burglary?
Pearson's response: “No I do not.”
We must note, however, that we look upon the actions of the police in this instance with great disfavor. The officers clearly exceeded the scope of Viena's consent. She gave permission to search the lobby and outside grounds of the motel, but not the inside of the building. If evidence had been found that implicated Viena in a crime, the improper conduct of the police would have compromised its admissibility. Accordingly, we would like to admonish and caution the officers involved here regarding the manner in which they carry out their duties. Overzealousness, no matter how well intentioned, can trample a citizen’s fundamental rights and obviate the good it seeks to achieve, serving as a force counterproductive to its primary goals.
Rule 3.3 states, “When evidence that a lawyer knows to be false is provided by a person who is not a client, the lawyer must refuse to offer *70it regardless of the client's wishes.”
Rule 1.2(d) states that “a lawyer shall not. . . engage or assist a client in conduct that the lawyer knows is criminal or fraudulent.”
Moreover, Model Code DR 1-102(A)(5) directs that a lawyer not “[ejngage in conduct'that is prejudicial to the administration of justice.”
Counsel would be well advised to take note that a violation of the Rules of .Professional Conduct which govern the American Samoa Bar will result in disciplinary action against the attorney. Model Rule 8.4 (a) states: “It is professional misconduct to violate or attempt to violate the rales of professional conduct.” See 155(a) HCR which incorporates Model Rule 8.4.,(a)- into this jurisdiction. We caution, therefore, that counsel think twice before treading this line again. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486565/ | *72ORDER GRANTING AND DENYING MOTIONS TO WITHDRAW AS COUNSEL
Introduction
Co-defendants,, Christian Amani (“Amani”), Senati Auau a.k.a. Snag (“Auau”), and Johnny O’Brien (“O’Brien”) are charged with violations of A.S.C.A. § 46.4003(a) (Robbery in the Second Degree), A.S.C.A. § 46.4103(b) (Stealing), and A.S.C.A. § 46.3522 (Assault in the Third Degree). These crimes were part of the same incident. Attorneys, *73Loretta Townsend, Mitzie J. Folau, and Tautai A. F. Fa'alevao of the Public Defender’s office brought a motion in the District Court, before the Honorable John L. Ward II, to withdraw as counsel because of a perceived inability to provide adequate counsel to Christian Amani and his co-defendants. Counsel believe that a potential conflict of interest may occur because they work in the same office. The government even joined in the motion.
The District Court Judge denied the motion. Counsel then sought a civil writ of mandamus from the High Court to compel the District Court Judge to grant the motion to withdraw and assign counsel from the private bar, at further public expense, to two of the defendants. See Amani v. American Samoa Government, CA No. 17-98. However, before the writ application was heard, the defendants were bound over to the High Court to answer the referenced charges against them.1 The withdrawal motions are properly before this court.
Facts
For purposes of this hearing, the facts, as may be gleaned from the file and record before us, are that: Mr. Flinn Curren (“Curren”) reported an attack which occurred on December 15, 1997. He told police that, as he was walking along the road near Freddy’s beach, he saw three Samoan men drinking in the back of a silver pick-up track. One of the men asked him for money. He said that he did not have any and kept walking. Two of the men climbed out of the pick-up and again asked for money. After Curren repeated that he had no money, he was attacked by these two men. They punched him, and the more heavy-set of the two began kicking him in the head. One of the two men took his briefcase, and both men ran back to the pick-up. After they climbed in, the third man drove the track away.
The next day, police officers interviewed the three defendants but received conflicting versions of events from them. Amani admitted his involvement in the incident, stating that he and a “Jerry Faga” attacked a “white man” near Freddy’s Beach. Amani said that Auau also was involved in the incident (although he did not specify in what way). The other two co-defendants stated, however, that no person by the name of “Jerry Faga” was present during the incident. Amani also showed Captain Te'o and Officer Pese where the contents of Curren’s briefcase was dumped. (Affidavit in Support of Arrest Warrant, dated January 27, 1998, p. 2.)
*74Auau admitted his presence during the incident, but then stated that “he had nothing to do with it,” possibly meaning the actual beating. (Affidavit in Support of Arrest Warrant, dated January 27, 1998, p. 2, ¶ 3.) O’Brien admitted that he, Amani, and Auau were involved in the attack on Curren. He alleged that he punched Curren in self-defense because Curren was reaching for a rock. (Affidavit in Support of Arrest Warrant, dated January 27, 1998, p. 2.)
Discussion
The Public Defender’s Office believes that these defendants’ constitutional rights are compromised because of a conflict of interest. However, the representation of more than one accused by the same attorney is not per se violative of the Sixth Amendment’s constitutional guarantee of effective assistance of counsel. United States v. Waldman, 579 F.2d 649 (First Circuit, 1978). No bright-line mies exist with respect to situations involving conflicts of interest; the court must look at the “facts of the particular case” to determine if a Sixth Amendment violation is present and that these acts must be assessed according to an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 690 (1984). See also Glasser v. United States, 315 U.S. 60, 86 L.Ed 680, 62 S.Ct. 457 (1942) (holding that the issue of a conflict of interest is a highly fact-specific one).
At the same time, the court must also bear in mind that an accused is not constitutionally guaranteed the right to “perfect representation,” but merely adequate and fair representation. See Strickland, 466 U.S. at 687, holding that defendant must meet both prongs of a two-part test for a Sixth Amendment violation to exist, usually a difficult showing to make.2 The United States Supreme Court defines the standard for judging attorney performance as that of reasonably effective assistance considering all the circumstances. Id. at 687. See also Trapnell v. United States, 725 F.2d 149, 151-52 (2nd Cir., 1983); Cuyler v. Sullivan, 446 U.S. 335 (1980).
“[T]he benchmark for judging any claim of ineffectiveness must be *75whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result,” a rather high bar to hurdle for one claiming ineffective assistance of counsel. Strickland, 466 U.S. at 686. Moreover, the Strickland court ruled that when a defendant forwards such a claim, the reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. That is, “judicial scrutiny of counsel’s performance must be highly deferential,” a requirement that would be further likely to thwart most defendants’ cries of ineffective assistance of counsel. Id.
Furthermore, in the instant case, the Public Defender’s argument of ineffective assistance of counsel is further attenuated since each defendant will in fact have his own attorney, albeit within the same office. This situation distinguishes it from cases cited in defendants’ motion such as Holloway v. Arkansas, 435 U.S. 475, in which a single assistant public defender represented the three defendants at trial.
We understand the constraints and limited resources facing the Public Defender’s Office. Although we empathize with this plight,3 the need for flexibility is simply a fact of life here in American Samoa. Quite obviously, there is no such thing as unlimited resources, and we must explore ways in which to work within the strictures of these constraints. At first glance, we note that, while perhaps inconvenient, many internal accommodations can easily be made by the Public Defender’s Office in order to remedy this problem, an initiative that would have altogether obviated the need for the court’s intervention. We are confident that, upon further reflection, the Public Defender’s Office could find even more ways to promote the interests of their clients. Having stated the obvious, we in turn examine each of the reasons forwarded by the Public Defender’s Office that a conflict exists.4
First: Weekly Office Meetings
We do not believe it is necessary to discuss these particular cases at the *76weekly meetings. While weekly discussion generally may be a good learning device, suspension of this practice in one instance would not be likely to wreak havoc with the entire workings of the Public Defender’s office — and would probably present a minimal inconvenience at the very worst.
Most law offices hold weekly meetings so that lawyers have the opportunity to apprise colleagues of their caseload. But in many situations, such as with cases involving sensitive issues or potential conflicts of interest, lawyers routinely refrain from the free discussion of information. The legal profession as a whole is very conscious of risk management and firms, when necessary, are adept at cordoning off its lawyers to limit their access to information by erecting an imaginary wall between its lawyers.5
Second: Current Approval Procedure regarding Plea Bargains
We cannot see how the Public Defender’s procedure of signing off on plea bargains necessarily constitutes a conflict of interest. First of all, Ms. Townsend has had regular experience in this area already, and we could easily see how the Public Defender would feel confident enough in her judgment to allow her to independently negotiate and finalize a plea offer. Alternatively, preapproved plea bargains may help minimize any potential conflicts. The Public Defender easily could hold a meeting with his associates to discuss what would constitute an acceptable plea offer in advance of an actual plea negotiation. The Attorney General’s Office may be- able to extend plea offers to all defendants at the same time and set the same deadline for then acceptance.
*77
Third: Shared Resources
We do not believe that sharing a secretary among three lawyers is necessarily problematic, or indeed worrisome enough to necessitate constitutional review. Elsewhere, secretaries in law offices often support more than one attorney, however this arrangement seldom produces a problem. Members of the support staff are expected to maintain professionalism, discretion, and confidentiality. Even if the Public Defender secretary grasps the legal nuances of cases she may handle, we see no reason for her to discuss the case of one lawyer with another lawyer. So too with the investigators. Support staff need only answer to the individual assigning the task.
Fourth: Inexperience of Ms. Folau in Criminal Law
Even though Ms. Folau is the newest member of the Public Defender’s office, we trust that she is a competent attorney. We understand that she has had prior exposure to criminal law, having served as a judicial law clerk, and, therefore, has experience in researching and arguing points of law. If it is necessary for her to consult with another attorney in this matter for more specialized direction, other members of the American Samoa Bar who have expertise in criminal law are available for her to consult outside of the Public Defender’s Office.6
Fifth: Conflicting Stories
Counsel- appear distraught that the defendants’ versions of events conflict. That a defendant’s story will differ with that of another co-defendant or change depending on the time of day is a reality of criminal defense. We are simply unable to grasp how this truism translates into a conflict of interest.
The court offers this listing of suggestions. With each suggestion given, other possibilities to minimize potential conflicts surely exist. While they may be inconvenient for counsel, they are not impossible to ferret out and implement. We, therefore, direct the Public Defender to explore additional ways in which to minimize any potential conflicts of interest, including working with the Attorney General’s office. We also note that Mr. Riley has already been informed of his duty to conduct himself in a *78manner that would not exacerbate the potential for a conflict.7
Furthermore, the above discussion assumes — rather generously — that a conflict indeed exists. However, we are in fact dealing with a potential conflict.8 In this order, we essentially have been indulging the Public Defender’s evanescent spectre of the sheer possibility of a conflict. Notwithstanding our willingness to entertain this argument, the fact still remains that a potential conflict of interest does not rise to the level of a constitutional violation. United States v. Lovano, 420 F.2d 769 (Second Circuit, 1970). An actual present conflict of interest must exist to trigger judicial review. United States v. Johnson, 569 F.2d 269 (Fifth Circuit, 1978). In this case, we see nothing here that would either presently compromise these attorneys’ ability to provide their clients with effective representation or would constitute a violation of the American Bar. Association Model Rules of Professional Responsibility, Rule 1.7, the general rule regarding conflicts of interest. If a conflict ever arises, we can cross that bridge when and if we get to it.
We have assessed the Public Defender’s arguments using an objective standard of reasonableness according to the facts of this specific situation and agree with the District Court’s findings regarding the representation of O’Brien and Amani. We do not believe a risk exists that these defendants will be deprived of their Sixth Amendment right to effective counsel.9 The reasons presented to us by the Public Defender’s Office with respect to these two defendants are wholly unconvincing, and certainly none compelling enough to justify the expenditure of funds for each of these defendants. A continuum exists between that which is clearly proscribed and that which, while not ideal, is acceptable.
In sum, inconvenience, while not pleasant, is a fact of life, especially in a small territory with financial limitations. It does not translate, however, into justification for the independent assignment of counsel. Moreover, the wise allocation of resources militates against this superfluous request.
*79
Ms. Folau’sRelationship to O’Brien
Ms.;Folau informs this court that she and O’Brien are closely related. Because Auau is pointing a finger at his co-defendant, O’Brien, Ms. Folau contends, that her ability to represent Auau is' compromised, constrained by her family loyalties. The zealous representation of her client would be directly adverse to the interests of her relative, O’Brien. As she promotes one defendant’s interests she damages those of the other. Given her relationship to O’Brien, her access to privileged and confidential information of her client, Auau, could easily be perceived to ■color her representation of him. We, therefore, find that the effective representation of Auau by Ms. Folau is not possible and a conflict of interest exists as defined under the American Samoa Bar Association Rules of Professional Conduct and the standard of effective counsel as' set forth in Strickland.
We feel it necessary, however, to note the role the Office of the Public Defender itself had in the orchestration of this conflict, a fact upon which we look with great disfavor. This conflict of interest was artificially created by defense counsel. The defendants were assigned by the District Court to the Public Defender’s Office one defendant to one attorney “however they liked.” The District Court in no way specified which attorney was to be assigned to which defendant. In fact, lest an iota of confusion exists, Judge Ward made it exceedingly clear that the way in which this allotment would be made was solely a prerogative of the Public Defender’s office stating: “As previously directed, each defendant shall be represented by a separate, single . . . attorney from the Office of the Public Defender.” Notice of Motion to be Relieved as Counsel, February 12, 1998. See also Reporter’s Transcript of Proceedings in the District Court, February 13, 1998.10 At another time, *80the court wrote: “The math is fairly simple — one client per one attorney of the Public Defender’s Office. The Court did not appoint one attorney to represent all three defendants.” District Court Order, February 10, 1998. (Note: emphasis was added by the District Court.) The conflict of interest, therefore, arose as a result of the mismanagement of the Public Defender’s Office — and could easily have been avoided.
We cannot say with certainty who is at fault for this artificially-created conflict — whether Ms. Folau failed to inform others in the office of the conflict of interest she has with Mr. O’Brien, whether Mr. Tautai knew about the conflict before the confidentiality of the cases was breached and would have been in the position to have stopped the conflict, or whether Ms. Townsend simply took the case at random without inquiring into the possibility of a conflict of interest.11 What we do know for' certain is that this “conflict” could easily have been short-circuited with the assignment of O’Brien’s case to Ms. Folau. Why that was not done can only remain a matter of speculation. However, the waste of resources that this mistake has caused is clearly fact.
The fund allocated the court in the current financial year for pro bono legal defense is limited and seriously depleted. The conflict and its ' attendant public expense are unnecessary. The Public Defender would do well to heed the realities of a very limited pro bono legal defense fund and employ better case management. Future mistakes entailing needless and additional public expenditure may well attract sanctions.
Conclusion
Counsel Townsend and Tautai’s motion to withdraw is denied.
Counsel Folau’s motion to withdraw is granted.
It is so ordered.
O’Brien was bound over following a preliminary examination before the District Court Judge, while his co-defendants were bound over after waiving their right to a preliminary examination.
The Strickland court forwarded a two-part test, both prongs of which must be met to show a constitutional violation. “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial ...” Strickland, 466 U.S. at 687.
The Public Defender’s Office does not have a monopoly on stretched resources.
In searching through the record, we find five reasons cited by the three attorneys for a potential conflict of interest as follows: current practice of weekly attorney meetings; shared support staff — secretary and investigators, and small shared office; current practice of the Public Defender’s signing off on plea negotiations; Ms. Folau’s inexperience in criminal law; and defendants’ conflicting versions of events. We will address each in turn.
This is an accommodation that is routinely implemented so that a firm may meet the needs of its clients, without jeopardizing the interests of other clients or harshly penalizing its own attorneys. See American Bar Association Model Rules of Professional Responsibility, Rule 1.9 (which regards the conduct of a lawyer who has formerly represented a client in a matter and whether that lawyer may represent another client in the same or substantially similar matter.)
A lawyer wishing to move from the public sector to the private sector would be “unhirable,” essentially frozen in place, if the law did not make an accommodation for him and the basket of potential conflicts of interest he likely brings with him. Therefore, for the policy reason of wanting to encourage attorneys to work in the public sector, the law allows an artificial or imaginary wall to be placed between her and her colleagues. The law freely allows this accommodation to minimize any conflicts of interest and uphold the integrity of the legal system and not unfairly penalize its lawyers.
Lawyers often effectively consult with their colleagues regarding point of laws without compromising their client’s confidentiality, for example. Lawyers do this all the time — speaking in terms of generalities, hypotheticals, past cases. We have confidence in our attorneys’ flexibility and adaptability.
See District Court Transcript of Proceedings, February 13, 1998, p. 3, |¶ 15-19.
The Public Defender himself probably best assessed the situation: “[the conflict] is something that has not yet taken place, but [is only] a potential conflict here.” District Court Transcript of Proceedings, February 13, 1998, p. 5, ¶¶ 13-14.
See Transcript of Proceedings, February 13, 1998, p. 4, ¶¶ 20-22, in which Judge Ward aptly encapsulates the standard for representation. “[A] defendant is not guaranteed the absolute perfection. A defendant is guaranteed effective counsel. That’s reasonably effective counsel. There’s no perfection. There’s no perfect trial. There’s a fair trial.”
Tautai: “. . . I don’t know which counsel I represent. The Court has ordered specifically — says I represent who?”
The District Court: “Counsel, it’s my understanding you represent O’Brien, I believe.”
Tautai: “Can we have a choice?”
Townsend: “Well, I just picked him.”
The Court: “Counsel, it’s my understanding that you were representing the defendant seated behind you.”
Tautai: “Who’s that? I don’t know which of the defendants I’m representing and that’s why I’m inquiring.”
The Court: “I did not specify it. When the Public Defender’s Office was appointed to represent these individuals, I directed counsels to take one defendant per one attorney however they may be allocated.”
*80District Court Reporter’s Transcript of Proceedings, February 13, 1998; 11:5-18.
During the hearing in support of counsel’s motion to withdraw, counsel Ms. Townsend stated that she (‘just picked [O’Brien].” District Court Reporter’s Transcript of Proceedings, February 13, 1998; 11:11 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486567/ | ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO SUPPRESS
On December 16, 1997, plaintiff American Samoa Government (“ASG”) charged defendant Mealofa Tauoa (“Tauoa”) with unlawful production and possession of the controlled substance of marijuana. On January 30, 1998, Tauoa moved to suppress evidence on the basis that such evidence was the product of an unreasonable search and seizure and an unlawful arrest. The motion was denied. Tauoa now moves for reconsideration, stating that the court incorrectly characterized the area where the evidence was found as an open field and not curtilage. Tauoa does not contest the court’s decision as to the suppression of evidence in conjunction with the legality of his arrest.
Discussion
Individuals in American Samoa are guaranteed the right to be secure in their houses against unreasonable searches and seizures.
Revised Constitution of American Samoa, Article I, § 5. This right extends to areas so closely connected with the use of the home such that they give rise to the same expectation of privacy. Thesp areas are defined as curtilage and fall within the definition of houses in Article I, § 5. Open fields, on the other hand, do not give rise to this expectation of privacy. They therefore are not curtilage and are not afforded the special protections of Article I, § 5.
In denying the motion to suppress, we looked to the four part test of United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139-40, 94 L.Ed.2d 326, 334-35 (1987), to determine the extent of curtilage. More *89importantly, however, we also looked to the overriding general principle of whether government intrusion into the area in question infringes upon-the personal and societal standards of privacy protected by. Article I, § 5.' We found that the clearing where the evidence was seized is not the type of area so closely associated with the ‘intimate activity of a man’s home and the privacies of life,’ Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984), quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886), that it gives rise to a personal expectation of privacy. At page. 9 of the order we stated:
Considering all of these factors, the land at issue is not curtilage. Thus, the clearing does not fall within the definition of “houses” in Article 1, § 5 of the Revised Constitution of American Samoa, and is not afforded the special protections of that section. The law enforcement officers’ intrusion into the clearing and the resulting seizure of evidence in the clearing did not violate Tauoa’s constitutional rights.
Tauoa claims that the court erroneously applied the four part test enumerated in Dunn because we did not apply the test with unique Samoan circumstances and customs in mind. He states that we overlooked High Chief Muagututi’s testimony of this area as the tuamaota, and instead used the description given by law enforcement officers. He reiterates that the distance from the clearing to the house is 180-200 feet and emphasizes that the house is a high chiefs residence. The court did give heed to High Chief Muagututi’s testimony when applying the Dunn four part test. High Chief Muagututi, for example, gave a thorough description of the use made of the land and the type of crops cultivated there and in surrounding areas. We must emphasize, however, that no singular element of the Dunn test is controlling. All four parts are to be considered together, and, more importantly, under the umbrella of both the defendant’s subjective and society’s objective expectation of privacy of the area in question. A single factor such as the distance from the clearing to the house, therefore, is not a determinative element.
Tauoa also contends that we failed to account for a uniquely Samoan expectation of privacy of the land in question. Although Tauoa states that definition of the land as the tuamaota means that it is accorded privacy, Tauoa does not indicate why this is so. Tauoa refers to the “importance,” “value,” and “respect,” placed on the tuamaota by Samoan society. The significance of communal land and due respect for a matai and his residence are important values in the Samoan culture. However, Tauoa’s reference to these matters misses the mark'. The intimate activity of one’s home, not the protection of property rights, is the gauge of an *90expectation of privacy. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, 583 (1967). Protection is afforded to people, not places. Id. at 356, 88 S.Ct. at 514, 19 L.Ed.2d at 582. It was plain from the evidence presented at the hearing that the nature of the clearing, whether or not it is within the tuamaota, is not the same as that of Tauoa’s home. The location, character, use, accessibility, and general nature of the clearing clearly do not give rise to such an expectation of privacy for Tauoa as to bring it within in the definition of “houses” under Article I, § 5.
Finally, Tauoa argues that our order denying the motion to suppress makes Article I, § 5 protection unavailable to communal land in Samoa. This argument is incorrect. We found that the clearing-is not curtilage and thus does not fit within the definition of “houses” under the Revised Constitution of American Samoa. This finding does not rest at all on characterization of this land as communal property. Therefore, nothing in our order would preclude Article I, § 5 protection in relation to communal land for which an individual had a reasonable expectation of privacy.
Ordey
The clearing where evidence was seized is correctly characterized as an “open field” and not “curtilage.” The clearing therefore does not fit under the definition of “houses” in Article I, § 5 of the Revised Constitution- of American Samoa. The motion for reconsideration is denied and the evidence seized by law enforcement officers from the clearing will not be suppressed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486568/ | ORDER DENYING MOTION TO AMEND SENTENCE
Introduction
Nikolao Alo (“Alo”) pled guilty to a charge of Unlawful Distribution or Delivery of a Controlled Substance (methamphetamine). Alo was sentenced to a 20-year term of imprisonment. Execution of sentence was suspended and Alo was placed on probation on certain conditions which included an 80-month term of detention at the Correctional Facility. Alo *92filed a motion to “correct his sentence.” He asserts that the court exceeded the scope of its authority in effectively reducing the period of his confinement by only 160 months. Instead, he argues, that his sentence should have been reduced to a maximum five-year term if the court were to place conditions on his sentence at all. That is, Alo avers that A.S.C.A. § 46.2204(a)(1) somehow limits the court's authority in the way in which it may modify a defendant's sentence.
Discussion
Essentially, defendant's argument hinges on an analysis of statutory construction and interpretation. Alo claims that a tension arises between the statutory construction of the in pan materia statutes of A.S.C.A. §§ 46.2204(a)(1) and 46.2206(2) and, consequently, that this tension nullifies the court's ability to issue to him a term of confinement of over, five years.
In construing statutes, the court starts with the assumption that the legislature intended to enact an effective law. 73 AM. Jur. 2D, Statutes, §249 at 422 (1974).
An interpretation should, if possible, be avoided, under which the statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory.
Id. Statutory interpretation requires that two statutes be read harmoniously if it is possible. U.S. v. Borden Co., 308 U.S. 188 (1939). In reading these statutes and deciding whether they are non-contradictory, the court must focus on their plain meaning. United States v. Turkette, 452 U.S. 576 (1981) (holding that absent contrary legislative intention, a statute should be interpreted according to its plain language).
We look to whether these two statutory provisions may be read together in a non-contradictory manner.
A.S.C.A. § 46.2204(a)(1) reads in relevant part:
... the terms during which probation shall remain conditional and be subject to revocation are: a term of years not less than 1 year and not to exceed 5 years for a felony.
A.S.C.A. § 46.2204(a)(1) (emphasis added).
The second statute, A.S.C.A. §46.2206(2), reads in relevant part:
*93. . . when probation is granted, the court. . . may require as a condition of probation that the defendant submit to a period of detention in an appropriate institution at whatever time or intervals within the period of probation, consecutive or nonconsecutive, the court shall designate.
In felony cases, the period of detention . . . may not exceed one third of the maximum prescribed term of imprisonment for the crime of which the defendant has been convicted ...
A.S.C.A. § 46.2206(2).
If we read these statutes side by side — looking to the plain meaning of the words — we find that they are not contradictory. Defendant is mistaken in his interpretation of the statutes and the tension he perceives, between them. Although these statutes are in pari materia, they speak to different specific issues and neither governs the court's ability to modify a defendant's probationary sentence. While, neither statute refers specifically to the maximum length of probation that the court is authorized to order, the latter statute does contemplate detention periods as a condition of probation in excess of five years. Indeed, where the maximum prescribed term is life imprisonment, A.S.C.A. § 46.2206(2) authorizes the sentencing court to impose up to a 15-year period of detention as a condition of probation. This enactment would be rendered nugatory if defendant's reading of A.S.C.A. § 46.2204(a)(1) — that probationary periods are limited to five years — prevailed. The five-year maximum under A.S.C.A. § 46.2204(a)(1) refers merely to the length of time during which the probationary period is subject to revocation (i.e. is “conditional”). The key words in this statute are “terms during which probation shall remain conditional.” A.S.C.A. § 46.2204(a)(1), therefore, does not limit the length of probation that may be ordered, but rather governs the length of time the defendant is in peril of having his probation revoked.
A.S.C.A. § 46.2206(2), in comparison, refers to the period of time a defendant may be incarcerated as a condition of his probation. Again, A.S.C.A. § 46.2206(2) does not limit the length of probation that the court may order. Rather, it limits the defendant's length of incarceration to a term that may be fulfilled within the defendant's period of probation and gives the court authority to incarcerate the defendant during his entire term of probation, if necessary. The key concept in this statute is “period of detention [as a] condition of probation.”
This reading allows A.S.C.A. §§ 46.2204(a)(1) and 46.2206(2) to stand on their own as non-contradictory, harmonious, and therefore valid, statutes.
*94Conclusion and Order
Defendant's motion is, therefore, denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486569/ | ORDER DENYING DEFENDANTS' MOTION TO SUPPRESS
Defendants Talofa Sefo (“Sefo”) and Kelemete Punefu (“Punefu”) are charged with unlawful possession of the controlled substance of marijuana, in violation of A.S.C.A. §§ 13.1022 and 13.1006. Sefo and Punefu both entered pleas of not guilty on February 4, 1998. On March 20, 1998, the court granted American Samoa Government's (“ASG”) motion to consolidate the cases for trial.
On March 17, 1998, Sefo and Punefu moved to suppress evidence seized by law enforcement officers on the basis that such evidence was discovered as the result of an illegal detention or arrest of the defendants. ASG contends that the evidence is admissible because the defendants voluntarily accompanied the law enforcement officers to the police station and consented to the search or, alternatively, that the law enforcement officers had probable cause to believe that defendants had committed a crime in their presence and thus were entitled to search defendants and containers within their immediate control. Sefo and Punefu also seek to suppress written statements on grounds that such statements were not voluntarily, knowingly and intelligently made. ASG claims that the statements were taken when the defendants were lawfully detained, and were preceded by Miranda warnings and valid waivers thereof.
The motion came for hearing on April 9, continued on April 14, and concluded on April 20, 1998.
*96Background
In the afternoon of January 23, 1998, Special Agent Va'a Sunia (“Agent Sunia”) and Special Agent Moleli Tavai (“Agent Tavai”) went to the Fagatogo marketplace for the purpose of locating Sefo. They intended to question Sefo about a robbery of poker machines. They arrived at the marketplace about 3:30 p.m. and spotted Sefo near the back of the Tedi of Samoa building. He was accompanied by two other individuals, Punefu and his brother A'asa Punefu (“A'asa”).
The officers left their vehicle and watched the three individuals. They observed a fourth individual, known as Soli, approach the three and begin talking with them. Sefo, Punefu, and Soli began walking toward the Iseula longboat shed. Punefu was wearing a backpack, was walking slightly behind the other two, while looking up and down the area. Sefo, and Soli walked toward the public toilets across the street while Punefu remained on the street comer with his back to the other two and continuing to scan the area.
Agent Sunia told Agent Tavai that he suspected they were witnessing a marijuana purchase. Agent Tavai left to get the police vehicle and Agent Sunia moved his position so that he could continue to watch the three individuals. He observed Punefu on the street comer, continuing to keep a lookout of the area. He saw Soli hand money to Sefo. Sefo then pulled what appeared to be a ziplock plastic bag from the crotch area of his lavalava and handed it to Soli. Agent Sunia saw Soli and Sefo exchange a few words, then saw Soli hand the plastic bag back to Sefo, who replaced it in the crotch area of his lavalava. Soli left. Sefo and Punefu then walked towards each other and Agent Sunia approached them.
Agent Sunia asked Sefo and Punefu how they were doing and what they were doing there. They indicated they were waiting for the Iseula crew practice. Agent Sunia found this to be an odd response since Agent Sunia was a member of the crew team and knew that the defendants were not. He asked Sefo and Punefu if they would come to the police station so that he could ask them some questions about a robbery. They agreed. By that time, Agent Tavai had brought the police vehicle around, and the defendants got inside. Before getting in the vehicle, Punefu called to A'asa. to take his backpack, but A'asa declined.
Once they were at the police station in Fagatogo, the officers took the defendants to an office. The defendants were advised that they were free to leave at any time. Agent Sunia asked them about the robbery and both Sefo and Punefu said that they knew nothing. Agent Sunia then asked Punefu if he had any drags and if he had been trying to sell drags in the marketplace. Punefu answered no to both questions. Agent Sunia then *97asked if he could search Punefu's backpack. Punefu said -yes. Agent Simia asked Punefu if he would open the bag, but Punefu told Agent Sunia to do it. Agent Sunia found two twenty dollar bills and, inside a Christmas stocking, eleven plastic bags of what appeared to be marijuana.
Agent Sunia then turned to Sefo and asked if he had any drugs on his person. Sefo said no. Agent Sunia asked if he had any drugs in his lavalava. Sefo again said no, but pulled out a plastic bag of what appeared to be marijuana. He then took off his lavalava and pulled out from either his shorts or his lavalava three more plastic bags of what appeared to be marijuana.
Agent Sunia conducted a field test of the substance in the plastic bags and confirmed that it was marijuana. The officers then advised Sefo and. Punefu of their constitutional rights. The defendants each initialed and signed a Miranda form written in Samoan and signed a waiver of these rights. They were then formally placed under arrest. The defendants gave verbal statements which were documented in the officers' investigative report.
Sefo and Punefu were transferred to the west police substation. At the substation they both gave written statements. Both Sefo and Punefu dictated their statements to Agent Sunia. Agent Sunia recorded the statements, in Samoan, on a police form used for such purposes. When each statement was completed, Agent Sunia read the statement back to the defendant and each defendant signed his statement.
Discussion
A. Suppression of Marijuana and Other Evidence
Article I, § 5 of the Revised Constitution of American Samoa guarantees the right of individuals “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Article I, § 5 also requires that warrants for searches or seizures be issued only upon a showing of probable cause. These provisions mirror the Fourth Amendment of the United States Constitution. The. Revised Constitution of American Samoa also provides that “[e]vidence obtained in violation of this section shall not be admitted in any court.”
Under the constitution, therefore, the government generally must obtain a warrant before seizing a person. If the government makes a seizure, or arrest, without a warrant, the arrest must either come under an established exception to the warrant requirement or be based on probable cause. See American Samoa Govt v. Luki, 12 A.S.R.2d 82, 83 (Trial *98Div. 1992) (“Generally, an arrest whether with or without a warrant must be supported by probable cause.”); Carroll v. United States, 267 U.S. 132, 155-56 (1925) (probable cause is the “reasonableness” standard for warrantless searches and seizures). A.S.C.A. § 46.0805 provides that:
A police officer is authorized, and it is his duty, to make an arrest without a warrant in the following cases:
(1) when a felony is committed in his presence;...
(3) of persons found near the scene of a felony and suspected of committing it, where such suspicion is based on reasonable grounds and the arrest follows the crime by a short time;...
Sefo and Punefii claim that when they accompanied Agent Sunia and Agent Tavai to the police station in Fagatogo, they were subject to an illegal arrest, and that the search of their persons and effects which, produced the marijuana and other evidence at issue was therefore a violation of their constitutional rights. They claim that the arrest was illegal because it was based neither on probable cause nor the requirements of A.S.C.A. § 46.0805. They also claim that they did not voluntarily accompany Agent Sunia and Agent Tavai to the police station. We do not need to reach the consent issue because we find that both probable cause and the requirements of A.S.C.A. § 46.0805 were met.
Probable cause is more than bare suspicion and less than absolute certainty. See Mason v. Godinez, 47 F.3d 852, 855 (7th Cir.), cert. denied, 116 S. Ct. 125(1995).
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusion about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
American Samoa Govt v. Napoleone Loia, 16 A.S.R.2d 1, 4 (Trial Div. 1990), quoting Texas v. Brown, 460 U.S. 730, 742 (1983); Illinois v. Gates, 462 U.S. 213, 231-32 (1983); United States v. Cortez, 449 U.S. 411, 418 (1981). The existence of probable cause is determined from the totality of the circumstances. Gates, 462 U.S. at 230-32.
Agent Sunia witnessed a man named Soli as he approached Sefo and Punefii. He witnessed the three individuals walking down the street, with Punefii lingering behind the other two. He watched Soli and Sefo walk *99toward the public bathroom while Punefii stood on the street comer and looked up and down the area. He saw Soli hand money to Sefo and he saw Sefo reach into his lavalava, pull out a plastic baggie and hand it to Soli. He saw Soli hand the plastic baggie back to Sefo. And, he observed Sefo and Punefii walk towards each other again. Agent Sunia testified that his observation of these actions led him to believe Sefo and Punefii were engaged in selling drags.
Probable cause can arise from witnessing the apparent purchase of drags, see, e.g., United States v. Taylor, 997 F.2d 1551, 1553-54 (warrantless search where police discovered cocaine in defendant's pant pocket valid because probable cause existed where police observed defendant's apparent purchase of drags); United States v. White, 655 F.2d 1302, 1303-04 (D.C.Cir.1981) (per curiam) (police had probable cause after observing suspect in a high narcotics area exchange currency for small object), especially when the law enforcement officer witnessing the event has specialized training in narcotics surveillance and apprehension. See, Napoleone Loia, 16 A.S.R.2d at 5-6; Florida v. Rodriguez, 469 U.S. 1, 6 (1984). Agent Sunia has considerable training in narcotics surveillance and apprehension, and worked as an undercover agent for a number of years in American Samoa, masquerading as a member of the drag subculture. We find that Agent Sunia had probable cause to arrest defendants without a warrant. In addition, the requirements of A.S.C.A. § 46.0805 were met because the possession of marijuana, or other controlled substances, is a felony. A.S.C.A. §§ 13.1006, 13.1022.
The fact that Agent Simia or Agent Tavai did not arrest defendants on the street near the Iseula boat shed does not vitiate the existence of probable cause. Agent Sunia testified that he chose to obtain the defendants' consent to go to the station because there were other people in the marketplace area, including associates of the defendants, and because A'asa had once before tried to assault him with a rock. Sunia chose tp use questioning Sefo and Punefii about the robbery as the means of obtaining this consent. Sefo and Punefii claim that they did not consent, but were instead forced into the police vehicle. We do not find this testimony particularly credible, but even if they did not give consent, probable cause to arrest still existed. Because Agent Sunia had probable cause to arrest, the issue of whether, or why, Sefo and Punefii consented to go to the station is irrelevant. See United States v. Delgado, 4 F.3d 780, 788 (9th Cir. 1993).
When law enforcement officials have made a valid arrest, they may make a full search of both the suspect and the area within his immediate control for weapons and evidence. Taylor, 997 F.2d at 1553 (D.C.Cir.1993) (“If the police have probable cause for arrest, an otherwise lawful warrantless arrest and a search of the arrestee and the area within his *100immediate control does not violate the Fourth Amendment.”.). Sefo and Pimefu claim that their consent to search was not voluntary because they were being held illegally and because they were not told that they were free to leave. Sefo and Punefu's detention, if not voluntary, was based on probable cause, and thus was not illegal. Additionally, Agent Sunia testified that he did tell the defendants that they were free to leave at any time. The testimony given at the hearing indicates that Sefo and Punefu consented to a search. However, because the officers were entitled to search both defendants incident to a valid arrest, the issue of whether, or why, Pimefu consented to a search of his backpack and whether, or why, Sefo consented to a search of his lavalava and shorts pockets is irrelevant.
It also is not relevant that the search preceded the formal arrest. A search can be conducted immediately prior to arrest if the police had probable cause to arrest the suspect before conducting the search. “Where the formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest or vice-versa.” Rawlings v. Kentucky, 448 U.S. 113, 111, 100 S.Ct. 2556, 2564 (1980).
In conclusion, then, we find that although Sunia and Tavai did not arrest Sefo and Punefu in the marketplace, they had probable cause to do so. The search of their persons and effects, whether or not done with Sefo's and Punefu's consent, was a search incident to a valid arrest and therefore did not violate their constitutional rights. The marijuana, money, Christmas stocking, and other evidence produced in the search will not be suppressed.
B. Suppression of Written Statements
Defendants also seek to suppress written statements on grounds that the statements were not written by themselves and that they were ordered to sign the statements. Defendants claim that the statements were thus not voluntary and that they did not voluntarily waive their rights against self-incrimination.
Any confession or statements given to the police must comply with the standard as established in Miranda v. Arizona, 384 U.S. 436, 444 (1966), with certain elements that have been modified or clarified over the years. “In essence, if a suspect 'voluntarily, knowingly, and intelligently' waives his right to remain silent and to an attorney, a statement made by a suspect who is in custody is admissible.” American Samoa Govt v. Gatoloai, 23 A.S.R.2d 65 (Trial Div. 1992), citing Miranda, 384 U.S. at 444. The relinquishment of rights must be voluntary in the sense of being a free and deliberate choice, and knowing *101and intelligent in the sense of having an awareness of the nature of the right and the consequences of waiving it. Moran v. Burbine, 475 U.S. 412, 421 (1986). “Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Id., citing Fare v. Michael C. 442 U.S. 707, 725 (1979). See also Colorado v. Spring, 479 U.S. 564, 573 (1987).
Sefo and Punefu both made written statements regarding their activities in the marketplace earlier that day. They made these statements about two hours after they had been formally, and validly, arrested. Sunia verbally advised them of their constitutional rights. Sefo and Punefu both signed a Miranda form, written in Samoan, which listed each of their rights, and wrote their initials next to each enumerated right. On the same forms, they signed a waiver of these rights. All of these actions, took place prior to the time they made their statements. We find that the totality of the circumstances surrounding these actions show that Sefo and Punefu made an uncoerced choice and had the requisite level of comprehension of the choice they were making.
Sefo and Punefu made their statements at the west police substation. They had been transferred there from the Fagatogo police station after their arrest. Both Sefo and Punefu made their statements by dictating to Sunia, who recorded their words on a police form typically used for that purpose. At the beginning of each written statement is a sentence indicating that the statement was recorded by the law enforcement officer, not the defendants themselves. After each statement was recorded, Sunia read the statement back to Sefo and Punefu so that they would know what had been recorded and they could make any needed changes. Both Sefo and Punefu signed their respective written statements.
Nothing in these actions indicates to us that the defendants' statements were anything less than voluntary. It is not unusual for the police to record a statement for defendants, especially when they indicate that although willing to make a statement, they are either not able or are not willing to record it themselves.
We find, therefore that the written statements were not made in violation of Sefo's or Punefu's constitutional rights. The statements will not be suppressed.
Conclusion and Order
On the foregoing, defendants' motion to suppress is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486570/ | ORDER DENYING MOTION FOR RECONSIDERATION
Introduction
Following a shooting incident in Pago Pago implicating the defendant Manaia Siva Pearson (“Pearson”), the police seized an Ml Carbine Rifle obtained from the home of Mrs. Evalani Viena (“Viena”), Pearson's aunt. Pearson filed a number of motions to suppress, inter alia, the rifle. With regard to the rifle, Pearson argued that the police search was in violation, of Article 1, Section 5, of the Revised Constitution of American Samoa (the Territory’s counterpart to the Fourth Amendment of the United States Constitution).
We denied the motion, concluding that the evidence failed to show that police action had violated Pearson's constitutional rights. The evidence presented at the suppression hearing showed that:
Pearson did not stay at [Evalani’s] residence on any regular or consistent basis. [Evalani] had not known that Pearson had been on her premises, much less that he had slept there on the night in question. Instead . . . Pearson often stays at [Albert Pearson’s] house, coming over there “whenever he likes.” Moreover, since Pearson apparently dropped off the sweater and Ml Carbine in one of the rooms and then went to sleep in the lobby, Pearson himself acted as if he subjectively knew that he did not have permission to stay inside Viena's home.
American Samoa Govt v. Pearson, 2 A.S.R.3d 63, 68 (Trial Div. 1998). From the evidence the court concluded that:
All of these facts, singularly or combined, cast great doubt that Pearson held a possessory interest in the room where the evidence was found. Furthermore, Pearson's decision to sleep in an area open to many people, including at a minimum the guests of the motel and their guests,- further leads us to believe that Pearson did not have a subjective and reasonable “expectation of privacy” as required under Katz for his Fourth Amendment protections to attach.
Id. For Fourth Amendment protections to apply, Pearson must have *104either a possessory interest or privacy right in the area searched. Katz v. United States, 389 U.S. 347, 351; United States v. Jacobsen, 466 U.S. 109, 113 (1984). Even though police may have violated Viena's constitutional rights, Pearson's rights were not trampled. Alderman v. United States, 394 U.S. 165, 174, holds that a Fourth Amendment ri^ht is a “personal right” which may not be vicariously asserted by another.1
Discussion
Pearson's newly propounded argument may have been “on point,” even compelling had it been proven. If Pearson had a subjective expectation of privacy in the room searched at the residence of Evalani Viena (“Viena”), the onus was on him to forward his own cause. He did not. We agree with the government that the defendant cannot keep coming back with different arguments when one fails. The court is not, like a department store in which you spend as long as you want trying on different outfits. If one argument does not quite fit, simply come back through the revolving door to try another one. The rules of criminal procedure allow “one bite at the apple” except under certain, special circumstances. Such circumstances do not exist here.
There is another flawed aspect to the Pearson's motion. Although styled as one for “reconsideration,” the motion does not seek reconsideration. Rather, it seeks a de novo hearing to allow Pearson to furnish a whole new evidentiary picture to “rebut” findings of the court that are substantially based on the record. This is very evident with the proffered affidavits by Pearson and Viena.
A motion for new trial/reconsideration is designed to give the trial court the opportunity to correct any errors and make appropriate changes, if necessary, in order to obviate unnecessary appeals. See e.g., American Samoa Govt v. Falefatu, 11 A.S.R.2d 114 (Trial Div. 1990); Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). Pearson's motion, however, seeks to go beyond the bounds of a motion for a new trial/reconsideration, essentially seeking, with the benefit of hindsight, another bite at the judicial apple.
*105Even assuming arguendo that a rehearing is appropriate, Pearson still fails to present any strong evidence to support his newly-presented claim. He now argues that he was a “houseguest” of Viena and cites Olson v. Minnesota, 495 U.S. 91 (1990), in support of this contention. As a houseguest, Pearson would have “a reasonable expectation of privacy,” the standard used in Katz, 389 U.S. at 351, to judge whether Fourth Amendment protections apply.
The testimony and evidence before us, however, indicate that Pearson was not staying at Viena's residence as a houseguest. Viena testified at the suppression hearing that she did not even know Pearson was staying at her residence or anywhere on her property.2 We weighed the testimony of Viena, the owner of the property and one in a better position to evaluate the concept of possessory interest, against that of Pearson's, 17-year-old peer 3 and found Viena's testimony to be more persuasive. It was also more consistent with the rest of the evidence when looked at as a whole. Defendant's cousin, Albert Pearson, testified that defendant often sleeps at his house and is allowed to come over “whenever he likes.” If Pearson was living at the home of Viena, we think it reasonable to conclude that his aunt might at least know that fact or that Pearson would not need an open invitation to stay at another relative's home. The Supreme Court in Olson considers an overnight guest to be one who is in the owner's home with the explicit knowledge and permission of the host. Olson, 495 U.S. at 98-99. Even if Pearson was legitimately on Viena's premises, this is not enough to demonstrate a legitimate expectation of privacy. See Olson, 495 U.S. at 97 (citing Rakas, 439 U.S. at 142-48).
As discussed in our earlier order, Pearson's own actions and testimony also support our conclusion. Pearson did not come into the house until the early hours of the morning, well past the time everyone would be in bed. He evidently dropped the Ml Carbine and sweater off in the room and then went down to the public motel lobby to sleep. Most “houseguests” do not sneak into their host's home to drop contraband off and then tip-toe out again to sleep in another building. It is also *106reasonable to infer from the fact that Pearson dropped off incriminating evidence in Viena’s house that he himself thought of it as a former, not current, residence and thus a place the police might not search. Moreover, Pearson’s decision to sleep in a public place, leads us to believe that Pearson was not consciously seeking to invoke Fourth Amendment privacy protections. Last, we cannot help but notice that Pearson was not discovered by police in a house — the place where one is most likely to find a houseguest.
But even if we reconsider Pearson’s claim, taking into account the new facts contained in the affidavits of Viena and Pearson, we still arrive at the same conclusion. The new evidence proposed is intrinsically fraught with credibility problems. We cannot help but glance askance at the striking changes in Pearson's story. But even with the nebulous assertions of ownership and privacy interests in defendant's latest motion, • we cannot cull sufficient justification to reverse our decision. Not only are these assertions vague, conflicting, and tainted with questions of unreliability, but they do not indicate the proprietary interest necessary to trigger Pearson's Fourth Amendment protections.
In his motion for reconsideration, Pearson cites an impressive array of cases in which the defendant was found to have a reasonable expectation of privacy4 and gives us a detailed discussion of the facts used by these courts to draw this conclusion. Unfortunately, Pearson provides us with scant additional support regarding his case, and the facts which he does provide contradict earlier testimony, thus, negativing the persuasiveness of his claims.5 Not enough information is given to the court to decide in favor of Pearson, even if we take into account the 12 factors used by the Olson court, 495 U.S. at 97, n.4.6
*107That defendant's father is a joint owner of Viena’s home is not dispositive of Pearson himself having any property interest or expectation of privacy in the room searched. In United States v. Davis, 932 F.2d 752, 757 (1991), it was the defendant himself who paid a portion of the rental payments, not his father. The defendant took affirmative steps to ensure his privacy by the taking the precaution of storing items in a locked safe.7
Viena apparently seeks to neutralize this contradistinction by stating in her affidavit that her home is a “family home.” She argues that “all of the members of the family can . . . reasonably expect that their privacy will be respected and that items left in the home will be secure from outsiders.” But this court takes issue with the credibility of this characterization since it differs so starkly from Viena's original. testimony. And even with it, Pearson has failed to demonstrate a legitimate expectation of privacy in Viena's house, as an “overnight guest” or otherwise.8
*108The standard used in Katz is one in which an individual has "an actual, subjective expectation of privacy." But, this expectation must be one which "society is prepared to recognize as reasonable." Katz, 389 U.S. at 351. We do not believe that society, including Samoan society, would be prepared to recognize such a broad, unfettered expectation of privacy-that is, a personal privacy right in any and all residences owned by one's alga. It is reasonable to infer from Pearson's statement that even now that he does not sleep there often, if at all. Vieiia's prior testimony on the witness stand was that Pearson was not staying at her home. See supra note 2. Viena's recent affidavit reads that he sleeps there about "twice a month."9 This contention that the Samoan communal property arrangement should give those with Samoan blood an ostensibly automatic reasonable expectation of privacy in all Samoan homes-whether or not they actually stay there on a regular, frequent, and• consistent basis-would completely reconstruct the essence and meaning of the Fourth Amendment.
Notwithstanding consideration of Pearson's newly presented arguments and facts, a sufficient basis to warrant a reversal of our original order does not exist, and our finding that Pearson's Fourth Amendment rights were not violated stands. We already carefully examined whether *109Pearson's rights were violated and determined that they were not; we see no reason to reverse our ruling.
Conclusion and Order
Defendant's motion for reconsideration is, therefore, denied.
It is so ordered.
The Supreme Court affirmed this position in Rakas v. Illinois, 439 U.S. 128 (1978), stating that “it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections.” Id. (emphasis added); and this court reiterated these doctrines in American Samoa Gov’t v. Atafua, 1 A.S.R.3d 174, 175 (Trial Div. 1997), and American Samoa Gov’t v. Dunham, 1 A.S.R.3d 176, 177 (Trial Div. 1997), by holding that Article I, § 5 applies only to defendants who have a “legitimate expectation of privacy” or a “property or possessory interest.” Id.
The prosecutor, Frederick O'Brien, asked Viena, “Manaia [Pearson] was staying at your place [around the time of the arrest], isn’t that correct?” Viena responded, “Manaia was not staying at my place at that time. Mr. O’Brien then asked, “He didn't spend the night there?” Viena replied, “No, in fact I didn't even know Manaia was there.”
We can only guess that Katherine Viena told police officers that the room in which they found incriminating evidence belonged to Pearson because he once lived in it, information that was not given to this court the first time around. His past ownership, however, does not translate into present property rights.
See United States v. Robertson, 660 F.2d 853 (9th Cir. 1978); Minnesota v. Olson, 495 U.S. 91 (1990); United States v. Bulman, 667 F.2d 1374 (11th Cir. 1982); Jones (no citation given); United States v. Harwood, 470 F.2d 322 (10th Cir. 1972); United States v. Davis, 932 F.2d 752 (9th Cir. 1991).
The additional information is contained in two affidavits recently submitted by Viena and Pearson, dated January 12 and 13, 1998 respectively. Pearson avers that “[his] father is a joint owner of the property searched. The Samoan communal ownership of land . . . makes it even more likely that [he] could reasonably anticipate that this area would be private.”
The 12 factors used in Olson are:
(1) the visitor has some property rights in the dwelling;
(2) the visitor is related by blood or marriage to the owner or lessor of the dwelling;
(3) the visitor receives mail at the dwelling or has his name on *107the door;
(4) the visitor has a key to the dwelling;
(5) the visitor maintains a regular or continuous presence in the dwelling, especially sleeping there regularly;
(6) the visitor contributes to the upkeep of the dwelling, either monetarily or otherwise;
(7) the visitor has been present at the dwelling for a substantial length of time prior to the arrest;
(8) the visitor stores his clothes or other possessions in the dwelling;
(9) the visitor has been granted by the owner exclusive use of a particular area of the dwelling;
(10) the visitor has the right to exclude other persons from the dwelling;
(11) the visitor is allowed to remain in the dwelling when the owner is absent; and
(12) the visitor has taken precautions to develop and maintain his privacy in the dwelling.
In examining the facts of the Davis case, the Supreme Court found it “significant that Sonnie Davis paid at least a portion of the rent for Andrews' apartment. Having assumed an ongoing obligation to pay the rent, Sonnie Davis exercised partial or joint control over the premises.” United States v. Davis, 932 F.2d 752, 757 (1991). In contrast, here, Pearson did not exercise control over Viena's property.
Ms. Townsend asked Viena, “Could you describe this residence. . .?” Viena replied, “I live there where my business is at. Ms. Townsend asked, “O.K. Could you describe it?” Viena replied, “That's my home.”
*108Previously, Viena had testified that "Manaia was not staying at my
Viena's affidavit and Pearson's affidavit again differ on this point. Viena's reads that defendant "stays" in the room "at least twice a month." Pearson's states that he stays there "at least once a week." We do not know what either of them means by the word "stay." Does he sleep over; visit with his aunt for a little while during the day every month; drop by to say hello and then leave, walking through this room on the way out; or briefly visit the room when he needs to find a stored item? We can only guess what "at least twice a month" means. Two times, three times, 26 times? | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486571/ | *110ORDER DENYING MOTION TO SUPPRESS EVIDENCE
Background '
Plaintiff American Samoa Government (“ASG”) is charging defendant Lei Ve'ave'a (“Ve'ave'a”) in this action with one count of possession of the' controlled substance methamphétamine and one count of possession of the controlled substánce' mafijüana:'
On July 1, 1998, Ve'ave'a moved to suppress evidence seized from a 1996 Nissan pickup (“the pickup”) on May 12, 1998. The evidence consisted of marijuana, 15 packages of méthamphetamine, a scale of the *111type used for weighing methamphetamine, additional- packaging materials, and identification in Ve'ave'a’s name. The hearing on the motion was held on July 27, 1998.
This case arose from a complaint of domestic abuse against Ve'ave'a. The alleged victims were his wife Monica Ve'ave'a (“Monica”) and his minor son. Monica and several of her children moved to a shelter operated by the Division of Social Services (“DSS”) of ASG’s Department of Human Resources after this alleged abuse incident. Special Agent Moleli Tavai (“Tavai”) and Det. Sgt. Solova'a Mageo (“Mageo”) of ASG’s Department of Public Safety (“BPS”) investigated the case.
On May 6, 1998, at DPS’ central police station in Fagatogo, Monica asked Tavai for help in recovering the pickup from Ve'ave'a. She. asserted that Ve'ave'a took the pickup without her consent. She brought a copy of the vehicle registration, which showed that Monica was the sole registered owner of the pickup. Monica returned on May 8 to again request Tavai’s help in securing return of the pickup.1
On May 12, 1998, Tavai and Mageo obtained a warrant from the District Court to arrest Ve'ave'a on one count of felony assault and two counts of misdemeanor assault. Tavai and Mageo were informed that Ve'ave'a was scheduled to be at the DSS office in Utulei that afternoon and arrived there at about 3:45 p.m. to execute the warrant. The pickup was parked outside the DSS, occupied in the passenger seat by Carlos Dutra (“Dutra”), a friend of both Ve'ave'a and Monica. Shortly thereafter, Ve'ave'a exited the building and was arrested. The arrest was approximately 36 to 40 feet from the pickup.
Ve'ave'a asked Tavai to let Dutra take the pickup. However, with Ve'ave'a in custody, Tavai decided to impound the pickup until it was returned to Monica. Tavai directed Sgt. Ellis Asuega to drive the pickup to the police substation in Tafiina, nearby the correctional facility. Dutra went to the substation in the pickup. Tavai and Mageo took Ve'ave'a to the same substation to process the arrest paperwork before taking him to the correctional facility.
All arrived at the substation about 4:30 p.m. Sgt. Asuega locked the pickup and gave the keys to Tavai. While processing the arrest, Tavai *112called Monica’s social caseworker and learned that Monica was on her way to the substation to recover the pickup. Concerned about a possible confrontation between Ve'ave'a and Monica, Tavai took Ve'ave'a to the correctional facility and waited for Monica.2
Tavai planned to inventory the personal property in the pickup in accordance with standard, though unwritten, police procedure. He was taught to follow this procedure at the Police Academy and later at continuing education sessions. An inventory of the contents of an impounded vehicle, in the owner’s presence if possible, is designed to protect the owner’s property in the vehicle and to guard the police against later false loss claims.
When Monica arrived at the substation, Tavai informed her of the inventory procedure and asked her for permission to conduct the search.' She responded “very well” in Samoan.3 Mageo began the search at about 5:10 p.m. Tavai and Monica watched him. Mageo found a pouch under the driver’s seat. The main zipper was open,4 and Mageo saw green leafy material in a plastic baggie just inside the pouch. As Mageo brought out the pouch, Tavai also observed the material. Monica said the pouch belonged to Ve'ave'a. Based on his training and certification in identifying controlled substances, Tavai believed the material appeared to be marijuana. Further inside the pouch, the officers found 15 packages of what appeared to be methamphetamine, a scale of the type used for weighing methamphetamine, additional packaging materials, and identification in Ve'ave'a’s name.
*113Discussion
We hold that the police officers conducted a valid search and seizure.
Article I, Section 5 of the Revised Constitution of American Samoa provides, in relevant part, that:
The right of the people to be secure in their persons, houses, papers and effect, against unreasonable searches and seizures, shall not be violated and no warrant shall issue, but upon probable cause...
Because the Fourth Amendment of the U.S. Constitution is identical in relevant content, cases interpreting the Fourth Amendment provide appropriate guidance in applying Article I, Section 5 of our Constitution.
The Fourth Amendment does not require that every search be made pursuant to a warrant. The Fourth Amendment prohibits only unreasonable searches and seizures. South Dakota v. Opperrnan, 428 U.S. 364, 372-3, 96 S. Ct. 3092, 3099, 49 L.Ed.2d 1000 (1976).
The test of the validity of a warrantless search is, therefore, whether the search was reasonable under all the circumstances. United States v. Lawson, 487 F.2d 473 (8th Cir. 1973) cited in United States v. Mays, 982 F.2d 319 (8th Cir. 1993).
Ve'ave'a initially argues that the search was unreasonable because it was not incident to a lawful arrest. A search incident to a lawful arrest is an exception permitting a warrantless search. However, because ASG justifiably relies on two grounds that are independent of this exception to validate the search of the pickup, we do not reach this issue.
Two distinct grounds support our conclusion that a reasonable search and seizure occurred. First, the search of the pickup was based on the valid consent of the person who had, or who the police officers reasonably believed had authority over the pickup. Second, the search of the vehicle was within the lawful bounds of an inventory incident to the impounding of the vehicle following the arrest of the person who had immediate control of it.
A. Consent to the Search
1. Monica’s Authority
Consent to a search is another exception which obviates the need for *114a warrant. United States v. Patrone, 948 F.2d 813, 815 (1st Cir. 1991). The Supreme Court recognized the right to consent when it stated that:
[T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may ensure that a wholly innocent person is not wrongly charged with a criminal offense.
Schneckloth v. Bustamonte, 412 U.S. 218, 243 (1973).
Permission to conduct a search need not only come from the suspect. Anyone who has a reasonable expectation of privacy in the place being searched may consent to a warrantless search. United States v. Eldridge, 984 F.2d 943, 948 (8th Cir. 1993) (valid consent by driver to search car because car was in his immediate possession and control)
Determination of consent to enter must:
be judged against an objective standard: would the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22 (1969). If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.
Illinois v. Rodrigues, 497 U.S. 177, 188-189, 110 S. Ct. 2793, 111 L.Ed.2d 148 (1990).
In this instance, Tavai properly obtained consent from Monica, the registered owner of the pickup. Ve'ave'a was in possession and using the pickup. Monica gave Tavai a copy of the registration of the pickup showing Monica as the sole registered owner, and sought Tavai’s assistance to recover the pickup on at least two occasions within days of Ve'ave'a’s lawful arrest.5 The pickup was parked in the immediate vicinity of Ve'ave'a’s arrest. Shortly after the arrest, Tavai was informed that Monica was on her way to the substation to recover the pickup. As the registered owner of the pickup, Monica clearly had a “sufficient relationship to the premises or effects sought to be inspected.”6 Matlock, *115415 U.S. at 171. Moreover, Tavai certainly had reasonable grounds to impound the pickup, to have it moved to the substation, see United States v. Nays, 982 F.2d 319, 322 (8th Cir. 1993), and to believe that Monica had authority to consent to the search of it.
2. Scope of the Consent
The scope of a consent search is determined by how a reasonable person would have understood the conversation between the officer and the person when consent was given. Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L.Ed.2d 297 (1991) (consent to search vehicle includes implicit authorization to open paper bag found on floorboards). Here, Tavai performed a search within the scope of the consent. Tavai specifically asked Monica whether the car could be searched. The request was a general one. Monica consented to a general search of the vehicle when she responded “very well” or “okay.”
B. Inventory Search
The second independent ground validating the search is the inventory search itself. Inventory searches are “now a well-defined exception to the warrant requirement of the Fourth Amendment.” Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 93 L.Ed.2d 739 (1987). Again, the Fourth Amendment’s reasonableness standard is used in analyzing the constitutionality of inventory searches. Nays, 982 F.2d at 321. The court “weigh[s] the governmental interests advanced by an inventory search against the privacy interests invaded in light of the particular circumstances of the case.” United States v. Wilson, 636 F.2d 1161, 1163 (8th Cir. 1980).
1. ASG’s Interests
ASG’s interest in an inventory search includes protecting the public and the police from potential danger. Colorado, 479 U.S. 367, 373. In the interest of public safety, the police must often take a caretaking role, which includes the protection of the owner’s property while it is in police custody. Opperman, 428 U.S. at 368; Colorado, 479 U.S. at 372.
In this situation, the police knew that Monica wanted the pickup *116returned to her. Tavai also knew that Monica was coming to the police substation to take rightful possession of the pickup. At the same time, DPS would be responsible for any of Ve'ave'a’s possessions in the pickup. Tavai made an informed and reasonable decision to search the pickup and exercise their custodial duty immediately under these circumstances. It was highly appropriate and reasonable for Tavai and Mageo to conduct the inventory search of the pickup to ensure that Ve'ave'a’s property in the pickup would be properly returned to him before Monica received the pickup.
Moreover, Tavai was operating under standard, established procedures. Under Opperman, the Supreme Court held that inventory searches conducted pursuant to standard police procedures are reasonable. 428 U.S. at 372. “[Reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment. . .. .” Bertine, 479 U.S. at 374. These procedures are established, in part, to ensure that the owner’s property is adequately accounted for and that potential ownership disputes over lost or stolen property may be minimized. Opperman, 428 U.S. at 369.
It was distinctly probable that the pickup would be released to Monica within a short time and any property Ve'ave'a had inside it was likely to fall into hands that were then hostile to him. The need to safeguard Ve'ave'a’s property was compelling.
2. Privacy Interests
On the other hand, Ve'ave'a’s privacy interests are extremely low. A diminished expectation of privacy already exists with respect to an automobile. Cardwell v. Lewis, 417 U.S. 583, 590, 94 Ct. 2464, 2469, 41 L.Ed.2d 325 (1974). Given that a violent domestic confrontation between Ve'ave'a and Monica had been reported and that Ve'ave'a had possession of Monica’s pickup for some time without her consent, Ve'ave'a’s privacy interests are even more diminished. ASG’s interests in the inventory search, therefore, significantly outweigh Ve'ave'a’s privacy interests.
Order
For the reasons given, Ve'ave'a’s motion to suppress evidence is denied.
It is so ordered.
Monica testified at the motion hearing that she did not request Tavai’s help to recover the pickup at the central police station and only did so indirectly through her social caseworker. Clearly, in any event, Monica conveyed to Tavai her desire for his assistance to repossess the pickup from Ve'ave'a.
Monica testified that she was at the shelter at the time of the arrest and that when her social caseworker called to inform her of Ve'ave'a’s arrest, she told the caseworker to advise Tavai that she wanted the pickup released to Dutra and to tell Dutra to bring the pickup to the substation where she would pick up the vehicle.
Tavai testified that the caseworker did not pass on this message to him. However, even if caseworker had done so, he would not, after the pickup was impounded, release the pickup until after a standard inventory search of its contents was made in Monica’s presence.
Monica testified that she consented to the inventory search by saying “okay.”
Monica testified that the main zipper was closed. Tavai testified that even if the pouch was zipped, he and Mageo would have opened the pouch in the normal course of inventorying vehicle contents, because closed containers like the pouch commonly hold valuables. We believe, however, that the pouch was unzipped.
Ve'ave'a does not contest the validity of his arrest pursuant to the arrest warrant issued by the District Court.
Even if we assume that Ve'ave'a had authority over the pickup by reason of his spousal relationship with Monica or by his possession of the pickup immediately before his arrest, consent of one having common *115authority over premises or effects is valid as against the absent nonconsenting person with whom that authority is shared. Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L.Ed.2d 684, 693 (1969); United States v. Matlock, 315 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L.Ed.2d 242 (1974); United States v. Baldwin, 644 F.2d 381 (5th Cir. 1981). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486572/ | ORDER DENYING MOTION FOR RECONSIDERATION OF BAIL REVOCATION
The defendant James A. Stephens is charged with the crimes of Felonious Restraint, in violation of A.S.C.A. § 46.3532(a), a Class C felony; Assault in the First Degree, in violation of A.S.C.A. § 46.3520(2), a Class B felony; and Assault in Third Degree, in violation *118of A.S.C.A. § 46.3522(a)(1), a Class A Misdemeanor. The police affidavit in support of the warrant of arrest alleges, among other things, that the defendant lured the complainant, his ex-wife, into a motel room and after accusing her of affairs with other men, viciously beat, as well as tortured, the complainant repeatedly while keeping her restrained against her will in the motel room over a period of many hours.
The District Court admitted the defendant to bail in the sum of $40,000. He was subsequently released from pre-trial detention upon his posting a security bond and upon the condition that he not have “any contact, direct or indirect,” with the complainant. We expressly adopted in open court on June 24, 1998, the District Court’s bail and release order.
On November 2, 1998, the government filed an expedited application to. revoke the defendant's bail status on the grounds that the defendant had repeatedly violated his bail condition of “no contact” with the complainant. In plaintiffs affidavit in support of its expedited application, Assistant Attorney Lionel Riley deposed that he had contacted the complainant who had informed him that she had moved off-island “tired of the defendant Jimmy Stephens . . . constantly pestering her.” We granted the expedited hearing request and heard the government's motion to revoke bail on November 5, 1998.
At the hearing, the defendant stipulated to having violated conditions of bail, however, we heard testimony at the government's request from several of the complainant's former co-workers. These co-workers all testified about frequent telephone calls and visits by the defendant to the complainant at her place of employment, three to four times a week; that arguments frequently ensued between the defendant and the complainant at these encounters with the defendant often accusing the complainant of having affairs with other men. Further, that the defendant, in order to make a point with one of the witnesses, rang the complainant at her current place of employment in Boise, Idaho. The testimony also revealed that the defendant even contacted some of the government's bail-hearing witnesses, prior to the hearing, to accuse them of simply wanting him in jail.
On the evidence received, we revoked defendant's bail status1 rejecting his argument that he could no longer be considered a danger to the complainant since she has left the jurisdiction of this court.
On the same day, November 5, 1998, defendant filed his motion to reconsider our order revoking bail and remanding him to the Territorial Correctional Facility pending trial on November 17, 1998. The motion *119for reconsideration is denied.
The defendant urges this court to apply 18 U.S.C.A. § 3148 (1993 & Supp. 1994) (the “statute”) in fashioning an appropriate punishment for his violating this court's release orders. However, nowhere in the text of the statute is there a provision specifying its application to American Samoa. Had Congress wished that this section apply to the territories, Congress would have so specifically stated.
Even if this statute was applicable, we would still conclude that the defendant's motion is without merit. In his memorandum of points and authorities in support of reconsideration, the defendant cites to only a portion of the statute. Another part of the statute, which the defendant failed to cite, provides that bail may be revoked if the reviewing court is satisfied that conditions of bail has been violated, and that
(B) the [defendant] is unlikely to abide by any condition or combination of the conditions of release.
18 U.S.C.S. § 3148. That a person is unlikely to abide by any condition or combination of the conditions of release may be established by a preponderance of the evidence. United States v. Gotti, 794 F.2d 773, 778 (2nd Cir. 1986).
The defendant's past violations of this court's release order shed considerable light on his motive, capacity and propensity to commit certain acts while free on bail. See Gotti, 794 F.2d at 779 (all bail decisions rest on predictions of a defendant's future behavior). The defendant has freely admitted to violating this court's order by contacting the victim. His motives for these contacts, as revealed on the evidence, continue to be his infatuation with his ex-wife's perceived affairs with other men. Less than three weeks after the conditions of defendant's release were issued, the defendant made numerous harassing contacts with the complainant, frequently intimidating the complainant at her place of employment. As a result of the defendant's intimidation, the complainant fled to the mainland.
Under these circumstances, we are certainly not about to accept the bootstrap logic behind the defendant's submission that he is no longer a danger to the complainant since she has left the island, when it was the defendant's campaign of intimidation and harassment, in clear defiance of this court's bail order, that drove the complainant off-island in the first place. Moreover, despite the complainant's leaving American Samoa, the court is unconvinced that the defendant will not make yet other attempts to contact her. At the same time, we are satisfied that the complainant, fearing for her safety, is unlikely to return to the territory on her own free *120will, as long as the defendant is released on bail free to make further contacts with her. And the complainant has every reason to fear for her safety. In view of the factual allegations of her criminal complaint and the nature of the offenses alleged in the information, the sad fact remains that even the weight and authority of an order of this court proved to be pf no assurance whatsoever to the complainant, in terms of keeping the defendant and his jealous moods away from her. Finally, we are convinced that the defendant will not abide by future court orders.
The motion for reconsideration is denied.
It is so ordered.
Although took under advisement the issue of bond forfeiture. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486573/ | OPINION AND ORDER
Facts
Sometime in the,.early afternoon of February 24, 1994, plaintiff (“Masania'i”), then a Marine Patrol Officer with the Department of Public Safety, began, drinking alcohol with some fellow officers after spending a morning cleaning one of their Marine Patrol vessels. Masania'i continued to drink a large quantity of alcohol throughout the day and .into the early evening. He eventually ended up at the home of one . of his fellow officers, and continued drinking solidly until approximately 8 p.m. He left, and then after colliding with a parked vehicle, drove to the Solaita Field where he slept for a few hours. Upon awakening, he drove to the Country Club, a restaurant/nightclub located next to the Ili'ili Golf Course. He walked to the front entrance after being told that the back door was locked. Upon reaching the front entrance, Masania'i was denied entry because of his improper attire (a tank top). Masania'i initially tried to persuade the security guard at the door, Tavita Kisena (“Kisena”), and the manager Fiona Alama, (“Alama”) to let him in, but they would not. Masania'i walked back to his car, put on a police jacket marked “Marine Patrol,” and was then allowed into the club.
After entering the Country Club, Masania'i tried to order a drink but had no money. He then persuaded two or three different people to buy him drinks. The cashier sat these drinks in front of Masania'i, but testified *123that she did not see Masania'i actually drink them.
After approximately one hour, Masania'i approached a table to speak with Lena Sevaaetasi (“Sevaaetasi”). Robert Fairholt (“Fairholt”), Sevaaetasi's uncle, was sitting at the table with her. At some point during the conversation, Masania'i made an offensive comment either to or about Sevaaetasi, whereupon Fairholt began yelling at Masania'i. Some of Fairholt's friends came over to the table, including Robert Schwenke (“Schwenke”) who began to push Masania'i. At this point, two Country Club security guards, Kisena and Hercules, noticed the commotion and intervened by separating the parties. During the separation of the parties, another man, Samoa Alefosio (“Alefosio”), punched Masania'i in the head. As Hercules faced the young men involved in the altercation (Schwenke, Alefosio, and Tiumalu), Kisena asked Masania'i if he wanted to leave. At the behest of Masania'i's nephew, Danny Pau (“Pau”), Masania'i agreed to leave. Kisena and Pau both proceeded to escort Masania'i to his car. During this initial altercation, the police were called by a. Country Club employee, Violet Ah Kiong, at the instruction of Alama.
As Kisena, Pau, and Masania'i were walking down the front walkway toward the parking area, they passed another security guard Adam Vitale (“Vitale”). As Vitale neared the front entrance, he noticed Schwenke head out of the entrance and pick up a beer bottle. Vitale asked Schwenke where he was going, and Schwenke told Vitale that he was Masania'i's brother. As Schwenke passed Vitale, he threw the beer bottle, hitting Masania'i in the head and covering Kisena with shattered glass and beer. As Masania'i fell to the ground, Kisena tried to catch and prevent him from hitting his head on the ground. The blow from the beer bottle rendered Masania'i unconscious.
Immediately after the bottle hit Masania'i, other young men ran outside. Schwenke immediately grabbed Masania'i and dragged him from where he fell in between cars into the open parking lot. Schwenke, Alefosio, and Tiumalu then began beating and kicking Masania'i. There is contradictory evidence as to who helped stop the fight but it appears that Kisena, Pau and Vitale all tried, to some extent, to protect Masania'i. Apparently the beating lasted less then a minute and then stopped abruptly, with Schwenke, Alefosio and Tiumalu returning into the Country Club.
Immediately after the attack, Kisena brought Masania'i ice and a towel and Vitale cleared Masania'i's bloody nose so he could breathe. When the police arrived a short time later, Kisena and Vitale helped place Masania'i in the patrol car for transport to the hospital.
*124Discussion
Masania'i brings this action to recover the damages he suffered that evening. His action against the Tedricks and the Country Club (referred to jointly as the “Country Club”) is based upon three theories: first, that the Country Club breached its duty to provide reasonable security; second, that the Country Club is vicariously liable for the negligent acts of its employees; and, third, that the Country Club breached its statutory duty to refuse to allow admittance to an intoxicated individual and to serve alcohol to an intoxicated individual, violations of A.S.C.A. §§ 27.0531(a) and (f) respectively.
Masania'i also sues Asuelu Tiumalu, Samoa Alefosio, and Robert Fairholt for battery.
A. The Country Club
1. Negligence
First, Masania'i alleges the Country Club breached the duty a land possessor owes an invitee. While a land possessor is not an insurer of the safety of its invitees against the acts of third persons, it has duty to exercise reasonable care in providing them protection. RESTATEMENT (SECOND) TORTS § 344, cmt. d.1
The Country Club is a drinking establishment. The evidence presented at trial suggests that a sufficient history of violence exists at this, and other drinking establishments in American Samoa, to warrant adequate security. The evidence at trial, however, showed that the Country Club provided a reasonable level of security. On the night in question, at least three security guards and various other staff members were on duty.
We conclude that the Country Club, as a drinking establishment in American Samoa, owed a duty to Masania'i to provide a reasonably sufficient number of security personnel in order to afford its patrons reasonable protection. RESTATEMENT (SECOND) TORTS § 344, cmt. f. The evidence shows that the Country Club provided an adequate number of security personnel. Whether those security personnel adequately performed their duties is another question, however.
*1252. Vicarious T,lability
Masania'i also argues that the employees of the Country Club acted negligently and that the Country Club would therefore be vicariously liable for their negligence. Masania'i argues that the Country Club employees had a duty to act reasonably in rendering aid to him and that they failed to do so. As stated above, this duty arises only if the land possessor or his employee discovers, or in the exercise of reasonable care should discover, an impending or occurring accidental, negligent, or intentionally harmful act of a third person. Gould v. Taco Bell, 722 P.2d 511, 515 (Kan. 1986); RESTATEMENT (SECOND) OF TORTS § 344(b).
Specifically, Masania'i argues that the security guards acted negligently in removing him from the premises without adequately insuring that the assailants remained inside the establishment until he was out of danger.
As stated above, the security guards immediately broke up the fight inside the Country Club, separated the combatants, and escorted Masania'i outside. Vitale, however, had no idea that an altercation had occurred inside when Schwenke ran past him. Before Vitale could adequately inform himself, Schwenke had already thrown the bottle. At that time, many other people came running out of the Country Club and an immediate, vicious beating ensued which was over as fast as it began. During this very short period of time, the security guards did their best to protect Masania'i, risking serious harm to themselves in the process.
The employees had a duty to act reasonably under the circumstances. The employees did not have a duty to risk their lives, and they did not have a duty to act perfectly. It is trae that the security guards could have acted differently, and had they done so, Masania'i may not have been injured as much. However, the evidence is insufficient to show that any employee of the Country Club acted unreasonably in trying to prevent the fight, protect Masania'i, or in rendering aid to Masania'i after the beating was over.
We, therefore, find that none of the employees of the Country Club acted negligently in rendering aid to Masania'i, and thus no employee negligence exists for which the Country Club can be held vicariously liable.
3. Violation of A.S.C.A. § 27.0531
Masania'i also argues that the Country Club breached its statutory duty to refuse entry and service to an intoxicated person. See A.S.C.A. §§27.0531 (a) and (f).
*126Both Kisena and Alania testified at trial that they could discern that Masania'i had been drinking but, based on their experience, he did not appear to them to be intoxicated. They also testified that it is the policy of the Country Club to deny access to any person who appears intoxicated. We find, however, that Masania'i was intoxicated and his condition should have been visibly apparent to Kisena and Alama, as it was to others. Pau testified that when Masania'i first approached him inside the Country Club, Masania'i was obviously intoxicated. Pau cited to his staggering, his slurred speech, his spitting while talking, his glazed eye, and his just not making sense. Also, Fairholt testified that Masania'i appeared intoxicated when he joined them at their table, citing to plaintiffs conduct and demeanor, the way he stumbled around, the manner of his speech, and his inability to engage in normal conversation. These observations by Pau and Fairholt are bolstered by the credible evidence offered by Department of Safety Officer Kim Morris, Ben Solaita, and Masania'i. The combined testimony of all these witnesses show that Masania'i had been involved in a protracted drinking binge and that when he arrived at the Country Club, he was noticeably intoxicated. We conclude that plaintiffs intoxicated state should have been reasonably discernible to the Country Club's employees.
a. Prohibited Service
A.S.C.A. § 27.0531(a) prohibits the service of alcohol to intoxicated individuals. It is clear from the testimony that although Masania'i did not purchase alcohol for himself, he was indeed served alcohol while he was intoxicated. As such, we find that the Country Club breached its statutory duty to deny service to intoxicated persons. The next question, however, is whether that breach was the proximate cause of Masania'i’s injuries.
An actor's negligent conduct is the legal cause of harm to another if his conduct is a substantial factor in bringing about the harm. Restatement (Second) torts § 431(a). Because no evidence suggests that Masania'i drank the beers that were served to him, we cannot find that the County Club's breach of its statutory duty to refrain from serving alcohol to Masania'i while he was intoxicated was a substantial factor in bringing about Masania'i's injuries.
b. Prohibited Admission
A.S.C.A. § 27.0531(f) prohibits a licensee from allowing intoxicated persons to enter the premises. As stated above, we find that Masania'i was intoxicated upon entering the Country Club. Since the Country Club’s employees allowed Masania'i entrance, the Country Club breached its duty under A.S.C.A. § 27.0531(f).
*127Again, causation turns on whether the Country Club's breach of its statutory duty to deny Masania'i entrance into the club when he was intoxicated was a substantial factor in bringing about the harm Masania'i suffered. In order to be a legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent. Restatement (SECOND) torts § 431 cmt. a. The negligence must be a substantial factor in bringing about the harm. See Id.
We hold that one of the harms § 27.0531(f) was designed to prevent is harm to intoxicated individuals and patrons of a licensed drinking establishment. It is clear that intoxicated individuals have an increased tendency to be drawn to altercations.2 Drunken behavior is highly unpredictable; slight irritations, whether real or imagined, readily lead to aggressive and irrational behavior on the part of the inebriates.3 As such, we find that the conduct of the Country Club in allowing Masania'i to enter the club while he was intoxicated increased the foreseeable and predictable risk that Masania'i would be involved in an altercation. Since the harm that Masania'i received was indeed the result of a drunken altercation, we find that this harm was well within the scope of the risk created by the Country Club's inexcusable failure to refuse entry to Masania'i as mandated by statute. See RESTATEMENT (SECOND) TORTS § 442B. We look upon the Country Club's statutory breach with grave disapprobation. Accordingly, we find that the actions of Schwenke, Tiumalu, and Alefosio does not excuse the Country Club from liability and that the Country Club's negligence in allowing entrance to Masania'i was a substantial factor in bringing about his injuries. *128Therefore, we find that the Country Club is liable for its proportionate share of those injuries. We will address the apportionment of liability below.
B. Robert Fairholt
Fairholt was initially charged with assault and battery, but was acquitted at the criminal trial. Masania'i has offered little evidence to suggest that Fairholt participated in the beating. Although some testimony was offered by Pau as to the possibility that Fairholt participated, several other witnesses testified that Fairholt was not a participant in the assault. The burden is upon Masania'i as plaintiff to prove by a preponderance of the evidence that Fairholt acted to cause a “harmful contact” with him. See Restatement (Second) Torts § 13. He failed to meet that burden.
C. Asnoln Tinmabi and Samoa Alp.fosio
Both Tiumalu and Alefosio failed to appear at trial. We take judicial notice of the court's records in CR Nos. 03-95 and 06-95 (Trial Div. 1995), in which these defendants were found guilty of assault and battery against Masania'i. We find sufficient evidence presented at trial to enter a default civil judgment against these two defendants for committing battery upon Masania'i. See RESTATEMENT (SECOND) TORTS § 13.
D. Comparative Fault
In this jurisdiction, contributory negligence is not a.bar to recovery in actions brought for personal injuries. See A.S.C.A. § 43.5101. Rather, damages shall be diminished by the court in proportion to the amount of negligence attributable to the person injured. Id. (emphasis added). Substantial evidence was presented to suggest that Masania'i's own actions contributed to his injuries. Masania'i voluntarily consumed an inordinate amount of alcohol. He drove his automobile while intoxicated, went to the Country Club, and while there, engaged in loud, obnoxious and incendiary conduct. At some point, Masania'i made a highly offensive comment to Fairholt's niece, in the presence of Fairholt. This remark incited a reaction and instigated the subsequent altercation.
As we stated in our Order on the Motion to Dismiss, CA No. 121-95, slip op. at 6 (Trial Div. March 4, 1997), we believe that a person who voluntarily consumes alcohol to the point of intoxication is at least partially responsible for his own injuries. Although we obviously do not believe that Masania'i deserved the injuries that he received or that violence is the appropriate reaction to offensive language, we do believe that Masania'i's own actions contributed to his injuries and must hold *129him accountable for his actions at least to some extent.
E. Liability
We find that the battery by Schwenke, Alefosio, and Tiumalu, while not the superseding cause of Masania'i's injuries, was the principal cause of his harm. Since Schwenke is now deceased and his estate was not joined in this action, we hold that Alefosio and Tiumalu are jointly and severally liable for 50 percent of the damages sustained by Masania'i.
We hold that Masania'i's own actions contributed to the cause of his injuries by 25 percent.
We find that the Country Club's breach of its statutory duty under A.S.C.A. § 27.0531(f) reflected 25 percent of the cause of Masania'i's injuries.
F. Damages
Masania'i claims he has suffered substantial injuries and continuing damages. Overwhelming evidence shows that Masania'i indeed sustained substantial injuries and continues to suffer as a result of those injuries. Prior to his injuries, Masania'i was a healthy 42-year-old athletic person. He had had 10 years of employment with the Department of Public Safety having made the rank of Watch Commander within the department's Marine Patrol Division. Masania'i is reduced to a pathetic figure beset by severe bouts of melancholy because his injuries have left him debilitated: partially paralyzed, and bereft of sensory faculties, motor skills and muscular control.
The head trauma sustained from the beating resulted in the loss of his visual acuity, blurring of his sight, and “tunnel vision,” the substantial constriction of one's field of vision. Moreover, he has lost his spatial judgment, leaving him prone to bumping into things. Nerve damage from shattered bone fragments in his face has resulted in facial paralysis and the loss of his sense of taste and smell. Masania'i is also unable to close his eyelids properly, which required his undergoing a surgical insertion of gold weights in his eyelids. He now has to continuously use eye drops (as artificial tears) to lubricate his eyes. He has difficulty speaking and eating, because he has lost some control of his mandibular muscles. Consequently, he has difficulty in not only chewing his food but even keeping it in his mouth. This has also left him facially disfigured, a source of constant embarrassment to him to the extent that he avoids contact’ with other people. He also suffers post-traumatic hearing impairment, tinnitus, severe headaches, and bouts of dizziness.
*1301. Future Wages
Masania'i is permanently disabled economically. We find Mr. Daniel R. King's, J.D., C.P.A. projections of plaintiffs lost future earnings to be reasonable. We accordingly find that plaintiffs projected lost wages from the date of his injury through the date of his expected retirement at age 65 are $288,527. •
In addition, the discounted present value of plaintiffs projected lost retirement benefits from the date of his retirement at age 65 over his projected life span of 82.6 years4 reduced by the amount of medical retirement benefits that he is due to receive is $31,468.00.
Therefore, total lost wages and retirement benefits that the plaintiff is owed as a result of his injuries are $317,995.
2. General Damages
In consideration of plaintiffs past and present circumstances, his bleak prognosis, uncertain future, and his multiple debilitating injuries, we fix general damages, including pain and suffering, in the amount of $100,000.
3. Punitive Damages Against Alefosio and Tiumahi
The majority of states hold that recovery of punitive or exemplary damages will not be denied merely because the wrongful act upon which the action is based may be or has been criminally punished. 22 AM. JUR. 2d, Damages § 757. The minority view would bar recovery on the basis of double jeopardy. Id. at § 758. American Samoa appears to have adopted the majority view. See Newton v. Taleka, 30 A.S.R.2d 86, 89 (Trial Div. 1996). There the court noted:
[Pjunitive damages are principally awarded for the sake of example and by way of punishment. Viewed from this perspective when a defendant has been criminally prosecuted *131and sentenced, punitive damages are not unreasonable double punishment.
Id. (Citations omitted). Punitive or exemplary damages are awarded in addition to full compensation to punish the defendant and deter him and others from similar future misconduct. Id. In addition though, there must exist circumstances of aggravation or outrage which includes “malicious conduct.” Letuli v. Lei, 21 A.S.R.2d 77, 86 (Land & Titles Div. 86 1991). “'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 or safety of others.” Id.
The beating plaintiff suffered at the hands of Schwenke, Alefosio, and Tiumalu exhibited a callous disregard for the value of human life. Indeed, these defendants' actions would have ended in death had it not been for the intervention of Kisena and others. The actions of these defendants may be characterized as an abominable savagery and cowardice that shocks the conscience. Vitale the security guard openly wept on the stand as he recounted in disbelief the sheer horror of the evening's events that he witnessed in the Country Club's parking lot.
We conclude that punitive or exemplary damages against Alefosio and Tiumalu are appropriate and accordingly award such damages in the amount of $100,000.
Conclusion
Defendants Alefosio and Tiumalu are jointly and severally liable for 50 percent of 'all damages as follows: $158,997 for future earnings, $50,000 for general damages including pain and suffering and $100,000 in punitive damages. Total damages being $308,997.
Defendants Bill and Apoua Tedrick d.b.a. the Country Club are liable for 25 percent of the damages as follows: $79,499 for future wages and $25,000.00 for pain and suffering, damages which total $104,499.
Judgment will enter accordingly.
It is so ordered.
The Country Club argues that it does not own the parking lot and is not responsible for any injury that occurred there. Substantial evidence showed that the Country Club exercised exclusive dominion and control over the parking lot during evening hours. Moreover, the fight outside was a continuation of the fight that began inside. See also Holiday Inns v. Shelborne, et. al., 576 So. 2d 322 (Fla.Dist.Ct.App. 1991).
There can little argument that there is a relationship between alcohol and aggression. The High Court's criminal case files reveal that the bulk of violent crimes committed in the territory are alcohol-related, and that a significant number of aggravated assaults occur in bars or among drinking companions.
These are factors that would clearly have been in the Fono's contemplation when it enacted A.S.C.A. § 27.0531(f), an enactment that provides some ameliorative measures to the territory's alcohol-related problems by imposing on liquor establishments the duty to, inter alia, refuse entry to intoxicated individuals.
Moreover, this community's alcohol per capita consumption is staggering, lending even more reason for alcohol related caution. According to the most current published statistics from the Research and Statistics Division, of the Economic Planning Development Office, the territory's population in 1995 was estimated at 56,000, while the value of its beer imports alone for the preceding year 1994 was given at $1.6 million. These statistics are even more striking when compared to our very minimal tourism industry. A mere 7,337 tourists visited the territory in 1995.
The Country Club argues that the life expectancy for a Polynesian man is lower than the life expectancy for a Caucasian man. In 1980, the life expectancy for a Samoan was 75.3 years. Vai Filiga and Michael J. Levin, Population Profile of American Samoa (1980 census) p. 43 (August 1988). We have no current updated information regarding the life expectancy of a Samoan male. Since defendant failed to proffer such evidence, we can only look to the testimony of plaintiffs expert on this issue. Although we can imagine that a Samoan male's life expectancy is less then 82.6 years, we are without evidence to support this intuition. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486574/ | *133OPINION AND ORDER
Plaintiffs Ruta Fou (“Ruta”) and Togaiia Fou (collectively “the Fous”) brought suit against defendant Talofa, Inc. dba Talofa Video (“Talofa Video”) to obtain damages for defamation. The trial was held on October 24, 1997 with both counsel present.
Facts
On August 11, 1996, Ruta paid $15 by check to Talofa Video for video rental fees. The check was drawn on the Fous’ joint account. The check was deposited, and the depository bank credited Talofa Video’s account accordingly. Talofa Video, however, subsequently displayed this check on a post near the store’s front counter for its employees to see as an example of an “unacceptable” check, one that is drawn on an off-island bank. The check had remained there for some time when one of the employee’s turned it over to jot telephone numbers on the backside. In doing so, the check was placed in public view. When family and friends of the Fous asked why the check was displayed, Talofa Video’s employees told them that it was there as a reminder that the check was no longer acceptable at their store.
Ruta learned of this situation from a friend at another store several months after she originally tendered the check. She immediately contacted Talofa Video, and an employee confirmed that the check was still displayed. Ruta retrieved the check and, through counsel, demanded an explanation and apology from Talofa Video. Talofa Video’s manager, Lo Shi-Kai, explained in his letter of March 27, 1997 that the check was not being posted because of insufficient funds, but rather “as a reminder to [Talofa Video’s] employees that only local checks could be accepted.” Despite the fact that the check was in plain view for the public to see, he denied that the check was on “public display.”
Discussion
Defamation by means of libel is statutorily defined:
Defamation is effected by:
(1) libel which is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.
*134A.S.C.A. § 43.5201. Oral words which would -typically be considered slander constitute libel when said in association with a libelous act. “[I]t is generally held that it is a publication of a libel to read a defamatory writing aloud. This might suggest that the distinction is one of embodiment in some more or less permanent physical form, and is frequently so stated.” W.L. Prosser & W.P. Keeton, The Law of Torts 786-87 (5th ed. 1984). Posting defamatory material to be viewable by third persons constitutes publication. Publication of defamatory matter is its communication intentionally or by negligent act to one other than the person defamed. See RESTATEMENT (SECOND) OF TORTS § 577(1). The form of the statement is not important, so long as the defamatory meaning is conveyed. Prosser, supra, at 776. “A communication is defamatory if it so harms the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” RESTATEMENT (SECOND) OF TORTS § 559.
Talofa Video asserts that it posted the check as a “teaching device” to its employees not to accept off-island checks. We view this rationalization to be less than compelling, and certainly not exculpatory of Talofa Video’s actions. A clearly worded notice to its employees not to accept a check drawn on an off-island bank could have easily sufficed.
Worse perhaps, Talofa Video shirked its responsibility to issue an apology. Instead of assuming accountability for its actions, Talofa Video insulted the Fous’ intelligence by its rather dismissive explanation of its actions, terming them “a misunderstanding.” First, Talofa Video seemed to suggest that its wrongdoing was Ruta’s fault for having written a check on an “off-island” bank.1 Second, Talofa Video implied that its actions were justified because of financial inconveniences associated with accepting an “off-island” check.2 Third, Talofa Video contended that its actions were reasonable because even though the Fous’ check was displayed to the public it was not displayed for the public. Moreover, Talofa Video could have easily mitigated the harm at anytime by taking the check down after it was flipped over or by refraining from telling patrons that the check was “unacceptable.”
*135Talofa Video then essentially dismissed the Fous’ grievance by suggesting that the Fous misconstrued its benign motives. Talofa Video excused its conduct by stating that “there was never a question of [the check’s] not being ‘good,’ only of having been off-island.” But we cannot look into the mind of Taiofa Video’s manager and neither could the public. The court must use a reasonable person standard to assess Talofa Video’s actions. Patrons who saw the check on display would have probably have thought that the Fous’ check was returned due to insufficient funds. This is the logical conclusion, one which Talofa Video reaffirmed when telling customers who inquired that the check was displayed as an example of an “unacceptable” check. No notation was on the check referring to its “off-island” status, and it is not clear to the court that the employees themselves were sure exactly why the check was posted. Apparently, the check had been displayed for a lengthy period before an employee finally flipped it over to post telephone numbers on the backside.
Talofa Video seeks to draw the specious distinction between the check’s being displayed for the public, not to the public. Again, this excuse rings hollow. Others cannot look into a defendant’s mind to discern intent, and so we must look to an external standard to judge a defendant’s action. Even if the check was not intended “for the public,” it was still in plain view for the public to see. Even though Talofa Video claims that it “was never a question of [the check’s] having been ‘good,’” this is still the implication given.
We conclude that Talofa Video’s conduct of posting the check, in conjunction with the check’s written nature and its employees stating that “the check is unacceptable,” constitutes libel.
Since the implication was that Ruta committed a crime — the writing of a bad check — the libel per so rule applies in this case. “[A] written or printed imputation of any crime [of moral turpitude or punishable by confinement] is libelous [per se]. RESTATEMENT (SECOND) OF TORTS § 569 comment d. Even though we could easily infer harm to the Fous’ reputation, we need not be concerned with proof of actual harm.
The record is devoid of evidence of any privilege or other defense. Thus, for the reasons stated above, we conclude that Talofa Video’s actions were libelous and damage to the Fous need not be proved. We hold Talofa Video liable to the Fous for its defamatory conduct in the amount of $6,000.
*136Order
Talofa Video shall pay $6,000 in damages plus actual costs suit to the Fqus.
It is so ordered.
Manager La Shi-Kai wrote “Talofa Video, like most businesses in American Samoa, does not accept off-island checks .... [Ruta], unfortunately, presented [an off-island] check to our employees who should not have accepted it.” Talofa Video’s letter of March 27, 1997.
Manager Lo Shi-Kai claimed “Talofa Video, like most businesses in American Samoa, does not accept off-island checks, the foremost reason being that they are held by the banks until they clear Stateside, often a period of several weeks.” Talofa Video’s letter of March 27, 1997. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486575/ | *137ORDER DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT, DEFENDANT’S MOTIONS TO DISMISS OR QUASH SERVICE OF SUMMONS
Introduction
On February 12, 1997, the court granted defendant Paul Clarke’s (“Clarke”) motion for reconsideration on grounds that, due to family ties, the justice presiding at the trial should have disqualified himself from the case. The court had found Clarke civilly liable for breach of an at-will employment contract with plaintiff Atlantic, Pacific, Marine, Inc. (“APM”) and had awarded APM $8,665.00 in damages. In addition to granting the motion for reconsideration, the court vacated its November 8, 1994 order denying Clarke’s motion to quash service of process, and its October 24,-1996 opinion and order awarding judgment to APM.
Subsequently, on August 18, 1997, APM moved for default judgment, stating that Clarke has not answered or otherwise appeared in the action. Clarke responded, on September 12, 1997, with a motion to dismiss the complaint, or in the alternative, to quash the service of summons. Clarke claims that the service of the summons and complaint was not valid, and that the court therefore does not have jurisdiction over Clarke. The motions were heard on January 22, 1998. Both counsel were present.
Discussion
A. Defendant Clarke’s Motion to Dismiss the Complaint or Quash Service of Summons
The Marshal’s Certificate of Service indicates that the summons and complaint were served upon Clarke at his yacht, the MW Pegasus (“the Pegasus”), in the Pago Pago Harbor, through an individual named Awry *138Webb (“Webb”). The Marshal notes that Webb is a crew member of the vessel.
The issue is whether this was proper service under T.C.R.C.P. 4(d)(1), which states that service shall be made:
upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
It is well settled that the trial court rales should be construed liberally to effectuate service, especially when the defendant receives actual notice of the suit. In addition, interpretation should be natural rather than artificial and each case turns upon its own factual situation. Blackhawk Heating & Plumbing Co. v. Turner, 50 F.R.D. 144, 145 (D.Ariz. 1970).
1. “Dwelling house or usual place of abode.”
Cases construing “dwelling house or usual place of abode” have not come up with any “hard and fast definition.” 2 J. Moore, MOORE’S federal Practice, ¶ 4.10[3.~2] at 4-162 (2d ed. 1996). “Indeed these quaint terms are now archaic and survive only in religious hymns, romantic sonnets, and unhappily, in jurisdictional statutes.” National Development Co. v. Triad Holding Corp., 930 F.2d 253, 256 (2nd Cir. 1991). Despite the lack of a clear definition and the inconsistency among jurisdictions, the modem trend is that for purposes of Rule 4(d)(1), a person can have more than one dwelling house or usual place of abode. 4A C. Wright & A. Miller, Federal Practice AND Procedure § 1096, at 79-80 (2d. ed 1987)(“[I]n a highly mobile and affluent society, it is unrealistic to interpret Rule 4(d)(1) so that the person to be served has only one dwelling house or usual place of abode at which process may be left.”)
In National Development Co. v. Triad Holding Corp., 930 F.2d 253 (2nd Cir.), cert denied, 502 U.S. 968, 112 S.Ct. 440, 116 L.Ed.2d 459 (1991), the court held that the defendant, a citizen and domiciliary of Saudi Arabia, was properly served at his apartment complex in New York City even though he had lived there only thirty-four days of the calendar year. “[A] person can have two or more ‘dwelling houses or usual places of abode,’ provided that each contains sufficient indicia of permanence.” Id. at 257. The court noted that the defendant owned the apartment, *139furnished it, and spent a considerable amount of money remodeling it to fit his lifestyle. “[SJervice there on that day was, if not the most likely method of ensuring that he received the summons and complaint, reasonably calculated to provide actual notice of the action. Surely, with so itinerant a defendant [...], plaintiff should not be expected to do more.” Id. at 258 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
Similarly, in 131 Main Street Associates v. Manko, 897 F. Supp. 1507 (S.D.N.Y. 1995), the court found that service of process at an apartment in New York City was valid even though defendant’s presence was “episodic rather than constant.” Id. at 1524. The defendant did not own the penthouse, did not pay rent, and for 14 years had maintained a residence in Florida, at which he had spent most of his time in the previous years. Id. But, the court found, the defendant used the penthouse as his place to stay in New York City, and he visited New York City with considerable frequency and regularity during the 1980’s and 1990’s. Id. Service at the penthouse was therefore proper. The defendant’s residence in Florida did not detract from the court’s holding. “And while it is trae that [defendant] had at least one long-standing residence outside of New York City, it cannot be said that the permanence [he] enjoyed at 425 E. 63rd was lessened by the fact that he enjoyed permanence elsewhere.” Id.
The defendant in In re Premium Sales Corp, 182 B.R. 349 (Bkrtcy.S.D.Fla. 1995), resided at condo units sporadically throughout the year, from one to four weeks each time. Security reports and phone records showed that defendant and his wife were residing at the condo when service was attempted. Id. at 351. The court found that based on this evidence and actual notice, the defendant’s visits to the condo units were sufficiently regular for them to constitute his dwelling house or usual place of abode. Id. The court also echoed the holding in National Development Co. that a person can have more than one dwelling house or usual place of abode where service of process may be left. Id.
Clarke primarily contends that service aboard the Pegasus was not proper because his dwelling house or usual place of abode is in California. The existence of an abode in California, however, does not preclude the opportunity for Clark to have other residences which will meet the requirements of T.C.R.C.P. 4(d)(1). Clarke was away from his California residence for a substantial period before this action was filed. He lived aboard the Pegasus for at least several months while he was in American Samoa and neighboring islands. Clarke owns and operates the vessel and always has access to his living quarters there. In addition, Clarke was actually residing aboard the Pegasus, and was not in California, when service of the summons and complaint was made. *140These facts show that at the time process was served, the Pegasus was Clarke’s “dwelling house or usual place of abode” for purposes of T.C.R.C.P. 4(d)(1).
The 'fact that Clarke’s living quarters were aboard a vessel, the Pegasus, and not in an apartment, penthouse, condo, or other land-based dwelling does not change our analysis. A vessel can qualify as a dwelling house or usual place of abode. In Hanna v. U.S. Lines, 151 F. Supp. 122 (S.D.N.Y. 1957), the court found that a sea captain could not be served by leaving copies of the summons and complaint with the first officer of another vessel upon which the captain was temporarily present. Id. at 123. However, the court indicated that in some circumstances a vessel could qualify as a dwelling house. “Of course a situation might arise, i.e., residence upon a houseboat, or permanent residence by a so-called barge captain upon a scow, which might compel a different conclusion.” Id. Clarke’s presence upon his own vessel, the Pegasus, is a circumstance where a vessel qualifies as a dwelling house.
2. “Some person of suitable age and discretion then residing therein”
The remaining question is whether leaving copies of the summons and complaint with Webb was service upon “some person of suitable age and discretion then residing therein.” Clarke states that he picked up Webb in Fiji and gave him a ride to American Samoa aboard the Pegasus. Webb was either a crew member or a guest for this time. There is not any disagreement that Webb is “of suitable age and discretion.” APM and Clarke do disagree, however, whether Webb was “residing therein.”
Although courts have at times held that service upon some non-live in employees is not proper under Rule 4(d)(1), Polo Fashions, Inc. v. B. Bowman & Co., 102 F.R.D. 905, 908 (S.D.N.Y. 1984); Franklin America Inc. v. Franklin Cast Products, 94 F.R.D. 645, 647 (E.D. Mich. 1982), courts have also held that some non-live in employees, such as doormen, can be construed as “residing therein.” See, e.g., Hartford Fire Ins. Co. v. Perinovic, 152 F.R.D. 128, 131 (N.D.Ill. 1993) (holding that the doorman of a high-security, restricted-access condominium building, authorized to receive packages and letters for residents, who received service was “residing therein” for purposes of Rule 4(d)(1)); Churchill v. Barach, 863 F. Supp. 1266, 1271 (D.Nev. 1994) (holding that leaving copies of the summons and complaint with the doorman of the defendant’s apartment building satisfied the definition of leaving them at defendant’s “usual place of abode with some person of suitable age and discretion then residing therein.”). The fact that a doorman controls access to individual dwelling places supports a finding of “residing therein.” A crew member aboard a private vessel like the Pegasus would provide a similar gate keeping function. “[WJhere, as here, the process *141server is not permitted to proceed to the actual apartment by the doorman or some other employee, the doorman becomes all the more ‘suitable’ as a repository of the paper because he is in effect the only accessible party.” 131 Main Street Associates, 897 F. Supp. at 1525.
Even if Webb was not a crew member of the Pegasus, but was merely a guest, he was properly residing therein for purposes of T.C.R.C.P. 4(d)(1). Webb was not merely visiting the Pegasus for a few hours, or even the day. He spent at least one night aboard the Pegasus, and presumably many more. “Rule 4(d)(1) is broad enough to include a student returning home from college to stay at least overnight at her parents’ residence.” M. Lowenstein & Sons, Inc. v. Austin, 430 F. Supp. 844, 845 (S.D.N.Y. 1977).
A liberal, but natural and not artificial construction of T.C.R.C.P. 4(d)(1) provides that Clarke received proper service of the summons and complaint. Service of Clarke upon his vessel the Pegasus, through Awry Webb meets the “dwelling house or usual place of abode” and “some person of suitable age and discretion then residing therein” requirements of T.C.R.C.P. 4(d)(1).
B. Plaintiff APM’s Motion for Default Judgment
APM is incorrect in stating that Clarke has not answered or otherwise appeared in the action. APM filed a complaint against Clarke on August 22, 1994 and Clarke filed an answer and counterclaim on November 15, 1994. When the court granted Clarke’s motion for reconsideration of the trial opinion, it vacated both its opinion and order awarding judgment to APM and its order denying the motion to quash service of process. The court did not dismiss or otherwise alter Clarke’s answer and counterclaim, even though they were filed after the court’s order denying the motion to quash service of process.
The vacated orders allow the parties to visit anew the issue of valid service of process, and to retry the causes of action, but other aspects of the case remain as originally presented. Cf. Marmon v. Hodny, 287 N.W.2d 470, 479 (N.D. 1980) (holding that local civil practice Rule 26, based on F.R.Civ.P. 26, “does not contemplate de novo discovery at retrials, trials anew, or new trials” except as to whether certain material will be omitted or new material will be presented at the trial).
Conclusion and Order
The motion for default judgment is therefore denied.
1. APM’s motion for default judgment is denied.
*1422. Clarke”s motion to dismiss the complaint or in the alternative to quash service of process is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486576/ | ORDER DENYING MOTION FOR A NEW TRIAL
Introduction
Masania'i sued Bill and Apoua Tedrick d.b.a. the Country Club (referred to jointly as the “Country Club”) and Asuelu Tiumalu (“Tiumalu”) and Samoa Alefosio (“Alefosio”) to recover the damages suffered on the evening of February 24, 1994. A contested trial was held with counsel for both sides present. On January 9, 1998, we found that the Country Club breached its statutory duty to refuse to allow admittance to an intoxicated individual, thereby violating A.S.C.A. § 27.0531(f). We also found Tiumalu and Aiefosio liable for battery.
We found the Country Club liable for 25 percent of the damages as follows: $79,499 for future wages and $25,000.00 for pain and suffering. Total damages accorded these defendants were $104,499.
We ordered Alefosio and Tiumalu jointly and severally liable for 50 percent of all damages as follows: $158,997 for future earnings, $50,000 for general damages including pain and suffering and $100,000 in punitive damages. Total damages accorded these defendants were $308,997.
On January 20, 1998, Masania'i brought a motion for a new trial, arguing that the court mistakenly neglected to apply joint and several liability to *144all defendants. On January 18, 1998, the Country Club also brought a motion for a new trial, alleging that insufficient evidence existed for the court’s finding that the Country Club breached its statutory duty under A.S.C.A. § 27.0531(f).
Discussion
A. Apportionment of Fault and Liability
The first issue presented to us by plaintiff deals with the apportionment of fault and liability. Plaintiff argues that “but for his admittance onto the premises of the Country Club, he would not have been hurt” — and, therefore, joint and several liability should apply. Plaintiff posited an alternative argument — that “it is impossible to say how much damage is apportioned to which actor.” (Oral Argument, February 17, 1998.)
We find that although each actor may have played a role in the harm suffered by Masania'i, the conduct of each was not jointly linked. Masania'i would not have been hurt had he not been out there seeking and inciting trouble. But, on the other hand, he would not have suffered had others, including Tiumalu and Alefosio, not acted on their compulsions, conduct which served as the supervening cause of his harm. These actions serve as disparate links in the harm suffered by Masania’i and these parties did not act in concert as part of one inextricable, continuous act. We, therefore, do not believe that they fall within the intended strictures of joint and several liability, a remedy which is invoked when the harm is considered indivisible or the tortfeasors were acting in concert.1 We also believe that it is possible to apportion liability in this case, a fact which negates the need to invoke joint and several liability. This court has apportioned damages in the past and believes that the allocation of fault is fitting here.
Legislatures enacted comparative liability statutes for a simple reason: to eliminate the harsh result of the complete bar to recovery that would result when the plaintiff himself may have been partially at fault.
*145This statutory and judicial2 departure to the common law served to achieve greater fairness in situations in which even the most minor contributory negligence may have barred any sort of recovery. By enacting A.S.C.A. § 43.5101, the Fono clearly abolishes the contributory negligence bar to recovery, but remains silent on the appropriate application of the principles of joint and several liability or comparative fault in a multiple tortfeasor situation. The court, therefore, must decide on the proper standard to apply.
In the past, we have diverged from strictly adhering to the common-law rule of joint and several liability when we find it is possible to ascertain and allot comparative liability to the parties involved.3 While it is trae that this course is one that only a minority of jurisdictions have adopted, we feel it the most just position to take. And moreover it is under our purview to adopt this albeit minority position, but one which marks the emerging trend in the common law.
The fundamental goals of fairness and equity underlied the Fono’s statutory divergence from the common law and they similarly motivate us here. Oliver Wendell Holmes observed, “The law should be stable, but should never stand still.”
Just as comparative negligence is a more equitable outcome than contributory negligence, so is the apportionment of liability according to fault. If it is possible to estimate and assign fault, this would be a more equitable and fitting approach than automatically deeming liability “joint and several.”4
Moreover, we disagree with plaintiffs argument that we should diverge from the common law in one instance (i.e. to grant him relief notwithstanding his own contribution to his injuries) and invoke the common law in another (i.e. to grant joint and several liability to all defendants) for ostensibly no reason other than to afford him the greatest *146award of 'damages. We can come to no other conclusion since the rationale and logic underlying these arguments counter, and thus negate, each other.
Abrogating the harshness of contributory negligence doctrine was the intention of the Fono when they passed A.S.C.A. § 43.5101. This statutory modification served as a legal departure from the common law that more equitably apportioned liability according to culpability. Although not explicitly stated in the statute, this statute operationally functions as a comparative fault mechanism.
This court has previously affirmed the doctrine of comparative fault in our jurisdiction. In United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95, 106 (1990), the court relied upon the rule enunciated by the United States Supreme Court: “liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault.” United States v. Reliable Transfer Co., 421 U.S. 397, 411 (1975). See also Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069, 1075 (11th Cir. 1985) (in which the court refused to allow the doctrines of intervening negligence and last clear chance to circumvent the concept of proportional fault).5
In Saufo'i v. American Samoan Gov’t, 14 A.S.R.2d 15 (1990); aff'd 19 A.S.R.2d 54 (App. Div. 1991), the court found plaintiffs themselves liable for a portion of the damages and allocated a percentage of the damages to each of the parties involved. Id. at 20. The court in Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76, also relied upon the comparative fault doctrine. Cf. Euta v. Etimani, 24 A.S.R.2d 139 (1993).
For the aforementioned reasons, we find that the Country Club should not be held jointly and severally liable. This court is not prepared to allow plaintiff to escape all blame for his own conduct under the cloak of this doctrine.
B. Untimely Filing
Second, the Country Club seeks a new trial on grounds that the court abused its discretion in finding that Masania'i was intoxicated when he was allowed entry onto the club’s premises. Unfortunately, although *147defendant submitted this motion in a timely manner, it failed to meet the deadline for the submission of its brief and arguments. As a result, we decline to consider defendant’s motion on procedural grounds.6 Our order and opinion with respect to this second issue stands without modification.
Conclusion
Both plaintiffs and defendant’s motions for a new trial are denied.
It is so ordered,
See W. Prosser and F. Keeton on the Law of Torts, Fifth Edition, St. Paul: West Publishing, 459 (1984); RESTATEMENT (SECOND) OF TORTS § 875, “Contributing Tortfeasors—General Rule” and § 876 “Persons Acting in Concert (1979); United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95, 106 (1990); Saufo'i v. American Samoan Gov’t, et al., 14 A.S.R.2d 15 (1990); aff'd 19 A.S.R.2d 54 (App. Div. 1991); Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76; Cf. Eute v. Etimani, 24 A.S.R.2d 139 (1993).
See e.g. Bradley v. Appalachian Power Company, 256 S.E. 2d 879 (W.Va. 1919).
See supra note 1.
The Fono enacted statute A.S.C.A. § 27.0531(f) to make those establishments that directly benefit financially from the consumption of alcohol accountable to the public. Along with profit and gain come social and legal responsibility, especially in an area that carries such a high potential for harm. But this statute was not intended to unfairly penalize businesses. It would be unfair to invoke joint and several liability when we find it is possible to apportion fault to the parties involved. The Country Club should not be made to bear the burden of damages alone in the event that indemnification is not possible.
The Hercules court mled that: Under a “proportional fault” system . . . complete apportionment between the negligent parties, based on their respective degree of fault, is the proper method for calculating and awarding damages.
We note, however, that a great amount of evidence was presented to the court to show that Masania'i was intoxicated when he entered the Country Club, We carefully weighed the evidence and found that the Country Club breached its statutory duty, under A.S.C.A. § 27.0531(f), to refrain from allowing intoxicated patrons onto the premises. (See Masaniai v. The Country Club, 2 A.S.R.3d 120, 128 which reads, “Masania'i voluntarily consumed an inordinate amount of alcohol.”) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486577/ | *149OPINION AND ORDER
On June 9, 1997, plaintiff MSM Village Store (“MSN”) filed a complaint against GMP Associates, Inc. (“GMP”) seeking payment of $7,000. MSM claims this is the remaining balance on a verbal agreement whereby MSM rendered services for GMP in acquiring a government contract. GMP filed an answer on June 20, 1997, stating that it has not had any contractual relationship with MSM, and that it does not owe any money to MSM. This matter came to trial on February 3, 1998.
Discussion
A. r'nntrar.t between MSM and GMP
The evidence does not support the finding of a contract between MSM and GMP. GMP, a Hawaii corporation, performed work in American Samoa on an airport resurfacing project in 1996. MSM claims that there was an oral contract between itself and GMP whereby GMP would pay MSM a finder’s fee and charges for other services in connection with the airport project (“services contract”). The amount of the airport project was $120,000, and MSM claims that its compensation under the alleged services contract was $20,000. MSM states that $13,000 of this compensation has been paid and seeks payment for the remaining $7,000.
MSM provides no evidence that would lead us to believe a services contract was formed between MSM and GMP. “To constitute a valid contract, there must be offer, acceptance, and consideration.” Bernston v. Cheney, 815 F. Supp. 1145, 1147 (N.D. Ill. 1993). There also must be mutual assent, whether subjective, see, e.g., Beck v. Reynolds, 903 P.2d 317, 319 (Okl. 1995) (“In order to have a valid contract there must be mutual consent, or a meeting of the minds.”), or objective, see, e.g., City of Canby v. Rinkes, 902 P.2d 605, 610 (Or. App. 1995) (holding that the objective theory of contract does not depend on whether “minds met,” but “whether the parties agreed to the same, express terms of the agreement, and on whether those terms constitute an enforceable agreement.”).
There is no written agreement which shows these contractual elements. MSM claims an oral contract, but does not provide sufficient evidence of when that agreement was formed, by whom it was formed, what promises were made, what performance was required, or what the mutual understanding was between the parties. MSM does present an invoice containing the finder’s fee amount and amounts for other services, but the invoice was prepared after initiation of this lawsuit. MSM and GMP had neither a “meeting of the minds” nor an agreement to the same express terms. We find, therefore, that there was no express *150oral services contract between MSM and GMP.
It is possible for the court to find an implied contract from the conduct of the parties. Ginsu Products, Inc. v. Dart Industries, Inc., 786 F.2d 260, 265 (7th Cir. 1986). However, an implied contract still has the same requirements as an express contract, including mutual agreement. Matter of Penn Cent. Transp. Co., 831 F.2d 1221, 1228 (3rd Cir. 1987) (“An implied-in-fact contract is a true contract arising from mutual agreement and intent to promise, but where the agreement and promise have not been verbally expressed. The agreement is inferred from the conduct of the parties. The elements necessary to form an implied-in-fact contract are identical to those required for an express agreement.”); Dr. Franklin Perkins School v. Freeman, 741 F.2d 1503, 1515 (7th Cir. 1984) (quoting In re D. Federico Co., Inc., 8 B.R. 888, 897 (Bankr. ID. Mass. 1981)). MSM has shown that they provided office space, janitorial services, truck rental, license renewal, phone and fax services, and store advances to GMP. These activities show that there was regular interaction between the parties for some period of time. These activities, however, do not satisfy the elements required for a contract and do not provide evidence of a mutual agreement. Therefore, there is no implied services contract between MSM and GMP. ■
MSM claims that GMP has already paid $13,000 of the $20,000 services contract. Payments made by GMP are not, however, evidence of such a services contract. In December of 1995, GMP and Mora Mane (“Mora”), doing business as MYL Incorporated, entered into a written agency contract. Sallie S. Mane is the licensee doing business as MSM and is Mora’s wife. Under the agency contract, Mora was to perform certain services for GMP for compensation of $1,000.00 per month, including following up, with new requests for proposals or other contract procurement of the American Samoa Government. GMP presented evidence of payments they made to Mora. GMP paid Mora $5,000 on November 11, 1996, and $2,000 on November 22, 1996. We believe these payments and the remainder of the $13,000 that MSM claims was paid under an oral contract were actually payments to Mora under the written agency contract. The payments, therefore, do not provide evidence of a contract for a finder’s fee or other services between MSM and GMP. There is an express agency contract between GMP and Mora covering activities that would be performed in a finder’s fee arrangement. It is therefore unlikely that an implied contract covering the same subject exists between GMP and MSM. See Matter of Penn Cent., 831 F.2d at 1229-30.
*151B. Quantum Meruit Recovery
Even though no services contract was formed, MSM is entitled to quantum meruit recovery for the benefits they conferred upon GMP. See, e.g., Fealofa'i v. Reid, 14 A.S.R.2d 57, 60 (Trial Div. 1990) (finding ‘that if a lease did not amount to a binding agreement, each party would nevertheless be entitled to quantum meruit recovery for any benefits conferred upon’ the other party); Hardco Inc. v. Lutali, 14 A.S.R.2d 1, 12 (Trial Div. 1990) (holding that where parties did not attempt to reach agreement on the price of modifications to a building under construction, there was no contract and the court must apply the doctrine of quantum meruit to award the contractor the value of the benefit conferred on the buyer). It is evident that MSM provided office space, janitorial services, truck rental, license renewal, phone and fax services, and store advances to GMP. MSM is therefore entitled to recover the reasonable value of these services.
Evidence at trial showed that GMP used MSM’s premises for approximately five months, May to September 1996. MSM’s statement of September 23, 1996, provides a reasonable basis for calculating the reasonable value of the services provided by MSM to GMP during this five-month period. These services and their monthly value in the September 23 statement include office space and janitorial services— $550, telephone and fax charges — $331.40, and store advances— $157.98, a total of $1,039.38. This total amount multiplied by five months equals $5,196.90, which is a reasonable total valuation for these services. MSM is also entitled to recover the value of providing a truck rental for two days — $100, and reimbursement for payment of the renewal fee for GMP’s 1996 business license — $25. The total reasonable ' value of the services MSM conferred on GMP, under the evidence, is, then, $5,321.90. MSM is therefore entitled to judgment against GMP in the amount of $5,321,190.
Order
1. No oral contract, either express or implied, exists between MSM and GMP. MSM recovers nothing against GMP on a contractual basis.
2. MSM has conferred services of value upon GMP and is entitled to recover the reasonable value of these services under a theory of quantum meruit. MSM recovers damages of $5,321.90 against GMP on a quantum meruit basis, costs of suit, and post-judgment interest at the rate of 6% per annum on the total amount of the damages and costs. Each party shall pay their own attorney’s fees.
Judgment shall enter accordingly. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486578/ | ORDER DENYING EACH PARTY’S MOTION FOR RECONSIDERATION OR NEW TRIAL
Plaintiffs Ruta Fou (“Ruta”) and Togaiia Fou (collectively “the Fous”) brought suit against defendant Table, Inc. dba Talofa Video (“Talofa Video”) for defamation in connection with posting a copy of the Fous’ check at Talofa Video’s place of business. The trial was held on October 24, 1997 with counsel for both sides present. On February 9, 1998, we held Talofa Video liable for defamation by libel and awarded the Fous *154$6,000 in damages, plus ‘actual costs of suit.”
On February 19, 1998, Talofa Video timely moved for reconsideration or new trial. This motion was heard on March 23, 1998. On March 2, 1998, the Fous’ counsel flied an affidavit setting forth $4,072.50 in attorney’s fees as the Fous’ claim for “actual costs of suit.” We advised the Fous’ counsel at the March 23 hearing that “actual costs of suit” does not include attorney’s fees. On March 25, 1998, the Fous moved for reconsideration or new trial on the issues of recovering their attorney’s fees and the adequacy of the damages awarded to them.
Discussion
A. Talofa Video’s Motion
Talofa Video essentially raises three issues in its motion. First, it maintains that two of the court’s factual findings are against the weight of the evidence: (a) that the posted check was publicly displayed and (b) that the posted check conveyed a bad check message. Second, it claims that the posted check was a privileged communication. Third, it argues that, in any event, the posted check could not be libel per se, and the Fous must'therefore prove special damages.
1. Fact Findings
a. Public Display
Talofa Video claims that the check was continuously posted at a location outside of the view of anyone except its employees. It attacks the credibility of the Fous’ witness, the customer who testified that she saw the check in plain view at Talofa Video’s store. We found that by the action of one of Talofa Video’s employees, the Fous’ check became visible to the general public as well as to Talofa Video’s employees. We made this finding after carefully weighing all the testimony, including the customer’s demeanor while testifying, and other evidence. We are not now persuaded in any degree to change this finding.
b. Bad Check Message
Talofa Video insists that even if an employee told the testifying customer that the check was unacceptable,1 the Fous’ check was not necessarily *155unacceptable as a bad check (a check passed without sufficient fluids or without an account). However, the customer, a storekeeper herself, testified that bad checks are commonly posted by retail stores in American Samoa to remind sales clerks not to accept any more checks from the drawers, and that she thought the Fous’ check was a bad check when she saw it. The bad check perception is clear under the evidence, with or without the employee’s unacceptability statement. We stand by this finding.
2. Privilege
Originally, we summarily concluded that the evidence did not present any genuine privilege issue. While Talofa Video did little, if anything, to advance and develop the privilege issue during the trial, we will address it in appropriate depth now.
Talofa Video asserts that the posted check was a privileged communication under A.S.C.A. § 43.5202, which in relevant part reads:
A privileged publication is one made:
(3) in a communication without malice to a person interested] therein by one who is also interested or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication [is] innocent or who is requested by the person interested to give the information;
Talofa Video argues that it posted the Fous’ check as a business management measure to inform its employees of its policy not to accept checks drawn on banks in business outside of American Samoa. It claims that the posting for this purpose was a conditionally privileged communication under § 43.5202(3) and thus was exempted from defamation liability.
Under the concept enunciated by § 43.5202(3), a communication published without malice is conditionally privileged when the publisher reasonably believes that the defamatory matter communicated affects a sufficiently important interest of the publisher and the recipient’s knowledge of this information serves to lawfully protect the publisher’s interest. See RESTATEMENT (SECOND) OF TORTS § 594 (1977). The common law used the conditional privilege as a means of “balancing the interest of the defamed person in the protection of his reputation against the interests of the publisher, of third persons and of the public in having the publication take place.” Id. § 594 cmt. b. The conditional privilege is lost if the publisher abused the privilege. Id. § 599.
*156The law concerning conditional privilege abuse in cases of defamation of private persons was dramatically impacted by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974). Essentially, the Supreme Court held that under the provisions protecting free speech and press in the First Amendment to the United States Constitution, the states cannot impose liability without fault on the publisher of defamatory matter injurious to a private person. Id., 418 U.S. at 344, 94 S. Ct. at 3009, 41 L.Ed.2d at 809. Article I, § 1 of the Revised Constitution of American Samoa has the same free speech and press provisions.
We conclude that the later posting of the Fous’ check in public view was not privileged. Members of the public were not among the particular recipients of information who needed to know Talofa Video’s off-island check policy. The public’s knowledge of a check conveying the appearances of a bad check did not protect Talofa Video’s licit interests. See discussion in RESTATEMENT (SECOND) OF TORTS Chapter 25, Topic 3, Special Note on Conditional Privileges and the Constitutional Requirement of Fault.
We agree, however, that the initial posting of the Fous’s check to only Talofa Video’s employees served its legitimate business purposes and was conditionally privileged at that point under A.S.C.A. § 43.5202(3). Assuming for discussion that the privilege continued when the check was publicly displayed because the off-island check policy was still conveyed to the employees, Talofa Video remained immune from liability unless the conditional privilege was lost through malicious abuse.
Gertz defined malice as present when the publisher either knows that the published matter is false and defamatory or acts in reckless disregard as to its truth or falsity. Id., 418 U.S. at 330-32, 94 S. Ct. at 3002, 41 L.Ed.2d at 799-801. The RESTATEMENT adopts this standard of malice as the level of abuse resulting in loss of the conditional privilege. Restatement (Second) of Torts § 600. We will apply the same standard in the present case.
It was not necessary to post the check to convey Talofa Video’s off-island check policy to its employees. The employees could have been easily instructed on this policy by either an oral or written directive. The check could have been displayed with an appended notation of this policy. Talofa Video’s ill-advised action was manifested when the check became public information. Talofa Video failed, without showing any justification, to return the check to its hidden position and ignored the consequences of the public display. In sum, at the very least, Talofa Video acted in reckless disregard of the truth or falsity of the defamatory *157character of the publicly posted check.
Therefore, we further conclude that Talofa Video lost the benefit of any conditional privilege that may have been afforded by A.S.C.A. § 43.5202(3) through its malicious conduct.
3. Damages
Talofa Video declares that the posted check did not imply that Ruta had committed a criminal act and, thus, the defamatory act, if any, was not libel per se. This argument is without merit. While it was publicly displayed, the posted check clearly imparted the idea that Ruta had passed a bad check, a criminal act under the laws of American Samoa. A.S.C.A. § 46.4118. We applied the common law correctly in our initial discussion. Thus, the posted check was libelous while it was visible to the general public and was actionable per se without proof of actual damages. RESTATEMENT (SECOND) OF Torts § 569. The Supreme Court preserved the common law in situations, like the present one, involving private concerns of a defamed private person. Dun & Bradstreet, 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985).
Accordingly, Talofa Video’s motion for reconsideration or new trial will be denied.
B. The, Fous’ Motion
The Fous address two issues in their motion. First, they assert that the court erred because the Fous’ recovery did not include their attorney’s fees. Second, they claim that the $6,000 awarded as damages for the harm to their reputation and their emotional distress was not adequate compensation. A threshold question on the timeliness of the Fous’ motion is also present.
1. Timeliness of the Motion
The Fous’ motion was filed on March 25, 1998, 44 days after the court’s opinion and order was entered on February 9, 1998. A motion for a new trial must be filed within 10 days after the announcement of the judgment. A.S.C.A. § 43.0802(a). The Fous seek to excuse the late filing of their motion, claiming that the meaning of the court’s award of “$6,000 in damages plus actual costs of suit” on February 9 was not made clear to them until the hearing on Talofa Video’s motion for reconsideration or new trial on March 23, 1998.
We will discuss this excuse further and other aspects of the Fous’ motion below to edify the parties. However, we hold here that this excuse is *158without merit, and that the Fous’ motion was filed untimely. The Fous’ motion will, therefore, be denied on this jurisdictional point alone.
2. Costs of Suit and Attorney’s Fees
“Costs of suit,” “court costs,” and “costs” are exchangeable terms which are specific and narrow in scope. Usual costs include filing fees, process and other service fees, and similar costs which are fixed by law and are necessarily paid to the court or its officers. A.S.C.A. § 43.0101. A prevailing party is entitled to recover costs as a matter of course, in the absence of a different provision by statute, court rale, or court order. T.C.R.C.P. 54(d). The modifier “actual” does not in any sense expand the scope either of the meaning of these terms or of the recoupment of costs.
Recovery of attorney’s fees and recovery of costs of suit are separate and unrelated issues. The usual rale on attorney’s fees is that each party bears the burden of this expense. See Samoa v. Gibbons, 3 A.S.R.2d 121, 123 (Trial Div. 1986). In the absence of a contractual, statutory, or other legal basis, attorney’s fees are not recoverable. See Samoa Products, Inc. v. Pereira, 3 A.S.R.2d 45, 46 (Trial Div. 1986); Black’s Law Dictionary 312 (5th ed. 1979). American Samoa has not allowed reimbursement of attorney’s fees in defamation actions by statute. The Fous have neither pled nor proven any other legal basis to obligate Talofa Video to pay this litigation expense.
The Fous’ counsel must have known, or certainly should have known, these elemental precepts of costs and attorney’s fees when he undertook the Fous’ representation.2
*1593. Adequacy nf the? Damages
We have taken another look at the $6,000 in damages that we initially awarded the Fous. We do not agree with the Fous’ contention that this is an appropriate case for application of a “deep-pocket” theory of recovery' simply because Talofa Video is a reasonably successful business. We believe that the injury to the Fous’ reputation and their consequential emotional distress is not lasting. The $6,000 awarded is an ádequate measure of the damages, both compensatory and exemplary, and will not be modified.
Order
1. Talofa Video’s motion for reconsideration or new trial is denied
2. The Fous’ motion for reconsideration or new trial is also denied.
It is so ordered
Talofa Video also suggests that this employee’s statement is inadmissible hearsay. Talofa Video did not object to this evidence at the trial. Moreover, the statement was not offered for the truth of the matter asserted and thus is not hearsay. See T.C.R.Ev. 801(c).
Attorney’s fees in this case are a matter of agreement between the Fous and their counsel at this point. However, we have several criticisms about the detailed statement of the attorney’s fees filed by Fous’ counsel for the court’s review and approval.
We are surprised that the Fous’ counsel has charged them attorney’s fees based on hourly rates. Tort actions are generally undertaken on a contingent fee arrangement providing the attorney a percentage of the client’s recovery. One-third of the recovery awarded after trial is the common standard.
When the court is properly called upon to approve hourly fees, we usually apply a standard of $100 per hour for out of court services and $125 per hour for in court services. The Fous’ counsel is using a rate of $150 per hour for in court services.
The Fous’ counsel states that he spent 2.3 hours drafting the complaint and summons, 2.9 hours drafting a request for admissions, .45 hour *159drafting a motion to set the trial date and the hearing notice, 5.7 horns on legal research, and 10.95 hours drafting a trial memorandum, a total of 22.3 hours on these matters among other out of court 'services. Defamation law is relatively complex and has seen significant change in recent years. However, in this case, the fact situation is simple, and the prospective damages were not monetarily great. We think that even if counsel devoted this number of hours to these office matters, the resulting fee calculations substantially overstate their value to his clients.
The Fous’ counsel also states that he spent 1.3 hours in court at two trial setting hearings, which took a total of three minutes according to the clerk’s minutes. He further states that the trial required 4.65 hours, while the clerk’s minutes reflect that the trial lasted one hour and 25 minutes, including a recess. Counsel may spend some unproductive time traveling tp and from court and waiting in court to be heard on a matter. However, ordinarily clients cannot be justifiably charged for this time. We do not think that attorney’s fees for in court services are reasonably based on ’ anywhere near 5.95 hours in this case.
. The Fous’ counsel has charged $4,072.50 for his services in this case. We think that the reasonable value of those services is approximately ' $ 1,500 and certainly no more than $2,000. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486579/ | ORDER GRANTING PETITIONER'S MOTION FOR INTERLOCUTORY INJUNCTIVE RELIEF
Introduction
On February 10, 1998, the American Samoa Workmen's Compensation Commission (“Commission”) ordered the American Samoa Government (“ASG”) to pay Lafulafu Lemapu (“Lemapu”) worker's compensation total permanent disability benefits in addition to the retirement benefits *161he already receives. ASG, in its role as employer, filed for judicial review, by way of injunctive relief pursuant to A.S.C.A. § 32.0652, seeking to enjoin the continuation of Lemapu's worker's compensation benefits. Additionally, ASG petitions, apparently on behalf of the ASG retirement office, declaratory relief under A.S.C.A. § 7.1441(c), seeking reimbursement of the retirement benefits Lemapu has already received.3
Discussion
In these matters we are guided by A.S.C.A. § 43.13010). For the issuance of a preliminary injunction, this enactment requires a showing that (1) a substantial likelihood that the applicant will prevail at the trial on the merits and that a permanent injunction will be issued; and that (2) the applicant will suffer great or irreparable injury before a full and final hearing on the application for a permanent injunction can be held regarding.
Petitioner contends that Lemapu's attempt at “double dipping” from the coffers of the ASG Retirement Fund and the Workmen's Compensation Fund is impermissible. The Commission on the other hand argues the absence of “double dipping” because retirement benefits and compensation benefits are separately based and, therefore, not duplicative. That is, retirement benefits compensate “service to government” while worker's compensation benefits compensate “inability to work.”
The Commission's contention finds support in a number of cases that have upheld double recovery of worker's compensation benefits with non-disability benefits. For example, in Rhodus v. American Employers Ins. Co., 9 So.2d 821, 825 (La. 1942), the court upheld a claimant's right to both pension benefits and his worker's compensation award resulting from the same injury, on the reasoning that no connection exists between the entitlements. Similarly, a California case, Todd Shipyards Corp. v. Landy, 239 F.Supp. 679, 680 (Calif. 1965), held that the receipt of benefits under the Longshoremen's and Harbor Worker's Compensation Act for the period during which the claimant received California state unemployment compensation benefits did not constitute illegal double *162recovery. See Longshoremen and Harbor Worker's Compensation Act § i et seq., 33 U.S.C.A. § 901 et seq. The Landy court predicated its decision on the plaintiffs failure to show that Congress intended the federal Worker's Compensation Act to be read in conjunction with state unemployment acts. ' ■
Here, however, the Fono has unambiguously proscribed the payment of early retirement benefits together with the payment of worker's compensation benefits brought on by some disabling condition at work. The American Samoa Government Employees Retirement Act, A.S.C.A'. § 7.1441(c)(2), reads in relevant part:
A member [of the American Samoa Government Employees'' Retirement Fund] who has not attained his early retirement date and who has contributed to the fund for at least 5 years may be separated and entitled to immediate unreduced retirement ■ annuity . . . provided, the member is not eligible for workmen's cótnpensation for the condition causing the separation.
[Emphasis added.] Quite clearly then, the opportunity for “dbuble dipping” exists here. We are not persuaded with a suggestion that the Workmen's Compensation Act need not be implemented harmoniously with the Retirement Act. Accordingly, we are not impressed with the submission from both the Commission and the Real Party in Interest-that we must focus, myopically, on the provisions of the American Samoa Workmen's Compensation Act alone. The logical extension of this argument is that we not only ignore the clear legislative “double dipping” proscription enunciated in the Retirement Act, but that we disregard altogether any rights that the retirement office might have to intervene.
In terms then of A.S.C.A. § 43.1301(j), we conclude (1) a substantial likelihood that the ASG will prevail on the merits; and (2) the' likelihood of great injury to ASG, or more precisely to the ASG retirement office, if provisional and interlocutory relief is not made available to petitioner. As we understand it, the Real Party In Interest continues to receive retirement benefits pending final disposition hereof. Therefore, the urgency for an immediate award of compensation to a disabled'employee is greatly alleviated here.
The motion for preliminary injunction is granted. The payment of permanent disability benefits to the Real Party In Interest is stayed, but shall continue to be paid by ASG into the registry of the Court.
It is so ordered.
The Attorney General, representing the retirement office, has perhaps jumped the gun by filing for declaratory relief at the outset. Technically, the retirement office should have separately intervened in this proceeding, just as the Real Party in Interest has done so in order to secure his interests. However, given the liberality of notice pleading in this jurisdiction, and the retirement office’s cognizable claim to an interest in the fund on deposit with the court, we will treat the retirement office's claim as properly before us. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486581/ | ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS FOURTH, FIFTH AND SIXTH CAUSES OF ACTION
Background
Plaintiff Taimane Johnson (“Johnson”) filed a complaint on May 29, 1998 and an amended complaint on June 9, 1998 against defendants American Samoa Government (“ASG”), American Samoa Community College (“ASCC”), Board of Higher Education (“BOHE”),1 Land Grant Program (“LGP”), Department of Public Safety (“DPS”), Tmdie Iuli (“Iuli”), as the acting president of BOHE, Robert B. Coulter (“Coulter”), as the chairman of BOHE, Salu Hunkin (“Hunkin”), as the President of ASCC, Papalii Dr. Failautusi Avegalio (“Avegalio”), as the former President of ASCC, and Does 1 through 10 alleging six causes of action. The first three causes of action in this complaint are breach of contract claims arising from an agreement concerning the use of Johnson’s land *176under the LGP and from two settlement agreements entered into after conflicts arose under the original contract. The fourth cause of action is a claim of false arrest, and the fifth and sixth causes of action are claims of intentional and negligent infliction of emotional distress.
On June 29, 1998, ASG, ASCC, BOHE, LGP, DPS, and Coulter moved to dismiss the fourth, fifth, and sixth causes of action under T.C.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted. On July 21, 1998, Hunkin joined in the motion. The motion came for hearing on July 23, 1998. Johnson, ASG, ASCC, BOHE, LGP, DPS, Coulter, Hunkin, and Iuli were represented by counsel. Iuli also then joined in the motion. Avegalio did not appear.
On July 24, 1998, pursuant to T.C.R.C.P. 41 (a)(ii), the parties stipulated to dismiss Coulter from the action. Thus, any references below to defendants exclude Coulter.
Discussion
A. T.C.R.C.P. 12(b)(6)
Our review of the motion to dismiss under T.C.R.C.P. 12(b)(6) is limited. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974). The pleadings should be construed in favor of the claimant, Beaver v. Cravens, 17 A.S.R.2d 6, 8 (Trial Div. 1990), and the burden of demonstrating that there is no claim is upon the party moving to dismiss. Johnsrund v. Carter, 620 F.2d 29, 33 (3d. Cir 1980).
“[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Moeisogi v. Faleafine, 5 A.S.R.2d 131, 134 (Land and Titles Div. 1987). A defense of immunity is one example of a proper basis for granting a motion to dismiss under T.C.R.C.P. 12(b)(6). See, e.g., 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357,at355 (2ded. 1990); 2AJ. Moore, MOORE’S Federal Practice, ¶ 12.07[2.--5] (2d ed. 1991) (“A motion under 12(b)(6) should also be granted if an affirmative defense or other bar to relief is apparent from the face of the complaint, such as the official immunity of a defendant, or the statute of limitations.); Coplin and Assoc., Inc. v. U.S., 814 F. Supp. 643 (W.D. Mich. 1992) (upholding the trial court’s grant of a Rule 12(b)(6) motion to dismiss where the United States had sovereign immunity); Hinnen v. Kelly, 992 F.2d 140 *177(7th Cir. 1993) (upholding district court’s dismissal of a civil suit against a special agent for the Drug Enforcement Administration who had qualified immunity).
Additionally, it is proper to use a Rule 12(b)(6) motion to challenge the sufficiency of part of a complaint, such as a single cause of action. 5A C. Wright & A. Miller, Federal Practice and Procedure § 1358, at 422 (2d ed. 1990 & Supp. 1994).
B. Government Immunity .
At common law, a sovereign was absolutely immune from suit. This doctrine of absolute immunity, although criticized by some as “feudal and monarchist,” Savage v. Gov’t of American Samoa, 1 A.S.R.2d 102, 106 (Trial Div. 1983), citing William L. Prosser, Law of Torts § 131 (4th ed. 1978), was adopted in the United States at both the national and state level. Id. Currently, a government entity is immune from suit unless it consents to suit through legislation or by acting in a nongovernmental capacity. This concept of sovereign immunity is said to protect the state from “burdensome interference with state funds, property, and instrumentalities.” Ferstle v. American Samoa Gov’t, 4 A.S.R.2d 160, 164, n. 3 (Trial Div. 1987)
“[T]he Territory of American Samoa possesses immunity from suit without its consent' or waiver.” Ferstle, 4 A.S.R.2d at 166. Under Chapter 12 of the A.S.C.A., the Legislature has provided a limited waiver of ASG’s immunity from suit for actions based in tort. This legislation is known as the Government Tort Liability Act (“GTLA”). A.S.C.A. § 43.1201. Johnson alleges that she filed an administrative claim under A.S.C.A. § 43.1205, satisfying a jurisdictional prerequisite to GTLA judicial proceedings. She thus elected to proceed with her tort claims in the fourth, fifth, and sixth causes of action under the GTLA. The GTLA, then, governs these three causes of action and frames our analysis and ruling on the motion to dismiss.
Previous decisions of this court have also established that ASG waives its immunity when it acts in a proprietary fashion, such as when it establishes and operates a bank or acts as a landlord. See, e.g., Fa'atiliga v. Lutali, 3 A.S.R.2d 139, 143 (Trial Div. 1986) (holding that a motion to dismiss claims against ASG on the theory that the suit was not based in tort should not be granted where AEG had created a bank, made loans, took mortgages, and engaged in related business activities); Savage, 1 A.S.R.2d at 106 (holding that a landlord-tenant relationship exists between ASG and the occupants of the Tafima governmental housing tract, and finding ASG responsible for the stray dog problem in the housing area and liable for a dog bite to the child of a tenant).
*178C. The Fourth Cause of Action — False Arrest
In her fourth cause of action, Johnson claims that she was falsely, maliciously, and with no probable cause, accused of committing the crime of felony theft, and thus charges all defendants with false arrest.
1. Agency and Program Defendants
Although ASG’s immunity from suit is waived for some torts under the GTLA, it is specifically preserved for others. The GTLA states that:
(b) The provisions of this chapter do not apply to: . . . (5) any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights.
A.S.C.A. § 43.1203. A claim of false arrest is therefore not a viable claim under the GTLA. See also, Rakhshan v. American Samoa Gov’t, 20 A.S.R.2d 1, 10 (Trial Div. 1991) (“In terms of an action based on the notion of false arrest or false imprisonment, the government remains immune from suit.”)
Because ASG’s immunity remains intact for claims of false imprisonment, Johnson’s fourth cause of action fails to state a claim upon which relief can be granted. The motion to dismiss the fourth cause of action under T.C.R.C.P. 12(b)(6) will therefore be granted as to all agency and program defendants.
2. Individual Defendants
Although Johnson may not proceed against the agency and program defendants, Join: son may still seek recourse against ASG’s employees individually for false arrest. A.S.C.A. § 43.1211 does not bar suits against individual ASG employees. Rather, dismissal of the fourth cause of action as to the agency and program defendants enables the suit to be maintained against the individual defendants. A.S.C.A. § 43.1211 states that a suit against ASG under the GTLA “shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee whose act or omission gave rise to the claim, or his estate.”
Because the fourth cause of action will be dismissed as to the agency and program defendants, a claim for tortious conduct may now be pursued against the individual defendants who are ASG employees. See Moana v. American Samoa Gov’t, CA No. 133-85, Decision and Order at 5 (Trial Div. Nov. 12, 1986) (plaintiff may sue employee for negligence if *179plaintiff elects or fails to pursue a claim under the GTLA); Henderson v. Bluemark, 511 F.2d 399, 404 (D.C. Ct. App. 1974) (Although a few exceptions exist, “there is no statutory protection for federal employees from personal liability arising out of their own negligent conduct while acting within the scope of their employment.”). Furthermore, even if an employee acts tortiously outside the scope of employment, the employee may still be sued individually. Tevaseu v. American Samoa Gov’t, 5 A.S.R.2d 10, 12 (Trial Div. 1987) (“[S]uit against the individual government employees before the Court is available if it is the case that the said employees’ acts or omissions complained of were made outside of the scope of the employment.”). Because the agency and program defendants will be dismissed from this fourth cause of action, the action may still be maintained against the individual defendants who are ASG employees. See Aga v. U.S. Secretary of Interior, 3 A.S.R.2d 130, 132 (Trial Div. 1986).
D. The Fifth Cause of Action-Intentional Infliction of Emotional Distress
In her fifth cause of action, Johnson claims that the defendants, except DPS and Does 5 through 9, intentionally and maliciously harassed her, publicly ridiculed her, and defamed her without legal excuse or reason.
1. The Claim of Intentional Infliction of F,motional Distress
A.S.C.A. § 43.1203(b), quoted above, lists a number of torts for which ASG remains immune. Although often referred to as the intentional torts exception to the GTLA, this section of the act does not exclude all intentional torts from the GTLA’s waiver of immunity. Exclusion from the GTLA’s waiver of immunity, or more simply, preservation of immunity, is instead limited to the torts specifically enumerated in A.S.C.A. § 43.1203(b).
In Gross v. United States, 616 F.2d 295 (8th Cir. 1982),2 the plaintiff was a farmer whose intentional infliction of emotional distress was based on the conduct of a county agricultural stabilization and conservation service committee in denying the plaintiff participation in a feed grain program. The court held that “courts should not read exceptions into the Federal Tort Claims Act beyond those provided by Congress” and that a claim of intentional infliction of emotional distress is a viable action under the Federal Tort Claims Act. Id. at 303-04 (citations omitted). The plaintiffs claim for damages was therefore not barred by the *180intentional torts exception to the Federal Tort Claims Act. Id.
We find this reasoning persuasive. We decline to read into the GTLA exceptions beyond those specifically listed by the Legislature. Johnson’s claim for intentional infliction of emotional distress, then, is a proper claim against ASG under the GTLA. Intentional infliction of emotional distress is a claim upon which relief can be granted and thus the intentional nature of the claim does not provide a basis for granting the motion to dismiss.
We next examine whether a claim of intentional infliction of emotional distress may be maintained against the defendants Johnson has named.
2. The Individual Defendants
Iuli, Hunkin, and Avegalio, the named individual defendants, are or were ASG’s employees. The GTLA addresses the propriety of suits against individual ASG employees.
A.S.C.A. § 43.1211, quoted, above, states an ASG employee may not be sued when a plaintiff elects to pursue a claim under the GTLA. Aga v. U.S. Secretary of Interior, 3 A.S.R.2d at 131-32 (“.. . so long as Plaintiff is proceeding under the [Government Tort Liability] Act, she can only sue A.S.G.”); Moana v. American Samoa Gov’t, CA No. 133-85, Decision and Order at 5 (holding that a suit can only be maintained against ASG and not the individual defendants when a plaintiff proceeds under the GTLA).
However, a plaintiff is not entirely without recourse against an individual ASG employee. A plaintiff can, for example, choose to not proceed under the GTLA. “It would seem that when a tort victim either by election or ignorance fails to pursue a claim under the Government Tort Liability Act, there is no prospect for a judgment against the government as contemplated by 43.1207[.] He is not therefore precluded from suing the employee for negligence.” Moana, CA No. 133-85, Decision and Order at 6.
Because Johnson has chosen to proceed under the GTLA,- she has no valid claim against the individual employees. They are immune from suit while the claim against ASG proceeds. The fifth cause of action against Iuli, Hunkin, and Avegalio, therefore, fails to state a claim upon which relief can be granted and will be dismissed as to these defendants.
*1813. The Agency arid Program Defendants
In addition to the individual defendants, Johnson has also named ASG, ASCC, BORE, and LGP as defendants for the fifth cause of action.
It is proper for Johnson to maintain a claim against ASG because, as explained above, ASG has waived its sovereign immunity for certain claims by enacting the GTLA.
The Legislature may also establish governmental entities, within ASG’s organizational structure, and give those entities the power to sue and be sued. ASCC is one such entity. A.S.C.A. § 16.2002 establishes ASCC’s powers and duties and clearly states that ASCC “may sue and be sued.” See also, Deleeuw v. Internal Revenue Service, 681 F. Supp. 402, 403 (E.D. Mich. 1987) (“An executive department of the United States or one of its agencies may only be sued in its own name if the authority to be sued has been expressly been [sic] conferred by Congress.”); Koziokowski v. Delaware River Port Authority, 397 F. Supp. 1115, 1120 (D.N.J. 1975) (holding that the “sue and be sued” clause in a congressionally approved bistate compact operated as a waiver of any claim of immunity from suit in a negligence action against the agency for design, construction, maintenance and control of a bridge). Johnson, then, may maintain a claim against ASCC under the GLTA.
BOHE and LGP, on the other hand, are not parties against whom a claim can be maintained. Although established under the same chapter of the A.S.C.A. as ASCC, BORE is an agency of ASG that has not been given the power to sue and be sued. A.S.C.A. § 16.2003-.2004. The LGP is also recognized in statute, primarily for the purpose of complying with federal laws. A.S.C.A. § 16.2011. It also has not been given the capacity to sue and be sued. The LGP is not even an agency; it is a program. BOHE and LGP, therefore, are not proper named parties for claims brought under the GTLA. See, e.g., Scheimer v. National Capital Region, National Park Service, 737 F. Supp. 3, 4 (D.D.C. 1990) (for actions under the Federal Tort Claims Act, “[a] government agency may not be sued in its own name.”); Calderon v. United States Dept. of Agriculture, 756 F. Supp. 181, 183-84 (D.N.J. 1990) (holding that the United States itself is the only party which may be sued under the Federal Tort Claims Act); Carib Gas Corp. of St. Thomas v. Delaware Valley Industrial Gases, Inc., 660 F. Supp. 419, 420-21 (D.V.I. 1987) (dismissing a cause of action against the Department of Transportation and holding that only the United States could be a named defendant under the Federal Tort Claims Act); Hagebush v. United States, 657 F. Supp. 675, 678 (D. Neb. 1986) (“The claims of the plaintiffs in this action based upon the alleged tort actions of the named agencies may be brought only against the United States and not against the agencies in *182their name.”).
Of the governmental defendants, then, only ASG and ASCC are proper named parties for claims under the GTLA. The fifth cause of action therefore fails to state a claim upon which relief can be granted as to BORE and LGP, and the motion to dismiss as to these defendants will be granted. The fifth cause of action remains as a claim only against ASG and ASCC, and Does 1 through 4, provided that they are not ASG employees.
E. The Sixth Cause nf Action — Negligent Infliction of Emotional Distress
In her sixth cause of action, Johnson charges DPS and Does 5 through 9, designated as police officers, with negligent infliction of emotional distress by failing to perform their duties in a prudent and professional manner.
1. The Claim of Negligent Infliction of Emotional Distress
On its face, negligent infliction of emotional distress is a viable claim under the GTLA. Therefore, we again turn to whether such a claim is viable against the named defendants.
2. The Individual Defendants
Johnson indicates that Does 5 through 9 are police officers whose names are yet to be ascertained. According to our previous analysis, individual employees of ASG are not proper defendants while a party is pursuing a claim against ASG under the GTLA. A.S.C.A. § 43.1211. The sixth cause of action as to Does 5 through 9 will therefore be dismissed.
3. The Agency Defendant
DPS is an agency of ASG established under A.S.C.A. § 4.0301(a)(9). It has not been given the power to sue and be sued. As analyzed above, ASG’s agencies of this nature are not proper named parties under the GTLA. The sixth cause of action as to DPS will therefore be dismissed. It remains only against ASG.
Order
1. The motion to dismiss the fourth cause of action, the claim of false imprisonment, is granted in part and denied in part. The fourth cause of action is dismissed as to ASG, ASCC, BOHE, LGP, and DPS. The fourth cause of action remains as to Iuli, Hunkin, and Avegalio.
*1832. The motion to dismiss the fifth cause of action, the claim of intentional infliction of emotional distress, is granted in part and denied in part. The fifth cause of action is dismissed as to Iuli, Hunkin, and Avegalio and as to BOHE and LGP. The fifth cause of action remains as to ASG and ASCC, and Does 1 through 4, provided that they are not ASG employees.
3. The motion to dismiss the sixth cause of action, the claim of negligent infliction of emotional distress, is granted in part and denied in part. The sixth cause of action is dismissed as to DPS and Does 5 through 9. The sixth cause of action remains as to ASG.
It is so ordered.
The caption on the amended complaint identifies BORE as the Department of Higher Education. The court, on its own motion, has amended the caption to reflect that BOHE is the entity identified in the body of the complaint.
Federal cases interpreting the Federal Tort Claims Act can aid in the interpretation of a state or territorial tort claims act with similar provisions. Hoctel v. State, 343 N.W.2d 832, 833 (Iowa 1984). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486583/ | ORDER DISMISSING MOTION FOR RECONSIDERATION, ..' DENYING MOTION TO STAY AWARD OFATTORNEY’S FEES AND COSTS, SETTING AMOUNTS OF ATTORNEY’S FEES. AND COSTS, AND IMPOSING SANCTIONS UNDER T.C.R.C.P. 11.
On August 5, 1997, the court’s opinion and order was entered in these actions. In essence, we dismissed these actions, pursuant to T.C.R C.P. 41(b), as they relate to claims by plaintiff/claimant Alai'asa Filifili Mailei (“Alai'asa Filifili”) for the Alai'asa Family (collectively “the Alai'asa”) .to certain lands awarded by this court in Tuutau v. Fanene, Case No. 1-1931 (1932) (“Case No. 1-1931”) to defendant/objector Fanene Aipopo for the Fanene family (collectively “the Fanene”), and in Fanene v. Magalei, LT Nos. 64-77, 74-77, 54-77, 61-74, 60-77, 66-77, 73-77, 1090-70, 62-77, and 72-76 (Land & Titles Div. 1980) (“the 1977 actions”) to the Fanene, defendant/objector Fonoti Tafa'ifi for the Fonoti family (collectively “the Fonoti”), defendant/objector Tauiliili Pemerika (“Tauiliili”), objector Iseulaolemoana S. Sotoa, Legal Representative of the Estate of Salofi R. Sotoa (“Sotoa”) and defendant/objector Tuia'ana *189Moi for the Tuia'ana Family (collectively “the Tuia'ana”).
The court ordered attorney’s fees and costs to be paid by the Alai'asa to the Fanene, the Fonoti, Tauiliili, Sotoa, and the Tuia'ana. In addition, the court -ordered Alai'asa Filifili and the Alai'asa’s . counsel to show cause why either or both of them should not be sanctioned for violations of T.C.R.C.P. 11(b)(1), (2), or (3) in prosecuting these actions. We scheduled hearings on the amount of the awarded attorney’s fees and costs and on the order to show cause on the Rule 11 sanctions for August 18, 1997.
On August 18, 1997, the court, at the Alai'asa’s request, continued the hearings on the amount of the attorney’s fees and costs and the order to show cause on Rule 11 sanctions to September 4, 1997. The court also established a deadline of August 22, 1997, for the Fanene, the Fonoti, Tauiliili, Sotoa, and the Tuia'ana to submit verified statements on the amount of their claims for attorney’s fees and costs.1 Later, on August 18, 1997, the Alai'asa moved for reconsideration of the opinion and order, and to stay the award of attorney’s fees and costs and the imposition of Rule 11 sanctions. The hearing on these motions was also scheduled for September 4, 1997.
The court heard these pending matters on September 4, 1997. All counsel were present.
Discussion
A. Motion for Reconsideration of the Opinion and Order
A.S.C.A. § 43.0802(a) states:
Before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment...
The opinion and order was entered on August 5, 1997. The tenth day later, Friday, August 15, 1997, was a court work day. The motion for reconsideration was not filed until Monday, August 18, 1997, thirteen days after entry of the opinion and order. Filing a motion for a new trial after the tenth day is excusable, but only if the tenth day falls on a *190Saturday, a Sunday, or a holiday. T.C.R.C.P. 6(a); Pal Air Int’l, Inc. v. Samoa Aviation, Inc., 1 A.S.R.3d 1, 2 (Appellate Div. 1997).
Since the filing was late, and the delay was not excusable under Rule 6 (a), this court does not have jurisdiction tb considér Alai'as'a’s motion for reconsideration. Therefore,- the. motion.- for reconsideration will be ■ dismissed. ■ ■ ■' ¡ . ■ '
• B. Motion to Stay Award of-Attorney’s Fees and-Costs and Imposition of Rule 11 Sanctions
The Alai'asa are requesting the court to stay, pending appeal, the award of attorney’s fees and costs and imposition of-sanctions pursuant to T.C.R.C.P. 11.
The trial court has; the. power to;stay a' judgment or order while an appeal is pending. T.C.R.C.P. ;62(d). Indeed,' an application for a stay pending appeal is properly brought before ¡the trial court in the first instance. A.C.R. 8(a)„-flowever, a stay- pending appeal necessarily assumes that an appeal, is pending. A notice instituting an appeal of a judgment or order of the Land and Titles Division cannot be filed until, and must be filed within ten days after, the court denies a motion for reconsideration or new trial. A.S.C.A. .§. 43.0802(b); A.C.R. 4(a)(1).
Since no appeal is pending in this action, the present motion for a stay pending appeal is premature. Therefore, the motion to stay the award of attorney’s fees and costs and the imposition of Rule 11 sanctions will be denied. w • •
C. Amount of Reasonable Attorney’s Fees and Costs Awarded
We establish reasonable attorney’s fees for this action at $125 per hour for trial time and $100 per hour for,-office and other court time. Based on the clerk’s minutes of the trial, we will apply the trial rate for attorney’s fees to 2.0 hours.-We will .use the time submitted by counsel to calculate the amount of attorney’s fees for office and other court time. Costs will also be based on counsel’s submissions.
Using these standards, we determine the amounts of reasonable attorney’s fees and costs awarded in this action as follows:
1. For the Fanene (former counsel Malaetasi Togafau)
Attorney’s fees
Trial time, 20 hours at $ 125 per hour: $2,500.00
*191Office and other court time, 15 hours at $100 per hour: 1 500 00
Sub total 4,000.00
Costs 2,050.011
Total $6,050.00
2. For the Fonoti (counsel Afoa L. Su'esu'e Lutu)
Attorney’s fees
Trial Time, 20 hours at $125 per hour: $2,500.00
Office and other court time, 18.8 hours at $100 per hour: 1,880.00
Sub-total 4,380.00
Costs 250.0.0.
Total $4,630.00
3. For Tauiliili and Sotoa (counsel Charles V. Ala'ilima)
Attorney’s fees
Trial time, 20 hours at $125 per hour: $2,500.00
Office and other court time, 13.9 hours at $ 100 per hour: 1,390.00
Sub-total 3,890.00
Costs 590.50.
Total $4,480.50
The Alai'asa should pay the established amounts of reasonable attorney’s fees and costs incurred in this action directly to the respective counsel, as listed, for the Fanene, the Fonoti, and Tauiliili and Sotoa. Each counsel should properly distribute the funds among his cost providers, his clients, and himself.
D. Rule 11 Sanctions Imposed
The standards established by T.C.R.C.P. 11(b) state in relevant part:
(b) Representations to Court. 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 person’s knowledge, information, and belief, formed after inquiry reasonable under *192the circumstances, —
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery;....
Rule 11(c) provides:
If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may . . . impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b)....
The sanction imposed “shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated” and may require “payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a result of the violation.” T.C.R.C.P. 11(c)(2). Even though it is the attorney whose signature violates Rule 11, sanctions may be imposed on a client in appropriate circumstances. See Browning Debenture Holders Committee v. DASA, 560 F.2d 1078 (2d Cir. 1977). Monetary sanctions may not be imposed on a represented party for a violation of Rule 11(b)(2), T.C.R.C.P. 11(c)(2)(A), but may be imposed for a violation of Rule 11(b)(1), (3), or (4).
The Fanene, the Fonoti, Tauiliili, and Sotoa requested payment of their attorney’s fees and costs in their respective motions to dismiss. In our opinion and order of August 5, 1997, we advised Aliai'asa Filifili and Tautai A.F. Faaleavao, counsel for Alai'asa and the Alai'asa (“counsel”), that the court would consider whether the prosecution of these actions constituted violations of Rule 11(b)(1), (2), or (3). We further provided Alai'asa Filifili and counsel the factual basis for considering the imposition of Rule 11 sanctions:
The Alai'asa have initiated litigation by these consolidated actions challenging the previously adjudicated ownership of large parcels of land. Most of the owners awarded these lands have also registered title to their lands. The Alai'asa causes of *193action were without merit ah initio. They have created clouds on the owners’ titles and disparaged the court’s decisions, at least for the duration of this litigation. Their actions have seriously disrupted the order intended under our land tenure system. They have wasted judicial resources. They have caused the landowners considerable and enduring emotional distress and expenditure of substantial and unnecessary time and money in defending their titles.
The undesirable effects of relitigating claims are unnecessary. They are readily avoidable if attorneys and their clients thoroughly research and clearly think through the issues. We need to send a message to attorneys and their clients that this kind of litigation is inappropriate and will bring serious consequences.
We gave Alai'asa Filifili and counsel opportunity to respond at an order to show cause hearing. They replied by a written memorandum filed on September 3, 1997 and reiterated the substance of the points made in this document at the hearing on September 4, 1997. None of their arguments are persuasive.
First, Alai'asa and counsel erroneously contend that Rule 11 is inapplicable to land actions, because the rule was not specifically adopted for proceedings in the Land and Titles Division. Land cases are civil proceedings and do not lose that characteristic simply because a separate organizational division of the trial court is established by A.S.C.A. §3.0208 to hear land and matai title controversies. Though Rule 11 is found in the civil procedure mies, the mle and the ethical standards set forth judicial enforcement historically. See West’s Federal Civil Judicial Procedure and Rules at 63-65, Advisory Committee Notes, 1983 Amendment (1996). The court is expressly exempted from the APA’s application. A.S.C.A. § 4.1001(a).
Alai'asa Filifili and counsel have unduly harassed the Fanene, the Fonoti, Tauiliili, and Sotoa by the prosecution of these actions and caused them needless legal expense to defend their land titles. Accordingly, we hold Alai'asa Filifili and counsel in violation of T.C.R.C.P. 11(b)(1). In addition, counsel has submitted and advocated legal contentions that are unwarranted by existing law, or are frivolous arguments for the modification or reversal of existing law or the creation of new law. Thus, we also hold counsel in violation of T.C.R.C.P. 11(b)(2).
The appropriate sanctions in these actions, for Alai'asa Filifili’s and counsel's violations of T.C.R.C.P. 11(b)(1) and for counsel’s violation of *194T.C.R.C.P. 11(b)(2), to deter repetitious conduct or comparable conduct by others similarly situated are to hold Alai'asa Filifili and counsel personally responsible for the payment of the reasonable attorney’s fees and costs awarded to the Fanene, the Fonoti, Tauiliili, and Sotoa. Thus, Alai'asa Filifili, the Alai'asa’s sa'o, and their counsel, Tautai A.F. Faalevao, will be jointly and severally liable for payment of the attorney’s fees and costs set by this order to the Fanene, The Fonoti, Tauiliili, and Sotoa.
E. Clerical Corrections
Several clerical mistakes in the opinion and order of August 5, 1997, have come to the court’s attention for correction under T.C.R.C.P. 60(a).
1. Page 2, list of counsel: objector Lauma Valoaga V. Moananu is deleted as party represented by counsel Charles V. Ala'ilima, and is listed as a party represented by counsel Aumoeualogo Salanoa Soli.
2. Page 5, line 4 of third lull paragraph: delete “a member of the Fanene but” in the parentheses after the name Tuitoga Puailoa Fanene.
3. Page 7, line 3 of the first full paragraph: change “1090-90” to “1090-70.”
4. Page 24, line 5 of the second Ml paragraph: change the list of names to read “the Fanene, the Fonoti, Tauiliili, Sotoa, and Tuia'ana.
Order
1. The Alai'asa’s motion for reconsideration is dismissed.
2. The Alai'asa’s motion to stay pending appeal the award of attorney’s fees and costs and the, imposition of sanctions under T.C.R.C.P. 11 is denied.
3.The Alai'asa shall pay directly to the respective counsel of each party the following attorney’s fees and costs:
Atfy’s Fees Costs Total
To the Fanene: $4,000.00 $2,050.00 $6,050.00
To the Fonoti: $4,380.00 $250.00 $4,630.00
To Tauiliiii and Sotoa: $3,890.00 $590.50 $4,480.50
The respective counsel for the Fanene, the Fonoti, and Tauiliili and Sotoa shall promptly and properly distribute these Mids among their cost providers, their clients, and themselves.
*1954. Alai'asa Filifíli and counsel are in violation of T.C.R.C.P 11(b)(1) in the prosecution of these actions. Counsel is also in violation of T.C.R.C.P. 11(b)(2). As sanctions, Alai'asa Filifili and counsel are jointly and severally liable for payment of the attorney’s fees and costs set forth in paragraph 3 of this order.
5. The clerical mistakes in the opinion and order are corrected as set forth in part E of the discussion in this order and shall be incorporated in the published report of this decision.
It is so ordered.
The Tuia'ana’s counsel was not present at the hearing on August 18, 1997. However, Tuia'ana Moi was in the audience and was specially instructed on the deadline for submitting a certified statement on the amount of the Tuia'ana’s claim for attorney’s fees and costs. The Fanene, The fonoti, Tauiliili, and Sotoa filed timely claims. The Tuia'ana have not filed any claim to this daté. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486584/ | *198ORDER DENYING MOTION TO DISMISS COMPLAINT, GRANTING MOTION TO SUBSTITUTE PARTIES, GRANTING MOTION TO DISMISS CROSS-CLAIM, DENYING MOTION TO DISMISS CROSS-CLAIM, DENYING MOTION FOR JUDGMENT ON THE PLEADINGS BUT DISMISSING CLAIM, AND SEPARATING ISSUE FOR TRIAL
This order rules on several pending motions and directs a separate trial on the underlying land title issue. The motions were heard on September 15 and 22, 1997.
I. Motion to Dismiss Complaint and for Substitution of Parties
On July 25, 1997, defendant/counterclaimant/cross-claimants Tumema Kim, Roselyn Kim, Alexander Kim, and Irene Kim (“Kims”) moved to dismiss LT No. 10-91 on the grounds that no motion for substitution was made within ninety days after plaintiff Leapagatele Kesi’s death, pursuant to T.C.R.C.P. 25(a)(1). On August 8, 1997, Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo, plaintiffs in LT No. 35-95, moved to substitute themselves as plaintiffs in place of plaintiff Leapagatele Kesi in LT No. 10-91.
T.C.R.C.P. 25(a)(1) provides the means by which another party, or the deceased party’s successors or representatives, may substitute proper parties for a deceased party in pending litigation and the consequences of *199non-substitution. Rule 25(a)(1), in part, states:
Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
The ninety day time limit for the filing of a motion for substitution begins after the death is suggested upon the record.
As the rule states, the fact of death is suggested upon the record by the formal process used for service of the motion itself. The parties’ actual knowledge of the death, or mention of the death in court proceedings or pleadings is not sufficient to trigger the running of the ninety days. See, e.g., Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (reversing district court dismissal based on failure to file timely motion to substitute plaintiffs estate and holding that a party must formally suggest the death upon the record and serve other parties and nonparty successors and representatives of the deceased with a suggestion of death in the same manner as required for service of the motion in order to trigger the running of the ninety days); 3B J. Moore, Moore’s Federal Practice ¶ 25.06 [3] (2d ed. 1996) (“a formal suggestion of death is absolutely necessary to trigger the running of the ninety days”).
No formal suggestion of death was made upon the record prior to the Kims’ motion to dismiss. This motion triggered the ninety-day substitution period. However, the motion for substitution by Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo was timely filed within the ninety-day period.
The Kims’ motion to dismiss to dismiss LT No. 10-91 will be denied. The motion by Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo to substitute themselves as plaintiffs in place of plaintiff Leapagtele Kesi in LT No. 10-91 will be granted.
II. Motion to Dismiss Cross-Claim of Sesilia Vollrath, Siegfried Vollrath, Jr., and Gisela J. Vollrath
On August 21, 1997, defendants/cross-defendants Territorial Registrar (“Registrar”) and American Samoa Government (ASG”) moved in LT No. 10-91 to dismiss the cross-claim of defendants/cross-defendants Sesilia Vollrath, Siegfried Vollrath, Jr., and Gisela J. Vollrath (“Vollraths”) for failure to state a claim upon which relief can be granted, pursuant to T.C.R.C.P. 12(b)(6). The Registrar and ASG contend that the *200Vollraths have failed to exhaust administrative remedies and thus have not satisfied jurisdictional requirements to bring the claims, and that the two-year statute of limitations in which to bring their cross-claim action against the Registrar and ASG has expired. The Vollraths counter, in part, that the Registrar and ASG submitted to the court’s jurisdiction and waived the exhaustion requirement by answering the original complaint in 1991.
Some T.C.R.C.P. 12 defenses are waived if they are neither asserted by motion under Rule 12, nor included in a responsive .pleading or an amendment to such pleading. T.C.R.C.P. 12(h)(1). A defense of failure to state a claim upon which relief can be granted, however,, “may be made in any pleading permitted or ordered under 7(a) TCRCP, or by motion for judgment on the pleadings, or at the trial on the merits.” T.C.R.C.P. 12(h)(2). Similarly, a defense of lack of subject matter jurisdiction may be made at any time. T.C.R.C.P. 12(h)(3).
Lack of subject matter jurisdiction is appropriately asserted under Rule 12(b)(1), not Rule 12(b)(6). Because dismissal for failure to state a claim under Rule 12(b)(6) is an adjudication of the merits of the action, the court must possess subject matter jurisdiction in order to grant that relief, 2A J. Moore, Moore’s Federal Practice ¶ 12.07[2.-5],(2d ed. 1996).
The Vollraths’ cross-claim against the Registrar and ASG seeks money-damages for injury to or loss of property caused by the “negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.” Civil actions of this nature are regulated by the Government Tort Liability Act. A.S.C.A. §§ 43.1201-. 1213. The High Court is conferred with exclusive trial jurisdiction over such actions. A.S.C.A. § 43.1209. However, “[a]n action may not be instituted upon a claim against the government for money damages for damage to or loss of property, . . . unless the claimant has first presented the claim to the Attorney General and his claim has been finally denied by the Attorney General . . .” A.S.C.A. § 43.1205. See Mataipule v. Tifairnoana Partnership, Ltd., 14 A.S.R.2d 100, 101 (Trial Div. 1990) (“As a prerequisite to jurisdiction, the American Samoa statutory scheme requires that a prerequisite administrative claim be made and either denied or ignored for three months, at which time it is deemed denied.”). The administrative claim prerequisite also applies to counterclaims, cross-claims, and third-party complaints. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 88, 89 (Trial Div. 1992).
“Once the existence of subject matter jurisdiction is challenged, the *201burden of establishing it always rests on the party asserting jurisdiction,” 2A J. Moore, MOORE’S FEDERAL PRACTICE ¶ 12.07[2.-1] (2d ed. 1996). See also, e.g., Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266 (6th Cir. 1990) (plaintiff bore burden of establishing the existence of subject matter jurisdiction). The Vollraths did not file the mandatory administrative claim with Attorney General.1 We conclude, therefore, that this court does not yet have jurisdiction over the Vollraths’ cross-claim against the Registrar and ASG.
Because we do not have subject matter jurisdiction, we decline to rule on the Rule 12(b)(6) aspect of the Registrar’s and ASG’s motion to dismiss, which asserts the defense of expiration of the statute of limitations. Ehin v. National R.R. Passenger Corp., 732 F.2d 1250, 1257 (5th Cir. 1984), cert. denied, 469 U.S. 982, 105 S. Ct. 387, 83 L.Ed.2d 322 (1984) (holding that dismissal premised upon both Rule 12(b)(1) and (b)(6) is fatally inconsistent, because if the court lacks subject matter jurisdiction, it cannot proceed to decide the merits of the action).
Since the Vollraths did not comply with the administrative claim prerequisite, the court does not have subject matter jurisdiction over their cross-claim at this time. The Registrar’s and ASG’s motion to dismiss will therefore be granted for lack of subject matter jurisdiction.
III. Motion to Dismiss Cross-Claim of the Kims, Vaiga Logo, and Laguila Kaleuati
On August 18, 1997, the Registrar and ASG moved in LT No. 10-91 to dismiss the cross-claim of the Kims, Vaiga Logo and Laguila Kaleuati for failure to state a claim upon which relief can be granted, pursuant to T.C.R.C.P. 12(b)(6). Again, the Registrar and ASG contend that the Kims, Vaiga Logo and Laguila Kaleuati failed to exhaust administrative remedies and thus have not satisfied jurisdictional requirements to bring *202the claims, and that the two-year statute of limitations in which to bring their cross-claim action against the Registrar and ASG has expired. The Kims, Vaiga Logo and Laguila Kaleuati argue, in part, that their cross-claim is based in equity as well as under the Tort Claims Act, and thus is still under the jurisdiction of this court. In addition, the Kims, Vaiga Logo and Laguila Kaleuati presented their claim to the Attorney General on August 20, 1997.
Again, lack of subject matter jurisdiction is appropriately asserted under Rule 12(b)(1), not Rule 12(b)(6). Because dismissal for failure to state a claim under Rule 12(b)(6) is an adjudication of the merits of the action, the court must possess subject matter jurisdiction in order to grant that relief. 2A J. Moore, MOORE’S FEDERAL PRACTICE ¶ 12.07[2.-5] (2d ed. 1996).
As noted previously, “[a]n action may not be instituted upon a claim against the government for money damages for damage to or loss of property, . . . unless the claimant has first presented the claim to the Attorney General arid his claim has been finally denied by the Attorney General . . . .” A.S.C.A. § 43.1205. On August 18, 1997, when the Registrar and ASG filed their motion to dismiss, the Kims, Vaiga Logo and Laguila Kaleuati had not yet filed their administrative claim. However, on August 20, 1997, the Kims, Vaiga Logo and Laguila Kaleuati fulfilled the filing prerequisite by submitting their claim to the Attorney General. The Attorney General’s failure to make a final disposition of a claim within three months after it is filed may be deemed, at the option of the claimant, a final denial of the claim. A.S.C.A. 13 43.1205(a). Because three months have passed since the Kims, Vaiga Logo and Laguila Kaleuati filed their claim, without the Attorney General acting of record on it, the court’s jurisdiction over the action is apparently perfected. See Mataipule, 14 A.S.R.2d at 107 (Trial Div. 1990) (“While a jurisdictional defect was present when this suit was originally filed, that defect was cured by denial of the claim.”).
We conclude, therefore, that the Kims, Vaiga Logo and Laguila Kaleuati met the requirements of A.S.C.A § 43.1205, which give this court jurisdiction over their cross-claim. On this basis, the Registrar’s and ASG’s motion to dismiss will be denied. If the Registrar and ASG wish to bring their motion again, based on the statute of limitations issue, they may. If this motion is filed, we will consider the parties’ arguments concerning the statute of limitations at that time. In this regard, the parties should consider the application of the recent decision in Bradcock v. American Samoa Gov’t, 1 A.S.R.3d 42 (Appellate Div. 1997) to the facts in LT No. 10-91.
*203IV. Motion for Judgment on the Pleadings
On August 21, 1997, ASG moved in LT No. 10-91 for a judgment on the pleadings, pursuant to T.C.R.C.P. 12(c), and dismissal with prejudice of the claim against ASG by plaintiff Leapagatele Kesi, for himself and on behalf of the Paepaeiili and Leapagatele families (“Leapagateles”). As with the Registrar’s and ASG’s motions to dismiss, discussed above, ASG declares as grounds for a judgment on the pleadings that the Leapagateles have failed to state an actionable claim. ASG argues that the Leapagateles failed to exhaust administrative remedies and therefore have not satisfied jurisdictional requirements to bring the suit, and that the two-year statute of limitations in which to bring an action has expired.
The Leapagateles also did not effect the administrative claim requirements of A.S.C.A. § 43.1205(a). As discussed above, therefore, the court lacks subject matter jurisdiction over the Leapagateles’ claim against ASG at this time. Without subject matter jurisdiction, the court is unable to determine the merits of the claim and to make a judgment on the pleadings. “Judgments on the pleadings should be given only when the merits can be determined in that manner. . . .” 2A J. Moore, MOORE’S FEDERAL Practice ¶ 12.15 (2d ed. 1996). See also Collins v. Bolton, 287 F. Supp 393, 396 (N.D.Ill. 1968) (holding that where the defendant alleges only jurisdictional grounds for dismissal, the proper course is to consider the motion as one to dismiss for lack of subject matter jurisdiction because a motion for judgment on the pleadings is a motion for judgment on the merits).
Therefore, ASG’s motion for a judgment on the pleadings will be denied. However, because the court does not have subject matter jurisdiction over the claim, the Leapagateles’ claim against ASG will be dismissed.
V. Separate Trial on the Underlying Land Title Issue
The court, on its own motion, pursuant to T.C.R.C.P. 42(h), will separate the trial on the underlying issue of whether the land at stake in these consolidated actions was, and still is, the Paepaeuli and Leapaqatele families’ communal land or was defendant/cross-defendant Isumu Leapagatele’s individually owned land prior to the transfer of portions of the land to any of the other parties to these actions as Isumu Leapagatele’s successors in interest. The remaining parties, both the individuals and banking institutions, have claims to the land which are dependent on the validity of Isumu Leapagatele’s claim of title to the land.
When the amended complaint in LT No. 10-91 was filed on June 19, *2041997, the parties and issues in these actions became too numerous and unwieldy for a single trial. Hence, we believe that an initial trial of the underlying land title issue would be more convenient for the parties and may reach the ultimate resolution of these actions in a more expeditious and economical manner. All parties may, of course, attend and participate in this initial trial. They may present admissible evidence on the underlying land title issue and cross-examine the witnesses on this issue.
Order
1. The Kims’ motion to dismiss LT No. 10-91 is denied.
2. The motion by Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo to substitute themselves as plaintiffs in place of Leapagatele Kesi in LT No. 10-91 is granted.
3. The motion by the Registrar and ASG to dismiss the Vollraths’ cross-claim in LT No. 10-91 is granted.
4. The motion icy the Registrar and ASG to dismiss the cross-claim by the Kims, Vaiga Logo and Laguila Kaleuati’s in LT No. 10-91 is denied.
5. ASG’s motion for a judgment on the pleadings in LT No. 10-91 is denied. However, the Leapagatele’s claim against ASG in LT No. 10-91 is dismissed.
6. Trial of the underlying land title issue is separated from all other issues. The trial on this issue will be held first. Any party may move for the trial setting on this issue at any time.
It is so ordered.
The Vollraths’ argument that the Registrar and ASG waived the administrative claim prerequisite is without substance. They cite Pago Petroleum Products, Inc. v. American Samoa Power Authority, 10 A.S.R.2d 75, 81-86 (Appellate Div. 1986) for the proposition that the jurisdictional requirement of exhaustion of administrative remedies may be waived. As the court in Pago Petroleum pointed out, however, an essential element of subject matter jurisdiction, such as the administrative claim mandated by the Government Tort Liability Act, cannot be waived. Id. at 81-82. Moreover, ASG was not a party defendant to the original complaint filed in 1991, and the Registrar only faced a demand to deregister the individually owned land title registrations at issue. The Registrar was not defending a tort claim when answering that complaint. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486585/ | *206OPINION AND ORDER
Plaintiff HC Tulifua Tini P. Lam Yuen (“Tulifua”) brought this action to determine whether certain land is communal land of the Tulifua family or is individually owned land of defendant Heirs of Uaine Tuitele (“the heirs”). Both Tulifua and defendant Talae Tuitele (“Talae”), on behalf of the heirs, base their claims on original and continuous occupancy. Tulifua also objected to registration of a proposed lease of a portion of the land by Talae to defendants Tom Ho Ching and Patricia Ho Ching (“the Ho Chings”). The case was tried on December 18 and 19, 1997. Tulifua and Talae were present with their counsel throughout the trial.
Discussion
The land at issue (“the land”) is located in the Village of Taputimu, American Samoa. The land is named “Nonuaimoa” and contains approximately 14.18 acres. On July 13, 1989, the Territorial Registrar issued a certificate of registration of the title to the land as the *207individually owned land of the “Heirs of Uaine Tuitele.”
The evidence in the record could support either a claim of communal land or a claim of individually owned land at the time of the title registration. However, if the title registration is valid, there is no need to reach this issue. When certain land has a valid title registration, “the law . . . conclusively presumes either that the procedures for alienation of communal land were met or that the land was not communal.” Ifopo v. Siatu'u, 21 A.S.R.2d 24, 27 (Appellate Div. 1989). Therefore, we will first resolve the issue of whether the title registration was valid. The overriding policy of the statutory registration process is to permanently secure titles to land. Id. at 28. When the title to land is properly registered, “all other claims of ownership are forever precluded.” Id. at 26. The court must assume that the Territorial Registrar registered a title in compliance with the law. The court will engage in a de novo review of compliance only when there is a facially defective record of the registration, proof of a fraudulent registration, or other compelling grounds. Id. at 28.
Tulifua challenges the Territorial Registrar’s record of the registration in two facial respects. First, Tulifua cites the 18-year delay after the land was surveyed before Talae offered the land for registration on May 10, 1989. The proponent of a title registration must submit a properly performed survey with the offer of registration. A.S.C.A. § 37.0102(a), (b). The surveyor and pulenu'u (or “the mayor”) of the village where the land is located, or nearest to where the land is located, must verify, by a certificate accompanying the survey, that the pulenu 'u gave public oral notice in the village at a meeting of the chiefs of the village of the time and place of the intended survey. A.S.C.A. § 37.0102(c). The purpose of this notice is to give interested landowners opportunity to be present at the survey. Id.
The record of the registration shows that the surveyor certified in June 1971, and that the American Samoa Government’s lands and survey manager certified on June 18, 1974, that the survey of the land was conducted in conformance with the laws and regulations pertaining to surveys. On May 18, 1987, the same surveyor and the pulenu'u at the time of the survey in 1971 certified that on June 5, 1971, the pulenu'u gave public oral notice of the time and place of the intended survey at a meeting of the Taputimu village chiefs.
When litigation arises out of an objection to an offer for registration of title to land, lapse of time between the survey and the registration offer raises a question of fact whether rival claimants to the particular and adjacent lands received fair notice of the intended survey. Lualemaga v. Asifoa, 9 A.S.R.2d 85, 87 (Land & Titles Div. 1988). *208Lualemaga was an ongoing disputed registration proceeding.1 This case, however, concerns a concluded registration proceeding which carries a presumption of finality. Ifopo v. Siatu'u, 10 A.S.R.2d 66, 73 (Land & Titles Div. 1989). The present certificate is not facially invalid. Thus, we conclusively presume that in 1971 notice of the intended survey was given and that the actual survey was performed contemporaneously and in accordance with A.S.C.A. § 37.0102.
Next, Tulifua claims that the Territorial Registrar’s record shows that the notice given for the proposed title registration of the land was defective. On May 10, 1989, when Talae offered the land for registration, the law required that notice of the proposed registration be posted for 60 days on the bulletin board at the courthouse in Fagatogo and at two public places in the village in which or nearest to which the land is situated. A.S.C.A. § 37.0103(a) (1981) (amended May 22, 1989). The purpose of this notice is to afford persons claiming interests in the land adverse to the applicant opportunity to object to the title registration. A.S.C.A. § 37.0103(b). If no adverse claims are filed in this 60-day period, and all other requirements are met, the Registrar is mandated to register the title in the applicant’s name. A.S.C.A. § 37.0103(c) (1981) (amended May 22, 1989; current version at A.S.C.A. § 37.0103(d)). After legally proper registration, all other claims of ownership are barred forever. Ifopo, 12 A.S.R.2d at 26.
The notice for the proposed registration affirmatively states that the notice was posted from May 10, 1989 to July 10, 1989, a period of 62 days. The affidavit of posting in the record only confirms the posting for the same period, on the bulletin board at the “Administration building” in Fagatogo2 and on one telephone pole in Taputimu. The affidavit fails to *209record any posting of the notice at a second public place in Taputimu. The affiant also signed the affidavit on May 10, 1989, when he could not actually have verified posting for 60 days. Finally, the jurat on the affidavit calls for the Territorial Registrar’s signature on May 10, 1989 but was not executed on that or any other date.
Clearly, the affidavit of posting is facially defective. However, on May 10, 1989, A.S.C.A. § 37.0103 (1981) (amended May 22, 1989) did not require that the posting of the notice at the two public places in the appropriate village be evidenced by an affidavit or any other particular form of evidence. See Vaimoana v. Tuitasi, 13 A.S.R.2d 76, 82 (Land & Titles Div. 1989). The notice of the proposed registration itself shows that the notice was posted for 62 days. Moreover, the Territorial Registrar is obligated to register a land title only when all the statutory requirements are met, and the court should not assume that the Registrar did not carry out this responsibility. Ifopo, 12 A.S.R.2d at 28. The court cannot conclude that the required notices were not properly |iven simply because witnesses testify that they never saw the notices. Id.3
In 1989, the notice requirements in the land registration laws were supplemented, effective on May 22, 1989. P.L. No. 21-1 (codified as amended at A.S.C.A. § 37.0103). One amendment adds the element of publication in a local newspaper at least once each 30 days during the 60-day notice period. A.S.C.A. § 37.0103(a). The other substantive change requires the registration applicant to submit notarized statements from the pulenu 'u, newspaper, and clerk of the court that the required notices *210have been given before the Territorial Registrar can register the land title. A.S.C.A. § 37.0103(c).
The notice of the proposed registration of the land was not published in a local newspaper. An affidavit from a newspaper was thus not filed with the Registrar. Moreover, the evidence of the courthouse posting comes not from the Clerk of the Court but only in the unsworn statement by the Registrar’s staff member. Talae’s application for registration of the land was, however, filed 12 days before the effective date of the 1989 amendments requiring proof of the required notice by various affidavits. The 1989 amendments do not have retroactive effect, and this registration is therefore governed by the registration laws as they existed on May 10, 1989, not as they were amended on May 22, 1989. Ambrosino v. Rodman & Renshaw, Inc., 635 F. Supp. 965, 974 (N.D. Ill. 1986); Franklin v. New Mexico, ex rel. Dep't of Human Resources, 730 F.2d 86, 87 (10th Cir. 1984).
Lastly, Tulifua alleges that the heirs procured the title registration as their individually owned land by fraud. Uaine Tuitele was a member of the Tuitele family of Leone. He was also a member of the Tulifua family of Taputimu. He occupied the land at least as far back as 1929. After his death, the heirs continued to occupy and use the land, virtually exclusive of occupancy and use by any other member of the Tulifua family.
Tulifua believes that Uaine Tuitele and the heirs after his death were on the land as Tulifua family members and representatives of the Tulifua family’s communal interests. Based on the evidence, however, we find that Uaine Tuitele and the heirs openly asserted that the land was their individually owned land.
Memories among other members of the Tulifua family may have faded over time during the successive reigns of the Tulifua titleholders. It is also true that the Tulifua title was vacant when the land was surveyed in 1971 and was registered in 1989. Nonetheless, members of the Tulifua family were aware of both the survey and registration processes and failed to timely object to the registration process. We do not find any evidence of fraud by Talae or others among the heirs in offering the land for registration as the heirs’ individually owned land.
Since the registration of the title to the land was properly carried out of record, and since there is no evidence of fraud or other grounds to set aside the title registration, we conclude that the heirs own the land as their individually owned land. We cannot, however, direct the Territorial Registrar to record the lease to the Ho Chings.
*211Talae is regarded as the head of the heirs. In this capacity, he has undertaken a primary role in transactions concerning the land. The transactions in evidence include the Ho Chings’ lease. Patricia Ho Ching is one of the heirs. The other transactions in evidence are agreements purportedly separating residential structures from the land to Silimusa M. and Taifita S. Solomona and to Edmund and Mary Pereira. Silimusa Solomona and Mary Pereira are also members of the heirs.
Talae has acted in the manner of the sa'o (or “senior chief’) of a Samoan family exercising pule (or “power”) over the family’s communal land. He has achieved an apparent consensus among the heirs in support of his actions regarding the land. Indeed, the separation agreements describe the land as communal land of the Uaine Tuitele family or of Uaine Tuitele. Traditionally, however, the Tuitele family is a Leone, not a Taputimu, family. No evidence was presented that Uaine Tuitele is a traditional family of either village. Moreover, once land is registered as individually owned land, the court cannot treat the land as communal land simply because the family group associated with the land occupies the land communally. See Roberts v. Sesepasara, 7 A.S.R.2d 139, 141-42 (Land & Titles Div. 1988)
As owners of individually owned land, the heirs own the land as tenants in common. Uaine Tuitele’s children inherited the land in this manner. A.S.C.A. § 40.0202(a). His children received equal undivided interests in the land, and the issue of each deceased child succeeded to those interests, per stirpes. A.S.C.A. § 40.0204. The successors are also tenants in common. Coulson v. Hillmer, 612 S.W.2d 124, 126 (Ark. App. 1981). As a tenant in common, each heir has an undivided possessory interest in the entire area of the land and an equal say in the uses of the land. Wagman v. Carmel, 601 F. Supp. 1012, 1015 (D. Pa. 1985). The lease to the Ho Chings is thus not valid unless each of the heirs either consented to, gave Talae express or apparent authority to enter, or ratified the lease transactions. None of these alternatives is established by the evidence.
Order
1. The title registration of the land in the name of the Heirs of Uaine Tuitele as their individually owned land is valid.
2. The lease to the Ho Chings is invalid and shall not be registered by the Territorial Registrar.
3. The Clerk of the Court shall submit certified copies of this opinion and order and the judgment entered in this action to the Territorial Registrar.
*212It is so ordered.
Tulifua also cites Maugututia v. Savea, 4 A.S.R. 483 (Trial Div. 1964), Maugututia was likewise a contested registration proceeding and also involved a facially defective certificate by the surveyor andpulenu'u. The survey was first conducted in 1946 by one surveyor and was retraced in 1963, 17 years later, by another surveyor. The court stated that the certificate executed in 1963 was invalid because it related to the 1946 survey, not the 1963 survey. The court noted the 17 year time lag between the survey and the notice, not because of the length of this time, but because the survey predated the notice. In the current case, the time lag is between the survey and the offer of registration, not between the notice and the survey. Further, in the current case, neither the survey nor the proposed title registration predates the requisite notice.
Tulifua argues, at least collaterally, that posting the notice on the administration building in Fagatogo should vitiate the registration. Designation of the “Administration building” in the affidavit of posting is not grounds for invalidating a land title registration because A.S.C.A. § *20937.0103(a) (in effect on May 10, 1989, and as amended, effective May 22, 1989) was amended in 1979 to describe the location as the “courthouse.” Vaimaona v. Tuitasi, 13 A.S.R.2d 76, 82-83 (Land & Titles Div. 1989). The Territorial Registrar merely neglected to change the affidavit form. Id. Moreover, the courthouse and administration shared the same building in Fagatogo and were commonly associated by reference for many years. Id.
Tulifua presented witnesses who testified that they did not see any second notice posted in Taputimu. One of them also stated that he removed one notice in the village near the land and took it to the Territorial Registrar’s Office. This witness also declared that the village chiefs met at some point in June 1971 but that the pulenu 'u did not give any oral notice of the intended survey at that time.
Talae provided witnesses, including the Territorial Registrar in office in 1989 and his staff member who signed the affidavit of posting. They affirmed that two notices were posted in the village. They also admitted that despite the Registrar’s direction to replace the notice tom down, a new notice was not posted at the same or another location during the 62-day period. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486587/ | *220ORDER DENYING MOTION FOR RECONSIDERATION OR NEW TRIAL
This action principally concerns the ownership of about 14.18 acres of land, known as “Nonuaimoa,” in the Village of Taputimu, American Samoa (“the land’), claimed by plaintiff Tulifua Tini P. Lam Yuan (“Tulifua”) to be the Tulifua family’s communal land and by defendants Talae Tuitele (“Talae”) and Heirs of Uaine Tuitele (“the heirs”) to be the individually owned land of the heirs. On April 24, 1998, the court held that the existing registration of the title to the land in the name of the heirs was valid. The court also held that the lease of a portion of the land by Talae to defendants Tom Ho Ching and Patricia Ho Ching was invalid and shall not be registered by the Territorial Registrar.
On May 4, 1998, Tulifua moved for reconsideration or new trial on the issue of the validity of the registration of the title to the land. The motion was heard on June 4, 1998.
Discussion
Tulifua essentially urges the court to grant his motion for four reasons. First, he maintains that the registration is invalid because the required notice of the proposed registration was not posted for 60 days at two public places in the village in which or nearest to which the land is located. Second, he claims that the registration was fraudulently procured. Third, he argues that the court has failed to protect the Tulifua family from the unlawful alienation of its communal land. Fourth, he insists that the court’s decision is null and void, and without legal effect, *221because it was not rendered within the mandated 60-day time frame.
A. Registration Notice
When the process is conducted in accordance with A.S.C.A. §§ 37.0101-.0103, the Territorial Registrar’s registration of land records title in the applicant’s name which is good against the world; the record owner then holds title protected against all other claims of ownership, precluding later judicial inquiry into the validity of the title. Ifopo v. Siatu'u, 12 A.S.R.2d 24, 26 (Appellate Div. 1989); Vaimoana v. Tuitasi, 13 A.S.R.2d 76, 79 (Land & Titles Div. 1989). In the absence of compelling proof to the contrary, the court must conclude that the Registrar registers title to land when there is compliance with the title registration statutes. Ifopo at 28. A title registration will be set aside only when the evidence compels the conclusion that it was procured, without the mandated notices and other procedures or by fraud. Id.
Tulifua places great emphasis on his witness Maeva Pio Maae, who lived in Taputimu as an untitled person when the survey was conducted in 1971 and as the Tulifua talking chief Maae when the land was registered in 1989. In essence, Maeva Maae testified that he did not hear any announcement or discussion about the intended survey of the land at any village council meeting in 1971 and did not see any notice of the proposed title registration posted in Taputimu in 1989. Tulifua also heavily relies on the patently defective “affidavit” of notice posting in 1989. This document was prepared on the initial posting date rather than after the 60-day posting period, makes literal reference to only one rather than two posting locations in Taputimu, and is unsworn.
The testimony of witnesses that they did not hear the notice of an intended survey, required by A.S.C.A. § 37.0102(c), or see posted notices of a proposed title registration, required by A.S.C.A. § 37.0103(a), is not sufficient to overcome the presumption that public officials complied with their statutory duties or the vesting of the title to land by the official registration. See Meafu v. Taliu, 13 A.S.R.2d 13, 17-18 (Land & Titles Div. 1989). The certificate of record in this case by the surveyor and pulenu 'u that oral notice of the intended survey was given at a meeting of the village chiefs is regular. A properly completed affidavit of posting was not a required method of proving the posting when this registration process was initiated. Tulifua disregards or discounts the direct testimony of Uatisone Tauanuu, which we found and still find credible, that he posted the notice at two specific locations in Taputimu.1
*222Tulifua does raise a questionable legal point. The evidence clearly showed that about one week after the posting of the notice of proposed registration, Au Maae, who was the pulenu'u in 1971, took down the notice posted adjacent to the land and brought it to the Territorial Registrar’s Office. Pelema Kolise, the Registrar then in office, told Au Maae to submit in writing any objection he had to the registration within the 60-day posting period. Neither Au Maae, who is also a member of the Tulifua family, nor any other member of the family filed an objection. Pelema Kolise instructed Uattsone Tauanuu to replace the notice, but this was not done. However, the Registrar’s contemporaneous practice was apparently to let the posting period run for at least 60 days before titles were registered, with or without routine checks on continuous existence of the posted notices.
Literally read, A.S.C.A. § 37.0103(a) contemplates the notices at the courthouse and two places in the appropriate village would remain constantly in place throughout the 60-day period. Uatisone Tauanuu testified to the ongoing practical problems of maintaining the posted notices in the villages where the notices can be easily removed by persons or destroyed by weather. Thus, we hold that 37.0103(a) does not require the continuous presence of all three notices, so long as the Registrar waits the full 60 days before registering the title, especially when, as in this case, at least one responsible member of the principal family adversely impacted is aware of the proposed registration.
B. Fraudulent Prncnrement
On this issue, Tulifua essentially relies on his history of the land. He claims that the land is the Tulifua family’s communal land by reason of original occupancy and use. The Tulifua matai title is attached to Taputimu, where the land is located. The Tuitele matai title is associated with the Village of Leone. Uaine Tuitele was a member of both the Tulifua and Tuitele families, and his father Tulifua Penitila held the Tulifua title, beginning in 1906. As the Tulifua sa'o, Tulifua Penitila controlled and was obligated to protect the family’s communal land, *223including the land at issue.2 Thus, Tulifua argues, since Uaine Tuitele and the heirs occupied and used the land as members of the Tulifua family, the heirs, represented by Talae, violated their responsibilities to the Tulifua family and fraudulently deprived the family of its communal ownership of the land when they had the land registered as the heir’s individually-owned land.
Tulifua mistakenly states that we erroneously found the land to be the heirs’ individually owned land before the 1989 title registration. If original registration was the contest in this case, we would necessarily be required to determine whether the land was the Tulifua family’s communal land or was the heirs’ individually-owned land owned before we could order registration of the title. However, in this case, we did not make any finding in the pre-registration title. The importance of the histories of the land presented by Tulifua and Talae lies in the unrefuted evidence that Uaine Tuitele and the heirs after him openly claimed the land, coupled with virtually exclusive occupancy and use of the land, since 1929. The only significant exception to this exclusivity was in 1968 when Tulifua’s brother built a house on the land and then removed it upon Talae’s objection.
Uaine Tuitele and the heirs did not deceive other members of the extended Tulifua family. Those other members were aware of the position taken by Uaine Tuitele and the heirs on the ownership of the land and failed to object either before or during the title registration' process in 1989. We are not persuaded to reverse or, except as expanded in this discussion, otherwise add to our ultimate, initial finding that Talae and the heirs did not commit fraud when Talae offered the land for registration as the heirs’ individually owned land.
C. Unlawful Alienation
Tulifua chastises the court for failing in its duty to uphold the constitutional policy of shielding Samoans from alienation of their lands. See Am. Samoa Rev. Const, art. I, § 3. This public policy is foundational and has endured uninterrupted throughout the 98-year history of American Samoa. See Cession of Tutuila and Aunuu, April 17, 1900, Chiefs of Tutuila-United States, and Cession of Manu'a Islands, July 16, 1904, King and Chiefs of Manu'a-United States. The Legislature of American Samoa has currently embodied the policy in A.S.C.A. tit. 37, particularly in ch. 37.01, Titles to Land, and ch. 37.02, Alienation of Land.
*224Unlike the Legislature, Tulifua does not clearly distinguish the substantive and procedural restrictions applicable to land title registrations in A.S.C.A. ch. 37.01 and those applicable to land alienation and registrations of deeds or other supporting documents in A.S.C.A. ch. 37.02. “‘Alienation’ means the sale, gift, exchange, or any other method of disposal of property.” A.S.C.A. § 37.0201(a). Title registration is a procedural device giving rise to a form of estoppel precluding others from ever again attacking the validity of the record owner’s title. Vaimoana, 13 A.S.R.2d at 79. Title registration is not a mode of land alienation.
Even if title registration is broadly construed to be a means of alienation, the constitutional policy statement does not prevent the creation of forms of land ownership other than communal land, and equally entitles the Samoan owners of individually owned lands and family communal lands to protection against the loss of their land. See. Alai'asa v. Fanene, LT No. 12-90, Order Granting or Deferring Motions to Dismiss at 17 (Land & Titles Div. August 5, 1997).
D. Untimely Decision
We do not take lightly the direction of A.S.C.A. § 3.0209(h) to render land and title decisions within 60 days. However, it is far more important for the court to carefully deliberate on these decisions. We will not be hurried to meet an artificial deadline. Moreover, the statutory requirement is aimed at the court and is without any sanctions. It does not, and should not, nullify or otherwise penalize any party to a land or title action in which the court issues a statutorily late decision.
Order
Tulifua’s motion for reconsideration or new trial is denied.
It is so ordered.
Tulifua was allowed, over objection, to cross-examine Tauanuu on the reason for his resignation from his position at the Territorial Registrar’s *222Office. The innuendo planted was that Tauanuu had engaged in some scheme of wrongdoing pertaining to title registrations. However, whether the objective was to establish planned misconduct somehow related to the posting in this case or to impeach Tauanuu’s character for truthfulness, Tulifua utterly failed to make the relevant connection. Similarly, Tulifua now suggests in his memorandum supporting the present motion, wholly and improperly without any evidentiary basis, that the Territorial Registrar in 1989, Pelema Kolise, who also testified in this case, was likewise guilty of registration misdeeds.
According to the Territorial Registrar’s official record of Taputimu matai, Tulifua Sianini co-held the title with Tulifua Penitila in 1906. Thus, both sa 'o shared in these responsibilities during their joint tenure. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486588/ | ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION AND DENYING DEFENDANTS’ MOTION TO DISMISS
I. Plaintiffs’ Motion for Reconsideration
Plaintiffs bring before this court a motion for reconsideration of an order denying application for temporary restraining order and order to show *226cause. For the reasons given below, this motion for reconsideration is denied.
Plaintiffs base their motion for reconsideration on an erroneous interpretation of Fairholt v. Aulava, 1 A.S.R.2d 73 (Lands & Titles Div. 1983). Plaintiffs assert that the court in Fairholt held A.S.C.A. § 41.1309(b)1 unconstitutional as violating the due process clause of both the United States Constitution as applied to American Samoa and the due process clause of the American Samoa Revised Constitution.
Plaintiffs’ interpretation of Fairholt, however, is too broad. Fairholt does not provide that A.S.C.A. § 43.1309(b) is unconstitutional in all circumstances. Rather, A.S.C.A. § 43.1309(b) is unconstitutional only if a family member is prevented court access to enjoin a sa'o from jeopardizing a family member’s constitutionally protected property rights. Otherwise, the sa'o should be given the opportunity to act as the family matai before family members intervene. As we earlier stated in our order denying plaintiffs’ ex parte application for a temporary restraining order, the legislative design behind A.S.C.A. § 43.1309(b) clearly must be to ensure that the sa 'o is not totally displaced by the judicial process. Plaintiffs’ motion for reconsideration, therefore, is denied.
II. Defendants’ Motion to Dismiss
A. A.S.C.A. § 43.1309(h)
Defendant’s motion to dismiss is also denied. Although A.S.C.A. § 43.1309(b) does provide that the sa 'o is the only authorized person under this Act to bring an action regarding disputes or controversies over communal or aiga land, the early posture of this case does not warrant dismissal of this case, regardless of the sa 'o’s failure to bring this action initially. In addition, the complaint alleges that the sa 'o is not adverse to plaintiffs’ claim of entitlement. Joinder of the sa 'o, therefore, may be necessary if the sa 'o fails to come forth.
B. AN.QA. § 43.03.02(a)
Defendants also argue dismissal of complaint for non-compliance with the mandates of A.S.C.A. § 43.0302(a). This enactment provides that “[bjefore any action relating to controversies over communal land . . . may be commenced in the land and titles division, each party shall file *227with his complaint a certificate [of irreconcilable dispute] signed and attested by the Secretary of Samoan Affairs ..Defendants’ reliance on this subsection is misplaced.
Plaintiffs’ complaint is one for injunctive relief.' A.S.C.A. § 43.0302(b) provides that the certification requirement of subsection (a) is not a prerequisite requirement to the issuance of a temporary restraining order. Tupua v. Faleafine, 5 A.S.R.2d 131, 133 (Land & Titles Div. 1986). Additionally, A.S.C.A. § 43.0303(a)(l-3) authorizes either the Chief Justice or Associate Justice to issue interlocutory orders, upon ex parte application, to restrain certain enumerated activity before the commencement of proceedings before the lands and titles division.
Therefore, plaintiffs’ motion for reconsideration is denied, and defendants’ motion to dismiss is also denied.
It is so ordered.
Under certain exceptions, A.S.C.A. § 43.1309(b) requires that the sa'o be the only authorized person under this Act to bring an application for injunction pertaining to communal land within his own family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486590/ | OPINION AND ORDER
Trial for the registration of the matai title “Tagoilelagi” began on July 9 and concluded on July 13, 1998. Prior to trial, counterclaimant Fa'sefulu Togia'i withdrew his candidacy. Counterclaimants Tofau Palaie Gaoteote, Aloali'i Tapu Tagaloa, and Lotomau Peau withdrew their candidacies at the beginning of the trial. The trial thus proceeded with claimant Fagaoali'i Laloulu Tagoilelagi (“Fagaoali'i”) and counterclaimant Ulimasao Sítala Sítala, Jr. (“Ulimasao”) as the two remaining candidates for the title.
*232Discussion
A. Eligibility ■’
As an initial matter, Fagaoali'i questions whether Ulimasao meets the one-year residency requirement for registration eligibility set forth in A.S.C.A. § 1.0404(a). Section 1.0404 (a) provides that, with certain exceptions inapplicable in this instance, “no one is eligible to claim or object to the succession to a matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of objection.”
Ulimasao filed his counterclaim to the title “Tagoilelagi” with the Territorial Registrar in September 1994. Before then, he resided outside of American Samoa for substantial periods of time, as further detailed in the selection criteria discussed below. However, he returned to reside permanently in American Samoa in June 1993, more than one year earlier. Thus, we conclude that Ulimasao meets the one-year residency requirement of section 1.0404(a).
B. Selection Criteria
The court’s evaluation of the four criteria set foxth in A.S.C.A. § 1.0409(c) is decisive in awarding matai titles in contested registration actions. We discuss the criteria in the order of their priority.
1. Best Hereditary Right (A.S.C.A. § 1.0409(c)(1))
Presently, two factions exist in the Tagoilelagi family, each having different histories with respect to the original and subsequent titleholders and family clans. The two contestants do agree, however, that “Tagomailelagi” was the original spelling of the title.1 Fagaoali'i considers Tagomailelagi Tagaloalagi to be the first titleholder. Ulimasao names Tagomailelagi Uitualagi as the first titleholder.
Both candidates do recognize Tagomailelagi Uitualagi to be Tagaloalagi’s son. They materially differ, however, on the origin of the Tagoilelagi title, placing particular importance on the first titleholder’s birthplace. According to Fagaoali'i’s legend, Tagaloalagi, a heavenly chief, married Sina of Vatia. Tagaloalagi bestowed the title “Tagomailelagi” upon their son Tagaloalagi, who was bom in Vatia. Under Ulimasao’s legend, Tagaloalagi was the issue of an immortal being and came from Manu'a to marry Sina of Vatia. He then bestowed *233the title “Tagomailelagi” upon their son Uitaulagi, who was bom in Vatia. Except for one titleholder, Tagomailelagi Vaiga, each candidate also presents a completely different list of the titleholders after Tagomailelagi Uitaulagi until the last three Tagoilelagi titleholders, Solomona or Leota, Taua, and Elia.
Because the candidates disagree over the identities of the original titleholder and most of the subsequent titleholders, we follow the traditional rule for determining the best hereditary right by examining each candidate’s closest relationship to a previous titleholder. See Misaalefua v. Hudson, 1 A.S.R.3d 23, 25 (Appellate Div. 1997). Fagaoali'i is the son of the last titleholder, Tagoilelagi Elia, and thus, by this method, has 50% Tagoilelagi blood. Ulimasao is five generations removed from Tagomailelagi Meleisea (who is not recognized as a titleholder by Fagaoali'i) and thus has 1/32 or 3.125% Tagoilelagi blood. This substantial difference in the two candidates’ blood connections to the title emphasizes the Tecent dominance of Fagaoali'i’s side of the family in the selection of the titleholders.2
We do note, however, that according to their respective pedigrees, Fagaoali'i is nine generations removed from the candidates’ common ancestral titleholder, Tagomailelagi Uitaulagi, and 10 generations from Fagaoali'i’s original titleholder, Tagomailelagi Tagaloalagi, while Ulimasao is 10 generations removed from their common ancestral and his original titleholder and 11 generations after Fagaoali'i’s original titleholder. If we disregard the candidates’ substantial disagreement over the identities and order of the previous titleholders for discussion purposes and apply the more equitable Sotoa rule of tracing blood lines back to the original or a common ancestral titleholder, In re Matai Title “Sotoa”, 2 A.S.R.2d 15 (Land & Title Div. 1984), the candidates’ hereditary rights to the title “Tagoilelagi” are much closer to each other, only a generation apart.
However, under either the traditional rule or the Sotoa rule, Fagaoali'i prevails over Ulimasao with the better hereditary right to the title.
2. Wish of the Majority or Plurality of the Family’s Customary Clans (A S C A § 1 0409(e)(7))
Following the custom of identifying family clans by the names of the original titleholder’s children, Fagaoali'i recognizes two clans, Uitualagi *234and Silaulelei, Tagomailelagi Tagaloalagi’s son and daughter. The daughter did not have children. Thus, he claims that the Uitualagi clan is the Tagoilelagi family’s only “living” clan. Ulimasao uses the same tradition. However, even though Tagomailelagi Uitaulagi had five children, he names only four clans, Falemalama (son), Sulufaiga (son), Sina (daughter), and Sa'a (son). Ulimasao disregards the fifth child, Tuiasosopo (son), because there is no family record of his descendants or their participation as a clan in the affairs of the Tagoilelagi family.
Since Fagaoali'i and Ulimasao acknowledge Tagomailelagi Uitualagi as a common ancestor, we believe that both candidates essentially recognize the same persons as the present descendants of the Tagoilelagi family’s traditional clans. Thus, regardless of the candidates’ differences in the number and names of the clans, based on distinct family traditions, it matters little in this case whether the present family members descend from, or are identified with, Fagaoali'i’s single clan or one of Ulimasao’s four clans.
The results of the family meetings which were held to deliberate on and select the successor to the Tagoilelagi title are far more important to the clan wish issue than the number and names of the clans.
The family clan or clans first met in February 1994. Ulimasao and another tulafale (or “talking chief’) of the family were nominated. The discussions were peaceful and harmonious in accordance with Samoan customs. Although Ulimasao appeared to have more support, the selection was postponed until a later time. The second meeting was held in May 1994.. Again, the same persons were nominated. After the discussions, Ulimasao was still the apparent favorite for the title, but the family clan or clans decided that yet another meeting would be held in an effort to achieve a trae consensus.
Fagaoali'i nominated Ulimasao’s competitor and was not himself nominated during the first two meetings. However, on July 20, 1994, he filed his claim for the title “Tagoilelagi” with the Territorial Registrar. His action prompted the five original counterclaimants to oppose Fagaoali'i’s claim and seek the title. When the third meeting of family clan or clans was held, considerable displeasure was expressed over Fagaoali'i’s offer to register the title, and Ulimasao continued to have the most support to be the next titleholder. However, Fagaoali'i and his supporters would not join a consensus for Ulimasao. Thus, the family clan or clans met a fourth time. Ulimasao still retained his previous support at the fourth meeting. However, to maintain peace and harmony, the family clan or clans decided that Fagaoali'i and Ulimasao would jointly hold the title. Both Fagaoali'i and Ulimasao were given the traditional kava cup ceremony that day, but with the understanding that *235Fagaoali'i would withdraw his offer to register the title. However, the Village Council of Vatia never met to record the family’s decision, and Fagaoali'i did not withdraw his registration offer.
The events of these four meetings clearly show that Ulimasao enjoyed the majority support of the Tagoilelagi family’s clan or clans. If the Uitualagi clan is the family’s only clan, as Fagaoali'i presents, this clan as a whole still supports Ulimasao’s candidacy. If, on the other hand, the family has four clans, Falemalama, Sulufaiga, Sina, and Sa'a, as named by Ulimasao, Fagaoali'i may have the support of his clan, Sulufaiga, but Ulimasao clearly has the support of the other three clans.
Ulimasao prevails over Fagaoali'i on the clan wish issue.
3. Forcefhlness, Character, Personality, and Knowledge of Samoan Customs (A.S.C.A. § 1.0409(c)H))
Fagaoali'i and Ulimasao had very similar formative years, including their educational expedience through high school. From that point forward, each took a divergent but successful path from the other.
Fagaoali'i is a professional educator. Beginning in 1962, he extensively pursued formal higher education and, in 1983, earned his doctorate. From 1966 until now, he steadily progressed as a teacher and administrator in the public school system of American Samoa. He now holds the highly responsible position of Director of Education for the entire system. Through the years, Fagaoali'i has also been very active and held important positions in the Church of Jesus Christ of Latter Day Saints. He has also held his present matai title in the Tagoilelagi family for 22 years.
Ulimasao is a skilled technician. After community college stateside, he served in the United States Army for' 10 years, specializing in the communications field. Then, after two years with the Public Works Department of the American Samoa Government (“ASG”), he successfully competed for employment with the Federal Aviation Administration (“FAA”). For the last 19 years, Ulimasao has held various technical positions and is now a maintenance operation specialist with the FAA. During both careers, he took advantage of numerous educational opportunities at military and civilian schools as well as at the FAA Academy. Ulimasao serves as a deacon at the Congregational Christian Church of American Samoa in Vatia. He has held his present matai title in the Tagoilelagi family for 21 years.
Evaluating their upbringing, education, careers, religious activity, and demeanor in court, it is evident that both Fagaoali'i and Ulimasao are *236forceful persons with characters of strength and integrity. Each has an appealing personality. Both Fagaoali'i and Ulimasao have also held matai titles for more than 20 years. Each is thus also well-versed in Samoan customs.
Accordingly, we conclude that Fagaoali'i and Ulimasao are equally matched and neither prevails over the other in the category of forcefulness, character, personality, and knowledge of Samoan customs.
4. Value to Family, Village, and Country (A.S.C.A. § 1.0409(c)(4))
Fagaoali'i is an education and church leader. As a result of his public service role, he has also been, and continues to be, actively involved in various ASG boards, commissions, committees, and conferences. Fagaoali'i regularly participates in the affairs of the Tagoilelagi family and the Village of Vatia. He holds a family matai title. However, he spent periods during childhood in the Village of Fagasa as well as Vatia. Fagaoali'i also presently lives, and for most of his adult life has lived, in the Village of Aua.
As a soldier and federal employee, Ulimasao has principally devoted his service to country directly to the United States rather than the Territory of American Samoa. Because of his service to the nation, Ulimasao has also lived outside of American Samoa for 22 years. However, throughout childhood and when he has been in American Samoa during adulthood, Ulimasao resided, and presently resides, in the Village of Vatia. Thus, when here, Ulimasao participates daily and regularly in the affairs of the Village of Vatia and the Tagoilelagi family. Ulimasao is also the principal spokesperson for the Tagoilelagi title as a high talking chief in the family.
We do not discount achievements and leadership abilities of either candidate. However, because of his more intimate daily contacts with the Tagoilelagi family and the Village of Vatia, we conclude that Ulimasao has the superior advantage over Fagaoali'i in the category of value to family, village, and country.
C. Priority of the Four Criteria
We give greater weight to each criterion in their statutory order in accordance with A.S.C.A. § 1.0409(c). We also assess the candidates’ relative advantage in each criterion. In re Matai Title Tauala, 15 A.S.R.2d 65, 69 (Land & Titles Div. 1990).
The best hereditary right receives the highest priority. Fagaoali'i has the decided advantage here under the traditional measure, but the difference *237appears to be less pronounced when the distance from, .die original titleholder is the yardstick. Ulimasao, in our- view, enjoys majority support among the Tagoilelagi family’s clans, whether there is the single clan advocated by Fagaoali'i or the four clans identified by,Ulimasao. Ulimasao is the clear winner in the second priority'criterion of the wish of the family clans. Fagáoali'i and Ulimasao are equally qualified under the third priority criterion of forcefulness, character, personality, and knowledge of Samoan customs. Ulimasao, however,1 has distinct eminence in the fourth priority criterion of value to family, village, and country.
In our analysis, Ulimasao’s stronger rankings on the second and fourth criteria outweigh Fagaoali'i’s better hereditary right. We will, therefore, award the title “Tagoilelagi” to Ulimasao.
Order
The title “Tagoilelagi” is awarded to Ulimasao Sítala Sítala,1 Jr'. The Témtorial Registrar shall register the title in Ulimasao’s name, provided ■that he has resigned from and is not registered as holding any other Mated title. 1 1 ’ 1
It is so ordered.
The specific time of and reason for the changed spelling is not in evidence and is not important to oxxr decision.
Fagaoali'i’s father Elia and Ulimasao’s father Sitala were contestants for the title in 1961. See In re Matai Title “Tagoilelagi”, MT No. 58-1961 (Trial Div. 1961). Perhaps this rivalry initiated, as Fagaoali'i suggests, or intensified the current factionalism in the family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486808/ | *229OPINION AND ORDER
Claimant Tepatasi M. Puailoa (“Tepatasi”) filed with the Territorial Registrar his succession claim to the Puailoa matai title and, in accordance with the statute made and provided for in these cases, the Territorial Registrar publicly posted the claim between December 29, 2000 and February 28, 2001. In due course, Tuitogamaatoe P. Fanene (“Tuitogamaatoe”), La'au Seui (“La'au”), Ma'ae Taei (“Ma'ae”), Archie Soliai (“Archie”), and Avea Va'afusuaga (“Avea”) filed their respective succession claims. The resulting dispute, certified “irreconcilable” by the Secretary of Samoan Affairs on May 29, 2001, was eventually referred to the Land and Titles Division in accordance with A.S.C.A. § 1.0409. The matter came on for trial January 27, 28, and 29, 2003, with all parties appearing with counsel. At the conclusion of the evidence, and upon the filing of written final arguments, the matter was taken under advisement.
As in all matai title succession disputes, the Court is mandated to follow the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to family, village, and country.
1. Best Hereditary Right
This Court has resorted to one of two formulas to calculate the statutory and customary requirement of “hereditary right:” direct descent from the original titleholder and direct descent from the nearest titleholder. See In re Matai Title "Mulitauaopele", 17 A.S.R.2d 75 (Land & Titles Div. 1990). While the former may be appropriately used where family history is largely harmonious, In re Matai Title "Misaalefua”, 1 A.S.R.3d 23, 25 (App. Div. 1997), the vast majority of cases have employed the latter, In re Matai Title "Leiato ”, 3 A.S.R.2d 133, 134 (App. Div. 1986). Here, each party has submitted his/her respective family tree. But these have proven rather difficult to reconcile, even showing inconsistencies in detail among closely related candidates. In circumstances such as here, where family history and genealogical understanding is contentious, the traditional formula for evaluating hereditary right, the shortest descent path to the nearest titleholder, is the overwhelmingly favored yardstick among matai succession candidates. The matter before us proved to be no exception, with the candidates readily resorting to the traditional rule.
Tepatasi, Tuitogamaatoe, Avea, & Ma 'ae
Tepatasi and Tuitogamaatoe, brother and sister, each claim 50% entitlement since the nearest titleholder in their ancestral line was *230Puailoa Tavete, their late father. The pedigree of candidates Avea and Ma'ae show their respective degree of right as 6.25%. The hereditary claims of these four candidates are undisputed.3
La 'au
La'au also claims 6.25% entitlement tracing his pedigree along the same descent lines as have Tepatasi, Tuitogamaatoe, Avea, and Ma'ae. The latter, however, strongly oppose La'au’s claim. La'au’s genealogical claim is that Puailoa Faletutulu had another son in addition to Puailoa Vaiuli, and that being Filipo, La'au’s great-grandfather. In support of his hereditary claim, La'au cites to recent instances where his father, orator Seui La'au, acted as family spokesman for certain Puailoa family affairs during the administration of Puailoa Tavete. Moreover, La'au points to a past succession contest, that came before the High Court as Pua'ae'o v. Sapunu, No. 10-1935 (the “1935 succession case”), in which his paternal grandmother, Fa'alogoifo, was a signatory supporter of one the candidates named Sipunu.
The weight of the evidence suggests, however, that Faletutulu had only one son, Vaiuli, who was himself without issue. The evidence indisputably shows that Faletutulu had two sisters, or nieces according to Avea’s gafa (genealogy), named Aioleolo and Taoa. Taoa’s line ended with Puailoa Nouata, who also passed on without issue, while Aioleolo’s children gave rise to the most recent titleholders Pua'aelo and Tavete, as well as candidates Tepatasi, Tuitogamaatoe, Avea and Ma'ae.
Notwithstanding La'au’s contentions, a person’s participation in a Samoan family fa 'alavelave does not ipso facto translate conclusively into evidence of family membership through hereditary connection. The authorities have long ago recognized that under Samoan custom, all persons who live in a Samoan family are considered family members, although not necessarily blood members. Vaotuua Family v. Puletele, 3 A.S.R. 145, 147 (Trial Div. 1955). Likewise, those married into a Samoan family are regarded as family members even though they are not blood members. Asuega v. Mauga, 3 A.S.R 70, 73 (Trial Div. 1953). *231However, since the enactment of A.S.C.A. § 1.0409(c), blood connection has become a pre-requisite to matai succession eligibility.
In this matter, La'au’s father, orator Seui, referred to Sipunu on the witness stand as his mother’s “brother.” Sipunu, however, acknowledged in his pleadings that he was an “adopted” family member. The 1935 succession case’s genealogical charts,4 while pointing out that Puailoa Vaiuli and Sipunu were first cousins once removed, also pointed out that Vaiuli and Sipunu’s kinship connection arose outside the Puailoa family tree. This is also the version of family history as given to Avea by her ancestors; that is, La'au’s grandmother Fa'alogoifo was kin to Faletutulu’s wife, not Faletutulu. Finally, we note that the 1935 succession case did not go to trial; significantly, it was settled out of court after Sipunu had withdrawn his unsupported claim to the title in favor of Pua'aelo, an undisputed blood heir.
All in all, we find La'au’s hereditary connection claim to be, at best, doubtful.
Archie
Archie claims his degree of hereditary right as 1/128 or .008%. He singularly traces his heritage to a Puailoa Leo'o, said to be the original titleholder. The evidence here shows that the Puailoa family’s modem history began with the admission of Puailoa into the Nu'uuli village council, and thus recited in the village fa'alupega (salutation or honorifi.cs) and included in the village constitution, following a marriage alliance with a daughter of High Chief Soliai. Archie’s pedigree, however, does not pursue this acknowledged and well known Soliai connection, which brought the Puailoa to the Nu'uuli village council, but rather reaches out into the realm of myth and legend, to the tabled original titleholder known simply as “Leo'o.” The connection is tenuous.
Moreover, Archie’s position on family history with regards to the listing of prior titleholders, is, like that of a number other candidates in this matter, restricted to, or coincides with, the record of the 1935 succession case. The 1935 succession case has listed between Leo'o and Ta'aseu, the following as Puailoa titleholders: Saumalegalu, Tevita, and Tagipuia. This history varies markedly with the history given in the case Alo Taisi v. Puailoa, HC No. 4-1908, where the Puailoa at the time lists, under oath, the following as preceding Ta'aseu: Pulumalesama, Taligalu, Tavili, Faifa, and Taligataleoo. (Trial tr. at 75). This seeming confusion adds another dimension to Archie’s pedigree; and that is, its reliability in terms of detailing accurately all generations in his line assuming direct *232descent to the original titleholder.
Finally, A.S.C.A. § 1.0409(c) (1) talks in terms of male descendants prevailing over female descendants unless it is apparent on the evidence that “the male and female descendants are equal in families where this has been customary.” According to Archie’s pedigree, he is descendant from the female line; but there has been no evidence here whatsoever to the effect that in the Puailoa family the male and female descendants are equally entitled. Even if Archie’s genealogy is to be accepted, the presumption favoring the male descendants works against his hereditary entitlement to the title.
For purposes herein, we find that Tepatasi and Tuitogamaatoe prevail equally over Avea and Ma'ae, who in turn prevail equally over the claims of La'au and Archie.
2. Clan Support
Under this heading, the Court is required to look into “the wish of the majority or plurality of those clans of the family as customary in that family.” A.S.C.A. § 1.0409(c)(2). The candidates were all at sea on the issue of clan definition and their attempts at identifying the family’s customary clans.
Archie was the only candidate who attempted to define clans in the context of the pre-Nu'uuli times. By resorting to the familiar explanation of “clan” in terms of descent lines from the issue of the first titleholder, Archie suggested that the family has two clans: Samalaulu, a female branch, and Saumalegalu, a male branch. The problem with this contention is that it is singularly held. There is no supporting view for the premise that the Puailoa family has customarily had a female branch from the outset.
The remaining candidates all attempted to identify the family’s clans in the post-Nu'uuli family development context. Ma'aels view vacillated between two and one clan(s), while Avea, Tepatasx and Tuitogamaatoe suggested the evolution of two clans by default, namely Mataua and Sina, the issue of Aioleolo.5 La'au’s position, quite clearly on the basis of the 1935 succession case’s record, is that there were three clans: Faletutulu, Aioleolo, and Taoa. But according to the record of the 1935 succession case, the Faletutulu and Taoa’s lines died out after Vaiuli and Nouata failed to leave issue.
Whether the Puailoa family is a one clan family or a two clan family, what is clear on the evidence is that no one candidate received the weight *233of family support. The various meetings held were concluded on a note of divisiveness, with the various candidates unyielding in his/her desire to hold the title.
We find that no candidate prevails on the issue of clan support.
3. Forcefulness Character and Personality, an Knowledge of Samoan Customs
Under this heading, the Court is necessarily involved in a comparative evaluation of personal attributes and achievements demonstrating these attributes. Here the Court relies in part on personal observation of each candidate while on the witness stand. See Asuega v. Manuma, 4 A.S.R. 616, 629 (Trial Div. 1965) (Court must weigh “personal demeanor, presence of mind, the clarity, speed, and correctness with which answers were given, candidness, the ability to stand up to rigorous cross examination, the education, the self-confidence, and other qualities which are reflected from the speech and behavior of the candidates, matters which can be assessed only from the personal observation of each individual candidate”). At the same time, “[l]eadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai are some of the factors which aid in meeting this criterion.” In re Matai Title "Leaeno”, 25 A.S.R.2d 4, 8 (Land & Titles Div. 1994).
After careful review of the candidates’ respective backgrounds, their strengths and weaknesses, the court finds that Ma'ae prevails over the other candidates under this heading. He is the only party with creditable matai experience: six years standing as the Ma'ae titleholder. His responses to the judges’ questions touching on the issue of knowledge of Samoan custom bespeaks that matai experience. Moreover, he proved to be less prone to equivocation and embellishment while he was on the witness stand.
In terms of career development, Ma'ae impressed us most. Showing tenacity and perseverance together with a firm purpose for personal development, Ma'ae attained his college degree while an enlisted man in the armed forces~a strong statement on forcefulness and character. After retiring from a meritorious career with the U.S Navy, with emphasis on property management, Ma'ae returned to the territory with his education and work related expertise to serve his family, church, village, and government. Comparatively, his superior resume reflects by far the greater responsibilities entailed within the positions he holds with his Church and the number of important federal and local government commissions.
In short, Ma'ae best embodies “[leadership ability, honesty, education, public service, involvement in church and village affairs, and previous *234experience as a matai . . . which aid in meeting this criterion.” Id. He best fits the bill for forcefulness, character and personality, and knowledge of Samoan customs.
4. Value to Family, Village, and Country
Under this heading we also find that Ma'ae stands out decisively from the others. Ma'ae’s service to the country singularly stands out in terms of his past service to national government, while serving 23 years in the military, and in terms of his on-going ' service to the territorial government. As previously noted, his superior resume reflects the different federal and local government commissions in which Ma'ae has participated, including serving on the U.S. Labor Department’s biennial Wage and Hour Review Board for the territory. He continues to serve the local government as a property management specialist.
In terms of value to family and village, Ma'ae has creditable matai experience and he would not be subjected to the difficulties associated with the gender bias currently in effect with the Nu'uuli village council. The title Puailoa is included within the village honorifics taumafaalofi and effective representation and recognition within the council will only enhance the family’s prestige and well-being within the village. Additionally, the Puailoa family has relatively large land assets that require appropriate management and conservation skills. (Current dealings with the family’s land tend to reveal improvident and preclusive development, an apparent reason for the large slate of candidates.) Ma'ae is uniquely qualified in this regard.
Furthermore, we are confident that Ma'ae is in the best position to lead and bring the family together. With the large number of candidates contesting succession, and from our observation of the candidates and in listening to them, we find that there is an unmistakable atmosphere of distrust among the Puailoa family factions. This state of affairs certainly has something to do with the family’s large real estate holdings; it has something to do with the family’s history with third party adverse claimants dating back to pre-American Samoa Government times; and it also has something to do with the perception of dominant use by the immediate heirs of the last titleholder. La'au and Archie are relatively young, but their leadership potential is solidly grounded in terms of education and service to family, church, village and country. As prospective traditional leaders, their biblical “season” will soon come.
Tepatasi and Tuitogamaatoe’s side of the family has dominated the title since the 1930s, and the fact that they were unable to bridge their differences within their own immediate circle does not bode well in terms of either being a potential family mediator/conciliator. It is apt for a descendant of Sina to succeed.
Ma'ae’s track record and circumstances deems him best suited for *235leadership potential at this time. We rate Ma'ae first on this criterion.
CONCLUSION & ORDER
Based on the foregoing, we hold that Ma'ae is qualified to hold the title Puailoa as he prevails on the third and fourth statutory criteria although preceded by Tepatasi and Tuitogamaatoe on the first. The second criterion is discounted.
The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409 (b), register the metal title Puailoa, attached to the village of Nu'uuli, in candidate Ma' ae T aei.
It is so ordered.
We note that Avea and Ma'ae actually share with Tepatasi and Tuitogamaatoe a common ancestor in Puailoa Ta'aseu or Vaiofaga. The Court in In re Matai Title Sotoa, 2 A.S.R.2d 15 (Land & Titles Div. 1986), first suggested calculating a candidate’s hereditary right by reference to his relationship to the ordinal titleholder as being more desirable, because “every new titleholder does not start a new line of hereditary.” A variation of this rule employs blood relation to the nearest common ancestor. See In re Matai Title Tuiteleleapaga, 15 A.S.R.2d 90, 90-91 (Land & Titles Div. 1990). If this variation of the Sotoa rule is employed among candidates Tepatasi, Tuitogamaatoe, Avea, and Ma'ae, they would all prove equal in hereditary right.
These charts, as well as statements of family history found in the 1935 case, were quite clearly relied upon and used by the candidates.
Aioleolo’s first marriage alliance bore Mataua, the ancestor of Tepastasi and Tuitogamaatoe. Her second marriage alliance bore Sina, the ancestor of Avea and Ma'ae. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486809/ | OPINION AND ORDER
This dispute concerns a parcel of land “Vaiaupa” located in the Village of Leloaloa, and more particularly described in metes and bounds, by plot map in magnetic bearings, in the Territorial Registrar’s office at Volume 1 Native Titles at pages 213-14, and containing 0.6 acres more or less. Title to the disputed land is registered to “Henry Stevens and Kitiona.”
The disputed land, for purposes of trial, was relocated by defendant Faumuina’s witness L.P. French, a locally licensed surveyor, on a larger topography map of the vicinity based on 1991 aerial photographs of the bay area. French was asked directly at the outset of his testimony as to whether his research and maps showed the Faumuina family’s land; he responded negatively. Rather, his research showed that the disputed land was at one time within that area of land awarded to the Catholic Church under Court Grant 387.1
Of significance with the physical site is that Vaiaupa abuts defendant Ko’s store, which is situated to the east of the disputed area. The evidence shows that the land has been, at least since the date of registration, in the exclusive use and occupation of the original titleholders and their kin, followed by the use and occupation of various generations of their respective descendants. At the present time, the land contains the remnants of a homestead’s foundations as well as graves of plaintiffs family members. Vaiaupa has lately been in the custody and care of plaintiff Stevens and his siblings who have rented out the land to different third parties. Plaintiffs family has regularly obtained rents on leases of the disputed land with third parties at a rental of $1000 per month.
Plaintiffs family’s use of the Vaiaupa has been undisturbed, until the recent administration of defendant Faumuina Tagisiaali'i. The latter has *237apparently taken the position that all land in the vicinity is logically the communal property of the Faumuina family of Leloaloa, and he has accordingly taken it upon himself to assert dominion over the disputed land, notwithstanding the continuing protests of Stevens and his siblings, by granting Ko permission to use the disputed land for parking, storage of containers, and other related commercial use. Faumuina formalized his agreement with Ko in a writing dated March 20, 2000, purporting to issue a license over the disputed land for a period of 10 years. While Ko used the disputed land, between December 2000 and December 2001, plaintiff and his siblings were effectively prevented from enjoyment of the land.
Faumuina’s response to numerous entreaties from plaintiffs side, including written notices to both Faumuina and his permittee Ko, was to first demand that plaintiff prove their entitlement to him. Plaintiff then confronted Faumuina with the registration papers from the Territorial Registrar’s office, but to no avail. Faumuina appeared receptive only to the idea of plaintiff selling him the land so that he could live within the confines of Leloaloa village. Moreover, efforts for an A.S.C.A. § 43.0302 resolution before the office of Samoan Affairs proved fruitless.
On December 26, 2001, plaintiff filed suit against the defendants seeking eviction and damages for trespass. Shortly thereafter, Ko moved off the disputed land.
We conclude on the evidence that as between the parties, plaintiff has a superior claim of entitlement to the disputed land than that of Faumuina and his permittee Ko. The latter have shown absolutely no basis whatsoever for going upon the disputed land but for an entirely unfounded assumption. Their unauthorized use of the disputed land constituted trespass.
We further conclude that an award of damages in the sum of $12,000, as prayed for in the complaint,2 has been sufficiently shown. While plaintiff seeks eviction, the Court is of the view that injunctive relief is more appropriate under the circumstances. Among other things, the legal remedy is inadequate and equity would avert a multiplicity of suits.
Accordingly, the judgment of the Court is as follows:
1. Plaintiff is awarded damages in the sum of Twelve Thousand Dollars *238($12,000) against the defendants and each of themjointly and severally.
2. The defendants and each of them, together with their respective oiga, agents, servants, attorneys and all those in active concert with them are hereby enjoined and restrained from any further encroachment whatsoever .upon the plaintiffs family land “Vaiaupa,” as the same is more particularly described in the Territorial Registrar’s office at Volume 1 Native Titles at pages 213-14, and containing 0.6 acres more or less, and relocated on Exhibits “13” and “14” of the record hereof.
It is so ordered.
Under A.S.C.A. § 37.0201, such land is “freehold” land, unless “at the request of the owner, [the land has] been returned to the status of other land in American Samoa surrendering their freehold characteristics.” Except for anecdotal references French said he saw on files that the Catholic Church maintained, he could not find any record of a formal relinquishment of the land by the Catholic Church in any government office. Practice, however, seems to suggest that the Church may have surrendered its interests in the area since the court grant area has been in the occupation of the Faumuina family, excluding the disputed land.
This is perhaps an appropriate case to award punitive damages, had such an award been sought and appropriately argued. Given the sensitive and emotive dimension to Samoan land disputes, self-help measures must be thoroughly discouraged. See generally Letuli v. Le'i, 22 A.S.R.2d 77, 85-86 (Land & Titles Div. 1992). | 01-04-2023 | 11-18-2022 |
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