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https://www.courtlistener.com/api/rest/v3/opinions/8486708/ | OPINION AND ORDER
On December 30, 1997, claimant Olo B. Misilagi Letuli (“Olo”) filed with the Territorial Registrar his claim to succeed to the vacant matai title “Letuli” of the Village of Iliili was noticed and attracted seven counterclaims. The counterclaimant Ufuti Fa'afetai Ieremia dropped out, however, by failing to file with the court answers to the questionnaire required in matai title cases. Later, before trial, counterclaimant Fugaipaono V. Tagaloa withdrew. Trial began on January 25, 2000, and initially concluded on February 3, 2000. The remaining six candidates and all counsel were present throughout this phase of the trial.
The Court deliberated and, on March 24, 2000, returned the selection process to the family to hold one or more meaningful family meetings to select the successor matai. On March 27, 2000, an amended order replaced the first order solely to correct the inadvertent omission of the name of the pro se counterclaimant, Mitiomaauga Salave'a (“Mitiomaauga”), from the list of counsel.
We also took cognizance of two special collateral matters in the return order. First, counterclaimant Eni P.R. Faleomavaega (“Faleomavaega”) did not timely file with the Territorial Registrar a claim supported by at least 25 members of the family, which numbers far in excess of 25 members, as required by A.S.C.A. § 1.0407(b), and therefore failed to become an eligible candidate. Faleomavaega filed a motion for a new trial on this eligibility issue, which we denied on June 6, 2000. Second, we noted the untimely demise of counterclaimant Iosefo Kapeli Iuli on March 6, 2000.
On September 5, 2000, the four remaining candidates, Olo and counterclaimants Pili Popo Letuli (“Pili”), Mitiomaauga Salave'a (“Mitiomaauga”), and Fonoti Tafaifa (“Fonoti”), jointly informed the Court that the family met on August 19, 2000, and was still unable to select the successor to the “Letuli” title. They therefore requested that we continue with the judicial selection process. Then, on December 11, 2000, we resumed the trial by taking further evidence solely concerning the issue of the wish of the majority or plurality of the family clans in choosing the successor.
Discussion
From the evidence presented on December 11, 2000, we find that *217after due notice was given, the Letuli family met on August 19, 2000, to select the successor to the “Letuli” title. On this occasion, the family thoroughly discussed the issue and was unable to reach agreement on the selection of the next titleholder. The family carried out the Court’s direction to engage in a meaningful process to choose a new sa 'o and has not succeeded. Accordingly, we will now evaluate the qualifications of the four remaining candidates, according to the mandated statutory criteria, and adjudicate the issue. We discuss the criteria in the statutory order of their priority.
1. Best Hereditary- Right
Each of the four remaining candidates is a blood member of the Letuli family and is thus qualified under the hereditary right criteria to hold the “Letuli” title. The Court has traditionally applied an artificial rule to compare the relative strength of the candidates’ blood connection to the title at issue. Under this judicial rule, the distance of each candidate’s relationship is measured from the closest preceding titleholder in the candidate’s lineage. Olo is Letuli Pili’s grandson and has a l/4th relationship. Pili is Letuli Tagaloa’s grandson and has the same l/4th connection. Mitiomaauga is Letuli Tuiaana’s grandson and likewise has a l/4th relationship. Fonoti is Letuli Alaese’s great-great-granddaughter and has a more remote 1/16th relationship to a former titleholder.
On this basis, we find that Olo, Pili, and.Mitiomaauga equally share the best hereditary right to succeed to the “Letuli” title, and Fonoti trails them.
2. Wish nf the Majority nr Plurality of tbe Family Clans
The Letuli family presently recognizes three clans within the extended ranks of the family, Manualii, Kenese, and Faalogo. Olo and Mitiomaauga are members of the Manualii clan. Pili belongs to the Kenese clan, and Fonoti is in the Faalogo clan. Based on the clear lack of a decision by the clans on selecting a successor to the “Letuli” title, none of the four candidates has the support of either a majority or plurality of the present-day traditional clans of the family.
We find, therefore, that none of the four candidates fares any better than the other three on the clan wish criterion. The criterion is a wash.
3.. Forcefidness, Character, Personality, and Knowledge of Samoan Customs
We have carefully considered the four candidates’ backgrounds and *218careers, but will not set forth a detailed list of their accomplishments. Suffice it to say that each of them has experienced a purposeful and successful life in significantly different directions from the other three.
Judging this evidence along with the candidates’ demeanor, we first find that each is of good character. We likewise find that their knowledge of Samoan customs is essentially equal. We do find that Olo and Fonoti have a decided advantage in forcefulness, and that Olo has a particularly engaging personality.
On the evidence, we rate Olo first on the personal attributes criterion and Fonoti next, by slight margins over Pili and Mitiomaauga.
4. Value to the Family, Village and Country
Each of the four candidates is quite capable of leading the Letuli family. The distinguishing factor is that Olo is a veteran of a more lengthy record of responsible leadership positions. On this basis, we find that Olo’s value to his family, village, and the territory is presently more pronounced over the other three candidates.
We therefore also award the leadership potential criterion to Olo.
Conclusion
Olo, Pili, and Mitiomaauga are equally entitled by hereditary right to the “Letuli” title and prevail over Fonoti on this highest priority criterion for judicial selection of a successor matai titleholder. None of the candidates prevail over the others on the majority or plurality clan wish criterion. Due to his forcefulness and personality, Olo slightly prevails over the other three candidates on the personal characteristics and knowledge of Samoan custom criterion. He also has the present advantage on the value of prospective service criterion. Accordingly, we will award the “Letuli” title to Olo.
Order
The “Letuli” title is awarded to Olo U. Misilagi Letuli. The Territorial Registrar shall register the “Letuli” title in Olo’s name, provided that he has resigned from and is not holding any other registered title.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486709/ | ORDER GRANTING MOTION FOR RECONSIDERATION OR NEW TRIAL, AND PROVIDING FOR A LIMITED REHEARING
*220Defendant Tautolo Galosa (“Tautolo”) moved for reconsideration or a new trial of the Court’s order entered on November 6, 2000, that partially granted the motion by Plaintiff Faumuina Suafa'i Satele (“Faumuina”) for reconsideration or a new trial of our opinion and order entered on August 3, 2000. The motion was heard on February 15, 2001. Only Tautolo’s counsel appeared.
Discussion
Faumuina argues, by written opposition to Tautolo’s present motion, that Tautolo’s motion is untimely because it was filed more than 10 days after the opinion and order was entered. See A.S.C.A. § 43.0802(a). We disagree. The 10-day time limit is mandatory and jurisdictional. Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 119 (Trial Div. 1990); see also In re Matai Title "Mulitauaopele”, 17 A.S.R.2d 75, 80 (Land & Titles Div. 1990). However, the 10 days sensibly run from the date of entry of the order partially granting Faumuina’s motion for reconsideration or new trial. This order substantially modified the original decision and was effectively a new judgment for purposes of filing a motion for new trial with respect to the modification. See Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 174 (1987). We have, therefore, carefully considered the substantive arguments put forth by Tautolo’s present motion.
“A new trial may be granted ... on all or part of the issues for any of the reasons for which rehearings have heretofore been granted in suits in equity.” T.C.R.C.P. -59(a). Rule 59 gives a trial court broad discretion to permit a new trial in the interests of justice and applies equally to nonjury trials. 11 Charles Alan Wright et al., Federal Practice and Procedure § 2803 & 2804 (2d ed. 1995). A new trial may be appropriate in order to reweigh the evidence for this purpose even when there is substantial evidence supporting the decision. Id. at § 2806.
A rehearing limited to specific factual issues is justified in this case. We originally held that as between Faumuina and Tautolo, the entire land at issue was the Tautolo family’s communal land. Upon Faumuina’s motion for reconsideration or new trial, we revised the decision to hold that a particular portion of the land was the Faumuina family’s communal land. However, Tautolo’s present motion demonstrates that the revision deserves further evaluation.
Unfortunately, the sole associate judge sitting on this case up to this point is now fully retired from the bench and is now a newly selected Senator in the Legislature of American Samoa. He is not presently available to participate with the presiding justice in the deliberations. Hence, we will hold a rehearing with a new panel of associate judges. *221However, the rehearing will be limited to taking evidence relevant to any acquisition of title to the land held by the Faumuina family, as claimed by Faumuina and disputed by Tautolo. Further evidentiary development on this factual issue is required for the ends of justice in this case. All other factual issues can be decided by the new panel of judges on the evidence previously admitted.
Order
We grant Tautolo’s motion for reconsideration or a new trial. The existing judgment is opened. A rehearing will be scheduled upon either party’s motion. During the rehearing, the new panel of judges will take additional evidence that is limited and relevant to the specific factual issue of any acquisition of title to the land at issue, or any part of it, by the Faumuina family. Evidence previously admitted will be considered for other findings of fact. We will then amend or make new findings of fact and conclusions of law, as may be appropriate, and direct entry of a new judgment.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486710/ | OPINION AND ORDER
Liae Lili'i Si'ufanua (“Liae”) died on December 12, 1992. At the time of his death, Liae was domiciled in Hawaii, but his estate included property in American Samoa, individually-owned land (“the land”) registered with the Territorial Registrar under the name “Liae Lili'i & children.” The land, named “Ala'iasu,” contains approximately 18.623 acres, and is located in the Village of Faleniu. The proceeding to probate Liae’s will, PR No. 8-96, was commenced on March 6, 1996. On April 25, 1996, Arvay N. Siufanua (“Arvay”), one of Liae’s daughters, was duly appointed administrator of the estate with the will annexed.
On June 1, 1998, Arvay filed her final accounting and proposed *223distribution of the estate. Steven Siufanua (“Steven”), the plaintiff in LT No. 15-99, notified Arvay that heirs of two of Liae’s grandchildren, Lee Liae Siufanua (“Lee”) and Duwayne Siufanua Lili'i (“Duwayne”), both then deceased, claimed interests in the land as registered. As a result, on October 19, 1998, the Court approved Arvay’s final accounting and ordered distribution of Liae’s interest in the land to the beneficiaries according to Liae’s will, subject to a judicial declaration, upon application by the deceased grandchildren’s heirs to the Land and Titles Division, of the deceased grandchildren’s interests in the land.
On July 7, 1999, in the absence of the anticipated declaratory relief action, Arvay moved to dismiss Steven’s objections to her distribution. However, Steven responded by filing LT No. 15-99 for declaratory relief on July 30, 1999. Trial was held on May 15, 2000. Steven and Arvay, with her counsel, were present.
Discussion
Liae’s will was duly executed in Hawaii, on January 24, 1990. The will names Liae’s immediate family as his heirs. In addition to his spouse Liva Pilimai Siufanua (“Liva”), there are nine children: Mate M. Siufanua Jackson (“Mate”), Talive Siufanua (“Talive”), Mataata Lilii Siufanua (“Mataata”), Estella Lilii Siufanua Reid (“Estella”), Melita Siufanua Lueder (“Melita”), Tafaomanifo Lilii Siufanua (“Tafaomanifo”), Arvay, Puleono Lana Siufanua Burgess (“Puleono”), and Wendall Fuifata Siufanua (“Wendall”); two grandchildren: Lee and Duwayne; and two deceased children; Liae Siufanua and Muaaufaalele Siufanua, who died in infancy. Liae’s “personal representative,” in the preference listed, was to be Mate, Talive, or Mataata. Since all three resided outside of American Samoa, Arvay, a resident of the Territory, was selected to be the administrator for the probate proceedings here.
The residuary clause of the will governs the disposition of Liae’s interest in the land. It provides that the residue of the estate, real and personal, is devised in equal shares to Mate, Talive, Mataata, Estella, Melita, Tafaomanifo, Arvay, Puleono, Wendall, Lee and Duwayne. Thus, Liae’s interest in the land devolves in equal 1/11th shares to these eleven beneficiaries.
The registration certificate shows that the land is owned by “[Liae] & children.” Without a joint tenancy provision, Liae and his children held the title to the land as tenants in common. If the children are the nine living children named in the will, then Liae and each child held an undivided l/10th interest in the land, and Liae’s undivided l/10th interest would devolve to the named beneficiaries in the will in eleven equal shares. The heirs of Lee and Duwayne would first acquire any title to the *224land only by this devise. On the other hand, if Lee and Duwayne are included as Liae’s children, as Steven contends, then Liae and each child held an undivided l/12th interest in the land, and Liae’s undivided l/12th interest would still devolve to the beneficiaries in eleven equal shares. The devise would add to the existing title of the heirs of Lee and Duwayne.
Resolution of the issue depends upon the application of the doctrine of equitable adoption to the factual situation in this case. This court applied the doctrine for inheritance purposes in the Estate of Fuimaono, 23 A.S.R.2d 33 (Trial Div. 1992). The cardinal purpose of the doctrine is to justify the expectations of individuals when their personal relationships fail the test of traditional legal concepts, and to thereby avoid serious hardship. Homer E. Clark, Jr., The Law of Domestic Relations in the United States § 25.9, at 926 (2d ed. 1988). The purpose is especially served “when the person whose interests are at stake was a child when the operative facts occurred.” Id.
Courts apply the doctrine only when de facto relationships are present. Id. at 927. An equitable adoption can be found when a child “has stood from an age of tender years in a position exactly equivalent to a formally adopted child.” Wheeling Dollar Sav. & Trust Co. v. Singer, 250 S.E.2d 369, 373-74 (W. Va. 1979). Most courts require proof of the de facto relationship by clear and convincing evidence. Clark, supra, at 927.
Lee and Duwayne were the biological children of Thurman W. Jackson and Mate, a daughter of Liae and Liva. Thus, they were the biological grandchildren of Liae and Liva. Liae’s will recognizes the natural relationships. Clearly, however, Lee and Duwayne were raised from infancy by Liae and Liva as if Lee and Duwayne were their own children. The extended family as a whole appears to have accepted the de facto parent-child relationship between Liae and Liva as parents and Lee and Duwayne as their children. Certainly Mate, their mother, and three of the biological siblings of Lee and Duwayne have expressly acknowledged the parent-child relationships of Lee and Duwayne with Liae and Liva. Public and church records relating to the births, marriages, and deaths of Lee and Duwayne also state that Liae and Liva are their parents.
Telling evidence in the context of this family situation is the “Acknowledgement of ownership and subdivision of Land Alaiasu” recorded with the Territorial Registrar on November 15, 1993. This document recognizes the eleven beneficiaries under the will as Liae’s children and as common owners of the land. It was signed by all eleven beneficiaries Mate, Talive, Mataata, Estella, Melita, Tafaomanifo, Arvay, Puleono, Wendall, Lee, and Duwayne.
*225Lee and Duwayne might be considered Liae’s children adopted in accordance with Samoan custom, with all attendant rights. See Leasiolagi v. Fao, 2 A.S.R. 451, 452-53 (Trial Div. 1949). In any event, we are persuaded that this is an appropriate situation to apply the equitable adoption principle. Liae and Liva raised Lee and Duwayne as their children. It would be unnecessarily harsh to deprive the heirs of Lee and Duwayne of ownership rights in the land based upon the acknowledged de facto parent-child relationships of Lee and Duwayne with Liae and Liva and the expectations of Lee and Duwayne to be among the common owners of the land.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486711/ | OPINION AND ORDER
On September 21, 1998, the Court entered the original Opinion and Order in this action awarding the matai title “Tagoilelagi” to Counterclaimant Tilimasao Sitala Sitala, Jr. (“Ulimasao”). Claimant Fagaoali'i appealed the Trial Court’s decision, and the Appellate Division remanded the case to this Court to determine the customary clan(s) of the family, as well as whom is supported by the clan(s) as the next holder of the title. Fagaoaii'i v. Ulmasao, 3 A.S.R.3d 66, 70 (App. Div. 1999). These facts are essential to a positive finding on the second of the four selection criteria mandated by statute, the wish of the majority or plurality of the family’s customary clans. A.S.C.A. § 1.0409(c)(2).
The remand hearing was held on December 14, 2000. Fagaoali'i, Ulimasao, and their respective counsel were present. Testimony was taken, and the parties agreed to submit written arguments. The written arguments were filed on December 21, 2000, in accordance with the agreement.
Discussion
1. The Family’s Customary Clam
Fagaoali'i identifies a single customary clan of the Tagoilelagi family, Uitualagi. Fagaoali'i follows the tradition of clans based on the names of the progeny of the original titleholder, who he believes is Tagomailelagi Tagaloalagi. Tagomailelagi Tagaloalagi had two children, a son Uitualagi and a daughter Silaulelei, who did not have children. Thus, Fagaoali'i believes that Uitualagi is the sole family clan today.
Ulimasao counters with five customary clans of the family, Falemalama, Suiufa'iga, Sa'a, Sina, and Tuiasosopo. Ulimasao believes that Tagomailelagi Tagaloalagi’s son, Tagomailelagi Uitualagi, was the first hue sa 'o of the family in Vatia. Tagomailelagi Uitualagi had four sons, Falemalama, Suiufa'iga, Sa'a, and Tuiasosopo, and one daughter, Sina. Tuiasosopo’s descendents, if any, faded from family history a long time ago. Thus, Ulimasao holds to the view that the other three sons and the daughter are the source of names of the customary family clans that are recognized and participate in current family fa'alavelave (“family events”).
*227In addition to the two remaining candidates, chiefs Te'o Tavai, who descends from Sina, and Vaifetuli Gaoteote, who descends from Sa'a, testified at the remand hearing. The two chiefs corroborate Ulimasao’s position that four distinct clans are presently recognized and actively function in the Tagoilelagi family’s fa 'alavelave. At these fa'alavelave, descendents of the three brothers, Falemalama, Sulufa'iga and Sa'a, and one sister, Sina, separately present si'i (“customary gifts”). Chief Te'o also points out that Sina’s descendants are distinguished as the family tama-sa (“sacred clan”).
The concept of the “clans” of a Samoan family is not defined in the statutes governing matai titles. A.S.C.A. § 1.0401-.0414. Rather, guidance is given only by the general phrase “clans of the family as customary in that family” for purposes of deciding title succession controversies. A.S.C.A. § 1.0404(c)(2). As in this case, opposing claimants frequently disagree about the identity of the family’s clans when urging support within the family for their respective candidacies, often making judicial resolution of the clan wish issue perplexing. In re Matai Title “Tauaifaiva ”, 5 A.S.R. 2d 13, 15 (Land & Titles Div. 1987). In any case, the statutory reference to the “customary” clans provides clear direction that clan identity must be determined by the particular family’s current traditions. Id; In re Matai Title “Atiumaletavai”, 22 A.S.R.2d 94, 98 (Land & Titles Div. 1992).
Samoan customs are fluid, not static. In re Matai Title “Atiumaletavai”, 22 A.S.R.2d 94, 97-98 (Land & Titles Div. 1992); In re Matai Title "Tauaifaiva”, 5 A.S.R.2d 13, 14 (Land & Titles Div. 1987). They vary from family to family, and evolve from time to time within each family. We are satisfied by a preponderance of the evidence that Tagamailelagi Tagaloalagi was first holder of the “Tagoilelagi” title. However, we are also convinced by a preponderance of the evidence that the Tagoilelagi family customarily developed, and for purposes of the present successor selection process still has, four clans, namely the Falemalama, Sulufa'iga, Sa'a, and Sina clans, that actively and separately participate in the family’s fa 'alavelave.
2. Wish of the Majority or Plurality of the Family’s Customary Clans
Based on the evidence presented at the remand hearing, our findings in the original opinion and order of September 21, 1998, concerning family meetings to select the successor to the “Tagoilelagi” title were essentially correct. Quoting that Opinion and Order at 2 A.S.R.3d 230, 234-235, we repeat those findings (deleting the reference to a single clan based on our present finding of four clans), as follows:
The family... clans first met in February 1994. Ulimasao and *228another 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 discussions, Ulimasao was still the apparent favorite for the title, but the family . . . 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 . . . 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 . . . clans met a fourth time. Ulimasao still retained his previous support at the fourth meeting. However, to maintain peace and harmony, the family . . . 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 Fagaoali'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.
Clearly, the family met meaningfully on several occasions to discuss and select the successor to hold the “Tagoilelagi” title. Although Ulimasao enjoyed the most support for selection, the family failed to reach a trae consensus choice. Though not nominated until the fourth meeting, and then as a compromise gesture, Fagaoali'i probably has the support of his clan, the Sulufa'iga clan, at least at this time. Ulimasao has the support of his clan, the Falemalama clan. At the remand hearing, chiefs Te'o, implicitly by testifying, and Vaifetuli, expressly, confirmed the support of their clans, the Sina and Sa'a clans respectively, for Ulimasao.
Accordingly, we find that Ulimasao has the majority support of three of the four customary clans that are presently active in the affairs of the Tagoilelagi family. Even if we discount the Sina clan as indecisive on the issue, Ulimasao still has the plurality support of two clans of the four clans. Either way, Ulimasao prevails on the clan wish criterion.
*229Conclusions
Both candidates are blood members of the Tagoilelagi family and are qualified on this basis to hold the “Tagoilelagi” title. Fagaoali'i does prevail, however, as previously found, on the statutory best hereditary criterion under the mies judicially formulated to evaluate this issue. We also previously found, and still consider, both candidates equally qualified on the third priority criterion of forcefulness, character, personality, and knowledge of Samoan customs. Ulimasao prevails, however, on the second priority clan - wish criterion and, again as previously and still found, fourth priority criterion of value to family, village, and country.
In our evaluation, Ulimasao notably outranks Fagaoali'i as the choice of the majority or plurality of the customary clans of the family and in leadership potential, the second and fourth priority criteria, and these ratings surpass Fagaoali'i’s nominally stronger hereditary right. We therefore reaffirm our decision of September 28, 1998, to award the “Tagoilelagi” title to Ulimasao.
Order
The title “Tagoilelagi” is awarded to Ulimasao Sitala Sitala, Jr. The Territorial Registrar shall register the title in Ulimasao’s name, provided that he has resigned from and is not registered holding any other matai title.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486712/ | JUDGE ATIULAGI,
Dissenting,
My view was before and still is that the title “Tagoilelagi” should be awarded to Fagaoali'i.
Fagaoali'i has a better hereditary right to the title than does Ulimasao. I am persuaded that the Tagoilelagi family follows the tradition of identifying clans by the names of the original titleholder’s offspring. The first titleholder, Tagomailelagi Tagaloalagi, had one child who had descendents, his son Uitualagi. Thus, I am not convinced that the Tagoilelagi family has more than the one clan, identified by Fagaoali'i as the Uitualagi clan. This single clan has not reached a consensus to support Ulimasao, and I would therefore find that neither candidate prevails on this issue.
*230Again, as I indicated before, I believe that Fagaoali'i is a more forceful person and stronger leader. Except while receiving his higher education, Fagaoali'i has lived in American Samoa his entire life. He has held a matai title in the Tagoilelagi family for a slightly longer period than has Ulimasao. I would therefore find that Fagaoali'i prevails on the third and fourth criteria.
Because he prevails on the first, third, and fourth criteria in my view, I would award the “Tagoilelagi” title to Fagaoali'i. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486713/ | OPINION AND ORDER
Both of these actions arose out of objections to offers to register land in the Village of Fitiuta on the Island of Ta'u in the Manu'a Islands. A portion of the lands claimed by the two original claimants and several objectors overlap in varying ways. Within the common area of the overlaps, the American Samoa Government (“ASG”) located a well to provide water to the residents of Fitiuta. The American Samoa Power Authority (“ASPA”) now has jurisdiction over the well. An access road crosses the claimed lands, and a part of the road is within the overlaps. On March 23, 1998, the two actions were consolidated because of the overlaps and parties common to both actions.
Before trial, several of the original parties to this action were replaced. Filiupu Galea'i (“Filiupu G.”), the original land registration claimant in LT No. 22-94, passed away and was replaced by claimant/objector Filiupu A. Ofisa (“Filiupu O.”), the present Filiupu titleholder. Aukuso M. Tuiveta (“Aukuso”), the original land registration claimant in LT No. 14-97 and an original objector in LT No. 22-94, also passed way, and his claim is now handled by his daughter and administrator of his estate, claimant/objector Pogisa Tuiolemotu (“Pogisa”). Te'i Lanu Fetu (“Te'i L”), an original objector in LT No. 22-94, passed away and was replaced by his son, objector Te'i Taufa'ase (“Te'i T.”), who now holds the Te'i title, So'oupu Ama Savea (“So'oupu”), an original objector in LT No. 14-97, was replaced by her son, objector Ama Saoluaga Nua (“Ama”), who recently succeeded to the Ama title. Objector Laie Mata'utia (“Laie”) in LT No. 14-97 never filed a statement of claim and, by this inaction, dropped out of the case.
Trial commenced on April 10, 2001, and concluded on April 18, 2001. On May 11, 2001, the court inspected the lands claimed with a *232designated spokesperson of each of the four parties still actively pursuing their claims.
I. The Offers of Land Registration
A. The Filiupu 'Registration
On September 4, 1992, pursuant to A.S.C.A. § 37.0101-,0120, Filiupu G. filed with the Territorial Registrar his offer to register approximately 0.712 of an acre, named “Lalopiu,” as his individually owned land. The offer was duly noticed in accordance with A.S.C.A. § 37.0103. Aukuso and Te'i L. objected in a timely manner. Aukuso asserted that the land offered for registration by Filiupu G. encroached upon his individually owned land. Te'i L. declared that Filiupu G.’s claim encroached upon the Te'i family’s communal land. Both encroachments involved the well site and an immediately adjacent portion of the access road. Accordingly, the matter was referred to the Secretary of Samoan Affairs for dispute resolution proceedings, mandated in communal land controversies, and in due course on March 14, 1994, the Secretary issued a Certificate of Irreconcilable Dispute, a jurisdictional requirement for judicial communal land title determinations. A.S.C.A. § 43.0302; Ava v. Logoa'i, 20 A.S.R.2d 51, 52 (Land & Titles Div. 1992). On July 1, 1994, the Registrar referred the matter to this Court for resolution. The referral became LT No. 22-94.
Filiupu G. offered to register the land he claimed as his individually owned land. However, at trial, the testimony of the Filiupu family members on behalf of Filiupu O. made clear that Filiupu O. considered the land to be Filiupu family communal land.
B. The Aukuso Offer of Registration
On December 5, 1995, Aukuso offered to register approximately 1,442 acres, named “Loi,” as his individually owned land. After notice of the offer was disseminated, objectors Logoai Siaki (“Logoai”), So'oupu, Filiupu G., and Laie timely opposed the registration. All four objectors asserted that the land claimed by Aukuso encroached upon their lands, specifically upon the area of the well site and an adjacent portion of the access road.
The Filiupu claim, whether as individually owned land or as family communal land, may be subordinate to the Galea'i family’s claim to the same land as its communal land. We take judicial notice of Tuiveta v. Te'i, LT No. 30-85, dismissed without prejudice by bench order during trial on April 8, 1987. LT No. 30-85 involved claims to the same well site at issue in the present actions. In LT No. 30-85, the court had only a *233survey showing a 20-foot square of. land around the well. Competing claims to the well site were put forth by Aukuso as the Laie family’s communal land (Aukuso testified that his father was Laie Misa, but his matai title “Tuiveta” was from his wife’s family, the Galea'i family), by Te'i L. as the Te'i family’s communal land, and by Galea'i Poumele as the Galea'i and Filiupu families’ communal land. The Court recognized that each family owned land in the vicinity of the well. However, the Court declined to adjudicate the competing land claims in the absence of surveys of the entire area around the well site claimed by each family, and therefore dismissed the action until the parties were prepared to proceed in this manner..
The testimony and other evidence in LT No. 30-85 illustrate the marital alliances and other complex interrelationships among the families involved. This is. also apparent in, the present actions. We note one aspect here in particular. The Filiupu matai title serves the Galea'i matai title. See In re Matai Title "Galea'i", MT No. 6-98, pretrial orders at 3 (Land & Titles Div. Nov. 19, 1999). Thus, it appears that the Filiupu claim, whether as individually owned land or as communal land, is subordinate to the. Galea'i family’s claim to the same land as its communal land. However, we do not need to decide that issue in the present actions.
So'oupu and Laie separately maintained each of their claims to be family communal land. As such, this controversy was referred to the Secretary of Samoan Affairs for dispute resolution proceedings, which on June 27, 1997, resulted in the issuance of a Certificate of Irreconcilable Dispute. On August 4, 1997, the Registrar referred this controversy for judicial determination. The referral became LT No. 14-97.
As noted previously, Laie did not pursue his contention of land ownership in the well-site area. Similarly, during Logoai’s case-in-chief, Logoai’s counsel advised the court that he also represented Pogisa as the administrator of Aukuso’s estate. .He further advised us that because the interests of Logoai and Aukuso in the land claimed for registration by Aukuso in LT No. 14-97 were in fact identical, Pogisa was withdrawing the claim of Aukuso’s estate to the. well-site area as individually owned land in favor of Logoai’s claim to the same land as the Logoai family’s communal land. With Laie and Aukuso withdrawn, the competing land claims enclosing the well site and disputed portion of the access road are reduced to the four by Filiupu O., Logoai, Ama, and Te'i T.
Discussion
Each of the remaining four claimants presented evidence of family history and personal knowledge of the particular land over which each *234claims ownership. Insofar as this evidence deals with relatively modem times, it is largely related to cultivated use of the land claimed. The evidence further demonstrates the intricate interrelationships between some of the families.
We need not dwell on the details of those relationships, however, except for conflicts in testimony that may truly impact our decision. The broad history of the area and our physical observations are far more persuasive factors.
The area where the well site and access road are located is known as “Faga” and has major historical significance. It is reputed to be one of the oldest, and some say the first, human settlement in the Samoan archipelago. Along the way, however, the settlement was removed to the present location of Fitiuta. Nonetheless, “Faga” never lost its sacred identity, and ownership of land within the area was apportioned as communal land among the families and under the pule (“authority”) of the highest-ranking matai (“chiefs”) of present-day Fitiuta.
The portion of “Faga” at issue lies immediately adjacent to the public road, which goes to Fitiuta to the east and to the Village of Ta'u to the west. The boundaries along the east and west sides of the apportioned lands within this portion of “Faga” were established in straight lines running from the public road at the north end towards the mountains at the south end. Before reaching the disputed area, the access road is clearly within the Te'i family’s communal land, named “Sina.” The communal lands of the Logoai, Patea, and Filiupu families are situated east of the Te'i family’s communal land, towards Fitiuta, and communal lands of the Taaga and Paopao families are situated on the west side, towards Ta'u.1
According to Te'i T., the southern boundary of his land claim is the northern boundary of Logoai’s land claim. In Te'i T,’s survey, this boundary is shown sufficiently inland to place the well site and the disputed portion of the access road within the southeast area of his land claim. The eastern boundaries of both Te'i T.’s survey and Logoai’s survey (originally Aukuso’s survey) also coincide roughly in this area. Te'i T.’s southern boundary does not, however, follow any clearly discernible boundary marked by trees or other identifying markers.
The northern and eastern boundaries of Logoai’s survey enclose the well site and the disputed portion of the access road within the northeast area of his land claim. Unlike Te'i T.’s placement of the boundary *235between his and Logoai’s land claim, the northern boundary pf Logoai’s survey follows a distinct line of trees. This court has found a straight line of trees, a common method of defining boundaries between adjacent, unregistered tracts of land in Samoa, to be strong circumstantial evidence of a historic boundary. See Faleafine v. Suapilimai, 7 A.S.R.2d 108, 112 (Land & Titles Div. 1988). In weighing the lack of distinguishing field markers defining the southern boundary in Te'i T.’s survey against the actual line of trees along the northern boundary of Logoai’s survey, we must give deference to the circumstance of existing trees. We therefore find that the northern boundary of Logoai’s survey is the southern boundary of the Te'i family’s communal land, and that the well site and the disputed portion of the access road are outside of the Te'i family’s communal land.
Filiupu O.’s survey is not configured in the manner used to apportion the lands within “Faga.” Neither the east nor the west boundaries of this survey follow anything near straight lines. The east boundary artificially juts out to include approximately one-half of the eastern side of the well site, and a substantial part of the eastern side of disputed portion of the access road within this survey. Strangely, this configuration happens to put the western side of well site and the disputed access road within the Ama family’s land claim. This delineation of the boundary appears to be deliberately rather than coincidentally determined for these actions. The evidence shows that the Filiupu family owns communal land in this vicinity. However, we find that the well site and the disputed portion of the access road are outside of the Filiupu family’s communal land.
Ama did not present a survey of his land claim. However, Ama’s land claim essentially coincides with Logoai’s land claim, except he agreed that the eastern boundary of the Ama family’s communal land is the same as the western boundary of the Filiupu family’s communal land. Thus, Ama claims approximately one-half of the western sides of the well site and the disputed portion of the access road, as defined by the peculiar boundary between his and Filiupu O.’s land claims. Unlike Logoai’s survey that defines the boundaries of his land claim consistently with the traditional layout of lands in “Faga” established by the ranking Fitiuta matai, we do not believe that there is any historical basis for the common boundary claimed by Ama and Filiupu O.
So'oupu, Ama’s mother, pointed out that her family had a plantation fale within Ama’s land claim. Her father, however, was from the Logoai family. She further testified that her brother Kiliona held the Ama title as the sa 'o (“head chief’) of the family, as proof of Ama’s land claim. She claimed that Kiliona as the Ama permitted Aukuso to maintain a plantation on the land. She admitted, however, that Kiliona later held the Logoai title as the sa 'o of the Logoai family. The present Logoai *236maintained that Kiliona as the Logoai authorized Aukuso’s plantation. Furthermore, Aukuso’s son acknowledged that he currently plants within the land claimed by both Logoai and Ama, as his father used it before him, under the authority of the Logoai title. No doubt the connection between the Logoai and Ama families in the past lends to confusion over ownership of land each family is now claiming.
The Logoai title is a high-ranking matai in the hierarchy of Fitiuta. The Filiupu, Te'i, Patea, Taaga, and Paopao titles, which have pule over lands in the immediate proximity of the land claimed by Ama and Logoai, are comparable in rank to the Logoai title. The Ama is a lesser title in the village hierarchy, and it is unlikely that the Ama title would control land in Faga in the same vicinity of the lands held by these other titles.
We hold, therefore, that the land within Logoai’s survey (formerly Aukuso’s survey), which encompasses the well site and the disputed portion of the access road, is the Logoai family’s communal land.
Order
1. The land within Logoai’s survey, which encompasses the well site and the disputed portion of the access road, is the Logoai family’s communal land. The Territorial Registrar is directed to register this land in this manner.
2. Logoai is entitled to receive the unpaid compensation from ASPA or ASG, or both, accrued for use of the well site and access road within the land from the inception of the well site and access road to the present time, and accruing in the future.
It is so ordered.
We have listed the communal land in geographical order from the public road towards the inland direction. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486842/ | ORDER GRANTING EX PARTE MOTION ON REQUEST FOR EXPERT, DENYING MOTION FOR EXPEDITED HEARING & OTHER EX PARTE MOTIONS, AND NOTICE OF HEARING
On April 12, 2004, and April 14, 2004, counsel for Defendant Motu Feagaimaali'i, Jr. (“Motu”) filed a battery of motions under the umbrella of a “Verified Confidential Application For Expert.” Containing the arguments for the motions, the actual application for expert, and one supplement, the package was filed ex parte and in camera. In order to respect the defense’s expectations when filing, we will not reveal motions unknown to Plaintiff ASG at this time. Attempting to explain the legal basis for the ex parte motions, a second supplement to the application was filed and served to ASG. The deadline for the filing of pretrial motions lapsed on April 12,2004.
Generally, we permit the defense to make requests for experts ex parte to protect defense work product and the attorney-client privilege. See Hightower v. Schofield, No. 00-15807, 2004 WL 764596 at *14 (11th Cir. Apr. 12, 2004). However, we discourage ex parte communication and deny ex parte hearing requests on motions for experts which can be made without the disclosure of privileged material.
In this case, we grant the ex parte and in camera hearing request on the motion for expert. Containing privileged information, the motion was properly filed ex parte. Exercising our discretion, we deny an expedited hearing on this motion.
Without prejudice, we deny all other motions filed by the defense on April 12, 2004 and April 14, 2004. In reviewing these filings, it appears that defense counsel considers that his ex parte request for expert permits him to bring other motions before us. Unnecessarily attaching other motions to the ex parte motion for expert is unfair to ASG and unacceptable. As filed, the motions improperly deny ASG an opportunity to respond because these motions can be effectively argued without revealing privileged information.
*142To allow the defense an opportunity to properly bring only the motions at issue here, we grant a limited extension of the deadline for filing motions. The defense may serve and re-file these motions in accordance with standard procedure by May 7,2003.1
Order
1. Defendant’s motion for ex parte and in camera hearing on the motion for expert is granted.
2. Defendant’s motion for expedited hearing on the motion for expert is denied.
3. Defendant’s other ex parte motions filed on April 12 and 14, 2004 are denied.
4. A hearing on the motion for expert will be held at a later date.
We also give defense counsel the opportunity to meet his ethical obligations to inform his client about matters which require informed consent and about “the means by which the client’s objectives are to be accomplished.” Model Rules of Prof’l Conduct R. 1.4(2002). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486843/ | ORDER DENYING MOTION FOR JURY INSTRUCTION AND GRANTING MOTION TO CONTINUE PRETRIAL CONFERENCE
Defendant Tagaolo Wright (“Tagaolo”) is charged with Abuse of Child in violation of A.S.C.A. § 46.38111 and with Assault in the Third Degree in violation of A.S.C.A. § 46.3522. Tagaolo moves for a jury instruction and also moves to continue the pre-trial conference in light of his current motion for an instruction.2 All counsel and Tagaolo were present at the April 12, 2004 hearing on this motion. For the following reasons, we deny Tagaolo’s motion for a jury instruction and grant his motion to continue the pre-trial conference.
Tagaolo seeks a pre-trial ruling that a specific jury instruction will be presented at trial. He requests an instruction regarding: (1) the mens rea requirement of the child abuse statute; and (2) the “accepted child rearing practices” as that language is used in A.S.C.A. § 45.2001.3
*144At the outset, we note (and Tagaolo admits) that “generally jury instructions are filed after the pre-trial conference.” (Defi’s Mot. at 3.) Tagaolo cites no legal authority or precedent to demonstrate that consideration of jury instructions at this early juncture is appropriate.
T.C.R.Cr.P. 30 provides in relevant part:
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written request that the court instruct the jury on the law as set forth in the requests .... The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed, (emphasis added).
We see no reason to depart from T.C.R.Cr.P. 30 and decide on jury instructions at this túne.
Moreover, it is unclear from his motion whether Tagaolo wants the court to give this instruction to the jury before the presentation of the evidence as a preliminary juiy instruction or after the close of evidence during regular jury instructions. (Def.’s Mot. at 3 n.l (providing his “PROPOSED PRELIMINARY JURY INSTRUCTION”) (emphasis added).) Courts sometimes give preliminary instructions to the juiy prior to the presentation of the evidence. 2A CHARLES Alan Wright, Federal Practice and Procedure, § 483 (West 2000) (“It is often desirable for the judge to give the jury preliminary instructions at the outset of trial ....”) (footnote omitted). However, most times, these preliminary instructions consist of routine issues such as “the burden of proof, presumption of innocence, reasonable doubt, and the roles of the judge and attorneys.” 26 James Wm. Moore, Moore’s Federal Practice § 630.04 (3d ed. 1999). We prefer to mle on jury instructions at a later date.
However, in denying Tagaolo’s motion, we do not preclude him from bringing this same instruction at a more appropriate time. Indeed, with respect to the requested mens rea instruction, we note that “[i]n instructing the jury, the court must accurately define the essential elements of the offense charged.” Id. § 630.02[2], With respect to the requested “accepted child rearing practices” instruction, we note that “[a] defendant is entitled to have the jury instructed regarding each legitimate *145theory of defense. The proposed instruction must be supported by evidence sufficient for a reasonable jury to find in the defendant’s favor.” Id. § 63 0.11 [2] [a] (footnote omitted).
From Tagaolo’s written request for a jury instruction, it is apparent that defense counsel brought this motion in an attempt to clarify “a question of law, the judicial determination of which would assist both parties in plea negotiations.” (Def.’s Mot. at 3.) Should there be some confusion or disagreement about the interpretation of the statute under which Tagaolo is charged, he is not without options in this regard. As we noted at the hearing, if defense counsel thinks the child abuse statutes are vague, he can bring the appropriate motion to challenge them. Moreover, if defense counsel thinks the mens rea element is inappropriately excluded from the charge, he can move to dismiss.4 See, e.g., American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145, 149-50 (Trial Div. 1990) (noting an information may track a statute, “as long as the statute sets forth fully, directly and expressly, without any uncertainty or ambiguity,... all the elements necessary to constitute the offence intended to be punished”) (citation omitted); State v. Briscoe, 847 S.W.2d 792, 794 (Mo. 1993) (discussing a post-verdict challenge to an information that “fail[ed] to specify, at least by express terms, the culpable mental state”). However, since neither of these issues is properly before us, we express no opinion on the merits of them.
Order
Tagaolo’s motion for jury instructions is denied. Tagaolo’s motion to continue the pre-trial conference is granted.
It is so ordered.
Tagaolo mistakenly refers to this statute as A.S.C.A. § 46.3611 (short cited as “section 3611”) in his memorandum. A.S.C.A. § 46.3611 is the sodomy statute. Tagaolo is not charged with any offense under A.S.C.A. § 46.3611.
The government did not file a written response to Tagaolo’s motion.
The proposed instruction reads as follows:
PROPOSED PRELIMINARY JURY INSTRUCTION, (a) If you find that defendant’s actions fall within the accepted child rearing practices of the tenitoiy of American Samoa, then you *144must find Defendant “Not Guilty.” (b) If you find that Defendant committed the acts or omissions through negligence, then you must find Defendant “Not Guilty.”
(Def.’s Mot at 3-4 n. 1.)
In this same regard, the government may move to amend the information “at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” T.C.R.Cr.P. 7(e). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486844/ | ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiffs Eugene Joseph Paslov (“Eugene”), Dr. Eugene Paslov, and Susan Paslov seek enforcement of a July 22, 2002 Montana state custody order regarding the custody of Eugene’s minor son. The child’s mother, Kathleen Cox (“Kathleen”), opposes the petition and moves for judgment on the pleadings. For the reasons stated below, we grant Kathleen’s motion.
*147Standard of Review
In deciding a motion for judgment on the pleadings, the same standard is used as that for determining a motion brought pursuant to T.C.R.C.P. 12(b)(6). GATX Leasing Corp. v. Nat'l Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995). In reviewing a motion under T.C.R.C.P. 12(c), “the court may consider any of the pleadings, including the complaint, the answer, and any written instruments attached to them,” as well as matters of judicial notice. 2 James Wm. Moore, Moore’s Federal Practice §§ 12.38,12.34[2] (3ded. 1999). A motion for judgment on the pleadings “should not be granted unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.” Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999) (citations omitted).
Discussion
This is not the first time Eugene and Kathleen have been before this court regarding the custody of their minor child. Indeed, on July 17, 2001, we entered an order modifying an earlier Montana state custody decree and designating Kathleen as the exclusive custodian of the minor child.1 Cox v. Paslov, 5 A.S.R.3d 150 (Trial Div. 2001). In that order, after careful consideration of the facts and law, we determined that the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (“PKPA”), required that we give the Montana decree full faith and credit. Cox, at 158. We also determined that we had jurisdiction to modify the Montana decree. Id. at 162. Eugene moved for reconsideration but later withdrew his motion, thereby forgoing his right to appeal our decision.2
Instead, Eugene, along with his parents, Dr. Eugene and Susan Paslov, moved in the Montana court to enforce the previous Montana custody decree (which had been superseded by our July 17, 2001 Order) and moved for grandparent visitation rights. Judge Ted L. Mizner of the Montana Third Judicial District Court of Powell County (“Judge Mizner”) granted the motions claiming the Montana court still had jurisdiction over the parties and the subject matter. July 22, 2002 Order at 2-3. Judge Mizner rejected our July 17,2001 Order without providing any comprehensive analysis of jurisdiction under the PKPA. Eugene and his parents now seek to enforce Judge Mizner’s July 22, 2002 Order.
*148As we thoroughly discussed in our July 17, 2001 Order, the Montana court had neither “continuing jurisdiction” nor “pending jurisdiction” over custody as contemplated under the PKPA. Cox, at 159-161. We found Montana did not have “continuing jurisdiction” under the PKPA because the minor child, Kathleen, and Eugene no longer resided in Montana. Id. at 160. Finding that the Montana court no longer had “continuing jurisdiction,” we next analyzed whether the Montana court had “pending jurisdiction.” Id. at 160-161. In our order, we found Montana had made a final custody determination on September 11, 2000, transferring the minor’s custody to Eugene. Id. at 160. Judge Mizner claims the Montana court never lost jurisdiction because an enforcement action against Kathleen was pending in Montana. July 22, 2002 Order at 2. However, we specifically found that there was no action pending in the Montana courts that affected a custody determination as that term is used under the PKPA. Cox, at 161. We found that Judge Mizner had made his final custody determination and any action pending at the time was wholly separate from a custody determination. Id. Because Montana had neither “continuing” nor “pending” jurisdiction, we found Montana had lost jurisdiction. Id.
After determining Montana had lost jurisdiction, we undertook a comprehensive analysis of whether we had jurisdiction under the PKPA and determined that we did, in fact, have jurisdiction under PKPA. Id. at 161-162. Judge Mizner mischaracterizes our order claiming by its reasoning we are allowed to review any other jurisdiction’s custody determination if the parties are present in American Samoa. July 22, 2002 Order at 2. In reading our decision, it is readily apparent that we went to great lengths to comply with the PKPA’s mandate.
We believe Judge Mizner’s reading of our July 17, 2001 Order and the PKPA was flawed. We find that his July 22, 2002 Order purporting to enforce the earlier Montana decree (which had been superseded by our July 17, 2001 Order) and to modify the earlier Montana decree to grant grandparents’ rights is invalid. We have no obligation to give an order that was made inconsistently with the PKPA full faith and credit and, indeed, refuse to do so.3 See, e.g., Thompson v. Thompson, 484 U.S. 174, 175-76 (1988); In the Matter of Smith, 549 So.2d 103, 104 (Ala. Ct. App. 1989).
*149Order
Kathleen’s motion for judgment on the pleadings is granted.
It is so ordered.
Our July 17, 2001 Order provides a detailed factual and legal analysis. We take judicial notice of that order for the purposes of making the current determination.
We take judicial notice of Eugene=s August 2, 2001 Motion for Reconsideration and of his August 27, 2001 Motion to Withdraw Reconsideration.
Because the Montana order fails to comply with the PKPA, we are not required to give it full faith and credit as a foreign judgment as that term is defined in section 43.1702 of the American Samoa Code Annotated. A.S.C.A. § 43.1702 (“In this chapter, “foreign judgment” means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this Territory.”). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486845/ | ORDER GRANTING MOTION TO EMPLOY AN EXPERT, CAPITAL CASE DEFENSE COUNSEL, AND OTHER EXPERTS NECESSARY FOR EFFECTIVE ASSISTANCE OF COUNSEL; CONFIRMING THE GOVERNMENT’S OBLIGATION TO FUND THE COST; AND DENYING THE PRESENT MOTION TO CONTINUE JURY TRIAL
On February 5, 2004, Defendant Richard Majhor (“Majhor”) brought an ex parte and in camera motion for funds to employ an expert capital case defense attorney, a mitigation expert, and other necessary experts. We permitted Majhor to proceed ex parte and in camera because he intended to reveal privileged information in the motion. We held an ex parte hearing on the motion. Allowing Majhor time to seek off-island defense assistance and to develop a proposed budget, we waited until now to rule on the motion.
Requesting more preparation time for anticipated members of the defense team, Majhor brought a related motion to continue the trial by jury. On May 13, 2004, we conducted a hearing for the motion along with a motion to withdraw. Before closing the proceeding, we orally discussed how we intended to rule. We ordered Majhor to identify an experienced capital case attorney willing to join in Majhor’s defense and to submit a proposed budget for Majhor’s defense. We also put the Government on notice that it will be responsible for the capital case defense costs initially estimated at around $500,000.
This opinion and order articulates our rulings on the motion for funding and motion to continue the jury trial, and further explains our verbal pronouncements at the end of the May 13, 2004 hearing. We address the present defense counsel’s pending motion to withdraw in a separate opinion and order.
Relevant Procedural History
Charging Majhor with Murder in the First Degree along with other charges, the Government filed a criminal complaint in the District Court on March 2,2003, DCCR No. 10-03, and following the bind over to this Court, an information in this Court on March 20, 2003, CR No. 10-03. The Government seeks the death penalty for the murder charge, filing a formal notice of its intention on February 4,2004. On May 29,2003, the Government filed another information in this Court, charging Majhor and his wife with methamphetamine possession, respectively CR No. 21-*15103 and CR No. 20-03. The controlled substance prosecution is proceeding separately and is presently scheduled for trial after completion of the trial of the homicide case.
After we permitted a number of attorneys to withdraw for cause, we appointed Assistant Public Defender Andrew T. Stave (“Stave”) as attorney in both cases against Majhor on December 18, 2003. Stave has access to the staff, including the investigators, and resources of the American Samoa Public Defender’s Office to defend Majhor.
Discussion
I. Death Penalty Qualified Defense Team
To ensure the right of effective assistance of counsel as required by American Samoa Rev. Const, art. 1 § 6, we grant requests for funds to hire experts made by indigent defendants when expert services are necessary to prepare an adequate defense. American Samoa Gov’t v. Siitu, CR No. 06-03, slip op. at 1-3 (Trial Div. July 9, 2003). We evaluate the circumstances of each case to ensure “that the defendant has a fair opportunity to present his defense.” Id. (quoting Ake v. Oklahoma, 470 U.S. 68, 76 (1985)). In determining what is necessary, we look to American Bar Association (“ABA”) standards for guidance. See Strickland v. Washington, 466 U.S. 668, 688 (1984); Wiggins v. Smith, 123 S.Ct. 2527, 2536-37 (2003) (quoting Strickland and citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989)). As guides, ABA standards do not bind us. If we determine that a defendant will suffer no constitutional harm, we will not hesitate to disregard ABA standards.
However, without revealing privileged information, the circumstances of Majhor’s case convince us of the need for funding for an off-island attorney expert in capital cases, mitigation expert, investigator, and possibly other experts. Free from the conflicts, capital case inexperience, and other legitimate concerns that have plagued Majhor’s prior counsel, off-island representation will stabilize Majhor’s defense team. In addition, some investigation for the mitigation phase must be conducted off-island.
The ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003) (hereinafter “ABA Death Penalty Case Guidelines”) also suggest that additional experts are essential to prepare an adequate defense. ABA Death Penalty Case Guideline 4.1 states:
The Legal Representation Plan should provide for assembly of a defense team that will provide high quality representation.
*1521. The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist.
2. The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.
According to ABA Death Penalty Case Guideline 5.1(B), counsel on a death penalty defense team should have a “license or pennission to practice in the jurisdiction,” a commitment to defending capital cases, and death penalty training. Without holding that complete adherence to the ABA Death Penalty Case Guidelines is necessary for an adequate capital defense, we conclude that the composition of Majhor’s defense team should more closely match the defense team composition suggested by the ABA Death Penalty Case Guidelines.
As additional counsel is essential to Majhor’s adequate defense, we order Majhor to identify a qualified capital case defense attorney prepared to serve in his defense on or before May 27, 2004, and to submit the attorney’s cost proposal to include the hourly fee, initial fee payment requirement, and an estimated total defense budget.1 After we appoint additional counsel, Majhor can request funding for additional experts as necessary.
This opinion and order puts the Government on notice to prepare to pay for Majhor’s defense. We currently estimate that Majhor’s defense costs could run as high as $500,000, and possibly more. (See, e.g., Def. Mem. in Support of Mot. to Continue Jury Trial, Ex. A at 3.) As the case progresses, we will review defense expenditures and issue orders for the Government to provide funds as required.
II. Continuance of Jury Trial
We recognize that newly appointed counsel will require additional time to prepare the defense. However, at this time, we deny the motion to continue jury trial because, with the appointment of additional counsel, we anticipate a significant change in defense strategy and leadership. Rather than leave the date open or risk modifying the trial date repeatedly, we leave it for Majhor’s new defense team to request the time that they will need to prepare. Adequate time will be available after the appointment of new counsel for Majhor to make another motion to continue.
*153Order
1. Majhor’s motion for funds to employ outside counsel expert in capital case defense, a mitigation expert, an investigator and other necessary experts is granted. We order Majhor to identify a qualified attorney prepared to serve in his defense on or before May 27, 2004, and to submit a proposal containing the attorney’s hourly fee, initial fee payment requirement, and an estimated total defense budget. This opinion and order places the Government on notice that it is responsible for funding Majhor’s defense, which may cost over $500,000.
2. Majhor’s motion to continue the jury trial is denied without prejudice. Majhor shall also submit the qualified attorney’s estimated trial preparation time on or before May 27,2004.
It is so ordered.
We verbally gave this order in significant part to Majhor at the May 13, 2004 hearing. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486847/ | ORDER DENYING IN PART AND GRANTING IN PART MOTION TO QUASH RULE C ARREST OR SET AMOUNT OF SUBSTITUTE SECURITY IN AN AMOUNT EQUAL TO VALUE OF PLAINTIFFS’ CLAIM FAIRLY STATED, AND DENYING MOTION FOR SALE OF VESSEL
Unable to receive payment for supplies and services provided to F/V MATIRA (“the vessel”), Plaintiffs come before us seeking satisfaction for debts owed and making related claims. Plaintiffs include eight American Samoa businesses: K.S. Shipping Agency, Tony’s Ships Agency, K.S. Motor Rewinding, T.J. Welding & Fabrication, Samoa Export Import Inc., Shalhout Sulufaiga Store, Star-Kist Samoa Inc. (“Star-Kist”), and Southwest Marine of Samoa, Inc. (“Southwest Marine”). We authorized the arrest of the vessel in Pago Pago Harbor on May 7,2004 under T.C.R.C.P. Supp. Rule C.
The vessel was formerly known as F/V YOUNG DUK (“YOUNG DUK”). Defendant Young Duk Ltd. chartered the vessel when the Plaintiffs provided supplies and services. Defendant Bank of New Zealand, Ltd. (“National Bank of New Zealand”) forced the sale of the vessel after it received the supplies and services. Does I through X are *166designated as additional defendants who might own, operate, manage, maintain, control, charter, and navigate the vessel. Defendant Matira South Fishing Ltd. (“Matira South Fishing”) claims ownership of the vessel and asserts the right to defend in rem claims against the vessel.
Defendants Young Duk Ltd., National Bank of New Zealand, and Matira South Fishing (together “movants”) move for us to quash the arrest or set the amount of substitute security. For the reasons stated below, we set the amount of substitute security at $60,000. With this opinion and order, we also deny Plaintiffs’ motion for a judicial sale.
Factual and Procedural Background
East Ocean Fishing Limited (“East Ocean Fishing”) formally owned the vessel, then known as YOUNG DUK. East Ocean Fishing mortgaged the vessel to the Bank of New Zealand. Young Duk Ltd. chartered the vessel and operated it out of Pago Pago harbor. From late 2002 until around the end of 2003, Plaintiffs, except for Southwest Marine, fitted the vessel for fishing by loaning supplies, services, or money.
After the vessel sailed from Pago Pago, Cook Islands Fish Exporters Ltd. had the vessel arrested in the Cook Islands for payment of services and money spent for the vessel’s benefit. See Cook Islands Fish Exporters Ltd. v. YOUNG DUK, No. 31/2003 (Cook Is. Sep. 26, 2003) (Rarotonga). Following the vessel’s release, National Bank of New Zealand placed East Ocean Fishing in receivership. Receivers sold the vessel to Matira South Fishing in the Cook Islands on November 17, 2003. (Gamier Aff. 3, Ex. C.) Matira South Fishing named the vessel MATIRA, registered it in the Cook Islands, and began fishing operations. The vessel eventually sailed back to Pago Pago harbor. Southwest Marine serviced and provided moorage for the vessel in April and May of 2004, which created a lien that we refer to as the Southwest Marine lien.
On May 7, 2004, Plaintiffs filed a complaint with a supporting affidavit and declaration, and moved for issuance of a warrant of arrest of the vessel. On the same day, we issued an arrest warrant and K.S. Shipping Agency took assignment of the Southwest Marine lien.
Plaintiffs filed an amended verified complaint on May 11, 2004. An authorized representative of K.S. Shipping Agency verified the complaint. Plaintiffs filed another amended verified complaint on May 13, 2004. Representatives of each Plaintiff verified the complaint. Plaintiffs claim payment for the loaned supplies, services, or money. Plaintiffs allege that National Bank of New Zealand is responsible for the ship’s debts because of a failure to provide notice of the sale, negligence, and lack of due process. Furthermore, Plaintiffs allege that *167Matira South Fishing and Young Duk Ltd. colluded to use the sale of the vessel to avoid payment of the debts. Matira South Fishing answered on May 14, 2004 and counter-claimed for wrongful arrest and abuse of process. Also on May 14, 2004, Defendants Matira South Fishing, Young Duk Ltd., and National Bank of New Zealand moved to quash the arrest or to set the amount of substitute security for the vessel. Three days later, Plaintiffs moved for a judicial sale of the vessel due to alleged unethical behavior of Defendants’ counsel and the totality of the pleadings. We held a hearing on these two motions on May 18,2004.
Discussion
I. Verified Complaint
Movants argue that the filed complaints are insufficient under T.C.R.C.P. Supplemental Rule C to support an arrest warrant. They contend that the first complaint lacks verification and the amended complaints lack proper verification. In this case, we find their argument lacking as a ground to quash the warrant.
We authorize the issuance of a warrant for the arrest of a vessel if we determine that conditions support an in rem action, as demonstrated by “the verified complaint and any other supporting papers.” 29 James Wm. Moore et al., Moore’s Federal Practice § 705.03[3] (3d ed. 1999); see T.C.R.C.P. Supp. Rule C(2), (3). The verified complaint must describe the property with particularity and state that the property is or will be within American Samoa during the course of the action. T.C.R.C.P. Supp. Rule C(2). The T.C.R.C.P. Supplemental Rules also provide that “the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.” T.C.R.C.P. Supp. Rule E(2).
Both amended verified complaints meet the requirements of the T.C.R.C.P. Supplemental Rules because the complaints describe the property, inform that the property will be in American Samoa during the proceedings, describe the claims sufficiently, and have verification. Movants take issue with the sufficiency of the verification because the affiants’ names are not printed with their verifying signature. However, the signatures of plaintiff representatives are enough to verify the complaint. Common law does not prescribe a particular form for affidavits and technical deficiencies do not render affidavits improper. See 3 Am. Jur. 2d Affidavits § 12 (1986). Moreover, the signature of the affiant constitutes one of an affidavit’s four elements, which also include the caption or title, the venue, and the certification of a duly authorized officer. See id. §§ 12,16. These four elements together authenticate the *168affidavit, making the printed name of the affiant unnecessary.
We agree with movants that the initial complaint was unverified; however, we do not agree that the lack of verification constitutes a ground to quash the warrant in this case. Generally, under the T.C.R.C.P Supplemental Rules, “later verification . . . reachfes] back to an earlier, unverified filing.” Edelman v. Lynchburg College, 535 U.S. 106, 117 (2002). The remedy for failure to verify a complaint to initiate in rem action is to “dismiss the complaint without prejudice,” even when property has been seized. United States v. $84,740.00, 900 F.2d 1402, 1406 (1990) (applying Fed. R. Civ. P. Supp. Rule C(2) in an in rem forfeiture action). Here, we decline to dismiss because defendants will suffer no harm by our denial of the motion to quash. Plaintiffs amended the complaint with verification as “a matter of course” before the first responsive pleadings were served. T.C.R.C.P. 15(a). The amended complaint satisfies the policy of the verification requirement, which is “to insure that an individual has responsibly investigated the allegations and found them to have substance.” United States v. Banco Cafetero Int'l, 608 F. Supp. 1394, 1400 (S.D.N.Y. 1985). As the dismissal would be without prejudice, we could quash the initial arrest and immediately order the vessel re-arrested based on the complaint now before us. We currently have in rem jurisdiction, as discussed in the next section, and we secure our jurisdiction for the duration of the proceedings by ensuring that the vessel remains in American Samoa.
II. Existence of Maritime Liens
We have admiralty jurisdiction under A.S.C.A. § 3.0208(a)(3). A maritime lien is a prerequisite to the exercise of our admiralty jurisdiction in an in rem action against a vessel. Belcher Co. of Ala., Inc. v. M/V MARATHA MARINER, 724 F.2d 1161, 1163 (5th Cir. 1984). Authorized by Congress to exercise authority as a “district court” with respect to Maritime Laws in 46 U.S.C. § 31301, we have jurisdiction to enforce federal maritime statutes of title 46 of the United States Code when our jurisdiction is not explicitly denied by the specific statute being enforced. See Clifton v. Voyager Inc., 29 A.S.R.2d 80, 86-87 (Trial Div. 1995) (exercising jurisdiction over Jones Act claims, 46 U.S.C. app. § 688). Thus, we enforce the Maritime Lien Statute and use it to determine if a maritime .lien triggers our jurisdiction. 46 U.S.C. § 31342.
Under the Maritime Lien Statute, “a person who provides] necessaries to a vessel on the order of the owner or person authorized by the owner ... has a maritime lien on the vessel” and may bring an action in rem. 46 U.S.C. § 31342.1 The “‘Necessaries’ explicitly includes *169repairs, supplies, towage, and the use of a dry dock or marine railway.” 46 U.S.C. § 31301(4). Necessaries may also include services provided to the vessel, “anything that facilitates or enables a vessel to perform its mission or occupation.” Ventura Packers, Inc. v. F/V JEANINE KATHLEEN, 305 F.3d 913, 923 (9th Cir. 2002).
We have jurisdiction in this case because Plaintiffs obtained maritime liens when they provided supplies and services to the vessel. See 46 U.S.C. § 31342. First, the liens asserted by Plaintiffs are for the provision of necessaries. The supplies, such as filament spools, snaps, hooks, cutters, batteries, boots, and bait provided for the vessel are directly included in the definition of necessaries. 46 U.S.C. § 31301(4). Including tire repair and maintenance of motors, generators, pumps, and like apparatus, the provided services are also considered necessaries because they are essential to the vessel’s operation. The mooring provided by Southwest Marine was a necessary. In addition, Star-Kist financed the operation and maintenance of the vessel for fishing, specifically loaning money for a generator used on the vessel, and expected re-payment from the proceeds of the vessel’s fishing.
Second, necessaries were provided to the vessel. Movant’s reliance on TTT Stevedores of Tex, Inc. and M/V JAGAT VIJETA, 696 F.2d 1135 (5th Cir. 1980) is misplaced. As movants contend, TTT Stevedores distinguishes between fhmishing supplies and services to a vessel, which creates a maritime lien, and extending credit to a person. However, the TTT Stevedores court held that “a presumption arises that one furnishing supplies to a vessel acquires a maritime lien, and the party attacking this presumption ‘has the burden of establishing that the personal credit of the owner or charterer was solely relied upon.’” TTT Stevedores, 696 F.2d at 1139 (citations omitted). In TTT Stevedores, the defendant vessel failed to produce sufficient evidence that the suppliers relied on personal credit. Id. Similarly, failing to offer any evidence on the issue, movants here do not meet their burden of showing that Plaintiffs relied on the personal credit of any Defendant.
Third, the necessaries were provided to the vessel on order of the owner or of an authorized person. We find the May 13, 2004 verified complaint and the May 7, 2004 affidavit of Kevin G. Smith persuasive that the necessaries provided to the vessel were ordered under the authority of the vessel’s ownership. Movants do not dispute the issue. In sum, with all of the elements of a maritime lien present, we have in rem jurisdiction over the vessel.
*170HI. Choice of Law
Movants assert that the law of the Cook Islands applies because the sale of the vessel occurred in the Cook Islands. Plaintiffs assert that the law of the United States applies. Neither party conducted a thorough choice of law analysis. Considering the applicable choice of law factors, we agree with Plaintiffs. We analyze seven factors to consider maritime choice of law: (a) the needs of the international system; (b) relevant policies of the forum; (c) relevant policies of other interested states; (d) the protection of justified expectations; (e) the basic policies underlying the particular field of law; (f) certainty, predictability and uniformity of result; and (g) ease in determination and application of the law to be applied. Gulf Trading & Transp. Co. v. Vessel HOEGH SHIELD, 658 F.2d 363, 367 (5th Cir. 1981), reh’g denied 670 F.2d 182 (5th Cir. 1982).
We find the choice of law analysis applied by the Gulf Trading court applicable here because the cases have similar factual circumstances. Gulf Trading concerned a contract for the provision of necessaries to the foreign flagged vessel HOEGH SHIELD in the Panama Canal Zone, under the United States jurisdiction, by an American corporation. Gulf Trading, 363 F.2d at 364. The owner of the HOEGH SHIELD was not a party to the supply contract, which was agreed to in Great Britain. Id. The HOEGH SFIIELD was arrested while in Texas. Id. at 365. Likewise, this case concerns an agreement for the provision of necessaries to a foreign flagged vessel under the jurisdiction of United States by American companies. The current owner of the vessel was not a party to the agreement and the vessel was arrested in a United States jurisdiction.
We choose United States law and apply the Maritime Lien Statute. Agreeing with the Gulf Trading court, we find that “the Maritime Lien Statute represents a relevant policy of this forum that serves the needs of the international legal system as well as the basic policies underlying maritime law,” because Congress intended that “an American Supplier of goods, services or necessaries to a foreign vessel obtains a maritime lien in the vessel when the goods or services are supplied or performed in the United States.” Id. at 367-368. We will have little difficulty in applying and making a determination with the Maritime Lien Statute, especially as compared to the International Maritime Lien Convention or the New Zealand Admiralty Act 1973 asserted by the defense as, or like, the law of the Cook Islands. Application of the United States Maritime Lien Statute protects expectations and maintains the predictability of result because “it is expected that when necessaries are furnished to a vessel in an American port by an American supplier, the American Maritime Lien Statute will apply to protect that supplier regardless of... the nationality of the vessel.” Id. at 368. The parties could have *171contracted for an alternate choice of law. Id. Considering the factor of the policies of other interested states, we have as much of an interest in protecting Plaintiffs, American suppliers of the vessel, as the Cook Islands does in protecting any Cook Islands Defendants, especially the purchaser of the vessel.2 Any interest New Zealand may have concerning the National Bank of New Zealand mortgage also does not exceed our interest in protecting the Plaintiffs. As all of the factors, but one, points strongly towards the application of United States law, we apply United States law to this case.
IV. Continued Existence of Liens
Movants fail to meet their burden of proof showing that the sale erased the liens. As a result, we do not consider the liens extinguished.
United States law recognizes international sales of vessels. A bona fide purchase of a vessel does not automatically clear the liens attached to the vessel. See 1 SCHOENBAUM, supra, at § 9-7. To extinguish prior maritime liens and “vest a clear and indefeasible title” in the purchaser, a court must conduct an in rem sale that satisfies due process. Thorsteinsson v. M/V DRANGUR, 891 F.2d 1547, 1552 (11th Cir. 1990) (quoting The Trenton, 4 F. 657 (E.D. Mich. 1880)). For a proper judicial sale, a court must at least have jurisdiction and provide sufficient notice to interested parties. Id. at 1552. Seizure provides notice to all the world that satisfies due process. Id. at 1553. The party that offers a judicial sale as a defense against maritime liens has the burden of proof that the sale extinguished the liens. Id. at 1551.
Movants fail to meet their burden of showing that the sale erased the Southwest Marine lien. Apart in túne from the other liens, the Southwest Marine lien remains on the vessel. The lien attached after the Cook Island sale. The T.C.R.C.P. Supplemental Rules do not require liens to have a minimum dollar amount before we have in rem jurisdiction over a vessel. See T.C.R.C.P. Supp. Rule C. This lien alone is enough to support a warrant for arrest and our jurisdiction.
Movants also fail to meet their burden of demonstrating that the other liens have been extinguished. In light of the evidence before us, the arrest of the vessel in the Cook Islands did not concern the subsequent sale, so it fails to provide adequate notice of the sale. National Bank of New Zealand, which forced the sale of the vessel, was not a party to the arrest. We have no evidence that National Bank of New Zealand made any claim, based on their mortgage or any other interest in the vessel, *172before the arresting court. See Cook Islands Fish Exporters Ltd., No. 31/2003, at 1. Also, there is no evidence of court adjudication or involvement with placing the vessel in receivership that qualifies as a judicial sale under United States law. (See Gamier Aff. 1, Annex C.)
Movants also argue that the bona fide purchase of the vessel by Matira South Fishing cleared the liens. As this argument goes against current United States admiralty law, we disagree. See 1 SCHOENBAUM, supra, at § 9-7. However, after sale to a bona fide purchaser, an unrecorded lien holder must exert a high degree of reasonable diligence to preserve the lien or we will apply laches to bar the lien claim. See id.; Bermuda Express, N. V. v. M/V LITSA, 872 F.2d 554, 556 (3rd Cir. 1989). We save the laches issue for trial because we currently lack enough evidence to decide the issue, and the parties did not argue the issue at the hearing.
Movants argue that Plaintiffs improperly included the movants in the suit. This argument is irrelevant to this motion to quash; the arrest warrant concerns our in rem jurisdiction over the vessel.
Finding the liens valid based on the evidence currently before us, we deny the motion to quash the arrest warrant. We acknowledge that the existence of the liens impacts our jurisdiction and will consider additional argument and evidence concerning lien clearing events at trial.
V. Security
We fix the sum of the security to release a vessel when parties do not stipulate to an amount. T.C.R.C.P. Supp. Rule E(5)(a). The sum of the security covers “the amount of the plaintiffs claim fairly stated with accrued interest and costs.” Id. We set the security at $60,000.00. This sum accounts for Plaintiffs’ claim of approximately $40,000.00, prejudgment interest of 6%, and costs. See United Air Lines Employees’ Credit Union v. M/V SANS END, 15 A.S.R.2d 95, 106 (Trial Div. 1990) (finding costs of $8,249 to secure a vessel for a judicial sale and other related expenses).
VI. Motion for Judicial Sale
Plaintiffs move for the sale of the vessel because of: (1) opposing counsel and opposing expert contact with Plaintiff Star-Kist without the knowledge or approval of Star-Kist’s counsel; and (2) the totality of the pleadings, presumably the alleged collusion to commit fraud. To support the motion, Plaintiffs offer the affidavit of their counsel, Mark Ude, and the May 17, 2004 affidavit of Kevin G. Smith. At hearing, opposing counsel David Vargas denied that he or his firm made any contact with Star-Kist. We find the evidence of contact with Star-Kist and the totality *173of the evidence and pleadings insufficient to grant this motion for a judicial sale.
Order
1. Movants’ motion to quash rule C arrest or set amount of substitute security in an amount equal to value of plaintiffs’ claim fairly stated is denied in part and granted in part. We decline to quash the arrest warrant and set the security for the vessel at $60,000.00.
2. Plaintiffs’ motion for sale of vessel is denied.
It is so ordered.
The present Maritime Lien Statute, 46 U.S.C. § 31342, was “not intended to make any substantive difference with prior law” codified in *16946 U.S.C. § 971. 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 9-3 n.l (2d ed. 1994).
Young Duk Ltd. and National Bank of New Zealand have not filed answers in this case. As a result, we are uncertain of Young Duk’s and National Bank of New Zealand’s legal status. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486848/ | ORDER DENYING MOTION FOR CHANGE OF VENUE AND A SURVEY EXPERT
On Feburary 5, 2004, Defendant Richard Majhor (“Majhor”) moved for change of venue and for appointment of a survey expert. Along with a host of other motions, we heard argument for the two motions on March 4,2004. For the reasons below, we deny both motions.
Discussion
Due process entitles a defendant to “a panel of impartial, ‘indifferent’ jurors.” American Samoa Gov’t v. Wei Li Fang, 7 A.S.R.3d 104, 106 (Trial Div. 2003) (citations omitted). An inquiry into actual jury bias is premature when jury voir dire has not yet been conducted. Id. at 107. To show jury bias at this stage, the defendant must meet the burden of showing an atmosphere of presumed prejudice. Id. Rarely shown, presumed prejudice “is reserved for exceptional cases where the influence of the news media negatively pervades the proceedings, either in the community or courtroom.” Id. (citations omitted). Stated another way, the defendants “carry a heavy burden of showing oversaturation of highly sensationalized news coverage.” Id.
Applying an analysis similar to that used in Wei Li Fang, we find that Majhor has failed to meet his burden. Majhor fails to introduce any evidence of prejudiced radio, television coverage, or general public sentiment to show oversaturation. Refraining from making conclusions on Majhor’s guilt or innocence, the tendered newspaper articles make clear that Majhor has allegedly committed crimes, is charged with these crimes, and faces ongoing court proceedings.
By characterizing possibly inflammatory statements as beliefs and by primarily reporting facts, the most opinionated article lacks high sensationalism. It reports that “today commemorates the . . . possible murder of Wyatt Jr. [the victim] at the hands of seven defendants.” (Def. *175Supplemental Br. for Mot. for Change of Venue, Ex. A at 1.) The article also explains that residents are concerned about “the possibility of truth behind rumors” about what happened to the victim. (Id.) The article quotes statements of the victim’s family and describes their beliefs concerning the case. (Id. at 1, 15.) In addition, the article reports that several eyewitnesses gave accounts of the victim’s death to the victim’s family. (Id. at 15.) Overall, the article is not highly sensational news coverage.
The other tendered articles do not undermine Majhor’s right to an impartial jury. Many of the articles do not describe the substance of the case, but report on collateral issues, such as attorney changes or FBI involvement. (Def. Mot. for Change of Venue, Ex. A at 3, 9.) Two of the articles focus on other defendants and only mention Majhor in passing. (Id. at 2, 4.) One article fails to mention Majhor at all. (Id. at 7.) Also unsensational, some news reports discuss the Majhor case directly. One such article restricts itself to reporting on court proceedings. (Id. at 5.) Written prior to Majhor’s initial appearance, the first-in-time article accurately describes the Attorney General’s position on the case, the impact of the case on the victim’s family, and the court-imposed confidentiality order. (Id. at 1.) Finding that the news media is not negatively pervasive, we deny the motion to change venue.
We also deny the defense request for an expert to conduct an independent survey to evaluate any opinions or bias in the juiy pool of American Samoa. We order funding for a defense expert when the defense requires the services of the expert “to effectively present the defense and will be prejudiced without expert assistance.” American Samoa Gov’t v. Aigasalemamala, CR No. 39-99, slip op. at 3 (Trial Div. Mar. 2, 2000). A defense survey expert is unnecessary to effectively present the defense. With voir dire available to the defense to prove actual jury prejudice, the defense has an effective tool for discovering juror prejudice. State v. Weatherford, 416 N.W.2d 47, 52 (S.D. Sup. Ct. 1987). Furthennore, the defense has the opportunity to prove presumed prejudice with evidence of media reports available to the public, as in the change of venue motion considered here. State v. Powers, 537 P.2d 1369, 1374 (Idaho Sup. Ct. 1975).
Order
1. Majhor’s motion for change of venue is denied.
2. Majhor’s motion for an appointment of a survey expert is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486849/ | ORDER DENYING MOTION TO WITHDRAW
On February 5, 2004, Defendant Richard Patrick Majhor (“Majhor”) filed a motion for the withdrawal of his counsel, Assistant Public Defender Andrew T. Stave (“Stave”). We held a hearing on the motion on March 2, 2004. Majhor renewed the motion to withdraw on May 10, 2004. In support of the renewed motion, Majhor filed an additional in camera and ex parte supplemental motion to withdraw. We held another hearing on the motion on May 12,2003.
Majhor’s arguments for withdrawal have two main thrusts: that Stave lacks the necessaiy competence to handle Majhor’s capital case; and that Stave’s conflicts of interest prevent him from representing Majhor. For the reasons stated below, we deny the motion to withdraw without prejudice. A supplemental opinion, released ex parte, will address a related conflict of interest issue concerning privileged defense information.
Background
On March 20, 2003, Plaintiff American Samoa Government (“ASG”) filed a criminal complaint against Majhor and co-defendants Victor “Vic” Sepulona (“Sepulona”) and Talofa Seumanu (“Seumanu”) for murder in the first degree and related crimes. We appointed attorneys of the Public Defender’s office to represent the accused. Public Defender Tautai Aviata Fa'alevao (“Fa'alevao”) assumed the responsibilities for Seumanu’s defense. Former Assistant Public Defender Sharron I. Rancourt (“Rancourt”) took charge of Sepulona’s defense. Majhor’s co-defendants have now pled guilty and agreed to testify against Majhor. Former Assistant Public Defender Bentley C. Adams (“Adams”) initially represented Majhor. On March 21, 2003, we allowed Adams to withdraw. We appointed Arthur Ripley, Jr. (“Ripley”) to defend Majhor. Subsequently, Adams left the Public Defender’s office. Rancourt also left the Public Defender’s office at some point. She continues to represent Sepulona. On June 6, 2003, ASG filed another criminal complaint against Majhor for possession of a controlled substance with intent to distribute. Ripley withdrew from Majhor’s defense with our approval on October 31, 2003, which was followed by more attorney changes. We appointed Marie Lafaele as Majhor’s attorney but, due to *179her criminal defense experience, replaced her with Assistant Public Defender Sachin Mehta (“Mehta”) on November 13, 2003. Subsequently, Mehta left the Public Defender’s office. Soon after joining the Public Defender’s office, specifically December 18, 2003, Andrew T. Stave (“Stave”) assumed responsibility for Majhor’s defense.
in protecting Majhor’s interests, Stave has perfonned “enthusiastically and conscientiously.” (James S. Thompson Dep. at 10.) Stave has filed a number of motions, including motions for change of venue, for the preservation of evidence, for visitation, and for funding for experts. On May 21, 2004, we granted Majhor’s motion to fund capital defense experts and authorized him to have such experts, including investigators, to prepare his defense. Currently, we are awaiting a pro hac vice motion, which will enable us to appoint a capital defense law firm with experienced attorneys to manage Majhor’s defense. “For over two months,” Stave has “been in constant contact” with attorneys of a potential pro hac vice law firm. (Id at 27.) Once pro hac vice counsel is appointed, Stave will not serve as lead counsel. Experienced in death penalty cases, new lead counsel will direct defense strategy and manage local co-counsel, Stave, as appropriate to prepare Majhor’s defense under the new lead counsel’s direction.
Discussion
I. Competence
Majhor argues that Stave is incompetent to act as counsel in a capital case. We find that Stave is competent to act as local co-counsel for a pro hac vice capital defense team.
A. Sixth Amendment Effectiveness of Counsel
We cannot refuse to appoint counsel to assist in Majhor’s defense. Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Tamafili v. Moaali'itele, 6 A.S.R.2d 15, 19 (Trial Div. 1987). The Sixth Amendment guarantees effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685 (1984); Tamafili, 6 A.S.R.2d at 20. Two components constitute a showing of ineffective counsel: counsel’s performance must be deficient; and the deficiency must prejudice the defendant. Strickland, 466 U.S. at 687. We strongly presume “that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. A counsel’s performance is deficient when it falls “below an objective standard of reasonableness.” Id. at 688.
Applying the Strickland standards, the court in Riley v. Taylor evaluated the effectiveness of solo lead counsel in a death penalty case who had never handled a murder or capital case. 277 F.3d 261, 271 (3d Cir. *1802001). The appellate court affirmed the trial court’s refusal to appoint co-counsel or an investigator to assist. Id. at 271, 306. The Riley court reasoned that the defendant failed to show that counsel provided representation below a level of quality defined by the Strickland standards. Id. at 306. Here, we are considering the likely effectiveness of assistance of counsel prior to trial, rather than evaluating the quality of past representation as in Riley. However, Riley shows that the assistance of an inexperienced solo attorney is not necessarily ineffective in a death penalty case.
Majhor contends that Stave is ineffective as counsel because he believes Stave cannot explain capital case defense strategy, develop capital defense strategy, or plan mitigation. As a member of the bar with some criminal experience, Stave is capable of representing Majhor. See Riley, 277 F.3d at 306. We have no indication that Stave’s representation of Majhor has been flawed. Rather, Stave has actively protected Majhor’s interests and effectively marshaled resources for Majhor’s defense. Furthermore, the defense team that we are preparing to appoint will be more likely to provide effective assistance to Majhor with Stave as a member. He is competent to complete the duties of local co-counsel. Stave can be “responsible to the client and responsible for the conduct of the proceeding” and to advise the client according to his legal judgment. Model Rule on Pro Hac Vice Admission (Recommended draft Aug. 2002), available at http://www.abanet.org/cpr/mjp/201f.pdf. hi particular, he can ensure that deadlines are met and that Majhor is kept informed about the case. The perfonnance of basic lawyerly duties does not require death penalty experience. Any complex issues that Stave finds himself unable to explain to Majhor can be explained by more experienced members of Majhor’s defense team. The lead pro hac vice counsel can establish Majhor’s defense strategy and direct mitigation efforts. In sum, we deny the motion to withdraw because Majhor is more likely to receive effective assistance of counsel with Stave on the defense team.
B. American Bar Association Guidelines
We find that Majhor incorrectly relies on American Bar Association (“ABA”) guidelines to show that Stave’s assistance is deficient. Given Supreme Court acceptance, ABA guidelines are generally convincing standards for assessing the reasonableness of an attorney’s performance. Wiggins v. Smith, 123 S. Ct. 2527, 2536 (2003). However, they are only guides. See Tamafili, 6 A.S.R.2d at 20. We may deviate from ABA guidelines when we determine that the deviation will not cause the defendant constitutional hann.
The ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003) (hereinafter “ABA Guidelines”) *181state that “every” attorney representing a capital defendant should have “a license or permission to practice in the jurisdiction,” a commitment, to defending capital cases, and death penally training. ABA Guideline 5.1. Majhor argues that the language of the guideline referring to every defense team attorney prohibits Stave from participating in Majhor’s defense. Although Stave does not have the qualifications listed in ABA Guideline 5.1, we disagree. An attorney with little death penalty experience does not detract from an otherwise experienced capital defense team. As here, when experienced lead counsel and his law firm will participate on the defense team, there is no sense in requiring that all skills and experience required for the defense reside in eveiy attorney of the defense team. More experienced attorneys can supervise and train Stave. Also, we have no choice but to include an attorney lacking experience on Majhor’s defense team for the purpose of having local co-counsel for the pro hac vice attorneys. Majhor’s pro hac vice defense team requires a member of the American Samoa Bar Association as local co-counsel. H.C.R. 145; ABA Guideline 5.1 (requiring death penalty qualified counsel to have permission to practice in the relevant jurisdiction). Stave can serve as local co-counsel, for we know of no other potential co-counsel admitted to the American Samoa Bar that meets the qualifications of ABA Guideline 5.1. The advantages of local co-counsel on Majhor’s defense team outweigh any problems associated with Stave’s inexperience. Moreover, as Majhor will have a defense team that otherwise meets the standards of the ABA Guidelines, his application of ABA Guideline 5.1 is overly broad and unreasonable. The experience required by the guidelines can only be gained through experience on death penalty cases. If every attorney on a defense team needs to show commitment to defending death penalty cases and death penalty training in full satisfaction of the ABA Guidelines, it would impose an unnecessary restriction on an attorney’s ability to gain death penalty experience. This is a particular concern for the bar of American Samoa, which lacks death penalty experience.
Before appointing members of a defense team, the views of lead counsel “should ordinarily” be solicited. ABA Guideline 10.4. Majhor argues that Stave is ineffective because Stave was not selected by qualified lead counsel according to ABA Guideline 10.4. We disagree because ABA Guideline 10.4 has nothing to do with whether Majhor actually receives effective counsel. In any event, the language of the guideline is not mandatory.
Majhor argues that Stave is not qualified to select lead counsel for the capital defense. This does not provide a reason for Stave to withdraw for ineffectiveness; we select and appoint counsel for Majhor.
Counsel for the defense should “conduct a full examination of the defense provided to the client at all prior phases of the case” and ensure *182“that the official record of the proceedings is complete.” ABA Guideline 10.7. Majhor argues that an investigation by the pro hac vice attorney into the effectiveness of Majhor’s prior counsel will create morale problems for Majhor’s defense team and the Public Defender’s office because Stave and Majhor’s other prior attorneys will undergo an investigation of their effectiveness. Majhor believes that an investigation of prior counsel cannot be properly conducted with Stave on the defense team. This argument provides no support for Stave’s withdrawal. None of Majhor’s prior attorneys, except Stave, remain with the Public Defender’s office. Concerning Stave, as he is still on Majhor’s defense team, we do not consider him to be prior counsel under the scope of the guideline. In any event, the investigation only presents a potential conflict between Stave and other future members of Majhor’s defense. We have inquired into Stave’s effectiveness here, and found him adequate in light of the evidence before us. Furthennore, the assistance of attorneys on Majhor’s defense team will be scrutinized as the case progresses.
We find that Stave is competent to act as local co-counsel for Majhor’s pro hac vice capital defense team. In this role, Stave is likely to provide adequate assistance of counsel for Majhor.
II. Conflict of Interest
Majhor argues that Stave, an Assistant Public Defender, cannot represent Majhor because of Stave’s conflicts of interest. We ascertain no conflict of interest that currently prohibits Stave from acting as local co-counsel for Majhor’s defense team.
The Sixth Amendment guarantees a defendant “adequate and fair representation,” not “perfect representation.” American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998) (quoting Strickland, 466 U.S. at 690). When considering motions to withdraw, we review “the ‘facts of the particular case’ to determine if a Sixth Amendment violation is present and . . . acts must be assessed according to an objective standard of reasonableness.” Id. (citations omitted). Representation of co-defendants by different attorneys in the same public defender’s office does not violate the Sixth Amendment per se. Id. at 75; see, e.g., Graves v. State, 619 A.2d 123, 127 (Md. Ct. Spec. App. 1993).
Attorneys practicing in American Samoa are subject to the ABA Model Rules of Professional Conduct. H.C.R. 104. As an objective standard, a model rule violation can indicate ineffective assistance of counsel. The model rules provide that “a lawyer shall not represent a client if the representation of that client will be directly adverse to another client.” Model Rules of Prof’l Conduct R. 1.7(2002). The lawyer may continue representation if he believes continued *183representation will not harm the other client or if “each client consents after consultation.” Id. The conflict of interest must be actual; a possible or potential conflict of interest is not sufficient to show an ethical violation or ineffective assistance. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). The rules also provide that “while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so.” Model Rules of Prof’l Conduct R. 1.10 (2002). The comment to Rule 1.10 states that “whether two or more lawyers constitute a firm within this definition can depend on the specific facts.” Id. at R. 1.10 cmt. [1]; see id. atR. 1.0 cmt. [2]-[4]; State v. Webb, 680 A.2d 147, 166.
A. Office Conflict — Imputed
Majhor contends that under Rule 1.10 a conflict of interest belonging to Fa'alevao is imputed to Stave, because Fa'alevao and Stave are associated in the Public Defender’s office. Fa'alevao cannot represent Majhor under Rule 1.7 because Fa'alevao represents Seumanu, who agreed to testify against Majhor. In addition, Majhor contends that Stave is further tainted as a member of the Public Defender’s office through imputation under Rule 1.10 because of former Assistant Public Defenders Adams and Rancourt. In sum, Majhor argues that privileged knowledge about Majhor’s co-defendants, now witnesses, is imputed to every attorney in the Public Defender’s office, conflicting any of them from representing Majhor.
Disagreeing with Majhor, we find that the imputation rule is inapplicable to this case because the attorneys in this case are not associated and because the policy behind the imputation under Rule 1.10 does not require the rule’s application. Numerous courts have made exceptions to imputation rules. See, e.g., Nemours Foundation v. Gilbane, 632 F.Supp. 418, 430 (D. Del. 1986) (creating exception to Deleware’s imputation rule for transitory attorneys). Similarly, some courts have declined to impute knowledge to attorneys who represent co-defendants while in the same Public Defender’s office when circumstances of the case pennit. United States v. Reynoso, 6 F.Supp.2d 269, 271 (S.D.N.Y. 1998) (applying DR 5-105(D), the ABA Model Code provision that corresponds to Rule 1.10); State v. Webb, 680 A.2d 147, 166 (Conn. Sup. Ct. 1996); State v. Pitt, 884 P.2d 1150, 1156 (Hawaii App. Ct. 1994) (applying Hawaii Rules of Professional Conduct, Rule 1.10); Graves v. State, 619 A.2d 123, 127, 133 (Md. Ct. Spec. App. 1993). Following the lead of these courts, we read Rule 1.10 expansively as applied to the Public Defender’s office in this case, effectively an exception, because “although rigid application of the law firm disqualification rule might afford an easy solution ... a rule this broad would result in many unnecessary withdrawals, limit mobility of the legal profession, and restrict the state in the assignment of counsel where no [harm] has in fact *184occurred.” Webb, 680 A.2d at 166 (citations omitted, alteration ,in original).
We adopt the rule of the Graves court to determine when public defenders are associated for the purposes of imputation. The Graves court made a thorough survey of case law concerning the imputation of knowledge among public defenders of the same office before concluding that courts should only decline to impute knowledge within public defenders’ offices where there was low risk of attorneys sharing privileged client information. Graves, 619 A.2d at 128-132. The Graves court established a rule that public defender attorneys are not associated where the public defender’s office sufficiently insulates attorneys representing co-defendants. Id. at 133; see Pitt, 884 P.2d at 1156. The Graves court suggests that attorneys can be insulated from each other by way of “early screening of cases, structural and procedural separation, assignments to completely separate units in the same office, and other innovations in the handling of cases involving co-defendants.” Graves, 619A.2datl33.
We find that the public defender attorneys in this case are not associated because they are sufficiently insulated from each other. The American Samoa Public Defender’s office is on notice to operate as discrete units in co-defendant situations. Amani, 2 A.S.R.3d at 77-78. They screen and identify conflicts of interest early to implement “ethical wall” procedures. Furthermore, the office regularly deals with conflicts of interest as a result of the small American Samoa legal community.
Structural barriers will prevent the transfer of client information between most of the attorneys representing Majhor’s co-defendants. Majhor’s defense team will be physically separated from Adams and Rancourt, for these two attorneys are no longer with the Public Defender’s office. Rancourt left the office before Stave joined it, so there was no risk of information sharing between these two attorneys. A natural barrier exists between Fa'alevao and the off-island attorneys outside the Public Defender’s office.
Procedural barriers insulate Fa'alevao and Stave from each other. There is no need for Stave to meet or discuss Majhor’s defense with Fa'alevao. See Amani, 2 A.S.R.3d at 78. The pro hac vice counsel, assisted by Stave, can negotiate plea agreements. See id. at 79 (discussing procedure for how the Public Defender’s office can avoid conflicts of interest during plea negotiations). Stave can consult the pro hac vice attorney for advice on the case. Stave and Fa'alevao, as with the other attorneys involved here, have ethical obligations to protect privileged client information from disclosure. Model Rules of Prof’l Conduct R. 1.6 (2002). In addition to these procedures, the current circumstances of the case aid Fa'alevao and Stave in protecting against the sharing of *185client infonnation. Fa'alevao’s client pled to the charges of this case before Stave arrived to American Samoa and assumed responsibility for Majhor’s defense. With minimal ongoing activity in Fa'alevao’s case, there is less risk of accidental disclosure. Fa'alevao can safely secure his client’s files. Also, the inactivity minimizes the likelihood that Stave will inadvertently hear information about Fa'alevao’s case.
As a result of how the attorneys involved in this case are insulated, there is little likelihood that Majhor or other defendants will actually be prejudiced by information sharing between attorneys. We expect that the new defense team will assist Stave to adhere to his duties and to direct the use of Stave away from situations where possible conflict may be a problem, such as in cross-examination preparation. The Public Defender’s office and Majhor’s defense team should implement additional measures to insulate other public defender attorneys as are reasonable.
We find that effectively applying an exception for the Public Defender’s office under these circumstances does not frustrate the policy behind the imputation rule. Imputation under Rule 1.10 gives “effect to the principle of loyalty to the client.” Model Rules of Prof’l Conduct R. 1.10 cmt. [2]. The rule promotes loyalty by: (1) preventing associated lawyers from sharing client information; and (2) cultivating a positive public perception of legal representation. Reynoso, 6 F.Supp.2d at 271. We are concerned about public perception because defendants will distrust attorneys if they perceive that sensitive information is not kept confidential. First, as discussed, we find that the insulation between public defender attorneys will prevent the sharing of client information. Second, we find that denying Stave’s withdrawal will not undermine public perception of lawyers’ conduct for numerous reasons. The segregation of the attorneys involved in this case is sufficient to assure the public of client information confidentiality. In cases unlike the one at hand, where attorneys are associated, we will impute conflicts of interest to protect client knowledge. Public defenders “do not have a financial interest in matters handled by their colleagues which might give them a motive to share confidential information.” Id. Clients cannot manipulate the legal system by using public defender attorneys for the privileged information that they may have. Id. Furthermore, the public perception of another change in Majhor’s local representation may diminish the public’s perception of attorneys in the American Samoa bar. The many changes may appear to the public as if Majhor is not receiving loyal attorney assistance. In this case, granting Stave’s withdrawal has the appearance of being a disservice to Majhor. Majhor will lose an attorney who has secured the court’s authorization for expert funds from ASG, is well acquainted with the pro hac vice defense team, and has generally developed a good working relationship with Majhor.
*186B. Office Conflict- — Actual
Majhor contends that the “ethical wall” insulating the attorneys at the Public Defender’s office has been pierced. We disagree because we have no evidence that client infonnation has actually been exchanged among any of the defense attorneys. Majhor only identifies potential or illusory conflicts of interest. His inability to provide better evidence of an actual conflict gives us further reason to believe that the attorneys for the co-defendants, including the public defender attorneys, were and are adequately insulated from each other.
Majhor asserts that the budgetaiy requirements of his defense conflict with the budgetaiy concerns of the Public Defender’s office. Majhor believes that the resources of the Public Defender’s office are insufficient to provide for his defense. However, Majhor has shown no instance where a budgetary decision prejudiced his defense. We have authorized funds necessary for Majhor’s defense. By further motion, Majhor can continue to request funding where required to prepare an adequate defense. American Samoa Gov’t v. Siitu, CR No. 06-03, slip op. at 1-3 (Trial Div. July 9, 2003).
Majhor asserts that the investigator and secretary of the Public Defender’s office conflict Stave from representing Majhor. Majhor contends that Stave uses the same investigator and secretary as involved with the other defendants. Majhor has not shown that he has been prejudiced by “‘an actual conflict of interest that affected his lawyer’s performance’” or the performance of the investigator or secretary. Burger v. Kemp, 483 U.S. 776, 783 (1987) (quoting Strickland, 466 U.S. at 692 (citations omitted)). This is an unnecessary conflict. As Majhor can use another investigator and can seek funds for investigation, Majhor does not have to use the services of a conflicted investigator. As for the secretaiy, there is no conflict with a secretary performing basic clerical services for Stave, like answering the phone, because “members of the support staff are expected to maintain professionalism, discretion, and confidentiality.” Amani, 2 A.S.R.3d at 80. Where Majhor’s defense team or Fa'alevao doubt the continued confidentiality of particular pieces of privileged infonnation, the attorneys can take steps to withhold information from the secretaiy. For example, Stave can communicate directly with the Governor’s office regarding Majhor’s defense funding or utilize the staff of the pro hac vice attorney for substantive secretarial support where necessary.
Majhor asserts that Fa'alevao’s candidacy for Governor prejudices Majhor’s defense. Majhor believes that Fa'alevao will interfere with Majhor’s defense so as not to appear weak on the death penalty before the voters. This type of argument is “speculative and nothing more than a conclusion.” State v. Lovelace, 140 Idaho 53, 61, 90 P.3d 278, 286 *187(Idaho Sup. Ct. 2003) (rejecting argument that a defense attorney elected to a prosecutorial position would not want to appear “soft on crime” and was conflicted). Majhor presents no evidence that Fa'alevao’s campaign has actually involved the death penalty or that he has acted against Majhor’s interests. In addition, Fa'alevao is insulated from Majhor’s case.
Majhor argues that Stave has a conflict of interest because Assistant Public Defender Monica Abello is leaving the Public Defender’s office to join the Attorney General’s office.1 This argument is meritless, because any actual conflict would impact Majhor even if Stave withdrew.
Majhor contends that Stave’s workload is too heavy to accommodate Majhor’s capital case. With Stave’s anticipated position as local co-counsel on a capital defense team, Stave can arrange his workload so as not to prejudice Major’s defense.
IIL Constitutionality of Stave’s Representation
After considering Majhor’s conflict of interest arguments with “special care and deliberation,” we find that Stave has no conflict of interest that will deny Majhor, or his co-defendants, effective assistance of counsel. Thompson v. Oklahoma, 487 U.S. 815, 856 (1988). Stave’s representation of Majhor has not been deficient because he has no imputed conflict of interest or actual conflict of interest. The attorneys involved are separated to sufficiently minimize the risk that information will be shared. The allegedly conflicted investigator does not need to be used by the defense and the use of the secretary can be controlled to avoid conflict. There is no conflict because of the Public Defender’s budgetary issues, Fa'alevao’s candidacy, or Stave’s workload.
Stave’s representation has not prejudiced Majhor. Majhor failed to present any evidence showing that any one involved, whether attorney, investigator, or secretary, has improperly shared client information or acted against his best interests. Moreover, with the critical stage of Majhor’s defense team formation, allowing Stave to withdraw could interfere or delay the appointment of more experienced counsel for Majhor that will ensure him an adequate defense.
Majhor’s reliance on Burger v. Kemp was unhelpful to demonstrate *188Stave’s alleged conflicts of interest. 483 U.S. 776 (1987). The Burger Court found that the attorney in question had no conflict of interest because the participation of the attorney did not “constitute an active representation of competing interests.” Id. at 783. Here, we find that Stave does not represent competing interests.
IV. Drug Case
For many of the same reasons as in the homicide case, CR No. 10-03, we find no conflict preventing Stave from representing Majhor in the controlled substance case, CRNo. 21-03.
V. Conclusion
We decline to allow Stave to withdraw at this critical time in the formation of the defense team. Stave can continue as counsel for Majhor until we have further evidence that privileged client information has been transferred between the counsel of the co-defendants, that the screening procedures are ineffective, or that there is any other actual conflict of interest.
Order
Defendant’s motion to withdraw is denied without prejudice.
It is so ordered.
We release the portion of our opinion concerning Abello’s move to the attorney general’s office to both parties because it contains no privileged information. The Attorney General is fully aware that his office is hiring Abello and that she may bring conflicts of interest with her from the Public Defender’s office. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486851/ | OPINION AND ORDER
Plaintiffs Construction Services of Samoa, Inc. (“CSS”), Mom Mane (“Mom”), and Sallie Mane (“Sallie”) (collectively “Plaintiffs”) brought the instant action against Defendants Bank of Hawaii (“BOH”), Tony’s Construction, and Sila Poasa (“Sila”). Plaintiffs seek damages from *195BOH on six counts: (1) conversion; (2) breach of duty to return equipment; (3) breach of duty to notify; (4) breach of duty to account; (5) conversion of funds from bank account; and (6) intentional infliction of emotional distress. Plaintiffs seek damages from Tony’s Construction on two counts: (1) conversion; and (2) intentional infliction of emotional distress; and from Sila on these two counts and two additional counts: (1) tortious interference with security agreement; and (2) trespass. Sila and Tony’s Construction brought a counterclaim against Plaintiffs for replevin and crossclaims against BOH for: (1) breach of warranty of good title; (2) fraud and misrepresentation; (3) negligence; and (4) indemnity.
On January 28, 2004, we granted BOH partial summary judgment with respect to the breach of duty to return equipment and intentional infliction of emotional distress claims. On this same date, we granted Sila partial summary judgment with respect to the tortious interference and intentional infliction of emotional distress claims against him. Trial was held on the remaining claims on January 29, 2004 and February 2, 2004. All parties and counsel were present at trial.
Findings of Fact
Plaintiffs operated CSS, a construction company, in American Samoa. Sila was involved with the operations of CSS but eventually left CSS to start his own construction business, Tony’s Construction. In September 1998, CSS purchased a used 1995 PC-200 excavator and various other pieces of equipment for $153,050.00 New Zealand dollars.1 (Ex. 14 at 3). On December 10, 1999, Sila entered into a Security Agreement/Chattel Mortgage with BOH on behalf of CSS. (Ex. 14). The loan was secured by the excavator and certain accessories listed on the invoice attached to the Security Agreement/Chattel Mortgage. (Id) Sila and Morn guaranteed the loan in their individual capacities. (Ex. 39.) Even after Sila left CSS, he remained obligated as a guarantor on the loan.
CSS defaulted on its loan obligations. In April 2001, BOH set off *196$3,700.55 from the personal joint account of Mora and Sallie and applied these funds to the outstanding loan obligation in order to bring the loan current. (Ex. 17 and 44.) As a result of this setoff, Sallie incurred returned check and vendor fees.
CSS again defaulted on the loan. On August 2, 2001, BOH sent a notice to CSS indicating that CSS was in default and that the full amount of the loan was due by August 14, 2001. (Ex. 30.) CSS made no payments in response to this correspondence. On August 15,2001, BOH repossessed the excavator and attachments. However, BOH could not repossess the rock breaker because Mora and Sallie claimed it had been stolen. (Ex. 34.) Two days later, on August 17, 2001, BOH sent a notice to CSS notifying them that BOH planned to sell the excavator at a public sale unless the loan was paid in full by August 31,2001. (Ex. 6.)
During this same period, BOH was in contact with Sila. On August 17, 2001, Sila made a payment to BOH of $8,867.67 and paid EFVJ Tracking and Machinery $1,668.00 for the storage fees. (Ex. 35.) Sila expressed that he wanted to purchase the equipment rather than redeem the loan. At this point, Sila took possession of the excavator. On September 11, 2001, Sila made financing arrangements with BOH for the remaining amount of $30,943.00 in order to purchase the excavator and attachments.2 (Ex. 37.) BOH secured Sila’s and his wife, Falesa’s, new loan with the excavator and attachments. (Id.) Sila acknowledged BOH was unable to secure possession of the rock breaker and agreed to recover the rock breaker himself. (Id.) Sila still does not have possession of the rock breaker. Indeed, in 2002, CSS gave the rock breaker to Vailu'u and Sons in order to satisfy a $10,155.00 debt.
Discussion
I. Plaintiffs v. BOH
A. Conversion
Plaintiffs allege that BOH converted the excavator and attachments by repossessing and releasing them to Sila. “To constitute conversion of a chattel, there must be an unauthorized assumption of the right to possession or ownership.” Andrews v. Mid-Am. Bank and Trust Co., 503 *197N.E.2d 1120, 1122 (Ill. App. Ct. 1987). “Plaintiff must show a tortious conversion of the chattel, a right to the property, and an absolute and unconditional right to immediate possession of the property.” Id.
With respect to BOH’s repossession, it is undisputed that CSS defaulted on its loan, which was secured by the excavator and attachments. Upon default, BOH had the right to repossess the excavator and attachments. The Security Agreement/Chattel Mortgage says that upon default BOH “may take the Collateral without notice to [CSS] and/or require [CSS] to produce the Collateral to [BOH] at a reasonably convenient place.” (Ex. 14.) Plaintiffs could not show they had the right to immediate possession of the excavator after their default. As such, BOH had the superior right to possession when it repossessed the equipment. See, e.g., Taylor v. United Missouri Bank of Kansas City, 693 F.2d 63, 64 (8th Cir. 1982); Keller v. La Rissa, Inc., 586 P.2d 1017, 1020 (Haw. 1978); Andrews, 503 N.E.2d at 1122.
With respect to BOH’s subsequent disposition of the excavator and attachments to Sila, Plaintiffs argue that BOH is liable to them for conversion because it could not release the equipment to Sila as a loan guarantor.3 Because we find that BOH sold the equipment to Sila in a private sale, Plaintiffs’ claim that BOH converted the equipment by releasing it to Sila, a loan guarantor, fails.4
B. Breach of Notice
Plaintiffs allege that BOH failed to give them proper notice before *198disposing of the excavator to Sila. BOH sent notice to Plaintiffs on August 17, 2001 that it intended to publish notice of public sale ten days later and gave Plaintiffs until August 31, 2001 to redeem the collateral. (Ex. 6.) In the meantime, on August 17, 2001, BOH sold the excavator and attachments to Sila.5
We have said before,
[i]n the case of secured transactions one incident of [the obligation to exercise good faith] is that a creditor who seizes and sells a thing to satisfy his debt must exercise due diligence to secure a fair price for it. This obligation has been codified by statute in all fifty states; where it does not require a judicial foreclosure or an advertised public sale it at least requires the sale be conducted in accordance with commercially reasonable practices and that there be notice to the mortgagor.
Dev. Bank of Am. Samoa v. Ilalio, 5 A.S.R.2d 1, 8 (Trial Div. 1987). Notice “enable[s] the debtor to protect his interest in the property by paying the debt, finding a buyer, or being present at the sale to bid on the property or have others do so, to the end that it be not sacrificed by a sale at less than its true value.” 68A Am. Jur. 2d Secured Transactions § 653 (1993) (footnotes omitted). Accordingly, we turn to whether BOH provided proper notice of sale to Plaintiffs.
In the Security Agreement/Chattel Mortgage, the parties agreed that reasonable notice was five days. BOH provided notice to Plaintiffs on August 17, 2001 that ten days later it would publish notice for a public sale of the equipment. Then, the very same day, on August 17, 2001, BOH sold the equipment to Sila in a private sale. We find this notice was deficient. See, e.g., Liberty Bank v. Honolulu Providoring Inc., 650 P.2d 576, 580 (Haw. 1982) (declining to determine if notice was reasonable under the UCC and finding that “[b]y the very terms of the note and security agreement, Liberty Bank failed to provide sufficient notice of the action within a reasonable time.”).
*199Although “[n]otice and commercial reasonableness are related but independent requirements, . . . [i]f no notice or a defective notice is given, the creditor acts in a commercially unreasonable manner.” 68A AM Jur. 20 Secured Transactions § 654 (footnotes omitted). We are convinced that BOH’s sale to Sila, without proper notice to Plaintiffs, was commercially unreasonable.
Other circumstances surrounding the sale lead us to question its commercial reasonableness. According to the Security Agreement/ Chattel Mortgage, the parties indicated that “obtain[ing] three bids for any Collateral, from any wholesaler or retailer in similar property and selling] such Collateral for cash or credit at the highest bid price” would be commercially reasonable. (Ex. 14.) On August 17, 2001, rather than getting bids or proceeding to a public sale, BOH decided to enter into a private sale with Sila without informing the Plaintiffs. The evidence indicated that the price Sila paid for the equipment was substantially less than the price it was purchased at three years previous. Tasi Scanlon, a BOH representative, indicated that she would only try to get the amount of the outstanding loan obligation at a sale. (Ex. 34 (“[Tasi] also explained to him that regardless of the machines’ value, the Bank intends to sell it for an amount to recover the outstanding loan and no more . . . .”) The circumstances surrounding the transaction lead us to believe that the private sale of the equipment to Sila without proper notice to the Plaintiffs was commercially unreasonable. See, e.g., Mercantile Fin. Corp. v. Miller, 292 F. Supp. 797, 801 (E.D. Pa. 1968); Reed v. Universal C.I.T. Credit Corp., 253 A.2d 101, 103-4 (Pa. 1969).
BOH argues that even if it did violate a notice requirement, Plaintiffs have not suffered any recoverable damages under the UCC. Whether in tenns of the UCC or common law, we believe Plaintiffs would have been entitled to any surplus from the sale of the equipment.6 See, e.g., Haw. Rev. Stat. Ann. §§ 490:9-625(b), (d) cmt. 3 (West 2003) (“Assuming no double recovery, a debtor whose deficiency is eliminated under section 9-626 may pursue a claim for a surplus.”); id., § 490:9-615(f) (discussing how to calculate the surplus); Willis v. Healthdyne, Inc., 382 S.E.2d 651, 653 (Ga. App. Ct. 1989) (“A sale of collateral, even if it is without notice, does not constitute conversion, but a defaulting debtor can recover actual damages'... for any loss caused by an inadequate sale price.”).
*200Where a security holder, proceeding as permitted by the security instrument, secures possession of the security and sells it at a private forced sale, he should exercise due diligence to get the best price obtainable at such a sale, and if he fails so to do and sells the security for less than he could have obtained by the exercise of such diligence, he is liable to the debtor for the difference between the price obtained and the price he could have obtained by the exercise of such diligence.
A to Z Rental, Inc. v. Wilson, 413 F.2d 899, 909 (10th Cir. 1969); see also Bank of Hawaii v. Davis Radio Sales & Serv., Inc., 727 P.2d 419, 425 (Haw. Ct. App. 1986) (“Defendants [debtors] were entitled to prove any damages they suffered as a result of the failure to notify them of the sale.”). Thus, we must determine if Plaintiffs have established the fair market value of the equipment exceeded the purchase price.7 See In re Cummings, 147 B.R. 738, 745 (Bankr.D.S.D. 1992) (dismissing debtor’s claim because he “failed to present any evidence of the damages he suffered by [the secured party’s] alleged failure to sell secured property in compliance with the Uniform Commercial Code”); Mercantile Fin. Corp., 292 F. Supp. at 801.
Plaintiffs submitted a price list for excavators and insist that we should value the excavator at $67,666.66, that price being the average price of three 1998 PC 200 six year old excavators with accessories listed on the price list. (Ex. 22.) There are immediately numerous problems with this approach. First, we have no evidence that the 1998 PC 200 and 1995 PC 200 are equivalent models. For example, car manufactures often change their models from one year to the next, different styles being worth much different prices. Second, evidence was introduced that CSS’s excavator had a significant number of hours on it, maybe even close to 8000 hours of use. No machine on the provided list has a comparable amount of hours, nor were we provided with information as to how the number of hours on a machine (or the condition of the machine) may depreciate its value. Third, the price list contains excavators and lists some included attachments. How are we supposed to know if the attachments in the price list mirror the attachments at issue in this case? Certainly, the type of attachments the equipment comes with can affect its value. These are just some of the problems we have with Plaintiffs’ damages figure.
We believe a fairer assessment is to look at CSS’s disposition of the rock *201breaker and determine how much it depreciated at the time of sale. CSS purchased the rock breaker new in 1998 for $16,240.00. In 2002, it gave the rock breaker to Vailu'u & Sons to settle a $10,155.00 debt. This represents a depreciation to 62.53 percent. CSS purchased the excavator and the other equipment (including the rock breaker) for $77,672.13 in 1998. Using the 62.53 percent figure, we find fair market value of this equipment to be $48,568.38 at the time it was sold to Sila. In addition to the $30,943.00 loan, Sila made payments of $8,867.67 and $1,668.00 for the equipment. Thus, Sila paid $41,478.67 in connection with the excavator. The difference between this price and the fair market value is $7,089.71. BOH is liable to CSS for this amount.
C. Breach of Duty to Account
Plaintiffs argue that BOH breached its duty to account after the disposition of the equipment. On January 29, 2002, Plaintiffs, through their attorney, requested BOH provide an accounting for the disposition of the collateral that secured their loan. (Ex. 7.) In this letter, Plaintiffs claim they previously requested this information in writing on October 1, 2001 and received an insufficient response. {Id). BOH responded to Plaintiffs’ January 29 request on Februaiy 1 and 19,2002. (Ex. 8 and 9.) Plaintiffs argue that BOH’s response was inadequate.
Even assuming BOH had a duty to account to the Plaintiffs, Plaintiffs have not established that BOH’s failure to provide the accounting caused them any damages. As such, we find in favor of BOH on this claim.8
D. Conversion of Sallie’s Funds
Sallie alleges that BOH wrongfully set off money from a checking account she jointly owned with her husband. The right of setoff is “an ancient doctrine tracing its origin back to the Roman doctrine of ‘compensado,’ which is the extinction of cross-demands.” Four Circle Co-op v. Kansas St. Bank & Trust Co., 771 F. Supp. 1144, 1149 (D. Kan. 1991). This right “allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding the absurdity of making A pay B when B owes A.” Citizens Bank of Maryland v. Strumpf 116 S.Ct. 286, 289 (1995) (citations omitted); see also American Samoa Gov’t Employees Fed. Credit Union v. Sele, 28 *202A.S.R.2d 21, 24 (Trial Div. 1995).
The right to setoff usually exists when four conditions are met:
(1) the funds to be setoff are property of the debtor; (2) the funds are deposited without restrictions; (3) the existing indebtedness is due and owing; and (4) there is mutuality of obligation.
Paul Laurino, Whose Money is It Anyway? A Bank’s Right to Setoff Against Joint Accounts, 1996 COLUM. BUS. L. Rev. 61, 63. In determining a bank’s right to setoff from a joint account, modem courts usually first turn to state statutes regulating bank accounts or the provisions in the account agreement. Id. at 64. “It is universally recognized that a bank may contract with customers for the right to setoff from the entire joint account the debt of only one of the joint account holders.” Id. at 65. In the absence of an agreement between the parties, courts look to state statutes. Some states have adopted statutes regulating setoff or other aspects of joint bank accounts. Id. at 70-72, 81 (“Presently, the majority of states permit banks the statutory right to setoff only a debtor’s net contribution to the account, or in absence of evidence thereof, the debtor’s pro rata share of the account.”).
In the Continuing Guaranty, Moru agreed BOH could use the setoff process against his checking or savings accounts. (See Ex. 39 ¶ 15.) However, BOH offers no contractual agreement to demonstrate that it was allowed to set off funds from Sallie and Mom’s joint account.9 Moreover, American Samoa does not have statutes regarding the right to setoff or the regulation of joint accounts.10 Because we do not have statutes or an account agreement to turn to for guidance, we must look to the common law.
At common law, a bank typically had to concede a lack of mutuality when at least one of the holders of a joint account did not have a debt with the bank. Thus, the bank would try to *203argue that the debtor was indeed the actual owner of the account’s funds and that the other joint “owner” had made no contribution at all. If the argument was convincingly made, a court would allow the bank equitable setoff of the funds.
Paul Laurino, 1996 Colum. Bus. L. Rev. at 64 (footnotes omitted). In Greenwood v. Bank of Illmo, 782 S.W.2d 783 (Mo. Ct. App. 1989), the court noted that “[o]ut-state authorities hold that, in the absence of a statute or a specific agreement between joint depositors and the bank conferring upon the bank a right to set off the individual indebtedness of one of the depositors against the bank’s liability on the joint account, the bank’s set off may not exceed the interest of the indebted depositor in the joint account.” Id. at 786 (collecting cases); see also Symanski v. First Nat’l Bank of Danville, 609 N.E.2d 989, 993 (Ill. App. Ct. 1993) (“A bank has a right of setoff, as against a deposit, only when the individual who is both depositor and debtor stands in both of these characters alike, in precisely the same relation and on precisely the same footing toward the bank.”); Colella v. N. Easton Sav. Bank, No. Civ. A. 95-00362, 1995 WL 670140 *5 (Mass. Super. Ct. Sept. 11, 1995) (denying bank’s motion for summary judgment because actual ownership of the funds in joint account was question of fact and bank was only entitled to setoff from funds owned by debtor); 10 Am. JUR. 2d Banks and Financial Institutions § 878 (1997) (“[A] bank has no right to set off against a deposit in the names of two persons . . . save to the extent to which its debtor is shown to be the actual owner of the moneys deposited, even though the bank accepted the deposit without knowledge as to the actual ownership of the money.”). We hold that Bank of Hawaii was entitled to setoff funds from the Manes’ joint account to the extent those funds belonged to Manu.
However, Sallie seeks damages for the entire amount set off from the joint account. If Sallie thought the entire setoff was inappropriate, she should have made a showing that all of the funds belonged to her. In determining which party should bear the burden in wrongful setoff cases, one commentator noted, “[t]he answer is usually that the burden is on the account holder.” Paul Laurino, 1996 COLUM. BUS. L. Rev. at 81. He claims this “is the only practical solution because a bank is privy only to imperfect information regarding ownership of funds.” Id.
Absent any evidence from either side to the contrary, we presume that ownership in the Manes’ joint account was equal, which gave Bank of Hawaii the right to set off one half of the Manes’ joint account. The setoff of more than one half of the account was wrongful. “Where a bank breaches its deposit contract with a depositor by wrongfully exercising a setoff, the depositor is entitled to recover the frill amount of the offset.” 10 Am. JUR. 2d Banks and Financial Institutions § 873. On April 10, 2001, the joint account had a balance of $4,068.55. BOH *204exercised its right to set off on April 11,2001. Accordingly, at this time, BOH was entitled to setoff $2,034.28, representing one half of the amount in the joint account. BOH wrongfully set off an additional $1,666.27 from the Manes’ joint account. This setoff caused several of Sallie’s checks to be returned and caused her to incur vendor fees. We believe BOH is also responsible for these charges. According to the BOH statements and Sallie’s chart, she incurred returned check fees of $294.00 and vendor charges of $400.00. In total, BOH shall reimburse-Sallie Mane $2,360.27. (Ex. 17, 18,43,44.)
II. Plaintiffs v. Tony’s Construction
A. Conversion
Sila purchased the excavator from BOH. Sila was legally entitled to take possession of the excavator and the attachments since he purchased them. As such, Tony’s Construction is not liable on this claim.
B. Intentional Infliction of Emotional Distress
Plaintiffs allege that Tony’s Construction caused them “extreme emotional distress” by its wrongful acquisition of the excavator. We previously granted summary judgment to Sila and BOH on similar claims.
For the same reasons we discussed in our January 28, 2004 orders granting partial summary judgment, we find that the alleged conduct falls short of what is required for a claim of intentional infliction of emotional distress (“IIED”). In an IIED case, “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability.” Restatement (second) of Torts § 46 (1965). Tony’s Construction’s acquisition of the excavator after BOH’s repossession was not extreme or outrageous conduct. Moreover, Plaintiffs have offered no evidence that Tony’s Construction intended to cause them emotional distress by acquiring the excavator.
III. Plaintiffs v. Sila Poasa
A. Conversion
Sila purchased the excavator from BOH. Sila was legally entitled to take possession of the excavator and the attachments since he purchased them. As such, Sila is not liable on this claim.
*205B. Trespass
Plaintiffs seek damages for trespass from Sila arguing that employees of Tony’s Construction along with police officers entered and searched their property. However, at trial, Plaintiffs offered little or no evidence to support this allegation. Absent a sufficient showing by Plaintiffs, we find in favor of Sila on this claim.
IV. Tony’s Construction and Sila Poasa v. Moru Mane, et al.
A. Replevin
Tony’s Construction and Sila Poasa argue that as part of the agreement with BOH, they purchased a rock breaker, which was being wrongfully withheld by CSS and the Manes. On September 10, 2001, BOH approved Sila and Falesa Poasa’s financing request and noted that the rock breaker was not repossessed by BOH and that Sila would have to repossess it on his own. (Ex. 37.) Indeed, when BOH attempted to repossess the rock breaker, Moru represented that it had been stolen at a job CSS did in Poloa. BOH was, therefore, never able to acquire the rock breaker.11 (Ex. 34.) Later, when Sila and Tony’s Construction brought their counterclaim for replevin, Plaintiffs admitted that they had possession of a rock breaker. During trial, testimony demonstrated that Moru gave the rock breaker to Vailu'u and Sons Trucking in order to satisfy a $10,155.00 outstanding debt.
“Replevin is a proceeding by which the owner or one who has a general or special property in the chattel taken or detained seeks to recover possession . . . .” 66 Am. Jur. 2d Replevin § 2 (1973) (footnote omitted). Ordinarily, in an action for replevin, the defendant must have possession of the property. See, e.g., Relational Funding Corp. v. Advantage Sch, Inc., No. 02 C 1242, 2002 WL 1303134 *9 (N.D. Ill. June 13, 2002). Indeed, at the time Sila and Tony’s Construction brought the counterclaim, CSS and Moru were in possession of the rock breaker. In any event,
there are many holdings to the effect that the replevin action is maintainable where the defendant’s transfer of possession was wrongful, particularly where it has been made for the purpose *206of evading the action... [I]t has been pointed out that permitting the defendant to set up as a defense to the action the fact that he has parted with the possession of the property, when this was done wrongfully, would be allowing him to take advantage of his own wrong. It would enable one who had wrongfully taken or detained property from the owner to refuse to deliver, and hold to the last moment before the writ, and then evade a suit by a transfer of possession. His successor might do the same; and his after him; and so on, until the cost of successive writs would exceed the value of the property.
66 Am. JUR. 2d Replevin § 27 (footnotes omitted); see also B.P. Rozen v. Redco Corp., 362 P.2d 1095, 1096-97 (Okla. 1961); Black v. City of Cleveland, 387 N.E.2d 1388, 1391 (Ohio App. Ct. 1978).
CSS and Moru deceived BOH by telling it the rock breaker was missing when they actually were in possession of it.12 After Sila made it clear that he believed he had legal title and that he wanted possession of the rock breaker, Moru and CSS used it to satisfy another debt. Accordingly, we cannot order Mora or CSS to return the rock breaker because they no longer have actual or constructive possession of it. However, we can award Sila an alternative money judgment representing the value of the property. There is authority “indicating that evidence as to the purchase price may be considered in determining the value of the replevied property for the purposes of such an alternative money judgment.” 66 Am. Jur. 2d, Replevin § 123. Moru and CSS gave the rock breaker to Vailu'u and Sons Trucking in order to satisfy a $10,155.00 debt. Therefore, the value of the rock breaker is assessed at $10,155.00.
V. Tony’s Construction and Sila Poasa v. BOH
Sila and Tony’s Construction brought several crossclaims against BOH: (1) breach of warranty of good title; (2) fraud and misrepresentation; (3) negligence; and (4) indemnity. All of these claims were dependant on our finding that BOH improperly sold or converted the excavator or that Sila had to return the excavator to CSS. Since we found that BOH privately sold the excavator to Sila and that Sila properly has legal title, *207these claims are no longer at issue. Accordingly, Sila and Tony’s Construction’s crossclaims against BOH are denied.
Conclusion & Order
1. BOH is liable to CSS for $7,089.71 representing the difference between the fair market value of the equipment and the sale price to Sila Poasa.
2. BOH is liable to Sallie Mane for the wrongful setoff of money in her joint checking account in the amount of $2,360.27.
3. Plaintiffs’ other claims against BOH are denied.
4. Plaintiffs’ claims against Sila and Tony’s Construction are denied.
5. Sila and Tony’s Construction’s counterclaim for replevin is granted. CSS and Moru are liable to Sila for $10,155.00.
6. Sila and Tony’s Construction’s crossclaims against BOH are denied.
Judgment will enter accordingly.
It is so ordered.
We take judicial notice that the exchange rate on September 9, 1998 (the date of the invoice) was 0.5075 currency units per dollar. Federal Reserve Statistical Release, Foreign Exchange Rates (Weekly) (released Oct. 5, 1998) available at http://www.federalreserve.gov. Accordingly, the value of all of the equipment on the date of invoice in U.S. dollars was $77,672.12, with the excavator price at $55,825.00 and the rock breaker price at $16,240.00. Neither party introduced any evidence regarding the exchange rate.
We acknowledge that there has been conflicting evidence regarding whether Sila purchased the excavator from BOH or redeemed it as the guarantor on the loan. We find the testimonial and documentary evidence, in total, supports a finding that Sila purchased the excavator from BOH. (See, e.g., Ex. 37 (In a financing approval letter to Sila and Falesa Poasa, BOH “extend[ed] [its] best wishes with the purchase of this equipment.”).)
Plaintiffs argue that Hawaii Revised Statute section 460:9-504(5) stated that if a guarantor came into possession, the transaction was not to be construed as a sale. HAW. Rev. Stat. § 460:9-504(5) (current version at Haw. Rev. Stat. Ann. § 490:9-618 (West 2003)). This statute was part of the Hawaii Uniform Commercial Code (“UCC”), which has been significantly revised and renumbered. We do not find it necessary to apply the UCC to this case. See disc, infra at n.5. However, we note that, although Plaintiffs argue that the earlier version of this statute should apply to them, and although we decline to apply any version, the commentary in the revised provision “rejects the view, which some may have ascribed to former section 9-504(5), that a transfer of collateral to a recourse party can never constitute a disposition of collateral which discharges a security interest. Inasmuch as a secured party could itself buy collateral at its own public sale, it makes no sense to prohibit a recourse party ever from buying at the sale.” Haw. Rev. Stat. Ann. § 490:9-618 cmt. 3.
If we had found that BOH had released the property to Sila as a loan guarantor, BOH also would not be liable to Plaintiffs for conversion. If Sila had redeemed the equipment rather than purchased it, he would have been subrogated to BOH’s rights.
Plaintiffs insist that the notice provisions in Hawaii Revised Statute section 490:9-611(b) apply to their claim. We disagree. American Samoa has not adopted the UCC, and we believe this case can be resolved using common law concepts. However, we do look to the UCC and the cases interpreting it as persuasive authority. See Pac. Reliant Indus., Inc. v. Amerika Samoa Bank, 16 A.S.R.2d 57, 60 (Trial Div. 1990) (“While the UCC does not of its own force apply in American Samoa, that is not to say that certain rules embodied in widely adopted uniform codes, such as the UCC, may not otherwise be applicable in the territory when they evince or restate generally accepted principles of law.”); see also Theo H. Davies & Co. v. Pac. Dev. Co., 6 A.S.R.2d 5 (Trial Div. 1987).
Some jurisdictions will find the secured parly liable for conversion in the absence of proper notice because the debtor is unable to redeem the equipment. The evidence at trial conclusively established that Plaintiffs made no attempt to redeem nor were they in any position to redeem the equipment.
Much of the case law in this area involves the secured creditor trying to recover a deficiency judgment after the sale of the collateral. There is less case law discussing the situation where a debtor alleges that the collateral was worth not only more then it was sold for, but more then the amount of the debt.
Under Hawaii Revised Statutes section 490:9-625(1), Plaintiffs may have been entitled to recover the $500 statutory award. However, American Samoa has not adopted the UCC, nor does it have any statutory damage award to compensate Plaintiffs for this claim. In the absence of any showing of damages by Plaintiffs, we believe a damage award is inappropriate in this case.
In its written closing argument, Bank of Hawaii also argues that it was entitled to set off funds from the Sallie and Mora’s account because Tasi Scanlon testified that Mora Mane separately gave them permission to set off the loan payments at issue, and because Mora did not explicitly deny this at trial. However, no evidence demonstrated that Sallie Mane gave her permission for the setoff.
According to paragraph 12 of the Continuing Guaranty, the “Guaranty shall be construed in accordance with the laws of the State of Hawaii.” (Ex. 39.) However, neither party provided any discussion of Hawaii law regarding this issue. Hawaii Revised Statutes Annotated section 412:4-105 discusses joint accounts but does not explicitly address the setoff issue.
BOH was still entitled to sell the rock breaker to Sila. See, e.g., Buran Equip. Co. v. H & C Inv. Co., 142 Cal. App. 3d 338, 342 (Cal. Ct. App. 1983) (“[S]ale may occur before repossession of the collateral. In modem day commercial transactions, often involving large equipment as the security, it would not be unusual for the equipment to be located in diverse geographical locations.”) (citations omitted).
We note under A.S.C.A. § 46.4128, “[a] person commits the crime of defrauding secured creditors, [a Class D Felony punishable by a term of imprisonment of up to five years where the value of the outstanding debt exceeds the sum of $500], if he destroys, removes, conceals, encumbers, transfers, or otherwise deals with property subject to a security interest with purpose to defraud the holder of the security interest.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486852/ | *212OPINION AND ORDER
Procedural History
The parties seek resolution of long-standing issues pertaining to the offer to register a certain separation agreement. The agreement was signed on July 8, 1992, by the Claimants Eliga Tilo (“Eliga”), then the sa'o (“head chief’) in control of his family’s communal land, and Eugene B. Palyo (“Eugene”) and Lafoaina F. Palyo (“Lafoaina”) (together “the Palyos”), as family members. Eliga was registered as the Tilo titleholder on November 23, 1948.1 The agreement purported to separate a house claimed by the Palyos (“the house at issue”) from the Tilo family’s communal land in the village of Aua (“the land at issue”), pursuant to A.S.C.A. §§ 37.1501-1506. The agreement named the land “Amauto.” The Tilo family is now represented by Claimant Vasaga Tilo (“Vasaga”), the present family sa 'o. Vasaga was registered as the Tilo titleholder on June 14, 1999. He will therefore be formally added as a party to this action at this time.
On the same date, the separation agreement was offered for registration, and the Territorial Registrar initiated the required 30-day notice period. Objector Va'ailepu'a O.H. Danielson (“Va'ailepu'a”) timely objected to the proposed-registration. Va'ailepu'a acted on behalf of himself and, pursuant to a 1992 power of attorney, Tufaga Sapati Niumatalolo (“Tufaga”), sa'o of the Tufaga family. Va'ailepu'a claimed that “Amouto,” apparently the more common variant of the spelling “Amauto,” is the Tufaga family’s communal land, gifted to his ancestor in the Tufaga family, which has long recognized that the property belongs to him and his heirs. The gift was included in the ifoga (“forgiveness ceremony”) after a serious altercation with a Tilo family member. The dispute over the separation agreement was referred for judicial resolution upon the Secretary of Samoan Affairs’ issuance of the jurisdictional certificate of irreconcilable dispute after unsuccessful mediation proceedings, under A.S.C.A. § 43.0302.
On April 12, 1993, after the controversy was transferred to the Court for resolution, Va'ailepu'a filed his required statement of the case, calling it a “Petition for Quiet Title.” He reiterated his position outlined above. It also now appears {see discussion infra) that he was principally opposing Eliga’s facial attempt to separate a structure for the Palyos located on the Tufaga family’s communal land named Amouto. This action then remained dormant until 2002.
*213On October 10, 2002, the Court permitted Intervenor Ponausuia Lusi Fale (“Ponausuia”) to join the action. Ponausuia, the sao of the Ponausuia family, also objected to the separation agreement. He and Lafoaina are siblings. However, he claimed that the house was originally constructed and owned by their parents on communal land of the Ponausuia family, known as “Amouto,” not the Tilo family. A certificate of irreconcilable dispute was issued for this controversy between the Palyos and Ponausuia prior to his intervention. Ponausuia’s intervention also prompted Vasaga to file a statement of the Tilo family’s claim on October 10,2002. Eventually, on March 10,2003, the Palyos filed their separate statement of the case.
Then, on March 27, 2003, the Palyos moved for relief against Ponausuia and his son Mark Fale, as occupants of the house at issue. Specifically, the Palyos sought either payment of both accrued rent and rent due in the future, or payment of accrued rent and removal from the premises, and to have the funds deposited in the Court’s Registry pending the action’s determination. At the motion hearing on April 15, 2003, the Court deferred ruling on the rent issue until the trial and scheduled the trial to begin on April 21,2003.
The trial went forward on April 21 and 22, 2003. The Court accepted the parties’ agreement to initially take evidence pertaining only to the house at issue, specifically ownership and rent issues, and to postpone the trial on the ownership of the land at issue. However, after receiving the evidence on the house at issue, the Court deferred deciding the ownership and rent issues until the trial on the ownership of the land at issue was also completed. The further trial was scheduled on June 25-27, 2003, was continued to August 14-15, 2003, and actually reconvened on August 15. On August 15, the parties informed the Court that they had settled and presented their stipulations on the ownership of the land at issue. The parties also agreed that relevant statements of Liufau Tanielu Sonoma (“Tanielu”), the present Liufau family’s sa'o, if obtained by way of either deposition or affidavit and filed, would be considered as evidence in the case.
Discussion
I. The Land at Issue
On August 15, 2003, the parties stipulated to certain facts regarding the land at issue, and we find accordingly.
The land at issue, on which the house at issue is located, is a portion of the Liufau family’s communal land, known as “Mapu.”2 The land at *214issue borders a stream. The immediately adjacent land on the other side of the stream is the Tufaga family’s communal land, known as Amouto. This adjacent land was given to the Tufaga family as part of the ifoga following an altercation many years ago in which a member of the extended Liufau family spilled the blood of a member of the Tufaga family. See Tufaga v. Liufau, 1 A.S.R. 184, 186 (Land & Titles Div. 1909). The portion of Amouto across the stream is separate and distinct from Mapu, the land at issue. Clearly, once Va'ailepu'a understood that the separation agreement for the house at issue does not affect the Tufaga family’s communal land Amouto, he had nothing at stake in the present controversy and effectively withdrew his objection to the separation agreement.
On August 15, the parties also stipulated that the members of the Liufau and Tilo families are together one family. In Tanielu’s affidavit filed on September 5, 2003, he confirmed this family unity and added that the Ponausuia family is also related to the Liufau family. On August 15, the parties further stipulated that the holder of the Tilo title has authority to handle transactions concerning the Liufau family’s communal lands in the absence of the Liufau titleholder. Tanielu, however, maintains that the Tilo titleholder is the second ranking matai (“chief’) of the Liufau family and can permit use of Liufau communal land only when the Liufau title is vacant and the proposed use is discussed and approved at a meeting of Liufau matai and other family members.
Tanielu was registered as the Liufau titleholder on June 7, 1999. His predecessor was Liufau Filipo (“Filipo”). Filipo was registered as the Liufau titleholder on March 25, 1981, and died on February 4, 1995.3 Filipo was a Senator in the Legislature of American Samoa and had been a longtime resident of the territory at the time of his death. The Liufau title was vacant for approximately four years between the reigns of Filipo and Tanielu. However, Filipo held the Liufau title, and was not in any sense absent as the titleholder in 1992 when Eliga and the Paly os entered the separation agreement at issue pertaining to the Liufau communal land at issue.
*215II. The House at Issue
The house at issue on the land at issue is approximately 55 feet wide and, including front and back porches, 78 feet long. The width side of the house runs approximately parallel with and is situated approximately 40 feet from the northerly or mountain side of the main public road in Aua.
Lafoaina’s parents constructed the original house on this site. In 1981, after Eugene retired from the U.S. Marine Corps, the Palyos moved to American Samoa and resided in the existing house of Lafoaina’s parents, with the parents’ permission, for several years. By 1991, the house needed extensive renovation, and the Palyos began to undertake aspects of this project. From 1996 to 1998, after the separation agreement at issue was signed and Va'ailepu'a objected to its registration in 1992, the Palyos essentially rebuilt the house, expending approximately $40,000, and put in new furniture and furnishings, costing them approximately $10,000. The completely renovated house is now the house at issue.
Eugene is an ordained faife 'au (“minister”). For the last several years, he has been the pastor of a church in Malaeimi, a village substantially removed from Aua, and beginning in 1995, the Palyos have lived in a residence provided by and nearer to this church. Hence, the Palyos decided to rent the house at issue to another until Eugene retired from his ministry. They rented the house at issue to Mark Fale (“Mark”), Ponausuia’s son. The Palyos, as the landlord, and Mark, as the tenant, signed the Rental Agreement on September 12, 2000. The agreement does not expressly state a lease term, but read as a whole, the tenancy is a month-to-month. The stated rent is $350.00 per month, payable on the 15th day of each month, beginning September 15, 2000. Mark paid the rent only for the first three months and nothing since then. The amount of unpaid rent was $11,550 at the conclusion of the trial on August 15, 2003.
Ponausuia considers any house located approximately where his parents first constructed their house on the land at issue to be his parents’ home. Ponausuia maintains that he and his immediately family members have as much right to live in the existing house rent free as does his sister Lafoaina. Ponausuia resided outside of American Samoa at the time the Rental Agreement was entered. However, he learned of the agreement and instructed Mark to stop paying the rent. Ponausuia and his wife returned to American Samoa in 2002. They moved into and, with Mark, have since lived in the house at issue.
III. Analysis of the Legal Issues
On July 8, 1992, the Palyos and Eliga signed a separation agreement seeking to separate the house at issue from the Tilo family’s communal *216land. Ponausuia, who currently resides in the house, intervened claiming an interest in the house at issue. We find the separation agreement is invalid because Eliga was not authorized to execute it as the house at issue is actually on the Liufau family’s communal land.
Under A.S.C.A. § 37.1502(a), “[t]he senior matai in charge of communal lands belonging to his family” has the authority to enter into separation agreements. See also A.S.C.A. § 37.1503 (“[T]he agreement shall be executed on behalf of the owners of the land by the matai of the family.”). Since the house is located on the Liufau family land, the senior matai in charge of these lands was the appropriate person to execute the separation agreement. However, Eliga, the registered Tilo titleholder, signed the agreement. According to Tanielu, Eliga, as the second ranking matai, could not sign the separation agreement unless the Liufau title was vacant and a meeting was held to approve the agreement. Neither of these conditions was met as of the time of signing of the separation agreement at issue. Contrary to the assertions made in the Palyos’ closing argument, at the time of the execution of the agreement, Filipo held the Liufau title. Moreover, there is no evidence that a meeting was ever held to discuss and approve the agreement. Because Eliga was not entitled to enter into this transaction regarding Liufau family lands, the separation agreement between the Palyos and Eliga is invalid.4
The Palyos also seek unpaid rent payments from Mark and Ponausuia for their use of the house. Mark is not a party to this case and therefore, the Palyos may not recover against him. In any event, the Palyos purported to lease the house to Mark prior to a determination regarding the separation agreement. The Palyos, absent a valid separation agreement or any other authority, do not have a valid lease with Mark. Fagasoaia v. Fanene, 17 A.S.R.2d 91, 94 (Land & Titles Div. 1990) (finding no lease existed when “[t]he people who signed the documents purporting to create various contract and/or property rights in these buildings had no authority to do so.”).
Likewise, the Palyos cannot obtain rental payments from Ponausuia. Without a valid separation agreement, the house is simply not the Palyos to lease. Although Ponausuia’s occupancy of the house seems grossly unfair, this issue is not for us to decide. This decision is presently best left to Tanielu as the Liufau titleholder. In deciding how to allocate the house at issue, we encourage Tanielu to take into account the history of the house and note that the house has been occupied by Lafoaina and Ponausuia’s family for many years. We also encourage Tanielu to consider the time, effort and expense the Palyos have devoted to *217remodeling the house. Should Tanielu decide not to allow the Palyos to live in the house, we strongly encourage him to offer them compensation for the improvements they have made on the house.5
As a final matter, the Palyos claim the house contains $10,000 worth of furniture and furnishings, which they contributed to the house after the remodeling. If Tanielu does not allow the Palyos to occupy the house, the Palyos are entitled to remove the furniture and furnishings and any of their other removable personal property from the house. See Leomiti v. Pu'efua, 27 A.S.R.2d 150, 154 (Land & Titles Div. 1995).
Order
1. The July 8, 1992 separation agreement entered into between Eliga Tilo and the Palyos is null and void.
2. The Palyos are not entitled to any rental payments from Ponausuia or Mark.
3. The Palyos are entitled to remove any of their furniture, furnishings, and other removable personal property from the house.
It is so ordered.
We take judicial notice, on our own motion, of the Territorial Registrar’s matai title register for Aua, as the official public record of information relevant to the issues in this case.
The Palyos and Ponausuia claim that the decision in Liufau v. Siautafa, *214LT No. 8-76, aff’d AP No. 3-79, held that the land at issue is the Liufau family’s communal land, with res judicata impact on the present case. We would normally take judicial notice of this case to determine its bearing, if any, on the case at hand. However, neither the trial court’s decision nor the appellate court’s decision is present in the disrupted, and perhaps looted, case files. We cannot, therefore, make use of the LT No. 8-76 and AP No. 3-79 decisions for purposes of determining the present case. It does not matter, however, in light of the stipulation, joined by all parties, during the trial proceedings on August 15,2003.
We take judicial notice of Filipo’s death certificate.
We need not decide whether the agreement is also invalid because it described the land as “Amouto” rather than “Mapu.”
Any attempt by the Palyos to recover the value of the improvements to the house would be against the Liufau family. However, since no one from the Liufau family is a party to this action, we decline to express any opinion on the merits of such an action. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486853/ | OPINION AND ORDER
The original Plaintiff Olo Letuli (“Letuli”)1 commenced this action to recover damages for multiple past trespasses and to permanently enjoin future trespasses across a road he alleges to be within his registered individually owned land (“Letuli land”) in Fogagogo, American Samoa. Defendants Maria Leituala (“Leituala”), Peter Gebauer (“Peter”), M & N Inc. (“MNI”), Pauline Gebauer (“Pauline”), Mapu Jamias (“Mapu”), and Iliganoa Sogialo (“Iliganoa”) answered, alleging that the road is open to public use, but is actually on or at least partially on land originally registered as the “family land of Leituala Maria” (“Leituala land”). MNI, Pauline, Mapu, and Iliganoa also counterclaimed against Letuli for damages for lost income due to Letuli’s actions delaying the opening of their business on Leituala land. The ultimate issue is the location of the *220original boundary between the Letuli land and the Leituala land.
Trial was held on January 16,17, 22, and 30, and February 5, 2003. The principal individual parties and both counsel were present on these trial days. The Court viewed the land at issue in the presence of these parties and both counsel on January 22, 2003. Due to Letuli’s illness, however, a date to take his rebuttal testimony and conclude the trial was postponed. The parties eventually resolved this impasse by filing Letuli’s affidavit in lieu of his personal presence. Counsel also agreed to submit written final arguments, and the Court established a schedule for this purpose.
Findings of Fact
The Letuli land is located immediately to the south of the Leituala land in Fogagogo, American Samoa. Both parcels are situated a relatively short distance east of the southerly end of the Pago Pago International Airport and have ocean shoreline boundaries at their east end. The common boundary between the parcels is the principal issue to resolve. The location of the boundary will in turn determine whether the road at issue is located within the Letuli land or the Leituala land, or partially within each parcel, and the consequential judicial relief flowing from the road’s location. Though the family relationship does not alter these determinations, we note that Letuli and Leituala are blood relations.
Letuli lived on the Letuli land with other family members from approximately 1926 until he pursued a career outside the Territory in the entertainment field near the beginning of the World War II era. He returned around 1962 and lived on the same land. In November 1962, Letuli had the Letuli land surveyed, totaling approximately 44.32 acres. On March 26, 1971, he offered to register the surveyed Letuli land as his individually owned land in 1971. The offer was met by several objections. Ultimately, however, on December 1, 1972, this Court determined that the Letuli land was Letuli’s individually owned land and ordered its registration as such.
In May 1971, Suapilimai T. (“Suapilimai”), on Leituala’s behalf, had the Leituala land surveyed, totaling approximately 5.933 acres (“the Leituala land”). On May 11, 1971, Suapilimai offered to register the Leituala land. On August 14, 1971, after completion of the registration process, the Leituala land was registered as the “family land of Leituala Maria.” Despite the “family land” characterization of the registrant in the certificate of registration, the evidence clearly shows, at least for purposes of this action, that the registration was intended to be for Leituala as her individually owned land. The history of the Leituala land before registration was not developed in the evidence, but apparently the area was unoccupied up to that event. Three subsequent transactions *221affecting the Leituala land are particularly relevant to the present controversy.
The first transaction was a lease. On April 28, 1993, Leituala leased approximately 2.2 acres of the Leituala land to Peter for a term of 99 years, “commencing on May 1, 1993, and ending on April 31, 2092” (“the leased land”). The rent was initially $100.00 per month, but was increased to $500.00 per month for the remainder of the term upon any commercial use of the leased land. The leased land is situated at or near the east end of the Leituala land. The survey attached to the lease shows that approximately 95.82 feet of the southern boundary of the leased land at the southwest comer abuts the road at issue. This comer area of the leased land is near the point where Letuli maintains a gate across the road and a guardhouse, and the road turns soutward towards Letuli’s home on the Letuli land.
Peter and Iliganoa were a married couple in 1993. Pauline is their daughter. They divorced on December 6, 1996, and Peter’s leasehold was awarded to Iliganoa in trust for the benefit of their three children as part of the division of their marital property.2 After the divorce, Iliganoa, Mapu and Pauline (together “the three owners”) organized and own MNI, which now conducts the business known as the Maliu Mai Beach Resort on the leased land. MNI and the three owners want to have customers and others enter and leave the Beach Resort from the road at issue immediately west of the gate and guardhouse. In addition to the main structure of the Beach Resort, MNI also constmcted four small Samoan style houses or fales as part of the Resort facilities immediately north of where Leituala, Iliganoa, Mapu and Pauline believe to be the location of the southern boundary of the leased land and the Leituala land in this area.
The Beach Resort operation is the principal catalyst of the present controversy between the parties. Letuli disliked the existence of a nightclub in this area in general, and the noise emanating from and late-hour operations of the club in particular. He also claims that the four fales, or portions of them, are on the Letuli land. He therefore vigorously opposed MNI’s variance application submitted to the Zoning Board of American Samoa on September 2, 1999. Eventually, by a decision issued on October 4, 2001, the Zoning Board gave final approval of the variance for a three-year period, with certain conditions. The conditions pertained to parking facilities, midnight closure, security for patrons and neighbors, proper sewage disposal, no use of strobe lights, no traffic access to the business premises across the road at issue, *222no noise audible at Letuli’s residence, and compliance with all applicable laws. Not entirely satisfied with the situation, Letuli brought this action on October 26, 2001, to address his continuing concerns. He wants the road declared to be his private road and access to the Beach Resort over it permanently enjoined. He also wants the fales entirely removed from the Letuli land. On the other hand, MNI and the three owners seek public access to the Resort across the road and lost income caused by the substantial delay in opening the Beach Resort as a result of the Zoning Board proceedings.
The second transaction was a conveyance. Also on April 28, 1993, Leituala conveyed approximately 1.404 acres of the Leituala land to Peter and his heirs (“conveyance area A”). The conveyance was registered as Peter’s individually owned land on May 19, 1993. The survey attached to the deed shows that conveyed parcel A is situated approximately 148.26 feet west of Peter’s leased land and abuts the road at issue for approximately 90.41 feet. Conveyance area A was awarded to Iliganoa in her divorce from Peter.
The third transaction was also a conveyance. Peter had acquired substantial portions of the Leituala land between the leased land and conveyance area A. On December 20, 1996, he sold approximately 0.403 acres of this area to Lisa Malae Theno and her heirs (“conveyance area B”).3 The survey attached to the deed shows that conveyance area B abuts the road at issue for approximately 136.76 feet from the leased land, leaving a strip approximately 12 feet wide between conveyance area A and conveyance area B to allow access from the road at issue to the area north of conveyance area B.4 Again, title to this area immediately north of conveyance area B was formerly in Peter’s name and was transferred to Iliganoa by the divorce decree. Unlike the silence in the deed of conveyance area A, the deed of conveyance area B included, without specificity however, “all the tenements, appurtenances thereunto belonging,” and the attached survey shows the letters “R.O. W.” marked on the road at issue, meaning “right of way.”
The road at issue mns in an east-west direction for approximately 800 feet. It essentially enables access to the ocean shoreline areas of both the *223Letuli land and the Leituala land. It was once a branch of a footpath system extending from Vaitogi at the westerly end to the Fogagogo area and then to and beyond the present Pago Pago International Airport area at the easterly end. The path system originated many, many years ago, long before vehicles appeared in American Samoa. It certainly existed long before and during the time Letuli first lived on the Letuli land.
Eventually, after vehicles were introduced, a road system began to be constructed in this part of the Territory. The road at issue is shown on Letuli’s 1962 survey. The present Pago Pago International Airport was first developed in late 1950s and early 1960s. A road, now commonly known as the airport road, was built from the airport terminal area westward to Ili'ili and beyond. Another road off the airport road towards and around the westerly end of the airport was also constructed and became connected with the road at issue. It also extended beyond this junction in a northerly direction, more or less parallel with the runway, for a short distance to allow access to the public sewage treatment plant. This road extension also enables access to private land in this immediate area, including the Leituala land, and is presently used as the primary means of reaching the Maliu Mai Beach Resort.
Letuli was instrumental in promoting development, including eventual paving, of the road to and around the westerly end of the airport. He also improved the road at issue for vehicular traffic in the 1960s and has since maintained and paved it. The extension of the road beyond the junction with the road at issue to the sewage treatment plant and to the Leituala land and other private land is still not paved.
The qualified, testifying professional surveyors cannot pinpoint the location of the boundary between the Letuli land and the Leituala land. The boundary is clearly near or on the road at issue. The two parcels and surrounding areas, including both the airport property and several other private properties, have been extensively surveyed. The surveyors agree that these various surveys have technical interrelationships for survey purposes. They also agree that the various surveys contain significant, presently irreconcilable errors that make accurate identification of the correct metes and bounds of the original boundaiy impossible.
Having the survey problems in mind, the testifying surveyors opined that the boundary may be entirely within the present road at issue. Pioneer roads, as the road at issue originally was, are readily subject to diversions in course due to common usage, weather influences, or other moderating circumstances, and likely occurred to some extent to this road. Thus, the surveyors also opined that the boundary could have been either entirely on the north or Leituala side, or on the south or Letuli side, or partially on either or both sides, of the present road. Looking to the original survey drawings of the Letuli land and the *224Leituala land, it appears that the original surveyors intended to locate the boundary within or partially along the northern edge of the east-west stretch of the road as it existed in 1962 and 1971. In sum, the expert surveyors’ testimony does not of itself provide a definitive basis to locate the actual original boundary.
There are, however, several significant landmarks along the road at issue to also take into account. First, there are rock walls for extending distances along the north and south sides of the road at issue. Letuli installed and paid for these roadside walls, on the south side around 1968 and on the north side around 1980, when the housing utilized by the government was built. Second, an older north-side rock wall (“older wall”) and hedges still exist just north of a portion of the north roadside wall installed by Letuli. Finally, two coconut tree stumps and three fence pipes line up, more or less, along the portion of the road at issue adjacent to conveyance area A and conveyance area B.
The roadside walls, hedges, coconut stumps, and fence pipes fail to indicate where on the road at issue the boundary lies. The placement of the most significant landmarks, the roadside walls and hedges, occurred after the division of the land and the original surveyors’ work. The landowners could not place standard landmarks, such as walls, hedges, fence pipes, and coconut trees, on the road to protect their privacy and demarcate the actual land boundary. In order to keep the road useable, they had to put these landmarks on one side of the road or the other. In sum, the landmarks along the road do not of themselves provide a definitive basis to locate the actual original boundary.
Thus, even with possible movement, the road itself serves as the best landmark to indicate the boundary location. Around the time of the 1962 survey and before either party’s registration, the road’s position stabilized. In the 1960s, Letuli improved the road to accommodate for the vehicular traffic. Subsequent landmarks around the road, such as the south roadside wall, the older wall, and hedges, further fixed the road in its current position.
In closing our factual findings, we note one more relevant landmark. There is a rock wall (“fale wall”) immediately south of the four fales built by MNI and the three owners. Letuli had the fale wall erected at his cost in the early 1990s. The fale wall was constructed along a line of prior existing luatalotalo plants. Letuli claims, however, that the construction crew misunderstood or disregarded his instructions and located the fale wall south of the actual boundary of the Letuli land in this area, which induced the fale encroachments on his land.
*225Legal Analysis and Conclusions
I. Location of Boundary Along the Road
The location of a plot’s boundaries is controlled by the intention of the parties that divided the land at the time of the division. 12 Am. Jur. 2d Boundaries § 2 (1997). When determining the correct boundaries of land parcels, we may consider different surveys of the land, monuments referenced by the surveys, physical landmarks, direction and distance, and overall area. See, e.g., Huff v. Brown, 23 A.S.R.2d 115 (Land & Titles Div. 1993). We will judicially determine the location of a boundary line where the relevant surveys are inconsistent or conflicting and cannot be explained by available evidence. See Gurr v. Scratch, 28 A.S.R.2d 15, 17 (Land & Titles Div. 1995).
We fairly and reasonably determine the common boundary between the Letuli land and the Leituala land to be along the center of the road at issue. Placing the boundary down the center of the road is a reasonable approximation of where the original surveyors located the boundary when the other landmarks do not conclusively show the boundary location. See Gurr, 28 A.S.R.2d at 17-18. Any variance between the true intended boundary and our determined boundary is slight and tolerable. The variance is slight, because the course of the road stabilized before the two land registrations. The variance is tolerable because placing the boundary down the road preserves the intent of Letuli and Leituala. Each landowner registered portions of land running the length of a significant portion of the road, so both sides desired some right to control the road’s usage. Whether owning half or a significant portion less than half of the road, partial ownership of the narrow road effectively gives each party the right to prevent others from using the road.
II. Easements On the Road
An easement or license by estoppel is created when a representation is communicated by a party, and is believed and relied upon by another party. See Foster v. Olotoa, 3 A.S.R. 76, 81 (Trial Div. 1953). The representation creating an easement must be made by verbal statements or conduct; passive acquiescence does not constitute a possible representation creating an easement. Stallman v. Newman, 9 S.W.3d 243, 247 (Tex. Ct. App. 1999).
After registration, both Letuli and Leituala had easements by estoppel to use the portion of the road that he and she did not own. Both individuals registered sections of land running on significant portions of the road, which was substantial enough to be marked on the 1962 survey. Offering to register these portions of road publicly demonstrated intent *226to permanently use the unowned portions of the road, because neither could have intended to divide the road such that, potentially, neither side could use it. Both individuals needed some right to the full road to use it. Thus, each party had an obligation to object not only to dispute the other’s registration offer for part ownership of the road, but to object to the other’s intent to permanently use the road. Failure to assert full ownership of the road at the time of both registrations constitutes affirmative approval by both landowners of a reciprocal easement that allows both landowners to use the road. The two registration offers occurred within two months of each other, which implies a purposeful division, giving further evidence of an easement establishing intent by both parties.
Both landowners reasonably believed in good faith that they could use the road without restriction based on their successful registration and use of the road before and after the registrations occurred. Both landowners relied on having an easement by refraining from protesting when the other used unowned portions of the road for decades. Furthermore, Letuli paved the road and both land owners made substantial improvements on their land relying on accessibility by the road.
We infer from the circumstances of this case that the scope of both Letuli’s and Leituala’s original easement includes access for purposes of the land’s commercial development. The scope of an easement not defined by a grant is limited to uses “as might reasonably be required by nonnal development of the land.” Le'i v. Letuli, 25 A.S.R.2d 33, 36 (App. Div. 1993) (citations omitted). The road has been traditionally open for public access. Letuli and Leituala each own significant portions the road. Letuli used the road for his own nightclub on the Letuli land. Because of this broad easement, we find that that Letuli and Leituala are estopped from denying the other authority to permit use of the road. Letuli cannot prevent Leituala from allowing MNI, Iliganoa, Mapu, Pauline, or Peter use of the road, even to support the traffic from a commercial establishment like Maliu Mai.
Where use of an easement is shared, the costs of repair and maintenance should be equitably distributed among all users proportionately to the approximate usage of each user. Lindhorst, 616 P.2d at 453. Necessary and reasonable repairs must be made so as not to unduly burden the servient tenants. Id.
We note that MNI’s usage of the road in a commercial endeavor will far exceed the useage of others who share the easement. We find it equitable that MNI cover the costs of road maintenance and repair alone to keep the road in such a state of repair so as to not burden the users of the common right of way along the road. Our apportionment of the maintenance responsibility for the road is reasonable. We base our *227decision on each user’s proportionate use. Calculating a percentage formula for repair liability with absolute precision is unnecessary. Lindworst v. Wright, 616 P.2d 450, 453, 455 (Okla. Ct. App. 1980). Also, we make this apportionment in consideration of Letuli’s prior unaided efforts to maintain the road.
III. Events Subsequent to Land Registration
Letuli argues that subsequent to the land registration, the boundary along the disputed road was moved to the north side of the road based on agreement, acquiescence, or estoppel. Letuli’s equitable arguments attempt to bind Leituala and her successors in title or leasehold to a boundary move, because Letuli was allowed to build the north roadside wall, improve the road, and encountered little or no opposition to other assertions of control over the road. Defendants counter, arguing that Letuli never asserted exclusive ownership of the road until the establishment of Maliu Mai, and that, as a successor in title of Leituala, Peter evidenced control over the road by granting a right of way along with the December 20, 1996 land sale. Considering both arguments, we find that the defendants with ownership or use interests in the road have not lost their interests in the road, but have given up their rights to remove the north roadside wall.
Before giving legal effect to land division by agreement, acquiescence, or estoppel, we look for express or implied intent of the landowners involved for the division to serve as the boundary between lands. See Falefia v. Sipili, 1 A.S.R.2d 1, 3-4 (Land & Titles Div. 1988).
Defendant landowners and occupiers never intended to move the boundary on the road and give up the right to use and grant permission to use the road. First, Defendants with an ownership or use interest in the road were obligated to let Letuli improve the commonly used road. When a common right of way is shared, a party should not interfere with the other’s improvements of the right of way. Lindhorst, 616 P.2d at 455. Without a prior agreement between the users of the road, Letuli made such improvements for his own benefit, with benefit going to his neighbors as a collateral effect. Second, Defendants’ continued to use the road and Peter granted an express easement on the road. Third, the north roadside wall serves as a privacy barrier desired by the Defendant landowners and occupiers. The roadside wall augments the privacy barrier that was intended when building the older wall and planting hedges along the road.
While retaining ownership or use rights of the road, Defendants with an ownership or occupant right to land along the road lost their right to have the north roadside wall removed. They acquiesced to the placement of the wall. They made no argument to remove the north roadside wall at *228the time of construction or when arguing this case before us.
IV. Location of Boundary Along the Fales
Though we found no agreement, acquiescence, or estoppel regarding movement of the land boundary line along the road, we find that the boundary line from the disputed road towards the ocean traversing the length of the fale wall has moved. The parties had recognized a boundary that lies alongside where the fale wall is now. Leituala showed approval of this boundary division by not arguing for removal of the fale wall before us and by accepting the lautalotalo plants that antedate the fale wall as landmarks for the boundary. Letuli showed approval of this boundary division by constructing the fale wall along a boundary other than the true boundary and by failing to move it when he thought that it was misplaced. We are forced to assume that the boundary line has moved to a position closely tracing the fale wall on Leituala’s side of the wall.
V. Interference with Business
MNI and the three onwers argue that Letuli tortiously interfered with their Maliu Mai business due to objections Letuli made before various American Samoa Government agencies. While the objections may have caused delay, they do not constitute tortious interference. Among other elements, we require a showing of malice before holding a party liable for interference. 45 AM. Jur. 2d Interference § 7 (1999). Letuli did not act with malice by making rightfiil and legitimate objections to government agencies.
VI. Costs and Fees
Court costs are allowed to the prevailing party as matter of course unless the Court otherwise directs. T.C.R.C.P. 54(d); Pago Petroleum Prod. v. Ye Ahn Moolsoan, Ltd., 29 A.S.R.2d 34, 37 (Trial Div. 1995). Because our holding roughly restores the rights of the parties before the establishment of Maliu Mai, we find that neither side prevailed, so we award no costs to either party on the boundary issue. However, Letuli prevailed in defending against the interference claims. We award Letuli costs incurred concerning the interference claims.
We deny both parties’ requests for attorney’s fees. The general rule is against recovery of attorney’s fees by a party that incurs them in enforcing a claim against another. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28, 41 (Trial Div. 1994). Unless parties contractually agree to pay attorney’s fees, we have awarded attorney’s fees only in instances where required by statute, or where an opposing party has acted wantonly, oppressively, or in bad faith. Fiaui v. Faumuina, 27 A.S.R.2d *22936, 42 (Trial Div. 1994); Samoa v. Gibbens, 3 A.S.R.2d 121, 123 (Trial Div. 1986). Where no legal basis for an award of attorney’s fees has been stated, we have denied a party’s application for such fees. Samoa Products v. Pereira, 3 A.S.R.2d 45, 46 (Trial Div. 1986). The parties have no agreement on payment of attorney’s fees. Neither party has identified a statutory basis for awarding attorney’s fees. As discussed, we find none of Letuli’s actions constitute malicious tortuous interference. Similarly, parties must also pay the fees of their own expert witness surveyors.
Order
1. Boundary
Part of the northern boundary between the Letuli land and the Leituala land is reestablished as a line down the center of the disputed road between the two lands. The other part of the northern boundary now traces the Leituala side of the rock wall south of the fales at issue. A direct, north-south running boundary line connects the two parts of the boundary line. Within the next 120 days, the parties shall have this boundary resurveyed and recorded with the Territorial Registrar. Letuli shall pay half the cost of the resurvey, monumentation, and recordation; Defendants shall equally share the other half of the cost.
2. Easement
The land at issue originally belonging to Letuli is held subject to an easement of successors in title to the land at issue originally belonging to Leituala that allows use of the road at issue. The land at issue originally belonging to Leituala is held subject to an easement of successors in title or leasehold to the land at issue originally belonging to Letuli that allows use of the road at issue.
3. Interference with Business
Letuli is not liable for interference with the business operations of MNI and the three owners’ Maliu Mai Beach Resort. Letuli is entitled to court costs for defending against this claim, to be established with a properly submitted affidavit.
It is so ordered.
Letuli passed away on July 22, 2003. On December 12,2003, pursuant to T.C.R.C.P. 25(a), Pat Letuli, his surviving spouse and as his personal representative, replaced him as the party Plaintiff. References below to Letuli are to include Pat Letuli where contextually required.
We take judicial notice of the divorce action before this Court, DR No. 35-95. The decree, granting Iliganoa a divorce from Peter and providing for division of their property, was entered on December 6, 1996.
The divorce decree awarded the site of Iliganoa and Peter’s marital home, their individually owned land also within the Leituala land, to Iliganoa. The decree specifically authorized sale of their other individually owned land as was necessary to provide funds to pay their marital debts. Any such individually owned land not sold for this purpose was awarded to Iliganoa in trust for the three children of their marriage.
The registration date of the conveyance area B transaction, if it was registered, is not in evidence. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486854/ | ORDER DENYING MOTION FOR RECONSIDERATION OR NEW TRIAL
Plaintiff Michael Pulu (“Michael”) timely objected to the registration of a separation agreement between Defendants Winnie Su'apaia (“Winnie”) and Pulu F. Talalotu (“Pulu”) regarding a house on the Pulu family’s land. Michael also sought recovery from Winnie for the cost of labor and materials he allegedly incurred while working on the house in 1994. We ordered the Territorial Registrar to register the separation agreement and denied Michael’s request for recoveiy. Michael now brings this *231motion for reconsideration or new trial arguing six points of error.1
Standard of Review
The decision whether to grant a motion for a new trial or reconsideration is left to the broad discretion of the trial court. 12 James Wm. Moore et al., Moore’s Federal Practice § 59.13[3][a] (3d ed. 1999). “[A] motion for new trial in a nonjury case should be based on a manifest mistake of fact or error of law; the court should find substantial reasons before setting aside a judgment.” Id.-, see also American Samoa Gov’t v. S. Pac. Island Air Sys., Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995). For the reasons discussed below, we deny Michael’s motion.
Discussion
Michael’s first argument is that we failed to make an explicit finding of fact regarding whether he or his brothers co-owned the home with their father, Dave Pulu (“Dave”). Although we may not have stated it explicitly enough for Michael, our opinion malees clear that we found Dave to be the sole owner of the house after he purchased it from Toe To'oto'o (“Toe”). Pulu v. Pulu, 7 A.S.R.3d 289 (Land & Titles Div. 2003). We see no reason to disturb this finding of fact and reject this argument as grounds for reconsideration or a new trial.
Most of Michael’s other arguments for reconsideration or new trial fail as a result of this finding. For example, Michael’s second argument is *232that we violated A.S.C.A. § 40.0202 regarding the succession of real property because Michael had an interest in his father’s estate, which had not been probated. However, since we found that .Dave owned the house individually and that he gave the house to Winnie prior to his death, Michael had no interest in the house. The house belongs to Winnie, and A.S.C.A. § 40.0202 has no bearing on the house at issue. Thus, Michael’s second argument fails to provide grounds for reconsideration or a new trial.
Michael’s next argument is that the Defendants failed to raise the issue that the house was a gift from Dave as an affinnative defense in their pleadings and, therefore, he was denied due process in responding to this issue.2 Even assuming that Defendants should have raised the gift issue as an affinnative defense, Michael certainly cannot complain now. The issue was thoroughly litigated by both parties without objection at trial and in the closing briefs. See, e.g., 61A Am. Jur. 2d Pleading § 377 (1999); 2 Moore’s Federal Practice § 8.07[3]. Moreover, in their answer, Defendants denied Michael’s allegation in his complaint that “Dave Pulu did not dispose of the subject matter house to Winnie Su'apaia by way of gift, sale or otherwise.” (Defs.’Answer at ¶16.) We reject Michael’s third argument as grounds for reconsideration or a new trial.
Michael’s fourth argument is that the Defendants should be held liable for costs and labor he allegedly incurred in repairing the house. He bases this claim in part on “a pre-existing right of ownership of [his] to the house.” Again, we disagree. Based on the evidence presented, we believe that Dave was the sole owner of the house before he transferred his interest to Winnie. In addition, as we mentioned in our October 20, 2003 Opinion & Order, any recovery of these costs, incurred over nine years ago, should be from Dave not Winnie.3 Pulu, 7 A.S.R.3d at 293. We reject Michael’s fourth argument as grounds for reconsideration or a new trial.
In Michael’s fifth argument, he argues that we erred in refusing to disturb Pulu’s decision to execute the separation agreement. Michael claims that Pulu failed to consult with him and with Toe prior to executing the separation agreement and claims they should have been *233consulted with because they each had an interest in the house. Again, this argument relies on Michael’s assertion that he co-owned the house. We disagree. The house was Dave’s alone, and Dave gave the house to Winnie. We see no reason to disturb Pulu’s decision.
In any event, as we indicated in our Opinion & Order, “[c]ourts will not interfere with the decisions of a sa'o unless they are arbitrary, capricious, illegal, or abusive of discretion.” Malala v. Temu, 11 A.S.R.2d 137, 142 (Land & Titles Div. 1989). We do not believe Pulu’s decision was “arbitrary, capricious, illegal or abusive of discretion.” Id.
Moreover, while we agree with Michael that the sa'o should consult with family members in accordance with family custom, a failure to consult does not alone provide a basis for the Court to invalidate a sa'o’s otherwise legitimate decision. The Fono has provided a statutory scheme regulating separation agreements. A.S.C.A. §§ 37.1501-.06. Nowhere in this statutory scheme is there a requirement that the sa'o consult with the family prior to executing the agreement. See id. We decline to impose such a requirement now. See, e.g., Vaimaona v. Tuitasi, 18 A.S.R.2d 88, 90-93 (App. Div. 1991) (declining to impose a family consultation requirement when a sa'o alienates land because the Fono did not include it in the statutory scheme as a requirement).
Michael’s final argument is that the separation agreement could not transfer title because a previous separation agreement already existed on the house. We made clear in our opinion that a new separation agreement should be registered due to the fact that Toe’s original separation agreement could not be located. Pulu, 7 A.S.R.3d at 290. This does not change the fact that Dave gave the house to Winnie but merely provides Winnie with some record protection of her ownership. This argument fails as grounds for reconsideration or a new trial. All of Michael’s arguments fall far short of the standard for reconsideration or a new trial.
Order
Michael’s motion for reconsideration or new trial is denied.
It is so ordered.
Michael claims he is bringing his motion under T.C.R.C.P. 60(b) but styles it as a “Motion for Reconsideration and/or New Trial,” which indicates it is actually a Rule 59 motion. Moreover, the motion was brought within the time limit required by T.C.R.C.P. 59. The distinction between these two rules is important:
One of the major differences between new trial motions and Rule 60(b) motions is that a motion for a new trial suspends the finality of the judgment and the time for the filing of an appeal from the judgment. In contrast, filing of a timely Rule 60(b) motion does not affect the finality of a judgment or suspend its operation. Similarly, a timely Rule 60(b) motion does not toll the running of the time for filing an appeal.
6 James Wm. Moore et al., Moore’s Federal Practice § 60.03[3] (3d ed. 1999). Since Michael’s motion was brought within the 10 days required under T.C.R.C.P. 59, we will consider it under this rule rather than under Rule 60(b). See Helm v. Resolution Trust Corp., 43 F.3d 1163, 1166-67 (7th Cir. 1995) (using the time of filing to control under which rule the motion is considered in order to “reduce the confusion often caused when movants haphazardly title and characterize motions”).
Michael includes in the heading for this argument (but does not argue in the text), that he was “unduly prejudiced by the surprise admission of hearsay evidence.” This is just plain wrong. We relied on Winnie’s impressions and testimony regarding Dave’s actions, all non-hearsay evidence, in reaching our conclusions. This is clearly evident in our opinion. Pulu, 7 A.S.R.3d at 291-292.
For this reason, whether Michael had sufficient evidence to establish his expenses is immaterial. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486855/ | ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND FOR A NEW TRIAL
Procedural History
Telesia Fe'a Fíame (“Fíame”), as a member and on behalf of the Fe'a family, objected to the registration of land at issue as Ioane Fe'afe'aga Ene’s individual land. We consolidated their objections with other actions concerning the same tract of land on March 14, 1995. Our opinion and order deciding the first trial phase of these consolidated actions was entered on February 5, 1999. The opinion and order holds that the land within the Ioane Fe'a resurvey was the individually owned land of Ioane Fe'a’s estate, subject to the rights of Ioane Fe'a’s successors in interest. On November 2, 1999, we denied a motion made by Timu Levale, on behalf of the Timu Family, for reconsideration or new trial. In doing so, we found that motions for reconsideration, relief, or new trial were proper after the first trial phase, because we had decided an ultimate issue. See Pita v. Garett, 3 A.S.R.3d 213, 216-217 (Land & Titles Div. 1999). The Appellate Division affirmed the decision from the first trial phase on October 3, 2002. Subsequently, pursuant to T.C.R.C.P. 60(b), Fiame moved for relief from judgment of the first trial phase or for a new trial. On October 30, 2003, a hearing was held on this motion, attended by counsels Maez, Wagner, Ashley, Lutu, and Ainuu. For the reasons stated below, we deny Fiame’s motion.
Discussion
T.C.R.C.P. 60(b) allows parties to seek relief from judgments. Certain specific grounds for relief must be made within one year from the entry of judgment. T.C.R.C.P. 60(b). These specific grounds are: (1) mistake or excusable neglect; (2) newly discovered evidence; and (3) fraud or misrepresentation. Id. Relief motions based on grounds not specifically enumerated in T.C.R.C.P. 60(b) fall under a catch-all provision and can be made over one year from when the judgment was entered, but must still be made within a reasonable time. T.C.R.C.P. *23860(b)(6). If an argument falls under one of T.C.R.C.P. 60(b)’s specific grounds, it will not be considered under the catch-all provision. See Rocha v. Rocha, 24 A.S.R.2d 55, 58 (Trial Div. 1993); see also Pioneer Inv. v. Brunswick, 507 U.S. 380, 393 (1993). Appellate court leave is not required before a trial court may reopen and consider a T.C.R.C.P. 60(b) motion for a case that has been reviewed on appeal. See, e.g., Standard Oil Co. of California v. U.S, 429 U.S. 17, 17 (1976).
The mistake or excusable neglect of the party seeking relief will normally be categorized under T.C.R.C.P. 60(b)(1). See, e.g., Andrulonis v. U.S., 26 F.3d 1224, 1235 (2d Cir. 1994); 12 JAMES WM. Moore et al., Moore’s Federal Practice § 60.41 [l][c][i] (3d ed. 1999). Furthermore, willful conduct or neglect of a party seeking relief does not constitute a reason for granting relief from judgment. Id. For example, as an unexcused omission, an attorney’s unexplained failure to act will not normally be considered grounds for relief from judgment, even if the attorney has withdrawn from the case before a critical deadline. See, e.g., U.S. v. One Lot of $25,721.00 in Currency, 938 F.2d 1417, 1421 (1st Cir. 1991).
Fiame filed her motion for relief over four years after the first trial phase judgment and after the appeal had been resolved. We deny her motion because all of her arguments fall into the specific grounds for relief that must be made within one year from the entry of judgment. Even if we contorted any of Fiame’s arguments into the category of T.C.R.C.P. 60(b)(6), her motion has not been made in a reasonable time. This dispute should have some degree of finality after many years of litigation, a motion for reconsideration or new trial, and an appellate review.
Fiame argues that she had no notice of the proceedings in this case and, having never withdrawn her objection, that the Court failed to consider her arguments during the first trial phase. She asserts that she never retained the services of Tautai A.F. Faalevao (“Faalevao”), so that notices sent to him were ineffective to notify her. We categorize this argument as that of mistake or excusable neglect, because the root cause of Fiame’s failure to receive notice was her or Faalevao’s neglect. After meeting with Fiame, Faalevao represented to the Court that he was Fiame’s attorney. Faalevao filed a complaint for her on November 7, 1996. The complaint unequivocally stated, “Comes Telesia Fe'a Fiame and submits this claim on behalf of the Fe'a Family of Iliili, American Samoa, and herself . . . .” Faalevao wrote and signed the complaint. Faalevao neglected to withdraw from the case. As a result, subsequent notices for Fiame were sent to Faalevao. Fiame’s attorney of record received notice and inexcusably neglected to respond. We cannot grant relief from judgment more than one year after the entry of judgment on grounds of mistake or excusable neglect. T.C.R.C.P. 60(b)(1).
*239If, as Faime argues, Faalevao was not her attorney and she never received notice of the hearings, she would not have lost her day in court from the lack of notice. She would have lost her day in court as a result of her own neglect. Without Faalevao’s filing, she would have effectively withdrawn her objection. Fiame received a summons regarding her objection on October 18, 1996. The summons gave her notice that if she failed to move forward with a complaint, then her objection would be dismissed. If Faalevao never spoke for her, then she neglected to file a complaint and chose not to participate in the litigation. Her effective withdrawal is confirmed by her neglecting to inquire into the case for almost seven years after receiving her summons. She accidentally discovered the progress of the case in September of 2003. At this late date, we cannot grant relief from judgment on these grounds of her mistake or excusable neglect. T.C.R.C.P. 60(b)(1).
Fiame argues that her family never received notice of the first hearing and never withdrew their objection. This argument also concerns T.C.R.C.P. 60(b)(1) grounds of mistake or excusable neglect. Though Faalevo joined the public defender’s office, neither the Fe'a Family nor Faalevo notified the Court of an attorney change. The Fe'a Family did not hire another attorney to pursue their complaint after Faalevo notified them that he was leaving private practice. They offer no excuse for neglecting to do so. Notice of the hearing was sent to Faalevao, their attomey of record. Any failure of notice is directly attributable to the neglect of the Fe'a Family and Faalevo. T.C.R.C.P. 60(b)(1) relief on this basis is inappropriate.
Fiame also argues that fraudulent testimony was given to the Court and that she has new evidence not presented at the hearing. These arguments give no force to her 60(b) motion. The one-year deadline for bringing a motion on these grounds has passed. See T.C.R.C.P. 60(b)(2)-(3). The fraud that Fiame alleges is not “fraud on the court.” It is therefore not the type of fraud that constitutes a ground for relief under T.C.R.C.P. 60(b). Rocha, 24 A.S.R.2d at 58. Furthermore, the representations of the opposing parties at the hearing did not prevent Fiame and her family from appearing at the hearing. Had Fiame and her family pursued their objections pro se or with hired attorneys, they could have responded to the alleged fraud and brought their evidence before the Court at a reasonable time.
Accordingly, the motion for relief from judgment and a new trial is not well taken and should be denied.
*240Order
Objector Telesia Fe'a Fiame’s motion for relief from judgment and for a new trial is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486856/ | ORDER REOPENING JURISDICTION
This matter was referred to the Land and Titles Division from the Territorial Registrar’s Office following claimant Lele and Teofilo Mageos’ (the “Mageos”) attempts to separate a proposed structure from *241certain Tufaga family land. The senior matai, Tufaga Sapati (“Tufaga”), has sided with the objector, Vaatau Tufaga Neria (“Neria”) taking the position that the separation agreement presented by the Mageos for his . signature was in fact obtained through the deceit of Lele Mageo. Tufaga seeks eviction of the Mageos.
The matter has gone to trial. However, it was only on final written arguments, given after the evidentiary hearing, that the Mageos have attempted to inject the issue of jurisdiction, arguing that a claimed leasehold from Tufaga to the Mageos should have been put before the Secretary of Samoan Affairs at the A.S.C.A. § 43.0302 hearings held in this matter. Because final arguments in this matter were directed to be in writing and filed simultaneously, and since the issue of jurisdiction was never before raised on the pleadings or by pretrial motion, neither Tufaga nor Neria have therefore had the opportunity to address jurisdiction.
Under A.S.C.A. § 3.0242, we have the procedural flexibility “to act in each case in such manner as [the court] considers to be most consistent with natural justice and convenience.” We deemed it consistent with the principles of natural justice and convenience that both Tufaga and Neria be afforded the opportunity to be heard on this issue. Moreover, the Territorial Registrar was off-island at the time of trial and the court had reserved the option of keeping the record open to call the Registrar upon her return to the Territory. The court did not invoke this option at the close of the parties’ evidence. However, in light of the jurisdiction issue now raised by the claimants at the close of final arguments, we deem it necessary to reopen the record on the issue of the claimed leasehold estate.
Accordingly, we order the following: (1) Tufaga and Neria shall have 20 days to brief the court on the issue of jurisdiction raised by the Mageos on final arguments. (2) The Territorial Registrar is ordered to appear before this court on April 16, 2004, to testify in the above-entitled matter; and to bring with her all records in her office pertaining to the Lease between Tufaga and the Mageos, pertaining to land “Lalolama,” recorded in LA-02 at page 79; together with any and all records, minutes, or transcriptions of proceedings before the Land Commission on the said leasehold; as well as any and all documented recommendations, transmission letter(s) to the Governor on the said leasehold.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486859/ | OPINION & ORDER
The dispute here concerns the location of the late Defendant Seufale Seiuli’s house on land located in Faleniu village, which Alai'asa claims to be “Toa” and the subject of previous litigation before this court in Moea'i v. Te'o, 8 A.S.R.2d 85 (Land & Titles Div. 1988); aff’d sub nom. Moea'i v. Alai'a, 12 A.S.R.2d 91 (App. Div. 1989).1 Alai'asa claims that: 1) Defendant Seiuli’s house lies within “Toa” as awarded to the Alai'asa family in Moea'i v. Te'o, supra; and 2) Seiuli’s claim to entitlement is derivative based upon the competing title claims of Moea'i and/or Te'o, whose claims were resolved in favor of Alai'asa by the Moea'i v. Te'o court.
With regard to Alai'asa’s contention that Seiuli’s claim is derivative, we find that Seiuli’s wife had admitted as much in her deposition taken July 2, 2001. Mrs. Seiuli had deposed that her family was brought onto the *252land in question by Moea'i in 1970. (Suiuli Dep. at 4.) In her deposition, Mrs. Seiuli also deposed that the land she was living on is Moea'i family land known as “Vaivai.” {Id. at 11.) At trial, the testimony of Defendant’s daughter, Paileulu Seiuli, was in accord.
In essence, the issue before us is simply to determine whether defendant’s house lies within Moea'i’s land known as “Vaivai” or within plaintiffs land “Toa” After seemingly interminable delays, for one reason or another, including aborted settlement attempts, this matter was finally tried. Melco Aiumu, a qualified surveyor, attended and testified.
Based on the evidence presented at trial, we find that defendant Seufale Seiuli’s house is in fact located within the Alai'asa family’s communal land Toa, and not within the Moea'i family’s land Vaivai. Wherefore, Plaintiff Alai'asa’s prayer for eviction will, therefore, be granted.
Defendant’s counsel at final argument raised “unjust enrichment,” seeking compensation for the value of the house. Unfortunately, no evidence whatsoever was presented in this regard. Because this matter has been outstanding since 1992, after first being closed and then reopened, we are not inclined to again reopen the record for purposes of inquiry into the present day value of Defendant’s house. Notwithstanding, we will allow Defendant’s representative a nominal award in the amount of $1.00 and permit his family and assigns to remove Defendant’s house from Plaintiffs land within the next 60 days. However, failure to so remove the structure within 60 days from date hereof will be deemed as an abandonment in favor of the situs and Plaintiff may thereafter enter and take possession
Judgment is rendered accordingly.
It is so ordered.
In this matter, an area of land known as “Toa” was awarded to the Alai'asa’s family, while other portions of immediately adjacent lands were awarded to the Moea'i family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486860/ | ORDER ON MOTIONS TO DISMISS
We have cross motions for dismissal. Counter-claimant Tualauulu E. Toia (“Toia”) moves to dismiss claimant Serna Faleafaga’s (“Faleafaga”) petition, on the grounds that she had offered the family’s matai title for registration before the family had even met to select a new matai. See A.S.C.A. § 1.0405(b); In re Matai Title “Taliaaueafe,” 3 A.S.R.3d 225 (Trial Div. 1999) (Order on Motion to Dismiss).
Faleafaga responded with her own motion to dismiss, arguing that Toia’s petition and counterclaim was non-responsive to her succession claim to the “Faleafaga” matai title, because Toia’s counterclaim refers to an “Aofaga” matai title.
Dealing first with Faleafaga’s motion to dismiss, we note that her petition adverts to the “Faleafaga/Aofaga” matai title as the subject of her succession claim. At the same time, the weight of the evidence presented suggests that the labels “Faleafaga” and “Aofaga” have in the past been interchangeable; and that they reference the same matai title in Amouli. Faleafaga’s motion is unfounded and, therefore, denied.
*254On Toia’s motion to dismiss, we find that while certain members of the Faleafaga/Aofaga family had met to discuss the selection of a matai, those gatherings comprised only of Faleafaga’s immediate family; more specifically certain members of her clan. This hardly qualifies as a family meeting since Tuiasina Laumoli testified that the family is multiclan.
We further find that the alleged family meetings were not properly convened to ensure that all clans had adequate notice, in accordance with the customs of the Faleafaga/Aofaga family. Under these circumstances, where the family has not met to consider the issue of matai succession, there can be no “disputed claim,” properly before us. A.S.C.A. § 1.0409. See In re Matai Title “Taliaaueafe,” 3 A.S.R.3d at 225. As we previously noted:
Unless and until a family has had a meaningful opportunity to thoroughly confront the issue of matai succession and to decide for itself whether or not it can select a new titleholder, the Lands and Titles Division really has no business entertaining matai title cases.
Id. at 228-29. Toia’s motion to dismiss is granted, but without prejudice, so that the matter of selecting the next titleholder can be taken up by all the family’s clans.
Accordingly, all succession petitions currently before the Territorial Registrar pertaining to the matai title Faleafaga/Aofaga from the village of Amouli are dismissed without prejudice.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486861/ | ORDER APPOINTING SURVEYOR
The Court’s opinion and order in these consolidated actions was entered on October 1, 2003. The decision necessarily left outstanding certain survey issues. The parties were given 30 days to agree upon a surveyor, division of costs, and other necessary conditions for the additional survey work. In due course, we were advised that the parties were unable to reach an agreement on these matters. We therefore scheduled and, on March 25, 2004, held a hearing to appoint an appraiser. All counsel were present.
The basic issue determined by the October 1 decision was the location of a parcel of land — adjudicated and divided into three parts, respectively owned as communal land by the Toluao, Tuana'itau, and Leomiti families, in LT No. 40-80 — which was necessitated by faulty original survey work. We held that the parcel designated as Plot B in the October 1 decision was the land actually adjudicated in the earlier case. We could not precisely divide Plot B into the three adjudicated parcels— approximately two acres owned by the Toluao family, approximately six acres owned by the Tuana'itau family, and the remaining area, approximately five and one-half acres, owned by the Leomiti family— without additional survey of the internal boundaries based on the surveyed perimeter of Plot B. We therefore left the division open pending completion of this additional survey work.
Likewise, we were unable to resolve on the evidence presented potentially conflicting overlaps at the northern end of the Leomiti portion of Plot B with the registered surveys of the neighboring Moananu/Thompson 2.803 acres and 0.657 of an acre of land individually owned by Lefotu Tuilesu (“Lefotu”) without additional survey work. We therefore also left this determination open pending completion of this work. Lefotu is not a party to these actions. Now, he is a necessary party for the reasons specifically set forth in T.C.R.C.P. 19(a), that is, without Lefotu’s joinder: (a) complete relief cannot be *257accorded with only the present parties; and (b) his ability to protect his land interest is practically impaired. Lefotu will therefore be joined at a necessary parly to adjudicate the open issues.
The licensed surveyor most familiar with the entire area and the issues involved in these actions is Lawrence P. French (“French”), the surveyor who established the location of Plot B. Although French was employed by the Leomiti family to support its claims, his professionalism as a surveyor will override any advocacy role he undertook in this capacity. He is quite capable of neutrally and objectively performing the post-trial surveying required by the Court, and we folly expect him to expertly provide the additional information we need to determine the open issues.
Order
1. Lefotu is joined as a necessary party to the foil adjudication of any open issues. The Marshal of the Court shall deliver personal service of a copy of this order on him.
2. French is appointed to survey, based on Plot B’s outer boundaries, the actual boundaries within Plot B between the three internal parcels owned by the Toluao, Tauana'itau, and Leomiti families, sized in accordance with the Court’s decision in LT No. 40-80, and at the northern end of the Leomiti parcel the actual external boundaries, whether or not the lands overlap, of the Leomiti parcel and the registered Moananu/Thompson 2.803 acre and Lefotu 0.657 of an acre parcels. French shall complete this additional survey work within 180 days of the entry of this order, unless the Court grants a requested extension of this deadline.
3. Upon receiving French’s additional survey work, the Court will schedule a hearing to establish the further proceedings that may be necessary to resolve any open issues then revealed.
4. French shall submit to the Court a statement of his professional fees and expenses incurred in carrying out this order. The statement shall include a breakdown of the fees and expenses between: (a) the survey of the internal boundaries of the three parcels within Plot B; and (b) the survey of boundaries of the Leomiti parcel and the adjoining Moananu/Thompson and Lefotu parcels at the northern end of the Leomiti parcel. The Court will then approve the amount of the fees and costs to be paid and equitably apportion payment of the approved amount among the parties after a hearing on the issue.
5. All parties shall folly cooperate with French in his surveying endeavors. They, their officers, agents, servants, employees, and attorneys, and those persons in active concert and/or participation with them, including all members of their respective families, are enjoined *258from preventing or in any other manner interfering with French while he performs in compliance with this order his surveying duties, whether in the field or elsewhere.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486862/ | PRELIMINARY INJUNCTION AND ORDER GRANTING MOTION TO INTERVENE
I. Preliminary Injunction Application
Plaintiffs’ application for a preliminary injunction was heard on March 31 and April 2, 2004. On April 12, 2004, the Court inspected the land area at issue, located on the mountain and slopes below, north of the village proper of Malaeloa, American Samoa, and named “Taloamamao” by Plaintiffs. Both counsel were present throughout the hearing and during the inspection.
We find under the evidence that there are serious issues regarding ownership of the land at issue that require further in-depth consideration and provide a reasonable expectation of Plaintiffs’ ultimate success. We therefore conclude, on the basis of this finding, that there is a substantial likelihood that Plaintiffs will prevail at trial on the merits and a permanent injunction will be issued against Defendants. A.S.C.A. § 43.13010(1); see Samoa Aviation Inc. v. Bendall, 28 A.S.R.2d 101, 103-104 (Trial Div. 1995).
We also find that cinder excavation from the disputed land by and under the direction of Defendants has caused, and if continued in the immediate future without restraint will further cause, permanent and irreplaceable damage to the disputed land, and possibly to adjacent land down the mountainside, to Plaintiffs’ serious detriment. We therefore conclude that great or irreparable injury will result to Plaintiffs before a full and final trial can be held on whether a permanent injunction should issue. A.S.C.A. § 43.13010(2); see Bendall, 28 A.S.R.2d at 103, 105.
Accordingly, the sufficient grounds required by A.S.C.A. § 43.1301(j) for issuance of a preliminary injunction are present.
II. Intervention Application
On April 12, 2004, Intervenors moved to intervene in this action and were present at the site inspection. While at this location, through counsel, we inquired and received Plaintiffs’ and Defendants’ consent to allow the proposed intervention without a formal hearing.
Order
1. While this action is pending, or until further order of the Court, *260Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are enjoined from mining, excavating, processing, or removing rocks, dirt, any other natural materials, or planted trees or crops from the land Plaintiffs have identified by the name “Taloamamao.”
2. The motion to intervene is granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486863/ | ORDER REMANDING TO OFFICE OF SAMOAN AFFAIRS
This matter came on regularly before the Court on April 21, 2004, on motion by the Plaintiffs to set this case for trial. Counsel Fuimaono was present. Defendant pro se Faiivae was not present.1 Counsel Fuimaono advised the Court that Defendant pro se Faiivae had verbally agreed to a trial date any time after this June.
The Court inquired as to whether a pre-trial conference pursuant to Rule 6, T.C.R.L.T. would assist the parties in clarifying the disputed factual and legal issues in this controversy, and Counsel Fuimaono agreed this would be helpful. A tentative pre-trial date was established and the Court took this matter under advisement to deliberate and draft an appropriate order.
Discussion
In our review of the pleadings, papers, and documents on file in this matter to prepare an order for the pre-trial conference, we also reviewed the February 3, 2004 Certificate of Irreconcilable Dispute filed by the Office of Samoan Affairs2 pursuant to A.S.C.A. § 43.0302(a)3. Under *262A.S.C.A. § 43.0301 et seq., the Legislature has provided a detailed statutory scheme for the resolution of land and titles disputes within the Territory. Although providing the Court with limited powers to issue pre-trial and interlocutory orders, including restraining orders, to preserve the peace while these disputes are resolved, the Legislature wisely required the parties to first participate in a traditional dispute resolution process at the Office of Samoan Affairs before seeking judicial remedies.
Since being enacted by two successive legislatures in 1972, (P.L. 12-59), and 1973 (P.L. 13-39), our case files reveal that many parties treat this potent, culturally protective procedure as more of an obstacle to litigation rater than an opportunity to meet, discuss, debate, and seek consensus on the resolution of the controversy. Indeed, a review of certificates of irreconcilable disputes filed with the court over the last several years indicate that, due to frustration over the intractability of the parties or other reasons, Secretaries of Samoan Affairs and their deputies have also acquiesced to this view. The statute, however, clearly requires something more than the parties simply checking in a couple of times at the Office of Samoan Affairs and advising the Secretary or his deputy they want to go to court.
Under A.S.C.A. § 43.0302(a)(4), the Secretary or his deputy is required to issue findings and conclusions with respect to the controversy before them and include the reason(s) why the controversy could not be resolved. If not otherwise made obvious by this statute, this *263paragraph reflects the Legislature’s clear intent to empower the Secretary with an affirmative duty to use the power and prestige of his office and title to facilitate the resolution of controversies relating to land and titles, those twin pillars supporting the Samoan culture. The Legislature has at once provided both a carrot (affording the parties a traditional venue at which their disputes may be resolved without the expense, or risk, of trial before the court), and a stick (the Secretary, in the exercise of his sound discretion, need not certify an irreconcilable dispute until at hast two meetings of the parties and until he and his two neutral designees have concluded all traditional attempts at resolving the controversy).
Conclusion
On its face, the February 3,2004 Certificate of Irreconcilable Dispute reveals that the parties have not appeared at least twice before the Secretary or his deputy and the two designees. Proof of the requisite 20-day notice to the parties is not reflected in certificate or record. The findings and conclusions in the certificate state only that, because only one meeting between the parties occurred, there exists an irreconcilable dispute. Clearly the statutory preconditions for the Court to exercise jurisdiction over this case have not been fulfilled. This certificate, being made and filed upon unlawful procedure, is therefore reversed and set aside. This matter is remanded back to the Secretary of Samoan Affairs for hearings consistent with the appropriate statutes and this opinion and order. Any future determination by the Secretary or his deputy that either party has failed to appear at noticed hearings without good cause, or has refused to participate in good faith at such hearings or failed to offer good reason why the controversy can only be resolved as a matter of law by the Court, shall be grounds for the aggrieved party to petition the Court for injunctive relief or other appropriate remedies. The tentative, pre-trial date of May 12, 2004 is set aside as a consequence of this order.
It is so ordered.
Pro se defendant Faiivae has been sanctioned by this Court earlier in this case for failure to comply with the Court’s orders. A motion to set a land or titles case for trial normally results in the Court establishing a pre-trial conference pursuant to Rule 6, T.C.R.L.T., at which many of the factual and legal issues raised in such controversies may be resolved or narrowed prior to trial. Participation by counsel and the parties, or by pro se parties, is as critical at these hearings as at trial. Failure of counsel or pro se parties to appear without good cause therefore will result in appropriate sanctions being imposed.
“This matter came on regularly for hearings before the Office of Samoan Affairs as provided under Section 43.0302 of the American Samoa Code Annotated. All parties and their respective representatives were served notices before the hearings were conducted; and hearings were held on the following dates and times: First Hearing - Began at 9:00a.m. on May 22, 2003. Ended at 10:15a.m. on the same date. Second hearing - Began at 9:25a.m. on November 6, 2003. Ended at 9:45a.m. on the same date. Findings and Conclusions: During the second hearing, the Objector did not show up. The Claimants wish, however, to refer this matter to com! for final disposition. Now, therefore, the undersigned hereby declare that there now exists irreconcilable dispute among the parties, and the matter is herewith *262transmitted for judicial litigation.”
43.0302 Certificate of Irreconcilable Dispute.
(a) Before any action relating to controversies over communal land or matai titles may be commenced in the Land and Titles Division, each party shall file with his complaint a certificate signed and attested by the Secretary of Samoan Affairs or his deputy, in which the Secretary or his deputy affirms and states:
(1) that on at least 2 occasions, the parties have appeared personally before him and 2 persons designated by him, without an attorney or counsel, and that an attempt was made to resolve the controversy;
(2) that all parties to the controversy received at least 20 days notice for each of the 2 required appearances;
(3) the date and hour of the beginning and conclusion of each appearance;
(4) the findings and conclusions of the Secretary or his deputy and the 2 designees with respect to the controversy heard before them, including a statement of the reason why the controversy could not be resolved. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486865/ | JUDGMENT OF CONTEMPT
The order made on April 15, 2004, requiring Defendants to show cause why they should not be held in contempt of court for violation of the temporary restraining order (“TRO”) entered in this action on March 17, 2004, against Defendants Toluao Seuta'atia and Toluao Family, and the three TROs respectively entered on March 19, 2004 against Defendants John Purvis, EFVJ Trucking Co., and John Emanuel Pu'e came regularly for hearing on May 20, 2004. Plaintiff Vaiula Teetai Tuitasi and his counsel were present. Defendant Toluao Seuta'atia and his counsel were also present. Defendants John Purvis, EFVJ Trucking Co. and John Emanuel Po'e were not present. All Defendants were duly served with notice of the order to show cause hearing on May 10, 2004.
The Court, having heard testimony and considered the evidence, finds:
1. The TRO entered on March 17, 2004, and the three TROs entered on March 19,2004, were duly issued and entered.
2. At all times after the TROs were respectively served on all Defendants, they have had notice and knowledge of the TRO pertaining to them. The TROs against Defendants John Purvis, EFVJ Trucking Co., and John Emanuel Pu'e were first served on March 19, 2004. The TRO against Defendants Toluao Seuta'atia and Toluao Family was served on March 24,2004.
3. At all times since the TROs were served on the Defendants, they have respectively had, and now have, the abilily to comply with the TRO pertaining to them.
4. All Defendants have failed to comply with the TRO pertaining to them in the following particulars.
Each of the four TROs temporarily prohibits the respectively applicable Defendant: (a) “[f]rom mining, excavating, processing, [or] removing rocks, dirt or any natural materials” from the land alleged to be the Tuitasi family’s communal land located on the mountain slope behind Plaintiff Vaiula Teetai Tuitasi’s home in the village of Malaeola; and (b) *268“[f]rom authorizing or permitting any other person(s) to excavate, process, or remove rocks, dirt, or any other natural materials” from the same land.
The land at issue is also communally claimed by the Defendant Toluao Family.
On March 30, 2004, Plaintiff Vaiula Teetai Tuitasi inspected the land. On April 6, 2004, while tending to his plantation below the land at issue, he heard noise sounding like a loader and other large equipment coming from the area, and then saw the loader placing dirt into trucks, which hauled away the loaded dirt. No people were present, nor any operations going on, when he arrived at the area later in the day. However, he observed differences in the conditions on April 6 from conditions existing on March 30, 2004. The same generator was there on both dates. The loader operating on April 6 was not there on March 30. The generator was connected to the loader on April 6. Rocks not on the screen on March 30 were there to be crushed on April 6. Fresh tire marks were on fresh dirt adjacent to the screen on April 6. No one other than Defendant Toluao Seuta'atia authorized removal of material from the area at issue, and no one other than Defendants John Purvis, EFVJ Trucking Co., and John Emanuel Pu'e have removed material from the area at issue throughout the entire time frame encompassed by the complaint and contempt application.
Clearly, all the Defendants failed to comply with the TRO applicable to them during the period from March 30 to April 6, 2004. Defendant Toluao, for himself and Defendant Toluao Family, authorized the excavation and crushing of rocks on and the removal of dirt from the land at issue. Defendants John Purvis, EFVJ Trucking Co., and John Emanuel Pu'e, who is an officer of EFVJ Trucking Co., carried out the authorized excavation and crushing of rocks and the removal of dirt from the land.
5. In failing to comply with the TRO applicable to them, the Defendants acted willfully and contemptuously.
Order
1. All Defendants are in contempt of this Court and shall be punished for their contempt by payment of fines as follows: (a) Defendants Toluao Sau'ta'atia and the Toluao Family are jointly and severally fined $1,000.00; (b) Defendant John Purvis is fined $1,000.00; and (c) Defendants John Emanuel Pu'e and EFVJ Trucking Co., are jointly and severally fined $1,000.00. All three fines shall be paid to the Clerk of the Court not later than June 15,2004.
*2692. Attorney’s fees and costs incurred for prosecuting this contempt application shall be directly paid to Plaintiffs counsel, also not later than June 15, 2004, as follows: (a) Defendants Toluao Seuta'atia and the Toluao Family shall jointly and severally pay $250.00; (b) Defendant John Purvis shall pay $250.00; and (c) Defendants John Emanuel Pu'e and EFVJ Trucking Co. shall jointly and severally pay $250.00.
3. Because the evidence clearly shows that the individually named Defendants are acting in concert regarding the prohibited removal of materials from the land at issue, Defendants Toluao Seuta'atia, John Purvis, and John Emanuel Pu'e shall appear before the Court on June 18, 2004, at 9:00 a.m., for a further hearing to determine if they are in compliance with this order and on how the Court will deal with any deficiency in the payment of the imposed fines and assessed attorney’s fees and costs. All three individually named Defendants shall appear at that time and place without further order, notice or subpoena, and regardless of whether he has paid the fine imposed on him in paragraph 1 above or the attorney’s fees and costs assessed against him in paragraph 2 above.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486866/ | *271ORDER DENYING MOTION FOR RECONSIDERATION
On February 20, 2004, we denied Defendants/Objectors (“the Williams family”) motion for relief from judgment and for a new trial under T.C.R.C.P. 60(b). The Williams family moved for reconsideration of our decision on March 1, 2004. We deny the motion for reconsideration because it is effectively a second T.C.R.C.P. 60(b) motion on the same grounds as a prior T.C.R.C.P. 60(b) motion.
Orders denying T.C.R.C.P. 60(b) motions are final and appealable. Gulf Coast Fans, Inc. v. Midwest Electronics Importers, 740 F.2d 1499, 1507 (11th Cir. 1984); 12 James Wm. Moore et al., Moore’s federal Practice § 60.68 (3d ed. 1999). To appeal a judgment, A.S.C.A. § 43.0802 requires a party to file a motion for new trial “within 10 days after the date of entry of the judgment or order appealed form.” A.C.R. 4.
After we deny a T.C.R.C.P. 60(b) motion, “a party may not simply file a second Rule 60(b) motion on the same grounds in lieu of an appeal.” Latham v. Wells Fargo Bank, 987 F.2d 1199, 1204 (5th Cir. 1993); see 12 James Wm. Moore et al., Moore’s federal Practice § 60.69 (3d ED. 1999). Permitting consideration of the second T.C.R.C.P. 60(b) motion would inappropriately allow the movant to “resurrect the .. . expired time period in which to appeal the denial of the first motion.” Latham, 987 F.2d at 1204.
We find that the Williams family’s motion for reconsideration is a second T.C.R.C.P. 60(b) motion based on the same grounds as the previous T.C.R.C.P. 60(b) motion. First, the motion does not seek a new trial within the 10-day time limit required for an appeal. Second, the Williams family fails to advance any argument beyond what they asserted in their first T.C.R.C.P. 60(b) motion. Here, they argue under T.C.R.C.P. 60(b)(6) that Counsel Salanoa’s actions constituted ineffective assistance of counsel. In their first T.C.R.C.P. 60(b) motion, they made this argument. (Def./Obj. mot. for new trial or relief from judgment at 4.) We considered the argument on the grounds of T.C.R.C.P. 60(b)(4) and 60(b)(6). Tupuola v. Williams, LT No. 7-94, slip op. at 4-5 (Land and Titles Div. Feb. 20, 2004).
Accordingly, the redundant reconsideration motion is properly denied.
Order
1. The motion of Defendants/Objectors for reconsideration is denied.
*2722. Defendants/Objectors shall vacate Plaintiffs/Claimants’ communal land on June 15, 2004, in accordance with the Court’s bench orders issued on March 1,2004, and confirmed on March 23,2004.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486867/ | ORDER DENYING MOTION FOR SUMMARY JUDGMENT, SCHEDULING FURTHER HEARING ON DIMISSAL, AND CONTINIUING INTERIM ORDER
On June 3, 2004, the Court heard Defendant’s motion to dismiss, pursuant to T.C.R.C.P. 12(b)(6), and Plaintiffs’ application to hold Defendant in contempt of the Court’s order of January 16, 2004, prohibiting Defendant from any further construction on the house at issue, other than to complete installation of the roof for protection *273against the elements, that he has under construction on the Fanene family’s communal land in the village of Nu'uuli. All parties and their counsel were present.
Testimony was taken on both matters, and an affidavit was filed in support of the dismissal motion. Therefore, in accordance with T.C.R.C.P. 12(b), we treat this motion as one for summary judgment under T.C.R.C.P. 56.
Discussion
I. Motion for Summary Judgment
Plaintiff Touli La'aau Fanene (“Touli”) testified that, among other things, he is withdrawing as a party to this action. He and the witness Malaeoi Toasefulu Laulu are blood male matai Fanene family members over age 18. Plaintiff Christine Kruse (“Kruse”) is a blood female Fanene family member. Her matai status is disputed. The Fanene sa 'o title is vacant.
Plaintiffs seek to permanently enjoin Defendant from constructing the house and from occupying the land at issue. Under A.S.C.A. § 43.1309(b), an action for injunctive relief concerning communal land can be brought only by the family’s sa'o, or if the sa'o title is vacant or the sa'o is incapacitated, by two blood male matai family members over age 18 or, if the family does not have two qualified male matai members, by two blood family members over age 18. Kruse is not a blood male matai. Therefore, in any event, the present Plaintiffs do not have authority to bring this action.
Moreover, the complaint is facially deficient in stating the substantive cause of action. The action is apparently predicated on Plaintiffs’ capacity as representatives of the Fanene family’s Land Council, established by the Fanene Family Agreement, dated June 29, 1998, attached to and incorporated in the complaint. Paragraph B of the Agreement expressly states that the Land Council takes on “only those responsibilities of administration and disposition of communal family lands approved by the Fanene family.” The complaint fails to allege that the Fanene family has approved referral of the issue of Defendant’s house on Fanene family communal land at stake to the Land Council for purposes of bringing this action or carrying on any other management responsibilities pertaining to this family land issue.
Further to the substantive aspects of any summaiy judgment, while Defendant believes that the evidence shows that his house project was approved according to the Fanene family’s customary decision-making process for its communal land issues when the sa'o title is vacant, the *274evidence presents a genuine contest over this material fact. This contest makes summary judgment inappropriate. This leads us, however, to remind the parties of our observation at previous hearings that the family ought to be able to solve what appears to be a straightforward and simple issue. Is the family so fractured that the members cannot amicably resolve this matter? Perhaps the explanation lies in the family members’ failure to date to select the successor to hold their long-vacant sa'o title. The family needs to settle upon the successor. The new sa'o would clearly have the healing authority to bring the opposing elements of the family together again and to resolve this and other family matters.
Because of the genuine and material factual dispute over the Fanene family’s immediate customary communal land decision-making authority, this action is not ripe for summary judgment. However, because of the party Plaintiffs’ lack of standing to sue and the complaint’s inadequate factual allegations, the action is ripe for dismissal, but without prejudice to afford opportunity to file a proper amended complaint.
A proposed amended complaint has been submitted. It appears to drop Touli as a party Plaintiff and to add, somewhat unclearly, three or four other persons besides Kruse as new party Plaintiffs. The proposed complaint apparently alleges that each of the new party Plaintiffs is acting as a Fanene Land Council representative, but it still fails to allege that the Fanene family has expressly given the responsibility for handling this family land issue to the Land Council. It also does not allege that any of the new party Plaintiffs is a Fanene family male matai. However, in the interest of judicial economy, we will schedule a hearing, also necessary under T.C.R.C.P. 15(a) in view of Defendant’s filed answer, on whether to pennit filing of either the proposed or another revised amended complaint.
II. Contempt Application
The order of January 16, 2004, preventing Defendant’s further construction of the house, except for finishing the roof, was duly made. The parties stipulated to issuance of this order. The order effectively continued the interim order to substantially the same effect, made on December 4, 2003, also upon the parties’ stipulation. Defendant was personally present at both hearings and thus was well aware of the restraint in each order at all times since it was made. Defendant also had the ability to comply with the order at all times since it was made. He failed to comply with the order by not preventing his carpenter in charge of constructing the house from placing a stucco or plaster covering on the exterior concrete block walls of the house on or about April 6, 2004. The carpenter testified that he did this additional wall work to support the roof by strengthening the walls. Given the nature of April 6 work, as *275described by the carpenter, we find this explanation to be ludicrous and unbelievable. The wall covering was intentionally and contemptuously done.
Accordingly, we find that Defendant was in contempt of the Court’s order of January 16, 2004 when the stucco or plaster covering was added to the house walls on or about April 6,2004.
Order
1. Touli is withdrawn as a party Plaintiff.
2. Final ruling on Defendant’s motion to dismiss this action, characterized as one for summary judgment or not, is deferred until after we hear and decide whether to permit filing of the proposed amended complaint. The hearing on filing the proposed amended complaint is scheduled for June 28,2004.
3. Defendant is adjudged in contempt of this Court for his violation of the January 16, 2004 interim order. He shall pay a fine of $500.00 as punishment. Payment of the fine is suspended on condition that he does not further violate the interim order in any way while the order remains in effect.
4. The interim order prohibiting further construction of the house at issue remains in full force and effect while this action is pending or until further order of the Court.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486868/ | *277ORDER DENYING MOTION FOR RECONSIDERATION OR NEW TRIAL
We issued an opinion and order for this case on January 29, 2004. In that prior opinion, we considered the location of a boundary between two plots of land. One plot was originally registered to Olo Letuli (“Olo”), and the other plot was originally registered to Maria Leituala (“Leituala”). We held that a substantial portion of the boundary ran on the centerline of a road which the parties had mutually shared, that the parties had easements to use the road, and that the portion of the boundary located near four fales had moved. See the prior opinion and order for the factual background and legal discussion. Letuli v. Leituala, 8 A.S.R.3d 207 (Land & Titles Div. 2004).
Plaintiff Pat Letuli (“Letuli”), substituted for Olo, moves for reconsideration or new trial. Defendants Leituala, Peter Gebauer (“Gebauer”), M & N Inc., Pauline Gebauer, Mapu Jamias and Iliganoa Sogialo, (together “Defendants”), also move for reconsideration or new trial on other grounds. For the reasons stated below, we deny both motions.
Standard of Review
Under T.C.R.C.P. 59, reconsideration and new trial standards are identical. We may alter or amend judgment if we have made a “manifest error of law or fact.” See, e.g., Knepp v. Lane, 859 F. Supp. 173, 175 (E.D. Pa. 1994). We grant a motion for a new trial in a non-jury case only when there has been a “manifest error of law or mistake of fact.” American Samoa Gov’t v. South Pacific Island Air Sys., Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995).
Discussion
At hearing, the parties represented that they primarily contest our findings of fact. We begin with Letuli’s issues and address them in numbered paragraphs, as offered to us.
1. Letuli contends that we erred in finding that Gebauer reserved a valid or legal easement or right of way over the road in a deed to Lisa Malae Theno dated December 20, 1996. We did not err. We concluded that Letuli failed to show sufficient evidence of agreement, acquiescence, or estoppel restricting the Defendants’ rights to the road. As we had multiple reasons for this conclusion, Gebauer’s conveyance did not by itself show the Defendants’ intent concerning their rights to the road.1 *278The rights to the road were not reserved; the Defendants had the rights and never intended to relinquish them. Moreover, we found the easement to be broad for the reasons stated in our prior opinion, so the transfer did not improperly exceed the scope of the easement.
2. Letuli contends that we erred in finding that the “1990 rock-wall” is where the lautalotalo plantings were located by Leituala to designate the boundary when, in fact, the lautalotalo plantings were located near the “1980 rock-wall” constructed on Olo’s behalf. We did not err. The “1990 rock-wall,” which we refer to as the fale wall, is located off of the road and near the four fales. The “1980 rock-wall,” which we refer to as the north roadside wall, is located next to the road at issue. There are lautalotalo plantings near the north roadside wall. However, we also found that there was vegetation, specifically lautalotalo plants, which antedated the fale wall and formed a line along where the fale wall now stands. We made this finding based on professional surveyor Lawrence P. French’s testimony and a 1984 aerial photo of the land taken prior to the construction of the fale wall in 1990.2 (Defs. Ex. 29.) The dividing line made of vegetation indicates that a change was recognized in that part of the boundary. (Id.)
3. Letuli argues that the court erred in finding that implicit with Olo’s registration of the land surveyed in 1971 was an acknowledgement that he did not own the disputed road, or only owned a portion of the disputed road. We did not err. Olo’s registration only described a claim for half of the road, as indicated by the November 17, 1962 survey of his land that he incorporated in his registration offer. (Ex. 1.) The actual survey attached to the registration is not drawn detailed enough to include the road and ambiguously mentions that the boundary at issue runs “along the road.” (Defs. Ex. 17 (description of land attached to Letuli’s registration offer, certified to be trae copy Sep. 12, 2002).) However, the attached survey was “reduced and described by” the November 17, 1962 survey of Olo’s land, thereby incorporating the November 17, 1962 survey to describe the land offered for registration. (Id.) Also, the attached survey and the November 17, 1962 survey reference the same starting point, azimuths, and distances to describe the land. (Defs. Ex. 1; Defs. Ex. 17.) The November 17, 1962 survey depicts the boundary as running roughly down the center of the road. (Defs. Ex. 1.) Even if the November 17, 1962 survey of Olo’s land fails to depict the road accurately, we find that Letuli is bound by it because Olo incorporated it in his offer for registration. Furthermore, the other *279surveys in evidence, offered by Letuli and the Defendants, consistently show that Olo could not claim the entire road, for the surveys depict the boundary lying on the road for significant distances. (See PI. Ex. 1; PI. Ex. 2; Defs. Ex. 2; Defs. Ex. 4 (attached survey to registration of land, Aug. 14, 1971); Defs. Ex. 7; Defs. Ex. 8; Defs. Ex. 12; Defs. Ex. 21 (attached survey); Defs. Ex. 28; Defs. Ex. 33.)
4. Letuli argues that we erred in finding a purposeful division of the road because both parcels of land were recorded around the same time. We did not err. We did not rely on the recording of the registrations but on the offering of the registrations.
5. Letuli argues that we erred in finding that failure to assert full ownership at the time of both registrations constitutes affirmative approval by Olo or Leituala of a reciprocal easement. We did not err, but should have been clearer. Our prior opinion should not be read to mean that the Olo and Leituala approved a reciprocal easement. We were not creating a new type of common law easement, which would be known as a “reciprocal easement.” Rather, we concluded that there were two separate easements, which we described as reciprocal because of the circumstances of their creation. Letuli has an easement by estoppel over the Defendants’ portion of the road. Conversely, the Defendants have an easement by estoppel over Letuli’s portion of the road.
We found affirmative approval of each easement from Letuli’s and Leituala’s failure to act when obligated. “A party’s silence, for example, will work an estoppel if, under the circumstances, he has a duty to speak.” United States v. Georgia-Pacific Co., 421 F.2d 92, 97 (9th Cir. 1970). Anyone who fails to object to a registration offer cannot later claim ownership of properly registered land. Ifopo v. Siatu’u, 12 A.S.R.2d 24, 26 (App. Div. 1989). Therefore, failure to object to the boundaries described in a registration offer communicates approval of the offered boundaries to the person seeking registration. In this case, failure of Olo and Leituala to object to the land registration of the other communicated approval of the boundary along the center of the road. As discussed in our prior opinion, because the boundary lies at the center of the road, a communication of approval for the boundary also signals approval of the other’s use of the road.
6. Letuli essentially argues that we erred in finding that Olo failed to object to Leituala’s registration offer for part ownership of the road or to Leituala’s intent to permanently use the road, because Olo had no notice or knowledge of the fact of the survey and no contemporaneous knowledge that the land was being registered by Leituala upon which to base any such objections. We did not err, because Olo had constructive notice of the registration. Constructive notice “is just as effectual for the protection of the rights of the parties as an actual notice.” 66 Am. Jur. *2802d Records and Recording Laws § 102 (1973). Furthermore, constructive notice “is based on the premise that a person has no right to shut his eyes or ears to avoid information and then say he had no notice.” 58 Am. JUR. 2d Notice § 8 (1989). After the filing of a registration offer, notice is published according to A.S.C.A. § 37.0103 and is available for inspection at the Office of the Territorial Registrar. Under A.S.C.A. § 37.0210, “due registration of an instrument relating to land or an interest therein shall be notice of the contents.” When the registrations became registered after following statutory publication requirements, Olo and Leituala had constructive knowledge of the other’s registration by statute.
Letuli’s contended lack of contemporaneous knowledge fails to compel reconsideration or a new trial. Notice of the registration was imparted by publication throughout the 60-day notice period as required by statute. Concurrently, approval of the boundary and easement was communicated by failing to object throughout the 60-day notice period. Upon due registration, we are able to find that Olo constructively had knowledge of Leituala’s boundary and easement, and had communicated his approval.
7. Letuli argues that we erred in finding that the Defendants did not acquiesce to Olo’s relocation of the boundary by building the north roadside wall because the evidence showed that the Defendants’ use of the road arose from Olo’s express permission and not as a result of a claim of entitlement or ownership. We did not err. We balanced the available evidence and found the evidence indicating that the boundary had not moved to be more credible and convincing. Furthermore, as Olo owns a portion of the road, his permission to use the road acts to affirm the established easement and does not demonstrate intent to move the boundary.
8. Letuli argues that we erred in concluding that the parties recognized a boundary that lies along where the fale wall is currently located. Our conclusion was correct for the reasons stated in our prior opinion.
9. Letuli argues that we erred in finding that the common boundary between the parcels is a reasonable approximation of where the original surveyors located the boundary. We did not err. After searching for the boundary intended by the parties that divided the land, we found that the expert witness surveyors could not accurately locate the boundary between the land plots. As a result, we were forced to determine the location of the boundary. We reasonably determined the boundary to follow the centerline of the road. In making our determination, we considered the evidence presented at trial, primarily surveys and testimony. (PL Ex. 1; PL Ex. 2; Defs. Ex. 2; Defs. Ex. 1; Defs. Ex. 4; Defs. Ex. 7; Defs. Ex. 8; Defs. Ex. 12; Defs. Ex. 17; Defs. Ex. 21; Defs. *281Ex. 28; Defs. Ex. 33.) The surveys show the boundary line lying on the road for significant distances. We find the two 1962 surveys particularly convincing, because they are the first-in-time surveys offered in evidence and are incorporated by reference in both Olo’s and Leituala’s land registrations. (Defs. Ex. 4; Defs. Ex. 17.) Both 1962 surveys depict the boundary as running roughly down the center of the road. (Id.) Though the depiction of the road in the surveys may be slightly inaccurate, we find the weight of the surveys determinative of the boundary being on the road, making it fair to divide the road in half for the reasons stated in our prior opinion.
10. Letuli argues that we erred in concluding that both Olo and Leituala obtained easements by estoppel over their respective un-owned portions of the disputed road. We disagree. Based on the evidence presented at trial, and discussed in our prior opinion and here, we find all of the elements for two easements by estoppel. Land registration does not normally evidence the creation of easements; yet, the circumstances here compel the conclusion that the parties have easements by estoppel.
As for the Defendants’ arguments, we did not err in finding no interference with business or in declining to order removal of the north roadside wall. The Defendants fail to give any argument stating why our decision concerning their interference with business claim is wrong. Leaving the wall in place is proper for the reasons stated in our prior opinion. Furthermore, the Defendants’ arguments concerning equitable and practical reasons for moving the wall are meritless, because the road has been used with the wall in place for years without objection from any of the defendants.
Order
1. Letuli’s motion for reconsideration or new trial is denied.
2. The Defendants’ motion for reconsideration or new trial is denied.
It is so ordered.
We find that “R.O.W.” on the map attached to the deed indicates a right of way because the letters are placed on the depiction of the road in the *278deed and because the finding is supported by testimony offered by the Defendants.
The vegetation line is located underneath where the fale wall is depicted on the photo overlay. The fale wall is depicted by a solid black line and is labeled “ROCK WALL.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486869/ | ORDER REQUIRING NOTICE & FURTHER HEARING
Petitioner seeks an order changing his name from Pita S. Amataga to Pita Amataga Poumele. This application, if granted, will result in petitioner’s third set of names.
Petitioner was bom Kuinitusi Velo on August 1, 1948, as reflected in his birth certificate. Subsequently, and when he was of full age, he consented to his adoption by his maternal uncle Suafoa Amataga, and his wife Gaupule. Consequently, a decree of adoption issued out of this court on December 31, 1969, resulting in, among other things, petitioner’s change of identity to Pita S. Amataga. In apparent pursuance of the decree of adoption, the Registrar of Vital Statistics re-issued a new birth certificate for petitioner reflecting not only his new name but the *290identity of his new legal parents.1
The application now before the court essentially seeks yet another cognomen change to include the name of “Poumele,” the matai title name of the petitioner’s natural father. The only intelligible reason that we can gather for the application, is that petitioner’s natural father’s family has awarded him a lesser matai title, and that the petitioner would like his legal identity to reflect what he believes are his natural circumstances, for purposes of future matai succession.
Unlike a number of other jurisdictions, we lack statutory guidelines for name change proceedings. See Application of Fogapapa Mamea, CA No. 95-92 (Trial Div. Jan. 9, 1992) (order requiring notice and farther hearing). At common law, a person is free to adopt and use whatever name he or she chooses; however, the court is not subject to the whims of every petitioner and will not lend as of course its imprimatur to effect a change of name. 57 Am. Jur. 2d, Name, § 22 at page 668. A name change application will not be granted if it is sought for any fraudulent purpose or if it infringes on the rights of others. Id, § 16 at 663.
The petitioner here, like the petitioner in the Application of Fogapapa Mamea, CA No. 95-92, did not satisfactorily address potential complications a name change might impose to his immediate and extended family’s future dealings. In these circumstances, the Mamea court suggested that:
[a]t the very least, an affirmative record should be made to show that the wife and minor children, and probably the matai as well, have been notified of this proceeding and are in agreement with the objective, or at least have reasonable opportunity to present any opposition to the name change. This extra effort will also provide the basis for making any order changing his name a record of the other persons whose names [sic] affected by the change.
Id. at 2. fa addition, the Mamea court spoke approvingly of the precautionary step taken by the petitioner there to publish notice of the proceeding in a newspaper of general circulation, thus, “affording some notice to potential creditors and others who may be negatively affected by a name change.” Id. this “advisable” action taken was in keeping wit h a common statutory requirement in other jurisdictions. Id.
Taking guidance from Mamea, we deem it eminently sensible in the present matter to require actual notice of these proceedings to the *291petitioner’s matai and immediate family, as well as constructive notice to potential persons affected, by way of publication in a newspaper of general circulation. Thereafter this matter will further set for hearing.
It is so ordered.
A.S.C.A. § 45.0424(b) authorizes the Registrar of Vital Statistics to issue a new birth certificate showing “the adoptive parents as the natural parents of the [adopted] child....” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486870/ | OPINION AND ORDER
Plaintiff American Samoa Government (“ASG”) charged defendant Punefu Tuaolo (“Tuaolo”) with the crimes of robbery in the first degree (Count 1), felonious stealing (Count 2), felonious restraint (Count 3), and assault in the second degree (Count 4) by the information filed on May 11, 1998. A Daubert hearing on the admissibility of certain expert opinion evidence was conducted on December 1-2, 1999. Tuaolo then waived his right to a jury trial. The bench trial commenced on the same date and concluded on December 10, 1999. Tuaolo and both counsel were present throughout the hearing and trial.
The Daubert Hearing and the Court’s Rulings
This criminal prosecution presented evidentiary issues of first impression in this jurisdiction: the admissibility of the results of forensic deoxyribonucleic acid (“DNA”) comparisons with questioned items of evidence. The DNA examinations, as well as other forensic testing, were done at the Federal Bureau of Investigation (“FBI”) laboratory in Washington, D.C. Five members of the FBI laboratory staff were required to present this evidence by testimony before the court. Hence, pursuant to T.C.R.Ev. 104(a) - (c), the parties proposed, and we agreed, that a pretrial hearing on the admissibility issues be conducted during the week before the trial.
T.C.R.Ev. 702 applies to expert opinion testimony. Rule 702 permits a witness who is qualified by knowledge, skill, experience, training, or education to testify by giving an opinion on a matter involving scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. F.R.Ev. 702 is identical to our local Rule 702. Thus, the parties also agreed, and we concur, that the standard for the admissibility of DNA evidence is governed by Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
The court must determine, preliminarily in a jury trial, that the basis of the proposed expert opinion testimony is reliable and relevant. Daubert, 509 U.S. at 590-91, 594. The Supreme Court held that Federal Rule 702 rejects the traditional test of general acceptance in the relevant scientific community as the basis for admitting novel scientific evidence, as required by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under Rule 702, the trial court must still look for such reliability factors as: (a) whether the theory or technique in question has been or can be tested and has been subjected to peer review and publication; (b) the known or potential rate of error of the particular theory or technique and *299whether operational control means exist for it; and (c) the extent to which the theory or technique has been accepted. Daubert, 509 U.S. at 593-94. Once reliability is satisfactorily established, the court must determine that the evidence is sufficiently related to the facts at issue to assist the trier of fact, and that its probative value substantially outweighs the dangers of unfair prejudice, confusion of the issues, or misleading the trier of fact. Id., at 595; see T.C.R.Ev. 401-403.
Following receipt of the FBI laboratory reports, and prior to the Daubert hearing, the parties filed two written stipulations. In essence, the parties stipulated to the admissibility in evidence by way of expert opinion testimony of the results of DNA testing of certain evidence in this case performed by Julie Ann Kidd (“Kidd”) and Dr. John E. Stewart (“Stewart”), both FBI laboratory personnel.
However, as part of our learning process, we agreed with ASG’s strategy to have Stewart and Kidd testify about their professional qualifications, DNA theory and practice, and the results of their DNA analyses in this case. Based upon the parties’ stipulations and particularly the testimonial amplification, we specifically made and reiterate the following findings. First, Stewart and Kidd are qualified by education, training and experience to provide expert opinion testimony in the DNA field. Second, DNA examinations and the DNA analytical protocols applied to the evidence in this case have a scientific basis and are reliable under the Daubert standard. Third, Stewart properly performed the DNA procedure called mitochondrial. Kidd properly performed the DNA procedures called restriction fragment length polymorphism (“RFLP”) and polymerase chain reaction (“PCR”). Fourth, Stewart’s and Kidd’s expert opinions on the results of their examinations are relevant, and will assist the trier of fact to understand the DNA evidence and to determine identity of the perpetrators) of the crimes charged. The probative value of this evidence substantially outweighs any prejudice and other dangers of unfairness.
During the Daubert hearing, ASG also called Monica Knuckles (“Knuckles”) of the FBI laboratory to testify as a forensic chemist with respect to her comparative analyses of items of masking tape recovered as evidence in this case. Based upon her testimony, we found and still find the following facts. Knuckles is qualified as a forensic chemist by education, training and experience. The types of analyses she made of the items of masking tape are scientifically reliable under the Daubert standard. The results of Knuckles’ examinations are relevant to assist the trier of fact to identify the perpetrator(s) of the crimes charged and significantly exceed any prejudicial effects.
The Trial and the Court’s Findings and Conclusions
*300A. Jury Waiver and Further Stipulations
Shortly after the Daubert hearing was concluded, Tuaolo filed a written waiver of his right to trial by jury. On December 6, 1999, before the trial commenced, we again admonished Tuaolo of his right to trial by jury. Tuaolo orally reaffirmed his written decision to waive that right and proceed with a bench trial.
The parties also provided three more stipulations for purposes of the trial. First, before filing the written jury waiver, they stipulated that the statement of Aukusitino Fanene (“Fanene”) given to Sgt. Lavata’i T. Sagapolutele (“Sagapolutele”) on or about October 26, 1999 may be read to the jury. During the bench trial, without objection, Sagapolutele read Fanene’s statement to the court.
During the first day of the bench trial, December 6, 1999, the parties stipulated that the court may take judicial notice of the testimony given by Stewart and Kidd during the Daubert hearing in lieu of taking further testimony from them. We take judicial notice of this evidence.
Lastly, during the second day of the bench trial, December 7, 1999, the parties stipulated that based upon Fanene’s statement to Sagapolutele, the FBI’s DNA analyses, and other evidence, ASG would seek an arrest warrant for Fanene as a principal or accessory to the charges in this case after the bench trial concluded.
B. The Crimes
Well beyond any reasonable doubt, the four crimes charged in this case were committed. At least two accomplices directly participated. A third accomplice was possibly involved either as a principal or abettor.
The offenses occurred at the poker machine center in the Tautua Hall during nighttime, shortly after 3:00 a.m. on April 30, 1998. Tautua Hall is located near the northwesterly side of Pago Park in the Village of Pago Pago. Two victims were present, Ho Min, an owner and the operator of the center, and Beam Fa’alogo (“Fa’alogo”), one of his employees. Both heard noise at one of the entrance doors to the center, just as someone turned off the lights in the center. Two perpetrators wearing black masks entered the center. One of them, a large male, struck Ho Min’s head with a shotgun. He pushed Ho Min to the floor and kicked him several times. He demanded money and threatened to kill Ho Min. Ho Min told Fa’alogo to give the perpetrators all the money in the center. The large perpetrator bound Ho Min’s hands, feet and face with masking tape. Ho Min heard three shotgun shots. He probably then lost consciousness for a short time. Upon waking, Ho Min was able to remove the tape. He called the police from a telephone outside the center.
*301The second masked perpetrator went to Fa’alogo. She was in the cashier’s office at the center. He had a flashlight and held a shiny handgun on her. She heard Min being struck and scream. Fa’alogo tried to close the door to the office, but her attacker kicked or pushed open the door. He told Fa’alogo, who had fallen to the floor, to kneel and put all the money in the knapsack he threw in front of her. After Fa’alogo put the money in the knapsack, this perpetrator bound her hands, feet and mouth with masking tape. Fa’alogo heard two gun blasts and feared for her life. However, the perpetrators suddenly left the center. She unbound herself and went to help Ho Min. She saw that Ho Min was bleeding from a head injury and appeared to be unconscious. After Ho Min regained consciousness, the police were called.
Three poker machines were damaged by the shotgun blasts. Approximately $1,500 in United States quarter coins were taken from these machines. United States currency in other denominations, totaling approximately $500.00, was taken from the cashier’s office. Ho Min’s wallet, containing about $650.00 and a VISA credit card, was taken from his person. His and his wife’s cellular telephones were also stolen.
C. The Perpetrators’ Identities
We must still solve beyond a reasonable doubt the genuine puzzle of the perpetrators’ identities. On May 1, 1998, almost immediately after the crimes were committed, Tuaolo was arrested for the crimes charged. He is, of course, the only accused presently on trial. Fa’alogo identified Tuaolo as her masked attacker, and ASG initiated his prosecution principally on this basis. At the trial, Fa’alogo maintained that Tuaolo is that culprit. This is the strongest evidence of Tuaolo’s guilt. Certain factors tend to corroborate Fa’alogo’s identification of Tuaolo. Other factors raise questions about her identification. We will review the evidence in substantial detail in analyzing her identification.
1. The Surrounding Circumstances
Tuaolo was also employed at the poker machine center. He first worked there during the weekend before the crimes were committed and knew the layout of the premises. However, he did not come to work the night of the charged offenses. On his first night on the job, Tuaolo had a shiny handgun, which he showed to Ho Min and identified as a .38 caliber gun. He took the handgun with him when he left work that night. The handgun was similar to the gun Fa’alogo’s attacker held on her. Fa’alogo’s attacker was similar to Tuaolo in height, build, and voice. During the attack, she called her attacker “Punefu” and said she was surprised at his conduct.
*302According to Fa’alogo, her attacker wore the off-white shirt and camouflaged “army” pants in evidence. She said that the shirt was yellow, but Fa’alogo saw the shirt by the yellow lens or bulb of her attacker’s flashlight. The police arrived at the crime scene within minutes after they were called. A short time later, Tuaolo drove up to the scene in a red pickup. Bobby Tuiletufuga (“Tuiletufuga”) is the registered owner of this pickup. Tuaolo was then wearing the off-white shirt and “army” pants.
Tuaolo, Tuiletufuga, and Fanene are long-standing friends. Tuaolo is also a fonner employee, perhaps as long as eight to 10 years, of ASG’s Emergency Medical Service (“EMS”) and a long-term friend of EMS employees Teofilo Mageo (“Mageo”), Aukusitino Fruean (“Fruean”), and Christy Moa (“Moa”). Tuaolo attended Mageo’s birthday party in Aua during the evening of April 29, 1998. He was driven to the party by Tuiletufuga, who also picked him up there in the early morning of April 30. Fruean and Moa were also at the party. Mageo, Fruean, and Moa consumed considerable quantities of beer at the party.
According to Mageo, Fruean, and Moa, they went to Tuaolo’s pool hall in Pago Pago about 2:00 a.m. on April 30. Tuaolo and his wife Mina Tuaolo (“Mina”) live in a two-story building behind the pool hall. These two buildings are located very near, not more than a five-minute walk to, Tautua Hall. Tuaolo and Mina were in the pool hall when Mageo, Fruean, and Moa arrived there. They consumed more beer and played pool with Tuaolo. Two other EMS employees stopped by briefly but did not join the pool game. They were on their way to StarKist Samoa for a training exercise involving EMS personnel. At some point during the pool game, Mina retired to her home.
Again according to Mageo, Fruean, and Moa, after Mina and the other EMS visitors left, and some time after 3:00 a.m., Tuiletufuga and Fanene arrived at the pool hall in Tuiletufuga’ s pickup. Tuiletufuga was screaming or crying out for help and asking Tuaolo to take him and Fanene to the ASG’s LBJ Tropical Medical Center (“LBJ”) in Faga’alu. They told Tuaolo that they had been shot. Despite their EMS training and experience, Mageo, Fruean, and Moa were not asked to assist Tuiletufuga and Fanene. Instead, Tuaolo drove off with them.
Tuaolo drove Tuiletufuga and Fanene to the LBJ and left them there for medical treatment. Tuaolo then drove the pickup back to Pago Pago and stopped at Tautua Hall during the ongoing initial police investigation at the crime scene. It was then that Fa’alogo observed Tuaolo wearing “army” pants and an off-white shirt.
Mina was also there, apparently having been awakened by crying or other noise from the direction of Tautua Hall. After Tuaolo arrived, he *303instructed Mina to drive Tuiletufuga’s pickup to their home. She did so. Mina claimed that a roll of new masking tape fell outside when she exited the pickup, and that she took the tape inside, later used it to repair a hand fan, and left it in the bedroom used by Tuaolo and her.
2. The Physical Evidence
Police Captain Vaaomalo Sunia (“Sunia”), the head of the Criminal Investigation Division and as such in ultimate charge of the investigation of this case, seized the roll of masking tape from Tuaolo’s and Mina’s bedroom during the course of the execution of a search warrant on May 1, 1998.1
There are numerous other items of physical evidence. We take note of the police investigators’ observations and recovery of those items that are particularly significant to this discussion. At the crime scene, they observed Ho Min’s injuries, the three damaged poker machines, and a blood stain on the floor near the door to the cashier’s office. They recovered from the customer area of poker machine premises, among other items, three empty shotgun cartridges, strips of masking tape near the one entry door to the center, and strips and a roll of masking tape within the cashier’s office.
The investigators impounded Tuiletufuga’s pickup from Tuaolo’s residence. Inside the pickup, they found and took for evidence a black mask from the front right floor, a tee shirt and black pants on the seat, and another black mask underneath this clothing. A cellular telephone was inside the right back pocket of the pants. A pocket knife and two bullets were also found in the pickup. The police also seized the “army” pants and off-white shirt worn by Tuaolo when he returned to the crime scene.
Body samples were also taken, using proper procedures, to provide known submissions for the FBI’s DNA analyses. These samples included blood, hair, and saliva from Tuaolo; blood, hair, and saliva from Tuiletufuga; blood and hair from Fanene; and blood from Ho Min. In addition, fingerprints from Tuaolo, Tuiletufuga, Fanene, Ho Min, and Fa’alogo were imprinted and sent to the FBI for comparison.
*3043. The Statements by Tuaolo and Fanene
After he drove to the crime scene, Tuaolo made oral statements to the police at the crime scene and, later on April 30, a written statement to the police at the central police station. Both statements were admitted into evidence without objection. Tuaolo’s statements were essentially consistent with the other evidence in the case.2
Fanene and Tuaolo appear similar in height and build. ASG intends to charge Fanene with the same offenses for which Tuaolo in now on trial.3 Fanene’s statement to the police is one basis for this intended action. On October 26, 1999, police Lt. Sagapolutele wrote what Fanene told him about the offenses. Fanene then signed this document. This statement was admitted into evidence pursuant to the parties’ pretrial stipulation.
We will set forth the presently important aspects of Fanene’s statement. Fanene claimed that Tuiletufuga, threatening him with a shiny handgun, forced Fanene to join Tuiletufuga’s plan to commit the offenses. Both wore masks at Tautua Hall. Fanene then had the handgun and a flashlight, and wore black pants and a white shirt, all furnished by Tuiletufuga. Tuiletufuga turned off the lights in the poker machine center and beat the Korean. Fanene admitted that he had the female *305cashier put money in a hag, and then tied her hands and mouth with masking tape, as Tuiletufuga had instructed him to do. While tying the cashier, he became afraid when the cashier called him Punefu and said she was surprised at what he had done to her, but he finished tying her. A third person appeared, locked the front door, and opened the back door (apparently but not clearly Tautua Hall rather than the center’s doors). This third person wore “army” pants and a shirt Fanene said he could not describe. Fanene claimed that he heard five gunshots, one before and four after he left Tautua Hall with the bag of money. A short time later, he and Tuiletufuga met at their car parked near the Mauga guesthouse at the easterly side of Pago Park. He first and then Tuiletufuga drove the car through the park. As they reached Korea House near the far easterly end of the park, Tuiletufuga tried to put on the handgun’s safety, but the car hit a cement block. When Fanene grabbed the steering wheel, the gun discharged. Fanene’s left arm and Tuiletufuga’s right hand were wounded by the discharge. They then headed west. At the Seagull store, Tuiletufuga drove up the hill into that part of Pago Pago village and threw their two guns and the bag of money into a stream bed. Tuiletufuga then drove to Tuaolo’s pool hall and asked Tuaolo to take them to the hospital. Fanene denied receiving any money from the robbery, and claimed that Tuiletufuga told him three days later that Tuiletufuga had instructed Tuaolo to recover the guns and bag of money from the stream bed.
C. Evaluation of Fa’alogo’s Eyewitness Identification
The evidence supporting Fa’alogo’s eyewitness identification of Tuaolo is significant. She knew Tuaolo as a fellow employee. He was familiar with the premises at Tautua Hall and the poker machine center. She saw him in possession of a shiny handgun, like the gun her attacker held, a few days before the crimes were committed. Her attacker had Tuaolo’s height, build, and voice. She believed that her attacker wore “army” pants and, by a yellow light, a yellow shirt. She saw Tuaolo at the crime scene a short time later when he drove there in Tuiletufuga’s pickup. He was then wearing “army” pants and an off-white shirt.
Tuaolo, Tuiletufuga, and Fanene were friends. Tuaolo and Tuiletufuga were companions at times during the evening before the crimes occurred. Tuaolo operated a pool hall and lived nearby Tautua Hall. Though not then seen by Fa’alogo, he may have been at the hall, and perhaps in the poker machine center, for a short time about 90 minutes before the crimes were committed. Fanene implicated a third person wearing “army” pants who assisted in committing the crimes. After the crimes took place, Tuiletufuga drove the pickup, with Fanene the passenger, to the pool hall and sought Tuaolo’s assistance to take him and Fanene to LBJ for medical treatment of their self-inflicted gunshot wounds. Fanene suggested that Tuaolo was later instructed by Tuiletufuga to *306retrieve the perpetrators’ guns and the stolen money from the hiding place in the stream bed. Tuaolo certainly had opportunity to directly participate in the crimes.
On the other hand, Fa’alogo’s attacker wore a mask and was similar in height and build to both Tuaolo and Fanene. Thus, we consider her eyewitness identification of Tuaolo with caution. Fanene clearly admits that he was Fa’alogo’s attacker, while he possessed a shiny handgun and flashlight. He claimed that he wore a white shirt and black pants. Such clothing was found in the pickup. He also clearly identified Tuiletufuga as the second perpetrator who beat Ho Min and suggested that Tuaolo was present as a third culprit. Fanene recited details which only participants in the crimes would likely know. However, Fanene is an accomplice, and we must also evaluate his statement connecting others in the commission of the crimes with caution. Fanene’s credibility, to some extent, is also put in question by his unconvincing claim that Tuiletufuga forced him to participate in the crimes.
Despite his physical proximity to the crime scene, Tuaolo’s friends and fonner EMS associates placed Tuaolo at the pool hall at the time of the crimes. Mina, Tuaolo’s wife, corroborated the presence of these friends at the pool hall. These witnesses are clearly biased in Tuaolo’s favor. Mina’s credibility is also doubtful by her prior inconsistent statement concerning Tuaolo’s ownership of a shiny handgun. Tuaolo could easily have fabricated this story with Mina and his friends later. However, their testimony still provided an alibi at least for Tuaolo’s direct participation in the crimes.
In sum, the accuracy of Fa’alogo’s identification of Tuaolo as her attacker must be questioned.
D. The Expert Opinion Testimony
It is the considerable and varied expert opinion evidence in this case that provides the most satisfactory basis for deciding Tuaolo’s guilt or innocence. The DNA evidence is particularly illuminating. Using the mitochondrial protocol, Stewart compared the DNA in a hair found in one of the masks recovered by the police from Tuiletufuga’s pickup with DNA in the blood samples obtained from Tuaolo, Tuiletufuga, Fanene, and Ho Min. Fanene and Ho Min were excluded as the source of the hair. Tuiletufuga cannot be excluded as the source. The results were inconclusive as to Tuaolo being the source.
Kidd applied both the RFLP and PCR testing procedures. With the RFLP method, she compared the DNA in four blood stains on the tee shirt and several blood stains on the pants recovered by the police from Tuiletufuga’s pickup with the DNA in the four known blood samples. *307Ho Min was the source of one blood stain on the tee shirt. Tuiletufuga was the source of another blood stain on the tee shirt and one blood stain on the black pants. Fanene was the source of two blood stains on the tee shirt and the remaining blood stains on the pants. Because of these matches, Tuaolo was excluded as the source of any of the blood stains on the tee shirt and pants.
Kidd used the PCR procedure to compare the DNA in several samples of substance found in both masks with the DNA in the four known blood samples. This substance from both masks could be saliva, perspiration and/or nasal secretion. Four samples of this substance were found in the same mask where the hair was found. The results were totally inconclusive with respect to two of these four samples. However, the results showed that there were both major and minor contributors to the other two samples. Fanene is the potential major contributor. Tuaolo, Tuiletufuga, and Ho Min cannot be either determined or excluded as the minor contributor.
Three samples of the substance were removed from the second mask. The testing results showed that Tuiletufuga was the potential major contributor to a reasonable degree of scientific certainty. Because of this finding, Tuaolo, Fanene, and Ho Min are excluded as the sources of the samples in the second mask.
Kidd also used the PCR technique to compare the DNA in a blood stain on the masking tape removed from Tuaolo’s bedroom with the four known blood samples. The results showed that both Tuiletufuga and Ho Min are potential sources of this blood stain, but excluded Tuaolo and Fanene as the source.
Knuckles examined the masking tape items recovered by the police at the crime scene. She compared the strips of masking tape found on the floor of the customer area and on the floor of the cashier’s office at the poker machine center with the roll of masking tape found in the cashier’s office. The strips were different in color, width, and texture from the roll and thus did not originate from the roll. She asked if any other roll of masking tape was seized and later received the roll recovered from Tuaolo’s bedroom. The strips of masking tape and this second roll of masking tape are of consistent color, texture, and other physical characteristics, and in chemical composition. However, there was no identifiable tear match between the strips and the second roll. Thus, Knuckles concluded that the strips could have originated from the second roll or tape of similar manufacture.
Terry G. Amburgey (“Amburgey”), also employed in the FBI laboratory, was qualified as an expert in comparative fingerprint identifications. He used several methods most likely to be productive in lifting latent *308fingerprints on the two strips of masking tape, the three shotgun shells, the cellular telephone, and the roll of masking tape recovered from Tuaolo’s bedroom. He found only one latent fingerprint, the extreme tip of a finger on one set of masking tape strips, but none of probative value on the other items'. Amburgey compared the one latent fingerprint with the submitted fingerprints of Tuaolo, Tuiletufuga, Fanene, Ho Min, and Fa’alogo and determined that it was not the fingerprint of any of these persons.
Robert Fram (“Fram”), another FBI laboratory employee, was qualified as an expert in trace evidence comparisons of questioned hair with known hair. Hair comparisons are not a basis for absolute identification of persons. They only determine that for identification purposes, the hairs examined are similar or dissimilar with each other, based on consistent or inconsistent characteristics, or are insufficient for this purpose, due to the presence of both similar and dissimilar characteristics. Fram compared the hair removed from the masks with known hair samples of Tuaolo, Tuiletufuga, and Fanene. The removed hair is similar to Tuaolo’s hair and dissimilar to Tuiletufuga’s and Fanene’s hairs.
The expert opinion testimony concerning fingerprints does not connect Tuaolo to the crimes charged and, in fact, is not helpful in this particular case. The expert opinion testimony concerning trace and DNA mitochondrial examinations of the hair found in the mask is essentially inconclusive with respect to Tuaolo. Even though Tuaolo could be the source of this hair, it is also known that he was in Tuiletufuga’s pickup at least after the crimes were committed. The expert opinion testimony concerning the masking tape comparisons shows that the tape apparently used to tie Ho Min or Fa’alogo, or both, may have originated from the roll of masking tape seized at Tuaolo’s bedroom or may have only been produced by the same manufacturer. We know that this roll was in Tuiletufuga’s pickup after the crimes were committed, but Mina, Tuaolo’s wife, explained, reasonably and innocently if believed, how the roll happened to be in the bedroom.
However, the results of the DNA RFLP and PCR examinations are telling. The RFLP testing positively identified Tuiletufuga and Fanene as the sources of the blood stains on the white tee shirt and black pants recovered from Tuiletufuga’s pickup and, by his admission, worn by Fanene during the criminal acts. This testing excluded Tuaolo and Ho Min as sources of these blood stains. The PCR process showed that Fanene was potential major contributor of the saliva, perspiration and/or nasal secretion substance removed from one of the masks found in the pickup, and did not exclude Tuaolo, Tuiletufuga, or Ho Min as the minor contributor of the substance. The same process demonstrated that Tuiletufuga was the potential major contributor of the same type of *309substance taken from the second mask. The examination supported this finding to a reasonable degree of scientific certainty and thus excluded Tuaolo, Fanene, and Ho Min as sources of the substance in the second mask. The PCR technique also identified Tuiletufuga and Ho Min as potential sources of the blood stain on the roll of masking tape found in Tuaolo’s bedroom, and at the same time, excluded Tuaolo and Fanene as sources of this blood stain.
E. Reasonable Doubt
The DNA connections of Tuiletufuga and Fanene with the two masks leads us to have reasonable doubt about Tuaolo’s guilt as a principal. This evidence strongly points to them as the certain principal perpetrators of the crimes charged. When coupled, in particular, with Fanene’s admissions of committing the crimes with Tuiletufuga, recited in explicit detail, our doubt is reinforced. However, Fanene’s implication of Tuaolo’s participation in the crimes is questionable and adds to our doubt. In this light, Tuaolo’s alibi is also plausible. The evidence certainly falls far short of proving beyond a reasonable doubt that Tuaolo was an accessory to the crimes.
DECISION
We find Tuaolo not guilty of the four crimes charged in the information.
It is so ordered.
Sunia also interviewed Mina on May 6, 1998. During that interview, she told Sunia that Tuaolo owned a stainless steel revolver, which she last saw on April 28, 1998, and that she did not know where Tuaolo may have “hid” the gun. Mina put her credibility at serious issue during cross-examination when she denied that Tuaolo owned a gun and denied that she made the prior inconsistent statement to Simia that Tuaolo owned a stainless steel revolver.
There are two noteworthy inconsistencies between Tuaolo’s written statement and Mina’s testimony. First, Tuaolo wrote that Tuiletufuga drove him to Mageo’s birthday party in Aua at about 11:00 p.m. on April 29. Mina testified that Tuaolo went to the party at about 6:00 or 7:00 p.m. Second, Tuaolo wrote that after he was picked up at the party, Tuiletufuga drove him to and dropped him off at Tautua Hall. Tuaolo stated he walked into the poker machine center and was there briefly to tell a person identified as Boy Faumuina to look after the center. Then he walked home. Mina, on the other hand, testified that shortly after Tuaolo came to the pool hall from the party, at about 1:00 a.m. on April 30, and before Mageo, Fruean, and Moa arrived, Tuaolo walked to the poker machine premises and returned about 10 minutes later, around 1:30 a. m. Like her prior inconsistent statement to Sunia, Mina’ s credibility is put at issue by these inconsistencies. At the very least, they indicate that Mina was prepared to stretch the truth in her effort to help her husband Tuaolo. In fact, Fa’alogo testified that she did not see Tuaolo at the poker machine premises at any time during the evening before the crimes were committed. Tuaolo’s visit to the poker machine premises about 90 minutes before the offenses were committed, if it happened, may have been in preparation for commission of the crimes. However, under the evidence, such a finding would be highly speculative.
ASG has charged Tuiletufuga with these crimes. A warrant for his arrest is outstanding. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486871/ | OPINION & ORDER CONTINUING PROCEEDINGS AND REMANDING MATTER TO LAND COMMISSION
I. INTRODUCTION
This matter concerns a small commercial building in Fagatogo, commonly known as the BP Building (“the building”), located on land claimed by the Ta’amuvaigafa (“Ta’amu”) family. The building was built by the Burns Philp (South Seas) Co. Ltd. (“BP”), in the early 1950s and it was used as one of BP’s merchandizing outlets. At the time, BP had leased the site from the then sa’o of the Ta’amu family, Ta’amu Faiumu. The lease term was originally for twenty years but it was subsequently extended in May 1972, for an additional ten years, by Ta’amu Iosefo Elisara. In both instances of lease and renewal, the lease process was handled strictly in accordance with the statute governing the alienation and leasing of native (communal) land, A.S.C.A. §§ 27.0221, et seq., (the “Alienation of Land Act”). That is, the lease agreement was routed through the Land Commission and approved by the Governor.
BP’s tenancy finally ended in 1982. In accordance with the terms of the lease, the building became part of the lessor’s property. Thereafter, the building remained under the control and direction of the family sa’o up until the demise of Ta’amu Iosefa Elisara. Following the death of Ta’amu Iosefa Elisara, the family’s matai title remained vacant for many years until the succession of defendant Ta’amu Ta’alolo Iakopo in June 1998. In the interim, however, Le’ala Pili (“Le’ala”), a member of the Ta’amu family, took it upon herself to rent the building out to third-parties. She initially let the premises out to Mrs. Nive Reed for an unspecified rent and term, applying the rental proceeds derived from that tenancy to the use of her immediate side of the family; namely, the heirs of Ta’amu Ma’alona.
Le’ala subsequently entered into another lease agreement, again on behalf of “the Ta’amu Ma’alona heirs, “with plaintiff/cross-defendant *313Tumua Anoa’i (“Anoa’i”) for a term of 10 years at a monthly rental of $800. This instrument, dated April 25, 1995, was accepted by the Territorial Registrar for recording as a “House Lease,” without regard to the requirements of the Alienation of Land Act, as more fully discussed below.
According to Le’ala, she has never received any rents from Anoa’i, but it was also evident that she did not pursue the unpaid rents with any vigor. Anoa’i in turn sublet the building to defendant/cross-claimant Michael Lien Shu Lai (“Lai”), a “nonnative.” A.S.C.A. § 37.0201(e). This sublease, executed with Lai on June 15, 1996, provided for a term of 5 years with a graduated monthly rental rate of $2,100 during the first year, $2,200 during the second, and $2,300 for the remaining years.
Shortly after the current Ta’amu took office, he intervened on the family’s behalf, making a demand upon Lai, who then decided to deal with the Ta’amu family’s matai. Consequently, Ta’amu, on behalf of the Ta’amu family, and Lai, as “President Evergreen Corporation, Inc.,” entered into an entirely separate lease agreement commencing Januaiy 1, 1999, for a term of 5 years, at a monthly rental of $2,300.
II. FINDINGS & DECISION
The proceedings now before the Court first arose with Anoa’i filing suit against Lai on their sublease agreement. Lai responded with a counterclaim seeking damages against Anoa’i, alleging the latter’s failure to renovate the building with rental advances made to him for that purpose. Additionally, Lai filed an interpleader action joining both Anoa’i and Ta’amu. Pending final disposition of the matter, the Court earlier issued an interim order requiring Lai to deposit into registry of the Court the rental proceeds on interpleader.
Le’ala was called by Anoa’i to explain her dealings with the building. She testified that the building was not on Ta’amu land, but on communal land of the Tiumalu family, of which she is also a member. According to her understanding, Ta’amu Ma’alona, who was also a member of the Tiumalu family, dealt with BP not as sa’o of the Ta’amu family but as a member of the Tiumalu family. Le’ala thus, somehow, claims entitlement to lease the building on behalf of the Ta’amu Ma’alona’s immediate descendants.1
*314The evidence, however, quite clearly shows that the former Ta’amu titleholders who dealt with BP were dealing as Ta’amu titleholders rather than as some dubious sort of agent for the Tiumalu family. The alienation process giving rise to the BP’s leases, which included proceedings before the Land Commission and approval by the Governor, is conspicuously void of any suggestion whatsoever that the demised premises in question was anything but Ta’amu family property. We further find that the Ta’amu titleholders who dealt with the Land Commission in 1953 and 1972 were Ta’amu Faiumu and Ta’amu Elisara respectively. Also conspicuous over the years to this day is the lack of any objection or adverse claim to the leasehold site from any of the Tiumalu titleholders.
We find that the building is the property of the Ta’amu family.
A. Le ’ala-to-Anoa ’i Lease, Anoa ’i-to-Lai Sublease
It is black letter law that the sa ‘o has pule or the authority to make decisions about family lands. See Sagapolutele v. Sagapolutele, 20 A.S.R.3d 16 (Land & Titles Div. 1991); Lutu v. Taesaliali’i 11 A.S.R.2d 80 (Land & Titles Div. 1989); Gi v. Temu, 11 A.S.R.2d 137 (Land & Titles Div. 1989); Coffin v. Mageo 4 A.S.R. 14 (Trial Div. 1970); Lutu v. Fuimaona, 4 A.S.R. 450 (Trial Div. 1964); Tiumalu v. Scanlan 4 A.S.R. 194 (Trial Div. 1961). Conversely, an untitled family member has no pule or authority to unilaterally deal in family property. Malaga v. Alaga, 4 A.S.R. 735, 737 (Trial Div. 1966) (‘“Who can act as a matai?’ The law in American Samoa is quite clear.. .only a matai has the powers, the authority, the pule of the matai”); Lolo v. Heirs of Sekio, 4 A.S.R. 477, 481 (Trial Div. 1964) (“[Ujnder Samoan Custom, family lands are under the jurisdiction of the matai.... A young man has no authority to permit strangers to live on communal family lands”). See also Gi, 11 A.S.R.2d at 141 (“A unilateral and...secret attempt by [a matai] to give his daughter sole authority over family land to the exclusion of his successors in title would seem to have been inconsistent with Samoa tradition, and would certainly have been contrary to statutory law of American Samoa with regard to the alienation of family land”).
Quite clearly, Le’ala had no authority, cognizable either in law or in custom, to lease out Ta’amu family property to Anoa’i. As she was without right to convey a leasehold estate to Anoa’i, the latter equally had nothing in the way of a leasehold interest to sublet. Moreover, the building, as we have found, is a part of the communal property of Ta’amu family. As such, any lease thereof is subject to the requirements of the Alienation of Land Act, which in pertinent part provides:
(a) Native [or communal] land may, with the approval of the Governor, be leased to any person for any term not exceeding 55 years for any purpose, except for the *315working of mineral and cutting timber.
(b) Provisional agreements for the leasing of native land as provided in subsection (a) may be entered into with the native proprietor or proprietors. Every such provisional agreement, stating in full its terms and conditions, shall be submitted with a plan showing the situation of the land to the Governor for approval, and it shall have no validity until such approval has been signified in writing.
A.S.C.A. § 37.0221 (emphasis added).
None of the lease instruments presented to the court are in compliance with statute. The documents pertaining to the lease and sublease involving Anoa’i are not even in contemplation of § 37.0321(b) so as to at least qualify for “provisional agreement^]” pending gubernatorial approval. That is because the claimed lessor Le’ala does not qualify as a “native proprietor,” as that term appears in the enactment. From the cases above discussed, the term “native proprietor” necessarily references in this instance the family sa’o or senior matai Ta’amu.
Even if the building was the separate property of the heirs of Ta’amu Ma’alona, and it is clearly not, we fail to see how calling a lease a “house lease” thereby excludes the transaction from the requirements of the Alienation of Land Act, applicable to native land leases. First, the Alienation of Land Act requires the Land Commission to meet periodically for the purposes of “making recommendations respecting the approval or disapproval of instruments affecting ...possession of [communal] land....” A.S.C.A. § 37.0203(b) (emphasis added). Leaseholds clearly come within the reach of this enactment. Moreover, the house-lease stratagem too conveniently ignores the reality that the communal land on which a structure is located, is necessarily encumbered. Buildings do not exist in a vacuum, notwithstanding the Separation of Structures From Communal Land Act, A.S.C.A. §§ 37.1501, (the “Separation Act”). This statute provides a vehicle for treating what would otherwise be realty into personalty for the.sole statutory aim of facilitating secured financing for family members who build on communal land. The Separation Act does not purport to do anything more. It certainly does not attempt to in any way to repeal the mandates of the Alienation of Land Act as it regulates the leasing of native land.2
*316The Separation Act clearly does not facilitate the automatic encumbrance of the situs really without the agreement of the landowner (that is, the sa’o of the landowning family). For instance, a mortgagee who takes a mortgage on a separated structure has, without more, only the salvage value of the separated structure in the event of a foreclosure. Nothing more. The mortgagee has no interest in the underlying land without agreement of the landowner (the Samoan family through its sa’o) when properly transferred in accordance with the Land Alienation Act.
Similarly with a leasehold situation, it cannot be sensibly suggested that the lease of a separated house or building does not involve the situs realty. To the contrary, the lease of a house or building also inextricably involves the transfer of “possession,” A.S.C.A. § 37.0203(c), of the situs realty. This hard and fast reality simply cannot be blissfully ignored on some vague assumption that the Separation Act has somehow otherwise adjusted property rights.
Moreover, the functionality of any house or building is meaningful only in context that include such real property incidents such as rights of ingress/egress and access to a certain cartilage area for parking and other attendant needs. Again, buildings do not exist in a vacuum, and there is absolutely nothing in the Separation Act that remotely suggests that these sort of rights are part and parcel of the fictional statutory state of separation.
Furthermore, and from a policy3 point of view, it does not take too much imagination to picture the sort of mischief potential with the “house-lease” ruse. Among other things, this stratagem is anti-fa’a Samoa. It is in derogation of Samoan custom that recognizes that an untitled person does not have the right to pennit strangers to live on *317communal land. Lolo v. Heirs of Sekio, supra. It thus has the potential for eroding the notion of matai pule, and hence a “cornerstone” of the fa’a Samoa (the Samoan way of life). Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983) (“The Samoan way of life has twin cornerstones, the matai system and communal land tenure”). It opens the door to extended encumbrance of communal lands (situs realty) to the exclusion of the matai and family. The Alienation of Land Act limits the leasing of communal land to terms not exceeding 55 years. A.S.CA. § 37.0221(a). If these limits are not applicable to a “house-lease,” such would appear to without any limits as to term. Additionally, the house-lease ruse would open the door to communal property dealings which bypass legislative policy regulating the leasing of communal property, see A.S.C.A. § 37.0221, and it would open the door for unsupervised “improvident” communal land dealings, A.S.CA. § 37.0203(c).4
B. Ta’amuvaigafa-to-LaiLease
With respect to the Ta’amu and Lai lease, this instrument, although seemingly dated-it was executed February 22, 1999- and qualifies as a “provisional agreement” pending gubernatorial approval in contemplation of the Alienation of Land Act, A.S.C.A. § 37.0221(b). The evidence shows that the contracting parties, Ta’amu and Lai with capacity to enter into a lease of communal land submitted their concluded, but provisional, lease agreement, together with a plan of the demised premises as required by § 37.0221(b), to the Land Commission for approval processing in accordance with the requirements of § 37.0203(b). Notwithstanding this statutory mandate, the Land Commission inexplicably altered the whole statutory process by withholding the parties’ leasehold instrument from the Governor solely on the unelaborated observation that the “Taamuvaigafa matter is being removed because this is a house lease?’ See Land COMMISSION Minutes, Feb. 18, 2000. This exceptionary treatment appears even less merited given the actual terms of the proposed lease agreement which refer to the demised premises as “that pieces (sic) of land situated in the village of Fagatogo,” followed by a detailed description of that land in metes and bounds. The Land Commission thus committed gross error with its apparent theory that land is not land if you call it something else. We remind the Land Commission of the civil penalties that flow from any violations of Chapter 02, of Title 37, see A.S.C.A. § 37.0230,5 which *318apply equally to private individuals and public officials whose acts thwart the Governor’s statutoiy duties.
III. CONCLUSIONS
A. Le’ala-to-Anoa’iLease, Anoa’i-to-LaiSublease.
We conclude that the Anoa’i lease and sublease are nullities, being in violation of Alienation of Land Act, A.S.C.A. § 37.0221(b), and being nullities concluded between competent contracting parties, neither can be heard to complain. Anoa’i having had nothing to lease to Lai, he has no claim upon which relief can be based and his complaint should, therefore, be dismissed. As a normative failing to comply with the mandatory provisions of the Alienation of Land Act, he is without a remedy. Specifically, A.S.C.A. § 37.0230 provides in pertinent part:
[A]ny nonnative failing to conform to [Title 37] [] chapter [02],..shall be liable to the forfeiture to the owner of land, of all improvements he may have erected or made on the land and no action shall lie for recovery of any payment he may have made or other expenditure he may have incurred in respect thereof.
(emphasis added).
B. Ta’amuvaigafa-to-LaiLease
We conclude on Lai’s interpleader action that Ta’amu, on behalf of the Ta’amu family, has clearly shown superior rights to the land, and hence the building, over Anoa’i’s claim. We note, however, from the Land Commission’s file on the Ta’amu and Lai proposed lease, in evidence as Ex. “8,” that there were a number of objections lodged with the Land Commission, besides Anoa’i’s. While Anoa’i has had his day in court, it is not clear to us on the record before us that the other objectors have. Presumably with the tact taken by the Land Commission to avoid meeting on the merits of the Ta’amu and Lai proposed lease, the claims of the other objectors, if not voluntarily withdrawn, still remain pending. Without any of the other objectors before us, full and final relief sought here by Lai’s interpleader action is not available at this time. In aid of our jurisdiction, this matter should be continued. We invoke the procedural flexibility permitted the Land and Titles Division by A.S.C.A. § 3.0242(b), and find it “most consistent with natural justice and convenience,” to continue and remand to the Land Commission.
IV. ORDER
*319For reasons given, and in aid of our jurisdiction in this matter, the following orders are entered:
1) Anoa’i’s complaint against Lai on the sublease is dismissed and Anoa’i shall take nothing thereby.
2) Lai’s cross-complaint against Anoa’i on the sublease is dismissed and Lai shall take nothing thereby.
3) The Ta’amu/Lai proposed lease is remanded to the Land Commission and Governor for approval processing in accordance with the requirements of the Land Alienation Act.
4) This matter is continued sine die pending proceedings before the Land Commission and Governor.
It is so ordered.
Le’ala’s legal theory escapes us. Even if the land is the communal property of the Tiumalu family as claimed, we fail to see how the land could have possibly devolved to the issue of Ta’amu Ma’alona, as the territory’s law on descent and distribution does not apply to “communal land.” See A.S.C.A. § 40.0106 and § 40.0206.
Cf. Tiumalu v. Levi, 4 A.S.R.3d 291, 294 (Land & Titles Div. 2000) (leases “for...buildings or portions of a building...are not subject to the requirement that leases of communal land be approved by the Governor”).
Am. Samoa Rev. Const, art. 1, § 3 provides:
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.
This enactment charges the Land Commission with the duty of preventing the “improvident alienation” of communal lands. It goes without saying that provision in the Ta’amu-to-BP lease that kept the building part of the lessor’s property upon the expiration lease, was a critical term of the lease that would have featured in the Land Commission’s favorable deliberations and the Governor’s approval.
This enactment in pertinent part provides that “any person committing, *318or attempting to commit, a breach of a provision of [Title 37] [] chapter [02]...shall be liable to a fine not to exceed $200.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486872/ | DECISION AND ORDER
The evidence shows that the parties were married on November 18, 1985, and made Taputimu the marital place of residence. After 15 years of marriage, the parties separated in December 2000 and for all intents and purposes the marriage has ceased to exist. The cause of the split is another woman with whom respondent is now living. While petitioner continues to reside in Taputimu with the parties’ four minor children, the respondent, after the commencement of these proceedings, suddenly moved to Hawaii without word, even to his lawyer who has since withdrawn from representing him. According to petitioner, the marriage is irretrievably broken down; she seeks a divorce wanting to get on with her life.1
At the time of the separation, the respondent was gainfully employed with one of the local tuna canneries earning roughly the local minimum wage, a weekly paycheck of approximately $128.00. In addition, the respondent had, during the marriage, been a member of the United States Army Reserve contingent in the Territory. He recently accumulated twenty years of service, entitling him to a retirement pension when he reaches age 60. Respondent is currently 52 years of age. At the same time, the respondent also worked with the Army’s Post Exchange.
We are satisfied on the evidence that the material allegations of the petition have been proven. Specifically, we find and conclude that:
1. That the petitioner has been a bona fide resident of the territory for period in excess of one year preceding the filing of her petition. At the same time, the respondent has been duly served process. We therefore note jurisdiction under A.S.C.A. § 42.0204 and § 42.0206(a)(1).
*3212. That the parties’ differences are irreconcilable, constituting grounds for divorce under A.S.C.A. § 42.0202(6).
3. That the parties’ children are best left to the continuing care and custody of their mother, with reasonable visitation rights to the respondent. The children need the support of their father who is able bodied and capable of paying child support toward the children’s needs. Under A.S.C.A. § 42.0210, the court may by order provide for “the custody, care, maintenance and support of the minor children of the parties.” In view of respondent’s work history, we find that child support in the sum of $100 per month per child is reasonable; to be payable by the respondent to petitioner throughout each child’s legal dependency.
4. That under A.S.C.A. § 42.0210, “the court may make a division of, or order with respect to, the property of either or both of the parties as it deems fair and proper.” In American Samoa, a military pension or “retired pay” is considered marital property and thus “subject to division by this court under the Uniformed Services Former Spouses Protection Act (“FSPA”), 10 U.S.C. § 1408.” Pagofie v. Pagofie, DR No. 114-98 (Trial Div. 1999); see In re Marriage of Gallo, 752 P.2d 47, 48-50 (Colo. 1988) (discussing the history, purpose, and scheme of FSPA).
Like any divisible asset, a divorcing spouse’s pension must vest before it can be distributed; “a mere expectancy is not subject to division.” Storm v. Storm, 470 P.2d 367, 370 (Wyo. 1970); see Christopher v. Christopher, 871 S.W.2d 398, 399 (Ark. 1994). Military pensions vest after 20 years of service. Durham v. Durham, 708 S.W.2d 618, 619 (Ark. 1986); In re Marriage of Gallo, 752 P.2d at 48. Once vested, however, the pension is subject to division in a divorce even though it may not have matured. See In re Marriage of Gallo, 752 P.2d at 50-51, citing In re Marriage of Grubb, 745 P.2d 661 (Colo. 1987). In this case, the pension has vested, as the husband served over 20 years; it will not mature, though, for another 8 years.
Additionally, a nonmilitary spouse cannot receive a portion of the military pension unless the “parties’ marriage lasted 10 years or more during the time the one spouse was a member of the armed forces.” In re Marriage of Gallo, 752 P.2d at 50; see also 10 U.S.C. § 1408 (d)(1)-(2). Once a nonmilitary spouse qualifies, the total amount of the retired pay available “may not exceed 50 percent of such disposable retired pay.” 10 U.S.C. § 1408 (e)(1).
Giving due regard to the lengthy duration of the marriage, the petitioner’s military pension entitlement or retired pay is deemed to be marital property. Except for Petitioner’s military retirement benefits, there is no accumulated marital property of any consequence. Therefore, *322an award to petitioner of 50% of respondent’s military pension or retired pay is fair and proper under the circumstances.2
Order
1.The petition for divorce is granted, with the respondent restored to her maiden name if she so desires. The marriage of the parties is hereby dissolved, and each is free to remarry.
2. The petitioner shall have custody of the parties’ minor children with reasonable rights of visitation to the respondent.
3. The respondent shall pay to petitioner toward the needs the children the sum of $100 per month per child. Such payments shall continue throughout each child’s respective dependency.
4. Half of the respondent’s military pension proceeds is awarded, and shall be payable, to petitioner.
It is so ordered.
Notwithstanding, respondent has been in contact with petitioner asking that he be given one of their children. He also expressed to petitioner his desire not wanting to divorce nor having to pay child support.
The petitioner may wish to note the provisions of U.S.C. § 1408(b), for service, of this order, requirements upon the “Secretary,” and subparagraph (d)(1), with regards to property division payments. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486873/ | ORDER ON CLAIMANT’S MOTION TO DISMISS AND ON PETITION TO ADMIT WILL TO PROBATE
The factual background to this matter and our conclusions as to testamentary capacity and authenticity of the testamentary document before the court is set out in our Order On Motion For Probate, entered March 12, 2001. The sole remaining issue for resolution concerns the fact of the missing original will and whether a photocopy filed with the petition for probate can be held to sufficiently express the decedent’s testamentary intent.
On December 18, 2001, the matter came on for hearing upon motion filed by claimant/intervenor Faleula Daphne Togia'i (“Togia'i”) to dismiss the outstanding petition of the named executor of the will, Finagalo Aveina (the “executor”), to admit the will to probate, citing grounds of delay. In lieu of probate, Togia'i seeks administration of the decedent’s estate in accordance with the intestate succession statute, A.S.C.A. “40.0201 etseq.
The executor, citing to his counsel’s recent off-island surgery and unavoidable delay in gaining access to the files of testator’s late attorney, Mulitauaopele Ivi (“Pele”), moved to resume hearing on the issue of revocation. There being no basis for Togia'i’s motion, and there being no objection to the immediate resumption of proceedings, we heard evidence on the issue of revocation.
Leaisa Asuega-Ieremia (“Asuega-Ieremia”), one of the witnesses to testator’s will, and an employee at all relevant times in Pele’s law office, *324had earlier testified about the preparation and execution of the will. She testified this time that she had recently, at petitioner’s behest, searched counsel Pele’s files on storage at his family home looking out for anything on testator’s matters.1 She further testified that her search did not uncover any files on testator’s matters but that a number of the law office files were missing, while others were hurricane damaged. Mrs. Ieremia also testified that the originals of some of the wills drawn up by Pele, were retained by the law office while in other cases, the original was taken by the client.
The executor took the stand to explain how the photocopy of the will, on file with the court, was located. He testified that some time after his mother’s demise he received a call from Amerika Samoa Bank regarding his mother’s safely deposit box. He went thereafter to the bank to look into the matter and when the contents of the safety deposit box were finally examined, the will copy was discovered. That after this discovery, he went and saw his mother’s attorney, Pele and after meeting with him the lawyer’s only instructions to him was to go ahead and do what the will required. He heard no more from the lawyer.
One of testator’s daughters and a granddaughter testified that their mother/grandmother had confided in each of them about her testamentary intentions; specifically, about testator’s desire to ensure that the family business remain in the capable direction of her son Finagalo.
Togia'i also took the stand to again assert her position of undue influence. She testified that her mother had also confided in her about her testamentary intentions, and about her half brother Finagalo’s overbearing influence to get her to sign a will. Togia'i further testified that petitioner Finagalo had essentially admitted to her his being the root cause of their mother’s stress related heart attack.
Findings & Discussion
At the outset, we affirm our prior finding of no undue influence. We again find Ms. Togia'i’s testimony to be unbelievable. We add at this time that the subject estate is largely comprised of testator’s share in a family business, which she had developed with her surviving spouse Averna. In these circumstances, it is hardly surprising, therefore, that testator would only have in mind as objects of her bequests, the children of her marriage with her surviving spouse and business partner. It is equally not surprising, therefore, that testator’s bequests involving the Avefría business did not embrace the children of her prior marriage to *325Togia'i. Against this light, the undue influence claims of Togia'i (a child of a fonner marriage) appear even less credible.
We are satisfied that the credible evidence here received clearly shows that the missing original is more the case of a lost original rather than one of revocation. Under these circumstances, the photocopy may be admitted to probate. In re Arbuckle’s Estate, 220 P.2d 950 (Cal. 1950). As we earlier found, there was no question that the testamentary document before us is an unaltered photocopy of the original will. The testimony of Ms. Asuega-Ieremia, a disinterested party, was unequivocal. There is no question that the will was executed with full testamentary capacity in accordance with applicable law. At the same time, testator made her testamentary intentions well known to some of her children, which expressions are corroborative of the will’s bequests. Moreover, the missing original is sufficiently explained by Pele’s practice of retaining will originals. Lastly, the fact that testator had kept the photocopy she had in her possession in a bank safety deposit box is of significant import. This fact clearly evidences the importance of the document to the testator; this fact is clearly antithetical to an intent to revoke.
Order
We conclude in favor of preserving the testator’s expressed testamentary intent and admit the testamentary document to probate. Petition is granted.
It is so ordered.
Ms. Ieremia also testified that Mrs. Pele had been off-island for some extended time and hence the delay in undertaking the search. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486874/ | ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND DIRECTING TRIAL SETTING
This matter came on regularly for hearing on February 11, 2002, upon plaintiff Alai'asa’s motion for summary judgment. Alai'asa contends the absence of triable issues of fact and that he is entitled, as a matter of law, to summary judgment. T.C.R.C.P. Rule 56.
The dispute concerns a house site, on land located in Faleniu village which Alai'asa claims to be “Toa,” and the subject of previous litigation before this court in Moea'i v. Te'o, 8 A.S.R.2d 85 (Land & Titles Div. 1988); aff’d sub nom. Moea'i v. Alai'a, 12 A.S.R.2d 91 (App. Div. 1989). In that matter, an area of land known as “Toa” was awarded to the Alai'asa’s family, while other portions of immediately adjacent land were awarded to the Moea'i family.
In support of his motion for summary judgment, Alai'asa filed his affidavit averring, inter alia, that: 1) defendant Seiuli’s house lies within “Toa” as awarded him in Moea'i v. Te'o, supra; and that 2) Seiuli’s claim to entitlement is derivative based, upon the competing title claims of Moea’i and/or Te’o, which claims the Moea'i v. Te'o court had resolved in his favor. Alai'asa thus argues a res judicata bar to defendant’s derivative claims, citing to Alai'asa v. Te'o, 5 A.S.R.3d 266, (Land & Titles Div. 2001).
With regard to Alai'asa’s contention that Seiuli’s claim is derivative based, we find that Seiuli had admitted as much in her deposition taken July 2, 2001. Seiuli had indeed deposed that she was brought onto the land in question by Moea'i in 1970. Dep. Tr. 4.
Seiuli, however, argues triable issues of fact. In her deposition, Seiuli also deposed that the land she was living on is Moea'i family land known as “Vaivai.” Dep. Tr. 11. She moreover contends that Alai'asa’s averment as to the location of her house is merely self-serving and that Alai'asa ought to be put to proof. (See Def.’s Opp’n To Pl.’s Mot. Summ. J. at 2.)
We agree with Seiuli that there are triable issues of fact precluding *327summary judgment. In essence, she says “Vaivai,” he says “Toa.” But T.C.R.C.P. Rule 56(c) requires the court to “not only treat the adverse party’s evidence as true but [that] [s]he must also be given the benefit of all inferences reasonably deducible from the evidence.” D. Gokal & Co. Ltd., v. Daily Shoppers, Inc., 13 A.S.R.2d 11, 12 (Tr. Div. 1989), citing Lokan v. Lokan, 6 A.S.R.2d 44, (Tr. Div. 1987). See also Plaza Department Stores v. Duchnak, 26 A.S.R.2d 82. (Tr. Div. 1994) (“the court must. . . resolve all doubts as to the existence of genuine issues of fact against the moving party, and view all inferences from the facts in the light most favorable to part[y] opposing the motion”). On this basis, Alai'asa’s motion for summaiy judgment must fail.
Order
Accordingly, plaintiffs motion for summary judgment is hereby denied.
Counsel are directed to confer with the Clerk of Courts as to the earliest available trial date.1
It is so ordered.
In a nutshell, it looks like the services of a qualified surveyor might be in order to assist the court in resolving the dispute as to situs. Indeed, Alai'asa had resorted to calling a surveyor in Alai'asa v. Te'o, 5 A.S.R.3d 266 (Land & Titles Div. 2001), a matter not unlike the one now before us in factual issues. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486875/ | ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT
In part, this case involves alleged breach of contract on the part of defendant for failure to make a payment to plaintiff. Defendant’s response is that plaintiff first breached the contract thus freeing defendant of the obligation to make the payment in question. Defendant filed for partial summary judgment concerning this payment, alleging that there is no issue as to any material fact as to whether plaintiff breached first, further arguing that judgment should be given in favor of defendant.
Standard of Review
In a motion for summary judgment the Court must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party. Plaza Department Store, Inc. v. Duchnak, 26 A.S.R. 2d 82, 83 (Trial Div. 1994); Lokan v. Lokan, 6 A.S.R. 2d 44 (Trial Div. 1987); D. Gokal & Co., Ltd. v. Daily Shoppers Inc., et al., 13 A.S.R. 2d 11, 12 (Trial Div. 1989). Summary judgment is only appropriate when no genuine issue as to any material fact exists and the moving party is entitled to judgment as amatter oflaw. PlazaDep’tStore at 83; T.C.R.C.P. 56(c).
Discussion
*329Defendant’s motion malees four allegations of breach of contract on the part of plaintiff. The allegations include: a failure by plaintiff to obtain a general contractors license; a failure by plaintiff to obtain a performance bond; and a failure by plaintiff to maintain construction plans on the job site. Defendant claims a contractual right to withhold any payments due as a result of plaintiffs alleged breaches. The contract itself outlines the basis for withholding payments, including a notice requirement giving parties an opportunity to correct alleged deficiencies.
Before delving into the four alleged breaches, we first note that there is a factual dispute as to whether defendant gave plaintiff sufficient notice of its intent to withhold payment, in this case what has been referred to as “Payment #4.” Defendant claims that notice was sent by facsimile to plaintiff at the end of August, 2001, while plaintiff denies receiving such notice. Plaintiff does admit to receiving notice of the three alleged deficiencies in early August, but plaintiff also puts forth evidence that a good faith effort was made to correct the deficiencies well before defendant’s alleged notice of withholding payment date. The exact meaning of this earlier notice remains in dispute. As the contract requires notice before a party can withhold payment for deficiencies, and there is a factual dispute as to whether this notice was given, this court cannot grant partial summary judgment to the defendant as to the legitimacy of its withholding Payment #4.
As to the specific allegations of deficiencies constituting breach, the plaintiff has introduced evidence that indicates factual dispute in each case. Plaintiff flatly disagrees with defendant’s allegation that construction plans were not maintained on the job site. Plaintiff has presented evidence that a general contractor’s license was posted at the job site before defendant’s alleged notice of intent to withhold payment. Finally, plaintiff points to the contract itself in response to the alleged deficiency of failing to obtain bonding, obtaining a personal surety, as plaintiff has presented evidence that it has done, is described in the contract as an alternative to bonding. Plaintiff also argues that negotiations between the parties had been taking place to find a mutually beneficial alternative to bonding.
Whether the weight of the evidence eventually supports plaintiffs positions on these issues is one thing. What matters for the time being is that plaintiff can point to some evidence to support its positions. As noted, the legal standard for summary judgment requires the court to consider the evidence in the light most favorable to the non-moving party. We find that there are genuine issues as to material facts and conclude therefore that the defendant is not entitled to judgment as a matter of law.
*330Order
The motion is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486876/ | *331ORDER DENYING MOTIONS TO SUPPRESS STATEMENTS AND FOR MENTAL EXAMINATION
We deny the motion to suppress statements made by the defendant and the motion seeking a mental examination of the defendant, both of which were submitted by the defendant, Sui Sape Tavete, on March 11, 2002, and heard by this court on March 28,2002. Defendant and both counsel were present at the hearing.
We first deal with defendant’s motion to suppress his statements made to the police during interrogation. Defendant is being charged with 1st Degree Burglary, 1st Degree Assault, and attempted 1st degree Robbery. He was seventeen years old at the time of his arrest for these crimes. Defendant was apprised of his rights Miranda rights which he voluntarily waived before making his statements to the police during interrogation. Under a provision of the Juvenile Justice Act, Title 45, A.S.C.A., statements made by a child during intenrogation are not admissible unless, “a parent, guardian, or legal custodian of the child was present at the interrogation,” and they were made aware of the child’s rights. A.S.C.A. § 45.0204 (c). However, in this matter the Attorney General’s Office not has charged defendant as a juvenile under the Juvenile Justice Act, but as an “adult” under the Criminal Justice Act, Title 46 A.S.C.A. This action is within the Attorney General’s unfettered prosecutorial discretion, preserved under A.S.C.A. § 45.0115(c)(2). American Samoa Government v. Julio, 9 A.S.R.2d 128 (1988). Proceedings under the Juvenile Justice Act, are not criminal proceedings but juvenile delinquency proceedings, see A.S.C.A. § 45.0115(a)(1), and a “delinquent child” is defined by § 45.0103(9)(A) as “any child 10 years or age or older, who ... has violated federal, state, or territorial law.” However, the Juvenile Justice Act goes on to make clear that the term “delinquent child” did “not apply to children 14 years of age or older who allegedly commit crimes of violence.” A.S.C.A. § 45.0103 (9)(B).
Therefore, we conclude that at least in terms of children who allegedly commit crimes of violence, the Juvenile Justice Act does not change the common law applicable in these matters. Therefore, the defendant’s motion does not present a question of law to the court and we find that it is not dispositive on this matter.
A juvenile’s waiver of Miranda rights, like an adult’s waiver oí Miranda rights, is reviewed on the totality of the circumstances, including the background, experience, and conduct of the defendant. United States v. Doe, 155 F.3d 1070, 1073 (9th Cir.1998). Lack of parental notification is one factor to consider. Id. While an important factor to consider, it is only one of the many factors the court would examine if presented with the issue. However, the defendant did not present this issue to us and we *332decline to examine it at this time.
Next we consider the defendant’s motion seeking a mental examination to determine his competency to stand trial for the offenses charged. Defendant has not put forth sufficient evidence for the court to fully consider whether a mental examination would be desirable in this instance. Defendant’s counsel’s concerns about his client and some brief reference to familial trauma do not rise to a level that would compel this court to act. To the contrary, statute dictates that the defendant is presumed mentally competent. A.S.C.A. § 46.1306. Furthermore, competency to stand trial goes to the issue of whether a defendant has a “sufficient and present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings against him.” American Samoa Government v. Taylor, 18 A.S.R.2d 42, 44. (Trial Div. 1990). We have had nothing to suggest that the defendant is presently unable to assist counsel in the defense.
Order
Because we find the defendant’s arguments lacking in merit, we deny the motion to suppress defendant’s statements and the motion for mental examination.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486877/ | ORDER DENYING MOTION TO SUPPRESS
Defendant moves to suppress a written statement that he had given to the police on February 6, 2002. Both sides submitted briefs. The Court heard evidence and oral argument on this motion on July 25,2002.
Discussion
A. Involuntary Confession
Defendant argues, even though he was read his Miranda rights in Samoan (his native language) and signed a form indicating his waiver of those rights that he was unaware of his rights and the waiver was not given voluntarily. Two police officers testified that defendant was held only as long as necessary to take his statement, that defendant was not prevented from using the bathroom or denied water, and that no promises or deals were made with defendant.
Defendant, without producing any supporting evidence, requests the Court to imply that he was held by the police for an inordinate period of time before giving his statement, that he was not offered water or bathroom breaks, and that the officers had enticed him to give a statement on a promise to let him go home if he gave a statement. Because of these alleged violations of his rights, defendant has moved the Court to exclude his statement.
After listening to the testimony and considering the submitted briefs, the Court is satisfied that defendant did in fact waive his rights and that he did so without any form of coercion on the part of the officers. We find no reason to doubt the testimony of the officers and no contradictory evidence was offered. Although defense counsel elicited testimony from the officers on cross examination that defendant appeared nervous when he gave his written statement, nervousness per se does not necessarily translate into coercion on the part of the officers. The sort of unnerving factors that would have at the time prayed on the defendant’s mind, includes his being turned in by an eye witness-the defendant’s travelling companion apparently troubled with pangs of conscience~and his prospects, therefore, of facing serious criminal consequences on a hit and run scenario involving the death of another.
*334In proper perspective, the exclusionary rule developed as a prophylactic measure against police excessiveness. Am. Samoa Gov't v. Afamasaga, 17 A.S.R.2d 145, 148 (Trial Div. 1990). Here, we find no evidence of police excessiveness.
B. Vienna Convention
Defendant also argues that, as he is a citizen of (Independent) Samoa, the officers were obligated to read him his rights under Article 36 of the Vienna Convention, including the right to speak with his nation’s consul before being questioned.
This Court dealt with this issue in American Samoa Government v. Fonoti, CR No. 99-00, Order denying Motion to Suppress (April 23, 2001). There, we chose to apply the decided law of the 9th and 7th Circuits in holding that the exclusionary rule is not the proper remedy for a failure to warn a defendant of his rights under the Vienna Convention. See Id.; United States v. Lombera-Camorlina, 206 F.3d 882 (9th Cir., 2000); United States v. Lawal, 231 F.3d 1045. (7th Cir. 2000). Save for the public defender’s continuing position of disagreement, we have been provided no reason, nor do we see any, to reverse that decision today.
Order
Defendant waived his rights after being properly Mirandized and has failed to show that he was coerced by the police in either waiving his rights or in giving his written statement. The law is well established that failure to read a witness his rights under the Vienna Convention is not properly remedied by the exclusionary rule. Accordingly, defendant’s motion to suppress is hereby denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486878/ | ORDER DISMISSING COMPLAINT AND DISSOLVING PRELIMINARY INJUNCTION
The parties are members of the Alo family of Fagasa. Plaintiff Alo Lupematasila Williams (“Williams”) holds himself out as the sa'o (senior matai) of the Alo family and has filed suit seeking injunctive relief to enjoin the defendants Carl Steffany and Elizabeth Steffany (the “Steffanys”) from certain activity, preparatory to building, on communal lands of the Alo family.
On November 4, 1998, both parties appeared with counsel at a hearing on Williams’s motion for preliminary injunction. An issue arose at the interlocutory hearing as to the Williams’s status as sa'o, and, therefore, his standing to sue. Under A.S.C.A. § 41.1309, the sa'o is the only person authorized to bring injunctive actions on behalf of a Samoan family. However, we granted a preliminary injunction to maintain the status quo and exhorted the parties to talk, noting that the dispute appeared to have little, if any, to do with the Steffanys’ entitlement to the land, but all to do with factional rivalry and, therefore, pule.
The parties however returned to court, apparently unable to resolve anything through discussion. The Steffanys filed a motion to not only dissolve the interlocutory injunction issued by the court but to also dismiss the complaint on the contention that Williams lacked § 41.1309 standing to sue in the capacity of sa 'o. They argue that the registration of the Alo title in Williams’ name was procured unlawfully, at the direction of the Attorney General, over the objection of the Registrar. The Registrar had thus initially attempted to deny Williams’ registration application not satisfied as to Williams’ eligibility to hold a matai title in American Samoa, since he was bom in Western Samoa.1 Williams *337apparently went directly to the Attorney General who intervened and demanded the Registrar to register the Alo title in Williams’ name.2
The Steffany’s argue that the Attorney General overstepped the bounds of his authority in overruling the Registrar’s decision to deny Williams’ matai registration application. Williams, on the other hand, contends that since the Registrar’s office is a part of the Department of Legal Affairs, the Registrar is therefore under the competence of the Attorney General, who is the director of that department. He argues that the Attorney General as the head of the department had the authority to direct registration accordingly, notwithstanding the Registrar’s contrary position on the matter.
Discussion
We hold that the Attorney General had no jurisdiction to direct the registration of the matai title Alo in Williams’ name, over the objection of the Registrar. Statutorily, the Registrar does not appear to be a part of the Department of Legal Affairs nor under the sort of supervisory authority necessarily claimed by the Attorney General. Just because the Registrar’s office has, in practice, functioned administratively under the supervision of the Attorney General, it does not follow that the Attorney General may thereby assume the statutory authority specifically vested by the Fono in the Registrar.
Both the Department of Legal Affairs and the Territorial Registrar’s office were separately created by statute, A.S.C.A. § 4.0301 and A.S.C.A. § 4.0325 respectively. Being separately created at the same level of lawmaking and within the same chapter of the code, we fail to see why the Department of Legal Affair's should therefore occupy an encompassing or more primary role to that of the Registrar, Williams’s allusion to cabinet positions notwithstanding.
Additionally, we could not find any source, whether within the American Samoa Code Annotated or the American Samoa Administrative Code, which places the Registrar within or under the authority of the Department of Legal Affairs. Rather, the Fono has clearly proscribed the Registrar’s role and duties under Title 4, Chapter 11 of the American Samoa Code Annotated, A.S.C.A. §§ 4.1101, et seq., and, more specifically in the context of matai title registration, under *338Title 4, Chapter 4, A.S.C.A. §§ 1.0401, et seq. The role is not that of mere “rubber stamp.” Among other things, A.S.C.A. § 4.1104, gives the Registrar, not the Attorney General, the authority to reject registration attempts appearing “to be illegal or not entitled under the law to be registered, filed or recorded.” In the matai registration process, the Registrar, and not the Attorney General, is charged with maintaining the title register, A.S.C.A. § 1.0401, and may register successors to vacant titles. See A.S.C.A. § 1.0405-0408. In the course of this process, the Registrar “if not satisfied with the validity of information offered in the petition,” may require further information from the petitioner. A.S.C.A. § 1.0405(c). In addition, conditions the public advertisement of a succession claim upon “the territorial registrar [being first] satisfied [that] the claim, certificate, and petition are in proper form.” A.S.C.A. § 1.0406. There is no mention of the Attorney General in either chapter 11 or chapter 4 of Title 4.
Furthermore, the statutory scheme clearly intends for disputes regarding matai registration to proceed directly from the Registrar to the High Court. A.S.C.A. § 4.1106 unambiguously provides that anyone talcing issue with a decision of the Registrar can at any time apply to the High Court for “redress.” In addition, § 4.1106 also states that “the Registrar . . . may at any time, apply to the High Court for direction.” Likewise, with the matai registration process, A.S.C.A. § 1.0409 provides that “[t]he High Court shall hear and determine any disputed claim.” Thus, when the Attorney General unilaterally asserted jurisdiction and ordered registration in this case, he intruded on the court’s statutorily mandated authority to resolve the dispute. Such action is an impermissible extension of executive power in derogation of not only the court’s judicial function but the legislature’s law making function as well.
Matai titles are regulated by law. A.S.C.A. §§ 1.0401-0414; In re Matai Title “Mulitauaopele,” MT No. 04-94 (Land & Titles Div. Feb. 6, 1996). The registration of the Alo title in Williams’ name was not in accordance with law. “[A]ny matai title bestowed on any person contrary to the provisions of [chapter 4] may not in any way be recognized.” A.S.C.A. ‘ 1.0413 (emphasis added). We accordingly conclude that Williams does not have § 41.1309 standing to sue in the capacity of sa 'o.
Order
For reasons given, we grant the motion to dismiss and dissolve the interlocutory injunction heretofore entered.
It is so ordered.
A.S.C.A. § 1.0403(b) requires, among other things, that a claimant to a matai title “must have been bom on American soil.” This substantive requirement has been upheld, US nationality through naturalization notwithstanding, in In re Matai Title “I'aulualo,” 10 A.S.R.2d 116; recons den. 10 A.S.R.2d 155 (Land & Titles Div. 1994); aff’d In re Matai Title “I'aulualo,” AP No. 06-94 (App. Div. 1995). See also In re Matai Title “Patea,” 25 A.S.R.2d 139 (Land & Titles Div. 1994); In re Matai Title “Mulitauaopele,” MT No. 04-94 (Land & Titles Div. 1996).
The Registrar also alluded to other instances of intervention by the Attorney General resulting the registration of multiple holders to a single matai title and the addition of new titles to the register despite the mandate of A.S.C.A. § 1.0401(b) closing the matai register as of 1 January 1969 and prohibiting the future adding of titles not previously registered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486879/ | ORDER DENYING MOTION FOR NEW TRIAL
This dispute concerns land Lalopua in the village of Pago Pago belonging to the Fanene extended family. As the consequence of prior court decisions, the once unitary Fanene family has been split into two factions who have been fighting ever since for dominion over real family assets. The latest round in this enduring inter-factional rivalry concerns the attempt by one faction to altogether oust the other from communal land, and thereby, effectively disenfranchise the defendants’ side not only as Fanene family members, but as an extended Samoan family unit.1 We denied the petition for eviction and refused to perpetuate a *340travesty on the fa 'a Samoa, as it concerns the defendants.
We are cognizant of the fact that the land Lalopua has been fought over and previously litigated. In fact, our Order & Opinion deals quite extensively with the previous litigation and contains our related analysis. As explained in detail in our opinion, the 1945 Lalopua land decision, Taofi v. Fanene, 2 A.S.R. 197 (Trial Div. 1945), was misinterpreted by the court in 1971, LT Nos. 1089 and 1154 (Land & Titles Div. 1971), and this misinterpretation was applied as controlling precedent by later courts without close review of the substance of the decision. We found, among other things, that the defendants are in fact members of the extended Fanene family, the same family that was found to be entitled to Lalopua in 1945. The problem, essentially, is that the 1945 decision treated the Fanene family as one, but the 1971 decision treated the 1945 case as precedent in favor of only one side of the by then divided Fanene family.
Res judicata is, of course, a concern in a situation where the same land has been previously contested. However, the previous cases not only misapplied the 1945 decision, they also never addressed the issue of eviction. It is our opinion that the issue of eviction casts a new light upon all the issues revolving around the disagreement over this piece of land. The questions of who is entitled to live on Lalopua and who has pule over it cannot be properly addressed without considering the full ramifications of the 1971 decision, including possible evictions. The highest authorities in the territory are the Treaties of Cession and the Constitution. These resources dictate that we respect the right to property according to custom. See April 17, 1900 Cession of Tutuila and Aunu'u (February 20, 1929); July 16, 1904 Cession of Manu'a Islands (May 22, 1929); Rev’d Const, of Am. Samoa art. I, ‘ 2. We cannot in good conscience respect the customs and traditions of the Samoan people and continue to apply the previous wrongly footed decisions concerning this property. With the issue of eviction, we were forced to consider fundamental issues, which we outlined in our detailed opinion and order.
Order
We see no manifest error of law or mistake of fact required to order a new trial. Accordingly, we deny plaintiffs motion.
It is so ordered.
The fa'a Samoa or the Samoan way life has twin cornerstones, the matai system and communal land tenure. Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983); Tavai v. Silao, 2 A.S.R.2d 1, 2 (Land & Titles Div. 1983); Lavata'i v. Pen, AP No. 08-94, slip op. at 8 (App. Div. 1996). Thus, without communal land, the defendant’s side of the family would simply cease to exist as a Samoan family unit. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486880/ | ORDER GRANTING MOTION FOR PUBLIC FUNDS TO INVESTIGATE WITNESSES
Defendants bring this motion for funding to interview witnesses in (Independent ) Samoa. Defendants have been declared indigent and have been appointed public counsel. Their motion, therefore, falls under the ambit of AM. SAMOA Rev. Const, art. 1 § 6, which provides every defendant with the right to have the effective assistance of counsel. See Suisala v. Moaali’itele, 6 A.S.R.2d 15 (Trial Div. 1987) (incorporating *342Federal effective assistance of counsel standard); A.S.C.A. §§ 46.0502 and 46.1001.
The effective assistance of counsel requires a State or Territory to “take steps to assure that the defendant has a fair opportunity to present his defense.” Ake v. Oklahoma, 470 U.S. 68, 76 (1985).
[M]ere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and [] a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw material integral to the building of an effective defense.
Id. at 77. In order to comply with this minimal due process requirement, we must assure that the ‘“basic tools of an adequate defense’ [are] provided to those defendants who cannot afford to pay for them.” Id. (quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971)).
One basic tool of an adequate defense “is funds to pay the necessaiy and essential expenses of interviewing the material witnesses.” U.S. v. Germany, 32 F.R.D. 421, 423 (1963) (interviewing witnesses is “an essential ingredient to an attorney effectively representing a defendant in a criminal case”); U.S. v. Products Marketing, 281 F.Supp. 348, 352 (D. Del. 1968). It would be fundamentally unfair for a defendant to forego this basic tool of trial preparation on account of wealth (or lack thereof). Therefore, we agree with defendants that Article 1, Section 6 of the Territorial Constitution guarantees them this right.
One impediment, however, is that funding for these expenditures are limited. This is especially problematic in American Samoa, where an overwhelming majority of defendants rely on public counsel. We do not have a funding scheme like they have, for example, at the federal level under the Criminal Justice Act of 1964, 18 U.S.C. 3006A, and administered through local court rules and orders. See, e.g., Criminal Justice Act Plan, Eastern District of California; Order 2, Criminal Justice Act Plan of the United States District Court for the Northern District of California Pursuant to the Criminal Justice Act of 1964, as Amended.
Therefore, we cannot grant these motions outright. Generally, before approving funding, we must require a defendant to show “why the requested services are ‘necessaiy’ to an adequate defense and what the defendant expect[s] to find by using the services.” U.S. v. Gonzalez, 150 F.3d 1246, 1251 n.4 (10th Cir. 1998) (articulating standard under the Criminal Justice Act); U.S. v. Sanchez, 912 F.2d 18, 22 (2d Cir. 1990). A determination of what is “necessaiy” should not be overly rigid as long as “a reasonable attorney would engage such services for a client having the independent financial means to pay for them.” U.S. v. *343Hartfield, 513 F.2d 254 (9th Cir. 1975) (quoting U.S. v. Bass, 477 F.2d 723, 725 (9th Cir. 1973)). Based on the affidavit submitted by counsel and the evidence from the hearing, we find that the defendants have presently met this burden.1 Among other things, the Attorney has access to a number of potential witnesses who are currently in Samoa. The Public Defender’s request is reasonable.
We grant their motion for funding.2
It is so ordered.
Additionally, these sorts of motions could be considered ex parte, so as not to cause the defendant to reveal his defense. See U.S. v. Greschner, 802 F.2d 373, 379-80 (10th Cir. 1986); ASG v. Petaia, CR No. 39-99 (Trial Div. March 2, 2000) (order granting motions for public funds to hire expert witness). Though the present motion was heard in open court in an adversarial forum, there was no prejudice to the defendants as they did not reveal anything of strategic importance.
Though it is not entirely clear from where these funds will come, it is apparent that the Public Defender’s Office does not have adequate resources for conducting investigations off-island or for other reasonably necessary trial expenses such as expert witnesses. See Petaia, CR No. 39-99. The Public Defender’s Office receives only $249,500 a year or roughly less than 0.1% of ASG’s total budget. See P.L. 27-25 (2002). Far be it from us to suggest to the Fono how best to appropriate this type of funding. Various options are available, such as mimicking the Federal System or giving the Public Defender’s Office more money in their annual budget. But, one way or another, this funding must be made available as it is necessaiy to comply with the Constitution’s guarantee of representation. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486883/ | *15OPINION
While traversing the deck of the Kassandra Z, a 1200-ton tuna seiner deployed in the western Pacific Ocean, Anthony Sardina lost his footing and fell near the galley. As a result of the fall, Sardina suffered severe spine and head injuries. He brought suit against the Kassandra Z, her owner, and TCW Special Credits, to recover for his injuries. The Trial Division awarded Sardina over $300,000.00 in damages and attorneys’ fees. Sardina appeals, challenging the court’s findings as to his lost future earnings and work life expectancy, its calculation of his attorneys’ fees, its finding of contributory negligence, its award of general damages for pain and suffering, and its failure to award prejudgment interest. We have jurisdiction to review the final decision of the Trial Division pursuant to A.S.C.A. § 3.0208(c). We affirm on all issues, except with respect to prejudgment interest.
Background
The slip-and-fall which gave rise to this appeal was the result of, among other factors, a poorly maintained freezer near the galley of the Kassandra Z. The freezer had a deteriorated rubber gasket, which caused below-freezing air to escape and collide with the humid equatorial air outside. The mixture of hot and cold air condensed as water on the stainless steel door of the freezer, which streamed down the door and formed a puddle on the Kassandra Z’s deck. Grease from the adjacent galley mixed into the water, further increasing the puddle’s viscosity and its danger to the crew. To make matters worse, the portion of the deck upon which the puddle had formed lacked non-skid strips, which had been installed on other parts of the deck to prevent slipping in wet conditions. Six of the Kassandra Z’s crew members had slipped in the same area prior to Sardina’s fall.
These were the conditions on deck at 6:30 p.m. on January 17, 1996, when Sardina, who was the licensed Master and Navigator of the Kassandra Z, headed from his living quarters to the ship’s laundry room to retrieve his clothes. As Sardina stepped into the puddle in front of the galley, his front foot shot forward and he fell backward. Sardina landed on his back, slammed his head on the deck, and lost consciousness. When he awoke he was dizzy, in excruciating pain, and covered with water. At the time of the fall, Sardina was wearing flip-flops.
Sardina disembarked at the nearest port to seek medical treatment. A physician examined and X-rayed Sardina, diagnosed him with a compressed disc in his lower back, and recommended that he seek further attention. Sardina was sent home to San Diego, California, where he was treated by Dr. Laufenberg, a physician to whom he was referred by the *16Kassandra Z’s insurance company. Over the course of four visits between February and April 1996, Dr. Laufenberg diagnosed Sardina with a contused scalp, a concussion, post-concussion syndrome (a condition that affects mental processing), cervical and lumbar sprains, herniated discs in his lower back, and tarsal tunnel syndrome, a condition that causes numbness and pain in the feet. Sardina also saw a podiatrist and specialists in pain management and memory problems. Sardina’s pain and memory problems persisted for over a year, during which he suffered from depression and weight gain. In June 1997, Sardina’s physician recommended surgery to cure the degeneration of his spinal discs, but neither the Kassandra Z’s owner nor her insurer would authorize the funds necessary to pay for the operation.
On December 7, 1999, Sardina finally had surgery to repair his degenerating spinal discs. After his surgery, Sardina’s back pain gradually decreased, and by January 2000 it was gone. However, due to his injuries, Sardina can no longer do work that requires prolonged standing, continuous walking on uneven surfaces, or lifting heavy objects. He can never work on a tuna fishing boat again.
Upon her arrival in American Samoa, the Kassandra Z was seized by her mortgage holder, TCW Special Credits, and she was subsequently foreclosed on and sold to satisfy her debt. Sardina intervened in the foreclosure action and sued both the vessel and her owner to recover for his injuries. He alleged claims for negligence under the Jones Act, see 46 U.S.C. § 688, and “unseaworthiness” and “maintenance and cure” under the Trial Division’s general maritime jurisdiction, see A.S.C.A. § 3.0208(a)(3). After a four-day trial, the Trial Division found for Sardina. It found that Sardina’s fall was caused by two factors attributable to the Kassandra Z. The first was the greasy puddle formed by the water leaking from the deteriorating freezer door. The second was the lack of non-skid strips that might have improved Sardina’s traction and prevented the fall. The third cause of the fall, the court found, was Sardina’s own negligence in choosing to wear flip-flops on deck and failing to recognize and correct the dangerous condition.
After reducing his damages award by 40 percent for contributory negligence, the court awarded Sardina a total of $303,823.29 in general and special damages, damages for maintenance and cure, and attorneys’ fees. On appeal, Sardina challenges the court’s findings as to his lost future earnings and work life expectancy, its calculation of his attorneys’ fees, its omission of prejudgment interest, its finding of contributory negligence, and its award of general damages.
*17Jurisdiction
The Trial Division had jurisdiction over Sardina’s maritime claims for “unseaworthiness” and “maintenance and cure” pursuant to A.S.C.A. § 3.0208(a)(3). Because Sardina brought his Jones Act claim in admiralty pursuant to T.C.R.C.P. 9(h), it also fell within the Trial Division’s maritime jurisdiction. See Doucet v. Wheless Drilling Co., 461 F.2d 336, 339 (5th Cir. 1972) (holding that Jones Act claims can be brought either in admiralty or at law). Alternatively, the Trial Division had jurisdiction over Sardina’s Jones Act claim pursuant to 46 U.S.C. § 688. Clifton v. Voyager, Inc., 29 A.S.R.2d 80, 86-87 (Trial Div. 1995). We have jurisdiction over this appeal pursuant to A.S.C.A. § 3.0208(c).
Standard of Review
We review the Trial Division’s determination that prejudgment interest is not available as a matter of law de novo. Battista v. FDIC, 195 F.3d 1113, 1116 (9th Cir. 1999). We review its work life expectancy determination, future earnings determination, finding of contributory negligence, and award of general damages for clear error. T.C.R.C.P. 52(a); A.S.C.A. § 43.0801(b); Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 151 (App. Div. 1988). We review its calculation of attorneys’ fees for an abuse of discretion. Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1501 (9th Cir. 1995).
Discussion
I. Work Life Expectancy
The Trial Division found that although Sardina had briefly performed other work, he was a career fisherman and would have continued as a Master/Navigator but for his injury. It also found that because of the physical hardship of a career in tuna fishing, Sardina would not have been able to work past the age of 52, and that due to a shrinking job market for tuna fishermen, Sardina’s work life expectancy would have been reduced by an additional five years. The Trial Division’s factual findings as to Sardina’s work life expectancy “must not be set aside unless clearly erroneous.” See T.C.R.C.P. 52(a). We will affirm, even if we would have found differently, so long as the trial court’s findings are “plausible” in light of the record in its entirety. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002), aff’d, 124 S. Ct. 1221 (2004). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
*18We cannot say that the Trial Division’s findings as to the physical limitations on Sardina’s work life expectancy were clearly erroneous. In fixing Sardina’s probable retirement age, the Trial Division split the difference between the work life expectancy estimates offered by Sardina’s expert Robert Wallace (62), and by the Kassandra Z’s expert Dana Basney (42). Sardina contends that the figure testified to by Basney is “totally lacking in relevance” to his occupation. But the figure offered by Basney is perhaps the most relevant figure. It refers to a study of crab fishermen working in the Bering Sea that showed that, due to the harsh conditions associated with the job, the fishermen tended to retire before the age of 42. Wallace, on the other hand, testified only to the average retirement age of workers in the United States (60.8), and the average retirement age of fishermen as reported by the Fisherman’s Union Pension Trust (62). Basney acknowledges that his study may not apply directly to tuna fishermen, whose working conditions are less difficult than those of Bering Sea crab fishermen. But it is certainly “plausible” that a tuna fisherman would retire ten years later than a Bering Sea crab fisherman, whose working conditions are more difficult, but ten years earlier than an average American worker, whose working conditions are more favorable.1
Nor did the Trial Division clearly err in reducing Sardina’s expected retirement age by an additional five years on account of “market constraints.” Evidence in the record supports the Trial Division’s finding that Sardina would have been forced to retire early due to extreme competition in the tuna fishing industry, a shrinking fleet of American fishing vessels, and Sardina’s lack of a sustained commitment to any particular boat. See Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984) (“It may be shown by evidence that a particular person, by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average.”). Captain Medina testified that due to the lack of jobs in the tuna fishing industry, his four sons were forced to retire from their positions as captains and chief engineers on tuna boats. Appellees’ expert Basney noted that Sardina held 13 different jobs over a six-month period and had “a lot of spottiness” in his employment record. Indeed, during his 19 years as a fisherman, Sardina worked for 18 different vessels. Although we may *19not have reached the same conclusion, we do not think the trial court’s finding was clearly erroneous.
II. Future Earnings
When calculating Sardina’s future earnings, the Trial Division averaged the highest estimates proposed by Sardina’s own rehabilitation consultant ($36,000), and the highest estimate proposed by Sardina’s own expert witness ($60,000), and found that he would make an average of $48,000 per year for the remainder of his career. The Trial Division’s finding was “plausible” based on the evidence in the record, see Husain, 316 F.3d at 835, and it was based on figures suggested by Sardina’s own witnesses. Therefore, it was not clearly erroneous.
III. Contributory Negligence
The Trial Division apportioned to Sardina 40 percent of the fault for the accident due to his own contributory negligence and reduced his recovery accordingly. The court reasoned that as the “safety officer” of the Kassandra Z, Sardina had a responsibility to ensure that the deck was kept in a safe condition, and his failure to recognize and remedy the conditions that caused his fall was negligent. It also faulted Sardina’s choice to wear flip-flops on deck. We review the court’s finding of contributory negligence for clear error. Star-Kist, 8 A.S.R.2d at 148-49.
A. Failure to Recognize and Remedy the Slinnerv Condition
The Trial Division found, and Sardina does not dispute, that as the ship’s Master he was ultimately responsible for the safety of its crew.2 Sardina testified that he had frequent contact with the area of the fall, that he had observed the lack of non-skid strips in the area, and that it was not uncommon for the deck in that area to be wet. Nonetheless, he claimed that he did not consider the lack of nonskid strips to be a hazard and that he had no reason to know that the area was dangerous prior to his fall. Noting that six people had slipped in the area prior to Sardina’s fall, the Trial Division found that “[ejither Sardina’s testimony is incredible, or else he acted incompetently as an officer of the ship.” Neither finding is clearly erroneous. As to the finding that Sardina’s testimony is *20incredible, we have no reason to doubt the Trial Division’s assessment. See T.C.R.C.P. 52(a) (“due regard” must be given “to the opportunity of the trial court to judge the credibility of the witnesses”). As to the finding that Sardina was simply incompetent, such a finding is supported by Captain Medina’s testimony about the frequent presence of water on tuna boats and the fact that non skid strips were used to provide traction on other parts of the deck. In order to find Sardina negligent, the Trial Division did not have to find that he knew of the danger and failed to act; it needed only determine that he should have known of the danger.
Sardina argues that the Trial Division’s finding of contributory negligence is inconsistent with its ruling that he was not barred from recovery by the Primary Duty Rule. The Primary Duty Rule bars a Jones Act claimant from recovering “for injuries caused by his own failure to perform a duty imposed on him by his employment.” Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 905 (9th Cir. 1994) (quoting Cal. Home Brands, Inc. v. Ferreira, 871 F.2d 830, 836 (9th Cir. 1989)). Courts have recognized a tension between the Primary Duty Rule and the rule that contributory negligence does not bar a sailor’s recovery in admiralty torts, but the rules are not inconsistent. See id. (noting that “the important thing ... is to distinguish between [the duty to avoid contributory negligence], which the law imposes upon the injured person, regardless of any conscious assumption of a duty towards the wrongdoer, and a duty which the injured person has consciously assumed as a term of his employment”). In order to interpret the rules consistently, courts have construed the Primary Duty Rule narrowly. Three limitations apply:
First, the “primary duty” rule will not bar a claim of injury arising from the breach of a duty that the plaintiff did not consciously assume as a term of his employment. Second, the rule does not apply where a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated. Third, the rule applies only to a knowing violation of a duty consciously assumed as a term of employment. It does not apply to a momentary lapse of care by an otherwise careful seaman.
Id. at 907. This case requires us to apply the third limitation. In holding the Primary Duty Rule inapplicable, the Trial Division found that Sardina did not “knowingly violate[] his consciously assumed duty to safeguard the ship.” In finding contributory negligence, on the other hand, the Trial Division held that “Sardina’s failure to notice much less investigate and repair the slippery floor constitutes a partial failure of the official duty of an officer to insure the safety of the ship, and that his failure contributed to his mishap” (emphasis added). There is nothing inconsistent about the *21Trial Division’s finding that Sardina did not “knowingly” violate his duty to maintain a safe vessel, but that his failure to competently execute his duty to maintain the safety of the ship was negligent.
B. Sardina’s Choice to Wear Flip-Flops
The Trial Division’s finding that Sardina’s choice to wear flip-flops on deck was negligent and that it was partially to blame for the fall was likewise not clearly erroneous. Captain Medina, a veteran of the tuna fishing industry, testified that flip-flops are “slippery,” have no heel, and provide no lateral support. He also testified that flip-flops are not safe for traversing the deck of a boat when it is wet, that it is very common for the interior deck of a tuna fishing boat to be wet, and that he never allowed flip-flops on his boat. The fact that the fall happened in a wet and slippery part of the deck, where the increased support and traction of shoes or boots may have made a difference, further supports the finding.
Sardina argues that even if flip-flops are generally unsafe in that they lack a heel and provide no lateral support, there is no evidence that Sardina’s flip-flops caused the fall in his case because his foot slipped forward, the only direction in which a flip-flop does provide some support. But we are not persuaded that the danger of the flip-flop lies solely in its lack of a heel and lateral support. Captain Medina testified that flip-flops are unsuitable for walking on the deck of a fishing boat because when wearing flip-flops, “you’re walking with your toes crimped up and it sort of puts a little pressure on the shoe.” He also testified about the general instability of flip-flops, noting that they “could fall off as you’re walking down; the [flip-flops] could fall off and you’re trying to catch your balance and there goes your [flip-flops].” Sardina himself admitted that flip-flops provide less support than shoes when the foot is wet. Given Captain Medina’s testimony about the general danger of flip-flops in a wet environment, and Sardina’s own admission that flip-flops allow the foot to “move around” in wet conditions, we find it at least “plausible” that the flip-flops were partially to blame. See Husain, 316 F.3d at 835.
IV. Pain and Suffering
In calculating its damages award for pain and suffering, the Trial Division compared Sardina’s case to various other cases in American Samoa in which damages were awarded. The court also noted that general damages in American Samoa were justifiably lower than the damages awards found in cases from American jurisdictions, in part because of the difference in the price of goods and services here and differing attitudes towards pain. The court took into account the severe pain and grief Sardina suffered between the time of his injury and the time he underwent surgery, and the fact that he could never return to his *22career as a fisherman. It noted, however, that he was fit to return to the workforce in another occupation, that he no longer experienced daily pain, and that he appeared “healthy, good humored, and robust” at the time of trial. It awarded $45,000.00 for pain and suffering.
Sardina argues that the court’s calculation of his general damages award was clearly erroneous because it was based on assumptions about the cost of living of American Samoa, whereas he lives in San Diego, California. But the fact that Sardina does not live in American Samoa does not entitle him to damages in excess of what is generally awarded in this jurisdiction. Although we have justified our generally lower damages awards based on the higher value of the dollar in American Samoa, see Star-Kist, 8. A.S.R.2d at 151, we have not attempted to adjust our awards to achieve relative parity with American jurisdictions. To the contrary, we have defended our practice of awarding less in general damages than other American jurisdictions without reference to the market. See id. (“That trial judges in American Samoa tend to award lesser sums than those in Texas or California no more suggests that awards in Samoa should be higher than that those in Texas should be lower.”). The Trial Division’s award thus reflects American Samoa’s philosophy on general damages, not simply the cost of goods and services here.
The Trial Division’s general damages award is comparable to other damages awards granted in our jurisdiction for injuries of similar severity. See Clifton, 29 A.S.R.2d at 99 (awarding $50,000 in general damages to seaman with carpal tunnel syndrome requiring surgery); see also Moors v. Am. Samoa Gov't, 19 A.S.R.2d 67, 69 (Trial Div. 1991) (noting that damages awards in American Samoa rarely exceed $50,000). Therefore, it was not clearly erroneous.
V. Attorneys’ Fees Awarded for Sardina’s “Cure” Claim
The Trial Division calculated Sardina’s “cure” award by taking the total amount of the medical expenses he incurred ($34,221.27), subtracting the payments that TCW Special Credits made toward those expenses ($15,801.21), and awarding the balance ($18,420.06). Finding that the Kassandra Z’s failure to pay Sardina “cure” benefits was willful, it also awarded attorneys’ fees. Rather than examining the actual cost of litigating the “cure” claim, the Trial Division awarded Sardina $9,210.03, or one-half the amount of his “cure” recoveiy. Sardina contends that calculating his attorneys’ fees as a fraction of the total “cure” award was error, and that the Trial Division should have awarded him an amount equal to the actual legal expenses he incurred. We disagree.
*23Trial courts have broad discretion in calculating an award of attorneys’ fees. See Glynn, 57 F.3d at 1501. In Glynn, the court upheld the trial court’s decision to award attorneys’ fees for the plaintiffs “maintenance and cure” claim based on a fraction of his recovery, rather than the hours spent and expenses incurred in pursuing the claim, because the claim “did not engender complicated questions of fact or law and constituted only a small portion of the trial.” Id. The same rationale supports the Trial Division’s calculation of attorneys’ fees in this case. The Trial Division’s “cure” award was relatively small in relation to the special damages awarded for lost future wages, and there is no evidence that Sardina’s attorney had to expend inordinate amounts of time or resources to establish Sardina’s entitlement to “cure.” Sardina cites to Willard v. Kingston Shipping Co., 925 F.2d 721(4th Cir. 1991), for the proposition that the “lodestar” method should be used to calculate attorneys’ fees in admiralty cases. Id. at 723. But Willard merely recognized that the “lodestar” method was an appropriate means to calculate attorneys’ fees in admiralty; it did not hold that it was the only appropriate means. We conclude, therefore, that the Trial Division did not abuse its discretion when it calculated Sardina’s attorneys’ fees award as a fraction of his recovery.
VI. Prejudgment Interest
Courts generally have discretion to award prejudgment interest in admiralty torts. 2 Martin J. Norris, The Law of Seamen § 30.43 (4th ed. 1985) (“In tort matters in admiralty the allowance of interest is discretionary with the court.”). The same is true for Jones Act claims for personal injury that are brought in admiralty. Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir. 1985) (“[W]hen a Jones Act claim is brought under the court’s admiralty jurisdiction, and hence the case is tried to the court and not to the jury, the allowance of prejudgment interest is within the discretion of the trial court . . .”); Williamson v. W. Pac. Dredging Corp., 441 F.2d 65, 67 (9th Cir. 1971).3
*24Trial courts must generally exercise their discretion in favor of awarding prejudgment interest in admiralty tort claims. Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1550-51 (11th Cir. 1987).
As a general rule, prejudgment interest should be awarded in admiralty cases — not as a penalty, but as compensation for the use of funds to which the claimant was rightfully entitled. Discretion to deny prejudgment interest is created only when there are ‘peculiar circumstances’ that would make it inequitable for the losing party to be forced to pay prejudgment interest.
Id. at 1550 (quoting Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir. Unit A 1980)); see also City of Milwaukee v. Cement Div., Nat’l. Gypsum Co., 515 U.S. 189, 195 (1995) (holding that prejudgment interest should be awarded in maritime collision cases, except in “peculiar” or “exceptional circumstances”). Where “peculiar circumstances” justify the denial of prejudgment interest, courts must make findings of fact identifying those circumstances in order to facilitate appellate review. Self 832 F.2d at 1551. A court’s failure to make findings of fact to support the denial of prejudgment interest on an admiralty tort claim constitutes an abuse of discretion. Simeonoff v, Hiner, 249 F.3d 883, 894 (9th Cir. 2001) (“When a district court fails to articulate any reason why prejudgment interest was denied, the district court abuses its discretion in refusing to award prejudgment interest.”) (citation omitted).
In Cleveland Tankers v. Tierney, 169 F.2d 622 (6th Cir. 1948), the Sixth Circuit held that prejudgment interest was not available for maritime tort claims. Id. at 626 (“It is the general practice in admiralty, in ascertaining interest in personal injury and death claims, to allow interest by way of damages from the date that the damages have been judicially determined.”). The Trial Division recently adopted the Sixth Circuit’s rule in Clifton, where it held that prejudgment interest is not allowed on either Jones Act or unseaworthiness claims.4 29 A.S.R.2d. at 99 (citing Cleveland Tankers, 169 F.2d 622). But, as we have noted above, most federal circuit courts have disagreed with that view. We likewise disagree. As the United States Supreme Court recently held, “[f]ull compensation has long been recognized as a basic principle of admiralty law . .. .” City of Milwaukee, 515 U.S. at 195-96. “By compensating for the loss of use of money due as damages from the time the claim accrues until judgment is entered, an award of prejudgment interest helps achieve the goal of restoring a party to the condition it enjoyed before the injury *25occurred.” Id. at 196 (citations and internal quotation marks omitted). We therefore join the majority of the federal circuit courts and hold that prejudgment interest is available for maritime tort claims, including Jones Act claims brought under the trial court’s admiralty jurisdiction.
The Trial Division had discretion to award Sardina prejudgment interest on his “unseaworthiness” and “maintenance and cure” claims because they were brought under the court’s admiralty jurisdiction. See A.S.C.A. § 3.0208(a)(3). It also had discretion to grant prejudgment interest on Sardina’s Jones Act claim because Sardina designated it as an admiralty claim in his complaint. T.C.R.C.P. 9(h) (“A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the High Court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim . . . .”). Accordingly, we remand this case to the Trial Division with instructions to either award prejudgment interest or make findings of fact to support its decision not to do so. See Simeonojf, 249 F.3d at 894.5
Conclusion
For the foregoing reasons, we affirm the judgment of the Trial Division in all respects,6 except that we vacate the award and remand with instructions to award prejudgment interest, unless extraordinary circumstances justify its denial. Each party shall bear his or its own costs on appeal.
AFFIRMED, judgment VACATED and REMANDED.
Sardina also argues that the court erred in taking into account his “increased susceptibility to back injury” when calculating his probable retirement age because the parties stipulated that the medical report detailing his preexisting back injury would not be offered into evidence. But Sardina testified about the back injury in response to his own counsel’s questioning, and defendants’ expert Dr. Vance testified (without objection) about the injury at trial. Dr. Vance’s testimony that “riding around and bouncing off an 8-foot wave” would aggravate Sardina’s back injury amply supports the Trial Division’s finding.
This is the critical distinction between the facts of this case and the facts of Star-Kist. In Star-Kist, we reversed the Trial Division’s finding of contributory negligence against a dockworker, holding that the Trial Division improperly imposed on the plaintiff a duty to anticipate dangerous conditions on the dock. 8 A.S.R.2d. at 149. Whereas the dockworker in Star-Kist had no overall duty to maintain the safety of the dock upon which he was injured, Sardina, as the ship’s Master, had a general duty to maintain the safety of the Kassandra Z.
Prejudgment interest is not available for Jones Act claims brought at law. Barrios v. La. Constr. Materials Co., 465 F.2d 1157, 1167-68 (5th Cir. 1972). Appellees cite Panama R.R. v. Johnson, 264 U.S. 375 (1924), for the proposition that the availability of prejudgment interest should be uniform whether a Jones Act claim is brought at law or in admiralty. But Panama Railroad did not hold that the Jones Act limits the remedies available to seamen who bring a claim in admiralty to the same remedies available at law. 264 U.S. at 391 (holding that the Jones Act “does not encroach on the admiralty jurisdiction intended by the Constitution, but permits that jurisdiction to be invoked and exercised as it has been from the beginning”).
The Trial Division has, however, recognized that in other contexts “the general rule is to award prejudgment interest.” See Interocean Ships, Inc. v. Samoa Gases, 26 A.S.R.2d. 28, 43 (Trial Div. 1994).
If prejudgment interest is awarded, it should apply only to the damages Sardina suffered prior to the judgment. See Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 444-45 (2d Cir. 1991) (holding that “prejudgment interest may properly be added to damage awards for past lost wages, medical expenses that have been incurred, and past pain and suffering” but not “future loss of earnings, future medical expenses, and/or future pain and suffering”).
We lack jurisdiction to consider the Trial Division’s denial of maintenance because Sardina failed to raise the issue in his motion for a new trial, which is a jurisdictional prerequisite to appellate jurisdiction. A.S.C.A. § 43.0802(a); Masaniai v. Siafono, 17 A.S.R.2d 206, 207 (App. Div. 1990). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486885/ | ORDER ON MOTION TO DISMISS AND TO EXCLUDE TRANSCRIPT
This motion by Appellees to dismiss the appeal and exclude the transcript of the proceedings below from the record on appeal came before the undersigned justice for hearing on July 22, 2004. Appellants are Raymond M. McMoore, Sese McMoore, and Fiasili Haleck, hereafter “Appellants.” Appellees are TRT, Inc., American Samoa 2000, Inc., Agaoleatu C. Tautolo, Agaese Ace Tago, Murray R. Drake, and Raymie *37P. Snow, hereafter “Appellees.” The trial court’s decision granting Appellees summary judgment was issued on December 18, 2003. A timely motion for reconsideration or new trial was heard and denied by the trial court on February 20, 2004. Appellants filed a timely notice of appeal and request for estimate of transcript in the instant matter on March 1, 2004. The court reporter filed her estimate with the Court on March 4, 2004. Appellants were then notified by their counsel’s office of the fees due, but by March 18, 2004, only one half of the fees had been remitted to counsel. At some later point counsel for Appellants sent an email message directing his staff to pay for the transcript. The court reporter received this payment after-hours on March 26, 2004, with a receipt issuing the following Monday. Apparently unable to complete the transcripts within the 30 days allowed under A.C.R. 11(b), the reporter filed the transcripts on June 14, 2004. Appellees, meanwhile, filed their motion to dismiss the appeal on April 14,2004.
Discussion
The structure, funding, and relatively modest early caseloads of the Appellate Division of the High Court dictated the now traditional annual (or even biannual) appellate sessions. Unlike most full time appellate courts that hear and decide cases within weeks after the final reply brief is filed, in this Territory the hearing will normally occur several months after briefing is concluded.
One of the many consequences of being able to convene a full panel of justices only one week out of 52 is that interim motions in appeals from lower courts can only be heard by a single justice, whose powers to hear and decide procedural issues of an appeal are severely restricted under the Appellate Court Rules. (Although circular in effect, it is worth noting that the A.C.R.’s restrictions on the powers of a single justice to dismiss are predicated on the timely availability of the full panel to review and decide whether unexcused delays by appellants should foreclose their right to appeal the lower court’s decision. In this jurisdiction, however, motions seeking dismissal of an appeal for appellant delays under A.C.R. 10 are themselves delayed because 51 weeks out of every year a full panel is not available to hear and decide such motions.) It is because of the traditionally infrequent appellate sessions that single justices under A.C.R. 31(c) have consistently ruled that in cases where the appellant’s failure to timely file a brief precludes that case from being heard at the next appellate session, the appeal will be dismissed. See Alaimalo v. Sivia, 17 A.S.R.2d 25, 28 (App. Div. 1990) and YHT, Inc. v. Progressive Ins. Co., 8 A.S.R.3d 3 (App. Div. 2004). Although not clearly articulated in these decisions, the 13 to 23 month delay to appellees that would otherwise result from appellants’ lack of diligence appears to have been considered as constituting irremediable prejudice to the appellees. *38In the instant matter, Appellants failed to order the transcript, or move this court for enlargement of the time to do so, within 10 days after the reporter filed the estimate on March 4, 2004. See A.C.R. 10(b)(1). Appellants delivered payment for the estimated transcript fee to the reporter on March 26, 2004, and were provided a receipt on March 29, 2004, some Í2 to 15 days later than required by the A.C.R. The reporter, apparently unable to finish the requested transcripts within the next 30 days following March 29, 2004, filed the transcripts on June 14, 2004, some ten weeks after receipting payment.
Appellees urge the Court to dismiss this appeal under A.C.R. 10 and cite several cases in support of this motion. These cases provide little guidance in deciding this motion. In Sa'ofetalai v. Aoelua, 18 A.S.R.2d 1, 2 (App. Div. 1991), the single justice who issued, sua sponte, the January 15, 1991 Opinion and Order on Request for Transcript, was merely responding to a disturbing situation in which a bundle of cash appeared on the reporter’s desk a few days after the 10-day notice and payment period under A.C.R. 10(b)(1) had expired. A review of that case file shows that, although the opinion stated the offending attorney would have a heavy burden to bear in persuading the Court to grant an extension for requesting the transcript, that attorney did file a motion with an affidavit alleging his clients had difficulty raising the money for the transcript fees. The same justice who issued the January 15, 1991 Opinion granted that motion to enlarge the 10-day notice and payment period by three days, and that case proceeded on appeal before the full appellate panel in early 1992.
With respect to the two Alaimalo cases (Alaimalo v. Sivia, 16 A.S.R.2d 117 (1990) and Alaimalo v. Sivia, 17 A.S.R.2d 25 (1990)), both the single justice and the full panel were presented with a request to enlarge the 10-day period under A.C.R. 10 that was made some eight months after the reporter filed the estimate. Although carefully examining the apparent rule violations presented in the case, the single justice presiding over the initial hearing strictly adhered to Rule 10(b)(5) and referred all issues to the full panel for review. 16 A.S.R.2d at 119. In the Toluao case (Toluao v. Fuimaono, 21 A.S.R.2d 12 (1992)), the single justice issuing the amended order dismissing the appeal was presented with a factual situation in which the appellants had failed to either timely move the lower court for an amended judgment or new trial or file a notice of appeal within 10 days following the lower court’s decision on the motion. A.S.C.A. § 43.0802. Upon realizing that appellants had not filed a brief after filing the (late) Notice of Appeal on March 22, 1991, the single justice first dismissed the appeal in a two-sentence sua sponte order under A.C.R. 31(c) on March 12, 1992. Appellants filed a motion for reconsideration on March 27,1992, and the single justice amended the earlier order with an April 20,1992 Amended *39Order Dismissing Appeal, cited by Appellees here. The Amended Order purports to dismiss the appeal pursuant to A.C.R. 10(b)(5). Toluao, 21 A.S.R.2d at 12. Because only the full appellate panel may dismiss an appeal under A.C.R. 10(b)(5), the legal basis for the Amended Order appears to be that the single justice concluded appellants had failed to initially invoke the Appellate Division’s jurisdiction under A.S.C.A. § 43.0802. Id. at 13. See generally YHT, Inc., 8 A.S.R.3d at 5 n.3 (citing Opapo v. Puailoa, 17 A.S.R.2d 30, 31 (App. Div. 1990)).
Finally, Appellees rely on the YHT, Inc. case. As previously discussed, in that case the appellant’s failure to timely file an opening brief precluded the case from being heard at the next regular appellate session. In the instant case, Appellants’ failure to comply with A.C.R. 10 would not impair the full panel’s ability to hear and decide this matter at its 2005 session.
Conclusion
Although under A.C.R. 26(b) a single justice may, for good cause, grant any motion permitting an act to be done after expiration of such time for doing that act (excepting, of course, filing a notice of appeal), as of the date this matter was heard, Appellants had filed no such motion. Their untimely response to Appellees’ motion to dismiss was likewise unsupported by a Rule 26(b) motion and has not been considered in this Opinion. Because enlargement or nunc pro tunc permission may be granted for good cause shown only upon motion, this single justice is precluded from currently resolving the issues presented by Appellees’ motion under Rule 26(b) and must defer to the exclusive jurisdiction of the full appellate panel under Rule 10(b)(5).
Appellees have established that Appellants failed to timely comply with A.C.R. 10(b)(1) and (4), 27(a), and, potentially, 31(a). What has not been even alleged or indicated is how Appellees were prejudiced by Appellants’ torpidity. Appellees have not shown that the reporter’s completion date for the transcripts would have changed if more timely notice and payment had been made. Even with such a showing, Appellees would still have to demonstrate their ability to fairly litigate this appeal was impaired by this delay.
With respect to Appellees’ motions to dismiss this appeal under Rule 10(b)(5) or order that the reporter’s transcripts be stricken from the record, both issues are referred to the full panel of the Appellate Division as required under A.C.R. 10(b)(5) and 10(e). Given the current case law and resultant uncertainties as to the consequences of violating Rule 10, a decision of the full panel on these matters will provide bench, bar and court staff with needed clarity in applying, and complying with, this rule. *40With respect to Appellees’ motion to dismiss this appeal under Rule 31(c), the exercise of discretion to dismiss this appeal for Appellants’ failure to timely file an opening brief must await the full panel’s decision concerning when the record was filed for purposes of computing the time restrictions under A.C.R. 31(a). In the interests of judicial economy and fairness, all parties shall diligently adhere to the briefing schedules and other applicable court rules so as to be able to fully present and argue the issues raised in the underlying appeal (or such parts as may remain after the panel’s decision on Appellees’ Rule 10 motions), at the Appellate Division’s tentatively scheduled 2005 session. Any supplemental briefs, motions or other documents occasioned by this decision shall be filed with the Court no later than October 15,2004.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487015/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ADAM MASSERANT, UNPUBLISHED
November 17, 2022
Appellant,
v No. 359389
Ingham Circuit Court
STATE EMPLOYEES’ RETIREMENT SYSTEM, LC No. 21-000436-AA
Appellee.
Before: HOOD, P.J., and JANSEN and K. F. KELLY, JJ.
JANSEN, J. (dissenting)
For the reasons that follow, I respectfully dissent. I would reverse the order denying
appellant’s application for disability retirement benefits and remand for the State Retirement Board
to consider all medical evidence because the interpretation of MCL 38.67a by the Board, the trial
court, and the majority deprives applicants of due process.
The government may not deprive an individual of life, liberty, or property without due
process of law under the Michigan and United States Constitutions. Const 1963, art 1, § 17; US
Const, Am XIV. “A threshold requirement to a . . . procedural due process claim is the plaintiff’s
showing of a liberty or property interest protected by the Constitution.” Mettler Walloon, LLC v
Melrose Twp, 281 Mich App 184, 209; 761 NW2d 293 (2008) (quotation marks and citations
omitted). “A protected property interest is present where an individual has a reasonable
expectation of entitlement deriving from existing rules or understandings that stem from an
independent source such as state law.” Id. (quotation marks and citations omitted).
Procedural due process serves as a limitation on governmental action and
requires a government to institute safeguards in proceedings that might result in a
deprivation of life, liberty, or property. Procedural due process generally requires
notice, an opportunity to be heard, before an impartial trier of fact, and a written,
although relatively informal, statement of findings. In other words, procedural due
process requires that a party be provided notice of the nature of the proceedings and
an opportunity to be heard by an impartial decision maker at a meaningful time and
in a meaningful manner. [Id. at 213-214 (citations omitted).]
-1-
Appellant’s reasonable expectation of entitlement to disability retirement benefits was
based on the relevant statute, MCL 38.67a(5), which provides:
(5) Except as otherwise provided in this section or section 33, a qualified
participant who becomes totally incapacitated for duty because of a personal injury
or disease that is not the natural and proximate result of the qualified participant’s
performance of duty may be retired if all of the following apply:
(a) Within 1 year after the qualified participant becomes totally
incapacitated or at a later date if the later date is approved by the retirement board,
the qualified participant, the qualified participant’s personal representative or
guardian, the qualified participant’s department head, or the state personnel director
files an application on behalf of the qualified participant with the retirement board.
(b) A medical advisor conducts a medical examination of the qualified
participant and certifies in writing that the qualified participant is mentally or
physically totally incapacitated for further performance of duty, that the
incapacitation is likely to be permanent, and that the qualified participant should be
retired.
(c) The qualified participant has been a state employee for at least 10 years.
There is no dispute that appellant met the requirements of subsections (5)(a) and (c).
However, two independent medical advisors certified that appellant was not permanently
incapacitated. The majority reasons that because appellant cannot meet the requirement in
subsection (5)(b), he has no protected property interest in receiving such benefits, and therefore,
does not address the merits of appellant’s procedural due process argument. I respectfully
disagree.
In Polania v State Employees’ Retirement Sys, 299 Mich App 322, 324, 332; 830 NW2d
773 (2013), the respondent Board appealed the trial court order reversing its decision to deny the
petitioner nonduty disability retirement benefits under a different statute, MCL 38.24, which
contains a substantially similar requirement for certification by an independent medical advisor as
MCL 38.67a(5)(b).1 This Court reversed the trial court order, and remanded for entry of an order
affirming the Board’s denial of benefits. Id. at 324. The Court reasoned:
The Board correctly understood that under the plain meaning of MCL
38.24(1)(b), Polania had to have such a certification before the Board could retire
1
MCL 38.24(1)(b) provides that one of the requirements for nonduty disability retirement benefits
is:
A medical advisor conducts a medical examination of the member and
certifies in writing that the member is mentally or physically totally incapacitated
for further performance of duty, that the incapacitation is likely to be permanent,
and that the member should be retired.
-2-
her. Because the record showed that both the medical advisors—one who evaluated
her mental health and one who evaluated her physical health—refused to certify
that Polania was totally and permanently disabled, the Board properly determined
that it did not have the authority to grant Polania’s request for retirement benefits
and, on that basis, denied her claim. The Board did not have to examine the
competing medical evidence to determine whether it should exercise its
discretion—under the facts of this case, it had no discretion to grant Polania’s
request for benefits. For these reasons, the trial court erred when it determined that
the Board’s interpretation of MCL 38.24(1)(b) was incorrect. [Id. at 333.]
I believe that the Polania decision was wrongly decided in this regard. In essence, the
statute at hand, MCL 38.67a(5)(b), like the statute in Polania, leaves the determination of whether
an applicant is entitled to retirement disability benefits to a witness, the independent medical
advisor, who, in fact, is hired by appellee. Moreover, although in this matter appellant produced
medical evidence from two chiropractors indicating that his degenerative arthritis precluded him
from performing his job duties as a park ranger, appellee, under the Polania interpretation, would
have no duty to consider this evidence where the independent medical advisors concluded that
appellant was not permanently incapacitated. In fact, appellee would be precluded from
considering this evidence, and denied any discretion to decide whether to retire the applicant. Id.
No matter what evidence an applicant could produce, appellee would have no discretion to award
benefits where an independent medical advisor certified that the applicant was not permanently
incapacitated. This constitutes a violation of the applicant’s procedural due process because it
deprives the individual from an opportunity to be heard by an impartial decision maker in a
meaningful manner. Mettler Walloon, LLC, 281 Mich App at 214.
In Polania, when the petitioner appealed the denial of benefits to the trial court, the trial
court
rejected an interpretation of MCL 38.24 that gives the state’s medical advisor the
last word on whether a claimant can receive nonduty disability retirement benefits:
“It is also clear that Respondent’s [independent medical advisors] do not have the
first, last, and only word on whether or not an applicant qualifies for non-duty
disability retirement benefits.” The court came to that conclusion, in part, because
such an interpretation would “effectively eliminate this Court’s power to conduct a
judicial review of the Board’s decision pursuant to the Administrative Procedures
Act and Michigan’s Constitution.” [Polania, 299 Mich App at 327.]
On appeal, this Court stated:
Given the undisputed evidence that the medical advisors had not certified that
Polania was totally and permanently disabled, the trial court should have concluded
that the Board’s decision was supported by the record.
This is not to say that we are unsympathetic to the trial court’s concerns;
there may be powerful incentives—whether conscious or subconscious—for a
medical advisor in the Board’s employ to refuse to certify employees with a total
and permanent disability. And it seems inequitable that an employee who has
-3-
substantial evidence that he or she is totally and permanently disabled is
nevertheless precluded under MCL 38.24(1)(b) from seeking review of a medical
advisor’s refusal to certify his or her disability. This is especially true when, as
here, the employee’s evidence is founded on his or her long-time treating
physicians’ opinions and the Board’s decision is dictated by the opinion of a
medical advisor who has never examined the employee. But this Court—like the
Board itself—is not at liberty to ignore the Legislature’s policy choices simply
because we might find them to be unjust or unwise. [Id. at 334-335 (footnote
omitted).]
Thus, I would conclude that Polania was wrongly decided because this interpretation of
the relevant statutes deprives an applicant for retirement disability benefits due process, and order
the convening of a conflict panel under MCR 7.215(J)(3).
/s/ Kathleen Jansen
-4- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486891/ | ORDER DENYING MOTION FOR RECONSIDERATION AND MOTION TO STAY
On June 23, 2004, we issued an opinion and order in the instant action. Plaintiffs Construction Services of Samoa, Inc., Moru Mane, and Sallie Mane (collectively “Plaintiffs”) timely moved for reconsideration or new trial. Defendant Bank of Hawaii (“BOH”), while not seeking a new trial, nonetheless moved for a stay of judgment pending appeal. On July 19, 2004, the parties agreed to submit their motions on the briefs.
I. Plaintiffs moved for reconsideration or new trial arguing four points of error
Plaintiffs argue that we erred by applying the general common law instead of the Hawaii Uniform Commercial Code because the parties agreed by contract to apply Hawaii law in the absence of American Samoa law. First, Plaintiffs did not bother to argue how the application *64of the Hawaii law would affect the outcome in their favor,1 although we believe the Opinion is clear enough on this. Second, the absence of American Samoa law submission by Plaintiffs is perplexing in light of A.S.C.A. § 1.0201(4), which adopts “so much of the common law of England as is suitable to conditions in American Samoa....”
Plaintiffs also argue that we made the following three factual errors: our finding that the transaction was a private sale rather than a redemption; our finding that Sila Poasa was not liable for conversion because the transaction was a sale and not a redemption; and, our failure to find the parties deliberately worked together to deprive Plaintiffs of their equipment.
In the Opinion, we noted that there was conflicting evidence on the issue of whether the transaction was a sale or redemption. We believe the evidence indicated a sale and see no compelling reason to find otherwise.
II. BOH moved for a stay of judgment pending appeal
After thoroughly reviewing all the parties’ admissions in this case, we deny Plaintiffs’ motion for new trial or reconsideration and deny BOH’s motion for a stay of judgment pending appeal.
It is so ordered.
Cf. Kim v. Star-Kist, 8 A.S.R.2d 146, 150 (App. Div. 1988) (“A motion for new trial is a statutory prerequisite to an appeal. A.S.C.A. § 43.0802. All motions must ‘state with particularity the grounds therefor.’ T.C.R.C.P. 7. This is particularly important in the case of a motion for new trial, one of whose purposes is to avoid unnecessary appeals by alerting the trial court to possible errors or omissions in its opinion.”). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486892/ | ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND AWARDING SANCTIONS
Plaintiff Construction Services in Samoa, Inc. (“CSS”) moves for summary judgment pursuant to T.C.R.C.P. 56(c) on its claims against Defendant American Samoa Government (“ASG”). On July 23, 2004, hearing was held on this motion. For the reasons stated below, we deny CSS’ motion for summary judgment.
On March 23, 2004, CSS served several requests for admissions (“RFAs”) on ASG in accordance with T.C.R.C.P. 36(a). According to T.C.R.C.P. 36(a), “[t]he matter is admitted unless, within 30 days after service of the request, the party to whom the request is directed serves *66upon the party requesting the admission a written answer or objection addressed to the matter.” ASG failed to respond to CSS’ requests until July 23, 2004, well after the 30-day deadline imposed by Rule 36. See T.C.R.C.P.36(a). CSS, in its motion for summary judgment, asks the Court to recognize ASG’s failure to timely respond to its requests and deem the requested matters admitted.
At the hearing on this matter, ASG admitted it failed to timely respond to CSS’ RFAs and offered no excuse for its failure. According to Rule 36(b), “the court may permit withdrawal or amendment [of the admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”1 ASG argues that the admissions go to factual issues that are central to the case and that allowing them to respond will serve the merits of the case. CSS does not dispute this contention. In addition, we are not persuaded that CSS will suffer any prejudice in “maintaining [its] action or defense on the merits” if we allow ASG’s untimely response. T.C.R.C.P. 36(b). Accordingly, we will allow ASG’s untimely filing to serve as its responses to CSS’ RFAs.
Because CSS brought its motion for summary judgment relying in large part on the facts in the RFAs being deemed admissions, we must deny the motion for summary judgment at this time. However, ASG must be held accountable for its conduct which caused CSS to incur time and expense that could have easily been avoided had ASG timely filed responses to CSS’ RFAs.2 ASG shall pay CSS for the costs and reasonable attorney’s fees associated with CSS’ motion for summary judgment.3 See Hadley v. U.S., 45 F.3d 1345, 1350 (9th Cir. 1995). *67Nothing in this order prevents CSS from bringing any future motion for summary judgment.
Order
1. CSS’ motion for summary judgment is denied.
2. CSS is awarded its costs and reasonable attorney’s fees incurred in the prosecution of its motion for summary judgment. Counsel shall submit an affidavit itemizing such costs and fees for the Court’s approval as to reasonableness.
It is so ordered.
Although ASG did not specifically move to amend or withdraw its response (or lack thereof) as provided for in Rule 36, it suggested in its written memorandum that we should consider its untimely responses.
Additionally, ASG never moved for an extension of time in which to file their responses, they simply filed them out-of-time.
We note that A.S.C.A. § 43.0201(a) provides that “[i]n the High Court, the civil practice shall conform, as closely as practicable, to the practice provided for in the Federal Rules of Civil Procedure.” Federal Rule of Civil Procedure 26(g) “imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37.” Fed. R. Crv. P. 26(g) advisory committee’s note. If a party violates Rule 26(g), “the court . . . upon its own initiative, shall impose ... an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney’s fee. Fed. R. Civ.P. 26(g)(3). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486894/ | ORDER DENYING DEFENDANT’S MOTION TO DISMISS
Introduction
On January 28, 2004, Defendant Toetu Solaita, the program director of the American Samoa Department of Education School Lunch Program, was charged by the American Samoan Government with felony embezzlement, under A.S.C.A. § 46.4104, in connection with the alleged misappropriation of School Lunch Program food supplies and other items. On July 23, 2004, after having been contacted by the U.S. Department of Justice regarding possible federal charges relating to the same incidents, defendant waived indictment and entered a plea of guilty *74in the United States District Court for the District of Hawaii for conspiracy to defraud the federal government in violation of 18 U.S.C. § 371. Defendant awaits trial in American Samoa on the territorial charge.
On August 3, 2004, Defendant filed a Motion to Dismiss the territorial charge on the basis that continued prosecution for embezzlement is barred by the double jeopardy clause of the federal and territorial constitutions in light of his plea of guilty in the federal case. Upon hearing this matter on September 22, 2004, and having considered the parties’ submissions, defendant’s motion is denied.
Discussion
The double jeopardy clause under the 5th Amendment to the U.S. Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST., amend. V; see also Rev. CONST. Am. Samoa art. I, § 6 (“[n]o person shall be subject for the same offense to be twice put in jeopardy of life or liberty.”).
I. The “Same Offense” and the Blockburger Test
In interpreting what constitutes the “same offense” within the meaning of the double jeopardy clause, the Supreme Court has formulated the “same-elements” test set forth in Blockburger v. United States, 284 U.S. 299 (1932), which holds that a subsequent prosecution does not violate double jeopardy where each offense charged contains an element not contained in the other.1 See United States v. Dixon, 509 U.S. 688 (1993); see also Brown v. Ohio, 432 U.S. 161 (1977); Gavieros v. United States, 220 U.S. 338 (1911). This Court has similarly determined that no double jeopardy exists where “each count requires a proof of fact which is not necessary for proof of the other count.” American Samoa Gov’t v. Moafanua, 4 A.S.R.2d 33, 35 (Trial Div. 1987).
In the current case, Defendant has been charged by the federal government and has entered a plea of guilty in the district court of Hawaii for violation of 18 U.S.C. § 371—Conspiracy to Commit Offense or to Defraud the United States. Section 371 provides that:
*75If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
Defendant is also currently facing charges in American Samoa in violation of A.S.C.A § 46.4104 — Embezzlement. Section 46.4104, a class C felony, states that:
A person commits the crime of embezzlement if he knowingly misappropriates property of another which has been entrusted to him or which has lawfully come under his control.
Defendant states that the charge of embezzlement is based on the “same conduct” as the federal conspiracy charge in violation of the double jeopardy clause because both charges arise from the same underlying incident. Yet, Defendant’s mere repetition of the vague phrase “same conduct” does not establish that the charges in this case contain the “same elements” under the Blockburger test.
The Supreme Court, applying Blockburger, has long concluded that “a substantive crime and a conspiracy to commit that crime are not the ‘same offence’ for double jeopardy purposes.” United States v. Felix, 503 U.S. 378, 389 (1992); see also Garrett v. United States, 471 U.S. 773, 778 (1985) (stating that “conspiracy is a distinct offense from the completed object of the conspiracy”); Pinkerton v. United States, 328 U.S. 640, 643 (1946) (“[T]he commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.”). In United States v. Bayer, 331 U.S. 532, 541 (1947), for example, a military officer had been convicted in court-martial proceedings of discrediting the military by accepting payments in return for transferring soldiers to noncombat units. The Supreme Court concluded that his subsequent prosecution in federal court on charges of conspiring to defraud the government was not barred by the double jeopardy clause, despite the fact that it was based on the same underlying incident, because under the charge of conspiracy, “the agreement to do the act is distinct from the act itself.” Id. at 542.
*76So too in the present case. Under the territorial embezzlement charge, Defendant is alleged to have knowingly misappropriated School Lunch Program property. Under the federal conspiracy charge, Defendant allegedly conspired to misappropriate the same property. Thus, while Defendant may be correct in observing that the federal and territorial charges relate to the same circumstances, Defendant is incorrect when he concludes that the separate charges of committing the act and conspiring to commit the act twice put him in jeopardy of life of liberty for the same offense.
II. The Issue of Separate Sovereigns
Having found that the two charges do not contain the “same elements "’’within the meaning of Blockburger, our opinion need not turn, as Defendant contends, on the issue of whether American Samoa should be regarded as a separate sovereign, for under either position our holding would be the same.
Under the “separate sovereigns” doctrine, each state has the power under its “inherent sovereignty,” separate from the federal government, to punish an individual for an offense to the peace and dignity of that state. See Heath v. Alabama, 474 U.S. 82, 89 (1985). Thus, a state is free to punish criminal conduct even if the same individual has been convicted under federal law for a similar offense growing out of the same occurrence. See, e.g., United States v. Wheeler, 435 U.S. 313, 3 316-317, 320 (1978).
Defendant correctly points out that in the past this doctrine has not been held to apply to territorial courts. Indeed, the Supreme Court stated as much in Heath, noting that “successive prosecutions by Federal and territorial courts are barred because such courts are ‘creations emanating from the same sovereign.’” 474 U.S. at 90 (citing Puerto Rico v. Shell Co., 302 U.S. 253, 264 (1937)).
The restriction in Heath, however, refers to prosecutions in which the defendant was charged with the “same offense” in the territory and the federal government, not the separate offenses that are at issue here. 474 U.S. at 88;2 see also Puerto Rico, 302 U.S. at 264-65. For example, in Government of Virgin Islands v. Dowling, defendants had been charged with assault in the Virgin Islands, a crime which would have been deemed to “merge” with the federal crime of robbery, for which they *77were separately charged in federal court. 633 F.2d 660, 669 (1980). Reasoning that the territorial law emanated from the same federal sovereign, the court concluded that the territorial charge would constitute double jeopardy because it in effect would allow the federal government to charge the defendants twice with assault. Id. At the same time, however, the Dowling court reasoned that the federal government was not barred by the double jeopardy clause to separately charge defendants with conspiracy to rob the bank and actual robbery, because “[i]t is well established that conspiracy to commit a substantive offense and the commission of the substantive offense itself are separate crimes and punishable as such.” Id. at 668.
Consequently, because both a single sovereign and separate sovereigns may seek charges against an individual where each charge requires proof of a fact which is not necessary for proof of the other charge, the question of American Samoa’s sovereign status to the federal government is irrelevant to our holding in this motion.
Conclusion
The federal and territorial charges brought against Defendant constitute separate offenses within the meaning of both the United States and American Samoa double jeopardy clauses. Therefore, Defendant’s motion to dismiss is denied.
It is so ordered.
Although the Court briefly departed from Blockburger in Grady v. Corbin, 495 U.S. 508 (1990), it reaffirmed the Blockburger test three years later in Dixon, stating that “the [Grady] case was a mistake.” 509 U.S. at 711.
Indeed, the Heath Court states that “[t]he sole remaining question upon which we granted certiorari is whether the dual sovereignty doctrine permits successive prosecutions under the laws of different States which otherwise would be held to subject the defendant for the same offence to be twice put in jeopardy.” Id. (emphasis added). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486895/ | ORDER DENYING MOTION TO DIMISS
Defendant Dianne Majhor (“Majhor”) moves to dismiss this action, alleging denial of her right to a speedy trial, as protected by the both the United States and American Samoa Constitutions, on the two charges of tampering with physical evidence pending against her. The charges relate to an alleged homicide, which is the subject of a contemporaneous prosecution. Both counsel and Majhor were present when the motion was heard on August 6, 2004. Also present was Asaua Fuimaono, counsel for Defendant Uatisone Kelemete (“Kelemete”) in Am. Samoa Govt. v. Kelemete, CR No. 13-03.1 For the reasons stated below, we denyMajhor’s motion to dismiss.
Discussion
A defendant’s right to a speedy trial is guaranteed by Article I, Section 6 of the Revised Constitution of American Samoa of 1966, and *80the Sixth Amendment of the United States Constitution.2 The right to a speedy trail attaches when the defendant is officially accused. United States. v. Marion, 404 U.S. 307, 313 (1971).
The United States Supreme Court has articulated a four factor balancing test to be used in determining whether a defendant’s right to a speedy trial has been denied. Barter v. Wingo, 407 U.S. 514, 530 (1972); Pene v. American Samoa Gov’t, 12 A.S.R.2d 43, 45 (App. Div. 1989). Courts should balance the “length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barter, 407 U.S. at 530; Pene, 12 A.S.R.2d at 45. However, the Supreme Court has made it clear that no one factor is controlling, Barter, 407 U.S. at 533, and that each case is dependant upon the circumstances, id. at 522.
I. Length of Delay
The “length of delay” is the first hurdle a defendant must clear to properly bring a speedy trial claim — without some delay, a court has no reason to examine the other factors. Id. at 530. In determining whether delay is prejudicial, courts should be mindful of the peculiar circumstances of the given case. Id. at 530-31. However, federal courts have held that a delay approaching one year is presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (finding that “lower courts have generally found that post-accusation delay ‘presumptively prejudicial’ at least as it approaches one year”).
Majhor was initially charged with the two counts of tampering by a complaint filed in the District Court on March 17, 2003, and then after being bound over to this Court, by the present information charging her with the same offenses filed on March 24, 2003. She first moved to dismiss on speedy trial grounds on May 13, 2003, and at the motion hearing her trial was scheduled for August 19, 2003. However, the speedy trial issue was renewed when Plaintiff American Samoa Government (“ASG”) moved to continue the trial. We granted the continuance on August 13, 2003, and held that Majhor’s constitutional right to a speedy trial had not been violated up to that point in this prosecution.
Unlike the situation on August 13, 2003, when this prosecution was in process for less than five months, when Majhor filed the present *81dismissal motion on July 27, 2004, the prosecution had spanned just over 16 months. We consider the 16-month delay to be presumptively prejudicial under the Doggert standard and thus, as we did in the August 13, 2003 order without presuming prejudice, we will proceed to analyze the other three factors.
II. Reason for Delay
Under this factor, we evaluate ASG’s reasons for delaying Majhor’s trial. Different justifications should be given different weight. Intentional prosecutorial delay to gain some strategic advantage is weighted heavily against the prosecution. Barker, 407 U.S. at 531. Simple negligence or inattention on the part of the prosecution should be weighted less heavily. Id. “[A] valid reason, such as a missing witness, should serve to justify appropriate delay.” Id.
More relevant to the case at hand, courts have held that the prosecution may delay a trial if it wishes to first prosecute the defendant’s accomplices. In Burress v. Henderson, the district court found “the necessity of preparation for the separate trials of [the] Petitioner and his accomplice ...” to be a valid reason for delay. 814 F. Supp. 313, 321 (W.D.N.Y. 1993). In that case, the defendant had been incarcerated for 19 months pending trial. In United States v. McCullough, the court recognized that “prosecutorial decisions about the order in which to try multiple defendants may provide reasonable grounds for delay.” 60 M.J. 580, 588 (A. Ct. Crim. App. 2004).
Further, the prosecution may delay a trial if it is continuing to gather evidence or is understaffed. United States v. Rosson, 441 F.2d 242, 246-47 (5th Cir. 1971) (holding that reasonable delay which enables the prosecution to collect evidence does not violate a defendant’s speedy trial right); Strunk v. United States, 412 U.S. 434, 436 (1973) (indicating that an “understaffed prosecutor” will be given some leeway in bringing a defendant to trial).
ASG is prosecuting Majhor along with several other defendants, whose trials are still pending, all in connection with the death of Wyatt Bowles. ASG has chosen to pursue the prosecution of the principal defendant charged with the alleged homicide before concentrating its efforts on the remaining defendants, including Majhor. The homicide case presents complex and unusual issues of fact and law, and the prosecution is entitled to focus its attention on that case instead of pursing multiple cases at once. ASG has determined that the public interest is best served by resolving the homicide case before the tampering cases, and we will respect its prosecutorial discretion.
*82Furthermore, ASG is entitled to some leeway due to the complex nature of the evidence gathering in this matter, especially in relation to the relatively small size of its staff. The investigation of the Wyatt Bowles death involves not only the prosecution of at least three possible defendants, but also reliance on off-island forensic evidence. In short, this investigation is unusual in its complexity, extent and significance. ASG is entitled to some flexibility.
In conclusion, we find that ASG has valid reasons for delaying Majhor’s trial.
III. Timely Assertion of Speedy Trial Right
The third factor is the defendant’s timely assertion of the speedy trial right. In Barker, the Supreme Court found that “the failure to assert the [speedy trial] right will make it difficult for a defendant to prove he was denied a speedy trial.” Barter, 407 U.S. at 532.
Majhor first asserted her right to a speedy trial on May 13, 2003 — just under two months after her arrest. Clearly, Majhor timely asserted her speedy trial right.
IV. Prejudice to the Defendant
Under this factor, we examine whether the delay has actually prejudiced Majhor. A defendant’s oppressive pretrial incarceration, anxiety, and concern are relevant considerations. Barter, 407 U.S. at 532. Majhor has been incarcerated for all but two or three days after her arrest on March 16, 2003, related to the charges in this action. Understandably, she may be suffering to some extent as a result of her substantial incarceration and future uncertainty. However, the primary concern when testing for possible prejudice is whether the delay has actually impaired the defendant’s ability to prepare a defense. Id. Witnesses may die or disappear or their memories may fade or distort, and it may be difficult to affirmatively prove that memories have eroded. Id. (“Loss of memory ... is not always reflected in the record because what has been forgotten can rarely be shown.”). To remedy this problem, the Supreme Court has held that courts should presume that a substantial delay has caused some prejudice to the defendant. Doggett v. United States, 505 U.S. 647, 655 (1993). However, the Supreme Court has also held that this “presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barter factors ....” Id. at 655-56; Dunavin v. Leonardo, 1997 WL 151771 at *3 (N.D.N.Y.) (“In the absence of a showing of prejudice, courts generally will not find a speedy trial violation unless all of the remaining Barter factors weigh heavily in favor of the [defendant].”).
*83Majhor has not alleged in specific terms any prejudice to her defense from the delay. We presume that the delay has caused some prejudice, such as possible fading or distortion of witnesses’ memories. However, when this presumptive prejudice is balanced against the definite and substantial burdens that ASG faces in preparing for the Richard Majhor trial, Majhor’s claim simply does not stand. As demonstrated above, ASG has legitimate reasons for delaying her trial and thus the other Barker factors simply do not “weigh heavily in [Majhor’s] favor.” In other words, this “presumptive prejudice cannot alone cany [Majhor’s speedy trial] claim ....” Doggeti, 505 U.S. at 655-56.
Conclusion
After weighing each of the four Barker factors, we hold that ASG has not violated Majhor’s right to a speedy trial. ASG has legitimate reasons for delaying the trial and Majhor has not demonstrated any actual prejudice to her defense. Thus, Majhor’s motion to dismiss is denied.
It is so ordered.
Kelemete is charged with one count of tampering with physical evidence arising out of the same alleged homicide incident. Hence, the two cases were consolidated and are presently scheduled for trial on January 25, 2005.
The federal Speedy Trial Act, 18 U.S.C. §§ 3161-3174, sets specific time limits in order to further implement the speedy trial right in federal criminal prosecutions. The Speedy Trial Act does not, however, apply to prosecutions in American Samoa, where the issue is more appropriately analyzed under relevant Constitutional case law. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486896/ | ORDER GRANTING DEFENDANT’S MOTION TO QUASH AIRCRAFT ARREST AND STAY FURTHER PROCEEDINGS, AND DENYING PLAINTIFFS’ MOTION TO MAINTAIN THE STATUS QUO
Introduction
On February 12, 2004, Plaintiffs Safari Airlines, Inc., Safari Pacific Airways, and SAF, Ltd. (together “Safari”) entered into a contract with Defendant Village Aviation, Inc. (“Village”) in which Village agreed to provide Federal Aviation Administration (“FAA”) and Department of Transportation (“DOT”) authorized aircraft, flight crew, and maintenance personnel to Safari for transportation of cargo from Pago Pago International Airport to the Manu'a Islands. According to Safari, *85although Village had warranted that it was authorized by the DOT to conduct such flights, they were in fact not so authorized, preventing Safari from engaging in its air service under the agreement.
On September 17, 2004, Safari brought an in personam claim against Village alleging breach of contract, fraud, misrepresentation, and detrimental reliance for Village’s alleged failure to provide the services required under the contract. Safari seeks $513,000 in contract and tort damages. Claiming that the aircraft is Village’s only known asset in this jurisdiction, Safari also filed an in rem claim against Defendant Aircraft CASA 212 (“the aircraft”) seeking the arrest or attachment of the aircraft under a maritime lien pursuant to this Court’s jurisdiction under the Supplemental Rules for Certain Admiralty and Maritime Claims Rule C. The Court, heeding Safari’s concerns regarding the mobility of the aircraft, ordered the arrest of the aircraft, her equipment, engines, propellers, cables, chains, rigging, tackle, furniture, and all other related necessaries on that same day.
On September 20, 2004, Village moved to quash the arrest of the aircraft on the basis that this court lacks admiralty subject matter jurisdiction, and moved to stay the in personam proceedings pending arbitration pursuant to the parties’ contracts. On September 22, 2004, Safari responded with an alternative to the arrest. It moved to maintain the status quo by compelling the parties to arbitrate and requiring the aircraft to remain in American Samoa, without any transfer of its title, until the Court’s further order.
Having had the benefit of hearings on September 20 and 23, 2004, with all parties present by counsel, and an opportunity to review the relevant case law, we now grant Village’s and deny Safari’s motions.
Discussion
I. Seizure of the Aircraft and Admiralty Jurisdiction
A.S.C.A. § 3.0208(a)(3) grants the High Court jurisdiction over “admiralty and maritime matters, of which the trial division shall have both in rem and in personam jurisdiction.” Meaamaile v. American Samoa, 550 F. Supp. 1227 (D. Hawaii 1982); see also Security Pacific National Bank v. The M/V Conquest, 4 A.S.R.2d 59 (Trial Div. 1987). Section 3.0208 is consistent with the United States Constitution and federal statutes after territorial competence was properly conferred by the Secretary of the Interior’s approval of the statute. Meaamaile, 550 F. Supp. at 1237-38.
Under Rule C(l) of the Supplemental Rules for Certain Admiralty and Maritime Claims, an action in rem may be brought to enforce any *86maritime lien. Subsection C(3) holds that “if the conditions for an action in rem appear to exist, an order so stating and authorizing a warrant for the arrest of the vessel or other property that is the subject of the action shall issue and be delivered to the clerk who shall prepare the warrant.”
As Village notes, however, while this Court may have admiralty jurisdiction over maritime vessels pursuant to Rule C, case law indicates that an airplane under the circumstances of this case does not fall within the ambit of our maritime authority.
In Executive Jet Aviation, Inc, v. Cleveland, in which an aircraft crashed into the navigable waters of Lake Erie after striking a flock of seagulls, the plaintiffs invoked admiralty jurisdiction in an action against the defendants for negligent failure to keep the runway free of birds. 409 U.S. 249, 250 (1972). The Supreme Court noted that in a time in which maritime accidents were conceived to relate only to maritime vessels, the traditional method of analyzing whether a tort invoked maritime jurisdiction depended on whether the locality of the wrong occurred on land or navigable waters. Id. at 253.1 In recognizing the difficulty with the application of this test to aircraft, the Court reasoned that a court must also consider whether “the wrong bear[s] a significant relationship to maritime activity.” Id. at 268.
In applying this additional standard in the context of tort claims arising from flights between points within the continental United States, the Court reasoned that:
[t]he law of admiralty has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world ... Rules and concepts such as these are wholly alien to air commerce, whose vehicles operate in a totally different element, unhindered by geographical boundaries and exempt from the navigational rules of the maritime road. The matters with which admiralty is concerned have no conceivable bearing on the operation of aircraft, whether over land or water.
Id. at 270.
Applying the test here, the aircraft fails to fall under the law of admiralty. First, under the locality rule, a tort occurs where the negligent *87or intentional act takes effect, not where the act occurred. Id. at 266. Thus, in the context of intentional torts, such as fraud and misrepresentation, the tort must have an effect on navigable waters to be within admiralty jurisdiction. See, e.g., Wiedemann & Fransen, A.P.L.C. v. Hollywood Marine, Inc., 811 F.2d 864, 866 (5th Cir. 1987). Here, the tort of fraud and misrepresentation relates entirely to the contractual disputes surrounding the parties’ air services agreement, having the effect of grounding the airplane in Tutuila and causing financial damage to Safari. In other words, no tortious impact has been alleged on navigable waters.
Additionally, this case does not involve activity with some relationship to maritime commerce. It is true that the Executive Jet Court left open whether an aviation tort case can, under any circumstances, bear a sufficient relationship to traditional maritime activity, noting that “[i]t could be argued, for instance, that if a plane flying from New York to London crashed in the mid-Atlantic, there would be admiralty jurisdiction over resulting tort claims even absent a specific statute.” Id. at 271. However, that the alleged tort in this case fortuitously involved inter-island flight, as opposed to the inter-continental flight in Executive Jet, is of no consequence to the fact that the tort involved has no bearing on “maritime” activities. See, e.g., American Home Assur. Co. v. United States, 389 F. Supp. 657, 658 (D.C. Pa. 1975) (where, applying Executive Jet, the court found no maritime jurisdiction in a plane crash between New Jersey and Block Island merely because the island was separated from the mainland.).
In light of the fact that this matter emerges out of a contract dispute relating to air transport services alone, it follows, then, that the third factor considered in evaluating maritime jurisdiction, that the tort must have a potential impact on maritime commerce, is inapplicable in this case. Sisson v. Ruby, 497 U.S. 358 (1990).
Safari provides several cases to advance the theory that this court has jurisdiction over the aircraft in question under its admiralty jurisdiction. First, Safari points to United States v. One 1978 Piper Navajo PA-31 Aircraft, 748 F.2d 316, 317 (5th Cir. 1984), in which the defendant’s aircraft was seized by officers of the United States Customs Service pursuant to Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims. There, however, the district court issued the arrest warrant after the government alleged that the aircraft was used in connection with the transportation, importation, sale, possession, and concealment of contraband, and was thus the subject of forfeiture under 21 U.S.C. § 881. Id. Whereas section 881(b) specifically authorizes the seizure of property subject to civil forfeiture according to the process set forth under Supplemental Rule C, this private action is not supported by similar statutory authorization. Therefore, the case is not pertinent to *88Safari’s action. See 21 U.S.C. § 881(b). For the same reason, Safari’s case, United States v. One Caribou Aircraft Registration No. N-1017-H, 557 F. Supp. 379, cited at hearing, is inapposite.
Likewise, Safari’s reference to Historic Aircraft Recovery Corp. v. Wrecked and Abandoned Voight, 2003 WL 21448906 (D. Me. 2003) does not convince us otherwise. In that unpublished memorandum the plaintiff sought the arrest of a sunken aircraft that had collided and crashed into the bottom of Sebago Lake in Maine during a World War II training mission. See also Recovery Corp. v. Wrecked and Abandoned Voight, 294 F. Supp. 2d 132, 133 (D. Me. 2003). The district court judge temporarily authorized the arrest of the craft pending a hearing on the matter. However, not only is this matter not a salvage case, but importantly, the Recovery Corp. court later dismissed the case in its published opinion after determining it lacked admiralty jurisdiction over the plane (1) because Sebago Lake was a lake entirely within the boundaries of Maine, and was not a “navigable waterway” under the locality test; and (2) because an aircraft collision did not fall within “traditional maritime activity” under Executive Jet. 294 F. Supp. 2d at 135-36.
II. Alternative Seizure of the Aircraft
Safari advances an argument that if we hold that this action does not qualify as one in admiralty and maritime, we should somehow keep the aircraft here, and prevent any transfer of its title, pending outcome of the arbitration process mandated in the parties’ contract. Safari seems to think that we can maintain this status of the aircraft by exercising equity authority. However, Safari does not cite any precedent2 in support of this argument other than an argument that is tantamount to issuance of a preliminary injunction or prejudgment attachment. Both of these remedies are invoked under well-defined processes, but Safari has not yet initiated either one in a proper manner.
Safari has also requested we compel the parties to arbitrate pursuant to their contracts, as an extension of its overture to maintain the status quo by keeping the aircraft here. We see no reason to order the parties to arbitration. Contractually, Safari may initiate the arbitration process to resolve its differences with Village, and Village must participate in this process.
*89Order
1. Village’s motion to quash the aircraft arrest and stay further proceedings is granted. The arrest of the aircraft is quashed, and the in personam proceedings are stayed pending the outcome of arbitration pursuant to the parties’ contracts, and the Court’s further order. We defer any action of Village’s request for attorney’s fees while the action is stayed.
2. Safari’s motion to maintain the status quo by compelling the contractual arbitration and requiring the aircraft to remain in American Samoa, without any transfer of its title, until further Court order is denied.
It is so ordered.
See The Plymouth, 3 Wall. 20, 35, 36 (1866) (stating that “[t]he wrong and injury complained of must have been committed wholly upon the high seas or navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction.”).
Safari suggested that there is local precedent for arrest or detention of an aircraft in earlier actions involving declining or defunct airlines. However, it has not provided any citation to specific action invoking an aircraft seizure, whether under our admiralty and maritime jurisdiction or any other authority, and we have not found any such precedent in our research. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486897/ | ORDER DENYING DEFENDANT’S MOTION FOR DISCOVERY OF COUNSELING RECORDS AS PRIVILEGED INFORMATION
On August 31, 2004, Defendant Andrew Scanlan moved for discovery of Social Services records and the Court’s determination of the scope of any privilege pertaining to the agency’s counseling of the alleged victim in this prosecution for child molesting and sexual abuse. Plaintiff American Samoa Government (“ASG”) opposed the discovery on the ground that the entire record is privileged. ASG joined in Defendant’s request for the Court’s determination of the scope of the privilege. Because trial was scheduled to begin on September 14, 2004, Defendant also moved to continue the trial pending resolution of the discovery and privilege issues.
Defendant’s pending motions were first heard on September 7, 2004. ASG joined in the trial continuance request at the hearing, and we vacated the trial date in this action. We also tentatively vacated the trial date of September 21, 2004, in a companion prosecution of the victim’s mother, Am. Samoa Govt. v. Upuese, CR No. 28-04, for child abuse and endangering a child’s welfare, as the parties had previously indicated to the Court a preference to have that trial follow the trial in this action. We established an additional briefing schedule on the discovery and privilege issues and scheduled a further hearing on September 20, 2004. Finally, we directed ASG to provide the counseling records for the Court’s review before the September 20 hearing.
On September 17, 2004, ASG advised the Court that the Social Services agency required a court order to submit the counseling records for inspection. We agreed. The order was issued and records were submitted on September 20. We also then heard the parties’ further arguments on the discovery and privilege issues. Matt Pavelich, the Defendant’s counsel in Am. Samoa Govt. v. Taulaga, CR No. 28-03, was present at this hearing, and with his concurrence we confirmed that the *91September 21 trial date in that action was vacated. All counsel were advised that we would reschedule the trials in both cases in this order.
Discussion
Under Federal Rule of Evidence 501:
[e]xcept as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience...
Fed. R. Evid. 501; see also T. C. R. Evid. 501 (stating that “[e]xcept as otherwise required by the Constitution of the United States or of American Samoa or provided by an Act in the Fono, the privileges of a witness, person, government or political subdivision thereof shall be governed by the principles of the common law.”).
In Trammel v. United States, 445 U.S. 40, 47 (1980), the Supreme Court recognized that the language of Rule 501 did not freeze the law governing the privileges of witnesses in federal trials at a particular point in history, but rather sought to “provide the courts with the flexibility to develop rules of privilege on a case-by-case basis.” See also Jaffe v. Redmond, 518 U.S. 1, 9 (1996). In turn, in Jaffe v. Redmond, the Supreme Court concluded that “confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure” — including from compelled production pursuant to pretrial discovery — under Rule 501. 518 U.S. at 16.
The Jaffe Court recognized that this extension of the privilege also applies “to confidential communications made to licensed social workers in the course of psychotherapy” in that “drawing a distinction between the counseling provided by costly psychotherapists and the counseling provided by more readily accessible social workers serves no discernible public purpose.” Id. at 15, 17. Thus, any “conversations between” the appellant and a licensed psychotherapist or social worker “and the notes taken during their counseling sessions are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.” Id. at 6, 18.
The Jaffe Court made its reasoning quite clear. The Court observed that the “mental health of our citizenry, no less than its physical health, is a *92public good of transcendent importance” and that effective counseling “depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.” Id. at 10,11. Absent the privilege, the “possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” Id. at 10.
Although the Jaffe Court declined to identify all situations where the privilege would and would not apply, it explicitly rejected applying a balancing test in its assessment. Prior to the Jaffe decision, federal courts of appeals that recognized the privilege held that it would not apply if, in the interests of justice, the evidentiary need for disclosure outweighed the patient’s privacy interests. See, e.g., Jaffe v. Redmond, 51 F.3d 1346 (7th Cir. 1995). The Supreme Court concluded, however, that making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would “eviscerate the effectiveness” of the such a balancing component by making it impossible for participants to predict in advance whether their conversations would be protected in the future, and therefore “little better than no privilege at all.” Jaffe, 518 U.S. at 17, 18; see also Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).
In light of the holding in Jaffe, and the same protective purpose applicable to this case, we reject Defendant’s motion for production of the records of the counseling sessions between the victim and counselors in this case for two reasons. First, having carefully reviewed the counseling documents in camera, we find the documents contain no exculpatory evidence to warrant an argument for their disclosure. Secondly, and more importantly, even if such evidence existed in the notes, the documents fall squarely within the scope of the privilege, giving us no reason to depart from the holding in Jaffe.
In Jaffe, a police officer had shot and killed a person, and the decedent’s estate later sued the officer for damages. 518 U.S. at 4. During pretrial discovery the estate learned that after the shooting, the officer had participated in approximately 50 counseling sessions with a clinical social worker, and sought to obtain those notes for cross-examination purposes. Id. at 5. For the above reasons, the Court denied access to the social worker’s counseling records.
So, too, should we in this case.
*93Order
1. Defendant’s motion for discovery of the privileged counseling records is denied.
2. Trial of this action, CRNo. 27-03, is rescheduled to begin on February 15,2005.
3. Trial of the companion action, Am. Samoa Govt. v. Taulaga, CR No. 28-03, is rescheduled to begin on February 22, 2005.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486899/ | ORDER DENYING RECUSAL REQUEST
On July 6, 2004, Defendants Tuika Tuika (“Tuika”) and Mafa Tuika (“Mafa”) (together “the Tuikas”) requested Associate Justice Lyle L. Richmond, the Justice presiding, to recuse himself from this matter, on *100the grounds that the Tuikas cannot receive a fair trial before him in this action. Tuika’s affidavit, attached to the July 6 motion, asserted numerous allegations in support of the request. The request was heard on July 12, 2004. The Tuikas and both counsel were present. The Tuikas’ request is properly denied.
Discussion
The duty of a judge, when faced with a motion to recuse, is well stated in In re Matai Title “Faumuina,” 26 A.S.R.2d 1, 6 (App. Div. 1994):
A judge has an obligation not to recuse himself or herself unless there is need to do so. Pene v. American Samoa Power Authority, 10 A.S.R.2d (mem.) (1989); see also Uiagalelei v. Ulufale, 17 A.S.R. 128 (1990). If recusals were easily obtained, parties might use them as means of “judge-shopping.” Quachita Nat. Bank v. Tosco Corp., 686 F.2d 1261, 1300 (8th Cir. 1982) (“Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice,” citing Blizard v. Fielding, 454 F. Supp. 318, 320 (D. Mass. 1978).)
In evaluating the current case in light of Faumuina, we examine both issues of procedure and substance.
I. Timeliness of the Motion
As a threshold inquiry, we observe that the mere filing of an affidavit to disqualify does not automatically disqualify a judge. Rather, disqualification results only from filing a timely and sufficient affidavit. United States v. Townsend, 478 F.2d 1072 (3rd Cir. 1973). A timely motion to disqualify must be made “at the earliest possible moment” after obtaining information of possible bias. See United States v. Yonkers Bd. of Educ., 946 F. 2d 180, 183 (2nd Cir. 1990). A judge may give less weight to a recusal motion “where the request for disqualification was not made at the threshold of the litigation and the judge has acquired a valuable background of experience.” Id. (quoting National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953 (2nd Cir. 1978)).
This action was commenced and process was served on the Tuikas on March 2, 2004. The Tuikas answered on March 22, 2004, but did not file the motion for recusal until July 6, 2004, more than three months later. Clearly the allegations in Tuika’s affidavit in support of recusal relate to matters occurring well before March 2, 2004. We could reasonably consider the recusal motion untimely and end our discussion there. However, we will address the merits of the affidavit allegations.
*101II. The Merits
H.C.R. 103 states that the conduct of judges in American Samoa is governed by the “Canons of Judicial Ethics.”1 Canon 3.E.(l)(a) of the 1990 Code of Judicial Conduct reads: (1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might be reasonably questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party...[.]
The test is whether “[a] person of ordinary prudence in the judge’s position knowing all the facts known to the judge [could] find that there is a reasonable basis for questioning the judge’s impartiality^]” See SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977); see also United States ex rel. Britz v. Thieret, 737 F. Supp. 59-60 (C.D. Ill. 1990).
For purposes of evaluating the merits of the supporting affidavit, the challenged judge has limited discretion. The judge must take the factual allegations as true and may not question the affiant’s good faith, even though the judge has personal knowledge that the allegations are false. See In re Martinez-Catala, 129 F.3d 213 (1st Cir. 1997). The judge may only consider the legal sufficiency of the alleged facts to support a charge of bias or prejudice. Mims v. Shapp, 541 F.2d 415 (3d Cir. 1976).
However, the judge may find the affidavit ineffective if the accusations of bias or prejudice contain merely conclusory allegations, rumors, beliefs, or opinions, and do not set forth the time, place, persons present, and circumstances with particularity. General Aviation, Inc. v. Cessna Aircraft Co., 915 F.2d 1038 (6th Cir. 1990); United States v. Vespe, 868 F.2d 1328 (3d Cir. 1989); United States v. Townsend, 478 F.2 1072 (3d Cir. 1973). The judge may also consider the hearsay nature of any allegations. Hodgson v. Liquor Salemen’s Union Local No. 2 of *102State of N.Y. Distillery, Rectifying, Wine and Allied Workers’ Int’l Union of America AFL-CIO, 444 F.2d 1344 (2d Cir. 1971).
The allegations in paragraphs 1, 4, 8, 12, 16, 17, and 18 of Tuika’s affidavit set forth circumstances that do not in and of themselves provide any basis connecting this judge with any bias or prejudice against the Tuikas, or either of them. In significant part, these allegations relate to irrelevant personal information about the Tuikas. Paragraph 20 and 21 of the affidavit broadly allege a conspiracy against the Tuikas but fail to connect the contents of the preceding paragraphs in any meaningful manner with the alleged conspiracy or how the judge participated in it. The remaining allegations fall into two broad categories: (a) past judicial proceedings before the judge; and (b) the judge’s past public employment.
A. Past Judicial Proceedings
Allegations of bias and prejudice based on past judicial proceedings before the judge, not personal in nature, are ineffective. United States v. Merkt, 794 F.2d 959 (5th Cir. 1993); United States v. Serrano, 607 F.2d 1145 (5th Cir. 1979). Opinions held by judges as a result of what they learned during the current proceeding or in earlier proceedings, without any showing that the judge harbors personal feelings against the challenging party, are not subject to characterization as “bias” or “prejudice.” Liteky v. United States, 510 U.S. 540, 551 (1994).
The allegations in paragraphs 2, 3, 5, 6, and 7 in Tuika’s affidavit deal with the past and present litigation involving either or both of the Tuikas as parties before this judge. These allegations as stated do not set forth circumstances with any particularity, and paragraph 6 in particular, pertaining to Tuika v. Am. Samoa Development Corp., CA No. 42-97, is founded on unreliable hearsay. The allegations are principally conclusory, based on Tuika’s personal beliefs and opinions rather than actual and personal knowledge.
In sum, there is nothing alleged in connection with the judge presiding over the past judicial proceeding involving Mafa, or the past proceeding involving the Tuikas, and for that matter the present proceeding, that provides a reasonable basis for a person of ordinary prudence to question the judge’s impartiality in the present litigation.
B. Past Public Employment
A judge’s former role as a government attorney does not itself establish prejudice or bias to warrant recusal, unless the judge “in such capacity participated as counsel, adviser or material witness concerning *103the proceeding.” 28 U.S.C. § 455(b); see also Mangum v. Hargett, 67 F.3d 80, 83 (5th Cir. 1995). Moreover, in considering former employment more generally, a judge need not recuse himself where the position “is too remote and too innocuous to warrant disqualification.” Chittimacha Tribe of Louisiana v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1166 (5th Cir.1982) (recusal not warranted where judge had represented the defendant in unrelated matters at least six years earlier); see also Cipollone v. Liggett Group, Inc., 802 F.2d 658, 659 (3d Cir. 1986) (noting that “the long passage of time since [the judge’s] last representation of that company requires the conclusion that no reasonable person could question his impartiality.”).
The allegations in paragraphs 8, 9, 10, 11, 13, 14, and 15 of Tuika’s affidavit concern the judge’s employment with the American Samoa Government as an attorney for Governors Peter T. Coleman and A.P. Lutali, which actually began in January 1978 and ended in May 1989 (contrary to the allegations in paragraphs 14 and 15). The allegations deal with a time considerably remote from the present time. More significant, the allegations imply that somehow the judge in this role provided legal advice and assistance to the Governors concerning the American Samoa Development Corporation and Rainmaker Hotel against the Tuikas’ interests as shareholders in the Corporation, or in some other personal manner. Tuika’s allegations do not, however, show that the judge performed his legal duties to his clients, the Government and Governors, in any way other than in a professional manner. He fails to assert any basis for finding that the judge specifically knew that the Tuikas were shareholders or that his legal services were motivated by any ill-will against the Tuikas. Again, other than a hearsay basis, there is an absence of particularity for Tuika’s factual claims.
In short, we conclude that there is nothing alleged in connection with the judge’s prior employment experience that provides a reasonable basis for a person of ordinary prudence to question the judge’s impartiality in the present litigation.
Finally, although this analysis has been predicated on the Tuikas’ inability to establish sufficient evidence to question the judge’s impartiality, it is affirmatively added that the judge in fact harbors no such personal feelings of bias, ill-will, or prejudice against the Tuikas. The current and past motions for recusal will in no way impact his ability to preside over the trial of this matter in a fair and impartial manner. The case will be objectively decided on the evidence presented.
Order
The recusal request is denied. It is so ordered.
The Canons of Judicial Ethics were developed by the American Bar Association (“ABA”) around 1930, which the ABA revised and adopted as the Code of Judicial Conduct in 1972. Model Code of Professional Responsibility and Code of Judicial Conduct (American Bar Assn. 1979). In 1977, this Court adopted the 1972 Code of Judicial Conduct. General Order re: Judicial Conduct (September 15, 1977). Though not formally adopted by this Court, the ABA adopted its 1990 Code of Judicial Conduct, revising the 1972 Code of Judicial Conduct. Modern Judicial Ethics (National Judicial College 1992). The wording of the applicable canon is the same in both codes. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486900/ | ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS ’ APPLICATION FOR PRELIMINARY INJUNCTION, AND DEFERRING DECISION ON THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT
This dispute arises out of an agreement to sublease a portion of the infamous and deteriorating Rainmaker Hotel. Defendant American Samoa Development Corporation (“ASDC”), the current lessee of the hotel, agreed to sublease approximately 1.77 acres of the 6.81 acre hotel site to Dateline Industries Inc. (“Dateline”), which proposed to redevelop that portion of the premises. Defendant Governor Togiola Tulafono (“the Governor”) approved the sublease and Dateline was prepared to begin renovations.
However, on September 20, 2004, before renovations got underway, Plaintiffs ASDC shareholders (“the shareholders”) filed this action for injunctive relief to stop the Dateline program. The shareholders alleged their concern that if Dateline began to renovate the premises, permanent injury would be caused to ASDC’s only asset, the Rainmaker Hotel. The shareholders asked the court to issue a preliminary injunction, which would halt all demolition or renovation of Dateline’s portion of the hotel, until issues surrounding the sublease could be resolved on the merits. The shareholders named as Defendants are: Tom Drabble (“Drabble”), individually and as owner of Dateline; the Governor, individually and in his official capacity; the ASDC Board; Sese McMoore, individually and as Chairperson of the ASDC Board; the Board of Directors of the Development Bank of American Samoa (“the DBAS Board”); Tanielu Liufau (“Liufau”), individually and as Chairperson of the DBAS Board; and Utu Abe Malae (“Utu”), individually and as President of DBAS.
On October 7, 2004, the Court heard the preliminary injunction application. At the outset of the hearing, upon the shareholders’ oral motion, we dismissed the DBAS Board, Liufau and Utu from the case. The remaining Defendants disputed the attempt to procure an injunction. Towards the end of the hearing, they and the shareholders orally moved *107for final- disposition of the action by summary judgment. For the reasons stated below, we place a preliminary injunction upon the renovation of the Rainmaker Hotel until the sublease in question is presented to and acted upon at an ASDC shareholders’ meeting convened for that purpose. We will defer the decision on the summary judgment motions until after the ASDC shareholders act on the sublease.
Discussion
A court may issue a preliminary injunction if the applicant establishes “sufficient grounds” showing that:
(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 fairly be held on whether a permanent injunction should issue.
A.S.C.A. § 43.1301Q).
During the October 7 hearing, the shareholders based their preliminary injunction claim on three distinct grounds. First, they assert that the sublease is invalid because the original lease, on which the sublease is based, is itself invalid. They claim that the original lease is invalid because the Legislature of American Samoa never formally approved the lease, as is required by law. Second, they assert that the sublease is invalid because the Legislature has likewise not formally approved it. Lastly, they maintain that the sublease is invalid because the ASDC Board did not convene an ASDC shareholders meeting to consider and obtain their approval of the sublease.
I. Approval of the Original Lease by the Legislature
Any lease having a term of 10 or more years and involving real property controlled by the American Samoa Government (“ASG”), in order to become effective, must be submitted to the Legislature, and not disapproved within 30 days of its submission. A.S.C.A § 37.2030.
The shareholders maintain that the Dateline sublease is invalid because it is founded upon an invalid original lease. They contend that the original Rainmaker Hotel lease, between ASG, as lessor, and the ASDC, as lessee, is invalid under A.S.C.A. § 37.2030 because the Legislature affirmatively disapproved it. The shareholders’ contention is incorrect. The original lease was presented to the Legislature for disapproval twice. The first time the Legislature rejected the lease. The Legislature stood *108inactive on the second submission, resulting in a default approval of that transaction.
On June 14, 1996, the Legislature adopted the resolution S.C.R. No. 24-32, expressly rejecting the original lease. On July 12, 1996, the lease was again presented to the Legislature. This time, the resolution S.C.R. No. 24-35, proposing the rejection of the lease, was not passed. Thus, the Legislature did not disapprove the lease within 30 days of its submission and the lease was validated. See Session Laws and Digest, Vol. 24-4 (October 1996) (documenting that there is no record of the Fono adopting S.C.R. 24-35 and rejecting the lease).
Because the original lease is legal and valid, there is no substantial likelihood that the shareholders would prevail at trial on this issue. Therefore, their application for a preliminary injunction, to the extent that it relies on this issue, is denied.
II. Approval of the Sublease by the Legislature
The shareholders further contend that the Dateline sublease is invalid because it was not submitted to the Legislature for approval under A.S.C.A. § 37.2030. They assert that because the sublease term is for 10 or more years and involves ASG land, section 37.2030 applies. The remaining Defendants, however, maintain that the Legislature impliedly approved subleases and assignments of the original lease when it approved the original Rainmaker Hotel lease, which contained a provision authorizing subleases or assignments.
Whether the Legislature impliedly approved subleases and assignments of the original lease containing a provision authorizing such future transactions is perhaps debatable. Presumably, however, the Legislature was cognizant of the sublease-assignment provision when it considered the original lease. Arguably, by its own precise terms, A.S.C.A. § 37.3020 is inapplicable to subleases and assignments. After all, a sublease or assignment cannot extend a lease beyond the period the Legislature has already authorized. On the other hand, the Legislature may not favorably view a significant change in the scope of activities under a sublease or assignment without at least reconsidering the subsequent transaction. Of course, no change in the use of the premises is contemplated in this instance and is probably unlikely in the normal course of such transactions.
We hold, in any event, there is not a substantial likelihood that the shareholders will prevail at trial on this issue for purposes of issuing a preliminary injunction. Therefore, their application for a preliminary injunction, to the extent it relies on this issue, is also denied. We will, *109however, further consider the legal aspects of this issue, when and if we decide the pending summary judgment motions.
III. Shareholder Approval of the Sublease
The shareholders are upset that the ASDC Board did not consult with them before agreeing to the sublease of a portion of the Rainmaker Hotel premises to Dateline. They contend that because the subleased portion of the property is such an important and valuable asset to the corporation, the ASDC Board needed to gain shareholder approval before the transaction could be finalized. The remaining Defendants argue that the ASDC articles of incorporation and bylaws provide that the ASDC Board has discretion as to how and when corporate property may be leased and does not need shareholder approval before such a transaction can be finalized.
According to almost all state corporations law, a board of directors is generally free to sell or lease corporate property without shareholder approval. However, a corporation’s board of directors must gain such approval if a sale or lease transaction involves “all or substantially all” of the corporation’s property or assets, regardless of what the corporation’s bylaws or articles of incorporation provide. See e.g., DEL. CODE. ANN. tit. 8, § 271; Cal. Corp. Code § 1001(a); N.Y. Bus. Corp. Law § 909(a) (McKinney 2004).
When determining whether a lease or sale is of “all or substantially all” of a corporation’s assets, a court should avoid a strict mathematical calculation, and instead take a more subjective approach. See Gimbel v. Signal Companies Inc., 316 A.2d 599, 606 (Del.Ch. 1974). In taking such an approach, courts have broken the analysis into two parts: one qualitative and one quantitative. “The qualitative . . . factor asks the court to consider whether the sale ‘substantially affects the existence and purpose of the’ [corporation],.. . The quantitative ... factor involves a determination of whether the sale involved assets ‘quantitatively vital to the operation of the [corporation].”’ In re Nantucket Island Ass ’n Ltd. P’ship Unitholders Litig., 810 A.2d 351, 371 (Del. Ch. 2002) (citing Gimbel, 316 A.2d at 616).
The qualitative factor focuses on the nature of the asset being sold or leased and its relative importance to the corporation. If the asset is “at the heart of the corporate existence and purpose,” such that selling or leasing it involves the “destruction of the means to accomplish the purposes or objects for which the corporation was incorporated and actually performs,” then the transaction is more likely one involving “all or substantially all” of the corporate assets. See Gimbel, 316 A.2d at 616. In Katz v. Bregman, the court indicated that a critical factor was whether the sale or lease was “an unusual transaction” or whether it is *110“‘one made in the regular course of business . . . .’” 431 A.2d 1274, 1276 (Del. Ch. 1981) (citing Wingate v. Bercut, 146 F.2d 725 (9th Cir. 1945)).
The second factor focuses on the quantitative value of the asset being sold or leased, relative to the remaining assets of the corporation. If the corporation sells or leases an asset that brings in a clear majority of the corporation’s revenue, or is a significant percentage of the corporation’s net worth, then the transaction is more likely one involving “all or substantially all” of the corporation’s property. Additionally, important to the analysis is whether the remaining assets are “quantitatively vital economic asset[s].” Hollinger Inc. v. Hollinger Int’l Inc., 2004 WL 1728003 at *34. However, “there is no necessary qualifying percentage” and “each inquiry is factual in nature.” In re General Motors Class C Shareholders Litigation, 734 A.2d 611, 623 (Del. Ch. 1999).
We are mindful that the American Samoa corporation statutes do not contain the provisions applicable to proposed sales or leases of “all or substantially all” of a corporation’s assets similar to those commonly found in other U.S. jurisdictions. The Legislature may well consider enacting legislation applicable to such situations. Until then, however, we are not reluctant to fashion local common or case law on the subject to fill the void. See Interocean v. Samoa Gases, 29 A.S.R.2d 198, (Trial Division 1996) (citing A.S.C.A. § 1.0201 on the general application of common law in American Samoa and the persuasive assistance of the laws of other jurisdictions in appropriate circumstances).
A. Qualitative Factor
The qualitative aspects of the sublease transaction strongly favor a shareholder vote. The ASDC subleased to Dateline a large section of beachfront property at the Rainmaker Hotel premises. The Rainmaker Hotel is the ASDC’s only asset, and the beachfront area of the hotel is likely the most valuable and potentially profitable portion of the hotel grounds. Dateline’s planned renovation includes two buildings that stretch along the entirety of the hotel’s sandy beach. The value of that section of the hotel becomes even more apparent when it is juxtaposed against the harbor-side wing and its proximity to the port’s fuel dock and container yard, and a private commercial fish net repair facility, and the requisite appearance, smells and sounds that accompany those lines of business.
In addition, the remaining portions of the hotel may become obsolete after Dateline completes its renovation. The old pool may be supplanted by Dateline’s new pool. The old restaurant area may be displaced by Dateline’s proposed new restaurant. The old shops may have market *111share taken away by Dateline’s new shops. This is not to say that these negative effects are certain to take place; in fact, some testimony tended to show that Dateline’s development may actually cause significant increases to the value of the remaining portion of the hotel. However, regardless of whether the project increases or decreases the value of the hotel as a whole, the point is that the sublease is a major event in the history of the Rainmaker Hotel because it involves the ASDC’s most valuable asset, is not in the ordinary course of business, and would likely have a significant impact on the remaining hotel premises. In sum, the qualitative aspects of the sublease heavily favor shareholder consultation and action on the transaction.
B. Quantitative Factor
Although the sublease affects only about 25% of the hotel property, the quantitative attributes of the sublease also favor the need for shareholder approval. First, the beach-side portion of the hotel is very likely the most valuable and potentially profitable portion the ASDC’s only asset. By relinquishing control over such an asset, the ASDC Board committed the ASDC to a transaction that will have large quantitative ramifications upon the corporation. Second, the remaining portion of the hotel premises will need significant capital improvements before it is able to compete with the new development. The direction and extent of Dateline’s improvements to the subleased portion of the hotel premises will likely set a standard by which the direction and extent of the any future improvements to the remaining portion of the premises will be measured. Extensive remodeling and redesigning of the beach-front wing may make any modest improvements to the harbor-side wing much less valuable. Therefore, because the sublease authorizing a refurbishment of Dateline’s portion of the hotel may have such quantitative ramifications to the corporation’s remaining assets, further need for shareholder involvement in approval of the transaction becomes clear.
In sum, the ASDC is subleasing a portion of its most valuable asset, and a refurbishment of that asset may significantly alter the value of the remaining portion of that asset or improvements upon that asset. Therefore, a quantitative analysis of the sublease also favors shareholder approval.
After an analysis of both the qualitative and quantitative aspects of the Dateline sublease, we conclude that the transaction involves “all or substantially all” of the corporation’s property.
*112Conclusion
We hold, as demonstrated above, that the shareholders have demonstrated that there is a substantial likelihood that they would prevail at trial on the issue of a shareholder vote. We additionally hold that great or irreparable injury would result before a trial could be held. This is so because the execution of the lease and commencement of the renovations would irreplaceably alter the hotel premises from its current state, without a legally necessary shareholder approval.
Therefore, we are issuing a preliminary injunction preventing Dateline’s planned repairs and renovations of the subleased portion of the Rainmaker Hotel. However, the preliminary injunction will be lifted after the ASDC holds a shareholder meeting to consider and the ASDC shareholders approve the sublease. Section 2(b) of the ASDC by-laws authorize a special shareholder’s meeting. We believe that all parties have an interest in seeing Dateline’s project move forward, and we encourage those parties to arrange that a shareholder meeting take place as soon as is reasonably possible. We have long witnessed the ASDC’s Board and majority shareholder take advantage of its position of power over the remaining shareholders. We believe that the ASDC Board and the majority shareholder need to take more seriously the fiduciary responsibilities that by law they owe the minority shareholders.
Order
1. The shareholders’ application for a preliminary injunction, as it relates to a lack of the Legislature’s approval of the original ASG/ASDC lease and Dateline sublease, is denied.
2. The shareholders’ application for a preliminary injunction, as it relates to the absence of a shareholder vote on the Dateline sublease, is granted. Drabble, the Governor, the ASDC Board, and McMoore, and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from further repairs and renovation of the portion of the Rainmaker Hotel premises included in the Dateline sublease. However, the preliminary injunction shall be automatically lifted when and if a meeting of the ASDC shareholders is convened to consider and they approve the sublease.
3. The Court’s decisions on the pending oral motions for summary judgment by the remaining Defendants and the shareholders are deferred until the Court receives written confirmation that the ASDC shareholders have met and have either approved or disapproved the Dateline sublease.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486901/ | ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
On August 12, 2004, Defendant Progressive Insurance Company (Pago Pago) Ltd. (“Progressive”) filed a motion to dismiss on the grounds that Plaintiff (“Makro”) had failed to comply with a court order, as provided by T.C.R.C.P. 37(b)(2)(C). On August 31, 2004, third party Defendant Mark Solofa Pacific Insurance and Finance Inc. (“Solofa”) joined in Progressive’s motion and filed a motion to dismiss of its own, as *115provided by T.C.R.C.P. 41(b), for failure to prosecute. On September 27, 2004, this Court held a hearing on both motions. For the reasons stated below, we grant Defendants’ motions to dismiss.
Relevant Facts
Makro filed this action on June 10, 1999. On September 29, 1999, Progressive propounded its first set of interrogatories. On July 24, 2001, nearly two years later, Makro produced a 400-page report by accountant Mark Hunsaker (“Hunsaker report”), which was relevant to answering the interrogatories, but not in direct response to them.
On September 2, 2003-nearly four years after it propounded its first set of interrogatories — Progressive was forced to file a motion to compel because Makro continued in its failure to provide adequate responses. However, Progressive withdrew its motion after Makro promised to submit the responses within thirty days.
On December 5,2003, over four years after the first set of interrogatories were propounded and over three months after Progressive filed and then withdrew its motion to compel, Makro finally submitted a response. Makro alleges that the three year delay was caused by a previous attorney, who would not hand over the case file to Makro’s then current attorney. Nonetheless, Makro’s response was less than comprehensive. In fact, in its response to most of the substantive interrogatories, Makro simply incorporated by reference the lengthy Hunsaker report.
On April 15, 2004, Progressive propounded its third set of interrogatories. On May 19, 2004, Makro responded to those interrogatories. However, its response was, again, inadequate, and on May 21, 2004, Progressive again filed a motion to compel. On June 14, 2004, this court held a hearing on that motion and Makro’s counsel, without explanation, failed to attend the hearing.
On June 17, 2004, this Court granted Progressive’s motion to compel, holding that Makro’s response to the interrogatories was evasive. In granting the motion, this Court ordered Makro to answer Progressive’s third set of interrogatories within 30 days. On August 12, 2004, nearly two months after this court granted the motion to compel, Makro had yet to comply with that motion, and Progressive moved to dismiss the case alleging that Makro failed to comply with a court order.
On September 27, 2004, just shy of five years after Progressive propounded its first set of interrogatories, this Court held a hearing on Progressive’s present motion to dismiss. Unlike the previous hearing, Makro’s counsel actually attended this hearing, but in doing so only rehashed the same arguments that this Court had rejected in granting *116Progressive’s motion to compel, two months earlier. At the hearing, Makro’s counsel, citing to his client’s inability to further respond because of its principals’ deficiency in the English language and matters of accountancy,1 essentially indicated that Makro had no further intention to address Progressive’s discovery requests and, it seems, to comply with this Court’s order to compel.
Discussion
A court may properly dismiss a case if a party fails to comply with a discovery order. T.C.R.C.P. 37(b)(2)(C).2 The imposition of dismissal as a discovery sanction must be based on willfulness, bad faith or fault on the part of the nonmoving party. Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 640 (1976).
A party who repeatedly fails to comply with discovery requests and court orders is acting willfully and in bad faith. See Montgomery v. Pepsi-Cola Gen. Bottlers, Inc., 2004 WL 2091483 at *5 (holding that party’s actions were willful and in bad faith when party provided inadequate responses to interrogatories and failed to correct those inadequacies after repeated requests by the court and opposition); Fox v. Studebaker-Worthington, Inc., 516 F.3d 989, 994 (8th Cir. 1975) (holding that dismissal was proper where party showed a “cavalier disregard for the carefully constructed system provided by the Federal Rules of Civil Procedure . . . [thus] blunt[ing] defendants’ attempts to prepare the case for trial”).
More specifically, when a party responds to interrogatories, that party “may not avoid answers by imposing on the interrogating party a mass of business records from which the answers cannot be ascertained by a person unfamiliar with them.” In re G-I Holdings Inc., 218 F.R.D. 428, 438 (D.N.J. 2003).
Further, a party who fails to appear at a scheduled hearing may be acting willfully and in bad faith such that a 37(b)(2)(C) dismissal is proper. Corchado v. P.R. Marine Management, 665 F.2d 410, 413 (1st Cir. 1981) (“We hope that we have made it clear by now that a district court’s discretion to use the extreme sanction of dismissal for failure of *117counsel to respond properly to discovery orders or to fail to appear at scheduled hearings will be upheld unless abused.”).
In deciding whether to grant a 37(b)(2)(C) dismissal, a court should not only consider the party’s conduct, but also consider the effect that abuse of the discovery process has on “overcrowded dockets and precious few judicial resources.” Ford v. Wash. Metro. Area Transit Auth., 131 F.R.D. 12, 14 (D.C. Cir. 1990). Courts should “consider the deterrent effect a sanction will have on parties and potential parties in other cases who might otherwise contemplate abusive actions.” Founding Church of Scientology of Washington D.C., Inc. v. Webster, 802 F.2d 1448, 1458 (D.C. Cir. 1986). “[I]f the district courts are to avoid exacerbating the already heavy backlog of litigation, the power and willingness to draw the line on dilatory litigants must more than theoretical.” Ames v. Standard Oil Co., 108 F.R.D. 299, 302 (D.D.C. 1985) (internal quotations omitted).
Furthermore, a court need not consider lesser sanctions before dismissing a case under Rule 37(b)(2)(C). Halas v. Consumer Servs Inc., 16 F.3d 161, 165 (7th Cir. 1994) (“It is axiomatic that the district court need not impose a lesser sanction prior to assessing the sanction of dismissal.”); Founding Church of Scientology of Washington D.C., Inc., 802 F.2d at 1459 (stating that a district court may dismiss a case under 37(b)(2)(C) “even where a less drastic sanction may have been entertained”) (citation and quotations omitted).
In the present case, Makro has acted deliberately and consistently in its failure to comply with Progressive’s discovery requests and this court’s discovery orders; and, therefore, dismissal under Rule 37(b)(2)(C) is proper.
Makro filed this case in June 1999 and because of their continued failure to get their case organized, the parties are still early in the discovery process, now over five years later.
Makro’s first blunder was its near four-year delay in answering Progressive’s first set of interrogatories. Makro contends that this delay was caused by one of its earlier attorneys, who would not pass on the client file to a later attorney. This is an understandable excuse for a shorter delay — but after nearly four years, someone in the Makro camp .should have been moving the case forward. There are ways to compel an attorney to turn over client files, and it should have taken Makro far less than four years to explore their options. Further, even without the file, Makro should have known that months and years were passing by, and that some action needed to be taken on the case.
*118Then, when Makro finally got the ball rolling, its counsel promised Progressive it would respond to the interrogatories in thirty days; yet, it took them over three months to do so. And, when they finally did take action, their response was inadequate. Makro simply incorporated by reference the lengthy and convoluted Hunsaker report.
Then, after more interrogatories, Makro made no attempt to improve upon their earlier inadequate responses and Progressive filed a motion to compel. On June 14, 2004, this Court held a hearing on that motion and, without explanation, Makro’s counsel failed to appear at the hearing. This action alone is grounds for dismissal under Rule 37(b)(2)(C). See Coarchado, 665 F.2d at 413.
On July 17, 2004, this Court granted the motion to compel and ordered Malero to comply within thirty (30) days. Malero did not do so and Progressive filed this motion to dismiss. On September 27, 2003, this Court held a hearing on that motion. As of that date, well more than two months had passed and Makro had not lifted a finger in an attempt to comply with this Court’s motion to compel. Instead, it continued to assert that the lengthy Hunsaker report was the best they could do. However, this Court had already rejected that position.
In sum, Makro’s actions are consistent and blatant enough to be considered a willful disregard of discovery requests and court orders. Makro asserts that it is unable to fully comply with Progressive’s interrogatory requests. It contends that it is unable to decode the Hunsaker report and that only an expert could do so. Even if this was true, Makro has offered no explanation as to why this would have caused it to fail to attend the June 14 hearing, fail to respond to the motion to comply and generally fail to do anything with regards to the prosecution of their case. In the words of the Montgomery court: “Enough is enough.” Montgomery, 2004 WL 2091483 at *6. (explaining that 37(b)(2)(C) dismissal was proper after plaintiffs had repeatedly disrespected the system).
This Court also has a responsibility to Progressive to make sure that Malero is diligently prosecuting its case, but this litigation has been hanging over Progressive’s head for over five years now. Under the circumstances, we cannot allow Makro’s continued inactivity, while further elevating Progressive’s litigation angst and costs.
This court additionally has a responsibility to other litigants in this jurisdiction competing for limited judicial resources. With growing caseload and docket concerns, the claimant who refuses to take his responsibility to the court and the system seriously must be set aside in favor of the serious litigant.
*119While dismissal may appear harsh because it potentially penalizes the client for the attorney’s misdeeds, the Supreme Court has expressly rejected the suggestion that “it would be inappropriate to penalize [the clients] for the omissions of their attorney.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd P’ship, 507 U.S. 380, 396-97 (1993). Courts have consistently held that clients must “be held accountable for the acts and omissions of their chosen counsel.” U.S. v. Reyes, 307 F.3d 451, 456 (6th Cir. 2002); Corchado, 665 F.2d at 413 (“We realize that we are visiting the sins of the attorneys upon the client, but this is an unavoidable side effect of the adversary system.”); Scratch v. Sua, 23 A.S.R.2d 20, 22 (Land & Titles Div. 1992) (“Petitioner voluntarily chose this attorney as his representative in this action, and he cannot now avoid the consequences of his freely selected agent.”) (citing Smith v. Ayer, 101 U.S. 320, 326 (1879)).3
Conclusion
We hold that Makro has willfully failed to comply with this Court’s June 14, 2004 Order and further willfully failed to appear at the hearing of June 17, 2004. Therefore, we conclude that dismissal under T.C.R.C.P. 37(b)(2)(C) is warranted.
For reasons given, the motion to dismiss is granted.
It is so ordered.
The submission belies common sense. How then does Malero, an on-island retail business presumably sophisticated in the business realm of inventory and accounting matters, anticipate itemizing and proving up its damages?
Because this Court finds adequate grounds for dismissal in Defendant Progressive’s Rule 37(b)(2)(C) motion, we see no need to discuss the merits of third party Defendant Solofa’s Rule 41(b) argument.
If Plaintiff wants to continue to litigate the issues relevant to the present controversy, it will have to look to counsel and allow Progressive to move beyond this prolonged lawsuit. See Vivao v. Alepeni, 28 A.S.R.2d 147, 148 (Trial Div. 1995) (“[r]elief with regard to an inexcusable mistake of an attorney lies against the attorney, not relief from judgment”). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486902/ | ORDER DENYING MOTION TO DISMISS ON DOUBLE JEOPARDY GROUNDS
Introduction
By information filed in this Court on October 27, 2003, Plaintiff American Samoan Government (“ASG”) charged Defendant Fa'au Seumanutafa with 18 counts of felony stealing under A.S.C.A § 46.4103, a class C felony, and 15 counts of violating standards of ethical conduct under A.S.C.A. § 10.0292, a class B misdemeanor, allegedly committed while Defendant held the office of ASG’s Chief Procurement Officer at various times, beginning on or about November 1, 2001, until on or about September 7,2003. On June 4,2004, pursuant to a plea agreement with ASG, Defendant entered a plea of guilty to felony stealing charged in Count 1 of the information. We accepted the plea agreement and Defendant’s pleas of guilty, and in accordance with the agreement, granted ASG’s motion to dismiss the remaining counts in the information. We scheduled sentencing on February 18, 2005. Defendant is subject to sentencing on the territorial offense for *121imprisonment up to seven years and a fine up to $5,000. Alternatively, he could be granted probation for a term up to five years, detention up to 28 months, the maximum fine, restitution of the full amount of the loss caused by Defendant to ASG, and other appropriate conditions.
On May 21, 2004, pursuant to a plea agreement with the United States Government in the United States District Court for the District of Hawaii, Defendant formally waived federal indictment and entered a plea of guilty, at arraignment before a federal magistrate, to one count charged by information of conspiracy to defraud the United States Government, during the period from on or about February 1, 2001, to on or about September 18, 2003, in violation of 18 U.S.C. § 371. On June 8, 2004, the Chief Judge of the District Court accepted Defendant’s guilty plea and adjudicated him guilty of committing the conspiracy offense. Defendant awaits sentencing on the federal offense scheduled for February 2005. He is subject to imprisonment of up to five years and a fine up to $250,000, plus a term of supervised release of two to three years, and restitution of the full amount of the loss caused to the United States Department of Education and Department of the Interior.
On September 14, 2004, Defendant filed a motion to dismiss the territorial charge on the ground that the continuing prosecution for stealing is barred by the double jeopardy clause of the federal and territorial constitutions in light of his guilty plea to conspiracy in the federal case. Having had the benefit of a hearing on October 14, 2004, and after consideration of the parties’ submissions, Defendant’s motion is denied.
Discussion
This court has very recently addressed this identical issue in American Samoa Gov’t v. Solaita, 9 A.S.R.3d 73, 77 (Trial Div. 2004), concluding that under similar circumstances double jeopardy had not been violated where a party faces both a federal conspiracy charge and a substantive territorial charge. We see no basis to alter the reasoning behind that holding, and therefore apply it here with additional discussion.
The Revised Constitution of American Samoa holds that “[n]o person shall be subject for the same offense to be twice put in jeopardy of life or liberty.” Rev. CONST. Am. SAMOA art. I, § 6. This mirrors the double jeopardy clause under the 5th Amendment to the U.S. Constitution, providing that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST, amend. V.
*122I. The Blockburger Test
In American Samoa Gov’t v. Moafanua, 4 A.S.R.2d 33 (Trial Div. 1987), we determined that separate offenses do not constitute double jeopardy when “each count requires a proof of fact which is not necessary for proof of the other count.” Our test is modeled on the principles of the “same-elements” test set forth by the U.S. Supreme Court. In Blockburger v. United States, 284 U.S. 299 (1932), the Court concluded that a subsequent prosecution does not violate double jeopardy where each offense charged contains an element not contained in the other. See United States v. Dixon, 509 U.S. 688 (1993); see also Brown v. Ohio, 432 U.S. 161 (1977); Gavieres v. United States, 220 U.S. 338 (1911). Defendant suggests that this is not the proper test for double jeopardy. Yet, while it is true that the Supreme Court briefly departed from Blockburger in Grady v. Corbin, 495 U.S. 508 (1990), it reaffirmed the Blockburger test three years later in Dixon, stating that “the [Grady] case was a mistake” and that “the ‘same-conduct’ rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.” 509 U.S. at 705,711.
Here, Defendant has been charged by the federal government and has entered a plea of guilty in the District Court of Hawaii to conspiracy to commit an offense against or to defraud the United States in violation of 18 U.S.C. § 371. Section 371 holds that:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
Defendant is also currently facing charges in American Samoa of felony stealing in violation of A.S.C.A § 46.4103. Section 46.4103(a), states that:
A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him of it, either without his consent or by means of deceit or coercion.
*123Defense counsel states, as he did in the unrelated matter of American Samoa Gov’t v. Solatia, that the charge of stealing is based on the “same conduct” as the federal conspiracy charge and is thus in violation of the double jeopardy clause because both charges arise from the same underlying incident. Again, not only does his position misread the correct state of the law, but so too does it not stand on its own two feet.
The Supreme Court, has long concluded “that a substantive crime and a conspiracy to commit that crime are not the ‘same offence’ for double jeopardy purposes.” Untied States v. Felix, 503 U.S. 378, 389 (1992); see also Garrett v. United States, 471 U.S. 773, 778 (1985) (stating that “conspiracy is a distinct offense from the completed object of the conspiracy”); Pinkerton v. United States, 328 U.S. 640, 643 (1946) (“[T]he commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.”). As we noted in American Samoa Gov't v. Solatia, United States v. Bayer, 331 U.S. 532, 541 (1947) is one pertinent example of this principle. See Solatia, 9 A.S.R.3d at 75. In Bayer, a military officer was convicted in court-martial proceedings after improperly accepting payments in return for transferring soldiers to non-combat units. The Supreme Court concluded that a subsequent federal prosecution for conspiracy to defraud the government was not barred by the double jeopardy clause because “the agreement to do the act is distinct from the act itself.” Id. at 542.
So too, in the present case. Under the territorial stealing charge, Defendant is alleged to have knowingly misappropriated property of another with the intent to deprive him of it, whereas under the federal conspiracy charge, Defendant allegedly conspired to misappropriate the same funds. The two charges involve proof of elements entirely different from the other because the federal charge addresses the agreement of parties to act illegally, while the territorial charge analyzes the substantive elements of the crime contemplated by such alleged conspiracy.
Even if we were to entertain, arguendo, Defendant’s “same conduct” test as the appropriate law, he would also fail for the reasons above. In United States v. Felix, prior to the Dixon Court’s reaffirmation of Blockburger, the Supreme Court applied the Grady “same conduct” test to determine, in part, if a charge of conspiracy and a substantive offense involved the “same conduct” so as to violate double jeopardy. 503 U.S. at 389. Analyzing under Grady whether “to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted” the Felix court reasoned, as have we, that despite Grady, a substantive crime and a conspiracy to commit that crime fail under the “same conduct” test to constitute double jeopardy. Grady, 495 U.S. at 510; Felix, 503 U.S. at 388-91. Stated quite simply, *124under either analysis the planning and conspiring to commit the crime and the actual act of doing it constitute neither the “same conduct” nor contain the “same elements” to raise double jeopardy concerns.
II. The “Separate Sovereigns” Doctrine
Having once again discussed this issue in Solatia, 9 A.S.R.3d at 76, we see no reason to elaborate upon our earlier position that our decision need not turn on the “separate sovereign” doctrine.
Under the “separate sovereigns” doctrine, each state has inherent sovereignty separate from the federal government to punish an individual for an offense to the peace and dignity of that separate sovereign. See Heath v. Alabama, 474 U.S. 82, 89 (1985). Thus, the doctrine holds that a state is free to punish criminal conduct even if the same individual has been convicted under federal law for a similar offense growing out of the same occurrence. See, e.g., Untied States v. Wheeler, 435 U.S. 313, 316-317, 320 (1978). On the other hand, the Supreme Court has previously stated that because territorial courts are “creations emanating from the same sovereign,” successive prosecutions by federal and territorial courts are instead barred because they offend the peace and dignity of only a single entity. Heath, 474 U.S. at 90.
Whether or not the reasoning in Heath applies to American Samoa is not of concern here. Because both a single sovereign and separate sovereign may charge a party for a substantive crime and conspiracy to commit that crime without offending double jeopardy, this Court’s view of our sovereignty status is irrelevant to our holding.
Order
The federal and territorial charges against Defendant are separate and distinct offenses within the meaning of both the United States and American Samoa double jeopardy clauses. For the above reasons, Defendant’s motion to dismiss is therefore denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486903/ | *126ORDER GRANTING PETITION FOR NAME CHANGE AND DENYING PETITION TO ALTER BIRTH CERTIFICATE
Introduction
Tia'i Mase (“Mase”) seeks an order allowing him to change his name to Murphy Fonoti, on the grounds that he has been known by the name of Murphy Fonoti throughout his life and on numerous public records. In addition, Mase seeks to have his birth certificate modified to correspond with this legal change in name, citing to previous instances whereby the Registrar of Vital Statistics has apparently re-issued birth certificates based on name-change orders issued from this court.
In light of the important underlying policy concerns raised by the petition, and in view of past public mischief with the Office of Vital Statistics, culminating in, among other things, criminal prosecutions, we directed the Attorney General for briefing on the issue of the Registrar of Vital Statistics’ self-asserted authority to amend original birth certificates, based solely on name-change orders issued by this court.
Having considered relevant statutory authority, we hold that while Mase may change his name, his petition to alter his birth certificate is without any legal basis, and must, therefore, be denied.
Discussion
We recognize, as does Mase, that an individual has a common law right to change his or her name, so long as such modification is not done for a fraudulent or improper purpose. See Application of Mamea, 24 A.S.R.2d 66 (Trial Div. 1993)(“The common law recognizes the right to change one’s name, and in the absence of statutory abrogation of that right, courts should encourage petitions to malee a public record of these changes.”); Application of Amataga, CA No. 85-95, slip op. at 2 (Trial Div. 1996) (Order Requiring Notice & Further Hearing, issued Nov. 17, 1995) (“At common law, a person is free to adopt and use whatever name he or she chooses; however ... [a] name change application will not be granted if it is sought for any fraudulent purpose or if it infringes on the rights of others.”) See also In re Daniels, 773 N.Y.S.2d 220, 221 (2003); In re Change of Name of DeWeese, 772 N.E.2d 692, 693 (2002); In re the Marriage of Hayes, 12 S.W.3d 767, 769 (2000). We are not persuaded, however, that Mase can have his birth certificate modified in addition to legally changing his name.
In determining whether Mase can have his original birth certificate modified, our task here is essentially one of statutory construction; to give effect to the legislative will expressed by the Fono. Where the will of the legislature “has been expressed in reasonably plain terms, that *127language must ordinarily be regarded as conclusive.” Negonsott v. Samuals, 507 U.S. 99, 104 (1993). A court has a duty to adhere to the plain meaning of a statute, “except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” United States v. Ron Pair Enterprises, 489 U.S. 235, 242 (1989).
In the current case, the only pertinent statute pertaining to birth certificate amendments relating to changes in name is A.S.C.A. § 13.0530, which provides:
(a) Whenever the facts are not correctly stated in any certificate of birth, death, or marriage already registered, the person asserting the error may make an affidavit under oath stating the changes necessary to make the record correct, supported by the affidavit of one other person having knowledge of the facts, and file it with the registrar.
(b) The Registrar of Vital Statistics shall review the affidavits and documents and may require further supporting evidence when he believes that it is necessary. If the registrar is satisfied that the correction is properly supported, he shall accept the amendment.
(c) When the amendment is accepted, it shall be filed with and become a part of the pertinent record, but the original record shall not be altered. Certified copies of certificates may be made showing the correct information, but must show that it is an amended birth certificate.
Notwithstanding the contrary legal position thus far taken by the Attorney General, we conclude that the plain language of Section 13.0530 does not give the Registrar of Vital Statistics authority to amend a birth certificate in situations in which a person changes his or her name. In Littleton v. Frange, 9 S.W.3d 223 (1999) the Texas appellate court was confronted with the question of whether an individual could alter his name and gender on his original birth certificate after having undergone gender reassignment surgery. The court had to decide whether such modification was proper under Texas Health & Safety Code Annotated § 191.028(b), which stated in relevant part “[an] amending certificate may be filed to complete or correct a record that is incomplete or proved by satisfactory evidence to be inaccurate.” The court held that the statute did not apply to situations in which a party sought to change his name, reasoning that “the legislature intended the term ‘inaccurate’ in Section 191.028 to mean inaccurate as of the time the certificate was recorded; that is, at the time of birth.” Id. at 231.
In light of similar language under our own statute, we likewise hold in the current case. Had Mase shown that his name was, for example, *128misstated or misspelled on his birth certificate, then Section 13.0530 would apply, since the facts on his birth certificate would not have been correctly stated at the time it was recorded. Changing one’s name, however, is a far different proposition. Under such circumstances, a party is not arguing that the name on the original birth certificate was incorrect or that the information recorded was based on error or fraud. Quite the contrary, Mase maintains that the name on his birth certificate was the correct name given him at the time of birth, but that the birth certificate should now be modified to correspond with the new name now sought. Just as the Littleton court, we believe that the Fono intended the phrase “whenever the facts are not correctly stated” to refer to facts not correctly stated at the time of recordation, not to facts that later become incorrect by virtue of a party’s voluntary actions to change his legal name. Therefore, we conclude that Section 13.0530 is inapplicable on the facts before us.
Even assuming arguendo that Section 13.0530 is applicable in circumstances in which one seeks to change his or her name, this in turn would not allow modification of the original birth certificate, as Mase maintains. The plain statutory language of Section 13.0530(c) provides that “[w]hen the amendment is accepted, it shall be filed with and become a part of the pertinent record, but the original record shall not be altered(emphasis added). Thus, an “amended” certificate under this statutory provision clearly does not propose an alteration or destruction of the original birth, death, or marriage record, but rather requires the registrar to merely attach the new information as an addendum while leaving the original record unchanged.
Consequently, although Mase may change his legal name, absent fraudulent purpose and/or infringement on the rights of others, he may not amend his original birth certificate unless he can show improper recordation of his name at the time the original birth certificate was created.
Satisfied that Mase’s petition was not made for a fraudulent purpose, and public notice having been duly given, we conclude and order as follows:
Order
1. Mase’s petition for a name change is hereby granted. Mase shall, from this day forward, be legally known as Murphy Fonoti.
2. Mase’s petition to amend his original birth certificate is denied.
3. The Clerk of Courts shall cause a copy of this Order to be served upon the Registrar of Vital Statistics as well as the Attorney General.
*129It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486904/ | ORDER ON DEFENDANTS’ MOTIONS TO SUPPRESS
On June 28, 2004, police officers Keneti Lagai and Homer Pelesasa responded to a burglary complaint at the S&M store in the Village of Tafuna. Etemani Luteru (“Luteru”), a store security employee, was interviewed by police at the store, and then later at the police substation in Tafuna where he implicated himself as well as Defendant Talipope Aniseko (“Talipope”) and Defendant Fa'amanu Siaosi (“Fa'amanu”) in the burglary.
On June 29, 2004, officers picked up Fa'amanu and took him to the substation for questioning about whether he was present during the burglary. Fa'amanu was not given Miranda warnings at this time. Fa'amanu first indicated to the questioning officer that he knew nothing about the burglary. Questioning then ceased for approximately five minutes during which point Fa'amanu was urged to “tell the truth.” Upon resumption of questioning, Fa'amanu changed his story, and confessed to involvement in the burglary. At this point, officers gave Fa'amanu his Miranda warnings, obtained a signed waiver of those rights, and received a post-warning written confession.
Talipope’s circumstances are similar; he was subsequently picked up by the officers from his place of employment after Fa'amanu had given his statement and was also taken to the substation for questioning. Like Fa'amanu, Talipope was not given Miranda warnings at this time. During questioning, Talipope gave the officers an incriminating statement to the effect that he had some of the stolen merchandise at his home. At that point, the interview ceased and two officers were sent with Talipope to retrieve the mentioned merchandise. As it happened, Talipope took the accompanying officers on a wild goose chase and he eventually succeeded in fleeing from them. Nevertheless, on the *131following day, July 1, 2004, Talipope, accompanied by his parents, returned to the substation on his own accord to submit a statement. On this occasion, the police first obtained from Talipope his signature to the standard advisement and waiver of rights form in accordance with the requirements of Miranda. After giving a written statement, Talipope was allowed to return home.
On August 16, 2004, Defendants were charged with felony stealing and burglary in the first degree. On September 28, 2004, counsel for Defendants moved to suppress the confessions made by Defendants both before and after the Miranda warnings were given. Having reviewed party submissions and having had the benefit of a hearing, we now grant in part and deny in part Defendants’ motion.
Discussion
In Miranda v. Arizona, the Supreme Court determined that when an individual is taken into custody, the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires that an individual be properly notified of the right to remain silent, the right to the presence of an attorney, and warned that anything he says can be used against him in a court of law. 384 U.S. 436,478-79 (1966). Unless and until such warnings are given, and a knowing and intelligent waiver of them are demonstrated by the prosecution, no evidence obtained as a result of interrogation can be used against him. Id. at 479.
I. Pre-Warning and Post-Warning Statements
In these matters, we find, taking into account the totality of circumstances, that both Defendants were in custody on June 30, 2004, at the time of their interrogation, thus warranting advisement of their Miranda rights. First, although the officers indicate that Fa'amanu and Talipope were merely being questioned about their knowledge of the burglary as potential witnesses, Luteru, the night watchman, had already implicated them in the crime. Thus, more than witnesses, the officers regarded Fa'amanu and Talipope as targets of interest at the time of questioning. Second, rather than questioning them in public or at their place of work, the officers took Fa'amanu and Talipope to the Tafuna police sub-station, placing them in a police atmosphere during interrogation. Finally, after each had denied involvement in the burglary, the officers nevertheless continued to question them, pressing them to “tell the truth.” Consequently, while each of these factors in and of themselves are not determinative of custodial interrogation, we conclude that the overall environment was custodial in nature. See, e.g., American Samoa Gov't v. Malota, 5 A.S.R.2d 101, 105 (Trial Div. 1987) (finding custody in part because “the setting of the interrogation, as well as the interrogation itself, was designed not so much to elicit the *132suspect’s version of the situation as to elicit a confession to a preconceived police version.”).
Satisfied that the Defendants were in custody and subject to interrogation at the time the statements were elicited, we find in Talipope’s case that all statements that he had given to the officers on June 30, 2004, were obtained in violation of Miranda, and must therefore be suppressed.
In Fa'amanu’s case, we find his situation to fall under our prior holding in Malota and the very recent holding by the Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601 (June 28,2004).
In Seibert, defendant Seibert’s mentally-ill son died in his sleep. Id. at 2605. Fearing charges of neglect, Seibert sought to conceal the circumstances of her son’s death by setting fire to her home, leaving another unrelated mentally-ill teenager living with the family to die in the fire in order to avoid the appearance that her son had been left unattended. Id. Five days later, Seibert was arrested and taken to a police station where she was questioned for thirty to forty minutes without Miranda warnings. Id. at 2606. Only after Seibert admitted she knew the teenager would die in the fire, did officers give her Miranda warnings and obtain from her a signed waiver of rights. Id. The officers then urged Seibert to repeat her pre-warning confession, which she did. Seibert moved to suppress both the pre-warning and post-warning statements, and the Supreme Court agreed that suppression was proper. Id.
We note, as did the Seibert Court, that Miranda seeks to address interrogation practices likely to disable an individual from making a free and rational choice about speaking. Id. at 2607. In turn, we find the Supreme Court's lengthy condemnation of the circumstances quite compelling in Fa'amanu's situation when it stated:
it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content. After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not malee if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the *133police began to lead him over the same ground again. A more likely reaction on a suspect's part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine, 475 U.S. 412, 424, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.
Id. at 2610-11. Whether the delay of Miranda warnings until post-confession was a conscious interrogation strategy or simply an inadvertent omission by the officers here involved, we need not judge. Nevertheless, as Seibert makes clear, the officers here involved clearly misunderstand Miranda. Miranda warnings are to be given at the outset of interrogation in order to give the putative defendant an informed choice as to whether or not to exercise those rights. As we stated in Malota, “[t]o advise someone . . . that he has a right against self-incrimination after the fact of incrimination is utterly without purpose.” Malota, 5 A.S.R.2d at 105. Because the post-warning confession was “hopelessly tainted by the contemporaneity of occurrences, so that it may not be seen as the product of rational choice, and thus not voluntary,” the custodial statements made by Fa'amanu should be properly suppressed also. Id.
II. Talipope’s Subsequent Statements
While we conclude that Talipope’s initial statements made on June 30, 2004, are excludable, his subsequent statements upon return to the police station with his parents are admissible for the reason that such statements were not the fruit of the prior improper confession. Similar to Wong Sun v. U.S., 371 U.S. 471, 491 (1963), Talipope was released from police custody only to return later voluntarily to make a statement. As in Wong Sun, we hold that the connection between the improper first confession and the later statements had “become so attenuated as to *134dissipate the taint.” Id. Therefore, his later statements are not excludable.
Order
We conclude that, having failed to properly provide the Defendants with Miranda warnings upon initiation of custodial interrogation, the statements given by the Defendants, both before and, in Fa'amanu’s case immediately after such warnings were given, should be suppressed. On the other hand, Talipope’s statements independently provided upon his later voluntary visit to the police station are not suppressed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486905/ | ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS AND DENYING SUMMARY JUDGMENT TO PLAINTIFFS
Background
This dispute concerns a planned sublease and renovation of the land on which the Rainmaker Hotel is located. Defendant American Samoa Development Corporation (“ASDC”) currently leases the hotel land from the American Samoa Government (“ASG”). ASDC agreed to sublease1 a portion of the hotel land to Defendant Dateline Industries Inc. (“Dateline”), which planned on renovating that section of the premises. Plaintiff ASDC shareholders (“the shareholders”) did not approve of the sublease and asked this Court to issue a preliminary injunction, barring the Defendants from finalizing and acting upon the sublease.
On October 7, 2004, the Court heard the preliminary injunction application. Towards the end of that hearing, Defendants orally moved to dismiss the action by summary *136judgment. The shareholders countered with their own oral motion for summary judgment.
On October 20, 2004, we issued an order denying in part and granting in part the shareholders’ application for a preliminary injunction. We granted the shareholders’ application to the extent that it relied on the absence of a shareholder vote approving the sublease. We held that the injunction would be automatically lifted when and if a meeting of the ASDC shareholders as a whole was convened and the sublease was approved by a majority of the ASDC shareholders. Additionally, we postponed disposition of the motions for summary judgment until Defendants offered written confirmation of that majority shareholder approval.
On November 5, 2004 the ASDC shareholders met and a majority of the shareholders approved the Dateline sublease. On November 9, 2004, the Attorney General, acting for the Defendants, submitted to the Court written confirmation of that shareholder approval. Therefore, it is now appropriate to rule on Defendants’ motion for summary judgment.
Discussion
Summary judgment is appropriate only when the pleadings and supporting papers show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56; Etimani v. Samoa Packing Co., 19 A.S.R.2d 1, 4 (Trial Div. 1991). In ruling on a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to the opposing party. Id.
The shareholders provided three reasons why they believe that the Dateline sublease is invalid. First, they asserted that the sublease is invalid because the original lease was never approved by the Legislature of American Samoa (“the Legislature”), as is required by law. Second, they claimed that the sublease is invalid because the Legislature has likewise not formally approved it either. Third, they maintained that the sublease is invalid because it was never approved by a majority of ASDC shareholders.
*137I. Approval of the Original Lease by the Legislature
Any lease having a term of 10 or more years and involving real property controlled by the American Samoa Government (“ASG”), in order to be effective, must be submitted to the Legislature, and not disapproved within 30 days of its submission. A.S.C.A. § 37.2030.
The shareholders asserted that the original lease did not pass the standard set forth in § 37.2030. However, as we found in the order on the application for preliminary injunction, the original hotel lease was submitted to the Legislature twice and that the Legislature never disapproved of the second submission, therefore validated the lease under § 37.2030. This material fact is not now in dispute.
The Legislature did, in fact, validate the original lease. Thus, the issue of legislative approval of this lease can be readily resolved by summary judgment. Defendants are entitled to summary judgment on this issue as a matter of law.
II. Approval of the Sublease by the Legislature
The shareholders also contended that the sublease is invalid because it was never submitted to the Legislature, pursuant to § 37.2030. This material fact is also undisputed, and the legal related issue can be determined by summary judgment. This legal issue, however, is somewhat more complicated. No evidence on the record suggests that the sublease was ever submitted to the Legislature for disapproval. Therefore, the only real issue for us to decide is whether or not § 37.2030 applies to this sublease. If the statute does apply, then the sublease is ineffective until it is not disapproved by the Legislature within the 30 days in which action is required. If the statute is inapplicable, then, notwithstanding other possible flaws, the sublease is valid and binding.
We hold that the § 37.2030 does not apply to the Dateline sublease. The language of the statute does not include the term “sublease,” and an examination into the purpose of the statute does not convince us to read that term into the statute. Moreover, applying the statute to subleases makes for poor policy because it would discourage investment on the island by putting an unnecessary burden upon legitimate business and commerce.
The text of the statute uses the term “lease,” and does not use the terms “sublease” or “assignment.” Section 37.2030 provides: “No lease of real property owned or controlled by the government which extends for a period of 10 years or longer may be effective until it has been submitted to the Fono, and not disapproved . . . within 30 days of its *138submission.” Therefore, if the statute is to apply to subleases or assignments, then we must either add the term into the statute, or interpret the word “lease” to include subleases and assignments. Because courts generally steer clear of adding language to a statute, Tracy A. v. Superior Court, 12 Cal. Rptr. 3d 684, 690 (Cal. Ct. App. 2004) (stating that courts generally avoid adding language to statutes when interpreting their meaning), we then must attempt to interpret the meaning of the term “lease.” See, e.g., New York Times Co. v. United States, 403 U.S. 713, 740 (stating that it is the court’s responsibility to interpret the laws). When a court undertakes the task of interpreting the language of a statute, it should adopt an interpretation that best advances the legislative purpose. See, e.g., State v. Miniken, 999 P.2d 1289, 1290 (Wash. Ct. App. 2000).
In the present controversy, the purpose of the statute is not fulfilled by applying it to subleases and assignments. Therefore, we hold that the term “lease,” as used in § 37.2030, does not refer to subleases and assignments. Section 37.2030’s objective is to provide a legislative check on executive authority to conduct significant lease transactions. Without that check, the Governor could bind the ASG to unprofitable and poorly negotiated lease contracts.
A sublease of ASG property presents an entirely different situation. In a transaction involving a sublease, typically, ASG is not even a party. The transaction is often between a private business that is leasing ASG land and another private business desiring to sublease a portion of that ASG land. The terms of the sublease do not affect the lessee’s primary contract with ASG. The lessee is still obligated to abide by the terms of the primary contract, as originally approved by the Governor and Legislature. The length of the primary lease and the terms and amount of payment are unchanged. ASG continues to possess the same benefits and burdens under the primary lease as it did before the sublease.2 Thus, because the sublease does not affect the terms under which the Governor has decided to part with ASG land, there is no need for legislative oversight and approval of the transaction.
Moreover, applying § 37.2030 to subleases of ASG land would unnecessarily inhibit economic growth in the territory. Business firms often concentrate their capital in projects where they can efficiently make money without unnecessary risk. ASG owns much of the prime *139commercial and industrial land on the island, including the Tafuna Industrial Park and much of the waterfront land around the harbor. Legitimate and profitable businesses interested in leasing buildings on those lands may be turned off from such investments if they have to be concerned about possible legislative disapproval in the event that they desire to sublease space on their property. Interested investors may steer their money elsewhere, in favor of locations where such a risk is not present.
We could envision how the negative economic consequences would be acceptable if ASG had a legitimate interest in controlling the terms of contracts between private parties to such subleases. However, as discussed above, the terms under which ASG originally leases out its land are unchanged by a sublease and therefore ASG has no legitimate interest in interfering with subsequent subleases.3
Therefore, in sum, we hold that § 37.2030 does not apply to subleases or assignments of ASG land. The Dateline sublease is valid, even though it was never presented to the Legislature for approval. Having resolved this legal issue in Defendants’ favor, the shareholders’ motion for summary judgment is properly denied, and Defendants are entitled to summary judgment on this issue as a matter of law.
III. Shareholder Approval of the Sublease
The shareholders contended that the sublease is invalid because the ASDC board did not gain shareholder approval before completing the transaction. In our October 20, 2004 order on the preliminary injunction application, we determined that such shareholder approval was necessary and that the ASDC board had finalized the sublease without it. We then suggested that the ASDC board call a shareholder meeting with the purpose of putting the sublease to a shareholder vote and we agreed to postpone our decision on the motions for summary judgment until we gained word of the outcome of that vote.
On November 5, 2004, the ASDC shareholders met and a majority of those shareholders approved the Dateline sublease. On November 9, 2004, the Attorney General, acting for the Defendants, submitted to the Court written confirmation of that shareholder approval. The validity of the shareholder vote is not in dispute.
*140Therefore, we hold that with regards to the shareholder approval issue, there is no genuine issue of material fact. Defendants are again entitled to summary judgment on this issue as a matter of law.
Conclusion
We conclude that this case presents no remaining issues of material fact and therefore disposition by summary judgment is appropriate. The Legislature effectively approved the original hotel lease, and the Dateline sublease need not pass the mandates of A.S.C.A. § 37.2030. Additionally, the Dateline sublease was approved by the ASDC shareholders. Therefore, we order this action dismissed so that Dateline may begin its renovations and repairs to the Rainmaker Hotel.
Order
1. The shareholders’ oral motion for summary judgment is denied.
2. Defendants’ oral motion for summary judgment is granted and this action is dismissed.
3. Defendants are entitled to have the Dateline sublease recorded by the Territorial Registrar. For this purpose, the Clerk of the Court shall have a certified copy of this summary judgment in Defendants’ favor served on the Registrar.
It is so ordered.
Technically, the transaction involved an assignment, rather than a sublease, because the ASDC transferred its entire interest in the lease to Dateline. However, because both parties and the contract use the term “sublease,” we will do so as well to avoid any unnecessary confusion.
In fact, if the lessee under the primary ASG lease decides to assign his or her lease to a third party, as is the case here, ASG then has the added benefit of having an additional party to pursue, should the original lessee fail to make payments under the terms of the primary lease.
ASG, of course, is free to negotiate a term into primary leases, limiting the lessee’s ability to sublease or assign the property. However, in the case at hand, the primary lease specifically authorized the lessee to sublease or assign portions of the hotel. See “Lease Agreement Between the American Samoa Government and American Samoa Development Corporation,” Clause 11. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486906/ | OPINION AND ORDER
Plaintiff Roadways (AS) Limited, (“Roadways”), as the employer of real party in interest, Matini Faifeau (“Faifeau”), filed a Motion for Interlocutory Injunction and Stay of Workmen’s Compensation Order with this Court on August 30, 2004. For the reasons discussed below, we deny the motion for a stay and dismiss this case.
Case History
Faifeau injured his left elbow at work on or about March 12, 2002. Surgery was performed to repair the injury. By July 8, 2002 his attending physician declared Faifeau fit to return to work. The employer Roadways had made payments to Faifeau on his lost wages and hospital care during this period and had advanced him a loan.
A Workmen’s Compensation claim was subsequently filed and, according to the transcript of a hearing before the Commission held on February 11, 2004, an initial hearing was held on April 2, 2003. That hearing was continued so that additional medical information concerning Faifeau’s permanent partial disability rating could be obtained. After hearing testimony from a doctor who evaluated Faifeau’s elbow on February 05, 2004, the employer Roadways, and the employee Faifeau, the Commission adjourned its February 11, 2004 hearing and subsequently filed its compensation order on July 30,2004.
That compensation order, despite containing a finding of fact that the treating physician had declared Faifeau fit to return to regular duties as of July 08, 2002, awarded Faifeau full temporary total disability benefits from the date of the injury, March 12, 2002, until the date the evaluating physician determined Faifeau’s permanent partial disability (3% of his left arm) on February 05, 2004. The award also included a 50 weeks disfigurement award for the posterior 3 to 4 inch surgical scar on Faifeau’s left elbow. An undiscounted lump sum payment was ordered by the Commission and despite unrebutted testimony from both the employer and employee at the February 11, 2004 hearing that regular payments had been made by Roadways to Faifeau after his injury, the Commission found no such payments had been made.
The total award of $24,791.35 was ordered to be paid within 10 days of the Commission’s July 30, 2004 compensation order. Roadways filed the instant action on August 30, 2004.
*143Discussion
Although we recognize that Roadways has pleaded plausible grounds for finding the compensation order not in accordance with law as to the duration of Faifeau’s temporary total disability, the undiscounted lump sum payment, and the failure to credit Roadways for payments made or advanced to Faifeau, the narrow issue presented in this matter is whether this Court has jurisdiction to either stay or injunctively set aside or suspend all or part of the compensation order. As argued in briefs filed by the Commission and Faifeau, the compensation order became final 30 days after its filing under A.S.C.A. § 32.0651. Said section reads:
A compensation order becomes effective when filed in the office of the commissioner and, unless proceedings for the suspension or setting aside of such order are instituted, becomes final at the expiration of the thirtieth day thereafter.
The compensation order in this matter was filed on July 30, 2004, thus becoming final no later than midnight, Sunday, August 29, 2004. Roadways filed for judicial review and a stay of the compensation order on Monday, August 30, 2004.
Although T.C.R.C.P. 6(a) allows for additional time to file in court under any “applicable statute”, A.S.C.A. § 32.0651 has been interpreted by the court as being a finite term. Under In re Westerlund v. Scanlan, 4 A.S.R. 998, 1003 (1975), the court held
. . . any judicial review of a compensation award be instituted within thirty days of filing ... if no proceedings are begun before that time the order becomes final and not subject to any further review. ... Thus, the statutory time specified for review is jurisdictional.
Roadways argues that the 30 day period was tolled when it filed a motion with the Commissioner for a rehearing sometime during August, 2004. This position is erroneous. Under A.S.C.A. § 15 32.0653(c):
Proceedings for suspending, setting aside, or a enforcing compensation order, whether rejecting a claim or making an award, shall not be instituted otherwise, than as provided in this section and 32.0652 and 32.0674.
Further, the Commissioner has been statutorily exempted from compliance with:
common law or statutory rules of evidence or by technical or formal rules of procedure ...
*144A.S.C.A. § 32.0640. As noted in the Westerlund case, supra, where the statute requires the review to be instituted in court within 30 days: any other proceeding initiated for review would not toll the thirty day statute.
As this Court has held in Hema v. Commissioner, HCCA 60-98 (Trial Division, 2003) and NPI et al v. Commissioner, HCCA 075-01 (Trial Division, 2002), the Legislature stripped the courts of their powers to hear and decide workplace injury cases when it adopted the Workmen’s Compensation Act and prescribed the exclusive administrative remedy for such claims. We note, however, that Roadways may still have a statutory remedy with respect to the final order in this matter. Pursuant to A.S.C.A. § 32.0654, under certain circumstances, the Commissioner may reopen and modify an award based upon a mistake in a determination of fact. Within the statutory scheme designed by the Legislature for the expedited, administrative determination of any Workmen’s Compensation claim, Roadways may pursue such administrative remedies, but this court lacks jurisdiction to review this final order of the Commission or to stay that award.
Conclusion
The compensation order filed by the Commissioner on My 30, 2004, having become final before Roadways filed for judicial review and stay before this court, the court lacks jurisdiction and this matter is therefore dismissed. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486907/ | ORDER ON DEFENDANT’S MOTION TO RECONSIDER
Introduction
On January 28, 2004, defendant Toetu Solaita (“Solaita”), the program director of the American Samoa Department of Education School Lunch Program, was charged by the American Samoan Government with felony embezzlement, under A.S.C.A. § 46.4104, in connection with the alleged misappropriation of School Lunch Program food supplies and other items. On July 23, 2004, Solaita waived indictment and entered a plea of guilty in the United States District Court for the District of Hawaii for conspiracy to defraud the federal government in violation of 18U.S.C. §371.
On August 3, 2004, Solaita filed a motion to dismiss the territorial embezzlement charges on the grounds that continued prosecution in American Samoa violated the double jeopardy clause of the federal and territorial constitutions, in light of his plea of guilty in the federal case. We denied Solaita’s double jeopardy challenge, and he subsequently filed the motion for reconsideration now before us.
Discussion
Solaita explained in court his filing of this interlocutory motion in part due to his confusion as to whether failure to do so now would preclude his raising this issue after the trial on the merits. We conclude that not only will the issue be preserved, but that the applicable statutory language requires that such motions be filed only at that time.
*146Whether or not Solaita has a legitimate substantive legal foundation on which this court may reconsider its earlier determination, that double jeopardy has not occurred in this matter, is a subject that may only be addressed once we have issued a full and final opinion on the merits. A.S.C.A § 46.2402(a) limits a party’s ability to appeal to the court’s orders to the Appellate Division until “after the announcement of the judgment or sentence.” See, e.g., American Samoa Gov't v. Tiumalu, 28 A.S.R.2d 136 (Trial Div. 1995) (finding that the 10-day time period mandated by A.S.C.A. § 46.2402(a) for filing a motion for new trial does not begin to accrue until the defendant is sentenced). Absent additional statutory language to the contrary, § 46.2402 implies that just as such orders cannot be pursued in the appellate court until a final decision is made by the trial court in the case, so too is the trial court barred from reconsidering its earlier findings until that time. We take from this omission of language regarding interlocutory appeals that the legislature intended, in effect, to require parties to make all such motions at one time, rather than to drag out the pre-trial process by allowing motions that create a “trial within a trial.”
Order
Having interpreted the statutory language to allow only motions for reconsideration after a full and final resolution on the merits, we conclude that Solaita’s motion for reconsideration is premature at this time.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486908/ | *149OPINION AND ORDER
Introduction
On the evening of August 8, 2003, Plaintiff Christine Tilo (“Christine”) was driving a sedan westbound on Highway 1 when a truck owned by Defendant Starkist Samoa, Inc. (“Starkist”) and operated by Starkist employee, Defendant Samaeli Tui (“Tui”), entered onto the highway from the Starkist cannery premises. The two vehicles collided. Christine allegedly sustained both personal injuries and damages to the vehicle she was driving, owned by her husband Vasaga Tilo (“Vasaga”).
On October 3, 2003, Christine filed this action against Starkist, Tui and Defendant Progressive Insurance Co. (“Progressive”), insurer of Starkist’s vehicle, alleging that Tui’s negligent driving caused her personal injuries and property damage, and seeking to recover damages from the three Defendants. On October 25, 2004, this action went to trial. Both counsels were present.
After careful consideration of witness testimony, trial exhibits, and party arguments, we conclude that Christine has adequately established that Tui was negligent, causing both personal injuries and property damage, and that Tui, Starkist, and Progressive share in the liability to Christine. Christine is therefore entitled to compensation.
Discussion
Christine brings suit against Tui, the driver of Starkist’s vehicle, a 2001 International truck, and against Starkist as Tui’s employer. Under the doctrine of respondeat superior, an employer is liable for the tortious conduct of its employee when that employee is acting in the course and scope of his employment relationship. See, e.g., Fa'aola v. Taumua, 27 A.S.R.2d 115, 118-19 (Trial Div. 1995). Thus, in the present case, because the collision occurred as Tui was exiting Starkist’s facilities in a company owned truck in the furtherance of employment activities, any causal negligence on Tui’s part subjects Starkist to equal liability.
I. Personal Injuries
Motorists have a duty to exercise care on the roadway and a duty to refrain from careless driving. See A.S.C.A. §§ 22.0406, 22.0701; Sciascia v. Lutali, 23 A.S.R.2d 38 (Trial Div. 1992); Alofipo v. Va, 20 A.S.R.2d 119 (Trial Div. 1992). Failure to operate a motor vehicle with ordinary or reasonable care, which persons of ordinary prudence would use under the circumstances, is negligence. Maifea v. National Pacific Ins. Co., 27 A.S.R.2d 104 (Trial Div. 1995). In the present case, Tui was not using ordinary or reasonable care under the circumstances. Christine *150was traveling westbound on the main highway, and Tui entered and crossed the center of the highway into the path of Christine’s vehicle, without properly ascertaining whether oncoming traffic had sufficiently cleared to make entrance onto the highway safe. The right front of the truck struck the left front fender area of Christine’s vehicle. Christine was not speeding and did not have sufficient time to take any action to avoid the collision. As Christine had the right of way, it was Tui’s duty to wait until traffic was clear before entering onto the highway. Consequently, Tui, and in turn Starkist, breached their duty of care to Christine by Tui’s manner of entering the highway.
In an action for negligence, a plaintiff bears the burden to prove that, more likely than not, the defendant’s conduct is both the cause-in-fact and the proximate cause of the relevant injury. Ale v. Peter E. Reid Stevedoring, Inc., 25 A.S.R.2d 142, 145 (App. Div. 1994). In the current case, we are not dealing with a convoluted chain of events or outside causes that cloud the link between Tui’s conduct and Christine’s injuries and damage. The incident is straightforward. Starkist’s vehicle, operated by Tui upon entering onto the highway simply collided with the vehicle driven by Christine. Tui’s conduct is therefore both the direct and proximate cause of Christine’s personal injuries and the damage to Vasaga’s vehicle.
In awarding damages for personal injuries, a plaintiff is entitled to recover the reasonable value of medical services rendered to him because of the injury. Puailoa v. Barber, 19 A.S.R.2d 48, 51 (Trial Div. 1991). In this case, Christine alleges that she has suffered injuries to her neck, left hand, and back. Christine lists $12.75 for the cost of medical expenses as the only medical bill received, and states that she does not anticipate further medical expenses. This amount is certainly reasonable.
Christine is also entitled to reasonable compensation for her pain, discomfort, fears, anxiety and other mental and emotional distress that she has suffered and was caused by her personal injuries resulting from the accident. On the scale of damage awards in American Samoa, fairly mild injuries frequently result in awards or settlements in the range of $10,000 while serious and painful injuries result in awards up to $50,000. Moors v. American Samoa Gov’t, 19 A.S.R.2d 67, 68-69 (Trial Div. 1991). Christine suffered and still experiences episodes of lower back pain inducing nausea and headache; that the pain is aggravated by coughing, laughing, and sneezing, and radiates down to her lower limbs. Christine also suffered and still undergoes anxiety and fear of driving and other moving vehicles as a result of the collision.
After considering the evidence, we conclude that Christine is entitled to recover $25,000 for her pain and suffering, plus her $12.75 cost of medical care, a total of $25,012.75 as damages for her personal injuries.
*151II. Property Damage
Defendants argue that Christine cannot bring a cause of action to recover damage to the vehicle, because her husband Vasaga is the vehicle’s sole registered owner of record. Defendants maintain, then, that only Vasaga, as the registered owner, has standing to pursue a claim for the property damage.
A court may refuse to determine the merits of a claim on the ground that, even though the claim may be correct, the litigant advancing it is not properly situated to be entitled to its judicial determination. See Jennings v. Thompson, 25 A.S.R.2d 77, 82 (App. Div. 1994). Standing focuses on the party and not the issue to be adjudicated. Id. However, while courts are generally instructed to refrain from hearing cases based on the rights of third parties not involved in the litigation, they may permit third party standing in cases where: 1) there is a close relationship between the litigant and the third party or 2) the third person is somehow disabled from asserting its own right. Bridgeport and Port Jefferson Steamboat Co. v. Bridgeport Port, 335 F. Supp. 2d 275, 284 (D. Conn. 2004); see also Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES, § 2.5.4 at 82-84 (2d ed. 2002). This test for third-party standing is prudential, rather than stemming from the “case or controversy” requirement, and is up to the court to balance factors to determine if standing is warranted. See Pennsylvania Psychiatric Society v. Green Spring Health Services, Inc., 280 F.3d 278, 288-89 (3d. Cir. 2002).
In the current case, Defendants correctly point out that Vasaga, the vehicle’s registered owner, could have asserted his rights relating to property damage on his own behalf. He testified as a witness in this case. Nevertheless, examining the close relationship between the Vasaga and Christine, we find that Christine’s interests are so closely aligned with her husband Vasaga’s rights as to allow third-party standing for damage to the' vehicle in this case. The fact that Christine and Vasaga are married is not itself determinative of this “close relationship” for standing purposes. Rather, because, as both Christine and Vasaga indicated, they consider the vehicle to be their marital property and fully shared in the vehicle’s use as transportation for both mutual and separate purposes, Christine, although not the actual owner, has an equal motive to serve fully and vociferously as the proponent of her husband Vasaga’s rights as would Vasaga himself were he the plaintiff.
Because the damage to the vehicle arose from the same negligent conduct causing Christine’s personal injuries, we need not repeat our earlier negligence analysis, and instead need only determine the appropriate damage award relating to the damage to the vehicle. The measure of damages to personal property injured but not wholly *152destroyed is usually: “(a) either (1) the difference between the value of the property immediately before and after the accident, or (2) at the owner’s option when the property is economically repairable, the reasonable cost of repair, with due allowance for any difference between the original value and the value after repairs; and (b) loss of use.” Fuia v. Tua, 23 A.S.R.2d 70, 73 (Trial Div. 1992). Loss of use is based on the use value or the amount paid for a substitute during the period when the owner is prevented from using his personal property. Id. at 73-74. This time period is generally defined as the time reasonably required for repairing the property. Id. at 74.
Here, Christine opted to rely solely on the reasonable cost of repair as the basic measure of recoverable damages for the damage to the vehicle. She did not present any evidence of the vehicle’s before and after fair market value, or any diminished value after repair. Christine established the cost of parts and labor in repairing the vehicle, totaling $4,242.00. This repair cost is reasonable. She also incurred a $125.00 expense for towing the vehicle to the repair shop. This, too, is reasonable. She did not present any evidence of the compensatory value of the vehicle’s loss of use while undergoing repair. However, Christine was unable to pay this repair cost when the repairs were completed on February 16, 2004, and as a result, she has incurred consequential and foreseeable charges for continuing storage of the vehicle at the repair shop at the rate of $10.00 per day, beginning five days later on February 23, 2004. The storage charges totaled $2,440.00 as of the October 24, 2004, and are still increasing by the $10.00 daily storage charge from the beginning of the trial on October 25.
Although we have recognized that a plaintiff in cases of property damage has a duty to mitigate those damages, this duty may be moderated when delays are encountered because necessary acts are unreasonable. Fuia v. Tua, 23 A.S.R.2d at 73-74. Indeed, in Fuia, the court cited Valencia v. Shell Oil Co., which held that “[t]he duty to minimize damages does not require an injured person to do what is unreasonable or impracticable, and, consequently, when expenditure are necessary for minimization of damages, the duty does not run to a person who is financially unable to make such expenditures.” 147 P.2d 558, 561 (Cal. 1944). In the present case, the continuing storage charges would not have been incurred had Christine been able to pay the repair bill. However, because her financial condition prevented such payment, the accrued and continuing storage charges are properly assessed against Defendants.
We conclude that Christine is entitled to recover $4,242.00 for the reasonable cost of repairing the vehicle, $125.00 for the reasonable towing charge, and $2,440.00 for charges of storing the vehicle at the repair shop after the repairs were completed, a total of $6,807.00, plus *153additional storage charges at $10.00 per day from October 25, 2004, until the repair and storage charge bills are paid in full, as damages for the property damage to the vehicle.
III. Comparative Negligence
Defendants urge that, pursuant to the statutorily adopted doctrine of comparative negligence, A.S.C.A. § 43.5101, should we award Christine damages for personal injuries or property damage, or both, the damages should be reduced by an amount that proportionately reflects Christine’s own negligence as a proximate cause of the accident. However, as we find that Christine operated her vehicle in a reasonably prudent manner under the circumstances, there is no reason to reduce our award of damages on the basis of comparative negligence.
Order
1. Christine is awarded $25,012.75 as damages for her personal injuries and $6,807.00 as damages for the property damage to the vehicle, a total of $31,819.75, plus charges at $10.00 per day accruing for storage of the vehicle at the repair shop from October 25, 2004, until the repair and storage costs are paid in frill.
2. Tui and Starkist are jointly and severally liable to Christine for the entire amount of the damages awarded to her. Progressive is jointly and severally liable with Tui and Starkist to Christine to the full extent of its liability covered under the vehicle insurance policy contract Progressive issued to Starkist.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486909/ | ORDER GRANTING MOTION TO DISMISS
Introduction
On January 26, 2004, Plaintiff John Setefano (“Plaintiff”) filed an action against Defendant HSAC Logistics, Inc. d.b.a. Columbus Line (“Defendant”) for breach of contract, negligence, and negligence with wanton disregard in relation to a shipping contract entered into between the parties to transport Plaintiffs vehicle from Seattle, Washington to Pago Pago, American Samoa. Plaintiff alleges that the parties entered into the contract in May 2002, and that Defendant breached the contract *155on or about July 10, 2002, when it dropped and immersed in seawater the shipping container which contained the vehicle, rendering it useless.
On September 30, 2004, Defendant moved to dismiss the action in part because the bill of lading contained an express provision requiring all actions to be brought within one year, and similarly, because the Carriage of Goods by Sea Act (“COGSA”), which Defendant maintains governs the parties’ agreement, likewise contains a one year statute of limitations period.
Having examined the bill of lading and applicable statutory authority, we grant Defendant’s motion.
Discussion
We begin by noting that Defendant correctly concludes that COGSA applies in this case. See 46 U.S.C. §§ 1300-1315. Section 1300 of the Act states that “[e]very bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade, shall have effect subject to the provisions of this chapter.” Section 1312 of COGSA states that “foreign trade” within the meaning of the Act does not include carriage of goods between ports of the United States, its districts, territories, and possessions. Section 1312 states, however, that “any bill of lading or similar document of title which is evidence of a contract for the carriage by sea between such [domestic] ports, containing an express statement that it shall be subject to the provisions of this chapter, shall be subjected hereto as fully as if subject hereto by the express provisions of this chapter.”
Because the vehicle shipment occurred domestically between a state and a territory within the United States, we must turn to the contract to determine COGSA applicability. Section 3(a) of the parties’ bill of lading, entitled “Responsibility; Applicable Legislation” states in relevant part that “this Bill of Lading [is] subject to the provisions of any legislation compulsorily applicable to this Bill of Lading ... which gives effect to the Hague Rules contained in the International Convention for the Unification of Certain Rules Relating to Bills of Lading, dated at Brussels, August 25, 1924, including specific adaptations thereof, such as the Carriage of Goods by Sea Act of the United States (hereinafter ‘COGSA’).” As COGSA would not be “compulsorily applicable” in a transaction as this one, wholly between ports of the United States within the meaning of the Act, then Section 3(a) is not alone an adequate provision that expressly expands COGSA beyond its general applicability to foreign trade.
*156However, Section 3(b) of the bill of lading states that “in the absence of compulsory applicable legislation/national law, the ‘Hague Rules 1924’ shall govern from the time received at the Port of Loading until the time delivered at the Port of Discharge. .. .” The bill of lading makes no earlier mention of the meaning of the quoted phrase “Hague Rules 1924” prior to section 3(b). Indeed, when the bill of lading first discusses the Hague Rules in section 3(a), it chose instead to combine both COGSA and the 1924 Hague Rules under the label “COGSA” when it states “hereinafter ‘COGSA’.” Yet, we interpret the language of section 3(b) incorporating the 1924 Hague Rules to signify an “express statement” of COGSA applicability within the meaning of section 1312, for, as we have noted in Great American Ins. Co. v. The Vessel Pacific Princess n/k/a Pacific Islander, her engines, tackles, etc., 1 A.S.R.2d 64, 65-66 (Trial Div. 1982), COGSA is itself a domestic adoption of the 1924 Hague Rules, and therefore to delineate between the two would be to make a distinction without a difference. Indeed, under Article 3, Section 6 of the 1924 Hague Convention, “the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.” Section 1303 of COGSA, in turn, adopts the identical language, establishing the one-year statute of limitations period in the United States legislation. Consequently, under the express provision of section 3(b) of the bill of lading, COGSA, and its one year statute of limitations period, applies to this agreement for carriage of goods by sea from points wholly within the United States.
Having concluded that COGSA applies, we now turn to the enforceability of the statute of limitations period in this case. In Great American Ins. Co., we examined a contract dispute for the carriage of goods by sea from Australia to Guam and the Northern Marianas seeking damages for chocolates, meats, and rice ruined during shipping. 1 A.S.R.2d at 65-66. Recognizing that the plaintiffs cause of action accrued sometime in June or July 1980 at the very latest, but that the plaintiff did not bring the action until a year and half later, we rejected the plaintiffs claim under COGSA for failure to bring its action within the one year statute of limitations period. Id. at 66. In arriving at this conclusion, we stated that “the limitations period must be strictly enforced. COGSA derives from the Hague Rules of 1921 approved by the Brussels Convention of 1922-24 and has been adopted by nearly every major shipping nation for the express purpose of providing uniformity in international law .... Courts have uniformly dismissed cases brought beyond the statutoiy period without regard to the carrier’s lack of diligence or the merits of the claim.” Id. at 65.
While this language would appear to end discussion on the matter and preclude Plaintiffs action, we noted in Great American Ins. Co., that despite our view toward “strict enforcement,” we recognize two *157situations that allow a tolling of the one-year COGSA statute of limitations period. “The first is where the carrier actually promises the prospective plaintiff, unequivocally, that its claim would be paid and then fails to do so ... . The second involves an agreement to extend the time for suit or which other encompasses consent to be sued beyond the statutory period.” Id. at 66. While we are not aware of any evidence of the latter circumstance, Plaintiff states that he reasonably relied upon assurances of Defendant that his claim was being internally pursued. Because an alleged promise to examine and pursue the claim does not amount to an unequivocal promise to pay the claim, we cannot find that this qualifies to trigger a tolling of the limitations period. Therefore, Plaintiff is time barred for failing to raise his claim within one year.
Plaintiff argues that because Defendant did not raise COGSA as an affirmative defense, Defendant is barred from pursuing dismissal on these grounds in its current motion. We disagree. First, in its answer, Defendant raised as a defense “[a]ny claim of Plaintiff is limited by any agreement Plaintiff entered into with Defendant.” We find this statement adequately incorporates the COGSA statute of limitations period as a defense. And second, even had Defendant failed to raise COGSA, we would have concluded that the applicability of COGSA does not turn on whether a party chooses to raise it in its pleadings, but on whether the bill of lading itself, the governing document, requires its application. Because we adhere to a policy of strict enforcement of the COGSA statute of limitations period when applicable, we cannot ignore the requirements of the bill of lading simply because a defendant did not discuss them in detail.
Finally, that section 18 of the bill of lading, entitled “notice of claim; time for suit” likewise expressly creates a contractual one year statute of limitations period only further supports our finding that Plaintiff is time barred from his current action.
Order
Having found that Plaintiff has filed his cause of action after both the statutory and contractual statute of limitations period, as set forth in the bill of lading, have passed, we must grant Defendant’s motion. This action is therefore dismissed. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486910/ | ORDER ON MOTIONS TO SUPPRESS EVIDENCE AND FOR BAIL
Introduction
On September 28, 2004, pursuant to execution of a search warrant, officers searched the residence occupied by Defendant Fiti Fa'afetai (“Defendant”) and Defendant’s vehicle, and allegedly discovered, among *160other items, methamphetamine, marijuana, and a short-barreled shotgun. On September 29, 2004, Defendant was charged with one count of unlawful possession of a controlled substance in violation of A.S.C.A. §§ 13.1022 and 13.1009(3), one count of unlawful possession of a controlled substance in violation of A.S.C.A. §§ 13.1022 and 13.1006, and one count of possession of a prohibited weapon in violation of A.S.C.A. § 46.4202(a)(4) in relation to these items.
On November 22, 2004, Defendant filed several motions to suppress evidence obtained in this search. Defendant first moved to suppress all evidence on the basis that the affidavit on which the District Court Judge relied was insufficient to justify the issuance of the warrant and, in turn, the subsequent search. Second, Defendant moved to suppress statements made by Defendant to police officers on the basis that such statements were obtained in violation of Defendant’s Miranda rights. Third, Defendant moved for the government to disclose the identity of a confidential informant (“Cl”) used to investigate Defendant prior to the search. Finally, Defendant moved for his release on bail.
Having had the opportunity to review the submitted materials, and with the benefit of a hearing on December 10, 2004, we deny Defendant’s motion with regard to suppression of all evidence and disclosure of the Cl’s identify, and grant Defendant’s suppression motion with regard to his Miranda claims.
Discussion
I. Issuance of Warrant
Defendant argues that the District Court Judge improperly issued the search warrant. Under Article I, Section 5 of the Revised Constitution of American Samoa, “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In deciding whether to issue a search warrant based on a confidential informant’s information, a judge makes a practical, common-sense decision as to whether the totality of circumstances set forth in the supporting affidavit provide a substantial basis that probable cause exists. American Samoa Gov't v. Samana, 8 A.S.R.2d 1 (Trial Div. 1988).
In reviewing the decision of the judge who issued the search warrant, the duty of the court is not to make an after-the-fact de novo review of whether probable cause existed, but to ensure that the issuing judge had evidence which, when reviewed as a whole, provided a substantial basis for so finding. American Samoa Gov’t v. Lam Yuen, 13 A.S.R.2d 49 (Trial Div. 1989); Massachusetts v. Upton, 466 U.S. 727, *161732 (1984); Illinois v. Gates, 462 U.S. 213, 245 (1983) (further observing that if the affidavits submitted by police officers are subjected to de novo review, police might resort to warrantless searches). Such review gives great deference to the judge’s finding of probable cause, even in doubtful and marginal cases, and a court should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common sense manner. U.S. v. Ventresca, 380 U.S. 102 (1965); American Samoa Gov’t v. Leoso, 25 A.S.R.2d 103, 104 (Trial Div. 1993).
Under our deferential review, we conclude that Defendant has not proffered sufficient facts to indicate the issuing judge lacked a substantial basis for issuing the warrant. Although no single factor or formula is determinative in evaluating probable cause, we first consider whether the issuing judge could determine if the informant had an adequate “basis of knowledge” for stating the location of contraband. Here, it appears that the Cl’s basis of knowledge was from personal observation. The affidavit states, in part, that the Cl “has been to the said premises on several occasions when unknown individuals showed up at the premises with items of value to be traded for TCE’ from Mr. Fiti Fa'afetai,” that the Cl “had seen two rifles” on the residence sought to be searched, and “observed small baggies containing TCE’ inside Fiti’s car, a white, Tacoma Toyota pickup,” the vehicle to be searched. That the Cl himself observed Defendant’s possession of such contraband weighs in favor of the judge’s decision to issue the warrant.
Second, we examine whether the issuing judge could have found underlying circumstances indicating the informant was reliable, or circumstances indicating the informant’s information was credible. Defendant makes much of the fact that the affidavit did not contain officer statements assuring the reliability of the Cl, such as a statement that the Cl has proved reliable in past investigations. Although Defendant is correct that the affidavit lacks such statements, we note that the affidavit states that the officers engaged the Cl in two “control buys” during the third and last week of August 2004 and that the Cl purchased two small baggies on each occasion containing methamphetamine. We conclude that the circumstances of these control buys indicate that the issuing judge could interpret the Cl’s information as credible, and that in combination with other common-sense factors considered in their totality, the issuing judge was not in error in issuing the warrant.
Defendant makes an argument challenging the affidavit on its face. Defendant notes that the affidavit was submitted on September 24, 2004, and that the control buys took place approximately one month earlier in August. Pointing to the affiant’s statement that the Cl had come forward “[i]n the course of the past two weeks,” Defendant argues that this timing renders the existence of the August control buys impossible, *162because the officers would not yet have become acquainted with the CI. However, there can be other explanations for this discrepancy. The issuing judge could very well have concluded, for example, that the affidavit was a work in progress originally drafted within two weeks of the Cl’s coming forward, but that the sentence was not later edited upon submission. More importantly, although we could postulate upon countless other theories, such analysis would force us to engage in the very kind of hypertechnical review we are required to avoid. By instead looking at the affidavit in its totality, common sense analysis indicates that the issuing judge did have a substantial basis to conclude that there was a probable chance of criminal activity.
Finally, Defendant argues that the information provided by the CI was too stale to establish probable cause to search of the vehicle or residence. We disagree. Defendant maintains, for example, that because eight weeks had passed between the sighting of items in the vehicle and the search of the vehicle, that there was no indication that at the time the warrant was issued, contraband would still be inside. While we concede that at the time of issuance, it was not certain whether drugs remained in the vehicle, we note that the test for probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. See Illinois v. Gates, 462 U.S. 213, 245 (1983). Thus, while officers may not have been able to show that drugs were actually in the vehicle at the time of the affidavit, based on the totality of circumstances of ongoing control buys and CI witness accounts as recently as two days before issuance of the search warrant, the District Court Judge could have reasonably concluded that there was a substantial chance that contraband could still be found inside.
II. Disclosure of Identity
Defendant next argues that were we to accept the warrant, the government should be compelled to disclose the identity of the CI. The government holds a limited privilege against disclosure of an informant’s identity, and it is the defendant’s burden to demonstrate that disclosure is warranted. Rovario v. United States, 353 U.S. 53, 60-61 (1957). In that regard, the defendant must show that disclosure “would be relevant and helpful” to his defense. United States v. Williams, 898 F.2d 1400, 1402 (9th Cir. 1990). Disclosure is not required where a defendant seeks the identity of the confidential informant, not to aid in his defense, but to challenge the finding of probable cause for a warrant. United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir. 1986).
Although Defendant maintains that disclosure of the CI is necessary to aid his defense, we do not see how the CI could at all be relevant in the case-in-chief. In Williams, for example, officers obtained a search warrant to search a residence based on a supporting affidavit containing *163information from a confidential informant who had purchased cocaine at that residence. 898 F.2d at 1401. Upon executing the warrant, officers discovered defendant at the residence, along with cocaine, firearms, and cash. Id. Defendant argued that disclosure of the informant was necessary to his defense on the merits. Id. at 1401-02. The Court disagreed, concluding that the informant’s testimony could not be relevant or helpful. The Court noted that the government’s charge of possession with intent to distribute was based entirely on the cocaine found in the house when the officers executed the search warrant, and thus that no charges were made based on the earlier drug transaction with the informant. Id. at 1402. In short, “[t]he extent of the informant’s usefulness was to establish probable cause to search as a result of which the cocaine was seized.” Id.
We likewise find in the present case. Defendant himself has earlier argued that the Cl’s information was “stale” at the time of execution, and that his involvement was limited to his control buys and observations prior to the search. Although we have concluded that such observations were relevant for probable cause purposes, as in Williams, Defendant’s charges of possession relate entirely to the contraband discovered after execution of the warrant. Consequently, because the charges are based on conduct in which the Cl was apparently wholly uninvolved, we cannot find a reasonable basis in which the Cl could provide evidence to assist or exonerate Defendant.
III. Miranda Warnings
Defendant further moves that we suppress statements made by Defendant to the searching officers. Under Miranda v. Arizona, where an individual is taken into custody, the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires that he be properly notified of the right to remain silent, the right to the presence of an attorney, and warned that anything he says can be used against him in a court of law. 384 U.S. 436, 478-79 (1966). Unless and until such warnings are given, and a knowing and intelligent waiver of them is demonstrated by the prosecution, no evidence obtained as a result of custodial interrogation can be used against him. Id. at 479.
We believe that in the current circumstances Defendant was in custody during the time of questioning. Although Defendant was not formally arrested, Officer Justin Fa'afiti’s testimony indicates that Defendant was placed in handcuffs when first approached by officers at CBT Hardware, and remained handcuffed during the entire duration in which officers searched his residence and vehicle. Moreover, Defendant was the subject of interrogation. Upon discovering suspected drug paraphernalia and a “crystalline substance,” Defendant told Officer Fa'afiti that he needed “assistance.” Officer Fa'afiti then asked *164Defendant if the discovered contraband was his, to which Defendant replied, “yes.” We conclude that by asking Defendant to admit or deny whether the contraband belonged to him, Officer Fa'afiti’s question was improperly designed to elicit an incriminating response. Therefore, we grant Defendant’s motion to suppress such statement because it was elicited and made during custodial interrogation prior to a reading of Miranda rights.
IV. Bail
The Revised Constitution of American Samoa provides that
all persons shall be bailable by sufficient sureties except where the judicial authorities 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.
Rev. Const. Am. Samoa art. I, § 6.
Bail was denied by the District Court Judge because of an issue with the Defendant’s immigration status to be in the Territory. Since that issue has been cleared and the Defendant has produced evidence of his lawful immigration status, and having considered the affidavit in support of the warrant of arrest, and the submissions of counsel, the application for bail is granted. However, given the seriousness of the charges, bail is set in the sum of $85,000 and the Defendant’s release on bail shall further be subject to the conditions set out below.
Order
For the reasons stated above, we conclude:
1. Defendant’s motion to suppress evidence based on the invalidity of the search warrant and motion to disclose the identity of the informant are without merit and must, therefore, be denied;
2. Defendant’s motion to suppress statements prior to the reading of his Miranda warnings shall be granted;
3. Defendant’s bail application is granted and bail is set in the amount $85,000. Conditions of release shall be: that the Defendant shall promptly make all required court appearances herein and otherwise remain a law abiding citizen; that the Defendant shall not leave nor attempt to leave the jurisdiction of this court; and, that the Defendant shall regularly keep his attorney apprised of his whereabouts.
*165It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486911/ | JUDGMENT OF CONTEMPT OF THE LEGISLATURE OF AMERICAN SAMOA
Background
In July 2004, the 28th Legislature adopted S.R. No. 28-12 during its Second Regular Session, a resolution establishing the Senate Select Investigating Committee (“SSIC”). The Senate formed the SSIC pursuant to its authority granted under A.S.C.A. §§ 2.1001-2.1018. S.R. No. 28-12 authorizes the SSIC to conduct investigations during the regular sessions, special sessions, and interim periods of the 28th Legislature. On September 13, 2004, the 28th Legislature concluded its fourth and last regular session and adjourned for the year. On November 10, 2004, the SSIC issued and had served a subpoena to Respondent Poe Faumuina (“Faumuina”) to appear before the committee on November 18, 2004, to testify and produce certain documents. Faumuina failed to appear before the committee on that day, and on November 23, 2004, the SSIC applied to this Court to have Faumuina held in contempt, pursuant to A.S.C.A. § 2.1016(b).
To properly determine the SSIC’s contempt application, we break our analysis into two parts. The first part examines whether or not a legislative committee has the authority to issue subpoenas and submit applications for contempt when it acts after a current legislature adjourns its last regular session sine die.1 Then, and only after a positive response *167to the first issue, do we reach the second part of the analysis — an examination of the merits of the contempt application.
I. May the SSIC Operate Beyond the Adjournment Sine Biel
A.S.C.A. § 2.1003 provides that an investigative committee “may exercise its powers ... in the interim between sessions when so provided by law or by the resolution by which the committee was established or from which it derives its investigatory powers.” S.R. No. 28-12, creating the SSIC, provides that “the duration of the Senate Select Committee shall be for the twenty-eighth Legislature . . . and the said select committee is authorized to hold and continue its proceedings and hearings during the regular sessions, any special sessions, any recess or interim periods of the twenty-eight Legislature ....”
Thus, the document granting the committee power does not expressly give the committee power to operate beyond adjournment of the Fourth Regular Session of the 28th Legislature. It also does not expressly take that power away. The document does, however, authorize committee action during “recess or interim periods.” It is this Court’s role to interpret that phrase and determine whether or not it authorizes the SSIC to act beyond the close of final regular session. See Alamoana Recipe, Inc. v. American Samoa Gov’t, 24 A.S.R.2d 156, 157 (Trial Div. 1993) (indicating that it is the High Court’s responsibility to interpret territorial statutes); American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 140 (Trial Div. 1990).
In Senate Select Investigation Committee v. Horning, 3 A.S.R.2d 14 (Trial Div. 1986), the court confronted a similar set of facts. In that case, the then existing SSIC attempted to hold in contempt a subpoenaed witness who refused to testify. That investigation committee issued the subpoena between the Legislature’s first and second regular sessions and the defendant asserted that the SSIC did not have authority to take such action. The court held that under A.S.C.A. § 2.1016, a committee sitting between regular sessions of the legislature in place is an “interim committee” and therefore could properly apply for a contempt citation after a subpoenaed witness refuses to testify.
In the present controversy, however, the facts slightly differ. Here, the subpoena and the contempt application were undertaken after the final regular session of the 28th Legislature had adjourned, not between two regular sessions, as was the case in Horning. Therefore, the SSIC action took place after the 28th Legislature had met for the last time in regular session.
Some courts have held that a legislature loses its lawmaking powers after final adjournment and therefore any power the legislative committees *168enjoyed during the regular sessions or interim periods between session also dissolves. Swing v. Riley, 90 P.2d 313, 316 (Cal. 1939); Tipton v. Parker, 74 S.W. 298, 298 (Ark. 1903). In McGrain v. Daugherty, 273 U.S. 135, 180 (1927), the United States Supreme Court, in dicta, implied that the issue may turn on whether the legislative body will return its same members during the next year, or whether newly elected members will take seat. The Court indicated that a legislature with members returning in the next legislature might allow its committees to operate after the final session of the previous legislature. McGrain, however, construed the powers of the United States Congress, and therefore, the interpretation of committee powers in that case is not binding upon other jurisdictions’ legislative bodies. See Petition of Special Assembly Interim Committee on Public Morals of California Legislature, 83 P.2d 932, 937 (Cal. 1938).
In contrast, the Third Circuit, in the most recent relevant available case, concluded that a legislative committee in that jurisdiction could properly subpoena, and cite for contempt, a witness after the legislature had adjourned for the year. In the Matter of Petition of the Finance Committee of the Legislature of the Virgin Islands, 242 F.2d 902, 907 (3rd Cir. 1962). The court noted:
It may be granted that a legislature loses the present power to legislate upon the adjournment of a session sine die. But its members still constitute the legislature, whose legislative powers are merely dormant and suspended between sessions, not finally terminated. Just prior to adjournment, a matter may come up needing to be investigated by a legislative committee which could not possibly complete the investigation and report prior to adjournment. Granting that the function of such a committee is limited to investigation as an aid to possible legislation, is there any incongruity in setting such investigation afoot, with instructions to the committee to report to the legislature at its next regular or special session, or even to the succeeding legislature?
Id. at 904.
Other courts have reached the same conclusion. In Robinson v. Fluent, 191 P.2d 241, 245 (Wash. 1948), the Washington Supreme Court found that a state investigative committee had the power to operate beyond the final adjournment of the state legislature. The court noted that, “[t]he function of investigation during the interim is an inherent power in the legislature. If there is not present in the constitution a restraint against the exercise of interim investigatory power... [then it may] be projected into the interim.” Id. Additionally, New York’s highest state court, in People v. Backer, 185 N.Y.S. 459, 461 (N.Y. 1920), found that absent a *169constitutional provision, it saw no reason why an investigative committee could not be granted power to operate beyond final adjournment. Further, the Texas Supreme Court confronted a legislative committee who issued a subpoena after adjournment of the state legislature. Terrell v. King, 14 S.W.2d 786 (Tex. 1929). In that case, the court responded by finding that the state legislature determines its own procedures and therefore, if the legislature wanted to allow its committees to operate beyond adjournment, the court would not interfere. Lastly, in State v. Aronson, 314 P.2d 849 (Mont. 1957), the Montana Supreme Court held that the “investigative power exists in the legislative branch . . . [and it] may be exercised after final adjournment as well as during the session.”
Taking the above law into consideration, we find that a legislative committee, sitting after adjournment sine die, has the power to issue subpoenas and submit applications for contempt. This Court does not believe that it makes practical or theoretical sense to conclude that a legislative committee immediately looses all investigatory powers upon final adjournment sine die of the particular legislature’s last regular session.
Article II, Section 6 of the Revised Constitution of American Samoa provides that “[e]ach senator shall hold office for a term of four years ... [and that the term] shall commence at noon on the third day of January.. . .” Therefore, if a senator is to complete his full four years of service, his term must end at noon on the third day of January. It is inconsistent with the plain language of our Constitution to hold that a senate committee must cease its activities several months before the end of the committee members’ term of office.
Moreover, the Legislature provides a necessary and fundamental service to the people of this territory, and we do not think it sensible to find its members powerless to perform their legislative duties during a substantial gap after a particular legislature concludes its final regular session. Committees such as the SSIC perform investigations important to the public welfare of the territoiy, and we do not see any persuasive justification for limiting their ability to operate during this final period. This period is, in reality, an interim period between the last regular session of a legislature and the first regular session of the next legislature. There is no fictional legal basis for altering this plain fact.
Further, we reject the notion that a committee’s investigatoiy powers are unalterably linked to the Legislature’s lawmaking powers. Some courts have suggested that a committee loses all investigatory powers once a legislature’s lawmaking ability ceases after the final session. However, we believe that, although a committee’s primary task is to investigate an issue and report back to the Legislature, there is no *170legitimate reason why a committee may not perform that task at a time when the Legislature itself is not in session, even if that means only the next Legislature will have that committee’s report. In many situations, we assume, the new legislature will be equally interested in tackling whatever issue the previous legislature tasked the committee to investigate. The new legislature should have the opportunity to have and consider that committee’s results.
Also, there is a real possibility that in the future a pressing issue may arise just before adjournment. In such a situation, we feel that without compelling constitutional or statutory restrictions, forcing delay in the formation of a committee to begin its investigation until the first regular session of the next legislature would be an impractical and artificial barrier to legitimate legislative needs and therefore contrary to the best interest of the public.
Lastly, we find our position further strengthened by considering the fact that even after adjournment sine die, the Legislature may still be called back by the Governor for a special session. See Rev. Const. Am. SAMOA art. II, § 8. This supports the view that the Legislature is not completely and permanently disbanded upon final adjournment sine die, but instead is simply in an interim period.
Therefore, we hold that on November 10, 2004, the SSIC’s power to issue subpoenas was in full force and effect. The SSIC had adequate authority to issue such a subpoena to Faumuina and thereafter submit an application for contempt.
II. Should Faumuina be Cited for Contempt?
Under A.S.C.A. § 2.1010, a committee may subpoena a witness to give testimony and provide documents. On November 10, 2004, the SSIC issued such a subpoena to Faumuina, asking him to testify before the Committee on November 18, and produce certain relevant documents. It is undisputed that Faumuina failed to appear at that hearing and failed to produce the requested documents. A.S.C.A § 2.1016(a)(1) provides that a person shall be in contempt if he “fails or refuses to appear before the committee in compliance with a subpoena.. . .” A.S.C.A § 2.1016(a)(2) provides that a person shall be in contempt if he “fails or refuses to furnish any relevant. . . document subpoenaed by ... an investigating committee.”
Faumuina excuses his defiance of the SSIC’s subpoena on the ground that the Attorney General of American Samoa personally advised Faumuina that the subpoena was invalid and he was not required to honor the subpoena. Indeed, the Attorney General issued his Legal Opinion No. 002-04, dated October 6, 2004, that the 28th Legislature *171was officially closed by the adjournment sine die of its fourth and last Regular Session, and the closure terminated the SSIC’s authority to conduct further investigations and issue subpoenas for that purpose. The Attorney General affirmed his opinion during the contempt application hearing and confirmed that he personally advised Faumuina, shortly after the SSIC’s subpoena was served on Faumuina, that the subpoena was invalid. He also advised Faumuina, whose status as an American Samoa Government employee had recently ended, that he could not provide legal services to Faumuina and that it was Faumuina’s decision whether to appear in response to the subpoena. Clearly, however, Faumuina accepted and relied upon the Attorney General’s legal opinion in deciding not to appear as subpoenaed. Any person subpoenaed for legislative investigation purposes who ignores the subpoena puts himself at risk of being cited for contempt. Failure to appear even in good faith reliance on an attorney’s advice, while appropriately considered in mitigation for sentencing, is no defense and does not protect him from being held in contempt. See United States v. Monteleone, 804 F.2d 1004, 1011 (7th Cir. 1986); United States v. Armstrong, 781 F.2d 700, 706 (9th Cir. 1986); Ex parte Chambers, 898 S.W.2d 257, 261 (Tex. 1995).
The SICC’s subpoena served on Faumuina was duly and regularly issued. Faumuina clearly had knowledge of the SSIC’s subpoena and the ability to comply with the subpoena. He failed to appear before the SSIC to testify and to produce requested relevant documents as scheduled in the subpoena. He claims to have acted in reliance, perhaps in good faith but certainly not with justification, on the Attorney General’s incorrect opinion on the validity of the subpoena. Faumuina’s failure to appear and produce was willful and contemptuous. Faumuina is, therefore, in contempt of the Legislature.
Conclusion
Pursuant to A.S.C.A. § 2.1016, Faumuina is in contempt of the Legislature and, pursuant to A.S.C.A. § 2.1018(a), is subject to the punishment prescribed for a class C misdemeanor.2 We have taken into account Faumuina’s claim of good faith reliance on an attorney’s advice. For his contempt, Faumuina shall be imprisoned for 15 days at the Territorial Correctional Facility and fined $300.00. However, the term of imprisonment and fine are suspended and Faumuina is placed on *172probation for two years on condition that, when subpoenaed at any time by a legislative investigation committee during the two-year term of probation, he shall appear before the investigation committee, and he shall testify and produce requested documents or things, absent a properly invoked objection or privilege. It is so ordered.
The term “sine die” refers to a current legislature’s final adjournment at the conclusion of its fourth and last regular session when another regular session of the current legislature is not prescribed.
The punishment prescribed for a class C misdemeanor is imprisonment up to 15 days, A.S.C.A. § 46.2301(7), or a fine up to $300.00, A.S.C.A. § 46.2102(a)(3), or both. When the sentence is suspended or imposition of the sentence is suspended, a class C misdemeanant may be placed on conditional probation for at least six months and no more than two years. A.S.C.A. §§ 46.2203-.2204. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486913/ | *180OPINION AND ORDER
On July 10, 2000, Claimant Ali'ilelei Phil Laolagi (“Ali'ilelei”) claimed the matai title Laolagi of the village of Sili in the Manu'a Islands for registration with the Territorial Registrar. Ali'ilelei’s claim drew timely objections and counterclaims by Counterclaimants Nofoaiga L. Sualevai (“Sualevai”) and Fonoti Savali Vaeao (“Fonoti”). On January 26, 2001, after unsuccessful mediation, the Secretary of Samoa Affairs issued a certificate of irreconcilable dispute, jurisdictionally mandated by A.S.C.A. § 43.0302. The dispute was then referred to this Court for judicial resolution. Trial took place on April 15, 19 and 20, 2004. The three claimants for the title were present with their counsel throughout the trial proceedings. The Court, having considered the testimony and other evidence, awards the matai title Laolagi to Fonoti.
Discussion
I. Sualevai’s Eligibility
When the trial began on April 15, 2004, Fonoti’s motion questioning Sualevai’s eligibility to claim to the Laolagi title was pending. The Court indicated that the evidentiary basis on the issue should be presented during the course of the trial for the Court’s ruling on the motion when rendering the decision on awarding the title. The issue raised by the motion is whether or not Sualevai’s physical residency in American Samoa for less than one year prior to filing his counterclaim on September 11, 2000, to succeed to the title, as required by A.S.C.A. § 1.0404(a) is excused under A.S.C.A. §§ 1.0404(b), (c), and (d).
A.S.C.A. § 1.0404(b)(2) excepts service in United States armed forces from the one year residency requirement for persons who are domiciled as permanent residents of American Samoa. Sualevai served in the U.S. Navy under a program that permitted him, after 20 years on active duty, to transfer to the Fleet Reserve to complete 30 years of Naval service. He actually served on active duty for 22 years and in the Fleet Reserve for eight years. During his time in the Fleet Reserve, he physically resided in North Carolina and was employed in various capacities in the juvenile programs in that state. Upon reaching the 30 years’ service, he fully retired from Naval service and, in August 2001, permanently resumed physical residency in American Samoa. Sualevai testified that he was subject to immediate recall to active duty at any time during Fleet Reserve service and that this military service, as such, did not constitute retirement. His explanation of the status of Naval personnel in the Fleet Reserve under this program was uncontroverted. Therefore, for purposes of this action, we hold that he comes within the military service exception.
*181However, Sualevai did not record his military status with the Territorial Registrar and renew the record of his continuing military status every two years, as required by A.S.C.A. §§ 1.0404(b) and (d). Such recordation is mandated and therefore necessary to recognition of the military service exception. Thus, Sualevai was ineligible to claim the title, and the motion to dismiss his claim is properly granted. See, e.g., In re Matai Title Fonoti, 20 A.S.R.2d 22, 24 (Land & Titles Div. 1991); In re Matai Title Afoafouvale, 4 A.S.R. 145, 147-48 (Land & Titles Div. 1975).
Nonetheless, for the Laolagi family members’ awareness and future guidance, we will include findings with respect to Sualevai’s testimony as a witness on the mandated best hereditary right and clan wish statutory factors that the Court must assess in awarding contested matai titles. However, because Sualevai is ineligible to presently seek the Laolagi title, we will appropriately exclude him from our findings and conclusions on the third and fourth criteria dealing with the two remaining claimants’ personal traits for succeeding to the title.
II. The Mandated Statutory Directions
In resolving disputed claims to a matai title, the Court must appraise the claimants’ qualifications in four statutorily prescribed areas of consideration, evaluated according to their assigned priority. A.S.C.A. § 1.0409(c). The four factors are: (A) the best hereditary right among the claimants; (B) the wish of the majority or plurality of the clans customary in the family for the claimants; (C) the claimants’ relative forcefulness, character, personality, and knowledge of Samoan custom; and (D) the claimants’ relative value to the family, village, and country. Id. The Court must issue written findings of fact and conclusions of law on each of the four issues. A.S.C.A. § 1.0409(d).
A. Hereditary Right
On this issue, A.S.C.A. § 1.0409(c)(1) directs the Court to determine “the best hereditary right, as to which the male and female descendants are equal in families where this has been customary; otherwise, the male descendant prevails over the female.”
The Court has fashioned two different basic approaches in evaluating claimants’ hereditary rights. The so-called traditional rule determines the blood percentage based on each claimant’s closest relationship to a previous titleholder. In re Matai Title Tuaolo, 27 A.S.R.2d 97, 99 (Land & Titles Div. 1995). More recently adopted, the so-called Sotoa rule calculates the blood percentage from the original or a successor titleholder, or even an ancestor, commonly accepted by all claimants. Id. at n.l. This approach provides fairer comparison of the claimants *182particularly when there are claimants in a blood line that has not had a titleholder for several generations by usually resulting in equal or closer to equal blood connections among the claimants. In re Matai Title Lolo, 25 A.S.R.2d 175, 176 (Land & Titles Div. 1994).
Ali'ilelei is the son of Laolagi Tusapa, and under the traditional nearest titleholder rule, the degree of his hereditary right is 50%. Fonoti is the great, great, great grandson of Laolagi Auega and being five generations removed from a titleholder, the degree of his hereditary right under this rule is 3.125%. Sualevai is also a great, great, great grandson of Laolagi Auega and has the same hereditary right of 3.125%. Clearly, under this approach, Ali'ilelei has the best hereditary right among the three claimants to the Laolagi title in this case.
Because of the remote but equal blood connection to a previous titleholder claimed by Fonoti and Sualevai, we should consider whether to apply the Sotoa rule in this case. Unfortunately, this approach is beyond our reach. Each of the three claimants identifies a different original titleholder in his family history. Moreover, they do not recognize a successor titleholder who they accept as common to all of them. Fonoti and Sualevai list a former titleholder, Laolagi Auega, common to both of them, but Ali'ilelei does not recognize Auega as a titleholder. The three claimants do identify a titleholder named Laolagi Akai or Laolagi Halcai, but they differ materially on this titleholder’s position in the line of succession and Sualevai does not place him in his blood line.
Clearly, we must resort to the traditional rule on hereditary right, and based on this rule, Ali'ilelei unquestionably has the best hereditary right to the title among all three claimants. Specifically, Ali'ilelei has a greater hereditary right to the title than Fonoti, the other remaining claimant. Ali'ilelei prevails on this criterion.
B. Wish of the Family Clans
A.S.C.A. § 1.0409(c)(2) requires the Court to determine “the wish of the majority or plurality of those clans of the family as customary in that family.”
The traditional basis for support rests upon the consensus within each of the family’s customary clans. In re Matai Title Le'aeno, 24 A.S.R.2d 117, 120 (Land & Titles Div. 1993). The traditional designation of family clans is based on the children of the original titleholder. In re Matai Title Misaalefua, 28 A.S.R.2d 106, 109 (Land & Titles Div. 1995). The three claimants give some but not complete credence to this means of identifying the Laolagi clans. However, because they disagree on the *183original titleholder’s identity, they do not consistently recognize the family’s clans.
According to Ali'ilelei’s family history, he considers the original family clan to be named Mati, based on his original titleholder Laolagi Sea’s only child, a daughter named Mati. Mati in turn had one son, Puia'i, and two daughters, Tulolo and Faauna, who Ali'ilelei claims to be the progenitors of the three presently operative clans of the family. He maintains to have the support of the Puia'i and Tulolo clans.
Fonoti has another version of family history. He understands the family presently has three clans. One is named Auega after his original titleholder Laolagi Akai’s only son. The other two are named Fonoti and Tusapa, apparently having their respective origins with Laolagi Fonoti and Laolagi Tusapa, the first two titleholders registered with the Territorial Registrar. Fonoti claims to have the support of the Auega and Fonoti clans.
Sualevai’s family history tells a different story. He claims that his original titleholder Laolagi Puni had only one child, a son named Matua, and that the family now has two clans, named Matua and Tusapa. The origin of the Tusapa clan apparently stems from Ali'ilelei’s father, Laolagi Tusapa. Sualevai claims to have the support of the Matua clan.
Under the state of the evidence presented, we can find that the Laolagi family presently has either two or three operative clans. However, we are unable to determine by a preponderance of the evidence whether the Laolagi family has two or three clans, or the names of the actual clans. Clearly, however, none of the claimants has the consensus support of a majority or plurality of the family’s clans, which in either case requires the support of two clans. The strongest and most credible clan support evidence comes from the reports of two meetings directed by the Court, essentially verified during the trial.
On November 14, 2002, the initially scheduled trial date, we granted Sualevai’s motion to return the successor selection process back to the family to hold meaningful meetings for this purpose. As a result of the evidentiary hearing on the motion, we found, in essence, that the entire Laolagi family had not met for this purpose, and the incumbent holder of the Sualevai title is the proper person to call such meetings when the title is vacant. We require families to conduct meaningful successor matai selection meetings before proceeding with judicial resolution of a matai controversy. See In re Matai Title Taliaaueafe, MT No. 9-98, Order on Motion to Dismiss (Land & Titles Div. Oct. 12, 1999). We directed Sualevai to call one or more meetings to seek the family’s meaningful selection consideration of the next Laolagi titleholder and to report back *184on February 14, 2003. The bench order was confirmed by the Court’s written amended order of December 17,2002.1
Sualevai initiated notice of the family meeting to discuss and select the successor to the vacant Laolagi title held on February 1, 2003, at his residence in Fogagogo. At the court hearing on April 10, 2003, Sualevai’s report on the February 1 family meeting essentially indicated that the family did indeed have a meaningful meeting and was unable to reach a consensus decision on the next Laolagi titleholder. Most family members accepted the need for further family dialogue at another meeting. We agreed to this request at a status hearing on April 10, 2003. Sualevai noticed the second meeting held on August 16, 2003, at his guesthouse in Tafuna. This meeting was not as well attended as the February meeting. However, though the family members present indicated a preference to withdraw the decision from judicial determination to facilitate renewed family meetings until a successor was chosen, they eventually agreed to have the three claimants decide upon which one of them would succeed to the title and if they failed to resolve the issue to request withdrawal of the judicial action in favor further family deliberations. However, the three claimants did not meet before the status hearing scheduled on October 9,2003.
Based on the presentations at the October 9 court hearing, the failure of the three claimants to meet was largely attributed to lack of adequate premeeting communications between them. In any event, the three claimants clearly preferred not to dismiss this action and to proceed to trial unless the family could reach a decision on the successor before the next trial date. Trial was then scheduled to begin on March 11, 2004, but on March 10, 2004, the three counsel agreed to continue the trial to April 15, 2004, to afford Ali'ilelei’s new counsel time to prepare.
The evidence adduced during the trial essentially confirmed our reading of the bottom-line results of the two family meetings and the claimants’ conviction that judicial selection of the next Laolagi titleholder is necessary. It is apparent that the Laolagi family has undertaken serious and meaningful discussions both to attempt reaching a decision on filling the current vacancy in the Laolagi title and to revitalize family processes generally. However, two clans of the family, constituting the necessary majority or plurality of the clans, have not reached a consensus that would result in selection of the successor matai. It is highly unlikely that the family will agree upon the next Laolagi *185titleholder in the foreseeable future. Neither Ali'ilelei nor Fonoti prevails on the clan wish criterion.
C. Forcefulness. Character. Personality, and Knowledge of Samoan Customs
Under A.S.C.A. § 1.0409(c)(3), we must evaluate “the forcefulness, character and personality of the persons under consideration for the title, and their knowledge of Samoan customs”
Fundamentally, for purposes of determining the third and fourth criteria, each claimant’s attributes must be first assessed on an individualized basis before any comparison of the claimants can be appropriately made. The third criterion essentially deals with the inner strength of the claimants. The fourth criterion of value to family, village and country pertains to the projection of their inner selves for the family’s community benefit. The conclusions reached on both criteria are inherently subjective, but they are manifested by the claimants’ objective achievements and witness demeanor. The same type of evidence is usually relevant as the basis for the subjective interpretations required in deciding both criteria. We will therefore first describe the respective highlights of Ali'ilelei’s and Fonoti’s lifetimes to this point in time.
Ali'ilelei at age 66 is a mature and still active senior. He was educated through high school and some community college levels. He served in and is now retired from the U.S. Navy. His service included wartime duty in Vietnam. He has operated several business enterprises in California and American Samoa over the years. Ali'ilelei has physically resided in the Manu'a Islands beginning in 1988. He is a deacon in his church there and operates a small motel in Olosega and retail store in Sili. He regularly assists Sili’s pulenu'u (“mayor”), participating in public road maintenance and other public projects in the village in the absence of any routine territorial Department of Public Works assistance. In 1987-1988, Ali'ilelei was tirelessly involved in and with the Federal Emergency Management Administration during the recovery efforts after the devastating hurricane struck the Manu'a Islands. He was similarly involved in the recovery after the floods of May 2003. He has provided food and lodging for a tourism promotion film group from outside the Territory. He was during the 1990s, and is again currently, on the local staff of American Samoa’s Member of Congress. His monthly income is sufficient to support matai and other obligations. Ali'ilelei is not a matai, because, he claims, of lack of opportunity to take on a vacant title in the Laolagi family. However, he regularly participates in Manu'a fa'alavelave (“family events”) and has adequate knowledge of Samoan customs, particularly those of his family and village. He recognizes the *186need to restore the unified spirit of the Laolagi family and the families having Sili origins.
Fonoti at age 38 is young and vigorous. He is a college graduate. He was the starting quarterback of his high school football team for two undefeated seasons and became the starting quarterback of his college team. He also coached college football before returning to American Samoa to be a high school teacher and football coach. He has had experience as a correctional officer in Oregon and in youth programs both there and here. Representing District No. 2, encompassing Ofu, Olosega, and Sili in the Manu'a Islands, Fonoti has served several terms as and is currently an elected member of the House of Representatives in Legislature of American Samoa. He has been, and is now, on a variety of significant legislative and executive branch committees, boards and commissions. Fonoti is also active in church affairs, as a deacon and treasurer. He and his wife have sufficient income to support their personal needs and matai obligations. He has been a matai for the past three years, holding the title Fonoti of the Laolagi family. Fonoti also regularly participates in Manu'a fa'alavelave. He is well-versed in the Samoan customs of his family, village and district. Fonoti also appreciates the need to restore the vitality of the Laolagi family and Sili village.
Both Ali'ilelei and Fonoti share a common concern over bringing the family back together. Sili has been frequently devastated as a result of storms. As a consequence, members of its traditional families, including the Laolagi family, have dispersed to other locations and taken other paths. The Laolagi family has also been without a sa'o (“head chief’) to lead the family for about 11 years now following the death of Laolagi Soli, the last titleholder. The Laolagi title is the highest title in Sili. It is also one of the ranking faatui titles of singular importance in the Manu'a Islands. Ali'ilelei and Fonoti want to restore the leadership role of the Laolagi title and revitalize the family and village. The Sili Village Resource Conservation and Development Council, a non-profit corporation, was incorporated in 2002 as one significant step to accomplish this end. Fonoti was an incorporator of this corporation and actively participates in its efforts.2
When we compare the characteristics and attributes that Ali'ilelei and Fonoti would bring to the Laolagi title, we conclude that Fonoti has a decided advantage in the third criterion. Fonoti has the more charismatic personality. He is more outgoing and gregarious. Fonoti has demonstrated greater leadership qualities and is clearly more forceful. We do not question Ali'ilelei’s integrity. However, Fonoti comes across *187as having greater moral strength of character. He also showed superior knowledge of Samoan customs, particularly those customs pertaining to the Manu'a Islands district in addition to those of the Laolagi family and Sili village.
Fonoti prevails significantly over Ali'ilelei on the criterion of forcefulness, character, personality, and knowledge of Samoan customs.
D. Value to Family. Village and Country
Under A.S.C.A. § 1.0904(c)(4), we must appraise “the value of the holder of the title to the family, village, and country.”
Ali'ilelei has the advantage over Fonoti of age, maturity, and perhaps the accompanying wisdom expected of senior citizen status. He also has resided in Sili for many recent years and may have more intimate knowledge than Fonoti of the immediate concerns of the few persons currently living there. He certainly has a solid background of public service through his lengthy experience in the U.S. armed forces.
On the other hand, though Fonoti is still a relatively young man, he has achieved considerable accomplishments. He does not lack the maturity needed to head the family. He has a wealth of leadership experience from his youthful days as an athlete, carried forward as a teacher, coach, and participant in other youth programs. His role as a member of the territorial House of Representatives also demonstrates leadership capacities, as well as current and significant involvement in public affairs. Fonoti knows his family members from the perspective of his matai experience and regular participation in the affairs of both his family and other families in the Manu'a Islands. He has a better command of Samoan customs, particularly at the Manu'a Islands district level.
In sum, Fonoti, having notably stronger leadership qualities, is better positioned to be the next leader of the Laolagi family. His value to the family, village, and country is significantly greater than Ali'ilelei.
III. Priority Analysis
A.S.C.A. § 1.0409(c) assigns priority to the four criteria in the order listed. More weight is given to each criterion than to those following it, taking into account the relative margins by which claimants may win on each of the four categories. In re Matai Title Tauala, 15 A.S.R.2d 65, 69-70 (Land & Titles Div. 1990).
Under the traditional blood connection rule, Ali'ilelai clearly prevails over Fonoti on the first priority best hereditary right because he is the son *188of a former Laolagi titleholder. We temper this result some in light of the five generation gap of a Laolagi titleholder in Fonoti’s blood line. We also discount the second priority clan wish criterion in the absence of any evidentiary preponderance of majority or plurality clan support for either Ali'ilelei or Fonoti. Fonoti markedly prevails over Ali'ilelei in personal characteristics and knowledge of Samoan customs, the third priority criterion, and in Fonoti’s prospective value to the Laolagi family, Sili village, and the Territory, the fourth priority criterion. Fonoti’s superior credentials in the third and fourth criterion substantially outweigh Ali'ilelei’s better hereditary right to the title.
We therefore award the matai title Laolagi to Fonoti.
Order
1. Sualevai was ineligible to claim the Laolagi title at the time he filed his claim for the title with the Territorial Registrar. The motion to dismiss his claim is therefore granted.
2. The Laolagi title is awarded to Fonoti Savali Vaeao. The Territorial Registrar shall register the Laolagi title in Fonoti’s name, provided that he has resigned from and in not holding any other registered title.
It is so ordered.
The motion to disqualify Sualevai as a present candidate for the Laolagi title and dismiss his immediate claim to the title also came for hearing on November 14, 2002. The Court deferred the hearing and ruling on this motion, and ultimately, as indicated above, considered the motion based on the evidentiary support for it during the trial in April 2004.
We note for the record that Sualevai was also an incorporator and actively participates in Council’s affairs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486914/ | OPINION AND ORDER
On May 20, 2002, Plaintiffs petitioned to remove the Peleafei family’s sa'o title of the village of Lauli'i from Defendant Peleafei Tavesi Lauvi (“Peleafei”). The case came to trial on April 1, 2004. Both counsel and Defendant were present.
Plaintiffs contend that the removal is required on two fronts: (1) Peleafei’s absence from American Samoa for more than one year, pursuant to A.S.C.A. § 1.0412(a), and (2) for cause, when petitioned by at least 25 adult blood family members providing tautua (“Samoan customary service”) to the matai and the family, pursuant to A.S.C.A. § 1.0411(a). The petitioners’ number and status in the family are not questioned in this case.
*190The two grounds are really intertwined, as the Court has discretion to permit an absent matai to retain his title after considering the reasons for the absence and the family’s wishes. A.S.C.A. § 1.0412(a). Actual situations, including this one, usually require inquiries into good cause for removal versus retention.
The thrust of the removal justification in this case truly begins and ends with the one-year absence factor. Unquestionably, Peleafei has physically been in Hawaii most of the time since 1992. He went there and has remained there for legitimate health reasons. His need to be there for health care has not changed. However, he does not own a dwelling place there but rather has lived, and still lives, with family members. He has participated, as a lay preacher for example, in church activities there. However, religious participation does not of itself indicate more than continuing to exercise religious faith. He has not maintained his voter registration here and thus has been unable to vote in local elections for a considerable time, but he also has not voted in Hawaii.
Though likely, it is not certain that Peleafei’s absence from American Samoa, beginning in 1992, has actually extended for more than one year at any one time. He does return here, usually several times each year, to participate in Peleafei family faalavelave (“affairs”) and other purposes. He also travels to the U.S. mainland on occasion, particularly for family faalavelave there. He maintains that he would stay in American Samoa when and if his health situation permits. All things considered, we are satisfied and find that Peleafei remains a bona fide resident or domiciliary of American Samoa, who stays abroad only to meet justifiable health care needs.
Plaintiffs complain, nonetheless, that Peleafei’s performance as the Peleafei family’s sa'o is not up to the essential standards of the position. They claim that Peleafei has failed to take care of his responsibilities as the head of the family providing expected and necessary hands-on leadership for the protection of family lands and effective resolution of other family matters. Such criticism almost invariably coincides with a sa'o’s off-island leadership. However, in addition to his occasional return visits, Peleafei has delegated authority to on-island family members to look after routine day-to-day family concerns with land, immigration sponsorship, and other family matters.
Still Plaintiffs claim that Peleafei misused his sa'o authority. They point out that he collected rents from numerous leases of the family’s communal land and used the funds for his personal use. Although there is some basis for this allegation, the expenditures shown involved improvements of Peleafei’s residence in American Samoa and other purposes consonant with his sa'o status. Plaintiffs also claim that by his *191leasing the family’s communal land, Peleafei has prevented family members from beneficial use of scarce family land. However, Peleafei identified other available family lands of substantial size for family members’ use.
The event finally motivating Plaintiffs to bring this matai removal action was the lease of family communal land Peleafei entered into with the Congregational Christian Church of American Samoa (“CCCAS”) in Lauli'i village. This lease is the subject of Poyer v. Congregational Christian Church, LT No. 04-03, an action brought by Peleafei family members, including two of the Plaintiffs in this removal action, to cancel the lease and permanently enjoin the CCCAS from constructing any new building on the leased land. Poyer was separately tried on April 27, 2004, and the Court’s decision in that action will address the validity of the lease in detail.
For purposes of this action, Plaintiffs state that Peleafei did not bring his intentions to enter into the lease to the family for discussion and signed the lease without reading it. We find, however, that Peleafei did advise the family of his intentions to enter into this lease and reached agreement with the CCCAS on its terms which he understood before he signed the lease.
Later, Peleafei did for a while accede to the wishes of the family members opposed to the lease. The objection was not to continuing occupancy and use by the CCCAS, but only to any written lease even though it would not divest the family of title to the land. He notified the Land Commission considering whether to recommend the Governor’s approval, required under A.S.C.A. § 37.0221(a) to validate the lease, of his change of mind. However, Peleafei eventually honored his written commitment to the CCCAS by advising the Land Commission to proceed with the lease approval process.
He did not inform the family members, particularly those opposing the lease, before making his final decision on the lease. However, Peleafei was not required as the sa'o to consult further with the family, but only to refrain from action that is arbitrary, capricious, illegal, or otherwise abuses the sa'o’s discretion. Gi v. Temu, 11 A.S.R.2d 137, 141-42 (Land & Titles Div. 1989); Fairholt v. Aulava, 1 A.S.R.2d 73, 79 (Land & Titles Div. 1983). Given the existing commitment to the CCCAS, Peleafei then supported implementation of the lease without abusing his discretion. We will not substitute our opinion or judgment for a sa'o’s reasonable decision. Id.
In sum, we find that despite his off-island location for legitimate health care concerns, Peleafei has satisfactorily performed his duties as the sa'o of the Peleafei family. Plaintiffs have not met their burden showing by a *192preponderance of the evidence that Peleafei should be removed from his matai title either because of absence from the Territory for more than
one year or for cause. Peleafei is not removed from the Peleafei title, and this action is dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486916/ | ORDER DISMISSING LT. No. 57-91 FOR LACK OF PROSECUTION, GRANTING INTERVENTION OF LAGAFUAINA LAISENE’S ESTATE, REPRESENTED BY FEO LAGAFUAINA, IN LT No. 03-03, AND INCLUDING LELEO SOLAITA’S ESTATE AS A NECESSARY PARTY TO LT No. 03-03
On July 23, 2004, the Court heard motions: (1) of the Court to consolidate LT No. 57-91 and LT No. 03-03; (2) of Intervenor Feo Lagafuaina (“Feo”) for permission to file an intervention complaint on behalf of Necessary Party Estate of Lagafuaina Laisene in LT No. 57-91; and (3) of attorney Jeff Waller (“Waller”) to withdraw as attorney of record for Plaintiffs J Len T’s and Pago Print Shop (together “JLT/PPS”) in LT No. 03-03 if the actions are consolidated as his firm Hall & Associates already represents Hugo R. Gebauer and Jane May Gebauer (“the Gebauers”) in LT No. 57-91. The Gebauers moved during the arguments to dismiss LT No. 57-91 for lack of prosecution.
Consolidation
Consolidation of both actions is appropriate at face value. Both actions concern disputes over ownership of and leasehold rights in the same land located in Nu'uuli, American Samoa. However, if LT No. 57-91 is dismissed and all necessary parties become parties to LT No. 03-03, consolidation will be unnecessary to complete resolution of the issues.
Dismissal of LT No. 57-91
Dismissal of LT No. 57-91 for lack of prosecution is appropriate for several reasons at this juncture.
*198First, Plaintiff Leleo L. Solaita (“Leleo”) in LT No. 57-91 claims inheritance of the land at issue under Lagafuaina Laisene’s will. Technically, Leleo was not properly served with Feo’s intervention motion. Her counsel of record is still Togiola Tulafono, who is unable to represent her as he is the present Governor of American Samoa. Leleo is, however, also now deceased, and her surviving spouse, Fagaima Milovale Solaita, has approached Marie A. Lafaele, Feo’s present counsel, to represent the interests of Leleo’s estate in the land as well. It appears that Leleo estate’s and Lagafuaina Laisene estate’s claims to the land are not at odds with one another. In any event, if LT No. 57-91 is dismissed, Leleo’s estate can be made a necessary party to LT No. 03-03 to protect her estate’s claim.
Second, the Gebauers allegedly had leasehold interests in the land when LT No. 57-91 was filed. The complaint in LT No. 03-03, however, clearly alleges that the Gebauers’ successors took over their leasehold interests, and the Gebauers no longer have any interest in the land. The Gebauers participation is not now necessary to determine the ownership and leasehold issues.
Third, the parties to LT No. 57-91 have done nothing to bring this action to trial after they stipulated to and the Court granted continuance of the trial scheduled on November 21, 1996. There is no reasonable excuse for this inaction for well over seven years.
Fourth, and especially important, the Secretary of Samoan Affairs’ certificate of irreconcilable dispute has never been filed in LT No. 57-91. Defendants in LT No. 57-91 maintain that the land at issue is communal land. Without the certificate, the Court lacks jurisdiction to proceed with a judicial resolution in this action. Though this void was noted at several hearings before the Court, the parties did nothing of record to initiate, let alone participate in, dispute resolution proceedings before the Secretary leading to issuance of the jurisdictional certificate. However, a certificate of irreconcilable dispute has been filed in LT No. 03-03. The Court can therefore resolve all ownership and leasehold issues, so long as all necessary parties are included in this action.
We will therefore dismiss LT No. 57-91 for lack of prosecution, and require that Lagafuaina Laisene’s estate and Leleo’s estate be made parties to LT No. 03-03.
Feo’s Intervention
Feo’s intervention on behalf of the Estate of Lagafuaina Laisene is also appropriate. The Estate alleges that the land at issue is property of the Estate by virtue of Lagafuaina Laisene’s claimed individual ownership. Feo would replace now deceased Necessary Party Salataima Lagafuaina *199Stanley, who was the first administrator of Lagafuaina Laisene’s estate but is no longer a necessary party for resolution of the issues. We will therefore grant Feo’s motion to permit the Estate of Lagafuaina Laisene to intervene as a party, represented by Feo the present administrator, but in LT No. 03-03 rather than in LT No. 57-91.
Leleo as a Necessary Party to LT No. 03-03
The Estate of Leleo L. Solaita is a necessary party to LT No. 3-03, along with the Estate of Lagafuaina Laisene, to judicial resolution of ownership and leasehold issues concerning the land. Leleo’s estate will therefore be made a necessary party to LT No. 03-03.
Motion to Withdraw as Counsel
Waller’s motion to withdraw as the attorney of record for JLT/PPS in LT No. 03-03 is moot with the dismissal of LT No. 57-91. This motion will therefore be denied.
ORDER
1. Consolidation of LT No. 57-91 and LT No. 03-03 is not necessary to judicial resolution of the ownership and leasehold issues raised in the land at issue to both actions and is denied.
2. LT No. 57-91 is dismissed for lack of prosecution.
3. Feo’s motion to intervene as the administrator on behalf the Estate of Lagafuaina Laisene is granted, but in LT No. 03-03 rather than LT No. 57-91.
4. The Estate of Leleo L. Solaita is included as a necessary party in LT No. 03-03, and her representative shall take the steps necessary to have counsel of record for her estate within 30 days after entry of this order.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486918/ | OPINION AND ORDER
Background
This matter came on before the Court for a hearing on a preliminary injunction to restrain defendants from using the chiefly salutation of “Maluolefale” or occupying the post traditionally reserved for the sa'o of the Maloata Family at village functions. For reasons more fully set forth below, we deny the issuance of a preliminary injunction; remand the controversy to the Secretary of Samoan Affairs for a determination of executive branch powers; and issue certain, temporary orders to protect the public peace and enforce existing statutes.
As originally filed on August 4, 2004, Maloata L. Tuilefano, Tualevaoola Tuilefano Te'o, and Fuafuamealelei A. Tuaumu (hereinafter “Tuilefano et al”), sought a temporary restraining order to prevent Defendant Sinaka Ulutu and the Ulutu Family (hereinafter “Ulutu”) from conducting a saofai (ceremonial investiture of a chiefly title) within the Village of Aitulagi on August 5, 2004, and for a preliminaiy injunction restraining Ulutu from using the salutation “Maluolefale” or the post traditionally occupied by the Maloata titleholder at village functions and appearances.
The justice initially reviewing the temporary restraining order denied its issuance and set the matter for a hearing on August 20, 2004. That hearing was continued until August 27, 2004, upon objection by Ulutu that he had not received all documents filed in the case at least 48 hours preceding the hearing as mandated under the injunction statutes. A.S.C.A. § 43.1303(a)(2).
On August 27, 2004, the court constituted itself with a quorum of three associate judges and one presiding justice to hear this matai title dispute under A.S.C.A. § 3.0240. A lengthy hearing ensued with each side offering exhibits and providing testimony concerning the history, rank, privileges and functions of the respective titles of Maloata and Ulutu within the Village of Aitulagi.
Tuilefano et al. maintained that the Maloata title is the ranking High Chief title of the village and has exclusive claim to the salutation “Maluolefale” as well as the post reserved at village functions and affairs for that titleholder.
*208Further, Tuilefano et al. maintained the Ulutu title was a title within their family of modest rank and that under the injunction statutes the sa 'o of the Maloata Family could bring an action for injunctive relief against a matai of his own family. A.S.C.A. § 43.1309(b). Ulutu’s position in this matter was that his family and his title are not related to the Maloata Family and that his high chief title allows him the right to participate in village affairs. Ulutu further testified that of the five traditional tama matua of the Village of Aitulagi, two titles are vacant and, of the remaining three, two conducted his saofa 7 on August 5, 2004.
Ulutu also had filed a counterclaim charging that Plaintiff Maloata L. Tuilefano had not duly registered the Maloata Title with the Territorial Registrar and was therefore not entitled under the statutes to be recognized as that titleholder. By stipulation of the parties, we were advised that Ulutu’s title was duly registered, but the Maloata title remained officially vacant in the Registrar’s records.
Based upon the limited facts and multiple legal issues presented in this matter, we now discuss and decide how best to preserve the village peace and prevent additional violence while this controversy is resolved under proper authority.
Discussion
Plaintiffs’ documents and pleadings, prepared by their former counsel in this matter, were statutorily deficient. Among other things, the complaint filed did not include a prayer for a permanent injunction, A.S.C.A. § 43.1303(a)(2)(D). Although such defects were waived by operation of law at the hearing under subsection (b) of that statute, defendant cannot waive, nor can the court overlook, the statutory requirement that the sa 'o of the family is the only authorized person to file an application for injunctive relief under chapter 13 of Title 43, A.S.C.A. See A.S.C.A. § 43.1309(b). The complaint filed in this matter was signed by Maloata L. Tuilefano who, by stipulation of the parties, is not the currently registered titleholder of the Maloata title. In addition, his sister, Tualevaoola Tuilefano Te'o, signed the complaint along with Fuafuamealelei A. Tuaumu.
Although subsection 43.1309(b) provides that when the sa'o title is vacant at least two blood male matai family members may bring an action, the complaint and the injunctive relief requested appears, at best, to reflect only one such qualifying party, i.e. “Tuaumu.” We are therefore statutorily precluded from issuing a preliminary injunction in this matter.
*209Notwithstanding the statutory impediments to issuing a preliminary injunction, under A.S.C.A. §§ 43.1301 et seq., 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 . . . .” A.S.C.A. § 3.0242(b). The Court is further empowered under the statutory procedures established for the Land and Titles Division to issue pre-trial temporary restraining orders, and pre-trial orders specific to or concerning Samoan lands, names, or titles. A.S.C.A. §§ 43.0301-305. Interlocutory orders issued by a justice or, when in unanimous agreement, by the associate judges in a matai title dispute are likewise authorized by these statutes.
Although A.S.C.A. §§ 1.0409 and 1.0411 grant this Court clear authority to hear and decide matai succession and removal cases, and A.S.C.A. § 43.1309(b) provides for injunctive relief for a sa'o who brings an action against a matai within his own family, the instant dispute may well present a political question or jurisdictional separation of powers issue that may deprive this court of its subject matter jurisdiction. Both counsel have urged the court to exercise its powers to protect the Samoan way of life under Art. 1, Section 3 of the Revised Constitution of American Samoa. Neither counsel, nor the parties, however, have apparently apprehended the more serious issue under Section 3 of the 1900 Deed of Cession of Tutuila and Aunu'u, which, pertinent to some of the issued raised herein, was signed by both Namoa of Aitulagi and Maloata of Aitulagi. Section 3 reserves unto the Chiefs of the “towns” their individual control of the separate “towns,” subject to the general control, supervision, and police powers of the “Government.”
As the archival exhibits in this case reveal, the “Government,” through the Governor and the Secretary of Samoan Affairs, has exercised its executive powers in the past to deal with similar disputes within the parties’ village. Under Art. IV, Section 4 of the Revised Constitution of American Samoa, the Secretary is responsible for the administration of, inter alia, village affairs. Neither party in this action has provided the Court with any statutory basis or case law that grants the judicial branch authority to hear and decide controversies involving village affairs. (Arguably, under the Deed of Cession, the Revised Constitution of American Samoa, and American Samoa Code Annotated, the only apparent, legitimate, exercise of judicial authority in such matters would be limited to the appellate review of the administration decisions.)
Conclusion
This matter originally came before the Court for temporary orders during the pendency of the case and the statutorily required hearings before the Office of Samoan Affairs. At this initial stage of the controversy, we have insufficient facts to determine which party may prevail or whether *210the Court has subject matter jurisdiction concerning this dispute. The associate judges are unanimous in their decision, however, that to maintain peace and harmony during the immediate future, an order should issue temporarily restraining the parties, their agents and persons working in concert with them from using the salutation “Maluolefale” or the post traditionally reserved for the Ali'i of the Aitulagi Family at village functions. In addition, the Court will continue its earlier order maintaining the public peace and personal dignity of the parties and their agents. And finally, to promptly resolve the jurisdictional issues discussed above, this case will be remanded to the Office of Samoan Affairs with notice to and leave for the Attorney General to file with the Court within 30 days a determination by the Secretary of Samoan Affairs as to whether the Secretary asserts executive branch powers to hear and decide this controversy. If that assertion is made, the Attorney General shall also file a motion for this court to dismiss this matter with prejudice and to dissolve the temporary orders set forth below.
Order
IT IS HEREBY ORDERED that all parties to this action, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are hereby restrained at all village functions, affairs, and appearances:
1. from using, encouraging or allowing others to use, or from acknowledging the salutation, “Maluolefale”;
2. from occupying the post traditionally reserved for the Ali'i of the Aitulagi Family; and
3. from engaging in any violence, threats of violence or otherwise disturbing the public peace of the village, using words, actions, or conduct that intentionally provokes or antagonizes others to so act.
IT IS FURTHER ORDERED that this case be remanded to the Office of Samoan Affairs with notice to the Attorney General for a determination of whether the Secretary asserts exclusive executive branch powers to hear and decide this controversy under Article IV Section 4, of the Revised Constitution of American Samoa. The Attorney General is granted leave of this Court to file notice of that determination within 30 days and, if consistent with the Secretary’s determination, file and serve notice upon the parties of a motion to dismiss this action with prejudice and to dissolve the temporary restraining orders of this court. The Clerk of Courts shall cause the Marshal to serve copies of this Opinion and Order upon the Secretary of Samoan Affairs and the Attorney General forthwith.
*211IT IS FURTHER ORDERED that pursuant to A.S.C.A. §§ 1.0413-.0414, until the matai title Maloata has been duly registered, no person may use, permit to be use, or be recognized as holding, such title.
IT IS SO ORDERED under A.S.C.A. §§ 43.0303 and 43.0304. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486920/ | ORDER ON SUA SPONTE RULE 60(B) MOTION
Introduction
On January 29, 2004, we issued an opinion and order for this case that considered the location of a boundary between two plots of land, one plot registered to the original Plaintiff Olo Letuli (“Letuli”), and the other registered to Defendant Maria Leituala. Letuli v. Leituala, 8 A.S.R.3d 218 (Land & Titles Div. 2004) (hereinafter “Opinion & Order”). We found that a substantial portion of the boundary ran on the centerline of a road which the parties had mutually shared, that the parties had easements to use the road, and that the portion of the boundary located near four fales had moved. Id. We also determined that Defendants with *215ownership or use interests in the road had given up their rights to remove a rock wall constructed by Letuli on the north side of the road because they made no argument to remove the wall at the time of construction or when arguing the case before us. Id. On February 7, 2004, Letuli filed a motion for reconsideration and new trial. On February 9, 2004, Defendants filed a motion for reconsideration and new trial on different grounds, which in part challenged our January 29 decision not to remove the north roadside rock wall. On June 30,2004, we denied both motions.
On July 8, 2004, we resolved to revisit the north roadside rock wall removal issue sua sponte, pursuant to T.C.R.C.P. 60(b)(6). We held hearings on the motion on July 26, September 9, and October 1, 2004, around the parties’ court scheduled briefings. We now conclude that we may find on our own initiative that the north roadside rock wall constitutes an unjustifiable safety hazard and that it be dismantled, notwithstanding the January 29,2004 Order.
Discussion
Under Rule 60(b) “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from final judgment. .. [for] any .. . reason justifying relief.” T.C.R.C.P. 60(b)(6). Although the federal circuits are divided as to whether a court may grant Rule 60(b) relief sua sponte or whether the rule requires a party to raise the motion, we are persuaded by the reasoning of the Second, Fourth, Fifth and Ninth Circuits that have held a party motion is not required to provide Rule 60(b) relief.
I. Sua Sponte Application of Rule 60(b)
The Sixth and Tenth Circuits maintain that a court may not grant relief sua sponte pursuant to Rule 60(b). See United States v. Pauley, 321 F.2d 578 (6th Cir. 2003); Eaton v. Jamrog, 984 F.2d 760 (6th Cir. 1993); Dow v. Baird, 389 F.2d 882, 884-85 (10th Cir. 1968). In Eaton, the Sixth Circuit reasoned that because Rule 60(b) explicitly requires relief to occur “on motion” courts “may not grant relief except upon motion from the affected party.” 984 F.2d at 762. We are not convinced by this interpretation. As noted by the Ninth Circuit, by examining the traditional meaning of the phrase “sua sponte” itself, a court may act on “its own will or motion.” Kingvision Pay-Per-View LTD., v. Lake Alice Bar, 168 F.3d 347, 352 (9th Cir. 1999) (quoting BLACK’S LAW DICTIONARY 1424 (6th ed. 1990) (emphasis added). Thus, contrary to the Eaton holding, the meaning of the language of Rule 60(b) allowing action “on motion” makes no clear prohibition against sua sponte review of prior judgments. Id.
*216Similarly, the Tenth Circuit has determined that the differing language in Rule 60(a) and Rule 60(b) indicates that sua sponte intervention is impermissible under Rule 60(b). In Dow, the Tenth Circuit noted that under Rule 60(a), pertaining to correction of clerical mistakes in judgments, the language of the rule expressly allows correction “by the court at any time of its own initiative, or on motion of any party,” whereas rule 60(b) allows modification only “on motion and upon such terms as are just.” 389 F.2d at 884-85; see also T.C.R.C.P. 60(a), (b). The Dow court concluded that because Rule 60(b) does not retain the language “by the court . . .of its own initiative,” a court may intervene without motion only on Rule 60(a) matters, requiring party motions for Rule 60(b). Id.
Yet, as the Ninth Circuit observes, “the inferences from phrasing of the rules seem somewhat indeterminate.” Kingvision, 168 F.3d at 351. Challenging the Tenth Circuit’s interpretation in Dow, the Kingvision court contends that because Rule 60(b) just reads “on motion,” and does not explicitly say “on the motion of any party,” as in Rule 60(a), an equally valid reading of the Rule could find that the language omitted in Rule 60(b) suggests that relief can be brought by the court’s own motion. Id:, see also T.C.R.C.P. Rule 60(a), (b).
Because the words of Rule 60(b) make no clear prohibition against sua sponte repairs of judgments, we agree with the holdings of the Second, Fourth and Fifth Circuits, that the “motion” requirement of Rule 60(b) does not act as a barrier for a court to relieve a party from a judgment in order to serve the interests of justice. Indeed, in United States v. Jacobs, the Fourth Circuit reasoned that Rule 60(b) “need not necessarily be read as depriving the court of the power to act in the interest of justice in an unusual case in which its attention has been directed to the necessity for relief by means other than a motion.” 298 F.2d 469, 472 (4th Cir. 1961); see Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 111 (2d Cir. 2001) (finding that while normally Rule 60(b) relief is sought by motion of a party, nothing forbids the court to grant such relief sua sponte provided all parties have notice); see also McDowell v. Celebrezze, 310 F.2d 43, 44 (5th Cir. 1962) (stating that the court could initiate a Rule 60(b) on its own motion.).
II. Safety Concerns and Interests of Justice
We believe that the safety hazard posed by the north roadside rock wall is just such a case to warrant modification of the earlier January 29, 2004 order. Upon our own observations, witness testimony, and consideration of the subsequent arrival of the Maliu Mai Beach Resort, we now find that the proximity of the north roadside rock wall to the road makes it too narrow to allow two cars moving in opposite directions to safely pass. Without modification of the earlier judgment, continued use *217of the road in its present state would pose an impermissible threat to public safety. We further find that even with removal of the north roadside rock wall, public safety requires that trucks, buses, and other large vehicles must use the road extending along the side the Pago Pago International Airport to the entrance accessing the Maliu Mai Beach Resort.
We emphasize, however, that our current holding does not in anyway seek to disturb our earlier legal determination in the January 29, 2004 order which found that Defendants had acquiesced to the placement of the north roadside rock wall. We still maintain that Defendants had lost their right to have the wall removed, but today seek its removal out of present public safety concerns entirely separate from the past rights and obligations of the parties.
Order
Upon determination that we may sua sponte modify our prior judgment pursuant to Rule 60(b), we conclude that the north roadside rock wall constitutes a traffic safety hazard. We order as follows:
1. Defendants are authorized to remove the north roadside rock wall. Defendant M & N Inc. shall pay the removal cost.
2. Use of the road is restricted to passenger vehicles only. Subject to Defendants’, directions and enforcement, trucks, buses, and other large vehicles shall only use the road extending along the side of the Pago Pago International Airport to the entrance accessing the Maliu Mai Beach Resort in order to enter and depart the resort.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486921/ | ORDER DENYING APPLICATION FOR PRELIMINARY INJUNCTION
Introduction
In 1965, Defendant American Samoan Government (“ASG”) acquired land in Fagaalu owned by Fano Shimasiki and the Fano family (“Plaintiffs”) through condemnation proceedings, upon which it constructed the Lyndon B. Johnson Tropical Medical Center (“LBJ”). In 2003, LBJ began additional construction of a new building and a stream relocation project within the condemned portion of the property. On October 5, 2004, Plaintiffs filed a motion for a temporary restraining order and an application for preliminary injunction to enjoin ASG from LBJ construction projects, arguing that the construction is a trespass and an interference with the use and enjoyment of family lands. On October *2206, 2004, we granted the motion for a temporary restraining order stopping the construction.
Plaintiffs’ complaint seeks preliminary and permanent injunctions, damages arising from trespass to land, and quieting of title. Plaintiffs argue that the condemnation statutes that were in effect at the time of the taking on April 15, 1965, through the condemnation proceedings ending on May 19, 1967, were retroactively invalidated by provisions in the Revised Constitution of American Samoa, effective on July 1, 1967, which requires approval by a 2/3 vote during successive legislatures of statutes affecting alienation of communal land. Plaintiffs maintain that in the absence of such successive legislative approval, the condemnation proceedings were unconstitutional, and thus the ongoing hospital construction is in fact on their still-owned family land.
Having considered the parties’ arguments and reviewed the constitutional and statutory authority, we deny Plaintiffs preliminary injunction application.
Discussion
Plaintiffs seek an injunction pursuant to A.S.C.A. § 43.1303. Under section 43.1303(a)(1), a preliminary injunction may be issued by a competent court 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 adduced.” Pursuant to A.S.C.A. § 43.1304(j), in order to establish “sufficient grounds” for the issuance of a preliminary injunction a party must show that:
(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. Subject Matter Jurisdiction
Defendants claim that this Court cannot have jurisdiction over this matter until Plaintiffs have exhausted their administrative remedies with Defendant American Samoa Government (“ASG”) under the Government Tort Liability Act (“GTLA”). A.S.C.A. §§ 43.1201-.1213. Pursuant to section 43.1205(a):
*221[a]n action may not be instituted upon a claim against the government for money damages for damage to or loss of property, or personal injury or death, 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 unless the claimant has first presented the claim to the Attorney General and his claim has been finally denied by the Attorney General in writing, notice of the denial sent to claimant by certified or registered mail. The failure of the Attorney General to make a final disposition of a claim within 3 months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for the purposes of this section.
The requirement of filing an administrative claim, pursuant to A.S.C.A. § 43.1205, before filing suit is jurisdictional. See Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23, 24 (Trial Div. 1992). Noting that a preliminary injunction is a form of relief, and not itself a claim or a cause of action, we are now faced with the question of whether the three month exhaustion requirement applies equally to applications for preliminary injunctive relief, in addition to the underlying claim against ASG.
The exhaustion requirement is similar to the nearly identical language found in the Federal Tort Claims Act (“FTCA”) at 28 U.S.C. § 2675. See Gobrait v. American Hotels, Inc., 1 A.S.R.2d 1 (Trial Div. 1978). Federal case law indicates that injunctive relief is not available under the FTCA. In Smith v. Bakke, 996 F.2d 1227 (9th Cir. 1993), for example, plaintiff sought damages and injunctive relief against the U.S. Postal Service. The court noted that the FTCA provides only a limited waiver of federal sovereign immunity, and as such, to the extent that plaintiff sought injunctive relief against the postal service, the United States had not waived its immunity under the statute. Id.; see also Westbay Steel, Inc. v. United States, 970 F.2d 648, 651 (9th Cir. 1992) (the FTCA does not submit the United States to injunctive relief); Women Prisoners of the District Columbia Dept. of Corrections, et al., v. District of Columbia, 899 F. Supp. 659, 666 (D.D.C. 1995) (the FTCA does not provide a waiver of sovereign immunity for equitable relief).
Likewise, in Ferstle v. A.S.G., 4. A.S.R.2d 160, 166 (1987), we concluded that the Territory of American Samoa possesses immunity from suit without its consent or waiver. In that same case, we also observed that the GTLA “particularizes the limited circumstances of sovereign consent.” Id. at 167. Pursuant to A.S.C.A § 43.1203:
*222(a) The government is liable, except as otherwise provided in this chapter, in the same manner and to the same extent as a private individual under like circumstances, but is not liable for interest prior to judgment or for punitive damages ...
(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.
In the current case, Plaintiffs’ allegations lie in trespass, and “deprivation of use and enjoyment of land,” which appears to amount to a claim of nuisance. Neither of these alleged tort violations, whether giving rise to damages or injunctive relief, fall within the enumerated exceptions to the GTLA sufficient to bypass the administrative exhaustion requirement. Thus, to the extent that this is the basis on which Plaintiffs presently apply for a preliminary injunction, Defendants are correct in observing that this court does not have jurisdiction to entertain such a motion.
Plaintiffs’ fourth cause of action, however, is to quiet title to the land plaintiffs believe that ASG unconstitutionally condemned and now seeks to further improve. As such an action is not one in tort, it does not fall within the administrative exhaustion requirement. Moreover, in the context of a party seeking to quiet title by challenging the constitutionality of the ASG condemnation proceedings, ASG implicitly waives sovereign immunity, allowing court jurisdiction without ASG’s consent. See, e.g., Hair. v. U.S., 350 F.3d 1253, 1257 (Fed. Cir. 2003) (stating in the federal context that “sovereign immunity does not protect the government from a Fifth Amendment takings claim.”); see also Nika Corp. v. City of Kansas City, Mo., 582 F. Supp. 343 (W.D. Mo. 1983) (“the Fifth and Fourteenth Amendments do effect a waiver or nullification of sovereign immunity” in the context of a taking). Therefore, because this court presently does have jurisdiction over the limited issue of title to the disputed parcel, we must now examine whether the injunctive relief related to further improvements upon the land is warranted.
*223II. Likelihood of Success on the Merits
Plaintiffs correctly point out that under Article 1, Section 3 of the Revised Constitution of American Samoa, effective July 1, 1967:
[s]uch 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.
Plaintiffs argue that such language is retroactively applicable to the condemnation statute in effect in 1965, and therefore renders the condemnation proceedings at issue invalid, while Defendants maintain that the constitutional provision is prospective in nature, and thus not applicable to the statute in effect at the time of condemnation.
We need not address the issue of retroactive applicability of the Revised Constitution in light of the controlling constitutional authority at the time of the 1965-67 condemnation. At the time of the condemnation proceedings, the 1960 American Samoa Constitution was in effect. Article 1, Section 3 of the 1960 Constitution states, identically to the same provision in the Revised Constitution, that no alienation of Samoan lands should be allowed unless “approved by two successive legislatures by a two-thirds vote of the entire membership of each house and by the Governor.” Therefore, because such constitutional language was already in effect in 1960, and merely reaffirmed in 1967, there is no period at issue in which legislative approval of statutes effecting alienation of land was not constitutionally required in American Samoa.
Having determined that the constitutional language Plaintiffs emphasize was indeed applicable at the time of condemnation, albeit through the 1960 Constitution, we must next examine the constitutionality of the 1965-67 condemnation proceedings. Title VII, Chapters 7.01 and 7.02 adopted by the 7th Legislature in 1962 and again by the 10th Legislature in 1967 represent the applicable code pertaining to condemnation authority of the ASG and proper condemnation proceedings during the period at issue here. See Revised Code of American Samoa (1961 ed., as amended through 11th Leg.) To be valid under Article 1, Section 3 of the 1960 Constitution, however, the statutes must have been “approved by two successive legislatures by a two-thirds vote of the entire membership of each house and by the Governor.” Article II, Section 5 of the 1960 Constitution states that legislative elections “shall be held bienually [sic] in each even numbered year ... in November.” In the *224current case, the Title VII laws were adopted by the 7th Legislature in 1962. Even if we were to hypothetically assume that the code was first adopted as late as December 1962, and reaffirmed at the earliest in January 1967 by the 10th Legislature, it would be mathematically impossible under a system of biannual elections for the statutes to comply with the “successive legislature” requirements of Article I, Section 3.
Plaintiffs make reference to Public Law 16-88 and 17-31, in which the 1980 and 1982 Legislatures reenacted, through successive legislatures, enumerated land alienation statutes in order to render them in conformity with the legislative approval requirements of Article I, Section 3. We agree with Plaintiffs that these laws have no bearing on the statute at issue. Public Laws 16-88 and 17-31 state that the formerly invalid alienation statutes “are new enactments to the extent invalid and shall be given effect as new enactments.” Because, as Defendants, too, observe, this Court applies a strict rule of construction against retrospective application, the language of the Public Laws suggests that they do not have retroactive effect to the condemnation laws in place during the 1965-67 proceedings. See American Samoa Gov’t v. Meredith, 28 A.S.R.2d 10, 12 (1995); American Samoa Gov’t v. Meredith, 28 A.S.R.2d 92, 96 (1995).
Nevertheless, despite the fact that Plaintiffs are correct in their argument that the statutes governing condemnation from 1965-67 fail to comply with Article I, Section 3 of the 1960 Constitution, they have not established that ASG lacked authority to engage in the condemnation proceedings during that time.
First, we note that in addition to the Article I, Section 3 requirements, Article I, Section 2 of the 1960 Constitution simultaneously authorized the government’s constitutional right to eminent domain, stating in part that “private property [shall not] be taken for public use without just compensation.” Similarly, this Court has earlier stated that:
[t]he right of eminent domain is of ancient origin. It is an inherent political rights [sic] of sovereignty based on the doctrine of necessity. It is essential to the existence of government — the use of property of the individual for the benefit of all. The constitutions provide only for just compensation for property taken (U.S. CONST amend. V.; Rev. CONST. Am. Samoa art. II) By statute the right is express (A.S.C.A. § 37.2001). For that right to be effective the government must have full and unqualified ownership of the land taken. It must have unrestricted title, whatever name that title may go by. The presumption that all land is communal and the commitment to the Samoan way of life does not *225overcome the urgent need for unrestricted title to condemned land. When the original matais ceded this territory to the United States it was with a specific recognition of the right of eminent domain. (Section 2, Treaty of Cession.) That right is not impaired by the communal land system.
Meredith v. American Samoa Gov't, 2 A.S.R.2d 66, 68-69 (1985).1 Therefore, while we agree with Plaintiffs that the condemnation statute failed for lack of compliance with constitutional procedure, we do not in turn reason that ASG’s right of eminent domain was also unconstitutional. We distinguish between ASG’s constitutional right to condemn communal land for a public purpose, and the statutory means by which it does do so. The right to condemn is not dependent upon its statutory implementation, and nor should it be stifled by its procedural failures, for the necessity to transform family communal land for public benefit is an inherent governmental right grounded in Article I, Section 2 of both the original and revised constitutions. That Plaintiffs raise no arguments challenging this constitutional right of condemnation or the compensation received, and raise a statutory challenge for the first time nearly 40 years after the original condemnation proceedings, only bolsters the perspective that eminent domain was an accepted power of ASG.
Accordingly, despite Plaintiffs’ founded procedural misgivings regarding the constitutionality of the 1965-67 condemnation proceedings, this Court nonetheless concludes that in light of the ASG’s constitutional right to condemn the property for a public purpose, and its doing so by providing just compensation, Plaintiffs have not demonstrated that there is a substantial likelihood that they will prevail at trial on the merits. Although Plaintiffs correctly observe that a party is afforded a constitutional right to due process before the ASG can properly condemn land, they received such process in this case after having had the benefit of hearings before the High Court to determine ownership of the land, and before an arbitration board to determine the value of it.
*226III. Irreparable Injury
Because Plaintiffs have failed to establish a likelihood of success on the merits, they have failed to demonstrate “sufficient grounds” in their application for preliminary injunction, and we therefore need not consider the issue of irreparable injury. We note however, the interrelatedness of the two issues in this case. By failing to adequately demonstrate that the land does not belong to ASG, Plaintiffs have not established that the land impacted by the LBJ construction project is in fact family communal land. It follows, then, that Plaintiffs have not shown that the current construction project, wholly within the properly condemned property, causes irreparable injury to them.
Order
After determining that we have limited jurisdiction over this motion, we find that Plaintiffs have failed to establish sufficient grounds for the issuance of an injunction against the LBJ construction projects on the condemned portion of land. Plaintiffs’ application for a preliminary injunction is therefore denied. The temporary restraining order is vacated.
It is so ordered.
Section 2 of the Deed of Cession, although describing the eminent domain authority of the federal government over the territory states that “[t]he Government of the United States of America shall respect and protect the individual rights of all people dwelling in Tutuila to their lands and other property in said District; but if the said Government shall require any land or any other thing for Government uses, the Government may take the same upon payment of a fair consideration for the land, or other thing, to those who may be deprived of their property on account of the desire of the Government.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486923/ | OPINION AND ORDER UPON REMAND
Following the death of Le'i Fereti in 1985,1 the matai title Le'i attached to Ofu village, Manu'a, has since been vacant. The title vacancy has been a matter pending since April 8, 1994, when Tuanu'utele Sai (“Tuanu'u”) first filed his application with the Territorial Registrar to be registered as the next holder of the Le'i title. His action triggered a number of watoi-succession counter-claims sparking a protracted and prolonged dispute.
The matter was finally tried before the Land and Titles Division (the “trial court”) on March 6-11, 2003. In its Opinion and Order filed June 6, 2003, the trial court awarded the Le'i title to counter-claimant Tikeri N. Thompson (“Tikeri”). Following an unsuccessful motion for a new trial, counter-claimant Sonny L. Thompson (“Sonny”) appealed.
On appeal, the Appellate Division (the “appellate court”) ruled error below in two respects and remanded accordingly. With regard to the statutory criterion of hereditaiy right, A.S.C.A. § 1.0409(c), the appellate court found error in the trial court’s failure to
make findings with respect to the hereditary rule that should be most appropriately applied in this case, particularly including but not limited to Sonny’s customary adoption status with the last Le'i titleholder and, as a consequence, did not reach any legal conclusions in this regard. This lack of findings and conclusions was clear error.
In re Matai Title Le'i, 8 A.S.R.3d 54, 60 (App. Div. 2004).
*234Secondly, the appellate court found error in “the trial court’s failure to make findings regarding the composition of the family clans.” Id.
Although upholding the trial court’s findings on the third2 and fourth3 statutory criteria, the appellate court nonetheless suggested, without elaboration, that the trial court might want to also revisit these latter findings after its reconsidering the hereditary and family clan issues.
Discussion
The time for rehearing applications, before the Appellate Division under A.C.R. 40, having expired, and after noting from the Clerk’s file thatthere are no pending motions for rehearing, we assert jurisdiction herein and address our mandate.
I. Hereditary Issue
A. Traditional Rule vs. Sotoa Rule
On this issue, the appellate court explained:
[Appellant] Sonny’s customary adoption and sibling like relationship with [appellee] Tikeri may appropriately call for application of the Sotoa rule rather than the nearest titleholder.
Id. (Emphasis added).
Consistent with our mandate, we articulate our reasons for applying the traditional rule, rather than the Sotoa rule, in assessing hereditary entitlement. Secondly, we take up the issue as to the appropriateness of the Sotoa rule in light of “Sonny’s customary adoption.”
Recently, in In re Matai Title Mauga, 5 A.S.R.3d 270, (Land & Titles Div. 2001), we summarized this court’s approach to the issue of hereditary right, as set out in A.S.C.A. § 1.0409(c)(1), in the following manner:
In the vast majority of matai title disputes before the Court, a candidate’s hereditary right has been calculated by tracing his lineage to his nearest ancestor holding the title. See In re Matai Title Leiato, 3 A.S.R.2d 133, 134 (App. Div. 1986). This formula was almost universally applied until 1984, when the Court in In re Matai Title Sotoa, 2 A.S.R.2d 15 (Land & *235Titles Div. 1984) suggested an alternative method of calculation as being more desirable. Under the rule in Sotoa, a candidate’s blood relationship is to be determined by reference to his relationship to the original titleholder, and not by descent to the nearest past titleholder. The Court’s reasoning was that “every new titleholder does not start a new line of heredity.” Id. at 15.
The Sotoa rule, however, is not of general application, particularly where family genealogical understanding is contentious. In re Matai Title Lolo, 25 A.S.R.2d 175, 176 (Land & Titles Div. 1994); In re Matai Title Tuaolo, 28 A.S.R.2d 97 (Land & Titles Div. 1997), and where family history suggests a contrary tradition and understanding of entitlement. In re Matai Title Tauaifaiva, 5 A.S.R.2d 13, 14 (Land & Titles Div. 1987). See also In re Matai Title La'apui, 4 A.S.R.2d 7, 10 (App. Div. 1987), Murphy J. separately concurring (“Whether a family traces hereditary rights directly to the original title holder or to the last living holder of the title is ... a matter of custom and tradition.”)
In re Matai Title Mauga, 5 A.S.R.3d at 272-273. The Sotoa rule, however, did not go without “disparaging comment from the Appellate Division on its efficacy.” See In re Matai Title Tauaifaiva, 5 A.S.R.2d at 14, citing to In re Matai Title Leiato, 3 A.S.R.2d 133 (App. Div. 1986) and In re Matai Title La'apui, 4 A.S.R.2d 7 (App. Div. 1987). The rule first emerged from out of nowhere, without the benefit of argument, but by way of a stipulation presented by the parties to the Sotoa court. Id. at 15.
More recently, the Appellate Division, in Misaalefua v. Hudson, 1 A.S.R.3d 23, (App. Div. 1997), noted:
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). 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).
1 A.S.R.3d at 25.4
*236From the cases then, the law to be distilled in these matters is that the Sotoa rule not being of general application, a claimant proposing application of the rule must at least prove that the family before the court traditionally traces blood relationships back to the original titleholder, and that family history on the identity of the original titleholder is not contentious.
With this in mind, we look to the first issue on remand.
1. Appellant’s Changed Position on Appeal
Contrary to the position he convincingly put before the appellate court, Sonny canvassed quite the opposite position before the trial court, actually conceding the inappropriateness of the Sotoa rule.5 Before the appellate court, Sonny argued:
While the lower court here made a written finding of fact of blood showing that among the candidates [Sonny] did (sic) have the closest blood connection to the nearest title (sic) it made no examination of the evidence or any written legal conclusion that the “nearest titleholder” standard would be applied in this case rather the “Sotoa Rule.” The failure to make this written legal conclusion was error under A.S.C.A. § 1.0409.
Appellant’s Brief at 10. However, before the trial court Sonny in his closing arguments, read by his counsel Charles V. Ala'ilima from a preprepared statement, unambiguously submitted the following:
*237In deciding the customary and statutory requirement of “hereditary right” to matai titles, the courts have generally employed two formulas to calculate such right; one is the normal formula of the relation directly to the first matai, the nearest matai in your line, in your hereditary line, and the other one is back to the first matai of the title; direct descent from the original titleholder and direct descent from the nearest titleholder .... Under the normal rule, which is used in tracing your rights back to the nearest titleholder in your line, from the evidence presented, it appears that Tikeri has 1/2 blood, Sonny has 1/64 blood, Vaena has 1/16, Tuanu'u taking the line that he wishes to use has about 1/16, and Porotesano has 1/64. The alternative "Sotoa rule” used for tracing back to the original titleholder, I don 7 think is appropriate in this case because it seems from this case the candidates don 7 want that rule to apply. The lack of clarity in the case also to who the clans would make it more difficult for the Court to make a decision on. In any case, all members or all candidates have the blood requirement to hold the title.
Counsel Alailima’s Closing Arguments, Rp. Tr. at pages 3-4 (emphasis added).6 Therefore, the appropriateness of the Sotoa rule was actually a non-issue at the trial level.
In any event, and compelled by our mandate, we find not only the evidence, but by reason of Sonny’s own admission at trial, that family history on the identity of the original titleholder is a contentious issue, and thus renders the Sotoa rule inappropriate to assess hereditary right. At the same time, no showing having been made by Sonny as to the appropriateness of the Sotoa rule, we maintain and so find that the Sotoa rule is inappropriate in this matter.7
*2382. Sonny’s Customary Matai Adoption & Hereditaiy Entitlement
We note at the outset that the appellate court’s reference to Sonny’s “customary adoption” by the last titleholder Fereti Le'i, see In re Matai Title Le'i, 8 A.S.R.3d at 53, is purely Sonny’s categorization of the evidence, and not ours. Sonny argued before the appellate court:
The lower court refused to consider the testimony of a customary adoption of appellant by appellee’s father, Le'i Fereti, the former titleholder. The customary adoption of a relative to a title by a titleholder is a well recognized tradition in Samoa for it binds communal families together over generations by bringing farther relatives closer to the title.
Appellant’s Brief at 11. (Emphasis added.)
We did not make any findings on Sonny’s claim of “customary adoption” by Le'i Fereti, nor give it any significance to advance his hereditary claim for a number of reasons:
(1) Sonny’s claim to customary adoption being “a well recognized tradition in Samoa,” is simply that; a mere claim, void of any evidentiary basis whatsoever, on the record before us, to sustain such a finding. We find that the rather casual bandying of the conclusory labels such as “customary matai adoption,” does not a custom establish. Nor are the Samoan Associate Judges prepared to credit Sonny’s unproven proposition with the same notoriety such as would warrant our taking judicial notice of an asserted custom.8
(2) We find it inappropriate to essentially trump the legislature on the issue of “customary matai adoption,” simply to advance a candidate’s hereditary claim. At all relevant times,9 the legislature had preempted the notion of “matai adoption” with the enactment of Public Law 7-32, 1962, codifying previous law as Sections 5.0307 et seq., Code Amer. Samoa, *2391961 Ed., and subsequently reprinted as 17 A.S.C. §§ 701-03. These enactments provided in relevant part:
§701....
(a) When a matai shall adopt any person into his family other than by judicial proceedings, he shall thereupon give notice of said adoption to the clerk of the High Court.
(b) The notice shall contain the following information:
(i) The name, age and village of the adopted person;
(ii)The name of the natural parents of the adopted person ...;
(iii) The name, age and village of the adopted matai.
§ 702....
(d) If the clerk is satisfied that all requirements have been met, he shall list the adoption in the list of adopted persons.
(e) Adoption shall not be valid until such listing is complete (emphasis added).
Sonny unequivocally admitted on the stand in open court that he had no papers to prove his matai adoption claim. Rp. Tr. at 21. The short of it is, therefore, that while we can take judicial notice of subject matter legislation nullifying matai adoption claims not in accordance with statutory procedure, we simply cannot take judicial notice of a Samoan custom according to the bald claims of a matai candidate — here Sonny. T.C.R.Ev. Rule 201(b). Therefore, in light of the mandatory language of applicable law at all relevant times, 11 A.S.C § 702(e), we find that the evidence does not sustain Sonny’s claim to matai adoption.
(3) The notion of matai adoption is, in our view, a slippery slope to venture into, especially from the realm of hereditary entitlement. For one thing, the Fono in its wisdom backed away completely from continuing down that road by repealing the Matai Adoption statute in 1976. See Public Law 14-22,1976. Additionally, with the enactment of A.S.C.A. § 1.0409(c), and legislative adoption of the “best hereditary” criterion, restricting matai entitlement to claimants with “blood” connections to the title, the Fono necessarily proscribed against future entitlement claims based upon a non-blood basis, such as matai adoption and title appointments because of special tautua (traditional service).10
*240Finally, it is suggested that we consider yet another variant of the Sotoa rule, to permit parties from a common clan to assert heredity claims by tracing lineage to the nearest common ancestral titleholder, for purposes of boosting a cousin’s hereditary percentage. While this suggestion might arguably promote equity and fairness, advocated by the Sotoa case, within a clan, we find the suggestion problematic in the scenario where matai claimants are from a family with multiple clans such as the case before us. Thus to permit Sonny to claim, for equity’s sake, parity with Tikeri by measuring hereditary entitlement to a common ancestor with Tikeri, may well be tantamount to doing inequity to the claimant who descends from a different clan to Sonny and Tilceri’s, but who otherwise prevails over Sonny under the traditional rule.
B. Application of the Sotoa Rule
Even in following this intra-clan variant of the Sotoa rule — measuring hereditary rights according to Sonny’s and Tikeri’s nearest known common ancestor — we find that Tikeri nevertheless prevails in the hereditary rights criterion. In In re Matai Title Fonoti, the Land and Titles Division recognized that where a daughter and sister of the previous matai titleholder disputed title, the Sotoa rule required recognition of the sister’s claim under the principle that she was a generation older. 21 A.S.R.2d 113, 114 (Land & Titles Div. 1992). So, too, in the present case. Here, the evidence shows that Tikeri is the son of the prior Le'i titleholder and belongs to the same generation as Sonny’s mother. Because, as the appellate court observes, “only blood relationships count” in determining matai title rights, Sonny’s alleged adoptive-like relationship with Tikeri’s father is not a fact sufficient to alter his biological position on the family tree. 8 A.S.R.3d 60 (quoting In re Matai Title Mulitauaopele, 17 A.S.R.2d 75, 82 (Land & Titles Div. 1990).11 Accordingly, because Tikeri precedes Sonny by a generation, Tikeri has a closer hereditary link to the nearest common Le'i titleholder, and, pursuant to the suggested intra-clan variant of the Sotoa rule, retains the superior hereditary claim.
*241II. Clan Support
The appellate court urges us to make more detailed findings regarding the composition and preference of the family clans. We are therefore now presented with the difficult task of having to evaluate the credibility of divergent views surrounding the composition of the clans, as customary within the Le'i family, and the wishes of a majority or plurality of them. A.S.C.A. § 1.0409(c)(2); In re Matai Title Faumuina, 26 A.S.R.2d. 1, 4 (App. Div. 1994). As both of the parties cannot be correct, we must determine which party has, through mistake or fabrication, misstated the facts.
In the current case, Sonny contends that when the family meets for discussions, they generally divide themselves into four groups descending from Le'i Isumama, Pule, Le'i To'afala, and Le'i Maea. Tikeri, on the other hand, states that there are three clans of the Le'i family named Pule, Isumama, and Fa'atautu, the children of Tupuaeleele.12 The evidence suggests that of the two, Tikeri’s understanding of clan composition, as customary within the Le'i family, is more believable.13
First, Tikeri’s position is consistent with that previously recognized by this court. In Siluano v. Vaena, 1 A.S.R. 392, 394 (Trial Div. 1927), we awarded Siluano the Le'i title in part because of our determination that Siluano had the greatest understanding of all the traditions and background of the family. It was Siluano’s belief that Maea was an adopted son of To'afala. Id. at 394-95. Similarly, in Tupua v. Fereti, 3 A.S.R. 99, 101 (Trial Div. 1953) where Siluano once again testified that To'afala had no descendants, this court concluded that Siluano was certainly “in a position to know the tradition of the Le'i family.” Here, whereas Sonny questions those who challenge Maea’s status as a blood relative, Tikeri, as Siluano, maintains that Le'i Maea has no blood connection to the Le'i title and that this is not disputed in the family. In light of the fact that Tikeri’s testimony corresponds more closely to the testimony of knowledgeable Le'i titleholders, as accepted by this court in *242the past, we find Tikeri’s assessment of clan composition to be the more persuasive version.
Second, and perhaps more convincing, assuming arguendo Sonny’s account of clan history as true, his version is inherently inconsistent, regardless of Maea’s status. Sonny maintains that To'afala and Maea make up separate family clans. Yet, the family dispute surrounding Maea has been whether he is the true or adopted son of To'afala. If Maea were the true son, as Sonny contrarily contends, he would belong to the To'afala clan, and not a separate branch because he would be the blood-related son of To'afala. On the other hand, if Maea were the adopted son, as Siluano and Tikeri suggest, then as such, his lack of blood relation would preclude his being the basis of a family clan altogether. Consequently, that Tikeri has precluded Maea from the family clans indicates that of the two, his account is the only one that is logically consistent.
Finally, Sonny’s discussion of clan background indicates inaccurate knowledge of family history. In his testimony, Sonny argued that “[t]he very first Le'i titleholder according to history passed on down to us from our ancestors was Le'i Ta'atu.” Rp. Tr. at 19. Yet, in the Siluano case, Siluano did not maintain that Ta'atu was the first of the Le'i family matai. Instead, Siluano simply “named the last ten motáis” of the Le'i family of which Ta'atu was the first of those mentioned. 1 A.S.R. at 393. Sonny’s testimony, then, displays that his knowledge of family history is more likely derived from a cursory reading of past litigation rather than a deep-rooted understanding of Le'i family background.
Moreover, Sonny’s position on the identity of the original titleholder changes when it comes to his explanation on the Le'i title’s origins. In both his testimony, Rp. Tr. 36-7, and his sworn response to Questionnaire No. 24, Sonny is in agreement with Tikeri’s acknowledgement that the Le'i title originated with Tuimanu'a’s appointment of Tupuaeleele as the first titleholder.
As an additional note, the court finds it interesting that while both candidates claim to have the same father, and thus the same source of family history, each has a widely divergent viewpoint of clan composition and custom. Because we are convinced that Le'i Fereti would have no reason to tell Tikeri one account of family history, and Sonny another, we can only conclude that this inconsistency has been created by one of the candidates themselves.
Turning now to the issue of clan preference, in our earlier opinion, we noted that the family met to address the matai vacancy in 1996 concluding that either Tuanu'u or Tikeri should hold the title. Rather than choosing among the two, however, we determined that the family *243deferred to Tuanu'u and Tikeri to decide between each other as to who should assume the title. Tuanu'u then offered the position to Tikeri. Although Sonny again argues that another “family” meeting took place in July 2002, with fourteen attendees, including Vaena, Leama Misiuaita, and Sonny, selecting Sonny as matai, we still find and conclude that this meeting did not in fact constitute true clan consensus, but rather was an effort by those contestants of the title to support Sonny by purposefully bypassing input from other family members and contestants such as Tuanu'u and Tikeri.
III. Forcefulness, Character, and Personality
Alternatively, the appellate court urges us to once again consider whether:
[rjegardless of which candidate may still prevail under the Sotoa rule on the hereditary right criterion, closer characterization of blood ties may result in a different assessment of the candidates’ relative qualifications under the four statutory criteria and a different award of the title.
Sonny Le'I Thompson v. Tikeri Thompson , 8 A.S.R.3d 59, 60 (App. Div. 2004).
In our trial opinion, we determined that although all candidates appeared more or less equally versed in Samoan customs, Tikeri and Sonny surpassed the others with regard to forcefulness. Yet, as we observed, Tikeri’s humility, patience, and lack of posturing throughout the succession process impressed us the most in the categories of character and personality. Unlike the other candidates, we noted that Tikeri favored family resolution over personal ambition and the often-pursued strategy of premature registration of title with the Territorial Registrar. Moreover, we were concerned with Sonny’s character and personality in light of his offer of communal rental income to Tikeri in exchange for Tikeri abandoning his title claim. Having once again revisited the evidence, we see no reason to modify our earlier assessment of the candidates’ relative strengths of forcefulness, character and personality, and knowledge of Samoan customs. Lastly, and in light of our discussion and assessment under the preceding heading “Clan Support” {supra), the fact that Sonny has apparently attempted to present his own self-serving version of clan support to bolster his candidacy once again reinforces our view that Tikeri retains superior qualities of character.
*244IV. Value to Family, Village, and Country
Likewise, Tikeri continues to impress us the most in the category of value to family, village and country. In our trial opinion, we noted that all candidates were approximately equal in terms of their value to village, but that Sonny and Tikeri’s public service, unique expertise, and vocational skills placed those two above the others in public worth. Tikeri, however, far surpassed all candidates with regard to his value to family. With his heavy involvement in his late father’s administration, his familiarity with the family, its natural resources, and administration and preservation of family rental income, Tikeri has demonstrated a strong sense of family value that suits him for family leadership. Having revisited this evidence, we are once again convinced of the correctness of our earlier assessment of the strengths and weaknesses of the candidates.
Order
On the foregoing, we conclude that Tikeri prevails over Sonny on hereditary considerations, as well as on the third and fourth criteria as specified in A.S.C.A. § 1.0409(c). We further conclude that Tikeri is qualified to hold the matai title Le'i, and, therefore, the Territorial Registrar shall in accordance with A.S.C.A. § 1.0409(b) register the matai title Le'i in Tikeri N. Thompson.
It is so ordered.
Rp. Tr. at page 125
“[F]orcefulness, character, and personality ... and knowledge of Samoan Customs ....” A.S.C.A. § 1.0409(c)(3)
“[V]alue ... to the family, village, and country.” A.S.C.A. § 1.0409(c)(4).
Although the appellate court, citing to In re Matai Title Laie, 18 A.S.R.2d *23635, 37 (Land & Titles Div. 1991), had noted that the Sotoa rule “may also be appropriate in cases where some clans of the family have not held the title for several generations,” the Court was equally moved to note that “[i]n 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.” See 1 A.S.R.3d at 25 n.l.
Cf. Olotoa v. Bartley, 3 A.S.R.2d 21, 22 (Trial Div. 1986), holding that an argument that counsel could have made at trial but did not is waived and may not be raised at any future stage of the litigation. See also Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54, 57 (App. Div. 1987); Leota v. Sese, 12 A.S.R.2d 18, 20 (App. Div. 1989).
We note that the Appellate Division apparently did not have a transcript of the parties’ final arguments before it, as we could not find it in the record filed with the appellate court. Sonny, as the only appellant, had selectively ordered a partial transcript of the proceedings below; his final arguments were conspicuously absent from the record upon which his appeal was based.
Moreover, the matter of the traditional rule versus the Sotoa rule was not raised before the trial court at Sonny’s motion for a new trial. Cf. Kim v. Star-Kist, 8 A.S.R.2d 146, 150 (App. Div. 1988) (“A motion for new trial is a statutory prerequisite to an appeal. A.S.C.A. § 43.0802. All motions must ‘state with particularity the grounds therefor.’ T.C.R.C.P. Rule 7. This is particularly important in the case of a motion for new trial, one of whose purposes is to avoid unnecessary appeals by alerting the trial court to possible errors or omissions in its opinion.”); Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990) (“If no timely motion for reconsideration or new *238trial conforming to the ‘particularity’ requirement of T.C.R.C.P. 7(b)(1) is filed within the statutory ten-day deadline, then the Appellate Division lacks jurisdiction to entertain an appeal.”); Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40, 41-2 (App. Div. 1993).
See T.C.R.Ev. Rule 201(b).
The evidence before us showed that Sonny was fifty one (51) years of age at the time of trial. Rp. Tr. at 18. The late Le'i Fereti was awarded the Le'i matai title on December 7, 1953. See Tupua v. Fereti, 3 A.S.R. 99 (Trial Div. 1953). Le'i Fereti died in 1985. Rp. Tr. at 185. Elemental arithmetic then reveals that Sonny was between the ages of 1 and 33 years when Fereti was the Le'i titleholder.
Such past instances are not unknown in the annals of this court; spawning its own set of intra-family problems. We refer, for example, to the histories of the Mauga and Tuaolo families of Pago Pago discussed in In re Matai Title Mauga, 5 A.S.R.3d 270 (Land & Titles Div. 2001) and In re Matai Title Tuaolo, 1 A.S.R.3d 33, 37-38 (App. Div. 1997) respectively, suggesting that adopted or non-blood holders had given birth to the formation of new family clans. Indeed, within the Le'i family itself, there remains a contentious issue as to whether or not Le'i Maea and his descendants are blood heirs to the Le'i title and as to whether or not they *240constitute a separate branch or clan development within the family. See Siluano v. Vaena, 1 A.S.R. 392, 393 (Trial Div. 1927). See also Tikeri’s Testimony, Rr Tr. at 134.
Mulitauaopele states that “the natural son of a previous title holder has a 1/2 relationship to the title ... whereas the adopted son or grandson has no fractional relationship at all.” 17 A.S.R.2d at 82. The Mulitauaopele court goes on to say that a court “is not free to recognize such reasons [other than blood relations] for awarding a disputed matai title to a person who is not descended from a previous title holder.” Id. at 83.
Tupuaeleele was, according to Sonny, Rp. Tr. at 36-7, and Tikeri’s, Rp. Tr. 127-8, version of family history, the progenitor of the Le'i family and the object of the original tofiga (appointment) by Tuimanu'a at Malaetele.
We recognize that a number of the original contestants at trial are no longer parties to this dispute, having opted not to appeal the issue of clan preference apparently satisfied that their respective interests were not adversely impacted by our decision. However, without the opportunity to be further heard on the matter of clan custom and composition on remand, we feel constrained, cognizant of the statutory standard of “natural justice and convenience,” A.S.C.A. § 3.0242, to limit our findings on this issue as determinative only between the two litigants before us. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486924/ | ORDER DENYING MOTION FOR RECONSIDERATION AND DISMISSING ACTION
Introduction
In 1965, through condemnation proceedings, Defendant American Samoan Government (“ASG”) acquired communal land in Fagaalu owned by the Fano family (“Plaintiffs”). Upon such land, ASG constructed the Lyndon B. Johnson Tropical Medical Center (“LBJ”). In 2003, LBJ began additional construction of a new building and a stream relocation project within the condemned portion of the property. On October 5, 2004, Plaintiffs filed a motion for a temporary restraining order and an application for a preliminary injunction to enjoin ASG from the LBJ construction projects, arguing that the construction was a wrongful occupation and interfered with the use and enjoyment of family lands. On October 6, 2004, we granted the motion for a temporary restraining order stopping the construction.
On October 13, 2004, we heard Plaintiffs’ application for a preliminary injunction. On October 26, 2004, we denied Plaintiffs’ application with regard to their quiet title action, concluding that because Plaintiffs’ were afforded due process and adequately compensated at the time of condemnation, ASG properly exercised its eminent domain powers and that the affected land at issue was therefore owned by ASG. In determining such, we requested the parties to provide submissions as to why this action should not be dismissed altogether.
Having considered the memoranda in support of Plaintiffs’ motions for reconsideration of our denial of the application for a preliminary injunction and for leave to file an amended complaint, as well as the parties’ arguments during a November 22, 2004 hearing on this issue, we deny both motions and now dismiss this action.
Discussion
We will not repeat in detail our legal reasoning set forth in our earlier order denying Plaintiffs’ application for a preliminary injunction. Because we regard that order as a correct interpretation of the law of eminent domain, as applicable to this action, we only reiterate the holding to clarify the misgivings expressed by Plaintiffs in their motions for reconsideration and for leave to file an amended complaint.
We note that in our earlier order we found that the condemnation statute in place during the 1965-67 eminent domain proceedings improperly failed to comply with the procedural requirements of Article 1, Section 3 *247of the 1960 Constitution because the statute was not enacted by two consecutive legislatures by a 2/3 vote and approved by the Governor. We concluded, however, that although the statute failed the consecutive enactment requirement under Section 3, the substantive language set forth in the statute, and followed by ASG during the condemnation of the Fano family land, independently satisfied the constitutional due process requirements under Article 1, Section 2 regarding ASG’s eminent domain powers. That is, in evaluating the due process needed to comply with Section 2, we were concerned simply whether ASG provided Plaintiffs with an adequate forum to raise any dispute to condemnation of the land, and to ensure fair compensation, not whether such a forum was provided for by statute or otherwise. The condemnation procedures undertaken by ASG met in substance the Section 2 due process requirement.
Plaintiffs’ indicate that it is their belief that under the 1960 Constitution, the section 3 consecutive enactment procedures must be followed when ASG asserts Section 2 eminent domain powers. Plaintiffs suggest this, among other reasons, that because Section 3 serves to facilitate the important territorial policy of preserving American Samoa’s unique cultural land tenure system of family communally-owned land, our decision allowing ASG takings without benefit of a statute that complies with Section 3 erodes this policy. We disagree. Eminent domain powers are limited to condemnation of privately held lands for a “public purpose.” Where land is sought to be acquired by private individuals for a private purpose, or by ASG for a non-public purpose, the Section 3 requirements of approval by two consecutive legislatures and the Governor for transfer of such land remain in effect. However, as we stated in our earlier holding and in Meredith v. American Samoa Gov't, “the presumption that all land is communal and the commitment to the Samoan way of life does not overcome the urgent need for unrestricted title to condemned land.” See 2 A.S.R.2d 66, 68-69 (1985). Thus, rather than eroding the policy behind Section 3, our holding simply recognized that in the context of necessary ASG takings of private lands for a public purpose and with just compensation given under Section 2 of the 1960 Constitution, we look to the nature of the due process afforded, and not the statutory name that such due process takes, to determine if ASG properly asserted its eminent domain powers. Consequently, we must deny Plaintiffs’ motion for reconsideration.
Plaintiffs, having been given adequate opportunity to fashion additional arguments as to why their claim should not be dismissed, both at hearing and in their proposed amended complaint, have not introduced additional factual arguments that present a claim within the legal framework of our earlier order. Plaintiffs continue to argue that all the alleged injuries, tortious or otherwise, have occurred on land wholly within the area condemned during the 1965-67 proceedings. Because we *248have concluded in our earlier order that this land no longer belongs to Plaintiffs, it follows that Plaintiffs have not shown injury as a result of any actions taken on it. Consequently, even were we to grant Plaintiffs’ motion for leave to file an amended complaint to include allegations pertaining to their administrative tort claims, which apparently ripened upon the Attorney General’s failure to respond in writing to such claims within three months pursuant to A.S.C.A. § 43.1205(a), our decision would remain unchanged. Because Plaintiffs do not own the land in which they allege the torts have occurred, they have not stated a cause of action in either their original complaint or proposed amended complaint for any current or additional claims or injuries related to that land. Therefore, we must deny Plaintiffs’ motion for leave to file an amended complaint and dismiss the action.
Order
Adhering to our earlier legal framework set forth in our order of October 26, 2004, denying Plaintiffs’ application for preliminary injunction, we deny Plaintiffs’ motions for reconsideration and for leave to file an amended complaint. In turn, by failing to allege a cause of action relating to land owned by ASG, with or without the administrative tort claim allegation, we dismiss Plaintiffs’ claims in their entirety.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486925/ | *250OPINION AND ORDER
Background
These consolidated matters arises out of a dispute concerning a portion of Leaeno family communal land called “Letolo” in the village of Matu'u. In August 1992, following a family funeral, the assembled members of the Leaeno family agreed to lease Letolo to Sei F. Eteuati and Fiapapalagi Eteuati (“the Eteuati lease”), who were living with and rendering services to the Leaeno family.1 The family members who signed the Eteuati lease on behalf of the Leaeno family included Taumaia Soi, daughter of the late Leaeno Savali Elia; Lulu Eli, daughter of a former Leaeno titleholder; Saevale Leaeno; Elisa Fiame and Fagafaga D. Langkilde, a lesser matai of the Leaeno family. At the time the lease was executed, the senior matai title of the Leaeno family was vacant.
After the lease instrument was executed, it was submitted to the Land Commission for review and notice to the public was duly posted. No objections to the lease were raised during the statutory period. The lease was also sent to the Governor’s office for gubernatorial approval in accordance with A.S.C.A. § 37.0221. However, then Governor Peter Coleman and his Lieutenant Governor were both off-island and therefore John Ah Sue, Director of the Department of Human Resources, had been appointed Acting Governor, pursuant to A.S.C.A. § 4.0131. Acting Governor Sue formally approved the lease and thereafter the Territorial Registrar recorded it in Lease Agreement, Volume 1992, at page 06.
Shortly after the lease agreement was finalized, the Eteuati’s entered into a mortgage agreement with the American Samoa Government Employees Federal Credit Union (“the credit union”), and used the mortgage proceeds to build a house on the land. As a part of the mortgage, the Eteuati’s posted the leasehold as security on the loan.
Several years later, the Eteuati’s defaulted on the mortgage and the mortgagee exercised its power of sale reserved in the mortgage. On January 5, 1996, an auction was held and Defendant National Collection Services, Inc. (“NCS”) purchased the leasehold. Just over a month later, on February 16, 1996, Plaintiff Leaeno Frank Reed (“Leaeno”) was awarded the Leaeno matai title.
Several years later, in July 2002, NCS entered into an agreement to lease Letolo for three years to Petaga Tima and Tautau Tima (“the Tima *251lease”). Nearly a year later, a dispute involving Eteuati family graves on Letolo brought the Tima lease under focus and in May 2003, Leaeno brought suit. After several of Leaeno’s early grievances were settled, the main thrust of his concerns became apparent; he believes that the 1992 Eteuati lease is invalid and therefore contends that any interest that NCS and the Tima’s have in the land is also invalid.
Discussion
Defendant Leaeno presents a number of arguments why he believes that NCS and the Tima’s do not possess a valid interest in the land called “Letolo.” First, he contends that the Eteuati lease, on which NCS and Tima’s interest is founded, is void because it was not authorized by a senior matai. Second, he maintains that the Eteuati lease is further invalid because it was not approved by the Governor, but instead by an acting Governor. He additionally asserts that the mortgage, under which NCS and then the Tima’s gained their interest in Letolo, is non binding because it was not signed by the mortgagor or mortgagees.
I. Senior Matai Authorization
Defendant Leaeno contends that the Eteuati lease is void because no senior matai authorized the alienation of family land. Because of this, he asserts, the Eteuati’s never had a valid lease on the land and therefore, NCS and the Tima’s do not likewise possess a valid interest in the land. Leaeno maintains that a senior matai is the only person who may authorize the leasing of family lands. However, he does not offer a suggestion as to what a family should do if the senior matai title is vacant, as was the case in the present controversy.
We hold that when the sa'o position is vacant, other family members may lease communal land to a family member, for financing purposes, if there is a clear consensus of the entire family to commit family land for such purposes. We note that while the land alienation enactments, A.S.C.A. §§ 37.0101 et seq., contemplate a Samoan family acting through its senior matai in its land dealings, the statutes are also conspicuously silent in the oft recurring situation where a family is without its senior matai for any extended period of time. We reason that communal land is, after all, owned by the family, and when the senior matai title is vacant for any extended length of time, the family itself must be able to lease family lands. Unlike Leaeno, we see nothing in the land alienation enactments to prohibit this. *252Indeed, in other contexts, the legislature has specifically given effect to matai vacancies. A.S.C.A. § 43.1309 states that the sa'o (senior matai) is the only person who may seek injunctive relief in a dispute concerning family land. However, the statute further provides that if the sa'o title is vacant, two blood matai male members may apply for injunctive relief. The statute then provides that if the family does not have two blood matai male members, any two family members over the age of eighteen may apply for the needed injunctive relief. Therefore, the legislature clearly anticipated that senior matai titles may become vacant and that, as a consequence, certain decisions concerning family land must be executed by other family members.
Additionally, A.S.C.A. § 37.1502 provides: “[t]he senior matai in charge of communal lands belonging to his family, or the male members of the family owning and residing on communal lands .. . shall have the power and authority ... to execute a separation agreement.” (emphasis added). This is another example of the legislature allowing family members other than the senior matai to effect a real estate agreement.
Moreover, this court in Fagasoaia v. Fanene, 17 A.S.R.2d 91, 94 (Land & Titles Div. 1990), recognized that in the absence of a senior matai, other family members may lease communal land to a third party if a clear consensus of the entire family authorizes the lease. And in Siu v. Pasene, 3 A.S.R. 336, 339 (Trial Div. 1958), the court held that a family member did not require the consent of the derelict senior matai, who not only lived outside the family but was not recognized by the village council, to build his home on family land, “having first had the consent of the various branches of the family.”
In the present case, the entire Leaeno family, assembled for a fa'alavelave (family affair), came to a clear family consensus to lease the disputed land following a family funeral in August 1992. Family elders, including a lesser matai, discussed the principal terms of the lease, and a final decision was made in the midst of a large family gathering. Therefore, we find that a clear family consensus was reached and conclude that the lease transaction, with the endorsement of the Land Commission and approval of the Governor, is valid and binding.
We believe this holding is supported by sound policy. We take judicial notice of the many pending matai matters involving ranking matai titles within the territory and note that many Samoan families today find their senior matai positions vacant for a substantial period of time. It goes without saying that those families must have the ability to finalize land transactions during that period of absence. Life simply cannot come to a *253halt the moment a senior matai position goes vacant, only to begin again once when that vacancy is filled.
Additionally, if a lease agreement, properly advertised and posted, is not objected to by third parties; is favorably endorsed by the Land Commission as neither contributing to monopolistic land holdings nor being an improvident transaction;2 is approved by the governor; and then accepted and recorded by the Territorial Registrar - bona fide parties must be given the confidence to move forward with their investment. Allowing a family member - who did not object to the lease during the posting period - to come forward years later and dispute a properly approved land transaction, will substantially lessen the confidence that legitimate parties to a lease have in the binding nature of their contract. A loss in such confidence would surely deter willing investment in needed capital or structural improvements to the land B for fear that those investments will later be lost if the lease is declared invalid.
In sum, we find that an examination of relevant case law, analogous statutory law and appropriate considerations of policy, lead us to conclude that the Eteuati lease was validly entered into by family members pursuant to a clear consensus of the entire family.
II. Approval by the Acting Governor
A.S.C.A § 37.0204 states in pertinent part: “It is prohibited for any matai ... to alienate such family lands . . . without the written approval of the Governor of American Samoa.” Leaeno suggests, without citing to any authority, that we construe this language literally and void the Eteuati lease because an acting Governor, and not the actual Governor, approved the lease back in 1992.
The argument lacks merit. First, A.S.C.A. § 4.0106(d) provides that “in the absence of both the Governor and Lieutenant Governor, the powers of the Governor shall be exercised, as acting Governor, by a person as the law may prescribe.” Elsewhere, the American Samoa Code Annotated provides that “[ajuthority but not the responsibility vested in the Governor .. . may be delegated by [the Governor] to other officers and employees of the executive branch.” A.S.C.A. § 4.0131. We fail to see why the Governor’s authority to approve communal land *254leases may not thus be delegable, especially when gubernatorial approval of communal land leases is reliant upon prior Land Commission input. We find Leaeno’s argument not persuasive and reject the same. The Eteuati lease is not invalid simply because the acting Governor, rather than the Governor, approved it.
III. Invalid Mortgage
Leaeno’s final argument is that NCS and the Tima’s do not have a valid interest in Letolo because the mortgage under which NCS purchased its leasehold in the land is voidable. Leaeno asserts that the mortgage lacks the proper signatures and therefore the credit union did not have a legal interest in the land when the leasehold was sold at auction to NCS in January 1996.
However, the Court already adjudicated this argument in Am. Samoa Govt. Employees Federal Credit Union/National Collection Services, Inc. v. Eteuati, HCCA No. 113-96. Under the doctrine of collateral estoppel, a party and his privy is barred from relitigating matters already determined in an earlier proceeding. Tuitasi v. Lualemaga, 4 A.S.R. 798, 803 (Trial Div. 1973). Therefore, like his first two arguments, Leaeno’s final argument lacks merit. He is simply trying to rehash an issue that this court already considered in an earlier proceeding.
IV. Conclusion
The Leaeno family reached a clear family consensus in deciding to lease the land to the Eteuati’s, the lease was approved by the Acting Governor and the lease was properly recorded. We conclude that the 1992 Eteuati lease is valid and binding and that Leaeno does not currently possess an interest in that disputed leasehold.
Order
We so declare and render judgment accordingly.
It is so ordered.
Sei Eteuati’s father was the pastor of the Matu'u Congregational Christian Church and an earlier Leaeno sa'o had assigned the land to his use for many years.
See A.S.C.A. § 37.0203(a). The Land Commission is charged by statute in the first instance with “the duty... to prevent the monopolistic ownership of land and improvident alienation of communal lands by those charged with the management and control thereof.” A.S.C.A. 8 37.0203(c). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486926/ | ORDER DENYING MOTIONS FOR NEW TRIAL/RECONSIDERATION AND TO STAY
On August 20, 2004, we issued our Opinion and Order in this matter concluding that the land area offered by claimant Aulava Sauni for registration to the Aulava family is communal property of the Aulava family and shall be registered as such by the Territorial Registrar. On *257August 30, 2004, within ten days of this court’s opinion, objectors, Salanoa Sefo, Christina Taaga, Moefu Sifoa, and members of the Salanoa family (“Objectors”), filed both a motion for stay of proceedings to enforce a judgment, and a motion for new trial and/or reconsideration. One month later, on September 30, 2004, Objectors submitted a “supplemental” memorandum to their motion for new trial and/or reconsideration.
Motion for New Trial/Reconsideration
With the present motion, we are faced with both issues of procedure and substance. In determining whether we may consider Objectors’ supplemental memorandum, we evaluate first whether a statute which limits court jurisdiction in motions for a new trial to issues raised within 10 days of judgment allows a court to consider supplemental filings submitted after the 10 day period which relate to the original motion. We conclude that it does not. Second, we turn to the substantive issues raised in Objectors’ original motion for reconsideration and/or retrial.
Having had the benefit of hearing and upon reviewing the parties’ submissions, we deny Objectors’ motion.
Pursuant to A.S.C.A. § 43.0802(a) “[b]efore filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence.” We have observed that the 10-day time limit to file a motion for a new trial is mandatory and jurisdictional — errors of law not raised within 10 days of judgment or sentence are waived, at least insofar as they concern the right to appeal. See Rocha v. Rocha, 20 A.S.R.2d 63, 66 (App. Div. 1992); American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 119 (Trial Div. 1990). Similarly, the requirement under T.C.R.C.P. 7, that a motion must state “with particularity” the grounds on which it is based, is especially important in a motion for a new trial, one of whose purposes is to avoid unnecessary appeals by alerting the trial court to possible errors or omissions in its opinion. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 150 (App. Div. 1988). Where a motion for reconsideration has been filed after the statutory deadline, the Appellate Division has no jurisdiction to entertain an appeal regardless of any arguments, equitable or otherwise. See Lualemana v. Asifoa, 18 A.S.R.2d 49, 54 (Land & Titles Div. 1991).
In the present case, Objectors did file their initial motion for new trial within the 10-day period. They sought, however, to supplement the motion well outside of the 10-day period, with a memorandum submitted a month later. Objectors agree that while raising new legal arguments would be precluded for failure to plead them within the 10 days, they maintain that mere supplementation of arguments that were made in the *258original motion filed within the 10 days is appropriate because such supplementation in effect “relates back” to the original timely filed motion. We disagree.
Objectors present an awkward situation. On the one hand, if Objectors are stating that they seek to supplement their original arguments, Objectors are in effect inadvertently conceding that they have failed to comply with T.C.R.C.P. 7 particularity requirements in that the need for supplementation inherently indicates failure to properly set forth their original arguments in the first instance. If this is their proposition, then this court would not only find the submission of the supplemental memorandum inappropriate, but would also have to find that the original timely memorandum filed within the 10-day period would have to be disregarded for failure to comply with T.C.R.C.P. 7.
On the other hand, if Objectors are proposing that their original timely motion does comply with the particularity requirements of T.C.R.C.P. 7, and thus may be considered by this court, then they in turn must be conceding that their “supplemental” motion is not merely a clarification of their earlier motion, but a submission of new legal arguments. Under this latter position, we may still consider the original timely motion, but must disregard the supplemental filing for raising new legal issues after expiration of the statutory period.
We note that we take both the 10-day time limit and the particularity requirements seriously, not only to avoid unnecessary appeals and to alert the trial court to possible errors, as we stated in Kim, but also to prevent parties from delaying a court’s ability to consider motions for new trial by supplementing earlier timely motions, thereby triggering new periods for the non-moving party to respond. By preventing such supplementation, and requiring strict compliance with particularity requirements of T.C.R.C.P. 7, we ensure the finality in the scope and breadth of issues raised in the timely motion for new trial and therefore promote judicial efficiency in responding to such motions.
In turning to the merits of Objectors’ original motion for reconsideration and/or new trial, we observe that a motion for new trial or rehearing in a non jury case should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons. American Samoa Government v. South Pacific Island Air systems, 28 A.S.R.2d 170, 171 (Trial Div. 1995). The burden on the moving party is to show substantial reasons that such relief should be granted. Id. Moreover, a motion for a new trial must clearly apprise the trial court of the specific errors being alleged. In re Matai Title Mulitauaopele, 17 A.S.R.2d 75, 79 (Land & Titles Div. 1990). A general statement that the court erred as a matter of fact, law, or custom does not fulfill this requirement. Id.
*259In considering Objectors’ seven objections, we conclude they have not met this burden. With regard to Objectors first, second, and third, objections, we determine that Objectors have not set forth substantial reasons that should lead us to modify our holding. Objectors’ first objection contends that we did not weigh the testimony of Salanoa family members when we concluded that with respect to the dispute between the Aulava and Salanoa families, the evidence diverged on the limited issue of whether Fitiaumua Toelei'u worked the land on behalf of the sa'o Aulava or the sa'o Salanoa. Objectors’ second objection similarly maintains that we did not adequately consider Salanoa family testimony, and that of Kilistina Taaga, when we found Aulava’s having being born and raised in the village of Lauli'i made him more persuasive in resolving the issue of ownership of the disputed land, and of the identify of Fitiaumua Toelei'u. Objectors’ third objection additionally argues that we did not adequately weigh the contrary testimony given by Salanoa family members in our finding that Fitiaumua Toelei'u’s former residence and burial on Aulava land, and the burial of two of his children on that land, support the position that Fitiaumua Toelei'u and Taliva'a were on the disputed land under the pule of Aulava.
All these objections share a common theme. Objectors imply that the only way we could have made our findings as we did was to have disregarded certain witness testimony. Objectors are mistaken in this regard. That we did not find the weight of certain testimony as convincing as Objectors believe it to be does not suggest manifest error on the court’s part. Rather, without setting forth substantial factual reasons or legal authority for their proposition, it appears that the gist of Objectors’ argument, for these three objections, is simply that they do not agree with our findings, not that those findings were made in error. We did indeed consider the testimony of the Salanoa family, but so too did we balance it against conflicting testimony made by others — and we were more persuaded by the latter. Without more substantive particularized objections, then, as to why, in our role as fact-finder, we should have been persuaded differently, Objectors provide no adequate basis for us to reconsider these issues.
We regard Objectors’ fourth, fifth, and sixth objections as insufficient for lack of specificity. Objectors’ fourth argument challenges our finding that Eseta’s matai title was offered in contemplation of litigation, stating merely that it was “based on insufficient evidence, against the clear weight of evidence and contrary to justice.” Likewise, Objectors’ questioning our view that To'oto'o’s claim of personal involvement in presenting Eseta to the village council was an admission of criminal activity and that To'oto'o and Moefu Sifoa are not matai of the Salanoa family is grounded only on the allegation that it “is based on insufficient evidence, against the clear weight of *260evidence and contrary to justice.” Because such allegations fail to state with particularity the errors being alleged, Objectors have not set forth substantial reasons upon which we can analyze whether our findings were manifestly inaccurate. Moreover, regardless of the insufficiency of the objection, we direct Objectors to the fact that the Matai Registry on record for the village of Lauli'i, see Exhibit “2,” does not list a To'oto'o Aleki, Moefu Sifoa and Eseta as legally registered matai of Lauli'i. Because a matai title bestowed contrary to statute cannot be registered or otherwise recognized, not only was our holding supported by the weight of the evidence, but so, too, were we bound as a matter of law to so hold. See A.S.C.A. §§ 1.0401-1.0414; Toilolo v. Poti, 23 A.S.R.2d 130, 132 (Land & Titles Div. 1003).
Objectors’ seventh and final contention argues that the land cannot be registered as the communal property of the Aulava family, because registration is improper where there is a discrepancy between the name of the land on the survey and that given as notice to the public. In response to this allegation, we first note that it is a well settled principle that arguments that could have been made at trial may not be made for the first time either on a motion for new trial or on appeal. See, e.g., In Re Matai Title Tuaolo, 28 A.S.R.2d. 137, 139 (Lands and Titles Div. 1995). In the present case, we are not aware that Objectors have presented this argument in their written or oral arguments at trial, and therefore conclude they have not validly preserved the issue upon their motion for reconsideration and new trial. Moreover, even were we to consider the issue, the difference between “Muli” and “Moli” may be either regarded as a typographical error, or an error so slight that no additional notice is required or necessary prior to registration.
We conclude that we do not have jurisdiction to consider Objectors’ supplemental memorandum to their motion for new trial and/or reconsideration. Having considered Objectors’ original timely motion, however, we see no reason to pursue a new trial or modify our prior holdings, and deny their motion accordingly.
Motion to Stay
Objectors asks that a stay be granted. While the Court may in its discretion grant a stay of execution pending appeal, T.C.R.C.P. 62, that discretion should not be lightly exercised, and a stay should not casually granted but only upon cause shown. Asifoa v. Faoa, 17 A.S.R.2d 10, 12 (App. Div. 1990). The moving party must establish: 1) failure to grant the stay would cause irreparable harm; 2) a likelihood of success on appeal; and 3) the public interest would be harmed by not granting the stay. In re Matai Title Mulitauaopele, 17 A.S.R. 2d 71, 73 (Land & Titles Div. 1990). Objectors have failed to adequately address these *261legal requirements and their motion for stay should not be casually granted. Therefore, the motion to stay will be denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486927/ | OPINION AND ORDER
These matters, consolidated for trial, involve the same subject matter, Fagaima family land. The earlier numbered matter, LT No. 20-03, resulted as a referral from the Territorial Registrar’s office following defendant Liz Taylor’s objection to plaintiff Fagaima M. Solaita’s (“Fagaima”) attempt to record a Separation Agreement he had concluded, as sa'o (senior matai) of the Fagaima family of Tafuna, with defendant I'umai Matagi (“Matagi”) and dated November 19, 2002. The subject of the Separation Agreement was a proposed renovation to a structure on Fagaima communal land known as Alatutu'i to be undertaken by Matagi as “building owner.” Defendant Liz Taylor, an *263undisputed blood member of the Fagaima family, contends that the land area affected was already assigned to her side of the family by previous matai, and that Matagi is not even a member of the Fagaima family.
While this matter lay pending, Liz Taylor, now joined by Avalogo Taylor (“Avalogo”) and a number of other adult members from her side of the Fagaima family (jointly the “Taylors”), filed suit against Matagi and other individuals in his household, resulting in LT No. 38-03. Alleging physical attacks and continued harassment by Matagi and his growing family, the Taylors seek eviction and injunctive relief.
Discussion
We find on the evidence that the land area in question is Fagaima communal land initially cleared, cultivated and occupied by Avalogo’s parents Aifa'i Fagaima and Tapu Taylor shortly after the Second World War. They settled in this locality following the forced inland relocation of Tafuna villagers from the coastal area now incorporating the Tafuna International Airport. At the time, the disputed area and its surrounds was largely unoccupied bushland and here Avalogo’s parents built a home, planted typical subsistence crops (ta'amu (giant taro), bananas, breadfruit etc.), and raised their children.
In time, Avalogo himself married around 1958 or 1959, built his first house on the land, an afakasi (semi-European) style home, and raised five children, four girls and one boy. He next built a two-storied wooden building on the land. In 1972, however, Avalogo moved off-island for medical reasons. He left his brother-in-law from Western Samoa, Laki Matavao (“Laki”), and his brother-in-law’s wife, Eleele, to look after his family’s holdings — the home and the plantations — and to tend to the land.
While off-island, Avalogo would periodically visit the territory and check on the property in Tafuna. During this time, relations with his in-laws were at first cordial. However, when Laki subsequently managed to move to the mainland, leaving behind Eleele and her children on the land, the family connection to Avalogo was essentially severed, and Eleele became increasingly assertive and possessive with respect to the land and its appurtenances. In 1987, Avalogo moved back to the territory only to be barred from his family’s land through a continuing course of violence and threats of violence by Eleele and her growing family from (Western) Samoa. (A recent attempt by Avalogo in 2000 to tend to the grave of one his grandsons was met by an encounter with one of Eleele’s sons, the defendant Aitui, who threatened to dig up Avalogo’s grandson’s grave and cut up his remains.).
*264Even efforts by the late sa'o Fagaima Taylor to reinstate Avalogo on the land, which included an eviction notice to Eleele as well as a written assignment of some 6.62 acres of the land to Avalogo, did not deter Eleele and her family. So too were the Taylors’ complaints to the police unavailing. Eleele made quite clear to Avalogo and the Taylors that the land was hers. In the ensuing course of events, Fagaima Taylor and Eleele both passed on, leaving Avalogo and his children to still be confronted by a belligerent and bellicose group of people, I'umai Matagi, Aitui Titui, Tomoto Filo, Pelea Filo, Matelika Aitui, Ace, Afatia Taylor, Liufau (collectively “Eleele’s family”), all steadfast in their refusal to move off the land.
The basis of Eleele’s family’s claim to entitlement seems, as far as we can gather from the evidence, to be two-fold: (1) their service to the current matai, who signed a separation for them to build/extend a home of their own on the disputed area; and, (2) the claim that one of their own, Afatia Taylor (“Afatia”), is a biological child of the late sa'o, Fagaima Taylor.
The current sa'o, Fagaima, while conceding that the principal defendants from Eleele’s family are not blood members of the Fagaima family, feels that they have been living within the family for many years. While acknowledging a number of complaints he had received from Avalogo regarding the violence his family had suffered at the hands of Eleele’s family, the matai does not to want to intervene in the dispute between the Taylors and Eleele’s family. Rather, being new to the office of sa'o, he takes the position that it is Avalogo’s problem to remove the defendants since he was responsible for allowing them on the land in the first place. From what Fagaima knows of the defendants’ background, they came into the family land through Avalogo’s wife and that they have rendered tautua (traditional service) in the way of intermittent contributions to fa'alavelave (family affairs) that he had received.
Afatia’s claim to entitlement through the late matai Fagaima Taylor, is based upon a (Western) Samoan birth certificate which purports to record the birth of a child “Richard,” on August 20, 1983, in Faiaai, Samoa, to Fagaima Afatia Taylor of American Samoa and Tuaoloa Vaimanino Filo of Falealupo, Savai'i.
This claim is vigorously opposed by the Taylors, who maintain that Afatia after being brought to American Samoa was raised by Eleele’s household and not by Fagaima Taylor; and that Afatia’s birth certificate is based upon a fraud perpetuated for immigration purposes to allow Afatia to enter American Samoa as a very young child. Avalogo testified that Fagaima Taylor was his brother and that his brother had died childless. Soata Vili Williams (“Williams”), a resident of Vaoala, Samoa, testified to personal knowledge about the issuance of the birth *265certificate in question. He testified that he and Fagaima Taylor are first cousins and that he was personally present with Fagaima Taylor at the time the birth certificate was first sought and issued in the beginning of 1984. According to Williams, Eleele had approached Fagaima Taylor about her wanting to take her niece Manino’s baby, Afatia, to American Samoa, and that Fagaima Taylor had agreed to have his name added to the child’s birth registry as the father to facilitate entry into the Territory. Williams further testified that he had accompanied Fagaima Taylor and others to the Samoa Birth Registrar’s office where the child’s birth record, which originally did not contain an entry for the child’s father, was amended accordingly. Williams testified that he actually signed as witness on the documentation presented that day. He additionally added that the birth records were again subsequently amended in 2002, to reflect the natural mother, who was not before the Birth Registrar on the first occasion, as an informant for the amendments.
We note parenthetically at this point that while judgments of the courts of Samoa may under certain circumstances be recognized in American Samoa under the doctrine of comity,1 we are not prepared to accord the same regard to paternity proceedings arising administratively through the actions of a foreign country’s registrar of births.2 Be that as it may, the question of Afatia’s natural circumstances is neither critical nor dispositive on the primary question before us; namely, entitlement to the disputed area.
It is clear on the evidence that the land at issue is a part of the Fagaima family’s communal property Alatutu'i, held by the Taylors according to Samoan custom. The evidence is also abundantly clear that the disputed area was long ago the subject of an assignment interest granted to the Taylors, as blood members of the Fagaima family, by former matai. This court has on numerous occasions recognized “the unquestioned right of a family member to use communal land [as being] a property right under the due process clause of either the U.S. or Samoan constitutions.” Fairholt v. Aulava, 1 A.S.R.2d 73, 74 (Land & *266Titles Div. 1983) (discussing U.S. CONST, amend. V; Rev. Const. Am. Samoa art. I, § 2); see Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87 (Land & Titles Div. 1989) (citing Tuanaitau v. Pagofie, 4 A.S.R. 375, 381 (1963); Gi v. Temu, 11 A.S.R.2d 137, 143 (Land & Titles Div. 1989) (citing Lutu). At the same time, there has been no credible evidence presented to suggest that those property rights of the Taylors to Alatutu'i have in any way been diminished or lost.
On the other hand, Eleele’s family, including Afatia, who are on the land, have no cognizable right to the land independent of the Taylors. Their rights to the land are purely derivative, through the Taylors. As noted above, the current sa'o testified as much,3 and Laki, Eleele’s estranged husband, admitted as much in his notarized statement, from Montgomery County, Tennessee, declaring that the disputed structure was never his, but belonged to the Taylors.
Setting aside Afatia’s claim to entitlement for now, all the other members of Eleele’s family are non-members of the Fagaima family, and as such they are without such “property rights” in Alatutu'i as contemplated by the due process clause of either the U.S. or American Samoa Constitution. Fairholt; see also Lutu, 11 A.S.R.2d at 87 (“[A non-family member] by definition has no such right.”).
In Afatia’s case, and assuming but not accepting for these purposes that he is a blood member of the Fagaima family, family status alone does not give Afatia occupation rights to family property that has long ago been the assigned interest of other family members, namely the Taylors. To the contrary, the Taylors as assignees received certain traditional property rights according to Samoan custom, including the right to remain on the land for life, absent good cause for removal. Pen v. Lavata'i, 30 A.S.R.2d 10, 18 (App. 1996), citing Coffin v. Felise, 4 A.S.R. 14, 18 (Land & Titles Div 1970) (“An express or implied assignment of a communally owned house and appurtenant areas creates in the family member the right to continue beneficial occupancy until death, voluntary removal or authorized removal.”). See also Taesali v. Samuela, 3 A.S.R. 359, 361-62 (Trial. Div. 1958); Gi, 11 A.S.R. at 142. And as we alluded to above, the Taylors as assignees also have a property interest that is protected under the due-process clauses of the United States and American Samoa constitutions, see U.S. CONST, amend. V; REV. CONST. Am. Samoa art. I, § 2, and as such, they are entitled to possess the family’s land which has been assigned to them.
*267In their final argument, Eleele’s family submit that the actions/inactions of the family sa'o, Fagaima Taylor and Fagaima, in not acceding to the Taylors’ efforts to have them removed from the land, together with Fagaima’s execution of the Separation Agreement with Matagi, have somehow ripened into an entitlement to remain on the land. We see no basis in custom or law for this premise.
First, a sa'o cannot revoke an assignment of land for a family member’s use, made in accordance with Samoan custom by a former matai, “except for good cause.” Taesali v. Samuela, 3 A.S.R. 359, 361 (Trial Div. 1958); Gi, 11 A.S.R.2d at 142 (citing Taesali). “Good cause” for removal includes a failure to render tautua (traditional service to the matai and family) and an overriding family purpose. Pen, 30 A.S.R.2d at 18.
Here, there was absolutely no suggestion on the evidence that the Taylors had failed to render tautua. With regard to an overriding family purpose, the Appellate Division has said that removal of an assignee for an overall family purpose may only be ordered by the matai if certain specific conditions are met, namely:
a. A family meeting at which all parties are permitted to be heard.
b. A decision by the matai, reasonable under the circumstances, that the removal is for an important family purpose.
c. Provision of specific alternate land for erection of a dwelling unit if desired, or other arrangement reasonable under the circumstances.
Id., citing Coffin v. Felise, 4 A.S.R. 14, 18 (Land & Titles Div. 1970). Again, the evidence lacks any basis for the contention that an overriding family purpose existed to sustain the Taylors removal from Alatutu'i in favor of Eleele’s family. In short, the evidence does not show that the sa'o had “cause” to enter into a separation agreement with third parties in derogation of the Taylors’ assigned interests in Alatutu'i.
Order
Accordingly, we conclude in favor of the Taylors and grant their petition for the eviction of Eleele’s family from the disputed area. We hold that the Separation Agreement entered into between Fagaima and Matagi is a nullity and of no effect against the Taylors and their assigned interest in the land.
It is so ordered.
Comity is the recognition which one nation allows within its territory to legislative, executive, or judicial acts of another nation having due regard to both international duty and convenience, and to the rights of persons protected by its law. In re Petition of Puailoa, 13 A.S.R.2d 22, 24 (Trial Div. 1989), citing to Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185 (1922).
Cf. A.S.C.A. §§ 45.1501 et seq., codifying the local requirements for paternity judicial declarations, and A.S.C.A. §§ 45.1601 et seq., setting out support proceedings before the courts on behalf of children bom of out of wedlock.
At the same time, the courts here have encountered on more than one occasion, amended Samoan birth certificates made with clear underlying purposes of immigration to the Territory.
The sa'o’s seemingly indifferent stance towards the dispute between the Taylors and Eleele’s family appears, based on his view, that since the Taylors were responsible for introducing Eleele onto family land that Eleele’s family was thereby the Taylor’s responsibility. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487031/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re ESTATE OF RAYMOND JOSEPH FRISBIE.
GUY CONTI, Personal Representative of the UNPUBLISHED
ESTATE OF RAYMOND JOSEPH FRISBIE, November 17, 2022
Appellant,
v No. 357831
Washtenaw Probate Court
JOYCE LENHART, LC No. 17-000955-DA
Appellee,
and
REGINA BYRON and KRISTY ANN ALDRICH,
Interested Parties.
Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and PATEL, JJ.
PER CURIAM.
Guy Conti as Personal Representative of the Estate of Raymond Joseph Frisbie, appeals as
of right the probate court’s order denying Conti’s request to surcharge decedent’s daughter, Joyce
Lenhart, for transfers of decedent’s assets. We affirm.
I. BACKGROUND
Raymond and Carol Frisbie had six children—Regina, Kristy, Kevin, Joyce, Patrick, and
Teresa.1 On July 5, 2014, Raymond appointed Joyce as his attorney-in-fact under a Durable Power
of Attorney for Financial Management (DPOA). On July 18, 2014, Raymond and Carol executed
1
We will refer to the decedent’s children by their given names.
-1-
the Raymond J. Frisbie and Carol J. Frisbie Joint Living Trust. Joyce used an online program to
prepare the trust. The trust designated Joyce as the trustee and sole beneficiary. Regina was
designated as the successor trustee and beneficiary in the event of Joyce’s death. If both Joyce
and Regina died before the surviving grantor, the assets were to be divided equally between the
Frisbies’ other four children.
In February 2016, Raymond loaned Joyce money from his personal checking account to
purchase a home in Fort Wayne, Indiana. Raymond allegedly told Joyce that the loan would be
100% forgiven upon his death because she was the sole beneficiary of the trust.
Carol passed away on May 28, 2016. After Carol’s death, Joyce appointed Patrick as the
temporary attorney-in-fact under Raymond’s DPOA. Raymond passed away on June 13, 2016.
After Raymond’s death, $345,112.96 was transferred from the trust account to Patrick.
After the Frisbies passed away, Regina challenged the validity of the trust. Ultimately, a
stipulated order for intestate proceedings was entered on September, 21, 2017. The order directed
that the estate be administered “as though the trust at issue was not valid.” Guy Conti was
appointed at the independent personal representative. Conti was ordered to investigate all
contested transactions, and he was authorized to claw back the value of the transacted funds for
any transactions that were deemed inappropriate. This was the final order entered in the trust case,
and the matter was closed.
Thereafter, Conti filed an action against Patrick alleging claims of larceny, unjust
enrichment, and breach of fiduciary duty for the over $300,000 that he received after Raymond’s
death. The claim was ultimately settled with the probate court’s approval.2 Regina and Kristy
stipulated to the settlement.
Conti also proposed accepting a $10,000 payment from Joyce to settle the estate’s claim
arising out of her purchase of the Indiana home. But the settlement was not approved. Conti hired
special counsel to investigate and prosecute claims against Kevin, Teresa, and Joyce. The estate
eventually reached a settlement with Teresa and Kevin.3
Conti filed a petition for surcharge against Joyce, requesting a judgment in the amount of
$490,112.96 for allegedly improper disposals of the estate’s assets. Conti asserted Joyce purported
to act as trustee when she (1) used decedent’s assets to purchase the Indiana home, (2) transferred
the Indiana home to herself, and (3) transferred $345,112.96 to Patrick. Conti maintained the
transactions were improper and void because the September 2017 order indicated “the Trust is to
be treated as void.”
2
In addition to $68,000 that Patrick returned to the estate during the trust litigation, he agreed to
pay the estate $40,000 for mutual waivers of all claims, including a waiver of his interest as an
heir.
3
Kevin and Teresa were granted ownership of Raymond’s home in full satisfaction of their
interests in the estate. In exchange, Teresa and Kevin agreed to pay the estate $70,000.
-2-
Joyce denied that any of the transactions were improper or void. She asserted that there
was no determination by the trier of fact that the trust was invalid at the time it was created, or that
all prior transactions by Joyce as trustee were void. She maintained that her actions as trustee were
approved by Raymond and Carol. Joyce further asserted that she transferred funds to Patrick, who
was the temporary attorney-in-fact under Raymond’s DPOA, at the insistence of her siblings.
Following a two-day evidentiary hearing, the probate court denied the petition to surcharge
Joyce. The probate court noted that there was no finding in the prior trust action that the trust was
invalid, stating “there was a stipulation to proceed as if it was not valid.” The probate court found
that the challengers had not met their burden to prove Raymond lacked capacity to enter into a
valid trust, the funds Raymond gave Joyce to purchase the Indiana home were not owned by the
trust, and Joyce was not liable for the sale of the home as a matter of law. The court also found
that Joyce did not breach her fiduciary duty when she transferred funds to Patrick after her parents
died. This appeal followed.
II. STANDARDS OF REVIEW
When a probate court sits without a jury, we review its factual findings for clear error. In
In re Conservatorship of Murray, 336 Mich App 234, 239; 970 NW2d 372 (2021). “A finding is
clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake
has been made, even if there is evidence to support the finding.” Id. at 239-240 (quotation marks
and citations omitted). “We defer to the probate court on matters of credibility, and will give broad
deference to findings made by the probate court because of its unique vantage point regarding
witnesses, their testimony, and other influencing factors not readily available to the reviewing
court.” Id. (quotation marks and citations omitted).
This Court reviews a probate court’s decision whether to surcharge a trustee for an abuse
of discretion. Id. at 240. The “abuse of discretion standard acknowledges that there will be
circumstances in which there will be no single correct outcome; rather, there will be more than one
reasonable and principled outcome.” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d
809 (2006) (quotation marks and citations omitted). A court acts within its discretion when it
“selects one of these principled outcomes.” Id. (quotation marks and citations omitted).
III. INTENT
Conti argues the probate court clearly erred by failing to hold that the trust did not reflect
the Frisbies’ intent. We disagree.
A trust is valid if (1) the settlor has capacity, (2) the settlor intends to create the trust, (3)
there is a definite beneficiary, (4) the trustee has duties to perform, and (5) the same person is not
sole trustee and sole beneficiary. MCL 700.7402(1). A trust is invalid if it was created by fraud,
duress, or undue influence. MCL 700.7406. The plaintiff or proponent in a probate case has the
burden to prove his or her case by a preponderance of the evidence. In re Estate of Wojan, 126
Mich App 50, 51; 337 NW2d 308 (1983).
-3-
Conti does not allege the trust is invalid for lack of capacity,4 definite beneficiary, trustee
duties, or because the trustee was the only beneficiary. Nor does he assert that it was executed
under fraud, duress, or undue influence. Instead, he challenges whether the trust was in accord
with the settlors’ intent, and contends the probate court failed to rule on the issue.
Contrary to Conti’s assertions, the probate court found the testimony established “Joyce
was attempting to follow her parent’s [sic] wishes, which was to make sure that there was enough
money to take care of Teresa. They left the trust funds to Joyce with the direction to Joyce that
she take care of Teresa.”
The probate court’s factual findings were supported by the testimony. Although the trust
reflected that Joyce was the sole beneficiary, Raymond and Carol intended for Teresa to receive
the “lion’s share” of the assets to make sure she was taken care of. The Frisbies wanted: (1) Kevin
and Teresa to receive their home, (2) Joyce to set aside enough money for Teresa to live on for the
rest of her life,5 and (3) the remainder of the assets to be distributed equally between the other five
siblings. Joyce claimed the trust did not specify the primary distribution to Teresa pursuant to her
parents’ instructions because they did not want Teresa to feel bad that she was receiving more than
her siblings. Joyce testified she tried to execute her parents’ wishes when she prepared the trust.
Joyce’s testimony was corroborated by her siblings who testified that all six children
attended an April 2016 family meeting where Raymond and Carol told the children they created a
trust with Joyce as the trustee and the sole beneficiary because she knew what they wanted and
could execute their wishes privately. Although the Frisbies did not intend for Joyce to keep 100%
of their assets, there was no evidence refuting that they intended for Joyce to be the sole
beneficiary, that they intended Teresa to receive a larger portion of the assets that the other
children, and that they intended Joyce to distribute the assets privately according to their wishes.
We are not left with a definite and firm conviction that the probate court made a mistake by finding
that the Frisbies intended Joyce to be the sole beneficiary of the trust so she could make sure there
was enough money to take care of Teresa according to their wishes.6
4
Although he made this argument to the probate court, he has not raised the argument on appeal.
5
Because of a health condition, Teresa was unable to work.
6
To the extent Conti contends the probate court should have modified or reformed the trust to
conform to Raymond’s intent, we find that this argument is unpreserved because it was raised for
the first time in his appeal brief. Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d
809 (2020). This argument is also waived because it was not in his statement of questions
presented. Seifeddine v Jaber, 327 Mich App 514, 521; 934 NW2d 64 (2019); see also MCR
7.212(C)(5) (stating that an appellant’s brief must contain “[a] statement of questions involved,
stating concisely and without repetition the questions involved in the appeal.”). Accordingly, we
decline to address this argument.
-4-
IV. FIDUCIARY DUTIES
Conti also argues the probate court clearly erred by finding that Joyce did not breach her
fiduciary duties. We disagree.
“In general, the duties imposed on the trustee are determined by consideration of the trust,
the relevant probate statutes and the relevant case law.” In re Green Charitable Trust, 172 Mich
App 298, 312, 431 NW2d 492 (1988). A trustee owes a general statutory duty to “administer the
trust in good faith, expeditiously, in accordance with its terms and purposes, for the benefit of the
trust beneficiaries . . . .” MCL 700.7801; see also In re Pollack Trust, 309 Mich App 125, 156,
867 NW2d 884 (2015). A trustee is required to “administer the trust solely in the interests of the
trust beneficiaries.” MCL 700.7802(1). A trustee must “act as would a prudent person in dealing
with the property of another,” MCL 700.7803, and “protect the trust property,” MCL 700.7810.
“To be prudent includes acting with care, diligence, integrity, fidelity and sound business
judgment.” In re Green Charitable Trust, 172 Mich App at 313. “In addition, the courts have
imposed on the fiduciary duties of honesty, loyalty, restraint from self-interest and good faith.” Id.
MCL 700.7901(2)(c) authorizes a probate court to remedy a breach of trust by, among
other remedies, compelling “the trustee to redress a breach of trust by paying money, restoring
property, or other means,” and MCL 700.7901(2)(j) authorizes the probate court to “order any
other appropriate relief.” MCL 700.7902 provides:
A trustee who commits a breach of trust is liable to the trust beneficiaries affected
for whichever of the following is larger:
(a) The amount required to restore the value of the trust property and trust
distributions to what they would have been had the breach not occurred.
(b) The profit the trustee made by reason of the breach.
“[T]he standard of proof for determining breach of duty and the appropriateness of a surcharge is
a preponderance of the evidence.” In re Conservatorship of Murray, 336 Mich App at 246.
Pursuant to common law principles, “trustees may not be liable for mere mistakes or errors
of judgment where they have acted in good faith and within the limits of the law and of the trust.”
In re Green Charitable Trust, 172 Mich App at 314. “Good faith” refers to the actor’s state of
mind and intentions. It reflects the actor’s honesty, faithfulness, and exercise of best judgment.
See People v Downes, 394 Mich 17, 26; 228 NW2d 212 (1975); Shaffner v Riverview, 154 Mich
App 514, 518; 397 NW2d 835 (1986); Merriam-Webster’s Collegiate Dictionary (2003); Black’s
Law Dictionary (9th ed). “Bad faith” has been defined by our Supreme Court “as arbitrary,
reckless, indifferent, or intentional disregard of the interests of the person owed a duty.”
Commercial Union Ins Co v Liberty Mut Ins Co, 426 Mich 127, 136; 393 NW2d 161 (1986).
“[O]ffers of compromise . . . are not sufficient to establish bad faith.” Id. at 136-137. Bad faith
claims “cannot be based upon negligence or bad judgment, so long as the actions were made
honestly and without concealment.” Id. at 137. But bad faith can exist when the actor “is
motivated by selfish purpose or by a desire to protect its own interests at the expense of” those to
whom she owes a fiduciary duty. Id.
-5-
Conti alleges Joyce breached her duty of care, as well as the express terms of the trust,
when she transferred over $300,000 to Patrick during Raymond’s lifetime.7 First, the record
reflects that the money was not transferred into the trust account, or to Patrick, until after
Raymond’s death. Moreover, it is undisputed Regina and Kristy consented to the transfer to
Patrick. In fact, there was testimony that they demanded it. Joyce believed Patrick would execute
their parents’ wishes. She agreed to initiate the transfer to Patrick as a compromise, which is not
sufficient to establish bad faith. Commercial Union, 426 Mich at 136-137. Although Joyce had
misgivings about the transfer and testified it was against her better judgment, it does not establish
bad faith. Id. at 137. Further, there was no evidence that Joyce acted secretly or with selfish
motivations. Id. Joyce complied with the demands of her siblings, who were her parents’ intended
beneficiaries, and acted solely in their interests.8
The probate court was in the best position to assess the witnesses and determine whether
Joyce acted in bad faith. Bearing in mind the probate court’s unique vantage point, we conclude
that the probate court did not clearly err by finding Joyce did not breach her fiduciary duties when
she transferred the money to Patrick, and the probate court did not abuse its discretion by declining
to surcharge Joyce for the amount of funds transferred.
Affirmed.
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
/s/ Sima G. Patel
7
Although Conti had also sought to surcharge Joyce for the purchase of the Indiana home and the
profit from its sale, Conti has not challenged the probate court’s findings regarding the purchase
and sale of the home.
8
When Conti sought approval of the settlement with Patrick, he acknowledged that the trust
beneficiaries approved of Patrick’s acquisition of the money. This admission on behalf of the
estate is additional evidence that Joyce did not act in bad faith.
-6- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486999/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 17, 2022
Plaintiff-Appellee,
v No. 355830;355834
Montcalm Circuit Court
ROBERT WESLEY LEWIS, LC No. 19-26041-FC;20-26213-FC
Defendant-Appellant.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Defendant committed several acts of criminal-sexual conduct against his minor
stepdaughter and her 17-year-old friend. During the last day of the trial, when the jury was set to
go to deliberation, there were at least two parked cars in the courthouse parking lot that displayed
messages including “I believe you” next to the victims’ names. The jury found defendant guilty
of several counts of criminal-sexual conduct in the first, second, third, and fourth-degree.
Defendant then moved for a new trial and evidentiary hearing, arguing that the jury was introduced
to improper, extraneous messages in support of the victims. The trial court denied defendant’s
motion and sentenced him to consecutive sentences. We affirm.
I. BACKGROUND
Defendant’s stepdaughter testified that defendant began to abuse her sexually when she
was nine or 10 years old, and this abuse escalated a few years later to the point that defendant
would abuse her “almost every day,” several times a week. Defendant found out that the
stepdaughter disclosed the abuse to her friend, and he told the stepdaughter that he would not be
upset with her if she was able to have her friend sleep over so that he could have sex with both of
them. Both victims testified about repeated sexual abuse by defendant.
During cross-examination of one of the victims, the trial court sustained the prosecutor’s
objection regarding defendant’s questions about the victim’s alleged shoplifting because it was too
prejudicial. Similarly, the trial court sustained the prosecutor’s objection regarding defendant’s
questions about alleged domestic assault against the victim’s boyfriend because it was not relevant.
-1-
Defendant was convicted of eight counts of first-degree criminal sexual conduct (CSC-I),
MCL 750.520b(1)(b); three counts of second-degree criminal sexual conduct (CSC-II), MCL
750.520c(1)(b); two counts of third-degree criminal sexual conduct (CSC-III), MCL
750.520d(1)(b); and two counts fourth-degree criminal sexual conduct (CSC-IV), MCL
750.520e(1)(a).
Defendant subsequently moved for a new trial because, he argued, the jury was introduced
to improper, extraneous evidence in the form of messages on two parked cars in the courthouse
parking lot. Specifically, the cars portrayed messages of support for the victims, stating
“#sexualabuse,” “abuse awareness,” and that the drivers of the cars believed the victims. At the
time of the hearing, neither party provided affidavits or other evidence to substantiate their
arguments. The only evidence submitted to the trial court were photos of the two cars.
The trial court denied defendant’s motion for a new trial because it found that there was no
reference to defendant in the messages, and the messages would not have induced a jury member
to think that the messages were for the trial specifically. Further, given the trial court’s personal
knowledge of the jury’s schedule, it found that it was “extremely speculative” that members of the
jury even came into contact with the messages. The trial court stated that, based on what had been
proffered, it was unable to make a finding that the messages would have affected the outcome of
the verdict, especially when it weighed, what it considered to be, the “incredibly believable
witness” testimony in the case.
The trial court sentenced defendant to 225 months’ to 50 years’ imprisonment for his first
count of CSC-I, and it imposed this sentence to run consecutively with his second count of CSC-I
for which he was also sentenced to 225 months’ to 50 years’ imprisonment. Additionally,
defendant was sentenced to 18 years’ to 50 years’ imprisonment for his fourth count of CSC-I, and
the trial court imposed this sentence to run consecutively with his sixth count of CSC-I for which
he was also sentenced to 18 years’ to 50 years’ imprisonment. The trial court imposed defendant’s
other sentences to run concurrently with his consecutive sentences.
When imposing the consecutive sentences, the trial court stated that defendant abused his
position of authority over one of the victims to make her a “sex slave,” defendant’s actions caused
two victims to contemplate or otherwise commit self-harm, and defendant threatened the lives of
the victims to keep the abuse secret. Further, the trial court noted that the record clearly established
that defendant committed at least two acts of criminal-sexual conduct against both victims during
the same “transaction” when he sexually assaulted them at the same time. The trial court noted
that these factors were enough to impose consecutive sentences and ensure that defendant was
never given the opportunity to abuse other victims.
Defendant now appeals.
II. ANALYSIS
A. DEFENDANT’S MOTION FOR A NEW TRIAL
First, defendant argues that the trial court abused its discretion for not granting him a new
trial, or at least an evidentiary hearing, based on the messages displayed on the parked cars.
-2-
“We review a trial court’s ruling on a motion for a new trial for an abuse of discretion.”
People v Johnson, 245 Mich App 243, 250; 631 NW2d 1 (2001). Similarly, “[a] trial court’s
decision to hold an evidentiary hearing is generally reviewed for an abuse of discretion.” People
v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017).
A new trial is necessary when a defendant can establish that (1) “the jury was exposed to
extraneous influences,” and (2) “that these extraneous influences created a real and substantial
possibility that they could have affected the jury’s verdict.” People v Budzyn, 456 Mich 77, 88-
89; 566 NW2d 229 (1997). “Generally, in proving this second point, the defendant will
demonstrate that the extraneous influence is substantially related to a material aspect of the case
and that there is a direct connection between the extrinsic material and the adverse verdict.” Id. at
89.
Regarding the first Budzyn factor, there is no evidence in the record to establish whether
the jury was introduced to extraneous evidence. Even though defendant argued that there were
witnesses who saw the cars before the jury arrived, and the prosecutor argued that the jury was
required to be in the courthouse before the cars even arrived in the parking lot, there was no
evidence admitted or proffered by which the trial court could make a determination.
Regarding the second Budzyn factor, even assuming for the sake of argument that the jury
was exposed to the messages, there is nothing to support that the messages created a real and
substantial effect on the jury’s verdict. The messages merely stated that the owner of the vehicle
believed the victims, and the messages did not contain information that was case-specific over
which the jury was to deliberate. And, even assuming that a juror would make the connection to
the case, the messages were not sensationalist or likely to excite the passions or overwhelm a
juror’s rational judgment. The messages did not, in short, create a real and substantial possibility
of affecting the jury’s verdict.
For the first time on appeal, defendant attached new affidavits to his brief on appeal to
further explain when witnesses saw the messages on the cars. Importantly, these affidavits were
not submitted to the trial court during the hearing, and most were signed after defendant had filed
this appeal. Parties “may not now expand the record on appeal,” People v Nix, 301 Mich App 195,
203; 836 NW2d 224 (2013), and they specifically “cannot enlarge the record on appeal by the use
of affidavits,” People v Williams, 241 Mich App 519, 524 n1; 616 NW2d 710 (2000). Even
though this Court does not consider new evidence on appeal unless justice requires it, MCR
7.216(A)(4), the submitted affidavits are not dispositive of the Budzyn factors, and are not
particularly helpful to the resolution of this issue, because the affidavits still do not definitively
show that the jury was confronted with the messages on the cars. They only state that they jury
may have been able to see them if they arrived in the parking lot at a certain time.
As stated, the trial court was left to make determinations based on its own knowledge of
the workings, structure, and details of the courthouse and schedule of the jury because no evidence,
besides the photos of the messages on the cars, was submitted at the hearing. We emphasize that
we are reviewing the trial court’s decision for an abuse of discretion. While a trial court might
reasonably have held an evidentiary hearing based on this record, a trial court could also have
declined to hold a hearing based on this same record, and either would have been a principled
outcome.
-3-
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues that his trial counsel was ineffective for not addressing the cars’
messages to the trial court during the last day of the trial.
Defendant’s right to counsel is guaranteed by the United States and Michigan
Constitutions. US Const, Am VI; Const 1963, art 1, § 20. This right includes the right to the
effective assistance of counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007).
“Whether a defendant has been denied the effective assistance of counsel is a mixed question of
fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d 255 (2016).
To establish a claim of ineffective assistance of counsel, defendant must show that: (1) defense
counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense.
People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007). Defense counsel’s performance
is deficient if it fell below an objective standard of professional reasonableness. People v Jordan,
275 Mich App 659, 667; 739 NW2d 706 (2007). Defendant bears a heavy burden to show that
counsel made errors so serious that counsel was not performing as guaranteed by the Sixth
Amendment, and defendant must overcome a strong presumption that counsel’s performance
constituted sound trial strategy. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001),
citing Strickland v Washington, 466 US 668, 104 S Ct 2052, 80 L Ed 2d 674 (1984); People v
Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). The performance will be deemed to
have prejudiced the defendant if it is reasonably probable that, but for counsel’s error, the result of
the proceeding would have been different. Jordan, 275 Mich App at 667. Defense counsel “cannot
be faulted for failing to raise an objection or motion that would have been futile.” People v Fike,
228 Mich App 178, 182; 577 NW2d 903 (1998).
The trial court found that the messages did not influence the jury, and there is no evidence
to substantiate that defendant was prejudiced by the messages. Further, defendant fails to articulate
how the outcome would have been different if his trial counsel had raised the issue to the trial court
earlier given that the trial court ultimately found that the jury’s decision was not impacted.
Moreover, the jury was presented with the testimonies of both victims, at length, with
corroborating witnesses providing supporting testimonies. When “there is relatively little evidence
to support a guilty verdict to begin with (e.g., the uncorroborated testimony of a single witness),
the magnitude of errors necessary for a finding of prejudice will be less than [when] there is greater
evidence of guilt.” People v Trakhtenberg, 493 Mich 38, 56; 826 NW2d 136 (2012) (cleaned up).
Given the significant evidence of guilt, as well as the trial court ultimately finding that the jury’s
verdict was not impacted, we are not left with a definite and firm conviction that it is reasonably
probable that, but for counsel’s alleged error, the result of the proceeding would have been
different. Jordan, 275 Mich App at 667
C. EVIDENTIARY ISSUES
Defendant also argues that the trial court erred when sustaining the prosecutor’s objections
regarding defendant’s cross-examination about the victims’ alleged shoplifting, and about one of
the victim’s alleged domestic assault with her boyfriend, because those questions went to the
victims’ untruthful characters and propensity to lie. “Preserved evidentiary rulings are reviewed
for an abuse of discretion.” People v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008).
-4-
Defendant’s cross-examination questions attempted to introduce evidence of other crimes,
wrongs, or acts by the victims to impeach them, and to further support his defense that they had
fabricated the allegations of sexual abuse. MRE 401(b)(1) governs the admissibility of other-acts
evidence, and it is applicable to witnesses. People v Catanzarite, 211 Mich App 573, 579; 536
NW2d 570 (1995). Other-acts evidence is admissible if “the evidence is (1) offered for a proper
purpose and not to prove the [witness’s] character or propensity to commit the crime, (2) relevant
to an issue or fact of consequence at trial, and (3) sufficiently probative to outweigh the danger of
unfair prejudice.” People v Williams, 240 Mich App 316, 322-323; 614 NW2d 647 (2000).
“Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence
will be given undue or preemptive weight by the jury.” People v Ortiz, 249 Mich App 297, 306;
642 NW2d 417 (2001) (cleaned up).
The trial court did not abuse it discretion when it sustained the prosecutor’s objection
regarding defendant’s question concerning the alleged shoplifting. Whether one of the victim’s
had shoplifted was a prejudicial fact that did not pertain to the allegations that defendant had
sexually assaulted her for multiple years. Demonstrating that one of the victims had stolen items
from a store, with the other victim, would have had marginally probative value regarding their
truthfulness, but that value is outweighed by the danger that this fact would be given undue weight
by the jury. It is not outside the range of principled outcomes that the trial court found that the
purported shoplifting history would unfairly prejudice the victim’s character regarding a matter
that was not directly related to defendant’s charges, and, thus, the trial court did not abuse its
discretion by sustaining the prosecutor’s objection.
Additionally, MRE 401 states that “ ‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Evidence is admissible
pursuant to MRE 401 if it is material and probative. People v Mills, 450 Mich 61, 67; 537 NW2d
909 (1995).
The trial court similarly did not abuse its discretion when it sustained the prosecutor’s
objection regarding defendant’s cross-examination question concerning one victim’s alleged
domestic violence against her boyfriend. Whether the victim had been in a physical altercation
with her boyfriend did not have any tendency to make the allegations of defendant’s criminal
sexual conduct more or less probable.
Defendant argues that the victim had lied to a foster-care worker, stating that the boyfriend
had physically assaulted her even though defendant claimed that the victim had physically
assaulted the boyfriend, and, thus, her allegations against defendant were less probable given that
she had lied about other allegations. A victim’s alleged dishonest statement regarding a separate,
unrelated, matter with a separate individual, however, is not relevant to the multiple, repeated, and
consistent allegations against defendant. Thus, it is not outside the range of principled outcomes
for the trial court to conclude that the question was not relevant because it concerned a completely
different allegation, with a different person, in a different situation.
-5-
D. CONSECUTIVE SENTENCING
Lastly, defendant argues that the trial court abused its discretion in imposing consecutive
sentences because it did not articulate its reasons on the record.
“[W]hen a statute grants a trial court discretion to impose a consecutive sentence, the trial
court’s decision to do so is reviewed for an abuse of discretion, i.e., whether the trial court’s
decision was outside the range of reasonable and principled outcomes.” People v Norfleet, 317
Mich App 649, 654; 897 NW2d 195 (2016). “Accordingly, trial courts imposing one of more
discretionary consecutive sentences are required to articulate on the record the reasons for each
consecutive sentence imposed.” Id.
MCL 750.520b(3) states that the trial court “may order a term of imprisonment imposed
under this section to be served consecutively to any term of imprisonment imposed for any other
criminal offense arising from the same transaction.” This statute covers the charges for which
defendant was convicted.
The statutory language permitted the trial court to sentence defendant consecutively for
those acts that occurred during the same transaction, and the trial court found that there were two
instances of sexual assault that included both victims. Both victims also testified about the sexual
assaults that occurred at the same time. The trial court provided its particularized reasoning for
the consecutive sentences when it stated that it wanted to ensure that defendant was never given
the opportunity to abuse other victims when considering defendant’s actions. Therefore, it was
not outside the range of principled outcomes for the trial court to sentence defendant to consecutive
sentences.
III. CONCLUSION
Defendant’s arguments are without merit. The trial court did not abuse its discretion in
denying his motion for a new trial or evidentiary hearing, sustaining the prosecutor’s objections,
or imposing consecutive sentences. Additionally, his trial counsel was not ineffective for not
raising a futile objection.
Affirmed.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-6- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487063/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 01:08 AM CST
- 316 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. LESSLEY
Cite as 312 Neb. 316
State of Nebraska, appellee, v.
Tyeric L. Lessley, appellant.
___ N.W.2d ___
Filed August 26, 2022. No. S-21-768.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
2. Postconviction: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law. When reviewing a question of law, an appellate court reaches a
conclusion independent of the lower court’s ruling.
3. Appeal and Error. Alleged errors of the lower court must be both spe-
cifically assigned and specifically argued in the brief of the party assert-
ing the errors to be considered by an appellate court.
4. Postconviction: Constitutional Law: Judgments. Postconviction relief
is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or
her constitutional rights such that the judgment was void or voidable.
5. Postconviction: Constitutional Law: Proof. In a motion for postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute a denial or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be void
or voidable.
6. ____: ____: ____. The district court must grant an evidentiary hearing
to resolve the claims in a postconviction motion when the motion con-
tains factual allegations which, if proved, constitute an infringement of
the defendant’s rights under the state or federal Constitution.
7. Postconviction: Pleadings. The allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to make
- 317 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. LESSLEY
Cite as 312 Neb. 316
a preliminary determination as to whether an evidentiary hearing is
justified.
8. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
9. Postconviction: Proof: Appeal and Error. When a district court denies
postconviction relief without conducting an evidentiary hearing, an
appellate court determines de novo whether the petitioner has alleged
facts that would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no relief.
10. Records: Appeal and Error. The appellate court will not scour the
record on appeal to understand unclear arguments or find support for
broad conclusions.
11. Appeal and Error. When an issue is raised for the first time in an
appellate court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submitted to it
for disposition.
12. Trial: Appeal and Error. An issue not presented to or decided on by
the trial court is not an appropriate issue for consideration on appeal.
13. Postconviction. The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.
14. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues that were known to the
defendant and which were or could have been litigated on direct
appeal.
15. Judgments: Claim Preclusion. Claim preclusion bars litigation of any
claim that has been directly addressed or necessarily included in a for-
mer adjudication, as long as (1) the former judgment was rendered by
a court of competent jurisdiction, (2) the former judgment was a final
judgment, (3) the former judgment was on the merits, and (4) the same
parties or their privies were involved in both actions.
16. Records: Appeal and Error. It is the appellant’s responsibility to
present a record that permits appellate review of the issue assigned
as error.
17. Postconviction: Appeal and Error. When the defendant is represented
both at trial and on direct appeal by the same counsel, the defendant’s
first opportunity to assert ineffective assistance of trial counsel is in a
motion for postconviction relief.
- 318 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. LESSLEY
Cite as 312 Neb. 316
18. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his
or her counsel’s performance was deficient and that this deficient per
formance actually prejudiced the defendant’s defense.
19. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law. To show preju-
dice under the prejudice component of the Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must demonstrate a reasonable probability that but for his or her coun-
sel’s deficient performance, the result of the proceeding would have
been different.
20. ____: ____. A reasonable probability does not require that it be more
likely than not that the deficient performance altered the outcome of the
case; rather, the defendant must show a probability sufficient to under-
mine confidence in the outcome. The likelihood of a different result
must be substantial, not just conceivable.
21. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the
test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), may be addressed in either order, and the entire
ineffectiveness analysis should be viewed with a strong presumption that
counsel’s actions were reasonable.
22. Postconviction. In a motion for postconviction relief, a defendant is
required to specifically allege what the testimony of potential witnesses
would have been if they had been called at trial in order to avoid dis-
missal without an evidentiary hearing.
23. ____. Absent specific allegations, a motion for postconviction relief
effectively becomes a discovery motion to determine whether evidence
favorable to a defendant’s position actually exists.
24. Trial: Constitutional Law: Testimony: Attorney and Client: Waiver.
A defendant has a fundamental constitutional right to testify, and the
right to testify is personal to the defendant and cannot be waived by
defense counsel’s acting alone.
25. Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
mary responsibility for advising a defendant of his or her right to testify
or not to testify, of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make.
26. Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
Waiver. Defense counsel’s advice to waive the right to testify can pre
sent a valid claim of ineffective assistance of counsel in two instances:
(1) if the defendant shows that counsel interfered with his or her
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freedom to decide to testify or (2) if counsel’s tactical advice to waive
the right was unreasonable.
27. Postconviction: Effectiveness of Counsel: Testimony: Proof. In a
postconviction action, when a defendant raises a claim of ineffective
assistance of trial counsel related to counsel’s failure with regard to
advising the defendant on his or her right to testify, an appellate court
subjects the claim to the Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), standard and requires the defendant
to show how trial counsel’s alleged deficient performance prejudiced
the defense.
28. Postconviction: Appeal and Error. In an appeal from the denial of
postconviction relief, an appellate court will not consider for the first
time on appeal claims that were not raised in the verified motion.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
Tyeric L. Lessley, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant challenges the district court’s denial of his
motion for postconviction relief without holding an evidentiary
hearing. The defendant alleged in the motion multiple errors
committed by the trial court and multiple claims of ineffective
assistance of trial counsel. The district court found that each of
the allegations were either procedurally barred, insufficiently
alleged, or affirmatively refuted by the record. We affirm.
II. BACKGROUND
1. Convictions
Tyeric L. Lessley was charged with first degree murder
under alternative theories of premeditated murder or felony
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murder, in violation of Neb. Rev. Stat. § 28-303(1) and (2)
(Reissue 2016); two counts of use of a deadly weapon to com-
mit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a)
and (c) (Reissue 2016); first degree assault, in violation of
Neb. Rev. Stat. § 28-308 (Reissue 2016); and possession of a
firearm by a prohibited person, in violation of Neb. Rev. Stat.
§ 28-1206(1)(a)(b) (Reissue 2016).
Lessley filed a motion to suppress all evidence obtained
from a cell phone search. After a hearing, the motion to sup-
press was denied. The district court held that Lessley waived
his right to speedy trial.
Before Lessley’s 5-day jury trial began, the State was
allowed to amend its information by interlineation to remove
the premeditated murder theory of proof with regard to the first
degree murder charge. At trial, the State pursued the remaining
theory of felony murder.
Further details may be found in this court’s opinion on
direct appeal, 1 but the evidence at trial generally showed as
follows:
(a) Events of October 29, 2016
Between 4 and 4:30 a.m. on October 29, 2016, Curtis
Goodwin was paying bills on his laptop computer in the home
shared with his fiance, Suzanne Pope, in Omaha, Nebraska,
while Pope was sleeping in a bed in the main floor living room
of the residence, which the couple used as their bedroom.
During this time, Goodwin left the home through the back
door to investigate a knocking sound he heard at the front of
the house. Goodwin testified that family and friends never used
the front door of the residence, but instead entered and exited
through the rear door.
Goodwin grabbed a baseball bat before leaving the house.
Goodwin then walked around to his front door, where he dis-
covered a man knocking on the door. Goodwin asked the man
if he could help him. The man pointed a gun in Goodwin’s face
1
State v. Lessley, 301 Neb. 734, 919 N.W.2d 884 (2018).
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and responded, “Yeah, n-----, I’m your worst mother f------
nightmare.” The man, whom Goodwin testified he did not rec-
ognize, then told Goodwin to go into the house.
The two walked around the side of the house to the back
entrance. Goodwin testified that at some point along the way,
he dropped the bat. Once inside, the man told Goodwin to
“give me all your money and your shit.” Goodwin woke Pope
to tell her that someone was there to rob them. According
to Goodwin, both he and Pope told the intruder they did not
have any money. At that point, the intruder shot Pope, took
Goodwin’s laptop, and shot Goodwin as Goodwin lunged
at him.
Goodwin was able to follow the intruder out of the house
and into the backyard, where Goodwin collapsed as the
intruder ran down the street carrying Goodwin’s laptop. At this
time, Goodwin noticed an unfamiliar dark-colored Chevrolet
Suburban or Tahoe parked in his driveway, which was located
in the backyard of the residence. Goodwin testified that this
vehicle had no license plates and described the back doors
as opening “like kitchen cabinets.” The intruder walked back
past Goodwin. By this time, Goodwin had retrieved the bat he
dropped earlier and swung it in the direction of the intruder.
Goodwin testified that he hit “something,” but did not know
if it was the intruder. The intruder then shot Goodwin again,
dropped the laptop, and drove away.
Pope was killed and Goodwin was injured in this incident.
Goodwin was in a coma for nearly 3 months and sustained the
loss of one of his kidneys, his spleen and gallbladder, and sev-
eral feet of his small intestine. Complications from his injuries
caused Goodwin to fall into a second coma, during which he
nearly died.
“Shotspotter” evidence corroborated the timing of the gun-
shots. Shotspotter is a technology utilized by the Omaha Police
Department to determine the location of gunshots based upon
sounds captured by microphones positioned in certain parts of
the city. Here, Shotspotter captured the sound of two gunshots
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at 4:30 and 4:31 a.m., 20 seconds apart, sounding from out-
side Goodwin and Pope’s residence. Neighbors also testified
they heard gunshots around that time.
In addition, neighbors witnessed a vehicle travel west from
the residence after they heard the gunshots. One neighbor
testified that she saw a dark blue, green, or black Suburban
or Tahoe. A second neighbor testified that he witnessed a
dark-colored Suburban or Tahoe with a loud exhaust, custom
wheels, and tinted windows, and that based upon his experi-
ence with vehicles, he estimated the vehicle was between a
1996 and 1999 model.
(b) DNA and Other Evidence
Goodwin’s laptop computer was found in the backyard near
the driveway. It had a partial shoeprint on its cover. A tread
expert testified that the shoeprint was consistent with a Nike
“Shox” tennis shoe.
Various items of evidence were also recovered from the
scene and tested. The State’s DNA expert testified that the
blood and baseball bat found at the scene were both swabbed
and tested. Each produced a statistical match to Lessley’s
DNA.
Law enforcement later determined that on October 12, 2016,
Lessley had purchased a 2001 green Chevrolet Suburban from
an Omaha dealership. That dealership had global positioning
system records placing the Suburban less than a mile southeast
of the Goodwin-Pope residence at 4:18 a.m. on October 29.
One of the investigating officers testified that it had taken him
about 2 minutes to drive from the residence to the location
noted in the global positioning system records.
Lessley was arrested in January 2017. At the time of arrest,
Lessley was wearing a pair of Nike Shox shoes, which were
consistent with the shoeprint found on the laptop computer.
Lessley’s Suburban was impounded at the time of his arrest.
The Suburban still had in-transit signs and no license plates.
It also had tinted windows, “barn-door” style rear doors, and
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a louder-than-stock exhaust. A search of Lessley’s residence
recovered custom aftermarket rims.
At the time of the shooting, Lessley and his girlfriend lived
a 3-minute drive northwest of the Goodwin-Pope residence.
Lessley’s girlfriend testified that Lessley returned from work
on October 28, 2016, between 11:45 p.m. and 12 a.m. She fell
asleep shortly after Lessley returned home and was awoken
before 5:30 a.m. by Lessley’s talking on the telephone. At
this time, Lessley’s girlfriend noticed a “hole” in the right
side of Lessley’s forehead that he did not have when he
came home from work. Lessley’s cell phone records show
that he was on the cell phone between 4:58 and 5:06 a.m. on
October 29.
The jury was instructed only on the felony murder theory
and was not instructed as to any other theory of first degree
murder, or as to any other degree of murder. Lessley did not
object to the instructions as given and did not offer any pro-
posed instructions.
The jury found Lessley guilty on all five counts. At the sen-
tencing hearing, the district court initially sentenced Lessley
to life imprisonment for first degree murder, 20 to 20 years’
imprisonment for first degree assault, 3 to 3 years’ imprison-
ment for possession of a deadly weapon by a prohibited per-
son, and 5 to 5 years’ imprisonment on both use of a deadly
weapon to commit a felony convictions. After counsel for the
State and for Lessley raised the issue of indeterminate sen-
tences, telling the district court that the sentences had to be
different, the district court amended its sentences for counts
II through V, where it added 1 day to the maximum term of
each sentence so the minimum and maximum terms would
not be the same. All sentences were ordered to be served
consecutively.
2. Direct Appeal and Resentencing
On direct appeal, Lessley, with trial counsel, assigned that
there was insufficient evidence to support his convictions
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and that the district court erred in not instructing the jury
on the lesser-included offense of manslaughter. This court
affirmed Lessley’s convictions and determined that the dis-
trict court did not err when it did not instruct the jury on
manslaughter. However, this court found plain error in the
sentences imposed for counts II through V. This court con-
cluded that the original sentences imposed for these convic-
tions were valid because the maximum term imposed by the
court (5 years and 3 years) was not greater than the maximum
term provided for by law (50 years) and the minimum term
was the minimum term provided for by law (5 years and 3
years), as set forth in Neb. Rev. Stat. § 29-2204(1)(b) (Reissue
2016). Therefore, this court vacated the modified sentences
and remanded the cause for resentencing in conformity with
the initial sentences of 5 to 5 years’ imprisonment for each
use conviction and 3 to 3 years’ imprisonment for the posses-
sion conviction.
3. Postconviction Proceedings
Lessley filed a timely motion for postconviction relief.
The motion alleged various claims of ineffective assistance of
counsel at trial and on direct appeal and numerous claims of
error by the trial court. Many claims made in Lessley’s post-
conviction motion have not been raised in his appeal.
Relevant to the issues being raised on appeal, Lessley
asserted in his postconviction motion that his trial counsel
was ineffective for (1) advising him to waive his speedy trial
rights, (2) failing to interview potential witnesses, (3) refus-
ing to allow Lessley to testify regarding an extramarital affair
he had with Pope and an altercation that ensued between him
and Goodwin, (4) failing to present readily available expert
testimony such as a serology expert, and (5) failing to object
to the State’s amendment of the first degree murder charge on
the first day of trial. Lessley further asserted that his appel-
late counsel was ineffective for failing to raise on appeal the
district court’s error in allowing the State to amend its infor-
mation on the first day of trial and his excessive sentences
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issue. Lessley also claimed the district court erred when rul-
ing on the motion to suppress and instructing the jury. Lessley
alleged his trial counsel was ineffective for failing to success-
fully pursue the motion to suppress and object to erroneous
jury instructions at trial and was ineffective on appeal for
failing to pursue those issues.
The district court entered a written order denying Lessley’s
motion for postconviction relief without an evidentiary hear-
ing, finding that each of the claims were either procedur-
ally barred, insufficiently alleged, or affirmatively refuted by
the record.
III. ASSIGNMENTS OF ERROR
Lessley assigns, consolidated and restated, that the district
court erred when it (1) denied his request for appointment
of postconviction counsel without a hearing, (2) denied his
motion for postconviction relief without allowing the State
to respond, and (3) denied his motion for postconviction
relief without an evidentiary hearing as being without merit
or procedurally barred. He also assigns that the district court
erred during the trial stage of his proceedings by (1) failing
to suppress evidence derived from an unlawful search warrant
and supporting affidavit, (2) failing to find the State’s use of
peremptory challenges to exclude jurors of a specific racial
class violated his rights to due process and equal protection,
(3) abusing its discretion by supporting a verdict that was
insufficient to support his conviction for first degree murder,
and (4) giving certain jury instructions.
IV. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appellate
court reviews de novo a determination that the defendant failed
to allege sufficient facts to demonstrate a violation of his or her
constitutional rights or that the record and files affirmatively
show that the defendant is entitled to no relief. 2
2
State v. Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022).
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[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. 3 When reviewing a
question of law, an appellate court reaches a conclusion inde-
pendent of the lower court’s ruling. 4
[3] Alleged errors of the lower court must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the errors to be considered by an appellate court. 5
V. ANALYSIS
Lessley asserts on appeal, broadly, that the district court
erred in denying postconviction relief without first conducting
an evidentiary hearing and in determining that his claims are
without merit and are procedurally barred. More specifically,
Lessley asserts multiple errors by the trial court and multiple
claims of ineffective assistance of counsel.
Before addressing the specific claims of postconviction
relief that Lessley believes the court should have held an evi-
dentiary hearing on, we set forth the general legal principles
governing our analysis of appeals from the denial of postcon-
viction claims without an evidentiary hearing and dispose of
any claims Lessley raised that are procedurally barred or not
properly before us for appellate review.
[4-6] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her consti-
tutional rights such that the judgment was void or voidable.
Thus, in a motion for postconviction relief, the defendant must
allege facts which, if proved, constitute a denial or violation of
his or her rights under the U.S. or Nebraska Constitution, caus-
ing the judgment against the defendant to be void or voidable. 6
3
State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).
4
Id.
5
Id.
6
Cullen, supra note 2.
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The district court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an
infringement of the defendant’s rights under the state or fed-
eral Constitution. 7
[7,8] However, the allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to
make a preliminary determination as to whether an evidentiary
hearing is justified. 8 An evidentiary hearing is not required on
a motion for postconviction relief when (1) the motion does
not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering
the judgment void or voidable; (2) the motion alleges only
conclusions of fact or law without supporting facts; or (3)
the records and files affirmatively show that the defendant is
entitled to no relief. 9
[9,10] When a district court denies postconviction relief
without conducting an evidentiary hearing, an appellate court
determines de novo whether the petitioner has alleged facts
that would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no
relief. 10 The appellate court does not conduct this review sua
sponte, however; as with all appeals, the alleged errors of the
lower court must be both specifically assigned and specifically
argued in the brief of the party asserting the errors to be con-
sidered by the appellate court. 11 The appellate court will not
scour the record on appeal to understand unclear arguments or
find support for broad conclusions. 12
7
Id.; Jaeger, supra note 3.
8
Jaeger, supra note 3.
9
Id.
10
Id.
11
Id.
12
Id.
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1. Claims Not Properly Brought
for Appellate Review
With these general principles in mind, this court notes that
Lessley assigns many errors on appeal that he does not spe-
cifically argue in his brief. Lessley assigns that the district
court erred in denying his request for appointment of counsel
without a hearing, failing to suppress evidence derived from
an unlawful search warrant and supporting affidavit, failing to
find the State’s use of peremptory challenges to exclude jurors
of a specific racial class violated his rights to due process and
equal protection, and supporting a verdict based on evidence
that was insufficient to support a conviction of Lessley as
guilty beyond a reasonable doubt for felony murder. These
errors were not specifically argued in Lessley’s appellate brief,
and we accordingly decline to consider these assignments in
this appeal.
[11,12] Other issues that are not properly before an appel-
late court for review are issues that are not preserved below.
A motion for postconviction relief must mirror the arguments
made in a party’s appellate brief because we have said that
when an issue is raised for the first time in an appellate court,
it will be disregarded inasmuch as a lower court cannot com-
mit error in resolving an issue never presented and submitted
to it for disposition. 13 Therefore, an issue not presented to or
decided on by the trial court is not an appropriate issue for
consideration on appeal. 14
Lessley asserts in one general statement in his brief that
“[t]rial counsel rendered ineffective assistance of counsel by
not making proper objections to evidence discovered in vio-
lation of [Lessley’s] 4th amendment right to be free from
unreasonable search and seizure.” 15 Lessley words this allega-
tion in his motion for postconviction relief as “[t]rial counsel
13
See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
14
State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
15
Brief for appellant at 11.
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rendered ineffective assistance of counsel when said counsel
fumbled what should have been a successful motion to sup-
press evidence seized pursuant to the search warrant of his
home, cell phone[,] and the questioning of his minor daughter
. . . without a guard[ian] present at [the] interview.” These
allegations are different. One focuses on the pretrial motion to
suppress hearing, and the other focuses on trial counsel’s fail-
ure to object to the evidence received at trial after the motion
to suppress was denied.
Lessley also contends in his appellate brief that counsel was
ineffective because counsel failed to object to the court’s con-
tinued delay of pretrial proceedings and that this caused him
to unknowingly waive his speedy trial right. In contrast, in his
motion, Lessley alleged that trial counsel was ineffective for
advising him to waive his statutory right to speedy trial and
argued that if he had not done so, the prosecution would have
been pressed to move forward with trial with less than 30 days
on the speedy trial clock.
With both of these issues, Lessley is asserting for the first
time on appeal that trial counsel was ineffective for failing to
object during trial, but he raised different allegations in his
motion for postconviction relief. Since the district court was
not presented with these arguments, and thus did not decide
whether trial counsel was ineffective for failing to object, it is
inappropriate for this court to consider them on appeal.
2. Claims That Are Procedurally Barred
Lessley also assigns and argues errors that the district court
correctly determined are procedurally barred. Lessley contends
that the district court abused its discretion when it “meted out
an invalid indeterminate sentence by imposing a fix[ed] inde-
terminate sentence plus one day” and when it “failed and/or
neglected to adjudicate this claim on postconviction relief.” 16
Further, Lessley raises an issue with the jury instructions given
16
Id. at 13 and 14.
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at trial, asserting that the trial court improperly defined reason-
able doubt as a lower standard by which the State had to prove
him guilty and in giving an instruction regarding the elements
of “intent” because “[i]ntent is a mental element of the crime
of [f]irst degree [m]urder (felony) and assault in the [f]irst
[d]egree” and “[t]he trial court failed to give proper instruc-
tions of willful, knowingly, with specific intent to [commit] the
allege[d] crime, resulting in prejudice to [Lessley].” 17
On direct appeal, 18 Lessley contended that the district court
erred in not instructing the jury on the lesser-included offense
of manslaughter and that there was insufficient evidence to
support his convictions. The State raised the issue of Lessley’s
sentences. We affirmed Lessley’s convictions and determined
that it was not error for the district court to not instruct the
jury on manslaughter. We also determined that the district
court’s modifying Lessley’s sentences by adding 1 day to his
maximum sentences was an invalid modification because the
original sentences for the use and possession convictions were
valid. We remanded the cause for resentencing, directing the
district court to resentence Lessley according to the original
sentences imposed.
Lessley attempts to argue again that his sentences with 1
day added were invalid indeterminate sentences. Lessley’s
argument fails to take into account that these are no longer his
sentences based on our remand in his direct appeal. Further,
his motion attempts to argue that other jury instructions were
incorrect. Since we considered a different issue regarding the
instructions to the jury in his direct appeal, these issues should
have been known to Lessley and should have been raised on
his direct appeal. Therefore, we decline to consider these argu-
ments here.
[13-15] The need for finality in the criminal process
requires that a defendant bring all claims for relief at the first
17
Id. at 9.
18
Lessley, supra note 1.
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opportunity. 19 We have consistently said that a motion for post-
conviction relief cannot be used to secure review of issues that
were known to the defendant and which were or could have
been litigated on direct appeal. 20 To the extent these arguments
are being raised for the first time in relation to his motion for
postconviction relief, they have not been brought at the first
opportunity. To the extent these issues were raised and directly
addressed or necessarily decided in our decision on direct
appeal, they are barred by claim preclusion. Claim preclusion
bars litigation of any claim that has been directly addressed or
necessarily included in a former adjudication, as long as (1)
the former judgment was rendered by a court of competent
jurisdiction, (2) the former judgment was a final judgment, (3)
the former judgment was on the merits, and (4) the same par-
ties or their privies were involved in both actions. 21
3. Due Process
An issue that is properly before us and appropriate for
appellate review is Lessley’s contention that the district court
erred when it failed to allow the State the opportunity to
respond to his motion for postconviction relief before rul-
ing upon it. Lessley acknowledges that the petitioner has the
burden of pleading and proving the facts necessary to entitle
him to relief, but he argues that the State had the burden of
pleading grounds of preclusion and then the burden returns to
the petitioner to disprove the preclusion’s existence. He asserts
that because the State was “never given the opportunity to
respond,” the record was not complete for the district court to
make a factual finding. 22
Lessley’s motion for postconviction relief was filed on
February 3, 2020, and the district court’s order denying
19
State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).
20
State v. Betancourt-Garcia, 310 Neb. 440, 967 N.W.2d 111 (2021).
21
State v. Marrs, 295 Neb. 399, 888 N.W.2d 721 (2016).
22
Brief for appellant at 7.
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Lessley’s motion was filed on September 1, 2021. Lessley
asserts in his brief that “[i]t has been the formal policy of the
Douglas County District Court judges to allow the State 60 to
90 days to respond to formal pleading of postconviction once
the court has had an opportunity to review the postconviction
pleading.” 23 While this may be true, the State had substantially
more time than 60 to 90 days to respond to Lessley’s motion
if it wished to.
The State was not required to respond to Lessley’s motion
for postconviction relief, and the district court was not in
error in failing to order the State to respond. Neb. Rev. Stat.
§ 29-3001(2) (Reissue 2016) states, in relevant part:
Unless the motion and the files and records of a case
show to the satisfaction of the court that the prisoner is
entitled to no relief, the court shall cause notice thereof to
be served on the county attorney, grant a prompt hearing
thereon, and determine the issues and make findings of
fact and conclusions of law with respect thereto.
In State v. Burries, 24 we declined to conclude that the State
has an obligation to raise issues concerning a postconvic-
tion action at a time prior to that mandated by the statute. In
Burries, the State had filed a motion to dismiss in response
to the defendant’s first motion for postconviction relief. The
defendant later filed a second amended motion for postcon-
viction relief and argued on appeal that when the State failed
to file a brief in response, the State effectively withdrew its
motion to dismiss and conceded that he was entitled to relief.
We acknowledged that though the State, through its county
attorneys, can, and often does, participate at earlier points in
the process, the State is only called upon to take action with
respect to a motion once it receives notice from the court. And,
under § 29-3001(2), that notice is only mandated once the court
determines that a prisoner is entitled to a hearing. Therefore,
23
Id. at 7-8.
24
State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022).
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we declined to conclude that the State has an obligation prior
to the notice mandated through § 29-3001(2) to respond to a
petitioner’s motion for postconviction relief.
Similarly here, the district court determined that Lessley was
not entitled to an evidentiary hearing on any claim he raised
in his motion for postconviction relief. Therefore, the court
was never required to provide notice to the State to issue a
response, and the State was not obligated to provide a response
to Lessley’s motion. Thus, the district court did not err in rul-
ing on Lessley’s motion for postconviction relief without first
receiving a response from the State.
[16] To the extent Lessley argues the record was not com-
plete without the State’s response, we reiterate that it is the
appellant’s responsibility to present a record that permits appel-
late review of the issue assigned as error. 25 Therefore, Lessley
could not depend on any action from the State in order for the
record to be complete for the district court to make a decision
or for the appellate court to review its decision. The district
court’s decision regarding whether a motion for postconviction
relief is entitled to an evidentiary hearing is based solely on
the facts alleged in the petitioner’s motion and the files and
records of the case, which need not require a response from
the State. 26
4. Ineffective Assistance of Counsel
[17] Lessley’s remaining contentions are ineffective assist
ance of counsel claims. Generally, a motion for postconviction
relief cannot be used to secure review of issues that were or
could have been litigated on direct appeal. However, when, as
here, the defendant is represented both at trial and on direct
appeal by the same counsel, the defendant’s first opportunity to
assert ineffective assistance of trial counsel is in a motion for
postconviction relief. 27
25
State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).
26
See § 29-3001.
27
Jaeger, supra note 3.
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[18-21] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 28 the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend
ant’s defense. 29 To show that counsel’s performance was defi-
cient, the defendant must show counsel’s performance did
not equal that of a lawyer with ordinary training and skill in
criminal law. To show prejudice under the prejudice compo-
nent of the Strickland test, the defendant must demonstrate a
reasonable probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been
different. A reasonable probability does not require that it be
more likely than not that the deficient performance altered the
outcome of the case; rather, the defendant must show a prob-
ability sufficient to undermine confidence in the outcome. The
likelihood of a different result must be substantial, not just
conceivable. 30 The two prongs of this test may be addressed
in either order, and the entire ineffectiveness analysis should
be viewed with a strong presumption that counsel’s actions
were reasonable. 31
Lessley asserts that trial counsel was ineffective when coun-
sel (1) failed to interview and investigate potential alibi wit-
nesses, (2) refused to allow him to testify, (3) did not make
readily available expert witnesses, and (4) failed to object to
the State’s amendment of the information. We will discuss each
of these claims individually.
(a) Failure to Investigate or
Interview Alibi Witnesses
Lessley argues that trial counsel was ineffective because
counsel failed to interview and investigate potential alibi
28
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
29
State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
30
Id.
31
Cullen, supra note 2.
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witnesses, such as Cordell Westbrook. Lessley asserts that
Westbrook would have given testimony that he was with
Lessley between 1:30 and 4:30 a.m. on October 29, 2016.
Lessley argues that “[h]ad counsel interviewed and investi-
gated . . . Westbrook as part of his trial investigation of the
facts of the case, compelling testimony likely would have been
given resulting in [Lessley’s] acquittal of aforemention[ed]
charge to which the jury found him guilty.” 32
In his motion for postconviction relief, Lessley added the
allegation that Westbrook would have testified that he observed
the “scar” on Lessley’s head at that time; however, we will
not consider this allegation in our analysis because it was not
alleged in Lessley’s brief. An appellate court considers errors
that are both specifically assigned and specifically argued in
the brief of the party asserting the error and will not read the
brief together with a motion for postconviction relief in order
to discern what the appellant’s complete argument is.
[22,23] A defendant is required to specifically allege what
the testimony of potential witnesses would have been if they
had been called at trial in order to avoid dismissal without an
evidentiary hearing. 33 Absent specific allegations, a motion for
postconviction relief effectively becomes a discovery motion to
determine whether evidence favorable to a defendant’s position
actually exists. 34
In State v. Munoz, 35 we determined the defendant’s allega-
tions regarding witness testimony did not warrant an eviden-
tiary hearing because they were insufficiently specific. In
Munoz, the defendant alleged in his motion for postconviction
relief that trial counsel was deficient in failing to depose or
interview certain named witnesses who had knowledge of his
whereabouts during the crime. The defendant claimed one
32
Brief for appellant at 11.
33
State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).
34
Id.
35
Id.
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named witness’ testimony would have presented a rebuttable
presumption to the State’s theory of how he allegedly mur-
dered the victim and “‘would have contradicted the [S]tate’s
evidence underlining proof of [his] alibi during the time of the
victim’s murder.’” 36 But the defendant did not elaborate as to
this potential testimony in any further detail. As to this wit-
ness, we concluded that the defendant’s allegations consisted
entirely of legal conclusions and conclusions of fact without
supporting facts.
The defendant in Munoz also alleged that another named
witness had engaged in a conversation with the defendant’s son
that was instrumental to his desire to travel out of town during
the time the crime took place and that this testimony would
have been pivotal because the witness possessed knowledge
of the events leading to the defendant’s desire to travel. While
the facts alleged by the defendant were more specific regarding
the witness’ testimony, we found it was still insufficient to war-
rant an evidentiary hearing. We explained that the defendant
failed to allege when the conversation regarding his desire to
travel with the witness took place—specifically whether the
conversation took place before the murder—and the testimony
would not have been exculpatory under the facts of the case
because the alleged alibi was for when the victim, who had
been murdered several days before, was found, not when she
was murdered. We also noted that the testimony would have
been inadmissible hearsay.
In contrast, we found the facts alleged by the defendant in
State v. Stricklin 37 were sufficient to show, if proved, both defi-
cient performance and prejudice regarding his alibi defense. In
Stricklin, the defendant alleged that on the day of the crimes,
he took his stepson to a barber shop at 10 a.m., left the barber
shop around noon, and drove to his grandmother’s house, dur-
ing which drive he made a call on his cell phone at 12:34 p.m.
36
Id. at 295, 959 N.W.2d at 812.
37
Stricklin, supra note 29.
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The defendant alleged that four specifically named witnesses
and his cell phone records would corroborate this alibi. At trial,
the State relied on cell phone evidence that linked the defend
ant and his codefendant to the crime scene between 11:42 a.m.
and 12:36 p.m. We noted that, based on the State’s theory of
the case, the crimes occurred during the general time period
the defendant’s alleged alibi witnesses would confirm he was
someplace else. Since the defendant alleged that counsel knew
of this alibi information and was deficient in failing to pre
sent it, we found that the defendant had alleged facts which,
if proved, were sufficient to show both deficient performance
and prejudice regarding his alibi defense and that the defendant
was entitled to an evidentiary hearing on whether trial counsel
was ineffective for failing to file notice of and present evi-
dence of the defendant’s alibi defense.
While Lessley alleged Westbrook would have attested that
he was with Lessley between 1:30 and 4:30 a.m. on the day
of Pope’s murder and Goodwin’s assault, he did not allege
where Westbrook would have testified he and Lessley were
at those times. Thus, this alleged potential testimony was not
inconsistent with Westbrook’s being with Lessley outside of
the victims’ house. Unlike in Stricklin, it was not potential
evidence that Lessley was somewhere else. It was not alibi evi-
dence. The allegation that had counsel interviewed and inves-
tigated Westbrook as part of his trial investigation of the facts
of the case, “compelling testimony likely would have been
given resulting in [his] acquittal,” 38 is a factual conclusion and
also insufficient.
The district court did not err in denying Lessley’s motion
without an evidentiary hearing on this claim.
(b) Refusal to Allow Lessley to Testify
Lessley asserts that trial counsel was ineffective because
counsel refused to allow him to testify to an extramarital affair
with Pope and the altercation that ensued between him and
38
Brief for appellant at 11.
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Goodwin between 12:30 and 1:15 a.m. the night of Pope’s
murder. Lessley argues that had this testimony been presented
to the jury, it would have explained some of the circumstantial
evidence present at the crime scene, which we presume means
his DNA and his shoe print on Goodwin’s laptop.
[24-27] A defendant has a fundamental constitutional right
to testify, and the right to testify is personal to the defendant
and cannot be waived by defense counsel’s acting alone. 39
Defense counsel bears the primary responsibility for advising
a defendant of his or her right to testify or not to testify, of
the strategic implications of each choice, and that the choice
is ultimately for the defendant to make. 40 Defense counsel’s
advice to waive the right to testify can present a valid claim
of ineffective assistance of counsel in two instances: (1) if the
defendant shows that counsel interfered with his or her free-
dom to decide to testify or (2) if counsel’s tactical advice to
waive the right was unreasonable. 41 In a postconviction action,
when a defendant raises a claim of ineffective assistance of
trial counsel related to counsel’s failure with regard to advising
the defendant on his or her right to testify, we have subjected
the claim to the Strickland standard and required the defendant
to show how trial counsel’s alleged deficient performance
prejudiced the defense. 42
Lessley does not specifically allege supporting facts that
show how counsel interfered with his decision on whether
to testify or if counsel’s advice to waive his right to testify
was unreasonable. Lessley provides no detail regarding what
discussions he had with counsel that would show counsel
interfered with his right to testify and little detail as to what
his testimony actually would have been. His allegation that
counsel refused to let him testify to an extramarital affair
39
State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).
40
Cullen, supra note 2.
41
Stricklin, supra note 29.
42
Cullen, supra note 2.
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with Pope and an altercation between him and Goodwin is a
conclusory factual statement that is insufficient without sup-
porting facts.
Lessley failed to allege sufficient facts that, if proved, would
show counsel’s performance was ineffective with respect to
Lessley’s right to testify. The district court did not err when it
denied this claim without an evidentiary hearing.
(c) Failure to Offer Expert Witnesses
Lessley contends that trial counsel did not perform as a
competent attorney because counsel did not make readily avail-
able expert witnesses who would have presented scientific and
forensic testimony to “refute the State’s evidence.” 43 More
specifically, Lessley asserts that had counsel elicited testimony
of a serology expert, “an expert would have testified the blood-
spatter from the baseball bat and laptop was a mixture of . . .
Goodwin and possibly [Lessley]” and would have “testified to
the [n]ew testing procedures and the flaw[ed] testing proce-
dures use[d] by the State[’]s forensic department.” 44 Lessley
generally asserts that the failure to consult with an expert
prejudiced his defense.
[28] We will not consider Lessley’s argument that this
expert would have testified to the flawed testing proce-
dures by the State because this allegation does not appear in
Lessley’s motion for postconviction relief. In an appeal from
the denial of postconviction relief, we will not consider for
the first time on appeal claims that were not raised in the
verified motion. 45
As for the remaining assertions, Lessley fails to allege how
a serology expert’s testimony that the blood spatter was a mix-
ture of Goodwin’s and Lessley’s blood would have changed
the outcome of the trial. Lessley does not seem to dispute that
at least some of the blood on the bat was his, and in light of
43
Brief for appellant at 12.
44
Id.
45
State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).
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all the evidence offered against him at trial, it is unclear how
this expert testimony that would “refute the State’s evidence”
would be enough to alter the outcome of the trial.
Again, the facts Lessley alleges are insufficient to require
an evidentiary hearing. The district court did not err in denying
an evidentiary hearing on the alleged ineffectiveness of fail-
ing to elicit testimony of a serology expert.
(d) Failure to Object to Amendment
of Information
Finally, Lessley generally asserts trial counsel was ineffec-
tive because counsel failed to object to the State’s amending
the information on the first day of trial. Lessley argues that this
prejudiced him “in that there was no time to prepare for the
new charges.” 46
The record affirmatively refutes this. The State is correct
when it argues that there was no prejudice to Lessley. The
State did not change or add charges when it amended the
information; rather, it simply removed one of the theories of
first degree murder that Lessley had been charged with. The
State removed the premeditated murder theory and proceeded
to trial on only the felony murder theory. Therefore, Lessley
did not have to “prepare for the new charges” 47 or “prepare
and present a new defense strategy” as he asserts. Lessley fails
to allege facts to show that he was prejudiced by this amend-
ment and that counsel was ineffective for failing to object to it.
The district court did not err in denying Lessley an evidentiary
hearing on this claim.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the district
court denying Lessley’s motion for postconviction relief with-
out an evidentiary hearing.
Affirmed.
46
Brief for appellant at 12.
47
Id. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486929/ | ORDER DENYING MOTION FOR NEW TRIAL
Introduction
This matter relates to the Le'i matai title vacancy pending since April 8, 2004. This case was tried before the Lands and Titles Division (the “trial court”) on March 6-11, 2003. On June 6, 2003, the trial court awarded the Le'i title to counter-claimant Tikeri N. Thompson (“Tikeri”). After an unsuccessful motion for new trial, counter-claimant *272Sonny L. Thompson (“Sonny”) appealed. On appeal, the Appellate Division (the “appellate court”) ruled error below and remanded accordingly. On November 8, 2004, upon addressing the appellate court’s concerns, we once again concluded that Tikeri was entitled to hold the Le'i matai title. In response, Sonny submitted a motion for new trial on November 17, 2004 pursuant to A.S.C.A. § 43.0802(a), T.C.R.C.P 59, and A.C.R. 4(a)(1). We conclude that because Sonny has not met his burden in showing that a new trial or reconsideration is warranted, his motion should be denied.
Discussion
A motion for new trial or reconsideration of a nonjury case should be based upon manifest error of law or mistake of fact. American Samoa Gov’t v. South Pacific Island Air systems, 28 A.S.R.2d 170, 171 (Trial Div. 1995). The burden on the moving party is to show substantial reasons that a judgment should be set aside before such relief should be granted. Id. A motion for a new trial must clearly notify the trial court of the specific errors being alleged, and a general statement that the court erred as a matter of fact, law, or custom does not fulfill this requirement. In re Matai Title Mulitauaopele, 17 A.S.R.2d 75, 79 (Land & Titles Div. 1990). Arguments that could have been made at trial may not be made for the first time either on a motion for new trial or on appeal. See, e.g., In Re Matai Title Tuaolo, 28 A.S.R.2d. 137, 139 (Land & Titles Div. 1995).
I. Additional Evidence
Sonny argues that we abused our discretion on remand when we failed to conduct further evidentiary hearings on the issues of customary adoption and clan support. We note, however, that “[t]he decision whether to hear additional evidence on remand is within the sound discretion of the trial court judge.” International Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 72 (2d Cir. 1998); see also Springs Mills, Inc. v. Ultracashmere House Ltd., 724 F.2d 352, 355 (2d Cir. 1983). As Sonny notes, the appellate court urged us to conduct “proceedings consistent with this opinion.” Although Sonny is correct that this mandate did not preclude us from taking additional evidence, nor did it require it. In exercising our discretion not to take additional evidence, our evaluation turned on the adequacy of the trial record and considerations of judicial economy. That Sonny apparently called a hearing and came prepared at that hearing to present witnesses and additional evidence did not alter our conclusion that the underlying trial record itself was already sufficient to address the appellate court’s concerns. Indeed, we feel the thorough factual analysis conducted on these issues in our opinion on remand reflects the adequacy of the *273record. Consequently, we do not find that our exercise of discretion was based upon manifest error of law or a mistake in fact.
Finally, Sonny interjects yet another brand new argument not earlier raised in these remand proceedings. He contends that this court should have given the parties an opportunity to examine ex parte correspondence received by the Chief Justice from a matai from Ofu regarding the alleged relationship of associate judges on the appellate panel and the candidates in this case. What bearing this has to the merits of his motion is beyond us, but the communication Sonny alludes to is on file in the Clerk’s Office with the Appellate Division. Since the referenced communication deals with concerns regarding the composition of the appellate court, we feel it appropriate to leave the issue, if there is one, to the appellate court as to how to proceed here.
II. Customary Matai Adoption
Sonny also argues that it was error for this court to not allow him to present evidence of his alleged “matai adoptive status.” We observed at trial, and stated on remand, that were such evidence offered, it would have no bearing on the issue of Sonny’s hereditary claim. At trial, we concluded that Sonny’s unproven proposition that customary matai adoption is “well recognized” cannot override legislative enactments, applicable at all relevant times in this case, that nullify matai adoption claims not conducted in accordance with statutory procedure. Because Sonny admitted at trial that his matai adoption claims did not comport with the statutory requirements applicable at the time of his claim, we concluded that additional evidence would be irrelevant to our findings. Although Sonny once again argues that we should give greater weight to some notion of “Samoan custom,” ungrounded in law, than to the will of the legislature, he presents no new arguments indicating that our opinion was based upon manifest error of law or mistake of fact, and in essence makes the insufficient general argument that this court erred as a matter of custom.
III. Traditional/Sotoa Rule
Sonny suggests, but does not actually state, that we erred at trial by not allowing him to present evidence as to whether the Sotoa or the traditional rule should apply in this case. Sonny not only mischaracterizes the circumstances at trial, but is also barred from so arguing today. In our opinion on remand, we observed that for a court to apply the Sotoa rule, not being a rule of general application, the claimant must provide evidence at trial indicating its applicability to the claimant’s family circumstances. Contrary to Sonny’s assertion that we did not allow him to prevent such evidence, we have noted that, at trial, Sonny in fact conceded the inappropriateness of the Sotoa rule. That is, *274far from denying Sonny the opportunity to present such evidence, Sonny himself in fact chose not to assert the issue at trial.
In turn, recognizing as we did on remand, that new issues may not be raised for the first time on appeal or in a motion for a new trial, we now hold that because the lack of evidence on the trial record with regard to the applicability of the Sotoa rule is the direct result of Sonny’s failure to argue the issue, Sonny was not only prohibited from raising this issue with the appellate court, but so too is he barred from raising it now before us in his current motion.
Finally even were we to consider Sonny’s substantive arguments on this issue, Sonny’s motion is insufficient. Sonny’s current arguments about the applicability of the Sotoa rule merely restate the same arguments he made to us on remand, and do not set forth new issues of fact or law to show that we were in error in holding the traditional rule to be applicable. To succeed in a motion for new trial, the movant cannot simply state that it disagrees with the trial court’s holding, but must meet the more strenuous burden of showing that the trial court’s holding was in error. Because Sonny merely repeats the position he made on remand, along with the accompanying general statement that the court has erred, Sonny has not met his burden.
Order
For the reasons stated above, we deny Sonny’s motion to reconsider or for new trial. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486930/ | OPINION AND ORDER
This matter came on regularly for a default hearing on July 28, 2004. Present were Petitioner N.P. and her attorney, Counsel Wagner. Although personally served with a summons and a copy of the petition, Respondent S.T. did not serve an answer upon Petitioner’s counsel as directed in the summons within 20 days following the June 2, 2004 service of process upon Respondent. Petitioner filed for a clerk’s entry of default on June 28, 2004, which was entered by the clerk on July 7, 2004. Petitioner next filed for a hearing on the default judgment against Respondent, which was scheduled by the clerk for July 28,2004. At the hearing Petitioner gave credible testimony to support her allegations that Respondent was the natural father of Petitioner’s minor male child bom in Salt Lake City, Utah on April 22, 2003. Respondent did not appear personally or through counsel at the default judgment hearing. For reasons more fully set forth below, we deny the motion for default judgment, set aside the Clerk’s Entry of Default and direct counsel to refile an amended petition and amended summons fully complying with the statutory requirements of A.S.C.A. §§ 45.1501 et seq.
Discussion
Because this is the first paternity proceeding brought before the Family, Drug & Alcohol Court Division, we took this matter under advisement so that future filings and proceedings by private counsel might better comport with the statutory scheme enacted by the Fono.
In the instant action Petitioner alleged this Court had jurisdiction over the subject matter paternity action under both Chapters 15 and 16, Title 45 A.S.C.A. These separate chapters of the Juvenile Justice Act of 1980 provide distinct, and oftentimes mutually exclusive, statutory relief for persons seeking a declaration of paternity and child support, or either. Under Chapter 15, “Paternity Proceedings” (A.S.C.A. §§ 45.1501 et seq.), the child’s mother or guardian, or in some instances the Department of Health, may file a petition to establish paternity and compel support for any child under the age of 5 years (or older if paternity has been acknowledged by the father in writing or by furnishing support).
*279Chapter 16, “Support Proceedings” (A.S.C.A. §§ 45.1601 et seq.), allows either of the natural parents or the guardian or custodian or the immediate family of an illegitimate child under the age of 18 to petition for child support.1 We assume Petitioner seeks to avail herself of the relief provided under Chapter 15, because the child is under 5 years old and the petition contains no allegations that the putative father has acknowledged, in writing, his paternity or provided support. The petition is likewise silent as to whether, pursuant to A.S.C.A. § 45.1505(c)(3) and (4), Petitioner seeks prior child support or necessary expenses of or for confinement and pregnancy.
Of more serious concern than the inadequacies of the petition is the failure to comply with the statute setting forth the summons requirement for such actions. A.S.C.A. § 45.1503 requires that upon the filing of a petition, the Court issues a summons “stating the substance of the petition . . .” and “requiring the alleged father to appear at the time and place set for hearing on the petition.” The hearing date is expedited by the statute and is set for not less than 10 days after service is completed.
The summons that Petitioner provided was issued by the Clerk in this matter simply stated a petition had been filed and that respondent was required to serve an answer thereto within 20 days. Subsequently, while treating these special proceedings as simply a standard civil action, Petitioner obtained a Clerk’s Entry of Default and moved for a default judgment. The statutes require a far different and more accelerated approach.
The Court-issued summons must contain a command that the respondent appear at a hearing on a specified date and time 11 or more days after service. It must also contain the substance of the petition (e.g., the petition names the respondent as the alleged father of the identified child and precisely what the petitioner is seeking in the way of current and prior child support, necessary expenses of the pregnancy, confinement, etc., and costs of the action).
The reason for such special summons requirements is that the Court is required to determine “a fair and reasonable sum” for the support of the child while taking “into consideration other persons legally entitled to support by the father.” A.S.C.A. § 45.1505(c). The statutory requirement that the alleged father appear at the hearing facilitates the Court’s duties and minimizes the risk of subsequent motions to amend *280being filed by the respondent when served with what Petitioner has here moved for, being in the nature of an ex parte child support order.
Conclusion
Because the summons issued in this matter failed to comply with the statutorily prescribed notice requirements, this Court has not acquired personal jurisdiction over Respondent. The Clerk’s entry of default is therefore set aside and Petitioner’s motion for a default judgment is denied.
Petitioner shall file, within 10 days, an amended petition clearly electing remedies under either Chapter 15 or Chapter 16, Title 45, A.S.C.A. and specifying the amount of monthly child support she is seeking, the estimated costs of the action she is seeking, and whether she is or is not seeking prior support and necessary pregnancy and confinement expenses, which, if alleged, shall be in sum certain figures.
The Clerk of Courts shall, with the assistance of the Staff Attorney, prepare a statutorily compliant summons to be served upon Respondent in such actions consistent with the requirements noted in this Opinion and such other information necessary to inform the Respondent of his statutory duties and rights.
It is so ordered.
Not present before this Court is whether, pursuant to A.S.C.A. § 45.1601(e), support actions under Chapter 16 must be filed by the Office of the Attorney General, the legal representative of “The People of the Territory of American Samoa.... ” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486931/ | *4ORDER DENYING MOTION FOR A STAY OF EXECUTION OF JUDGMENT PENDING APPEAL
On December 13, 2004, the Land and Titles court denied Appellants’ motions for reconsideration or new trial regarding the court’s decision entered on August 20, 2004, and to stay execution of the court’s judgment pending appeal. Appellants properly first moved for a stay in the trial court and then, upon denial, in the appellate court. A.C.R. 8(a). We heard Appellants’ renewed motion to stay execution of the judgment pending appeal on January 13, 2005. The parties’ counsels were present and argued the motion.
We grant or deny a stay pending appeal on our evaluation of three factors: (1) the likelihood that the appellant will prevail on appeal; (2) the equitable balance between the irreparable harm to the appellant if the stay is denied and irreparable harm to the appellee if the stay is granted; and (3) whether the public interest would be effected by the stay. Asifoa v. Lualemana, 17 A.S.R.2d 10, 13-14 and 17 A.S.R.2d 100, 102 (App. Div. 1990).
Regarding the Appellants’ likelihood of success on appeal, we note that the appeal appears to rest primarily on the Appellants’ disagreement with the trial court’s findings of fact rather than on any new or difficult questions of law raising reasonable differences of opinion. As such, the prospect of a successful appeal tends to be unlikely. See Asifoa, 17 A.S.R.2d at 14. On the other hand, preservation of the status quo while an appeal is pending may have greater importance. Asifoa, 17 A.S.R.2d at 103. Appellants have apparently occupied substantial portions of the land at issue for many years. They have built homes on and have extensively farmed the land. Appellee has won the right to register the land as the Aulava family’s communal land by the trial court’s decision, but it appears that postponing the registration while this appeal is pending will cause Appellee significantly less harm than the harm Appellants would suffer if they must vacate the land before the appeal is decided. See, e.g., id.
However, though Appellee prayed for Appellants’ eviction, the trial court only authorized the Territorial Registrar to register the title as the Aulava family’s communal land and has not yet ordered Appellants’ eviction. Since this Court now has taken over jurisdiction in this action from the trial court, while the appeal is pending, there is no need to stay execution of the judgment to retain the status quo of Appellants’ presence on the land. If Appellants’ prevail on appeal, the title registration can be nullified of record. If Appellee prevails, he can then apply to the trial court, or this Court, for Appellants’ eviction if the *5parties have not reached an accord on future occupancy and use of the land. In other words, Appellants’ interests are adequately protected during the appeal without a stay of execution of the judgment pending appeal. The stay motion should be accordingly denied.
Finally, we comment in passing on Appellants’ claim that a stay would not negatively affect the public interest. We disagree to the extent Appellant maintains no public interest is at stake. The public does have an interest in the finality of judicial decisions and discouragement of appeals unless the issue on appeal is genuine. Id., at 102-03. We do agree that public interest considerations have no overriding determination on the present stay motion.
Order
Appellants’ motion for a stay is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486932/ | *7ORDER DISMISSING APPEAL
Introduction
Appellant Richard Majhor (“Majhor”) is currently awaiting trial before the Trial Division on a number of criminal charges, including first-degree murder. Claiming that he cannot receive a fair trial in American Samoa, Majhor moved for a change of venue. The Trial Court denied his motion.
Several months later, Majhor renewed his motion, arguing that considerable media coverage of the case had poisoned the local jury pool and that, because of perceived jury bias, he desires to be tried elsewhere in one of the fifiy states. In addition to the alleged media-inspired bias, Majhor argued below that Samoan cultural values remained anomalous to jury trials, and that Samoan juries are presumptively unable, because of longstanding cultural perspectives on justice generally and race1 in particular, to impartially consider the evidence in his case. In short, Majhor believes that an all or largely Samoan jury will readily disregard the evidence before it and summarily convict him simply because he is non-Samoan and/or an “outsider.”2
After an evidentiary hearing on Majhor's renewed motion for a change of venue, the Trial Court also denied the same. Majhor then moved for reconsideration, or alternatively, for leave to file an interlocutory appeal. Both motions were too denied; whereupon Majhor filed this interlocutory appeal seeking expedited process. For reasons given below, we dismiss for want of jurisdiction.
Discussion
The Appellate Division has jurisdiction to review only “final decisions” of the trial courts. A.S.C.A § 3.0208(c). In general, a *8decision is not final for appeal purposes “until there has been a decision by the [trial] court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988) (quotations omitted). Clearly, a pretrial order regarding venue does not end the litigation on the merits, and is, therefore, hardly final for appeal purposes. See United States v. Martin, 620 F.2d 237, 238-39 (10th Cir. 1980) (holding that the district court's denial of a motion for change of venue lacks sufficient finality to justify immediate appellate review).
Although Majhor conceded as much, both in his brief and during oral argument, he argues that the order below is nonetheless final and immediately appealable under the collateral order doctrine. This doctrine excepts a narrow range of interlocutory decisions from the general rule, allowing appeals from “a small class [of orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). To be immediately appealable under Cohen, the pretrial order must: 1) conclusively determine the disputed question; 2) resolve an important issue that is collateral to the merits of the case; and 3) be effectively unreviewable on appeal from a final judgment in the case. Id. at 546; Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978). Moreover, the collateral doctrine exception is only sparingly used in the criminal context. In Flanagan v. United States, 465 U.S. 263, 265 (1980), the Supreme Court went to great lengths to point out that “because of the compelling interest in prompt trials, the Court has interpreted the requirement of the collateral order exception to the final judgment rule with the utmost strictness in criminal cases.”
Assuming for brevity's salce that Majhor's appeal satisfies Cohen's first two requirements;3 it does not, however, satisfy the third; namely, that the disputed order be “effectively unreviewable” on an appeal from final judgment. A pretrial decision is effectively unreviewable if it “involve[s] an important right which would be lost, probably irreparably, if review had to await final judgment.” Abney v. United States, 431 U.S. 651, 685 (1977). Stated differently, the disputed order is effectively unreviewable if it concerns “an asserted right the legal and practical value of which would be destroyed if not vindicated before trial.” Flanagan, 465 U.S. at 266.
*9Here, Majhor asserts that his Sixth Amendment right to an impartial jury would be compromised without a venue change. We cannot agree. On the contrary, we find that his right to an impartial jury would not, as a legal and practical matter, be irreparably lost or destroyed if not vindicated before trial.
The Supreme Court has recognized three instances in criminal prosecutions as falling within the narrow confines of the collateral order exception. In Stack v. Boyle, 342 U.S. 1, 4 (1951) the Court held that a pretrial order denying a motion to reduce bail was reviewable before final judgment, reasoning that the issue of bail becomes moot if the appeal has to wait until after conviction. Likewise, orders denying motions to dismiss indictments on double jeopardy grounds were also found to be immediately appealable. In Abney, the Court held that the Double Jeopardy Clause protects not only the right not to be convicted during a second prosecution, but also the right not to be tried a second time. 431 U.S. at 660. Thus, orders denying motions on double jeopardy grounds are immediately appealable because the right not to be tried a second time cannot be vindicated after a second trial occurs. Similarly, in Helstoski v. Meanor, 442 U.S. 500, 508 (1979), the Court held that the Speech and Debate Clause protects more than the right not to be convicted for certain legislative activities; it also protects the right not to stand trial and be questioned about those activities. Like Abney, the Helstoski Court held that if a person is to enjoy the Clause's full benefit, then challenging an order denying its protections must be reviewable before trial occurs, otherwise, those protections are lost. Id.
A common thread runs through Stack, Abney and Helstoski. There, the pretrial orders were both final and collateral, but more importantly, from a practical standpoint, the rights asserted in each would be dead letter were review postponed until trial is completed. Flanagan, 465 U.S. at 266. This is so because underlying each is the right not to be tried in the first place. Id.
Here, the Trial Court's order denying change of venue lacks this last critical ingredient. Unlike the pretrial bail issue, juror bias, as an appealable issue, is in no way moot if Majhor is convicted and sentenced.4 Moreover, unlike denials on double jeopardy or speech and *10debate grounds, the right to an impartial jury does not involve the right to not be tried; rather, it merely involves the right not to be convicted under certain circumstances. Lafele v. Am. Samoa Gov't, 4 A.S.R.3d 35, 37 (App. Div. 2000). While the Supreme Court has held that rights involving the former are entitled to immediate review (see e.g. Abney and Helstoski), the Court has similarly held that rights involving the latter must await final judgment until review is permitted. See e.g., Flanagan, 465 U.S. at 266 (holding that an accused's right to counsel of his choice did not involve the right to not stand trial in the first place, and, therefore, was not appealable under the collateral order exception.)
Here, Majhor's asserted right is not analogous to any of the three instances discussed above. While he correctly identifies the three Cohen factors, Majhor fails to explain how the Trial Court's order would be “effectively unreviewable” after judgment. Cohen, 337 U.S. at 546. Indeed, his only argument seems to be the presumptive claim that his trial would take on a “Kafka-like quality” if he was required to defend in a venue where possible juror bias exists. Additionally, he posits that if he were proven correct about jury bias, a post-judgment conviction appeal would be “too late” because he would have to bear the financial burden of defending two trials and one appeal. Appellant's Brief at page 6. This argument has been specifically rejected by the Supreme Court. See e.g. Cobbledick v. United States, 309 U.S. 323, 325 (1940) (holding that “[bjearing the discomfiture and cost of a prosecution for a crime even by an innocent person is one of the painful obligations of citizenship.”).
Order
Satisfied that the Trial Court's order regarding venue is neither a “final decision” nor an immediately appealable decision under the “collateral order” exception, we dismiss for want of jurisdiction. It is so ordered.
Cf. A.S.C.A. § 46.1502 (“A national shall not be excluded from jury service in this territory on account of race, color . . . national origin. . .").
We note that these very sorts of arguments were specifically rejected in King v. Andrus, 425 F.Supp. 11 (D.D.C. 1977), over a quarter century ago. Since that court's holding that criminal jury trials were neither “impractical nor anomalous” in this small island community, jury trials in criminal matters (not otherwise provided for in the territory up to that time) were mandated by way of directive to the Secretary of the Interior. Following this, the Fono (American Samoa Legislature) duly enacted legislation confirming the right to criminal jury trials in the American Samoa. See A.S.C.A. § 46.1501 etseq.
The disputed order conclusively determined venue. At the same time, the venue issue is certainly collateral to the underlying question for trial; namely, Majhor's guilt or innocence. See Kim v. Am. Samoa Gov’t, 17 A.S.R.2d 193, 195 (App. Div. 1990).
In fact, Majhor's argument that he cannot impanel a fair and impartial jury cannot even be adequately addressed until after voir dire is conducted and the jury seated. Only then, once a record is created, can an appellate panel meaningfully review claimed juror bias. See Am. Samoa Gov't v. Fang, 7 A.S.R.3d 104, 107 (Trial Div. 2003); see also Nevers v. Killinger, 169 F.3d 352, 362-63 (6th Cir. 1999) (holding that the alleged prejudicial effect of pretrial publicity is discerned only by: 1) *10examining the extent and nature of the publicity, and 2) examining the responses prospective jurors gave during voir dire). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486933/ | ORDER DENYING PETITION FOR EXTRAORDINARY RELIEF
Diane Majhor (“Petitioner”) petitions this Court to exercise its jurisdiction to issue a writ of mandamus in CR Nos. 15-03 and 20-03. Petitioner seeks to compel the dismissal of all criminal charges against her — specifically, two counts of tampering with physical evidence in connection to her alleged role in the murder of Wyatt Bowles, Jr. (CR *12No. 15-03), and one count of possession of methamphetamine with intent to distribute (CR No. 20-03). Petitioner claims as the basis for this petition the following: (1) she is being held under excessive bail; (2) she has been denied her right to a speedy trial; and (3) she has been subject to cruel and unusual punishment.
Discussion
A.S.C.A. § 3.0202(a) provides that the High Court of American Samoa may issue “all writs ... as may be required for the due administration of justice.” Moreover, T.C.R.C.P. 88 states that “[rjeview of acts or failures to act by the Trial Division is had in the Appellate Division of the High Court.” In the Appellate Division, procedures for extraordinary writs are to conform with T.C.R.C.P. 87-102. A.C.R. 21. The Court may grant, grant in part, or deny a petition for extraordinary relief. T.C.R.C.P. 92. If the petition is granted, a hearing is subsequently scheduled. T.C.R.C.P. 94-96. Based on the above statute and rules, we clearly have the power to entertain petitions for extraordinary relief and issue writs when appropriate.
With respect to writs of mandamus, the Supreme Court has held that the power to grant or withhold a writ of mandamus is committed to the sound discretion of the court. Kerr v. United States Dist. Court, 426 U.S. 394, 403 (1976). However, for an appellate court to issue a writ of mandamus, it must have the power to entertain appeals in that case at some stage in the proceedings. See LaBuy v. Howes Leather Co., 352 U.S. 249, 255 (1957). Because we would plainly have jurisdiction over an appeal from a final order in either case, we clearly have the power to issue a writ of mandamus here.
However, the petition before us is so deficient that review of the merits of Petitioner's claims is not possible. As stated above, when seeking an extraordinary writ from this Court, petitioners must comply with the procedures set forth in T.C.R.C.P. 87 et seq. Petitioner fails to adhere to any of these procedures: the correct papers are missing; the caption is incorrect; the proper respondent is not identified; the legal analysis and factual background are insufficient; a showing that other forms of relief are unavailable is absent; and service on the respondent (and any other real party in interest) is lacking. Petitioner and her counsel's attention are directed to Rule 87 et seq. As an initial matter, Petitioner needs to show that she has no other adequate forms of relief. See T.C.R.C.P. 90(e); Heckler v. Ringer, 466 U.S. 602, 616 (1984) (citing Kerr, 426 U.S. at 402-03); Soli Corp. v. Amerika Samoa Bank, 24 A.S.R.2d 166, 167 (App. Div. 1993) (mandamus is available only if other forms of relief are unavailable).
*13Second, Petitioner should provide legal analysis directed specifically to the issuance of a writ of mandamus. Citing seminal cases on the right to bail and right to speedy trial, without establishing their connection to mandamus proceedings, provides no grounds for relief. Instead, Petitioner would do well to supply authority that supports issuing a writ of mandamus in circumstances identical or analogous to those at hand.
Third, Petitioner must provide the Court with an adequate record. The absence of information as to how long Petitioner has been awaiting trial, whether she has asserted her right to a speedy trial, or the amount of bail she is being held under, precluded any informed assessment of her claims. Likewise, an absence of facts fails to put the opposing party, the American Samoa Government, on notice. As a general rulé, a brief before the High Court's appellate division should always provide a detailed factual record from which the opposing party can understand the nature and basis of the relief requested.
Lastly, Petitioner must properly state her prayer for relief. A writ of mandamus does not provide relief in itself. Rather, it orders the lower court to perform a particular duty or grant a specified relief. Thus, a writ of mandamus cannot, as Petitioner requests, order the dismissal of all criminal charges against her.
Petitioner's request for extraordinary relief is, at this time, denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486934/ | OPINION AND ORDER
Introduction
On November 17,1994, the Territorial Registrar recorded the Articles of Incorporation of Trans-Pacific Shipping Agency, Inc., ("TPSAI"), a corporate entity organized by the decedent David McNeil ("McNeil") and Richard Doughtie ("Doughtie") under the laws of American Samoa. After incorporation, TPSAI lay dormant, conducting no organizational meetings for the subscription and issuance of shares nor undertake business of any kind, until 2001, when McNeil sought to revive TPSAI *18as a stevedoring business of his own. In this interim, Doughtie had departed the territory.
In a series of communications, in June 2001, between McNeil, Doughtie and their attorneys, Doughtie suggested that if McNeil was to become the sole owner of TPSAI, Doughtie should be compensated for his share of the $400.00 in costs incurred in the 1994 formation of the TPSAI. On June 21, 2001, McNeil's attorney wrote to Doughtie stating that "Dave [McNeil] is prepared to reimburse you $200," to which Doughtie replied, "Done!". That same day, Doughtie consented to the sale of all TPSAI stock to McNeil and eventually the latter operated a stevedoring business to service P.M. & O. Lines, Inc ("PMO"). Subsequently, McNeil passed away, on August 18, 2002, without having paid Doughtie the stipulated $200.00.
After McNeil's death, McNeil's widow, as administratrix of McNeil's estate ("the estate"), entered into an agreement to sell the property and assets of TPSAI to PMO. On March 5, 2003, Doughtie filed a notice of claim against the estate, maintaining that he remained a 50 percent owner in TPSAI at the time of McNeil's death because he had not been paid the $200.00. Accordingly, he contends that he would therefore be entitled to a one-half interest in the proceeds of the TPSAI sale, which proceeds were deposited, pursuant to stipulation of the parties, into the registry of the Court pending disposition of Doughties' claim.
We are satisfied on the evidence that McNeil at the time of his death was the sole owner of TPSAI; and that Doughties' claim to half interests in TPSAI is entirely unsupported.
Discussion
The Articles of Incorporation for TPSAI provided for an initial issuance of 2,000 shares of TPSAI stock, and that in turn TPSAI's named Board of Directors, including Doughtie, authorized all 2,000 shares to be issued to McNeil for the par value price of $1.00 each. That Doughtie authorized the sale of this stock and purchased no shares for himself, and that McNeil acquired all of TPSAI stock for consideration, establishes McNeil as the only owner of TPSAI shares.
Doughtie's (and McNeil's) initial investment of $200.00 in the incorporation of TPSAI, then, is irrelevant to his ownership of TPSAI shares, for absent Doughtie taking the additional step of purchasing stock from TPSAI for not less than $1 per share, he has not become a TPSAI stock-owner. Indeed, were we to accept Doughtie's claim that the non-reimbursed $200.00 he initially invested entitles him now to a 50 percent interest in TPSAI, we would in effect be ignoring TPSAI's organizing *19charter. Article Four of TPSAI's Articles of Incorporation states that the stock price may not be less than $1.00 per share. Doughtie's current investment of $200.00 falls at least $800.00 below the minimum payment required to own 1,000 of TPSAI's 2,000 shares.
Because the $200.00 in costs spent by both McNeil and Doughtie to incorporate TPSAI can be distinguished from the separate consideration needed to obtain an ownership interest in TPSAI shares, we regard Doughtie's $200.00 payment as simply a start-up cost, and not an investment toward an ownership in TPSAI.
In turn, we are not clear that Doughtie has a legally compelling argument to entitle him to $200.00 from the estate in initial TPSAI formation costs, but nevertheless award him this amount. According to the communications between the parties and their attorneys, Doughtie noted that "[i]t would be fair to have some of my costs recovered that involved the formation of this company." Although McNeil in turn promised to reimburse Doughtie $200.00 for such costs, to the extent that the offer of $200.00 was for Doughtie's past services, as opposed to future forbearance, the agreement would not appear enforceable for lack of consideration. However, in that the parties concede that such an agreement was entered into, that the $200.00 was indeed owed to Doughtie, we see no reason to disrupt this consensus and award Doughtie $200.00 from the estate.
Order
Doughtie's initial $200.00 contribution to TPSAI does not constitute an ownership interest in TPSAI. Consequently, McNeil's estate has full ownership interest in TPSAI and the full proceeds of the sale. Doughtie, however, is entitled to $200.00 pursuant to the parties' agreement and shall be paid accordingly. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486935/ | ORDER DENYING IN PART AND GRANTING IN PART PETITIONS FOR HABEAS CORPUS
Introduction
Petitioner Diane Majhor (“Majhor”), a pretrial detainee, on December 6, 2004, and Petitioner Selina Ropati (“Ropati”), a convicted prisoner (together “Petitioners”), on December 7, 2004, petitioned for writs of habeas corpus. The petitions were consolidated for order to show cause hearings taking place on December 9, 15, and 23, 2004. Both petitions challenged Petitioners’ conditions of confinement and denial of privileges after having been transferred from the general female prison population to the “Bravo Unit” of the Tafima Correctional Facility (“TCF”) on October 23, 2004 for alleged violations of TCF rules and regulations. No disciplinary hearings occurred prior to the transfers.
On December 7, 2004, after this Court issued an order to show cause on Majhor’s petition, the Commissioner of Public Safety ordered Petitioners to be removed and returned to the general female population. On December 8, 2004, TCF officials boarded the windows in Petitioners’ new cell for the stated purpose of protecting other prisoners from Ropati’s alleged lewd conduct. Petitioners maintain that the boarding constitutes continued punishment and retaliation for their petitions, and that the heat and lack of ventilation caused by the boarding of the windows has produced oppressive and uninhabitable cell conditions.
*24After reviewing the parties’ submissions and analyzing the relevant authorities, we conclude that the transfer to Bravo Unit failed to implicate the constitutional due process rights of either petitioner, but that the TCF must either remove the boards from the cell windows or provide adequate alternatives to reduce the heat in Petitioners’ present living conditions.
Discussion
I. Jurisdiction
Although the law is not clearly established as to whether a habeas petition is the proper vehicle for the matter currently before this court, for lack of prior clarity on this issue we will allow it for the current case. In Bell v. Wolfish the Supreme Court expressly stated, “we leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.” 441 U.S. 520, 526 n. 6 (1979); see also Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (where the court distinguished between the remedy of habeas corpus, appropriate for state prisoners challenging the underlying conviction and sentence on federal constitutional grounds, and a 42 U.S.C § 1983 civil rights remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but declined to lay a boundary between the two).
Since these holdings, the federal circuit courts have split on what kind of issues may be raised in a habeas petition, with some circuits concluding that a habeas petition may challenge the conditions of confinement while others determining that it may not. See Boudin v. Thomas, 732 F.2d 1107, 1111 (2d Cir. 1984) (habeas is the appropriate action to challenge conditions of confinement where the prisoner seeks to be moved in order to remedy past constitutional violations); Streeter v. Hopper, 618 F.2d 1178, 1181 (5th Cir. 1980) (habeas jurisdiction allowed where petitioner challenged administrative segregation without due process); but see Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979) (the writ of habeas corpus is limited to attacks on either the legality or the duration of confinement).
Our own precedent has not clearly resolved this question. In Am. Samoa Gov’t v. Agasiva, we stated that “[tjhe court is mindful that habeas corpus is not available to the judiciaiy to review prison management and the nature and condition of a prisoner’s otherwise lawful confinement.” 6 A.S.R.2d 32, 38 (Trial Div. 1987). The court continued, however, observing that “habeas corpus is appropriate to review unconstitutional actions of prison officials and may be available in ‘exceptional circumstances rising to the level of constitutional *25deprivations.’” Id. We note that territorial officials sued in their official capacities under 42 U.S.C § 1983 are “persons” with respect to suits for prospective injunctive relief and that given the nature of the claim, a civil rights action would have been a more appropriate alternative avenue to pursue this matter. Lockhart v. Matthew, 203 F. Supp.2d 403, 415 (D. V.I. 2002). In light of Agasiva, however, we recognize that a habeas petition may be brought where the petitioner challenges the constitutionality of the conduct of prison officials.1
II. Petitioners’ Burden
Petitioners have the burden to show that a liberty interest has been implicated such that they were denied their right to a due process hearing prior to disciplinary action. As Majhor is a pretrial detainee not yet convicted of a crime, and Ropati is a convicted prisoner, the liberty interests possessed by each differs, and in turn, so does the burden of proof differ in establishing the violation of a liberty interest.
A. Pretrial Detainees
In Bell, the Supreme Court held that because a detainee may not be subjected to punishment prior to an adjudication of guilt in accordance with due process rights, the standard for determining whether a pretrial detainee’s claim implicates a constitutionally protected interest is “whether particular restrictions and conditions accompanying pretrial detention amount to punishment.” Bell, 441 U.S. at 536-38. A particular restriction is not “punishment” in the constitutional sense if it is reasonably related to a legitimate governmental objective, as opposed to being arbitrary or purposeless. Id. at 539. If the conduct does not constitute “punishment,” it will not be deemed to have impaired a detainee’s liberty interest, and thus may be undertaken without a due process hearing. See McMillian v. Cortland County Correctional Facility, 198 F.3d 234 (2d Cir. 1999). Under Bell, then, to trigger due process rights, the burden is on the petitioner to show that the state intended to punish, or to show that the challenged conduct is not reasonably related to a legitimate goal. Id. at 538-39 (court may infer act is punishment if the petitioner can show it was arbitrary or purposeless); Block v. Rutherford, 468 U.S. 576, 584, (1984); see Fuentes v. Wagner, 206 F.3d 335, 342 (3d Cir. 2000) (court looked to see if petitioner “clearly established” government intent to punish). On the other hand, if *26the petitioner cannot provide substantial evidence of an express intent to punish, courts should ordinarily defer to the expert judgment of correctional officials as to whether the restriction is reasonably related to a legitimate governmental goal. Bell, 441 U.S. at 540 n. 23; see also Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
In Collazo-Leon v. U.S. Bureau of Prisons, petitioner, a pretrial detainee, petitioned for a writ of habeas corpus maintaining that a 90-day disciplinary segregation and six-month revocation of telephone and visitation privileges amounted to “punishment” within the meaning of Bell when it was imposed upon him as a prison disciplinary measure for violation of prison rules in attempting to bribe a prison guard and attempting to escape. 51 F.3d 315 (1st Cir. 1995). The court, however, disagreed. The court reasoned that although Bell prohibits punishment of a pretrial detainee when given as a sanction for unproven criminal conduct, “reasonable punishment may be imposed to enforce reasonable disciplinary requirements.” Id. at 318 (emphasis in original). Noting that under Bell, that a legitimate government objective includes “maintaining safety, internal order, and security within the institution,” the court determined that even though the disciplinary action may be viewed as having a punitive effect, it served the legitimate purpose of facilitating order by deterring the detainee from violating prison rules in the future. Id. at 318 (citing Bell, 441 U.S. at 540). The court observed that were it to adopt the view that all prison disciplinary actions are impermissibly punitive, when taken to its extreme, a detainee could never be subject to discipline for violating prison rules, and thus would have no incentive to abide by them. Thus the court concluded, “[t]he administrators of the prison must be free, within appropriate limits, to sanction the prison’s pretrial detainees for infractions of reasonable prison regulations that address concerns of safety and security within the detention environment.” Id. at 318.
Accepting this distinction between impermissible punishment for the underlying unproven crime and permissible punishment for prison infractions, we similarly conclude that Majhor has not shown that the confinement in the Bravo Unit is “punishment” in the Bell sense, and has not, in turn, met her burden in showing that the transfer to Bravo Unit implicated a constitutionally protected liberty interest entitling her to a due process hearing.
The TCF prison regulations themselves do not make clear whether they are equally applicable to pretrial detainees and convicted prisoners. In Bell, however, the Court reasoned that because a government has the authority to detain a person prior to trial, so too may the state “subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to *27punishment.” 441 U.S. at 536-37. Therefore we read the TCF use of the word “inmate” in its prison rules as applicable to both petitioners in this case.
According to TCF Rule 7.1.1.23.6, “major discipline” may be imposed upon an inmate at TCF for “[ejvidence of. . . contraband, or aiding in obtaining [the] same.” In the current case, prison officials maintain, and Majhor admits, that she possessed and used a cellular phone inside the prison facility. Majhor argues, however, that she did not violate prison rules because TCF does not specifically enumerate a cellular phone as “contraband” and that such possession should therefore not be classified as a “major violation” within the meaning of the prison regulations. We disagree.
Rule 7.1.1.4 lists “drugs, alcohol, burglary tools, or incendiary devices” as examples of contraband. Although the rules do not specifically include cellular phones, there is no suggestion that the list is exhaustive. Moreover, TCF policies regarding telephone use implicitly suggest that a cellular phone is contraband. Rule 7.1.1.23.1 states that apart from payphone telephone calls, inmates may be allowed to use TCF telephones for conversations limited to five minutes, and for the limited purposes of contacting an attorney or in the event of a serious family emergency. Possession of a cellular phone, however, would clearly violate this rule by allowing an inmate to make unauthorized personal calls not of an emergency or attorney/client nature for longer than five minutes.
Perhaps more compelling, it does not require a great stretch of the imagination to realize that unauthorized, clandestine telephone communications made by prison detainees with the outside world or with other inmates implicates the security of the prison facility. For example, with unlimited cellular phone access, detainees can conspire in real time to plan their escape from the prison, to engage in criminal activity, or to cause a riot or disruption within the facility. Unlike a stationary phone, a cellular phone affords the advantage of maneuverability and secrecy, allowing conversations to be made at unauthorized times and away from a single, fixed, and readily observable location. Therefore, in light of existing prison regulations, and the dangers such phones pose to prison order and security, we do not hesitate to recognize cellular phones as “contraband” within the non-exhaustive list of prison rules.
However, although we conclude as in Collazo-Leon that Majhor has not shown that the Warden’s decision to transfer her to Bravo Unit for the violation of prison rules triggers a constitutional liberty interest entitling her to due process, Majhor alternatively maintains that her due *28process rights were violated for failure of the prison to adhere to its own procedural rules which require a hearing prior to disciplining an inmate for “major violations” of prison rules.2 In a civil rights action, a pretrial detainee has a right to due process not only where the conduct involves constitutionally impermissible punishment, but also where the conduct separately triggers a liberty interest created under the statutes, rules and regulations of the territory. See, e.g., Martucci v. Johnson, 944 F.2d 291, 294 (6th Cir. 1991). In the present case, however, petitioner has filed a habeas writ and not a civil rights action. As we have discussed above, in Agasiva we concluded that our habeas jurisdiction over issues raised concerning the conditions of confinement is limited to “exceptional circumstances rising to the level of constitutional deprivations.” 6 A.S.R.2d at 38. Consequently, although we are very troubled by the fact that the Warden failed to follow required prison procedural hearings prior to taking disciplinary action against Majhor, we are unable to separately review any due process claims grounded on prison rules and regulations alone.
In addition to the transfer to Bravo Unit itself, Majhor contends that the conditions within Bravo Unit were such that she was subjected to cruel and unusual punishment under the Eighth Amendment. U.S. CONST, amend. VIII; see also Rev. CONST Am. Samoa art. I, § 6. We first note that the Eighth Amendment applies only to the imposition of “cruel and unusual punishment” towards convicted prisoners. See Ingraham v. Wright, 430 U.S. 97 (1976). Thus, Majhor’s claim regarding cell conditions in the Bravo Unit is cognizable as a due process claim which, as described in Bell, prohibits all punishment of pretrial detainees. See also Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004). Nevertheless, although Majhor describes alleged fighting of inmates in *29nearby cells, and even an alleged breakout of another inmate from his cell, even were we to accept this as true, she indicates that she was never harmed, and nor was anyone physically able to enter her cell and cause her harm. Although Majhor indicates she was disturbed by the conduct of others, that she was kept free from harm’s way during her disciplinary detention in Bravo Unit prevents such detention from rising to the level of punishment.
On the other hand, although we do not regard Majhor’s past confinement in Bravo Unit as “punishment” under Bell, we take seriously her complaint regarding the present temperature and ventilation conditions in her cell upon her return from Bravo Unit to the general population. In Anton v. Sheriff of DuPage County, Ill., a pretrial detainee claimed that the excessively cold temperature conditions in his cell amounted to punishment under the meaning of Bell. 47 F. Supp. 2d 993 (N.D. Ill. 1999). Recognizing that pretrial detainees are entitled to “the minimal civilized measure of life’s necessities,” the court determined that although pretrial detainees have a right to protection from extreme temperatures, temperature alone is insufficient for a successful conditions of confinement claim. Id. at 999 (quoting Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.1997)). Instead, to successfully challenge temperature conditions, courts should assess several factors, such as: the severity of the temperature; its duration; whether the pretrial detainee has alternative means to protect himself from the temperature; the adequacy of such alternatives; as well as whether he must endure other uncomfortable conditions as well as temperature. Id.
In the current case, although we lack actual temperature data, with outside territorial temperatures well into 80-90 degree range, the lack of ventilation as a result of boarding Petitioners’ cells no doubt poses a high probability of heat-related illness and thus presents a substantial risk of serious harm to Majhor. In addition, with no indication that the blocked windows are only a temporary measure, and with constant high territorial temperatures, the duration of the present conditions does not appear to be short-term. Although Warden Kelemete maintains that the boarding is needed for the security of the inmates, and our goal is not to micromanage prison affairs, we conclude that if he wishes to continue this policy, he must simultaneously take additional measures to improve conditions to the levels they were prior to boarding the windows. Such measures may include providing Majhor with extra showers, ice, ice water, fans, or other similar such measures that provide adequate temperature reducing alternatives. See Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004).
*30B. Convicted Prisoners
Petitioner Ropati was disciplined for violation of Rule 7.1.1.23.6(h), which prohibits “[l]ewd acts on or outside Correctional Facility grounds,” after allegedly exposing herself to other inmates. As with possession of contraband, the commission of a “lewd act” is regarded as a “major violation” under TCF rules, in turn triggering the procedural safeguards of Rule 7.1.1.24 prior to taking disciplinary steps.
Unlike the standard for government violation of a pretrial detainee’s constitutional rights, the liberty interests of a convicted prisoner are different. In Sandin v. Conner, the Supreme Court observed that whereas punishment of pretrial incarcerated prisoners impermissibly imposes retribution in lieu of a valid conviction, in the case of a convicted prisoner, punishment merely “effectuates prison management and prisoner rehabilitative goals.” 515 U.S. 472, 483 (1995). Thus, unlike the case with pretrial detainees, punitive action and “[discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.” Id.; see also Wolff v. McDonnell, 418 U.S. 539, 555 (1974). The test of whether the official conduct violates the prisoner’s rights, then, is not whether the conduct constitutes punishment, but whether the punishment given “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” and “exceeds similar, but totally discretionary, confinement in either duration or degree of restriction.” Applying this standard, Ropati is constitutionally entitled to due process for her alleged “lewd act,” then, only when she can establish that upon being punished, her conditions of confinement were excessive. Johnson v. Shovah, 152 F.3d 918 (2d Cir. 1998); Dupree v. L. Brown, 2003 WL 23573439 at *5 (D. Md. 2003) (burden under Sandin on plaintiff to establish due process violations).
In the current case, we do not find Ropati’s transfer to Bravo Unit problematic. We note that “a prisoner may be transferred [from the general population] for any reason, or for no reason at all” and has no liberty interest in remaining in the general prison population. See, e.g., Thomas v. Ramos, 130 F.3d 754, 760 (7th Cir. 1997). Because the evidence indicates Ropati was neither harmed nor able to be harmed, she has not demonstrated that she was subject to conditions in Bravo Unit that exceeded what a prison inmate could expect from confinement generally. Therefore, we do not find that the transfer constitutes a dramatic departure from the basic conditions of her sentence to constitutionally implicate her due process rights.
Moreover, although we once again find it troubling that the Warden did not adhere to the procedural requirements of Rule 7.1.1.24 prior to *31instituting disciplinary action, as we described above, because this is a habeas action, and not a civil rights claim, we do not have jurisdiction to separately analyze whether Ropati’s due process rights were violated under the “statutes, rules, or regulations” of the territory. See Martucci, 944 F.2d at 294.
As with Majhor, however, we do find the temperature conditions of Ropati’s current confinement problematic and that the heat and lack of ventilation exceeds the minimal civilized measure of life’s necessities that she may expect, even as a convicted prisoner. Similarly, then, we conclude that if the prison wishes to maintain its policy of boarding Ropati’s windows for a legitimate governmental objective, it can do so only if it provides adequate alternative measures to reduce the temperature, including, but not limited to, additional showers, ice, ice water, and fans.
Order
In accordance with our discussion above, we conclude with respect to both Majhor and Ropati that the transfer to Bravo Unit and the conditions within Bravo Unit were constitutionally proper, but that the present temperature conditions are excessive and must be modified by either removing the boarding or providing adequate heat-reducing alternatives. It is so ordered.
We point out that before commencing a § 1983 action, a prisoner must first exhaust his or her administrative remedies, pursuant to the 1996 Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). In Porter v. Nussle, 534 U.S. 516, 524 (2002), the Supreme Court made exhaustion mandatory.
Rule 7.1.1.24 reads as follows:
In the case of the aforementioned major violations, the following procedures will be followed to establish and implement a disciplinary board.
a. An in-house hearing will be conducted within one week of the charges being made and forwarded to the commander.
b. A hearing board of four must include one non-Corrections Divisions Department of Public Safety staff, and an Inmate Counselor. The hearing is to be chaired [by] the Commander or Assistant Commander.
c. The offender will be allowed to present evidence or witnesses on his behalf.
d. The offender will be allowed to confront and cross-examine witnesses on his behalf.
e. The hearing board will be required to find significant evidence of guilt before imposing additional sanctions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486936/ | AMENDED CUSTODY ORDER
Ancillary to divorce, the court may by order provide for "the custody, care, maintenance and support of the minor children of the parties." A.S.C.A. § 42.0210. Pursuant to stipulation of the parties herein, physical custody of their minor child was decreed shared; the court then concluding that "the parties' agreement on shared custody [was], for the time being, in the best interests of the minor child.” See Opinion & Order, entered May 6, 2003, slip op. at 3. However, our order also provided that "when the minor child commences school on a regular basis, the court will revisit this shared custody arrangement." Id.
For a number of reasons, we find it timely to revisit the child custody issue. First, the child will be five (5) years old on February 8, 2005. At the same time, he has also been attending school on a "regular basis," having been enrolled over the present school year at Pacific Horizons School in Tafiina. Moreover, the present custody agreement, which literally has the child going back and forth every other day between his parents, is proving detrimental to the minor. The concern now is to minimize the child's exposure to the enduring conflict between his parents. Among other things, the parties cannot seem to effectively talk to one another about the child, except through their lawyers. Thus, and notwithstanding stipulation, enforcement of the stipulated custody arrangement has occupied our attention, prompting us at one point to note that "civility, give and take, common sense, and, indeed, mutual concern for their child seems to be lost on the parties at this time." See *33Interim Order, entered July 15,2003.
The present custody order was premised upon the parties' mutual desire to remain active participants in the child's day to day upbringing. Given the child's formative development stage, we agreed that it was important and healthy for the child to have ready access to both his father and mother. The perception was that some sense of normalcy could be restored to the child, following the family breakup, by ongoing contact with both parents. But as events have unfolded, it is quite clear that the parties share little in common on day to day parenting aims which in turn has resulted in mixed and contusing signals to the child. In these matters, the Appellate Division recently said in Tapeni v. Tapeni, 6 A.S.R.3d 81, 84 (App. Div. 2002), that
[t]he cornerstone of any custody proceeding is the determination of what is in the best interest of the child. See Brooks v. State Department of Human Resources, 526 So. 2d 693, 594 (Ala. Ct. App. 1988); In Re Custody of Townsend, 427 N.E.2d 1231, 1234 (Ill. 1981); Johnson v. Pinder, 269 A.2d 511, 512 (Penn. 1970). When the dispute over custody is between the two natural parents, no presumption arises as to who should get custody; both parents "start[] off on equal footing." In Re Custody of Townsend, at 1235. Indeed, "[ajlthough a mother is the natural custodian of her young," a court must weigh many factors to determine which arrangement would best suit the child. Aumavae v. Aumavae, 27 A.S.R. 2d 164, 167 (Trial Div. 1995) (citations omitted).
In our assessment of the evidence, we find that the mother is the more suitable parent to have primary custody of the minor at this stage in his life. The mother has proven better able to provide the child with a more stable home environment, with nearby access to family support from the child's maternal grandparents that can be confidently counted upon. (The child's maternal grandmother, a retired educator, takes it upon herself to drive the child to and from school, taking care of him often after school hours even though the child has a regular sitter until his mother gets home from work.) She has proven more consistent setting direction and organization with the child's day to day life from the mundane to matters of personal hygiene and healthy eating.
The father, on the other hand, has lived out of the Rainmaker Hotel, where he has resided with the child on his allocated custodial days; hardly a suitable environment for a stable home life. Since encountering the court's order for home study evaluations, the father now holds himself out as resident in Fagatogo, at his late father's house, although he still maintains the hotel room at a cost of $500 a month for, he says, *34"storage." The Fagatogo home is currently shared with respondent's sister and her six children.
Additionally, we find that the mother has the healthier parenting outlook, by emphasizing self-discipline and structure in the child's daily routines. On the other hand, the father's attitude is by comparison nonchalant in this regard. Dismissing pre-school as merely a "babysitting" service, the respondent father glibly admitted getting his son late to school on occasions because he felt it was more important to let the child sleep-in when he was tired. But as the child's school principal testified, the significance of regularly getting a pre-schooler to school on time ensures that the young child does not miss out on the all too important opportunity to participate with the rest of his class in the transitioning process of adjustment between home life and that at school. Lateness thwarts ready adjustment and results in disruption not only to the rest of the class but hampers the tardy child's ability to readily fit in to the day's activities.
As indicated by their respective responses to the court's orders, the mother has shown more sensitivity toward the child's general well-being. She has taken pain to carefully heed custodial transfer particulars, as set out very precisely in the custody orders, whereas the father's relatively lackadaisical attention to such detail has been the cause of much discord. In yet another instance, we ordered medical evaluations of the minor following allegations concerning matters of personal hygiene. Here, it was the mother who attended to comply with this court order. At the same time, it is not lost on us that when faced with another court order, to be undertaken by Child Protective Services, Department of Social Services, for home study evaluations of the parties living situations, the respondent father actively resisted compliance by engaging in cat-and-mouse tactics to avoid contact with case worker Ms. Pamata Auelua, as she sought him out to evaluate his living quarters at the Rainmaker Hotel. From the respondent's own testimony, he viewed the evaluation exercise as an unwarranted invasion of his "privacy." In our view, his resistance is consistent with having something to hide from the court, and since the home study was clearly for purposes determining the child's best interest and welfare, we are also inclined to view respondent's resistance as the placing of his own personal (privacy) interests ahead of his child's best interests.
Respondent argues that his work schedule offers better flexibility in terms of accommodating more parental contact with the child. He contends that the petitioner's daily work hours are more restrictive in this regard. We are not impressed. Work hours are not conclusive. There is more to raising a child than a quantitative value assigned to parental contact. Other things considered, parental contact with the mother, *35notwithstanding longer working hours, has been very beneficial to the child in terms of promoting direction and structure to the child's life.
Finally, Child Protective Services recommends the child's placement with his mother.
Order
On the foregoing, the custody orders hereinbefore entered are vacated. In lieu thereof, the following order shall enter:
1. Until further order of court, custody of the parties' minor child is awarded to the petitioner, the child's mother.
2. The respondent father, however, is entitled to physical custody of the minor child on alternative weekends as well as each alternative school holiday occurring throughout the academic school year. For purposes hereof, "weekend" is defined as 6:00 p.m. Friday evening to 6.00 p.m. Sunday evening promptly. The holiday period is defined as 6:00 p.m. the day previous to the holiday to 6.00 p.m of the day on which the holiday occurs.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486937/ | OPINION AND ORDER
On May 8, 2003, Plaintiff Pepe Tuimavave (“Tuimavave”) brought this collection action against Defendant Lote Siua (“Siua”) to recover damages resulting from Siua’s alleged default in payment of a promissory note. Though filed well after 20 days of service of process, Siua answered, generally denying liability.
On September 16, 2004, Siua was served, through his counsel, with Tuimavave’s requests for admissions, for Siua’s response within 30 days after September 16, pursuant to T.C.R.C.P. 36 & 5. Over two months later, on November 29, 2004, the scheduled trial date, Siua had neither responded to the requests for admissions nor formally requested the Court for additional time. As a result, in accordance with T.C.R.C.P. 36(a), Tuimavave filed his request that the Court recognize the material facts deemed admitted for Siua’s failure to timely respond to the requests for admissions.
*37During opening statements, Tuimavave’s counsel orally repeated the deemed admitted request, and Siua’s counsel resisted the request, stating that Siua signed the promissory note under duress from threats by an employee of Tuimavave’s counsel and a police officer enlisted by the employee. He at least implicitly sought further time to respond. Tuimavave, who resides in California, was not present for the trial. Siua was present. However, neither party offered any further evidence to prove or defend against the collection claim.
Discussion
I. Requests for Admissions
It is undisputed that Siua failed to respond to the requests for admissions served on him on September 16, 2004. T.C.R.C.P. 36(a)-(b) provides that if a party fails to respond to requests for admissions within 30 days, the requested admissions are deemed admitted and the matters admitted are conclusively established. See also McCann v. Mangialardi, 337 F.3d. 782, 788 (7th Cir. 2003) (referring to the identical federal rule).
T.C.R.C.P. 36(b) further provides that the court may permit withdrawal or amendment of any admission “when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” Certainly, Siua’s failure to respond to the Tuimavave’s requests for admissions in their entirety impairs Siua’s ability to present his case on the merits. Ordinarily, when a party who fails to respond presents a reasonable explanation for his failure to timely respond to requests for admissions, we would treat his explanation as a request to withdraw or amend a previous admission and give him additional time to file a late response. See Metpath, Inc. v. Modern Medicine, 934 F.2d 319 (4th Cir. 1991).
In this case, however, allowing Siua more time to respond the requests for admissions is not warranted. Viewed as a whole, the circumstances clearly show that Siua came up with a last-minute fabricated defense to take advantage of Tuimavave’s off-island California residency and at least postpone an unfavorable judgment in a straight-forward promissory note collection action.
On April 10, 2003, Siua and Tuimavave agreed to settle their ongoing contract dispute, which was proceeding in the District Court, DCCA No. 01-2003. The dispute arose out of the collapse of substantial portions of the stone wall Siua was contracted to construct for Tuimavave, and *38Siua’s non-performance of a later agreement by not repaying $4,900.00 of Tuimavave’s $5,000.00 down payment for the contracted work if he did not repair his defective workmanship. Under the settlement, Siua signed a promissory note, obligating him to make weekly payments to Tuimavave until the note was paid in full. As a result of the settlement and Siua’s execution of the promissory note, the District Court dismissed the case the following day.
Siua made no attempt bring his present allegation of duress to the attention of the District Court judge. He also did not attempt to complain to Tuimavave’s counsel about his claim. Tuimavave’s counsel and her then associated attorneys are reputable members of the American Samoa Bar who would not countenance on any client’s behalf threatening behavior by their employees or agents to forge settlement of a legal controversy.
Siua failed to pay any note installment, and Tuimavave brought this collection action on the note on May 8, 2003. When Siua did not timely answer the complaint, Tuimavave initiated default judgment proceedings. The default proceedings were terminated when Siua retained counsel and, on July 23,2004, answered the complaint. The answer, however, did not even hint at duress as a defense, let along affirmatively plead this defense, as required T.C.R.C.P. 8(c). Certainly, if there was any truth to the duress defense, Siua would have told his counsel about it before the answer was prepared and filed. Instead, Siua kept this defensive tactic secret until, or most likely conceived it shortly before, he first, and only orally through his counsel, raised it at the beginning of the trial on November 29, 2004.
Finally, Siua had more than ample time after being served with the requests for admissions to respond to the requests well before the trial date and opportunity once again to raise the duress defense he first proferred in court only when the trial began.
Given these circumstances, we find that Siua concocted a last-ditch bogus defense and hold that he is not entitled to additional time to respond to the requests for admissions. He has not provided any justification for his failure to respond well before the November 29,2004 trial date, either within the 30 days allotted for response by T.C.R.C.P. 36 or within additional time permitted by the Court at his request.
We further find that on April 10, 2003, Siua voluntarily signed the promissory note at issue, and that the material facts admitted by Siua’s failure to respond to the requests for his admissions are as set forth in both the discussion above and below.
*39II. Promissory Note Default
Under the terms of the promissory note, Siua owed Tuimavave $6,392.00, to be paid in weekly installments of $125.00, beginning on April 18, 2003, and continuing on every Friday thereafter until the principal and interest, at the rate of 6% per year, were paid in full. The promissory note further provided that if Siua defaulted on any installment payment, the whole amount of the principal and accrued interest became due and payable at Tuimavave’s option, without notice, and that Siua would to pay Tuimavave’s actual attorney’s fees and costs incurred in collection of the debt, plus post-judgment interest at the rate of 6% per year.
Siua had the ability to pay as promised the promissory note and willfully did not pay any installment required under the note. Therefore, Siua defaulted on the promissory note, and Tuimavave elected to commence this collection action, as he was entitled to do. Siua is liable to Tuimavave in accordance with the order set forth below.
Order
Tuimavave recovers from Siua, and Siua shall pay to Tuimavave, the principal sum of $6,392.00, plus prejudgment interest at the rate of 6% per year, $1.05 per day, from April 10, 2003, to the entry of this judgment on January 27, 2005, in the amount of $689.85, actual attorney’s fees and costs in the amount determined reasonable by the Court after Tuimavave’s counsel submits his affidavit on the fees and costs, and post-judgment interest at the rate of 6% per year on the total amount of the principal sum, prejudgment interest, and approved attorney’s fees and costs until this total amount is paid in full. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486938/ | ORDER RE: PRE JUDGMENT INTEREST AND COSTS
Introduction
On August 24, 2001, we awarded Plaintiff-in-Intervention Anthony Sardina (“Sardina”) $276,193.20 in damages for his January 17, 1996 injury, and $18,420.06 for maintenance and cure as well as attorney’s fees. On September 4, 2001, Sardina filed a declaration of costs seeking *42the sum of $60,268.04. On July 27, 2004, the Appellate Division remanded this case instructing us to either award prejudgment interest, or make findings of fact to support a decision not to do so.
We are now charged with the task of determining the appropriate prejudgment interest award, if any, and an appropriate reimbursement for costs.
Discussion
I. Prejudgment Interest
In Interocean Ships v. Samoa Gases, this court determined that the “general rule is to award prejudgment interest, although this award always lies soundly within the court’s discretion.” 26 A.S.R.2d 28, 43 (Trial Div. 1994); see also In re Nichole Trahan, 10 F.3d 1190, 1196-97 (5th Cir. 1994) (noting that courts enjoy broad discretion in setting prejudgment interest rates). Once a court decides to exercise its discretion to award prejudgment interest, the Supreme Court has reasoned that “[t]he essential rationale for awarding prejudgment interest is to ensure that an injured party is fully compensated for its loss,” and, moreover, that “interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness.” City of Milwaukee v. Cement Div., Nat. Gypsum Co., 515 U.S. 189, 196 (1995); Blau v. Lehman, 368 U.S. 403, 414 (1962); In re Burlington Northern, Inc. Employment Practices Litigation, 810 F.2d 601 (7th Cir. 1986) (prejudgment interest is committed to the sound discretion of district court and is to be based on equitable considerations).
In accordance with our mandate, we award prejudgment interest. In considering principles of compensation and fairness in determining the appropriate prejudgment interest rate, we first reject Sardina’s claim that he is entitled to a “high” rate of prejudgment interest for his role in pursuing the litigation. Sardina maintains that because he, unlike the other claimants who settled, took this case to trial, his involvement entitles him to an annual rate of prejudgment interest higher than the historical interest rate, and as high as 15 percent. In essence, Sardina maintains, he should be rewarded for carrying the litigation forward. In light of the Supreme Court decision in City of Milwaukee, and general considerations of equity, we disagree. In City of Milwaukee, the City maintained in part that because it pursued the dispute over liability in good faith, interest should be awarded beyond that which would malee the injured party whole as a penalty for respondent’s alleged bad faith conduct. 515 U.S. at 196-97. The Court disagreed, concluding that “prejudgment interest is not awarded as a penalty; it is merely an element *43of just compensation.” Id. at 197. In addressing Sardina’s arguments, we conversely hold that prejudgment interest is not awarded as a reward for successful litigation, but similarly is an element of compensation. The degree of damages to which Sardina is entitled for carrying his suit forward have already been calculated in our earlier damages award. The limited remaining matter of prejudgment interest does not serve to penalize Defendants further, but simply seeks to compensate him for the full monetary value until the time of judgment of that award.
For the same reason, we also reject Sardina’s claim that he is entitled to prejudgment interest at the rate of six percent. Sardina suggests in the alternative that we should use our discretion to award interest at the rate of six percent in accordance with A.S.C.A. § 28.1501, relating to rates of interest applicable to unwritten loan agreements. Under § 28.1501(a):
[ejxcept as provided in this title, no person may charge more than 15 percent a year as interest on a debt or obligation, and no agreement to pay a rate of interest higher than 6 percent a year shall be enforceable unless the same is in writing and is signed by the party to be charged. The rate of interest when there is no written agreement with respect thereto shall be 6 percent a year, and interest shall be presumed on overdue debts.
We reason that far from the present circumstances, the legislative purpose behind A.S.C.A. § 28.1501(a) is to encourage lending by ensuring that creditors will receive a default interest rate at a minimum threshold of six percent upon debts. Thus, where a debtor knowingly becomes indebted to a creditor, but becomes overdue in repaying that debt, the creditor can obtain interest on the obligation at the base rate of six percent. Prejudgment interest, however, is unrelated to the traditional concept of credit or debt. Prejudgment interest seeks to compensate a party with the full monetary value of the loss from the time of the injuiy to the time of judgment. Liability for prejudgment interest arises, then, only upon a court’s issuance of the judgment. Because the obligated party was under no obligation to pay damages or interest upon those damages prior to judgment, the owing party in turn cannot be regarded as a debtor during the period before the judgment was issued. More specific to the circumstances of this case, sufficient funds of $400,000 had already been deposited in the Court registry pending the outcome of Anthony Sardina’s appeal. Thus, the concern here is not that a debt has not been paid, but that the funds once paid have not been distributed by the Court. For these reasons, we conclude that § 28.1501(a) is not analogous, and, therefore, not applicable to determining the interest rate *44in prejudgment interest situations.1
In addition to finding § 28.1501(a) theoretically inapplicable, so too do we independently conclude that an interest award at a rate of six percent would be inequitable. Consequently, we award Sardina interest calculated by the actual historical investment rate had Plaintiff invested the vessel sale proceeds in an interest bearing bank account from the time of his January 17, 1996 injury until the time of our August 24, 2001 judgment.
Although Plaintiff TCW Special Credits (“TCW”) argues in favor of this historic interest measure, counsel’s submission is for some reason a flat interest rate of 3.2 percent to the principal, an amount calculated as the average rate of historic interest. We disagree with this calculation. First, TCW incorrectly includes rate periods up until the present date in its calculations, well beyond the 2001 judgment. And second, a flat interest rate fails to take into account that an investor would receive compounding interest. Consequently, rather than awarding a flat interest rate over the whole period, we require that the interest be compounding, in which interest in each period be calculated based on the combined principal and earlier accumulated interest from earlier rate periods, consistent with the interest rates at ANZ bank from the date of injury until the time of the 2001 judgment.
Defendant F/V Kassandra Z (“Kassandra Z”) maintains that such an award would be inequitable in that prejudgment interest was already built into our earlier judgment. Indeed, Kassandra Z notes, in awarding $276,193.20 in special damages in our August 2001 order, we determined that the award was, in part, comprised of “$800,257 in expected earnings lost... and adjusted for present value and inflation by *453%.” Whether or not this “double recovery” argument is compelling, Kassandra Z fails to recognize that this argument is overdue and should have been addressed to the appellate court. In remanding this case, the appellate court has already made a determination that we did not award prejudgment interest. Therefore, the issue before us today is not whether we already awarded prejudgment interest, but is what, if any, such prejudgment interest should be. Accordingly, we conclude that the principal upon which compounding historic prejudgment interest is based is the combined trial court damage award of $276,193.20 for special damages and $18,420.06 for maintenance and cure.
II. Costs
In addition to prejudgment interest, Sardina seeks $60,268.04 in post-trial costs awarded pursuant to various provisions of 28 U.S.C. § 1821 and § 1920. Although TCW takes no position here, Kassandra Z disputes this figure and maintains that Sardina is entitled to costs in the amount of $ 12,273.94.
Under T.C.R.C.P. 54(d), “[ejxcept when express provision therefore is made either in a statute of American Samoa or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. . . .” We are aware of no rule or statute disallowing costs in this case. In our order in this matter of May 1, 2000, however, we reasoned that in examining costs, we should utilize relevant federal statutory law to determine if desired costs are appropriate.
A. Court Reporter Fees
Kassandra Z correctly observes that Sardina may recover “[fjees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). In the present case, Sardina seeks a total of $3,750.12 in such fees. Kassandra Z notes that among such fees Sardina includes a $40.40 charge for copies of exhibits. We agree with Kassandra Z that we must deduct this court reporter charge, in turn awarding Sardina with a total of $3,709.72 for court reporter costs.
B. Witness Deposition Fees
Sardina seeks a total of $1,437.50 for witness deposition costs. As we observed in our May 1, 2000 order, 28 U.S.C. § 1920 permits deposition expenses to be awarded as costs. Alflex Corp. v. Underwriters Lab, Inc., 914 F.2d 175, 177-78 (9th Cir. 1990). We noted, however, that “a party who desires costs to be assigned shall state them in an itemized and verified bill of costs. . . .” A.C.R. 39(d). *46Kassandra Z notes, that despite Sardina’s total, Sardina has invoices for only $375.00 of these costs, and therefore should receive only this amount. Recognizing that we should give careful scrutiny to costs proposed by winning parties, we agree with Kassandra Z.
Sardina maintains that after a good faith and diligent search, he was unable to obtain supporting documentation for the remaining witness expenses, but that the amount he seeks is an accurate reflection of costs. Absent more, this is not good enough. Sardina has supplied no evidence, apart from his assurances, that these are indeed the correct figures for deposition expenses. Consequently, we grant $375.00 for deposition costs.
C. Witness Fees
Sardina has charged an attendance fee of $40.00 for all enumerated witnesses, with the exception of Harold Laufenberg, a witness who testified telephonically, whom Sardina charges $425.00 for court testimony. We note, as does Kassandra Z, that 28 U.S.C. § 1821(b) states that “[a] witness shall be paid an attendance fee of $40 per day for each day’s attendance.” Sardina may, accordingly, only obtain $40.00 for Laufenberg’s telephonic attendance.
Additionally, Sardina seeks $15,000, $5,200, and $12,180 for “additional fees for services rendered” for witnesses Richard Richley, Captain Kenneth Franke, and Robert Hall respectively. Although § 1821 allows for reimbursement of travel expenses, subsistence costs, and other such costs incurred in order to make a witness available to testify, we observed in our earlier order that the statute does not allow a winning party to simply charge such “additional costs” as it deems fit. See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 441-45 (1987) (holding that “absent explicit statutoiy or contractual authorization for the taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920.”). Consequently, while we will award costs Sardina incurred for witness testimony, subsistence, and airfare, he has shown no applicable fee-shifting statute to allow the additional service fees further requested.
We therefore award $40.00 for Harold Laufenberg, $3,606.00 for Richard Richley, $2,115.00 for Captain Kenneth Franke, and $2,115.00 for Robert Hall, totaling $7876.00 for witness fees.
D. “Court Appointed” Witness Fees
Sardina seeks reimbursement for the salaries, fees, expenses, and costs of witnesses Robert Wallace and Thomas J. Wegman pursuant to *4728 U.S.C. § 1920(6). Kassandra Z correctly observes, however, that § 1920(6) pertains only to court-appointed witnesses, and thus such reimbursement is not applicable here. Consequently, we will award as costs $40.00 per day for the trial testimony of these witnesses pursuant to § 1821(b).
E. Out-of-Pocket Expenses
Sardina further seeks out-of-pocket expenses related to recovery of maintenance and cure benefits, naming in particular air expenses for Plaintiff and his counsel from San Diego, California totaling $3,280.00.
As we concluded in our May 1, 2000 order, attorney costs are not taxable as costs. Therefore, we deduct $1,640 for such billed air travel.
Sardina also seeks his own $1,640 in travel costs for participating in this litigation. It is clear that an employer’s willfid or arbitrary failure to pay maintenance and cure damages gives rise to tortious conduct in which the employer may be liable for attorneys’ fees and punitive damages. See, e.g., Robinson v. Pocahantas, Inc., 477 F.2d 1048 (1st Cir. 1973). As the Appellate Division notes, our earlier award of attorneys’ fees reflects our determination that the failure to pay “cure” benefits was willful.
Pointing to the proposition that “the trial court should make the seaman ‘whole’” and that the seaman “should not be required to pay money out of his pocket to collect maintenance lawfully due to him,” Sardina seeks his travel expenses incurred in pursuing this action. Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1501 (5th Cir. 1995). Accepting this proposition, Kassandra Z suggests that Sardina is entitled only to some sort of proportional award for his travel expenses. Kassandra Z’s position is given support in Coughenour v. Campbell Barge Line, Inc., 388 F.Supp. 501 (W.D. Pa. 1974). In Coughenour, the court reasoned that a plaintiffs claim for costs for a medical expert witnesses was proper only insofar as they were necessary in establishing the claim for maintenance and cure. Id. at 506.
In the present case, however, while it may be true that Sardina’s litigation focused primarily on special damages with less time spent on his maintenance and cure award, he would still have had to pay the exact same airfare to fly to American Samoa just to pursue his maintenance and cure claim. That is, while we may apportion costs, as in Coughenour, when dealing with services, we will not discount them where they would have been necessary to pursue the maintenance and cure claim alone. Accordingly, we award Sardina the $1,640 in travel costs to collect the maintenance and cure lawfully due to him.
*48Order
For the reasons stated above, we award prejudgment interest and costs accordingly and direct calculation of these awards consistent with this opinion. It is so ordered.
We note that we have applied § 28.1501 in the context of post-judgment interest, and do not now depart from this view. See Samoa Products, Inc. v. A'asa, 17 A.S.R.2d 66, 68 (1990) (reasoning that the 6 percent statutory rate of interest specified under § 28.1501 applied to post-judgment interest awards). Whereas prejudgment interest seeks to compensate a party with the full monetary value of the loss from the time of the injury to the time of judgment, post-judgment interest seeks to compensate a party with the full monetary value of the loss from the time of judgment to the time of payment. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990). Thus, where the party in the prejudgment interest context is unaware of the payment owed, the party in the post-judgment context is aware of its obligation to pay, but fails to do so. In turn, because the obligor in the post-judgment context resembles a traditional debtor, we have treated § 28.1501, as applicable in such circumstances. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486940/ | ORDER DENYING MOTION TO SUPPRESS
Introduction
On December 7, 2004, Defendant Diane Majhor filed a motion to suppress all evidence obtained from a March 27, 2003 search warrant, arguing that information intentionally or recklessly omitted from the affidavit supporting the warrant, if included, would have made it so that no probable cause existed to justify the search.
After considering the parties’ submissions and testimony offered at hearing on February 3, 2005, we hold that the search warrant is valid and the evidence seized pursuant to the warrant is not suppressed.
Discussion
In Franks v. Delaware, the Supreme Court concluded that the Fourth Amendment of the U.S. Constitution entitles a defendant to a *54hearing to challenge a facially valid warrant once the defendant makes a preliminary showing that the affidavit contains information “that the affiant knew was false or would have known was false but for his reckless disregard for the truth,” and that absent the false information, the affidavit would not support a showing of probable cause. 438 U.S. 154 (1978); see also United States v. Leon, 468 U.S. 897, 923 (1984); United States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985); Am. Samoa Gov’t. v. Samana, 30 A.S.R.2d 98 (Trial Div. 1996) (applying the similar provision in Article I, Section 5 of the Revised Constitution of American Samoa). Similarly, if an officer omits critical information from a search warrant application, a defendant may also be entitled to a hearing. See Stanert, 762 F.2d at 781 (holding that deliberate or reckless omissions of facts that tend to mislead are false statements for Franks purposes). Likewise then, a defendant is entitled to a hearing after making a preliminary showing: (1) that facts were omitted with the intent to make, or in reckless disregard of whether they make, the affidavit misleading; and (2) that the affidavit, if supplemented by the omitted information, could not support a finding of probable cause. United States v. Stropes, 387 F.3d 766, 771 (8th Cir. 2004). Once the defendant has met his preliminary showing, the court must suppress the evidence obtained from the warrant if the Defendant shows at hearing that, by a preponderance of the evidence, the magistrate was misled by an affidavit that intentionally or recklessly omitted information. Franks, 438 U.S. at 155-56; Leon, 468 U.S. at 923.
I. Preliminary Analysis
Mere allegations, without additional proof, are insufficient to make a preliminary showing of reckless or intentional omission and lack of probable cause for issuance of a search warrant. Franks, 438 U.S. at 171; see also United States v. Mathison, 157 F.3d 541, 548 (8th Cir. 1998). Defendant, during a hearing on January 11, 2005, however, referenced Captain Va'a Sunia’s testimony at the preliminary examination for this prosecution in the District Court on June 5, 2003, stating that searches of the same residence, after the police took control of the premises and prior to the March 27, 2003 search, revealed no controlled substances. While such an argument does not itself by a preponderance establish intent or recklessness, given the nature and of the specific omission in the context of the March 27 and earlier searches, we concluded that Defendant met the preliminaty burden of establishing that the omission may have been intentional or reckless. Moreover, because, as Defendant argued, the affidavit sought to search the home for drugs, but failed to discuss that the premises had been searched on prior occasions with no discovery of drugs, we are similarly satisfied that Defendant has made a preliminary showing that had such information been included, the magistrate could have found no probable cause to *55conduct the search. We therefore determined that Defendant reached the preliminary threshold entitling her to a Franks hearing for further evidentiary review.
II. Evidentiary Hearing
Having considered Defendant’s evidence challenging the facially valid warrant, we hold that she has not met her burden at the evidentiary hearing to justify suppression of the evidence seized during the March 27,2003 search.
A. Intentional or Reckless Omission
Although it is not disputed that Officer John Cendrowski failed to include the information about the prior searches in his March 27, 2003 affidavit, a Fourth Amendment or Article I, Section 5 violation in the context of Franks applies only to intentional or reckless omissions from the affidavit, and the mere existence of an omission alone is not enough to establish intent. See United States v. Artez, 389 F.3d 1106 (10th Cir. 2004).
Defendant presented no persuasive evidence at the hearing that Officer Cendrowski acted intentionally to mislead the issuing judge. Thus, the remaining inquiry is whether Officer Cendrowski’s failure to include a discussion of prior searches in the affidavit can be regarded as so material as to indicate a reckless omission. We conclude that it does not.
We begin by observing, as does the Sixth Circuit, that a defendant will have more success challenging an affidavit alleged to contain a false statement than one with a potentially material omission. See United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997). This is so, because affidavits in support of search warrants “are normally drafted by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108 (1965). Because an affiant cannot be expected to include every piece of information gathered in the course of an investigation in an affidavit, allowing omissions to be challenged with regular success would create a situation where almost every affidavit would be questioned. United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003); United States v. Colkley, 899 F.2d 297, 302 (4th Cir. 1990); Atkin, 107 F.3d at 1217.
Moreover, we note that in determining what information should be included in an affidavit, it is important to distinguish between the situations presented in Franks and in Brady v. Maryland, 373 U.S. 83 (1963). In Mays v. City of Dayton, 134 F.3d 809 (6th Cir. 1998), the appellate court concluded that the district court misconstrued the *56meaning of Franks by applying the rationale of Brady to the warrant application process. In Mays, the district court had reasoned, that as in Brady, which established that the prosecutor has a duty to disclose to the defendant material evidence that would have a bearing upon the guilt or innocence of the defendant, the subject of a search warrant is similarly entitled to disclosure of any exculpatory information potentially contradicting a finding of probable cause in the warrant itself. Id. at 815. The Sixth Circuit disagreed, however, determining that the due process protections required by Brady differ from the circumstances in Franks. The Mays court noted that:
[b]y contrast, the probable cause determination in Franks, derived from the Fourth Amendment, involves no definitive adjudication of innocence or guilt and has no due process implications. Because the consequences of arrest or search are less severe and easier to remedy than the consequences of an adverse criminal verdict, a duty to disclose potentially exculpatory information appropriate in the setting of a trial to protect the due process rights of the accused is less compelling in the context of an application for a warrant.
Id. at 816.
Defendant presented evidence, through Officer Cendrowski’s testimony, that the March 27, 2003 affidavit, although relying on witness testimony indicating the presence of contraband on the premises, makes no mention of prior searches of the same premises that failed to uncover narcotics. Defendant, in effect, argues that Officer Cendrowski possessed exculpatoiy information about prior searches at the time of his March 27, 2003 affidavit but that he failed to disclose them to the magistrate judge. Following Mays, we acknowledge that the information relating to the prior searches may be exculpatory, but recognize that the rights of a party during the warrant process differ significantly from the rights of a defendant during the trial process. Because of this difference, Officer Cendrowski had no constitutional duty to disclose all potential exculpatory information in his affidavit for a warrant. In turn, his failure to do so does not arise to recklessness. Absent evidence that Officer Cendrowski intentionally withheld such information, we therefore cannot regard the failure to include it in the affidavit as either “reckless” or “intentional” within the meaning of Franks.
B. Inclusion of the Omission
Although Defendant has not satisfied her evidentiary burden under the first prong of Franks, even were we to conclude that she had, we could not find that inclusion of the omitted information would have *57altered a determination of probable cause. To succeed under Franks’ second prong, Defendant must show by a preponderance of the evidence “that the alleged omission would have made it impossible to find probable cause.” See Mathison, 157 F.3d at 548.
Probable cause for a search warrant exists if “the facts and circumstances are such that a reasonably prudent person would be warranted in believing that an offense had been committed and that evidence thereof would be found on the premises to be searched.” See Greene v. Reeves, 80 F.3d 1101, 1106 (6th Cir. 1996). Affidavits supporting the warrant are evaluated under a totality of the circumstances test. Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Taken as a whole, then, the affidavit need only provide sufficient facts from which a magistrate can draw an independent conclusion that what is alleged that the search will disclose is probable, but not certain or guaranteed. See United States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000).
The March 27, 2003 affidavit states that Rudy Kruse, a witness, stated that Defendant was selling and distributing narcotics, and that such narcotics would be stored in the computer hard drives at her residence. Kruse further stated that he personally observed drugs stored in a large bucket at the house. The affidavit additionally refers to an interview with Sánele Mareko, in which Mareko noted that while he was living in the residence sought to be searched, he observed “many drug transactions” involving Defendant. Mareko also maintained that drugs were stored and hidden in computer hard drives at the house. Finally, the affidavit discusses an interview with Amanda Mareko, who stated that Richard Majhor, Defendant’s husband and co-defendant charged with the same offense in the consolidated prosecution, CRNo. 21-03, described himself as the “Drug Lord of the Pacific” when explaining the number of guests who visited his home. Based on this information, Officer Cendrowski sought to search Defendant and her co-defendant’s home and the surrounding grounds for evidence of drug possession, distribution, or sale.
Defendant urges us to reevaluate probable cause by considering that, as Officer Cendrowski testified, prior searches of the same residence yielded no drugs when searched in relation to the disappearance of Wyatt Bowles, Jr. Defendant essentially argues that because the information given by the witnesses had been effectively discredited by the results of the earlier search, had the magistrate judge been aware of the search results, he could not have found it probable that drugs were on the premises. We disagree.
First, we note, as did Officer Cendrowski, that although no drugs were uncovered, officers allegedly found drug paraphernalia in witness *58Sanele’s room during the prior search. Such evidence does little to discourage police officers from believing that drug related offenses had been committed on the premises.
Second, Defendant makes much of the fact that a “competent” police officer would have undoubtedly found drugs were they at the residence during the prior search. In making a probable cause determination, however, a reviewing judge need not presume the infallibility of the searching officers. Although the searching officials did not find drugs during the prior search, two witnesses stated with specificity the precise location in which the drugs could be found, and discussed personal observation of drug activity on the premises. While the lack of discovery of such contraband during the prior searches puts into question the certainty that such materials would be found, the detail of the witness testimony and the apparent personal knowledge on which it was based at least renders it probable that such contraband would be found upon additional search.
And finally, the magistrate judge, in making his probable cause analysis, would already have some basis to believe, on the face of the affidavit itself that investigative activity had occurred on the premises. The affidavit at several points states that the house to be searched is “the same house that the murder in this case occurred in” and that “[t]he house is currently secured by the Department of Public Safety as a murder crime scene.” While the affidavit does not reveal the extent of prior searching activity, the nature of the house to be searched was such that the occurrence of prior investigative activity would no doubt weigh in the judge’s probable cause evaluation.
In concluding that Defendant has not shown by a preponderance of the evidence that probable cause could not be found with the omitted information included, we note that Defendant’s evidence nevertheless remains properly suited for presentation at trial. That is, although we find that a reviewing judge could have found it probable that contraband would be discovered on the premises even after weighing the additional information, we say nothing as to whether the trier of fact will be left with reasonable doubt when considering the same information upon review of the charge on its merits.
Order
For the forgoing reasons, we find the March 27, 2003 search warrant valid, and that the evidence obtained from the warrant need not be suppressed. Defendant’s motion to suppress is therefore denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486943/ | ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Background
On November 2, 2004, the people of American Samoa went to the polling booths to vote for candidates for the American Samoa House of Representatives. District #1, which encompasses the island of Ta'u, had two open seats. Plaintiff Mailo Saoluaga Nua (“Mailo”) and Mapu Puaopea Paopao (“Mapu”) were the two candidates with the most votes.
The American Samoa Election Office, by statute, is responsible for administering elections. A.S.C.A § 6.0103.1(a). The Election Office itself is headed by a Chief Election Officer. Id. The Chief Election Officer is saddled with the duty of acting as the final certifier of vote counts and election results. A.S.C.A § 6.0805. At the time of the November 2, 2004 election, Defendant Soliai T. Fuimaono was the Chief Election Officer (“CEO”).
Mailo claims that on the date of the election, poll-watchers observing the counting of the votes at the respective District #1 polling stations reported that he received a total of 457 votes while Mapu received a total of only 343 votes — making them the two top vote-getters. Mailo further claims that when the CEO later counted and certified the results, Mailo’s final tally was still 457, but Paopao’s total had increased to 497 votes. Thus, the final tally still showed Mailo and Mapu as the two top votegetters, but in the reverse order of the count seen by the pole-watchers. Mailo lastly asserts that the CEO refused to order a recount.
However, because District #1 had two open seats, the two candidates with the highest number of votes were allowed to take office. Thus, despite of the fact that the final tally showed Mapu ahead of Mailo in the *71vote count, Mailo was also sworn in as a duly elected representative for District #1 because he received the second most number of votes finally and officially recorded in the election. Therefore, the fact that Mailo may have had the highest number of votes during the initial count, but only the second highest number of votes during the final count, did not alter the ultimate conclusion that he was elected to represent District #1 in the House of Representatives.
Despite that fact, on November 9, 2004, Mailo filed a complaint with the Appellate Division,1 asking the court to issue a writ of mandamus ordering the CEO to conduct an election recount. On November 11, 2004, the Appellate Division issued an order of transfer, holding that the action did not belong in the Appellate Division because under A.S.C.A. § 6.0902 a candidate may only contest an election if correcting the alleged wrong would produce a “difference in the election results.” The Appellate Division reasoned that Mailo was not attempting to dispute the final results of the election; he was simply trying to adjust the final vote tally without altering who would take office. Therefore, the court further reasoned, his cause of action was not the type contemplated under A.S.C.A § 6.0902 and the case would more properly be heard in the Trial Division where, under A.S.C.A § 3.0208(a), it is given original jurisdiction over general writ requests.
On December 12, 2004, consistent with the Appellate Division’s order, Mailo filed an amended complaint in the Trial Division. Then, on January 10, 2005, the CEO filed a motion for summaiy judgment, claiming that the Trial Division also does not have jurisdiction over the claim, that Mailo does not have standing because no harm has occurred, and that Mailo’s issue is now moot. On February 18, 2005, we conducted a hearing on the motion for summaiy judgment.
Discussion
I. Standard of Review
Summary judgment is appropriate only when the pleadings and supporting papers show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56; Etimani v. Samoa Packing Co., 19 A.S.R.2d 1, 4 (Trial Div. 1991). In ruling on a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to the opposing party. *72Id.
II. Analysis
It is fundamental that a plaintiff must have legal standing before he is allowed to bring his lawsuit into court. See Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 386 (5th Cir. 2003). The United States Supreme Court has stated that “the irreducible constitutional minimum of standing” includes the principle that each plaintiff must have suffered an “invasion of a legally protected interest ...” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Therefore, a plaintiff lacks standing if he suffers an injury that is neither protected by the statutory or common law of a jurisdiction. Such an injury is not protected under the law and therefore a court does not have the jurisdiction to offer redress.
In the present controversy, Mailo arrived at the Trial Division after the Appellate Division held that he did not have a cause of action under American Samoa’s election contest statute, A.S.C.A. § 6.0902. Thus, according to the Appellate Division, Mailo is without statutory redress for his allegations of election-day impropriety. We agree with Appellate Division’s reasoning discussed above and conclusion.
We further find that Mailo lacks a cause of action under American Samoan common law. Other jurisdictions have held that because election contests were not recognized at traditional common law, they may only be remedied to the extent provided by local statute. See Young v. Mikva, 363 N.E.2d 851, 852 (Ill. 1997) (“The right to contest an election was not recognized at common law, and a court has no jurisdiction over such matters unless a statute so provides.”); State ex rel. Lydick v. Brown, 516 P.2d 239, 240 (Okla. 1973) (“There was no right to recount elections at common law, and the right to recount in Oklahoma is purely statutory.”). Therefore, consistent with those other jurisdictions, we hold that in American Samoa, an election contest may only be litigated to the extent provided under A.S.C.A § 6.0902. In other words, there is no common law right in American Samoa to bring an election contest outside of the statutory parameters.
In sum, even if Mailo’s allegations are true, he lacks a cause of action under both American Samoan statutory and common law and thus has not suffered “an invasion of a legally protected interest . . . .” Lujan, 504 U.S. at 560. In short, Mailo does not have standing and, therefore, summary judgment is appropriate.
*73Order
The CEO’s motion for summary judgment is granted. Summary judgment shall be entered in the CEO’s favor against Mailo. Mailo’s complaint is dismissed. It is so ordered.
Under A.S.C.A. § 6.0903, the Appellate Division has original jurisdiction over election contests. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486944/ | *74ORDER DENYING MOTION FOR NEW TRIAL BASED ON ALLEGED JURY MISCONDUCT
The Appellate Division of this Court, in Fiu v. American Samoa Gov't, AP No. 7-01, remanded this action to this Court for an evidentiary hearing on alleged jury misconduct and, if warranted by the evidence, for a new trial on the charges of rape, sexual abuse in the first degree, and kidnapping against Defendant. We conducted the hearing on February 14, 2005. Defendant and both counsel were present.
Having heard testimony and considered the evidence, we hold there was no jury misconduct and therefore deny Defendant Faai'u Fiu (“Fiu”) a new trial.
Discussion
If a jury in a criminal case obtains information not admitted into evidence, then the government has the burden to prove beyond a reasonable doubt that there is “no reasonable possibility that extrinsic evidence material could have affected the verdict.” United States v. Keating, 147 F.3d 895, 902 (9th Cir. 1998).
Fiu raised, and consistently pursued through the Februaiy 14, 2005 evidentiary hearing, a single factual basis of alleged jury misconduct. An alleged post-trial conversation between Defendant’s trial counsel Asaua Fuimaono (“Fuimaono”) and juror Elizabeth Puletasi (“Puletasi”) forms the factual basis for the claimed misconduct. The conversation, as initially described, is as follows:
Mr. Fuimaono asked Ms. Puletasi if she would tell him what influenced the juiy to return its verdict of guilty in the case because in Mr. Fuimaono’s estimation the Government’s case was rather weak. Ms. Puletasi informed Mr. Fuimaono that she felt sorry for Mr. Fuimaono because the jury was pretty much convinced the defendant was guilty due to their knowledge of the defendant and his reputation. She specifically stated the jurors knew the defendant had a reputation as a womanizer and that he had gotten women pregnant out of wedlock.
Motion for New Trial at 2. There is no other allegation that the jury may have improperly considered any other extrinsic information during its deliberations or engaged in any other misconduct.
*75Puletasi testified at the February 14, 2005 hearing. She unequivocally and consistently denied that, after the jury retired to deliberate on the verdict, any juror stated in the presence of any other juror that Fiu was reputedly a womanizer and had impregnated two women out of wedlock. She denied that any such extrinsic information caused her to feel sorry for Fiu or at least implicitly Fuimaono. Puletasi further denied saying anything along these lines to Fuimaono after the trial.
Fuimaono testified that he had a post-trial discussion with Puletasi during which she made the statements used as the basis for the juiy’s alleged consideration of extrinsic information about Defendant’s ways and character.
Because of Fuimaono’s testimony, Fiu urges us to give no credence to Puletasi’s testimony and therefore to disbelieve Puletasi’s denials of the alleged juror’s knowledge of extraneous information. Impeachment by prior inconsistent statements always puts some question into a witness’ truthfulness, but it does not require a factfinder to totally disregard the witness’ testimony. Puletasi was in the jury room during the jury’s deliberations. Fuimaono was not there. Puletasi’s demeanor as a witness was in no way evasive. Rather, she testified in a straightforward, positive and persuasive manner. No other juror’s testimony was offered to dispute Puletasi’s testimony. Evaluating the entire relevant circumstances, we find that Puletasi was a credible witness and that the jury was not informed of the alleged extrinsic information about Fiu’s ways and character.
We therefore conclude that jury misconduct, either as alleged by Fiu or in any other manner, did not occur in this action.
Order
Having determined that there was no jury misconduct, we deny Fiu’s motion for a new trial. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486945/ | OPINION AND ORDER
At a meeting held in the Village of Amanave on December 15, 2004, Plaintiff Pulefa'asisina P. Tuiasosopo (“Pulefa'asisina”) was unanimously selected by attendees to represent Lealataua County in the territorial senate. At a simultaneous December 15th meeting held in the Village of Poloa, Defendant Liua Taifane (“Liua”) was unanimously selected by attendees, including the county chief Defendant Ponemafua Auelua (“Ponemafua”), to serve on the same senate seat. Ponemafua, in his role as county chief, then certified the election of Liua, which was accepted by the Office of Samoan Affairs and forwarded to the Senate. On January 3, 2005, Liua was sworn in as the Senator from Lealataua County.
Pulefa'asisina brought action contesting Liua’s election, praying for declaratory and injunctive relief. Additionally, he seeks a writ of mandamus directing County Chief Ponemafua to certify the election of Pulefa'asisina, instead of Liua.
Discussion
The Revised Constitution of American Samoa provides that, “[sjenators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent.. .” and that “[t]he decisions of the members of the county councils of the counties concerned shall be certified by the county chiefs of such counties. REV. Const. Am. Samoa, art, II,§ 4. See also A.S.C.A. § 2.0203. While the Senate, under Art. II, Sec. 22, has exclusive jurisdiction to determine the results of a senate election, this court has exclusive jurisdiction to decide whether an election had in fact occurred in accordance with requirements of Art. n, Sec. 4. See Mauga v. Lutu, 10 A.S.R.2d 115, 118 (Trial Div. 1989) (citing Meredith v. Mola, 4 A.S.R. 773, 776-77 (Trial Div. 1973); Eseroma v. Faresa, 31 A.S.R.2d 169, 172 (Trial Div. 1997); Mulitauaopele v. Mata'utia, 31 A.S.R.2d 175, 176 (Trial Div. 1997).
Practice has it that the Lealataua County senate seat has in the recent past been rotated between the two subdivisions of Samatua and Tapua'iga. The Samatua division is said to consist of the villages of Amaluia, Asili, Afao, Nua and Se'etaga, while the Tapua'iga division comprises Agagulu, Fa'ilolo, Amanave, Poloa, Fagali'i, Malota, and Fagamalo. See *78Meredith, 4 A.S.R. at 775 n.2.1 At the initial meeting to address the county’s senate seat held by the two subdivisions in Poloa on December 4, 2004, the Samatua, consistent with the rotation understanding, withdrew from the meeting in favor of the Tapua'iga selecting the next senator from among its ranks.
There was no consensus, however, among the Tapua'iga at its December 4th discussions, with the meeting concluding on a discordant and unhappy note, to say the least. According to Plaintiff and his supporters, their Poloa meeting degenerated into a heated shouting bout after apparent attempts by the Poloa orators to set and steer the course of the meeting by asserting pule (traditional authority) over the proceedings. Subsequently, when Faletogo Taliloa, an orator of Fagamalo with tauto 'oto 'o (high talking chief) status attempted to notice, at the behest of Pulefa'asisina and others, a further meeting of the Tapua'iga, with Amanave as the venue, the Poloa tauto'oto'o were not to be outdone and maneuvered responsively to call a meeting themselves to ensure that venue remained at Poloa. To this end, the Poloa tauto'oto'o were successful in securing Ponemafua’s commitment to attend their meeting at Poloa, scheduled for the exact same date and time as the one already noticed and called for Amanave.
The inconsistent results arrived at by the separate December 15th meetings of the two Tapua'iga factions were never placed before, nor considered by, a joint gathering of the Tapua'iga and Samatua subdivisions, as a deliberative body. Rather, the result of the Poloa meeting alone was certified by the county chief and presented to the Senate without further ado. Following that, Liua assumed the senate seat for the Lealataua.
Quite obviously, the evidence falls hopelessly short of any sort of determination favorable to Liua’s claim that he was duly elected senator for Lealataua County, in accordance with law. The Village Council of Poloa does not, by any stretch of the imagination, translate into the *79multiple village councils of the Tapua'iga subdivision, just as it does not translate into the multiple village councils of the combined Tapua'iga and Samatua assembled. No amount of subjective spin on “Samoan custom” can take away one iota from the substantive requirements of the constitution, that “[sjenators shall be elected ... by the county councils of the, counties they are to represent....” Rev. CONST. Am. SAMOA, art, II,§ 4.
As the evidence before us progressed, it quickly became clear that the controversy between the parties had less to do with electing a senator but more about being in control of the electoral process. Hence the perceived importance of setting the venue, convening the county, and co-opting the county chief. Inevitably, the result was the farcical situation of concurrent electoral meetings in both Poloa and Amanave for the singular senate seat for the Lealataua County.
Despite the fact that a simultaneous meeting of other county council members was taking place in Amanave, and despite the fact that the attendees of the Poloa meeting were, with the exception of Ponemafua2, comprised only of members of the Poloa Village council, Liua nonetheless contends that he was appropriately elected as senator by the entire Lealataua County. The basis for his contention is a version of ‘Samoan custom” largely propounded by his witness and cousin Taifane Falani (“Taifane”), a tauto 'oto 'o, pertaining to Poloa. According to Taifane, Poloa is the customary venue for Lealataua County council meetings, and as such, the orators of Poloa were, therefore, the only appropriate tauto 'oto 'o to convene county meetings in accordance with the custom of the county.3 Extending this argument, defendants reason that because Poloa is the “usual meeting place” for county council gatherings, and that because the Poloa meeting, attended by Ponemafua, resulted in a consensus for Liua, and since Ponemafua certified Liua, Liua was, therefore, elected senator for Lealataua County.
Liua’s claim has no basis whatsoever in fact or law. As this court has noted on numerous occasions in the past, and as the Defendants must also be well aware, Art. II, Sec. 4 requires that “the ultimate election of the senator must come from the county council as a whole deliberative body and not from the council of a subdivision of that county.” Mauga, 10 ASR.2d at 119; see also Meredith, 4 A.S.R. at 780-81. Clearly then, the Villages of Poloa and Fagali'i — if Ponemafua can be regarded as *80constituting the Fagali'i Village council — are not empowered by law, as mere constituents or sub-parts of the Tapua'iga, to elect the Lealataua County’s senator. Rejecting a similar tactic advanced by a faction of the Maoputasi County in the Mauga case, the court there explained:
the contention ... that the customary decision-making process, as spoken of in the Constitution, includes an ability in the county to delegate completely that decision making to a mere sub-division of the county is simply untenable. The logical consequence of such an argument is that a new custom — nay even a bad habit or ill conceived practice — inconsistent with the requirements of the Constitution, will have the practical ability of repealing explicit and unambiguous provisions of the Constitution.
Id. at 120. To sanction such a practice would be to make a “mockery of the Constitution,” id., and we are not so inclined.
Although Ponemafua agreed to certify the results of the Poloa meeting, we hold that he lacked the authority to do so absent a decision reached by the county council as a whole, which includes not only those present in Poloa, but those also present in Amanave, as well as the Samatua, who were awaiting a conclusive outcome to the Tapua'iga deliberations. The county chief must be clear that his certification role in a senate election is “purely a ministerial duty,” involving “no discretion whatsoever . . .” Lualemaga v. Tuiolemotu, CA No. 2504-72, slip op. at 2 (Trial Div. Jan. 8, 1973). Otherwise, if the county chief was able to “inject his own wishes, opinions, or conclusions ... then meetings of the county council would be meaningless and futile, for the county chief could overturn their decisions arbitrarily.” Id. at 3. See also Meredith, 4 A.S.R. at 778-78. Thus the deliberative body of the county council makes the decision for the county chief, and not the other way around. See Mauga, 10 A.S.R. 2d at 119 (observing that election by the county does not mean the appointment of a senator by one individual of the council); Meredith, 4 A.S.R, at 781 (stating that “the choice of senator lies solely with the county council”). Since there was no decision by the whole Lealataua County council electing Liua as senator, Ponemafua could not validly certify him.4 Mulitauaopele, 31 A.S.R.2d 175, 179 n.3 *81(Trial Div. 1997).
Conclusion and Order
We are satisfied on the evidence, and accordingly find, that Liua was not at all elected by the Lealataua County council and conclude that “[t]he process by which [he] was purportedly elected [was] patently unconstitutional. Mulitauaopele at 178.
At the same time, we cannot find and conclude that the Amanave meeting, favoring Pulefa'asisina’s candidacy, satisfies the constitutional requirement that the senator for Lealataua be elected by the entire county council. Rev. Const. Am. Samoa, art, n,§ 4. Accordingly, Pulefa'asisina’s claim is without merit and his prayer for injunctive relief and for mandamus is denied.
With no county decision having been reached, we declare the Lealataua senate seat to be vacant and remand accordingly to the Lealataua County Council.
It is so ordered.
We note, however, that the constitution is silent on a definition of “Senate District Lealataua.” See Rev. CONST. Am. Samoa, art, II,§ 4; A.S.C.A. § 2.0203. The court in Meredith defined, without elaboration, “Senate District Lealataua,” by resorting to the constitution’s definition of House District, “Representative District No. 14, Lealataua,” contained in Rev. Const. Am. Samoa, art, II,§ 2. See Meredith, 4 A.S.R. at 775. Cf. A.S.C.A. § 5.0102(2) which, for County Government purposes, defines the “County of Lealataua,” as “that portion of the Island of Tutuila which includes the villages of Afao (including the settlement of Atauloma), Amaluia, Amanave, Asili, Fagalii, Fagamalo, Agagulu and Failolo, Leone, Poloa, Nua and Seetaga.” [Emphasis added].
Ponemafua is a High Chief in his own right with fa'asisina (ranking chiefly) status from Fagali'i Village.
Not surprisingly, this view is strongly opposed by their non-Poloa counterparts, as evident with the testimony of Pulefa'asisina’s witness tauto 'oto 'o Faletogo from Fagamalo Village.
Defendants attempted to bolster Liua’s senate claim by pointing out that other county matai, who were not even at the Poloa meeting, had subsequently endorsed Liua’s candidacy by adding their signatures to the county chiefs certification. These post-meeting certification attempts are nothing more than an exercise in futility; entirely ineffectual and irrelevant. If the electoral process is allowed to admit later consideration of hypothetical circumstances as to how an individual elector would have *81sided, had they attended the council meeting, there is no integrity with that process and certainly no finality to senatorial elections. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486946/ | *83ORDER DISMISSING NON-LEGAL ENTITY, DENYING SUMMARY JUDGMENTS, AND GRANTING LEAVE TO AMEND
Introduction
On April 20, 2002, a fire occurred in Laufou Shopping Center allegedly destroying the inventory of Plaintiff Swiss Jewelers (“Swiss”). On April 19, 2004, Swiss filed a negligence action against Defendants Forsgren Ltd., Inc. (“Forsgren”) and Laufou Shopping Center (“Laufou”) maintaining that the inventory damage was caused by a negligently maintained electrical system. On September 2, 2004, Swiss filed and served upon all parties an amended complaint adding as Defendants American Samoa Government (“ASG”) and American Samoa Power Authority (“ASPA”). On October 1, 2004, Defendants ASG and ASPA filed a joint motion for summary judgment based on the statute of limitations and doctrine of laches. On November 1, 2004, Forsgren and Laufou filed a motion to dismiss or motion for summary judgment based upon: (1) insufficient service of process; (2) statute of limitations; (3) the doctrine of laches; and (4) as to Laufou, that the shopping center is not an entity capable of being sued.
In accordance with our discussion of these claims in greater detail below, we conclude that Forgren’s and ASG and ASPA’s motions are denied, and the motion to dismiss Laufou is granted.
Discussion
I. Standard of Review
In the present matter, in light of the parties’ submissions and claims, we treat the parties’ motions as motions for summary judgment. If on a motion to dismiss a cause of action for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. T.C.R.C.P. 12(c). A court should award summary judgment where the pleadings and supporting materials show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). In deciding upon a motion for summary judgment, the Court must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party. See Lokan v. Lokan, 6 A.S.R.2d 44 (Trial Div. 1987).
*84II. Laufou’s Legal Entity Status
Swiss and Forsgren agree that Laufou is not a separate legal corporation, partnership, or unincorporated association capable of being separately sued, and acknowledge that it is a fictitious name used by Forsgren to conduct business at the shopping center. This being the case, we dismiss Laufou as a proper party to this action.
III. Forsgren’s Motion for Summary Judgment
Forsgren first contends that Swiss’ claim fails for failure to comply with the appropriate statute of limitations period. We disagree. Swiss filed its initial complaint with the court on April 19, 2004, virtually on the two year anniversary of the April 20, 2002 fire which gave rise to the cause of action. On September 2, 2004, nearly two years and four months after the fire, Swiss filed an amended complaint. Swiss served the amended complaint on Forsgren on September 17,2004.
Forsgren argues that the applicable limitations period is A.S.C.A. § 43.0120(2), stating that “actions founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statutory penalty, within 2 years.” Swiss, on the other hand, maintains-that A.S.C.A. § 43.0120(2) is not applicable and that its complaint was timely filed within the requisite three year limitations period. We agree with Swiss. Under A.S.C.A. § 43.0120(3), the limitations period for “actions founded on unwritten contracts, or brought for injuries to property, [is] within 3 years.” Because the tort claim relates to the fire damage caused to Swiss’ property, we regard the claim against Forsgren as an injury to property action with an applicable three year statute of limitations period.
Forsgren additionally argues, and submit affidavits to the effect that, because Swiss never had a summons issued on its original April 19,2004 complaint, or provided Forsgren with a copy of it, the original complaint is invalid. We agree. Forsgren correctly points out that although there is no specific time limit for service of summons under local statutes or rules, A.S.C.A § 43.0201(a) holds that “[i]n the High Court, the civil practice shall conform, as closely as practicable, to the practice provided for in the Federal Rules of Civil Procedure.” In turn, Fed. R. Crv. P. 4(m) holds that:
*85[i]f service of the summons and complaint is not made upon the defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Recognizing that the “good cause” standard is restrictive, we see no reason to excuse Swiss’ failure to serve, and find Swiss’ original complaint inapplicable to Forsgren.
Nevertheless, we disagree with Forsgren’s resulting conclusion that because the original complaint was invalid the amended complaint must also be disregarded. We note, as does Forsgren, that where a plaintiff has failed to serve process on a defendant, in effect, no action had been commenced. See Application of the Royal Bank of Canada, 33 F.R.D. 296, 299-303 (S.D.N.Y. 1963). Thus, while we agree with Forsgren’s position that an amended complaint cannot relate back to cure a defective original complaint, where, as in this case, the original complaint was not properly served, we will regard the amended complaint as Swiss’ first complaint.1 See also In Re Chauss Securities Litigation, 801 F. Supp. 1257, 1261 (S.D.N.Y. 1992). Because the September 2, 2004 “amended complaint” was filed within the three year statute of limitations period for tort actions for property damage, was served on September 17, 2004, states a short and plain statement of the claim showing that the pleader is entitled to relief, and demands judgment for the relief to which he deems himself entitled, we regard Swiss’ amended complaint as having been a timely filed and served first complaint against Forsgren as a party. T.R.C.P. 8(a).
As we now regard the “amended complaint” as a valid first complaint, Forsgren’s concerns that it raises issues not mentioned in the earlier improper filing or that it was filed without leave of court are now moot. Regarding laches, Forsgren has not demonstrated prejudice resulting from unreasonable delay on Swiss’ part in asserting its claim against Forsgren within the three year statute of limitations period.
*86To the extent that the September 2 complaint was served without supporting attachments, as Forsgren maintains, we will now grant leave for Swiss to amend its complaint so as to properly include the necessary materials.
IV. ASG/ASPA Joint Motion for Summary Judgment
ASG and ASPA jointly move for summary judgment arguing that Swiss’ claim states no genuine issues of material fact because it is barred by the statute of limitations and the doctrine of laches. See T.C.R.C.P. 56(c). We disagree. Under the Government Tort Liability Act (“GTLA”), a plaintiff, as a prerequisite to filing a claim in court, must submit the claim to the Attorney General for review. A.S.C.A. § 43.1205. Only after the Attorney General denies the claim, or fails to address the claim within a three month period may a plaintiff then file that claim with the court. Id. However, once the plaintiff is eligible to file a claim in court, A.S.C.A. § 43.1204 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.”
As we have described in past cases this current statutory scheme on its face creates a strange result. Interpreting the word “claim” as a “cause of action,” we have construed the § 43.1204 statute of limitations period to begin when the administrative claim has been finally denied by the Attorney General within the meaning of § 43.1205 and where a plaintiff becomes eligible to pursue a cause of action in court. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48, 56 (Trial Div. 1990); Randall v. American Samoa Gov’t, 19 A.S.R.2d 111, 116 (Trial Div. 1991). In Randall, we noted that our reading of § 43.1204 can have “the odd effect of giving injured persons an indefinite amount of time in which to sue, since the Government Tort Liability Act does not explicitly specify a time for bringing administrative claims.” Id.; see also Bradcock v. American Samoa Gov’t, 28 A.S.R.2d 66, 68 (Trial Div. 1995). Thus, for example, where a person injured by a private person would be required to bring suit within two years after they knew or should of known of the injury under § 43.0120(2), if that person were instead injured by a government employee, he could theoretically “dawdle indefinitely,” waiting one year, two years, or even longer before making an administrative claim with the Attorney General, and then have an additional two years to file a claim in court under § 43.1204 limitations period after than claim was denied.
Although we have repeatedly emphasized that this statutory ambiguity requires action by the Legislature, we have determined that prior to his eligibility to file suit in court, a plaintiff carries a legal duty to file administrative claims within a “reasonable time” or those claims will *87be barred by the doctrine of laches. Bradcock, 28 A.S.R.2d at 68. In Bradcock, the plaintiff waited nearly 21 months before filing an administrative claim with the Attorney General, and nine months before filing a suit in court after his administrative claim was denied. Id. We concluded that this overall “unreasonable” delay barred his claim under the doctrine of laches. Id. at 69. In Bradcock v. American Samoa Gov't, 28 A.S.R.2d 182 (Trial Div. 1995) (“Bradcock IF), we expanded upon the reasoning of the holding in Bradcock. In Bradcock II, we recognized the absurdity of allowing a period of almost two years prior to the filing of the administrative claim, and then an automatic fresh two year period following the denial of the administrative claim, concluding that the legislative intent of § 43.1204 was not to create a four year statute of limitations period. Id. at 183-84. In turn, we concluded that the statute of limitations period may be applied by analogy as a guide to the court’s laches analysis. Id. at 185. Under this view, when looking at the “reasonableness” of the plaintiffs delay, a court should take into account the total delay, both in bringing an administrative claim, and in bringing suit once the claim has been denied, ordinarily limiting litigants “to some overall period resembling the two-year statute of limitations . . . taking into account the extra time required for exhausting administrative remedies.” Id. at 185.
In the present case, the fire occurred on April 20, 2002, and Swiss maintains that the alleged negligence was not initially discoverable until June 7, 2002, upon release of a report detailing the circumstances of the fire by the Department of Public Safety. On April 19, 2004, nearly two years to the day of the fire, Swiss submitted its administrative claim to the Attorney General pursuant to A.S.C.A. § 43.1205. On that same day, Swiss filed its initial complaint with the court. Swiss failed to receive a response from the Attorney General’s office upon the expiration of the requisite three month period, on or about July 19, 2004. Swiss then filed his current amended complaint on September 2, 2004, approximately a month and a half after the two years and exhaustion period following the fire.
We acknowledge that we cannot consider Swiss’ initial April 19, 2004 complaint against ASG and ASPA, for it was filed prior to the exhaustion of administrative remedies under A.S.C.A. § 43.1205. Similarly were we to conclude that Swiss’ September 2, 2004 amended complaint were to “relate back” to Plaintiffs original filing, for the same reason we could not exercise jurisdiction for failure to exhaust administrative requirements. See Randall, 19 A.S.R.2d at 118. However, if we instead regard Swiss’ amended complaint against ASG and ASPA as a new complaint, Swiss’ complaint is not barred. Had Swiss’ amended complaint been filed months or years after the original complaint, it might be barred either by the § 43.1204 two-year statute of limitations *88period, or by the Bradcock II doctrine of laches. In the current case, however, Swiss’ delay does not appear to be a conscious strategy to extend the GTLA limitations period well beyond two years, but instead appears to substantially comply with it. Swiss filed its administrative action and initial complaint almost exactly on the two year anniversary of the fire. In addition, were we to accept that Swiss did not become aware of possible negligence until June 7,2002, over one month and a half after the fire, Swiss’ filing of its amended complaint would fall within the two years and three months contemplated by the combined limitations and exhaustion periods. Consequently, upon analyzing the “reasonableness” of Swiss’ delay, we conclude that by regarding its amended complaint as a new cause of action, it has properly pursued litigation within a “reasonable period” to sustain a cause of action against ASG and ASPA.
Order
1. Forsgren and Laufou’s motion to dismiss Laufou as a party is granted as Laufou is not an entity capable of being sued.
2. Because Swiss’ amended complaint may be independently regarded as a timely and properly served complaint filed within the requisite three year statute of limitations period, we deny Forsgren’s motion as it pertains to improper service, statute of limitations, and doctrine of laches, but grant Swiss leave to amend in order to properly serve attachments.
3. Similarly, because Swiss pursued litigation against ASPA and ASG within a reasonable period resembling the overall two year and three month combined limitations and administrative exhaustion period, Swiss is not barred by either the statute of limitations or the doctrine of laches to bring suit against ASG or ASPA.
It is so ordered.
In this sense, although we are “dismissing” Swiss’ original complaint, we are doing so under the logic that the original complaint never actually commenced. For this reason, we emphasize that in “dismissing” the original complaint, we do not seek to adjudicate Swiss’ claims on the merits based on the flawed filing. See T.R.C.P. 41(b). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486947/ | *91ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND GRANTING MOTION TO DISMISS FOR FAILURE TO PROSECUTE
Introduction
In July 1991, Defendant Bernard Gurr, Jr. (“Gurr”), the former manager of Plaintiff American Samoa Government Employees Federal Credit Union (“ASGEFCU”), signed a promissory note payable to ASGEFCU, a federal credit union operating in the territory, in the principal sum of $20,261.63, with an annual interest rate accruing at 14% on the unpaid principal. Gurr secured this debt by giving ASGEFCU an interest in Gurr’s 1991 Ford Taurus station wagon. In August 1992, Gurr signed a Fixed & Mortgage Note to secure a loan from ASGEFCU in the principal sum of $130,544.28, with an annual interest rate of 10% on the unpaid principal. In September 1992, Gurr signed a mortgage giving ASGEFCU a security interest in his allegedly individually owned land in Maloata village for the August 1992 loan. In May 1993, Gurr obtained an additional loan in the principal sum of $1,565.90 from ASGEFCU, with interest accruing annually at 18% on the unpaid principal.
In October 1993, the National Credit Union Administration Board (“NCUAB”), an agency of the United States Government, ordered ASGEFCU into conservatorship, with itself appointed as the conservator. That month, NCUAB filed CA No. 117-93, applying for permanent injunctive relief against Gurr and his co-defendants, members of the ASGEFCU board of directors, requesting that they be restrained from entering ASGEFCU premises and comply with the conservatorship order, which granted the NCUAB with authority to possess and control all ASGEFCU property and assets. In January 1994, a default judgment was entered granting the permanent injunctive relief against all named defendants except Gurr, who had answered and counterclaimed.
Also in January 1994, ASGEFCU filed three separate actions, DCCA No. 6-94 and CA Nos. 8-94 and 16-94, alleging that Gurr had defaulted on the three loans. ASGEFCU moved for, and we granted, consolidation of these actions. Although in his answers Gurr did not dispute that ASGEFCU has a security interest and a right to take his land, residence, or vehicle, he challenged ASGEFCU’s right to prejudgment and post-judgment interest and attorney’s fees related to such loans. Moreover, Gurr counterclaimed that he was unable to make his payments based on ASGEFCU’s wrongful conduct in failing to issue him paychecks, and failing to accept checks in his possession as payment after he vacated his employment with ASGEFCU. ASGEFCU moved to dismiss Gurr’s counterclaims, which we denied in June 1994.
*92In March 1994, Plaintiffs Laisene Gurr (“Laisene”) and John Gurr (“John”) filed LT No. 13-94 for themselves and on behalf of heirs of Bernard Gurr and Teuila Halliday (collectively “the Gurr Heirs”), applying for a permanent injunction preventing foreclosure on the land used to secure the $130,544.28 loan. The Gurr Heirs claimed that the land in question belonged to the estates of Edwin and Fanua Eleitino Gurr, which had not yet been probated, that Gurr did not have an entire interest in the land and that therefore Gurr lacked the authority to offer the land as security for the loan. We enjoined the non-judicial foreclosure of the land during the pendency of our consideration of ASGEFCU’s motion to dismiss the three consolidated actions, enjoined the heirs from conveying, further encumbering, or otherwise disposing of the land at issue, and later consolidated this action and CA No. 117-93 with the other three.1
In September 2004, over a decade after filing its actions and our denial of the motion to dismiss, NCUAB, ASGEFCU’s successor,2 resuscitated this case by filing a motion for summary judgments on behalf of ASGEFCU with regard to CA Nos. 8-94 and 16-94, and DCCA No. 6-94, the three loan default actions. In November 2004, Paddy Walker, an heir of Edwin Gurr, moved for permission to intervene and to require joinder of all of his heirs in these consolidated actions. Also in November 2004, Gurr, joined by Laisene and John in a separate motion, moved to dismiss all consolidated actions for NCUAB and/or ASGEFCU’s failure to prosecute under T.C.R.C.P. 41(b). We heard the motions for summary judgment, intervention, joinder, and dismissal on November 12, 2004. We now deny the motion for summary judgment and grant the motions to dismiss for failure to prosecute.
Discussion
Pursuant to T.C.R.C.P. 41(b), “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” No *93precise formula exists as to what circumstances justify granting such a motion, and courts must use their discretion to examine the procedural history of each case, remaining mindful of the public policy that favors hearing a claim upon its merits. See Davis v. Operation Amigo, Inc., 378 F.2d 101 (10th Cir. 1967); see also Kane v. Country Comfort, 10 A.S.R.2d 16, 17 (Trial Div. 1989). Some factors to consider when entertaining such a 41(b) motion include: (1) the duration of plaintiffs failures or a history of dilatoriness; (2) whether conduct of plaintiff was willful or in bad faith; (3) whether plaintiff had received notice that further delays would result in dismissal; (4) whether defendant was likely to be prejudiced by further delay; and (5) the efficacy of lesser sanctions. Patterson v. Newspaper and Mail Deliverers' Union of New York and Vicinity, 884 F. Supp. 869 (S.D.N.Y. 1995); see also Andrews v. Gov’t of Virgin Islands, 132 F.R.D. 405, (D.V.I. 1990).
In Kane, we found that the plaintiffs failure to amend his pleading for a period of two years, based in part on his claim that no headway could be made in the case in the absence of an effective on-island expert witness, did not warrant dismissal. 10 A.S.R.2d at 17. We concluded that although the plaintiff indeed neglected his case, when judged against the usual standard of diligence with which lawsuits in American Samoa have been prosecuted, this delay was not too prejudicial to outweigh the policy favoring adjudication on the merits, and instead we awarded the defendant fees incurred in connection with its motion to dismiss. Id.
In the current case, however, by talcing into consideration the factors above, we think dismissal is appropriate. First, NCUAB has delayed pursuing this case for over a decade. ASGEFCU filed the first of its complaints in this consolidated matter in October 1993, and since June 1994, when we issued an order denying NCUAB’s motion to dismiss Gurr’s counterclaim, NCUAB has taken no action in this case until this year.
Second, NCUAB has maintained in its submissions and at hearing that its delay has been willful and deliberate, stating that it postponed filing its present summary judgment motion pending the outcome of a federal criminal prosecution against Gurr for offenses related to his actions as ASGEFCU’s manager, but not directly related to these territorial civil actions. Gurr was convicted and, in November 2003, sentenced for his federal crimes. This explanation for NCUAB’s delay for more than 10 years is not persuasive justification for its lengthy inaction. Resolution of the federal criminal prosecutions have no direct bearing on Gurr’s contractual obligations to repay borrowed funds, regardless of whether NCUAB could properly foreclose on the property used to secure the loans. Moreover, although we hold NCUAB to its word that its delay has *94been deliberate, we harbor doubt to its explanation, as NCUAB brings its present summary judgment motion nearly a year after Gurr’s sentencing.
Turning to a third factor, though this court has not, in the past, notified NCUAB that further delays would result in dismissal of these actions, we have not, in part, had an opportunity to do so. Upon revival of this matter, we did, when the summary judgment motion first came for hearing on October 22, 2004, and when it was substantively heard on November 12, 2004, suggest that such a motion could be validly pursued. However, that NCUAB has not delayed in presently pursuing its motion after we raised the Rule 41(b) issue, leans somewhat in NCUAB’s favor.
Fourth, and most importantly, Gurr has been genuinely prejudiced by NCUAB’s delay. In CA No. 117-93, in which Gurr encumbered the land in Malaota for the $130,544.28 loan, NCUAB seeks $128,366.77 in overdue principal, accumulated prejudgment interest at the rate of $34.67 per day from the January 1994 filing to judgment date, contractual interest at the 10% annual rate from the date of judgment on the entire judgment amount, and the option of judicial foreclosure on the mortgaged property to account for the overdue balance. Not only has the failure to prosecute unnecessarily left open the possibility that Gurr will be subject to extremely excessive accruals in interest than had this case been litigated earlier, but in the failure to earlier resolve the issue of whether the property has been properly encumbered, the Gurr family’s land has been unnecessarily clouded by impending foreclosure for over a decade, impacting the ownership status and market value of the land.
Considering the balance of these factors, we conclude that the lengthy duration of delay, its willfulness, and its prejudicial effect warrant dismissal. Although we could seek a lesser sanction than dismissal, such as a grant of award of attorney’s fees in connection with the motions to dismiss, as we did in Kane, there comes a point at which a plaintiff must face the consequences of its dilatoriness. In Kane, our evaluation that a two year delay did not warrant dismissal was based on a local standard of diligence in which lawsuits are prosecuted within the territory. In the present case, however, not only has NCUAB delayed over eight years longer than the plaintiff in Kane, but because it has done so at the behest of inaction by an agency of the federal government taking control of the consolidated actions, we see no reason to allow NCUAB to take advantage of any more lax locality standard of diligent prosecution. Moreover, if we are not willing to dismiss an action for failure to prosecute in a case as extreme as this one, where a party has willfully delayed prosecution for over 10 years, we would be setting the standard of diligent prosecution in the territory far too low, essentially rendering the Rule 41(b) “failure to prosecute” language meaningless.
*95NCUAB does correctly observe that only “unreasonable” delay, and not the mere lapse of time alone, warrants dismissal under the rule. See Cherry v. Brown-Frazier-Whitney, 548 F.2d 965 (D.C. Cir. 1976) (noting that speed simply for the sake of speed is not the purpose to be served by the rule allowing dismissal for failure to prosecute). Nevertheless, we think that NCUAB’s delay has been “unreasonable” because, as we described above, its delay has been deliberate without reasonable justification and prejudicial to Gurr and the Gurr family heirs beyond the mere burden of the delay itself. See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001); Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980) (actual prejudice is an important factor in deciding whether a given delay is unreasonable).
Order
We recognize that a court has a strong interest in hearing a case on its merits. But, so, too, must the court determine that under certain circumstances this policy is outweighed by the lack of reasonable justification and the risk of prejudice to defendants caused by prosecutorial delay. Having considered these competing policy considerations in light of the facts in these actions, we deny the ASGEFCU’s motion for summary judgment and dismiss all of the consolidated actions for failure to prosecute. It is so ordered.
The High Court’s Land and Titles Division of this Court has exclusive jurisdiction over all controversies relating to land. A.S.C.A. § 3.0208(b). Accordingly, the six consolidated actions are transferred to this division.
ASGEFCU is no longer in existence, and was liquidated and taken over by NCUAB after the 1993 order of conservatorship. NCUAB acknowledges that it has not been formally substituted as a party in place of ASGEFCU in this matter, but “prosecutes the case in the Credit Union’s name.” Although we are concerned whether NCUAB has the authority to act on ASGEFCU’s behalf absent formal substitution, we do not address the issue in our opinion, as our holding turns on facts unrelated to NCUAB’s authority. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486948/ | *97OPINION AND ORDER
Background
The Congregational Christian Church in Amouli (“CCCAS”) came to an agreement with HEPA Green General Construction and its proprietor Manuele Green (“Green”), whereby Green agreed to build the CCCAS’s newest church and pastor’s residence in Amouli. The negotiations took place during the summer of 1998. At the end of July and beginning of August of that year, the parties met several times to discuss their proposed agreement and ended up producing three separate documents. Each document appeared to be a final and complete contract, signed by both parties, but containing different terms.
The first document, dated July 28, 1998 (July 28 document), is the least detailed of the three purported agreements. Green delivered the signed July 28 document, entitled “Contract Agreement,” to CCCAS’s Reverend Elder Leatulagi Fa’alevao (Fa’alevao), who then put his own signature on it. The July 28 document does not specify a contract price or a completion date for the construction of the church buildings. The document does, however, specify that the CCCAS should pay 50% of the contract price up-front and the other 50% upon completion of the project. Additionally, the document provides that Green shall furnish all materials and services needed to construct the buildings.
The next day Green sent a letter to Fa’alevao, entitled “Work Proposal,” which stated that Green was submitting a proposal for the job. The work proposal stated that Green would build the church structures for $397,850.00, but had an “open mind for negotiation.”
On August, 2 1998, the second of the three possible contracts was prepared (August 2 document). On that date Fa’alevao, members of the church and Green met to discuss the construction agreement. At the end of the meeting, and despite the presence of the earlier July 28 document’, Fa’alevao drafted the August 2 document and had it signed by Green, himself and other leaders of the church. The August 2 document is entitled “Contract Agreement For Construction of the Amouli CCCAS Building.”
The August 2 document contains different and additional terms than the earlier July 28 document. The July 28 document did not specify a contract price, but the August 2 document cites the $397,850.00 figure suggested in Green’s July 29 letter. Also, where the July 28 document stated that CCCAS shall provide 50% of the contract price up-front, the August 2 document states that the church shall provide 50% of the contract price “as the work proceeds,” including a $45,000 initial *98payment, and the remaining 50% at the completion of the project. Lastly, where the July 28 document did not specify a date of completion, the August 2 document stated that project should be finished within seven months unless “complications” occurred whereby Green would be given a two month grace period.
Consistent with the August 2 document, CCCAS made the initial $45,000 payment the next day, on August 3,1998.
However, on August 4, Green came to CCCAS with yet another document (August 4 document). Green brought this document to Fa’alevao and, telling Fa'alevao that the August 4 document was identical to the August 2 document, asked Fa’alevao to sign it. Fa'alevao and other church leaders signed it.
However, in truth, the August 4 document provided different terms than the previous documents. The most prominent and material alterations dealt with the manner of payment and the date of completion. Where the August 2 document provided that the initial 50% payment would be paid “as the work proceeds,” Green made sure that the August 4 document stated that the initial 50% payment would be up-front in its entirety. Also, where the August 2 document stated that the project must be completed within seven months, with a two month grace period, the August 4 document provided that the work must be “substantially completed” within seven months, except that the time of completion would be contingent on “strikes, accidents, performance of subcontractors, availability of materials and other delay beyond Contractor’s reasonable control.”
Green drafted the August 4 document and Fa’alevao and the others signed the document, despite the fact that within the past seven days, the parties had already drafted and signed two other documents, each document claiming on its face to be the final representation of the deal.
Then, on August 17, 1998, Green initiated construction on the CCCAS property, despite the fact that it should have been unclear to each of the parties which of the three documents, and its unique terms, represented the final agreement to the deal.
On October 6,1998, CCCAS made the first of what would be 18 separate payments to Green, the last on July 10, 2000, nearly 2 years after the signing of the three documents. Between those 18 separate payments, CCCAS put forth a total of $191,033.401 towards the only specified contract price, roughly 48% of that $397,850.00 amount.
*99During that nearly two year span, Green continued to work on the church premises, but, as of the date of that final My 10, 2000 payment, the project had yet to be completed.
The deal officially collapsed when, on Mie 28, 2000, CCCAS sent a letter to Green, informing him that it was terminating the contract because he had failed to complete the project in the time specified. CCCAS further informed Green that neither he nor his workers were to enter the CCCAS property or remove their tools and materials from the premises. CCCAS then hired other contractors to finish the church.
On April 11, 2001, Green filed the current breach of contract suit, alleging that CCCAS violated the agreement by not paying Green as was specified under the contract and was illegally holding Green’s equipment. Defendants responded to the complaint, and filed a counterclaim, contending that their payment scheme was consistent with the contract and that they finally stopped payment because Green was in breach by failing to complete the church within the time specified in the agreement. On November 18 and November 22, 2004, we held a trial on the matter.
Discussion
Our discussion will be broken into two parts. First, we will analyze the three documents to determine which one of them represents the parties’ final contract. Second, we will apply the facts of the case to that contract to establish whether either of the parties is in breach.
I. What are the Binding Terms of the Agreement?
On three separate occasions, in a seven day span, the parties drew up and then signed a document which appeared to be a contract. However, each of those three documents contained different terms. Therefore, the question is, between the three documents, what are the actual binding terms to the agreement?
On My 28, 1998, the parties drafted the first of the three documents. However, we can disregard the My 28 document because it does not appear that the parties mutually assented to the deal at that time. “[A]n essential prerequisite to the formation of a contract is an agreement: a mutual manifestation of assent to the same terms.” JOHN D. Calamari, Joseph M. Perillo, The Law of Contracts 25 (1998). An important part of the concept of “mutual assent” is the idea that the parties must intend to enter into a final and complete agreement. See, e.g., Dohrman v. Sullivan, 220 S.W.2d 973, 975 (Ky. 1949) (stating that *100intent to enter a “final and complete” agreement is “essential” to the formation of a contract). If facts surrounding a particular writing indicate that the parties planned to further negotiate the deal, then the parties have not mutually assented to that writing and it is not a binding contract. See Garaets v. Halter, 588 N.W.2d 231, 234 (S.D. 1999) (holding that “[ejnsuing negotiations evidence absence of intent that the purchase agreement constitutes a final and complete agreement”); Intermountain Forest Management Inc. v. Louisiana Pacific Corp., 31 P.3d 921, 925 (Idaho 2001) (holding that an important element in finding the intent necessary to form a contract is “whether the negotiations indicate that a written draft is contemplated as the final conclusion of negotiations”).
In the current controversy, it does not appear that Green felt that the July 28 document was a final and binding agreement. The day following the July 28 document, Green sent a letter to CCCAS stating that he was submitting a proposal for the construction job and further stating that his proposed bid amount was still open for negotiation. If it was Green’s intent to sign a final and binding agreement on July 28, he would not have sent to CCCAS the “Work Proposal” the very next day, stating that the deal was still open for negotiation. Moreover, no church leaders besides himself signed the July 28 document, a prerequisite to entering a CCCAS contract according Fa'alevao. Thus, Green and CCCAS did not mutually assent to the July 28 document and therefore its terms are not binding upon the parties.
The August 2 document, on the other hand, allows for a much more compelling argument for mutual assent. In preparation of that document, all of the material parties to the contract met to discuss the terms of the deal. At the end of the discussion, Fa’alevao drew up the August 2 document, adding the previously absent terms relating to the contract price and the date of completion. Then, Fa’alevao, several other church leaders, and Green signed the agreement. The parties even went to the trouble of appointing two attendees of the meeting to observe the ceremony and sign their own names to the agreement as witnesses. These acts are consistent with what parties would do when their intent is to form a final and binding written agreement.
Then, on August 3, 1998, consistent with the terms of the August 2 document, CCCAS gave Green a $45,000 down payment for the construction of the church buildings. By offering the $45,000 down-payment, CCCAS indicates a understanding that the August 2 document is final and binding; and Green, by accepting that payment, indicates a similar understanding.
*101The circumstances surrounding the August 4 document, the third and final of the relevant documents, does not suggest that the parties mutually assented to the terms of that document. Green drew up the August 4 document, knowing that its terms were materially different than the August 2 document, and then brought it to Fa’alevao, telling him that its terms were identical to their previous agreement. Such circumstances raise the issue as to whether the August 4 document was procured through the use of fraud.
Fraud is “[a]n intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.” BLACK’S Law DICTIONARY 594 (5th ed. 1979). When a party to an agreement makes a false representation relating to an essential term of the agreement which induces the other party to sign the contract, the defrauding party has committed fraud in the ‘execution’. Mailo v. Aumavae, 30 A.S.R.2d 175, 177 (Lands & Titles Div. 1996); Sandvik AB v. Advent Intern. Corp., 220 F.3d 99, 109 (3d Cir. 2000) (stating that fraud in the execution is present when a party enters into a contract “with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms”); Restatement (Second) of Contracts § 163 (1979). Under such circumstances a party is led to believe that “he is assenting to a contract entirely different from the proposed contract." Iron Workers' Local No. 25 Pension Fund v. Nyeholt Steel, Inc., 976 F.Supp. 683, 689 (E.D.Mich.1997). An agreement obtained through fraud in the execution lacks mutual assent and is void. Mailo, 30 A.S.R.2d at 177; Sheffield v. Andrews, 679 So.2d 1052, 1053-54 (Ala. 1996) (fraud in the execution present where contract with altered terms presented to elderly women with failing eyesight); RESTATEMENT (SECOND) OF CONTRACTS § 163 (1979). See also Langley v. FDIC, 484 U.S. 86, 93 (1987).
In the current controversy, CCCAS alleges that Green induced it into signing the August 4 document by telling Fa'alevao that it was identical to their previous agreement, when in fact the contract they were signing was entirely different and less favorable to church than the previous agreement. Green, however, contends that even if he did not alert Fa’alevao to the changes he made to the contract, Fa’alevao nonetheless had a duty to read the contract before signing it. Green maintains that CCCAS cannot now dispute the unfavorable changes he made to the contract because CCCAS took the risk that such changes might be present when its officials signed the contract without reading it.
We find that the August 4 document is not a binding contract because the parties never assented to the agreement. We find credible the testimony indicating that Green induced the CCCAS officials into signing the August 4 document by misrepresenting the content of that document. *102And, further, our conclusion is unaffected by the fact that the CCCAS officials may not have read the contract before signing it. It is true that a party to a contract has a duty to read its contents; however, this is not true when fraudulent inducements may have convinced the party to forgo an examination of the document. See Gerrish Corp. v. Universal Underwriters Ins. Co., 947 F.2d 1023, 1028 (2nd Cir. 1991) (stating that “absent fraud or misrepresentation, [a contracting party] is bound by the terms of the [contract], and cannot thereafter complain that he did not read or know the terms.”) (internal quotations omitted).
Additionally, the evidence indicates that during the performance phase of the contract, the parties did not act consistent with the terms provided in the August 4 agreement. This leads us to believe that they never assented to the terms of that document. The August 4 document provided that the initial 50% payment should have been made up-front, with the remaining 50% of the contract price due at completion. The parties, however, never proceeded in that manner. Instead, CCCAS made its $45,000 down payment and then continued to offer a series of many smaller payments. There is no evidence to indicate that Green objected to this manner of payment, or asserted that these payments were inconsistent with the terms of the contract. Thus, we simply do not feel that the parties assented to the August 4 document.
After considering the testimony and analyzing the facts and circumstances surrounding the negotiations, we find that the August 2 document contains the binding terms of the parties’ agreement. The circumstances surrounding the signing of the contract indicate that the parties intend for it to be a binding representation of the deal. And, further, once performance started, the parties acted consistent with its terms. The August 2 document provided for gradual payments, and that is exactly what CCCAS did. It made 18 separate payments, and Green never objected to that manner of payment. And, lastly, the August 2 document provided for a $45,000 down payment. On August 3, CCCAS gave $45,000 to Green, who accepted the money. These acts indicate that the parties assented to terms of the August 2 document and considered those terms binding upon them.
II. Did Either of the Parties Breach the Contract?
Green alleges that Defendants breached the contract by failing to remit payment as provided under the contract. Defendants, in their countersuit, maintain that Green breached the contract by failing to complete the project in the specified time. Having established what the binding terms of the agreement are, we can now apply the facts of the case to those terms to determine whether either of the parties is in breach of contract.
*103A. Is Green in Breach of Contract?
Defendants allege that Green is in breach of contract because he did not complete the church buildings in the time specified in the August 2 document (now the contract). The contract provides that work on the church should be completed in seven months unless “complications” occurred whereby Green would be given a two month grace period. It is undisputed that the contract was signed on August 2, 1998 and that on June 28, 2000, when CCCAS officially terminated the contract, the church buildings had yet to be completed. This is a span of nearly two years. Thus, under the terms of the contract, even if complications had arisen, thereby triggering the two month grace period, Green would have been well over a year behind schedule. Thus, by all accounts, Green was in breach of the contract because he failed to complete the project within the specified period of time.
B. Is CCCAS in Breach of Contract?
Green alleges that Defendants are in breach of contract because CCCAS failed to pay him as specified in the contract. The contract provided that CCCAS was to pay the first 50% of the contract price “as the work proceeds,” including an up-front $45,000 down payment, with the remaining 50% to be paid upon successful completion of the church buildings.
The evidence indicates that CCCAS provided to Green a $45,000.00 down payment and then $146,033.40 in smaller, separate payments during the time in which Green was working on the project. These payments totaled $191,033.40, or nearly 48% of the $397,850.00 contract price. This payment scheme is entirely consistent with any fair reading of the contract language. The contract simply mandated that CCCAS provide the first 50% “as the work proceeds.” After examining the payment history in this case, it is clear that CCCAS did just that and only stopped short of the full 50% when it determined that Green was in breach. CCCAS made its first regular payment on October 6, 1998 and proceeded to make additionally payments every couple of months until the contract collapsed. Therefore, we find that CCCAS is not in breach of the contract.
III. Dispossession of the Construction Tools
Green asserts that following the cancellation of the contract, CCCAS wrongfully held Green’s construction equipment.2 It is unclear from the *104evidence whether or not CCCAS has ever returned the equipment or whether, in fact, any of the equipment items or Green sustained any damages due to the dispossession. From what evidence we have seen it appears that CCCAS may have committed either a conversion3 or trespass to chattel4 upon the property. Therefore, if CCCAS continues to possess those tools or knows about their whereabouts, we urge it to promptly cause those tools to be returned to Green. However, in the event that the parties cannot settle this issue amongst themselves, we will continue to exert jurisdiction over this segment of the dispute.
IV. Damages
“[T]he proper measure of damages in . . . cases involving building contracts is the cost of repairing the defects or completing the work and placing the construction in the condition it should have been if properly done under the agreement contained in the building contract.” Steinbrecher v. Jones, 153 S.E.2d 295, 304 (W. Va. 1967). In the present controversy, Green failed to complete the church buildings in accordance with the terms of the contract, forcing CCCAS to use other means in finishing the project. CCCAS is thus due the extra costs it incurred in getting the project into the condition it should have been in had Green acted properly under the contract. An examination of the evidence reveals that CCCAS spent a total of $400,575.15 building the church, including amounts paid to Green and the extra costs incurred in finishing the church buildings after Green’s breach. Under the contract, Green had agreed to build the church for $397,850.005. Thus, as a result of Green’s breach, CCCAS was forced to spend an extra $2,725.15 to complete the church buildings. Therefore, we hold that due to Green’s breach of contract, CCCAS was damaged in the amount of $2,725.15.
*105Order
Green is in breach of contract with CCCAS and shall pay CCCAS $2,725.15. It is so ordered.
This figure includes the $45,000 down payment.
The equipment include a compactor, router, vibrator, five wheelbarrows, a chipping hammer, three crowbars, five shovels, three *104extension cords, and a set of socket wrenches.
An interference of another’s property which so seriously interferes with that person’s right of control that the interferer should be made to pay the full value of the chattel. See Restatement (Second)of Torts § 222A (1965).
An intentional dispossession of another’s chattel which has impaired the chattel’s condition or deprived the owner of its use. See RESTATEMENT (Second) of Torts §§ 217,218 (1965).
We will note here that, despite Green’s allegations, his June 5, 2000 change order did not increase the contract price. The contract specifies that CCCAS may request a change order but makes no mention of Green’s power to do so. And, further, there is no evidence that CCCAS ever approved of or agreed to Green’s proposed change order, which would, in effect, be an alteration to the contract. Therefore, we find that the June 5, 2000 change order is non-binding and in no way affects the parties’ duties and obligations under the contract. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486949/ | ORDER DENYING MOTIONS FOR APPOINTMENT OF RECEIVER AND ENFORCEMENT OF RENT ASSIGNMENT CLAUSE
Defendant Kepaoa Development Corporation (“Kepaoa”) took out a leasehold mortgage (“the mortgage”) with Bank of Hawaii (“BOH”). Kepaoa secured the mortgage with a lease that it owned on land in Utulei Village and the improvements on the land (“the premises”). The mortgage agreement provided that in the event of default, BOH had the right to have a receiver appointed and also had the right to have any rents from the premises assigned to it. Kepaoa then subleased a portion of the premises to British Petroleum (“BP”). Later, Kepaoa defaulted on the mortgage loan. BOH then demanded that BP forward the sublease payments to it directly, rather than sending them to Kepaoa. BP did not do so.
Now, BOH asks the Court to appoint a receiver, who would directly collect BP’s sublease payments, to ensure that Kepaoa does not squander or hide them. In the alternative, BOH asks the Court to enforce the assignment of rents provision, which would shift Kepaoa’s interest in the sublease payments to BOH.
I. Appointment of a Receiver
The mortgage contract provides that if the mortgagee properly forecloses the mortgage it has “the immediate right to a receivership upon ex parte order . . . .” (May 11, 2000 Leasehold Mortgage, pg. 3, In. 19). BOH asserts this court is bound by that clause and therefore should appoint a receiver. BOH cites Union Dime Savings Bank v. 522 Deauville Assoc., 398 N.Y.S.2d 483 (N.Y. Sup. 1977) in support of its position. Union Dime, however, does not stand for such a proposition. Rather, Union Dime, and the cases cited therein, state that in the event that a receiver is appointed, the terms of the mortgage may affect the rights the mortgagor and mortgagee have with relation to the receiver. Therefore, under Union Dime, the terms of the mortgage do not force a court into appointing a receiver.
In fact, the clear weight of authority holds that a mortgage’s appointment of receiver clause does not bind a court into appointing a receiver. The California Supreme Court, in Baker v. Varney, 62 P. 100, 101 (Cal. 1900), stated that “[n]o stipulation can confer jurisdiction upon the court to appoint a receiver in a case where the court has no authority given by law.” The Supreme Court of Idaho, in Northwestern & Pacific Hypotheekbank v. Dalton, 256 P. 93, 95 (Idaho 1927), stated that “[t]he *108rule is well settled that jurisdiction to appoint a receiver cannot be conferred on a court by stipulation or consent of the parties. The right must exist under the law independent of the stipulation, and grounds justifying appointment [of a receiver] must be sufficiently alleged, in order to confer jurisdiction.” The Supreme Court of Arizona, in Wingfoot Cal. Homes Co. v. Valley Nat. Bank of Phoenix, 248 P.2d 738, 738 (Ariz. 1952), stated that “[t]he right of a court to appoint a receiver must exist under the law independent of the contract in question.” Lastly, a federal bankruptcy court, in In re Glessner v. Union Nat. Bank & Trust Co., 140 B.R. 556, 560 (Bankr. D. Kan. 1992), stated that “[e]ven where the mortgage provides for appointment of a receiver on default, mortgagees have been required to apply to the courts for a receiver.”
In conclusion, courts are not bound by appointment of receiver clauses. Courts should, instead, conduct an independent analysis to determine whether or not it is proper to appoint a receiver. Therefore, we will examine the true merits of BOH’s application for a receiver.
A court’s power to appoint a receiver is “limited almost exclusively to cases where the remedy seems necessary in order to prevent fraud, or to protect and preserve the property, or its rents and profits, against imminent danger of loss.” 65 Am.Jur.2d Receivers § 27 (1972). “The power should not be exercised where there is no fraud or imminent danger of the property being lost, injured, diminished in value, destroyed, squandered, wasted, or removed from the jurisdiction.” Id. The appointment of a receiver is considered to be an “‘extraordinary remedy that should be employed with the utmost caution and granted only in cases of clear necessity to protect plaintiffs interest in the property.’” CFTC v. Comvest Trading Corp., 481 F.Supp. 438, 441 (D. Mass. 1979) (citing 12 Wright & Miller, Federal Practice and procedure: Civil §2983 atp.21 (1973)).
In GA Enterprises, Inc. v. Leisure Living Communities, Inc., 355 F.Supp. 947, 949 (D. Mass. 1973), the court stated that the appointment of a receiver “is, like an injunction, an extraordinary remedy and ought never to be made except in cases of necessity upon a clear showing that . . . [an] emergency exists, in order to protect the interests of the plaintiff in the property.”
The First Circuit, in Chase Manhattan Bank, N.A. v. Turabo Shopping Center, Inc., 683 F.2d 25, 26-27 (1st Cir. 1982), found that “to warrant the appointment of a receiver . . . there must be something more than the inadequacy of the security and the doubtful financial standing of the debtor.” The ‘something more’ that courts have looked for includes “fraudulent conduct on the part of the defendant; imminent danger that property would be lost, concealed, injured, diminished in value, or *109squandered; the inadequacy of the available legal remedies; the probability that harm to plaintiff by denial of the appointment would be greater than the injury to the parties opposing appointment; and the plaintiff’s probable success in the action and the possibility of irreparable injury to his interests in the property.” CFTC, 481 F. Supp. at 441 (citations and footnotes omitted). Therefore, in sum, courts should reserve the appointment of a receiver to rather extreme situations and avoid making such an appointment if there is an adequate legal remedy.
This Court does not see an extreme situation in the case before us. BOH has presented no evidence of fraud or imminent danger that future sublease payments will be substantially wasted away or removed from the jurisdiction. It appears that Kepaoa was forwarding at least 80% of the sublease payments to BOH. Plaintiff BOH presents no evidence that the payments will stop or become substantially smaller or that the subleased property will be damaged or diminished in value.
Moreover, and most importantly, there is an available legal remedy. As discussed below, the contract contains an enforceable assignments clause and, therefore, by enforcing that provision, this Court can assure that BP’s sublease payments are forwarded directly to BOH, eliminating the need for a receiver.
II. Assignment of Rent
The mortgage agreement provides that in the event of default, all rents and profits from the property are assigned to the mortgagee — BOH. (May 11, 2000 Leasehold Mortgage, pg. 3, In. 14). BOH asserts that this clause gives them the right to directly collect all sublease payments from BP, who is subleasing the premises from the Kepaoa.
Assignment of rent clauses in mortgage agreements are generally legal and enforceable. See, e.g., Commerce Bank v. Mountain View Village, Inc., 5 F.3d 34, 38 (3rd Cir. 1993); FDIC v. Int’l Property Management, Inc., 929 F.2d 1033, 1035 (5th Cir. 1991); In re Dupell, 235 B.R. 783, 791 (Bankr. E.D. Pa. 1999); Hawaii Nat'l Bank v. Cook, 58 P.2d 60, 67 (Haw. 2002).
A mortgagee’s interest in future rent payments may come in one of two forms: an absolute assignment or a security interest. The primary difference between the two is the timing in which the interest in the rent payments vests in the mortgagee. In an absolute assignment, the mortgagee gains an interest in the third party rent payments as soon as the mortgage is executed and may start to receive those payments immediately upon mortgagor’s default. In a security interest, the mortgagee has no interest in the third party rent payments until it takes *110actual or constructive possession of the property upon default. Hawaii Nat’l Bank, 58 P.2d at 67-68. A mortgagee takes constructive possession of the property by alerting the tenants that the mortgagor has defaulted and that their payments should thereafter be sent directly to the mortgagee. Id.; In re Dupell, 235 B.R. at 791.
Whether the assignments clause acts as an absolute assignment or a security interest depends on the language of the mortgage contract and the intent of the parties. See FDIC, 929 F.2d at 1036, FDIC v. Dutch Lane Assoc., 775 F. Supp. 133, 139, (S.D.N.Y. 1991). Most courts disfavor absolute assignments and only conclude that such is present if the language of the mortgage unambiguously states so. See FDIC, 929 F.2d at 1037; Hawaii Nat’l Bank, 58 P.2d at 68.
In the present controversy, the relevant mortgage clause provides that “on failure to make payment, . . . Mortgagee shall have the immediate right to receive and collect all rents and profits due, accrued or to become due. Such rents and profits are hereby assigned to Mortgagee .. . .” (May 11, 2000 Leasehold Mortgage, pg. 3, In. 14). It is unclear whether this language is unambiguous enough to create an absolute assignment. However, the issue is moot because BOH has already taken constructive possession of the premises by alerting BP that Kepaoa had defaulted and demanding direct payment. Therefore, under either interpretation of the clause, BOH’s interest in the sublease payments has vested.
In sum, we hold that the mortgage included an enforceable and currently vested assignment of rents clause.
IE. Court’s Discretion in Ordering Specific Performance
By asking the Court to enforce the assignment of rents provision, BOH is asking the Court to order specific performance. F.D.I.C. v. Jackson-Shaw Partners No. 46 Ltd., 1993 WL 483261 at *2 (N.D. Cal Nov. 17, 1993) (plaintiff brought suit, seeking specific performance of assignment of rents clause). In other words, BOH is not asking the Court to grant them an award of money damages. Instead, they are asking the Court to force Kepaoa to fulfill a contractual obligation; namely, the obligation to assign its rents and profits to BOH now that it has allegedly defaulted. See Dan B. Dobbs, Law of Remedies 189-90 (2nd ed. 1993) (“A specific performance decree is a court order compelling the defendant to perform the contract. The main advantage to the plaintiff is that it provides the very performance contracted for, not a money substitute.”).
*111Traditionally, courts have been given wide discretion in granting specific performance. Wesely v. Eells, 177 U.S. 370, 376 (1900) (“Specific performance is not an absolute right. It rests entirely in judicial discretion, exercised, it is true, according to the settled principles of equity, and not arbitrarily or capriciously, yet always with reference to the facts of the particular case.”) (citing Hennessey v. Woolworth, 128 U.S. 438, 442 (1888)). In using its discretion, a court has “the power to adjust all the differences between parties arising from the cause of action in order to do complete justice and prevent further litigation, whether or not the particular relief was requested.” Williams v. Husain, 2003 WL 22172212 at *6 (Cal. App. 1 Dist. Sept. 22, 2003) (internal quotations omitted); see also Union Planters Nat’l Bank, 634 S.W.2d 270, 273 (Tenn. Ct. App. 1982) (stating that in granting specific performance, a court should “adjust the equities of complainant to the equities of defendant and thus do complete justice between the parties.”) (internal quotations omitted).
More specifically, a court has the discretion to decline ordering specific performance if doing so would produce a hardship upon one of the parties. United States v. Georgia-Pacific Co., 421 F.2d 92, 104-05 (9th Cir. 1970) (“[cjourts of equity have long refused to decree specific performance where the result would be . . . unduly harsh”); Van Wagner Advertising Corp. v. S & M Enterprises, 492 N.E.2d 756, 761 (N.Y. 1986) (“It is well settled that the imposition of an equitable remedy must not itself work an inequity, and that specific performance should not be an undue hardship.”). See also United States v. Alexander, 736 F. Supp. 1236, 1242 (N.D.N.Y. 1989) (stating that specific performance “is not demandable as a matter of absolute right; rather, the remedy rests entirely in the court’s discretion . . . and will not be ordered if under all the circumstances it would be inequitable to do so as where the effect would be disproportionate in its harm to the breaching party and its assistance to the non-breaching party”) (internal citations omitted).
In the present controversy, after reviewing all of the facts and circumstances and considering all of the equities involved, we conclude that ordering Kepaoa to assign all of its rents and profits from the premises to BOH would result in an undue hardship upon Kepaoa, would not do complete justice between the parties and could lead to further litigation.
Kepaoa’s proprietor inherited the business from his father at a time when the business was burdened with a substantial amount of debts and liabilities. Facing difficult circumstances, he turned to BOH for a mortgage loan in an attempt to keep his head above water while he tried to get the business in order. The loan proceeds, then, were not meant to be used for long-term investment, but simply as a stop-gap measure in *112desperate times. And, accordingly, the loan was structured to meet such a goal. The period of the loan was to be a relatively short four years1, with a principle amount of $451,023.42 lent at an interest rate of 8% per annum. Kepaoa was to pay $3,500.002 each month with the remaining balance due in a massive balloon payment at the end of the loan period. Thus, as it stood, the terms of the loan were forcing Kepaoa’s proprietor to walk a very thin line; and this, at a time when the weight of the business’s previous debts were already pushing him back against a wall.
However, despite these pressures, the evidence indicates that Kepaoa has made a payment every single month to date, and pledges that it will continue making such payments. This, despite the fact that Kepaoa’s principle source of income, the lease payments from BP, amount to $4,000.00 per month, only $500.00 more than Kepaoa’s monthly due on the loan. It is only Kepaoa’s inability to pay the colossal balloon payment that has put them into possible breach.
Now, despite the fact that Kepaoa is continuing to make its loan payments, and doing so by offering over 87% of its BP income, BOH wishes to have the entire 100% of BP’s lease payments assigned to them.
We conclude that, at this time, the principles of equity persuade us not to order Kepaoa into assigning the entirety of its BP lease income to BOH. Kepaoa is in a very difficult financial position and we find that stripping it of the tiny percentage of BP’s lease payments which it now keeps would cause the company undue hardship, while only offering nominal benefit to BOH.3 Kepaoa is already offering 87% of the BP income to BOH and BOH has not disputed that Kepaoa has made every payment on time, and continues to make monthly payments. This, while the only alleged breach of the mortgage involves Kepaoa’s failure to meet the terms of the onerous balloon payment provision. If we were to order *113specific performance of the assignments clause, Kepaoa would be forced to part with the final $500.00 of the BP lease payments, a small amount to a large bank like BOH, while at the same time a relatively sizeable sum to a struggling company like Kepaoa. Therefore, in the interests of fairness and equity, we conclude that we would not be doing complete justice by forcing the already beleaguered Kepaoa to part with the remaining 13% of its BP income.
BOH may later pursue additional legal remedies in its current breach of contract action, however, in the current motion it plead for this court to administer an equitable remedy. And thus, as such, in doing so we must use our discretion to make certain that the principles of justice and fairness our reflected in our decision. Here, we simply hold that because of Kepaoa’s current effort to continue payments, coupled with its precarious financial position, the requested equitable remedy would “itself work an inequity.” See Van Wagner Advertising Corp., 492 N.E.2d at 761. Thus, in conclusion, we decline BOH’s request to enforce the assignment of rents provision.
Order
1. We deny BOH’s motion to appoint a receiver
2. We deny BOH’s motion to enforce the assignment of rents provision.
It is so ordered.
Originally, the term of the loan was only three years. However, an April 15, 2003 amendment changed it to four years.
Originally, the monthly payment was set at $2,710.00. However, an April 13, 2003 amendment changed the monthly payment to $3,500.00.
This conclusion is heavily influenced by the fact that Kepaoa is currently offering $3,500.00 each month to BOH, while only receiving $4,000.00 each month from BP. In the event that Kepaoa begins to offer a reduced amount each month to BOH, this conclusion very well could change. Similarly, if BP begins to pay Kepaoa more than $4,000.00 a month, under the terms of their lease, or otherwise, we would strongly encourage Kepaoa to continue to hold only 13% of that increased amount if it wishes for the balance of equities under this decision to remain intact. If those equities were to change, a second motion for the enforcement of the assignments clause could very well be granted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486950/ | ORDER GRANTING MOTION FOR STAY OF DISCOVERY
Introduction
On September 14, 2004, Plaintiff Kalala Leulua'i filed this civil action for assault and battery, with applications for a temporary restraining order and a preliminary injunction, against Defendant Pete Ieti Galea'i *115for alleged incidents of domestic violence on or about September 7, 2004. On September 13, 2004, felony criminal charges were filed in the District Court against Defendant arising from this incident. The criminal prosecution, American Samoa Gov't. v. Galea'i, CR No. 53-04, is now pending in this court. On October 7,2004, Defendant filed his first set of interrogatories to Plaintiff. Plaintiff now requests that we stay all discovery in this civil action pending resolution of the criminal action. For the reasons below, we grant Plaintiff’s motion.
Discussion
It is well-settled that a court has discretionary authority to grant a stay in a case if the interests of justice so require. See United States v. Kordel, 397 U.S. 1, 12 n. 27 (1970); Kashi v. Gratsos, 790 F.2d 1050, 1057 (2d Cir. 1986). Courts can exercise this discretion to prevent impairment of a criminal defendant’s Fifth Amendment privilege against self-incrimination, extension of criminal discovery beyond the limits set forth in Federal Rule of Criminal Procedure 16(b),1 exposure of the defense’s theory to the prosecution in advance of trial, or otherwise prejudice a criminal prosecution. See In re Par Pharmaceutical, Inc., 133 F.R.D. 12, 13 (S.D.N.Y.1990); Brock v. Tolkow, 109 F.R.D. 116, 119 (E.D.N.Y.1985).
The factors a court must consider in determining whether to grant a stay include: 1) the extent to which the issues in the criminal and civil cases overlap; 2) the status of the case, including whether the defendant has been indicted; 3) the plaintiffs interest in proceeding expeditiously weighed against the prejudice to plaintiff caused by a delay; 4) the private interests of and burden on the defendant; 5) the interest of the court; and 6) the public interest. See Sidari v. Orleans County, 180 F.R.D. 226, 229 (W.D.N.Y. 1997); Arden Way Associates v. Boesky, 660 F. Supp. 1494 (S.D.N.Y. 1987); Golden Quality Ice Cream Co. v. Deerfield Specialty, 87 F.R.D. 53, 56 (E.D. Pa. 1980).
In the present case, we conclude that the factors weigh in favor of granting the stay on discovery in the civil action pending the criminal proceedings. First, were this civil action only incidentally related to the events giving rise to the criminal charges, we would be hesitant to find need to delay discovery in the former until the completion of the latter. However, because the alleged facts and circumstances of both the civil litigation and criminal prosecution are essentially identical, and that criminal proceedings are already underway, the overlap of issues and *116status of the criminal case leans in favor of granting a stay. Because, as Plaintiff and Defendant both observe, a Fifth Amendment privilege may be asserted in non-criminal cases in order to safeguard the right not to be compelled in any criminal case to be a witness against oneself, by granting a stay, we avoid a civil discovery situation in which Plaintiff will be compelled to disclose requested discovery to Defendant, while Defendant, concerned with pending criminal charges, will withhold disclosure by asserting his Fifth Amendment protections to Plaintiffs simultaneous discovery requests. See, e.g, Chavez v. Martinez, 538 U.S. 760, 772 (2003).
Second, although granting a stay of discovery may typically impede upon a plaintiffs right to expeditiously pursue his or her case, the fact that Plaintiff herself seeks to delay the proceedings demonstrates that a discovery stay would be in line with Plaintiffs litigation strategy, rather than undermining it. Likewise, the stay would be beneficial, and not prejudicial, to Defendant. In Golden Quality, the court noted that when facing simultaneous criminal and civil charges, a Defendant may face intensive discovery in his civil case that will divert valuable resources from the defense of the criminal action. 87 F.R.D. at 56. While we acknowledge that much of the discovery and preparation for each case may be similar, by delaying civil discovery demands, Defendant stands only to gain in that he will be greater able to focus on the criminal charges before him.
Third, with regard to the interests of the court, a court has a responsibility to control the disposition of the cases on its docket with economy of time and effort. Id. at 57; Landis v. North American Co., 299 U.S. 248, 254-55 (1936). We are satisfied, however, that by delaying discovery at this time, competing pressures from other cases on our docket will not interfere in any way with our ability to deal speedily with questions of law and fact presented in this case once discovery resumes.
Finally, as this is a matter in which the outcome of the litigation primarily affects the litigants themselves, without impacting the rights or interests of third parties or the general public, we do not find sufficient prejudice to other private interests or the public interest to justify denial of Plaintiff’s motion for stay of discovery.
Order
After considering the discretionary factors relating to Plaintiffs motion, we now stay all discovery in this action pending resolution of American Samoa Gov’t. v. Galea'i, CR No. 53-04, or until further order of the court. It is so ordered.
The territorial counterpart of this federal rule is set forth in T.C.R.Cr.P. 16. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486951/ | *119ORDER DENYING MOTION TO DISMISS FOR LACK OF JURISDICTION AND GRANTING MOTION TO QUASH ORDER FOR SERVICE BY PUBLICATION
Introduction
On November 5, 1999, Plaintiff Frank Lefiti (“Lefiti”), a resident of American Samoa, purchased a new 2000-year model Ford F-150 truck at a Ford dealership in Honolulu, Hawaii. Lefiti subsequently shipped the truck to American Samoa. On October 14, 2003, Lefiti observed that his truck, parked outside his house, was on fire. He later received an investigative report by the Department of Public safety purporting that the fire was the result of an electric malfunction in the truck’s engine compartment. On September 22,2004, Lefiti filed an action in this Court against Defendant Ford Motor Company (“Ford”), as well as several unidentified defendants for: (1) breach of implied warranty for fitness of use; (2) breach of implied warranty of fitness for particular purpose; (3) breach of implied warranty for merchantability; (4) negligence; (5) strict liability; and (6) “malfunction of vehicle.” On October 28, 2004, we granted leave to serve process on Ford outside of American Samoa by publication in accordance with A.S.C.A. §§ 43.0501-.0504. On December 23, 2004, Ford was personally served in Dearborn, Michigan, pursuant to A.S.C.A. § 43.0504.
On March 2, 2005, Ford specially appeared challenging this Court’s jurisdiction and its order granting service by publication by motion to dismiss under T.C.R.C.P. 12(c)(2) and (5). For the reasons below, we deny Ford’s motion to dismiss but grant its motion to quash the service by publication order.
Discussion
In order to show that personal jurisdiction exists over a defendant, the plaintiff must show that the long-arm statute of the territory confers jurisdiction, and that the exercise of personal jurisdiction over the nonresident accords with federal constitutional principles of due process. See, e.g., Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987). In this case, Ford maintains that this Court’s jurisdiction over it fails to meet minimum due process requirements as well as sufficient contacts under the territorial long arm statute.
I. Due Process
Due process requires that a court may exercise personal jurisdiction over a nonresident defendant only so long as there exist “minimum contacts” between the defendant and the forum jurisdiction such that “maintenance *120of the suit does not offend traditional notions of fair play and substantial justice.” Patau v. Rosendahl Corporation, 16 A.S.R.2d 96, 99 (Trial Div. 1990); Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); World-Wide Volkswagon, 444 U.S. 286, 291 (1980).
A court may exercise either general or specific jurisdiction over a nonresident defendant, depending on the nature of the defendant's contacts with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8-9 (1984). If the nonresident defendant’s activities within the jurisdiction are “substantial” or “continuous and systematic,” there is a sufficient relationship between the defendant and the forum to support jurisdiction even if the cause of action is unrelated to the defendant’s forum activities. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 446-47 (1952); Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 413 (9th Cir. 1977).
If, however, the defendant’s activities are not so pervasive as to subject him to general jurisdiction, the issue whether jurisdiction will lie turns on whether the nature and quality of the defendant’s contacts in relation to the cause of action. In evaluating whether these minimal contacts warrant “specific jurisdiction” a court will examine whether: (1) the contacts relate to the plaintiffs cause of action or have given rise to it; (2) the contacts involve some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum, thus invoking the benefits and protections of its laws; and (3) the defendant's contacts with the forum must be such that the defendant should reasonably anticipate being haled into court there. Vermeulen v. Renault, 985 F.2d 1534, 1546 (11th Cir. 1993); Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir.1986); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985); World-Wide Volkswagen, 444 U.S. at 297; Hanson v. Denckla, 357 U.S. 235, 253 (1958).
In this case, Lefiti did not purchase the Ford truck in American Samoa, but rather purchased it in Hawaii, and separately brought it to American Samoa. Because Ford’s contacts with the territory are not related to Lefiti’s cause of action, jurisdiction over Ford must arise from Ford’s general, more persistent, but unrelated contacts with American Samoa. Were Ford’s only contact with the forum to have been linked to Lefiti’s own unilateral activity of shipping his Ford truck into the territory, we would find the quality and nature of Ford’s contact to be "so ... random, fortuitous, [and] attenuated that it cannot fairly be said that [Ford] should reasonably anticipate being haled into court” in American Samoa. Burger King, 471 U.S. at 486. Here, however, Ford’s own business contacts with American Samoa are substantially and purposefully directed to the territory such that it is not unreasonable to require Ford to *121submit to the burdens of litigation in the territorial forum.
Ford argues that the Court does not have jurisdiction over it as Ford is neither a citizen nor resident of the territory, is not organized or does not have its principal place of business in the territoiy, or has not otherwise availed itself of the privileges of the American Samoan forum. We disagree. In Guyton v. A.M. General, defendant, a car manufacturer, challenged the court’s personal jurisdiction over it stating that it maintained no ties to Pennsylvania because it did not maintain an office, own property, solicit business, or file tax returns in that state. 2001 WL 1623345 (E.D. Pa. 2001) at *2. The court reasoned, however, that because defendant sold vehicles to a dealership in the forum state, contacts were sufficient to warrant general jurisdiction. Id. at 3.
By its nature, the automobile industry requires a manufacturer to maintain contact with its dealerships. As such, continuous and systematic dealings take place between Defendant and its dealerships within the forum State. Therefore, sales by Defendant to its dealerships and subsequently, consumers in the forum State are dealings to be considered for purposes of jurisdiction. Defendant is hard pressed to show that its sales to its dealerships are not continuous and systematic. . . . [B]y regularly placing its product into the stream of commerce for commercial benefit, Defendant has availed itself of the privilege of conducting business in Pennsylvania and invoked the benefits of Pennsylvania law.
Id.; see also World-Wide Volkswagen, 444 U.S. at 295 (noting that contacts with the forum include whether the defendant solicits business either through salespersons or through advertising reasonably calculated to reach the district, and whether the defendant regularly sells vehicles to customers in the district or indirectly serves or seeks to serve the district’s market.).
Lefiti has provided advertisements in which Samoa Motors, Inc. (“Samoa Motors”), a territorial automobile dealership, repeatedly depicts the Ford logo, describes itself as “[t]he only authorized Ford dealer in the Samoa Islands,” and purports to offer the sale of “new cars and trucks.” Likewise, Lefiti further offers evidence of Ford’s own website in which Ford states that “Ford Motor Company can meet your needs wherever you are in the world.” Included on this website is American Samoa, in which Ford offers Samoa Motors in the Tafuna Industrial Park as the means in which Ford “can meet needs” of Ford consumers in the territory.
*122When combining Samoa Motors Ford vehicle sales and its assertion as an “authorized Ford dealer” with Ford’s own promotion of Samoa Motors, it does not take a large stretch of the imagination to recognize that Ford vehicles do not “randomly” or “fortuitously” arrive at Samoa Motors without Ford’s knowing active and continuous direction. It follows then that Ford cannot maintain a business relationship with Samoa Motors and provide vehicles to Samoa Motors in American Samoa with the purpose of benefiting from the local territorial marketplace, and then simultaneously reject any connection with American Samoa in order to conveniently deny local forum jurisdiction once a dissatisfied Ford customer raises a claim. Thus, as in Guyton, weighing the factors of fair play and substantial justice, we conclude that as a consequence of Ford’s continuous and substantial contacts with American Samoa, and the serious practical difficulty local plaintiffs would face if not allowed to litigate in their own forum, Ford can reasonably anticipate being haled into court here even if the cause of action is unrelated to Ford’s forum activities.
II Territorial Long-Arm Statute
We acknowledge, of course, that even if jurisdiction were not constitutionally improper, were our long-arm statute more jurisdictionally restrictive than the scope of general jurisdiction allowed by the Constitution, Ford may be able to prevail in its motion. We conclude, however, that in this case it is not. Pursuant to A.S.C.A. § 3.0103(b)(1), any person, firm or corporation, whether or not a citizen or resident of this territory, who, in person or through an agent, transacts business within this territory, thereby submits, and if a corporation, submits its personal representative, to the jurisdiction of the courts of this territory as to any cause of action, suit or proceeding.
Here, although we agree that Ford is not a citizen or resident of the territory, as noted above, the evidence of Ford’s website content, the proclaimed “authorized dealership” status of Samoa Motors, and the sale of new Ford vehicles and products on the island indicates that Ford has “transacted business within the territory” within the meaning of A.S.C.A. § 3.0103(b)(1). See also Pene v. Bank of Hawaii, 19 A.S.R.2d 52, 53 (App. Div. 1991) (noting that A.S.C.A. § 3.0103(b) allows the Court to extend personal jurisdiction over persons or businesses on the basis of their contacts with American Samoa). Therefore, as in our constitutional analysis, so too do we conclude that our long-arm statute confers personal jurisdiction over Ford.
*123III. Service by Publication
Although § 3.0103(b)(1) submits Ford to the jurisdiction of the Court, Ford further maintains that we improperly authorized service by publication on Ford. Upon further review, we agree. Pursuant to A.S.C.A. § 43.0501, which sets forth the circumstances granting service by publication:
[w]hen an affidavit is filed that personal service cannot be made upon the defendant within American Samoa, service may be made by publication in any of the following cases:
(1) actions involving real property in American Samoa or any right, title, interest or estate therein, including, without limiting the fore-going, actions brought for:
(A) the sale, recovery or partition of real property;
(B) specific performance of a contract of sale of sale covering real property;
(C) foreclosure under any mortgage, lien or other encumbrance or charge upon real property; or
(D) quieting of title to real property;
(2) an action brought against a nonresident of American Samoa or a foreign corporation, having in American Samoa property or debts owing to such defendant and sought to be appropriated in any way;
(3) all action where the defendant, being a resident of American Samoa, has departed therefrom with intent to delay or defraud his creditors, or to avoid the service of a notice, or keeps himself concealed in American Samoa with like intent;
(4) where the action is for a divorce or annulment, or for a change or modification of a decree of divorce or annulment, if the defendant is a nonresident of American Samoa or his resi-dence is unknown.
While it is true in this case that § 43.0501 allows for service by publication in some situations where personal service cannot be made upon a defendant within American Samoa, we note that pursuant to T.C.R.C.P 4(e):
[wjhenever a statute of American Samoa or an order of court thereunder provides for service of summons, or of a notice or of an order in lieu of summons of a party not an inhabitant of or found within American Samoa, service may be made under the circumstances and in the manner prescribed by the statute.
*124Because, as here, none of the statutory provisions of § 43.0501 allowing for service by publication are applicable under the facts of this case, we cannot extend the statute to allow for Ford to be served by publication.
Nevertheless, although we now agree with the proposition that Ford cannot be served by publication, so too do we acknowledge that alternative avenues of service are available. A.S.C.A. § 30.0310, allows for service of process on “foreign corporations.” Section 30.0310 holds that if the agent of a foreign corporation transacting business in American Samoa cannot be found within the territory,
service of process may be made upon the corporation through the Treasurer of American Samoa by sending the original and 2 copies to him, and on the original of which he shall accept service on behalf of the corporation. He shall retain one copy for his files and send the other by registered mail to the corporation at the address of its home office as shown by the records in his office, which service shall have the same force and effect as if lawfully made upon the corporation.
Ford is a corporation organized and existing under the laws of Delaware with its principal place of business in Michigan. Absent a territorial statutory definition, we regard a “foreign corporation” as “[a] corporation that was organized and chartered under the laws of another state, government or country.” See BLACK’S Law DICTIONARY 366 (8th ed. 2004) (further noting that “in Arizona, a California corporation is said to be a foreign corporation.”). Because Ford may be regarded as a foreign corporation, and because we have determined it has transacted business within the territory, the applicability of § 30.0310 is appropriate.
Order
Because Ford’s contacts with American Samoa conform with the territorial long-arm statute and due process considerations, we deny Ford’s motion to dismiss for lack of personal jurisdiction. However, because A.S.C.A. §§ 43.0501-.0504, allowing for service by publication, does not authorize such service for the circumstances presented in this case, we quash our order for service by publication. Lefiti must serve process on Ford in accordance with A.S.C.A. §§ 3.0103 and 30.0310. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486952/ | ORDER RATIFYING SUBSEQUENT AFFIRMATION OF DEPOSITION TESTIMONY, COMPELLING INTERROGATORY RESPONSES, AND DENYING LEAVE TO FILE THIRD-PARTY COMPLAINT
Introduction
This negligence action arises from a fire on April 20, 2002, that destroyed property insured by Forsgren, Ltd., Inc. (“Forsgren”) at the Laufou Shopping Center in Nu'uuli. Plaintiff Progressive Insurance Limited (“Progressive”) brings this action against Defendants American Samoa Power Authority (“ASPA”) and Department of Public Safety Fire Bureau of the American Samoa Government (“ASG”) as insurer of the property, by virtue of payment of insurance proceeds to Forsgren.
In briefings and at hearings, the parties raised several motion issues that we now address relating to the admissibility of deposition testimony, the timeliness of interrogatory responses, and the joinder of Forsgren as a third-party.
*127Discussion
I. Admission of Deposition Testimony
Pointing to American Samoa Rule of Evidence 604, that “[a]n interpreter is subject to . . . the administration of an oath or affirmation that he will make a true translation,” ASPA argues that because the Samoan-English interpreter Niuinitone Tamaalii Sione (“Sione”) did not take an oath or affirmation that he would make a true translation of testimony made during the deposition of Fire Chief Tagiilima Moana (“Moana”), the transcripts of that deposition as presently submitted by Progressive are not admissible.
We disagree, and follow the decision of United States v. Kramer. In Kramer, defendants moved to exclude deposition testimony under Rule 604 on the basis that the record did not reflect that the translators were sworn at the deposition. 741 F.Supp. 893, 894 (S.D.Fla. 1990). Although the court did not deny that the testimony was initially excludable, it reasoned that if the defense can raise an objection at any time before the case is submitted to the jury and preserve its objection, so too, can a translator be subsequently sworn, and his translation ratified, upon inquiry by a judge before offering the allegedly infirm testimony at trial. Id. at 895; see also United States v. Perez, 651 F.2d 268, 273 (5th Cir. 1981). Although in Kramer, the court did so by conducting an evidentiary hearing to analyze the truthfulness of the translation based upon the qualifications of the translators, it noted that “a hearing is seldom required” and that the court need only “satisfy itself as to the qualifications of the translators to translate the languages involved.” 741 F. Supp. at 894.
In the present case we find no need to conduct an evidentiary hearing on this issue and ratify Sione’s translation. On February 1, 2005, we received the affidavit of Sione, in which Sione “being first duly sworn upon oath” stated that “I affirm that I translated English to Samoan and Samoan to English faithfully and correctly” as necessary in the depositions of Moana and others. Sione is a native Samoan speaker, is qualified to serve and serves as an interpreter for the High Court of American Samoa. In this role he is regularly relied upon for truthfully translating in court witness testimony. Having had the benefit of Sione’s service, we do not doubt his abilities in rendering accurate Samoan-English translations, and further, neither the court nor the parties question that he was not impressed to do so during the depositions at issue. See American Samoa Rule of Evidence 603; see also United States. v. Pluta, 176 F.3d 43, 51 (2d Cir. 1999) (allowing translated testimony where no interpreter oath taken where defendant had not shown that any shortfall caused him prejudice, or shown that the interpreters failed to interpret *128literally or accurately); Haidar v. Coomey 401 F. Supp. 717, 721-22 (D.C. Mass. 1974) (noting in the immigration law context that although failure to swear in an interpreter is a violation, the omission was harmless error in that interpreter had been used frequently by the Immigration and Naturalization Service and asserted under oath that her translation was accurate).
II. Progressive’s Motion to Compel
Progressive moves pursuant to T.C.R.C.P. 37(a) to compel further interrogatory responses from ASG to its first, second, and third sets of interrogatories. When a party responds to interrogatories, the party is under a duty to make reasonable inquiries in order to provide the information sought in the interrogatories. Continental Illinois Nat'l Bank & Trust Co. v. Caton, 136 F.R.D. 682, 684 (D.Kan.1991). A party may not defer answering or refuse to answer an interrogatory by suggesting that the information may be forthcoming, as such a response is regarded as a failure or refusal to answer the interrogatory. Oleson, 175 F.R.D at 572. T.C.R.C.P. 37(a)(2) provides that if a party fails to answer an interrogatory, the discovering party may move for an order compelling an answer.
Although Progressive acknowledges that ASG has provided several requested interrogatory responses subsequent to its filing of this motion, it still seeks, as of February 3, 2005, supplemental responses to 11 interrogatories. ASG has stated that it will disclose information as it becomes available to it. We do not find ASG’s response to sufficiently demonstrate that it has exhausted available options to acquire the requested information. In providing answers to interrogatories, a party has a duty to provide not only the information it has, but also the information within its control or otherwise obtainable by it. See In re Auction Houses Antitrust Litigation, 196 F.R.D. 444, 445 (S.D.N.Y. 2000). Here, Progressive has shown that responses given in the deposition testimony of Chief Moana suggest that ASG is capable of obtaining answers to the requested interrogatories. Therefore, to the extent that any of the requested interrogatories remain unanswered, we grant Progressive’s motion to compel and require ASG to answer the interrogatories fully and completely by June 15, 2005, five days before Progressive’s next motion to compel discovery is scheduled for hearing.
We do not, however, award Progressive fees and expenses. Under T.C.R.C.P. 37(a)(4), if the motion to compel is granted, the court shall require the party whose conduct necessitated the motion to pay the moving party reasonable expenses and attorney’s fees incurred in obtaining the order unless the court finds the opposition to be justified or that other circumstances make an award of expenses unjust. See also *129Fed. R. Civ. P. 37. Evaluation of the circumstances rendering an award of expenses just or unjust is committed to the sound discretion of the court. See In re Multi-Piece Rim Products Liability Litigation, 653 F.2d 671, 680 (D.C. Cir. 1981). In exercising discretion to award sanctions under this Rule, a court may consider: (1) the willfulness or bad faith of the non-compliant party, or the reasons for non-compliance, (2) the efficacy of lesser sanctions, (3) the prejudice to the moving party, (4) whether the non-compliant party had been warned of the possibility of sanctions, and (5) the court’s need to deter discovery abuse and efficiently control its docket. See In re Sumitomo Copper Litigation, 204 F.R.D. 58, 60 (S.D.N.Y. 2001).
Although we do not condone ASG’s delay in providing prompt interrogatory responses, neither do we conclude that sanctions are appropriate at this time. In the current case, the discovery delays do not appear to be the result of bad faith conduct by ASG, but are rather the result of practical difficulties limiting ASG’s ability to provide more timely responses. In preparing for this case, we cannot ignore the fact that not only has the Attorney General’s office faced ongoing staffing shortages, but so too has been the currently assigned assistant attorney general, who was only recently assigned to the case. Because such delays are practical, as opposed to tactical in nature, we do not feel that the conduct complained of is sufficiently abusive to warrant sanctions. That being said, however, by granting Progressive’s motion to compel, ASG should now be aware of the Court’s concern, and will presumably take affirmative steps to prevent any recurrence of delays in order to avoid the future risk of sanctions.
III. Third-Party Joinder and Subrogation
ASPA and ASG seek leave to file a third-party complaint against Forsgren, the party insured by Progressive, maintaining that Forsgren’s negligence was a contributing factor to the damages and claims Progressive asserts against ASPA and ASG and therefore should be joined under T.C.R.C.P. 14(a) as a party who is or may be liable for all or part of Progressive’s claim against ASPA or ASG. We disagree.
Under the doctrine of subrogation, once the insurer has paid a claim to the insured, the insurer “stands in the shoes” of the insured to seek indemnification by pursuing any claims that the insured may have had against third parties legally responsible for the loss. See, e.g., Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir. 1999); see also United States v. Munsey Trust Co., 332 U.S. 234, 242 (1947). The doctrine of subrogation is based upon principles of equity. Gibbs v. Hawaiian Eugenia Corp., 966 F.2d 101, 105 (2d Cir. 1992). By paying an insured’s loss, the insurer may in turn compel the party who has caused *130the damage to reimburse the insurer for the payment the insurer has made. Id. at 106. When a party is subrogated to the rights of another, the subrogated party is substituted for, or put in the place of, the party whose rights he is asserting. General Acc. Ins. Co. of America v. Fidelity and Deposit Co. of Maryland, 598 F. Supp. 1223, 1248 (D.C. Pa. 1984). Therefore, by succeeding to all the procedural rights and remedies possessed by the subrogor and becoming subject to any claims or defenses which may have been be raised against the subrogor, the subrogee is no longer asserting the subrogor’s rights, but is asserting its own rights. Id:, see Servidori v. Mahoney, 129 A.D.2d 944, (N.Y. App. Div. 1987).
We find the case of Wausau Underwriters Ins. v. Shisler, cited both by Progressive and by ASPA and ASG, to be particularly informative with regard to the facts and issues raised in this case. 1999 WL 529250 (E.D.Pa 1999). In Wausau, a fire occurred at a facility owned by Halpern and Company, Inc. and Green Circuits, Inc. (“Green and Halpern”), causing damage to the property. Id. at *1. The plaintiff, an insurer, provided the defendant with payments for the fire damage in accordance with the terms of their insurance policies, and in turn became subrogated to the rights of Green and Halpern to recover losses from a potentially responsible third-party. After the insurer, as subrogee, filed suit against defendant, defendant sought leave to file third-party complaints against Green and Halpern, pursuant to Fed. R. Civ. P. 14(a) on the basis that Green and Halpern were comparatively negligent and thus liable for all or part of the plaintiffs claim. Id. at **1-2. The court denied defendant’s motion concluding that defendant had not stated a claim upon which relief could be granted. The court reasoned that:
[a]ny finding of responsibility on the part of Green and/or Halpern does not create a liability to Wausau, but rather, would merely serve to eliminate or reduce Wausau’s recovery from Shisler [defendant]. In other words, Green and Halpern can never be liable to pay damages to Shisler for the losses, which were actually sustained by Green and Halpern. As an insurer cannot subrogate against its own insured, Wausau has no claim against Green or Halpern for which either could be liable.
Id. at *4.
In the present case, Progressive states that Forsgren submitted a timely claim for coverage in the amount of $5,476,000.00 and that, by virtue of its payment of insurance proceeds to Forsgren, it is subrogated to claims against defendants as parties potentially liable for the loss. We agree. As in Wausau, then, ASPA and ASG cannot join Forsgren, the insured, *131as a third-party. ASPA and ASG seek to establish Forsgren’s negligence to reduce or eliminate their own liability on the grounds that the fire loss was caused by Forsgren’s negligent conduct. However, because Forsgren cannot be liable for damages either to Progressive or to ASPA or ASG, ASPA and ASG have merely asserted a defense to their own liability, but have not stated a claim against Forsgren upon which relief can be granted.
Nevertheless, the end result may be a distinction without a difference. ASPA and ASG may pursue the issue of Forsgren’s negligence in this case without joining Forsgren as a party. Because Progressive, as subrogee, is subject to the same defenses which ASPA and ASG could have raised against Forsgren, to the extent that ASPA and ASG can successfully establish Forsgren’s negligence, we will be required to eliminate or reduce Progressive’s recovery from ASPA and ASG accordingly. See Nat’l Fire Ins. Co. of Hartford v. Daniel J. Keating Co., 35 F.R.D. 137 (W.D. Pa. 1964).
In addition, in supplemental briefing requested by the Court, ASPA and ASG contend that Progressive, as subrogee, currently seeks excessive damages. ASPA and ASG note that Progressive asserts in its complaint that Forsgren’s insurance claim was $5,476,000.00. Progressive, however, seeks the larger sum of $6,000,000.00 in total damages with $5,476,000.00 for damages to the building, stock and trade, plant and equipment plus $524,000.00 for lost adjustment expenses. We note, as have other courts, that because a subrogee “stands in the shoes” of his subrogor, it “acquires no greater rights than the one whose claim he assumes by reason of the subrogation agreement.” Truck Ins. Exchange v. Bd. of County Rd. Comm'rs of Montcalm County, 244 F. Supp. 782, 783 (D.C. Mich. 1965); see also United States v. California, 507 U.S. 746, 756 (1993) (“[t]he subrogee, who has all the rights of the subrogor, usually cannot acquire by subrogation what another whose rights he claims did not have.”); Phoenix Ins. Co. v. Erie & W. Transp. Co., 117 U.S. 312, 321 (1886) (“the insurer can take nothing by subrogation but the rights of the assured.”). Therefore, to the extent that Progressive seeks damages as subrogee that exceed those that would have been available to Forsgren, Progressive is ineligible from pursuing such relief.
Order
1. We ratify interpreter Sione’s subsequent affirmation of the translation of Moana’s deposition testimony for purposes of evidentiary admissibility during trial.
*1322. We grant Progressive’s motion to compel responses to interrogatories but find that the circumstances do not warrant an award fees and expenses.
3. We deny ASPA’s and ASG’s motions to seek leave to file a third-party complaint against Forsgren, but hold that Progressive as subrogee cannot pursue damages in excess of those that would have been available to subrogor Forsgren.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486953/ | ORDER DENYING DEFENDANTS’ MOTION TO SET ASIDE ENTRY OF DEFAULT AND GRANTING MOTION FOR DEFAULT JUDGMENT
Introduction
On November 6, 2003, Plaintiff Bank of Hawaii (“BOH”) filed a complaint against Defendants Samiu E. Sala (“Sala”), deceased, and Gertrude I. Sala (“Gertrude”) (together “Defendants”). The complaint alleges that Defendants are in breach of a promissory note for failure to pay amounts due under a $103,268.00 loan received from BOH. As a result of Defendants alleged default in loan repayments, the complaint further seeks to exercise an option to proceed with foreclosure on property subject to a mortgage that was purportedly given in consideration for the loan.
On November 12, 2003, BOH filed an amended complaint. On April 12, 2004, we granted an order for service of process by publication pursuant to A.S.C.A. § 43.0501-.0504. On June 1, 2004, Gertrude’s “acknowledgement of service, admission, and waiver of appearance” was filed, by which she acknowledged that Defendants signed a promissory note in the principal amount of $103,268.00, plus interest, promising to pay BOH’s loan to them, that Defendants defaulted in payment of the note, and that she does “not desire to appear or dispute this matter.” On June 1, 2004, BOH requested an entry of default. On June 2, 2004, the clerk of the court inadvertently entered default against both Defendants.
On July 26,2004, the Development Bank of American Samoa (“DBAS”) filed a complaint in this matter as an intervening party contending it, and not BOH, holds the security interest in the land that BOH seeks to foreclose, and requesting that the Court deny BOH’s prayer for foreclosure. The Court permitted DBAS’s intervention. On Februaiy 3, 2005, BOH and DBAS reached an agreement, stipulating as to the manner in which their respective mortgages would be foreclosed.
*134On February 7, 2005, BOH moved for default judgment.1 On April 7, 2005, nearly 10 months after Gertrude’s appearance, she moved “to set aside BOH’s motion for default judgment,” which is properly construed only to set aside the clerk’s default, and filed a proposed answer to BOH’s complaint. Having conducted a hearing on this issue and considered the parties’ submissions, we deny Gertrude’s motion to set aside entry of default, and grant BOH’s motion to enter default judgment.
Discussion
I. Entry of Default
We first note that the clerk’s June 2, 2004 entry of default was appropriate. On first blush, the timing of the clerk’s entry appears premature. Ordinarily, when a party receives notice by publication, A.S.C.A. § 43.0502 holds that “unless the defendant appears and defends within 2 months and 10 days from the date of the first publication, which date shall be published as a part of the notice, a default will be entered against him and judgment or decree rendered thereon.” In this case, while April 12, 2004 was the date which appeared on the first publication, the clerk entered default on June 2,2004, a period before the expiration of the 2 months and 10 day period. In the current case, however, as noted above, Gertrude submitted an affidavit on June 1, 2004, stating under penalty of perjury both “acknowledging that we are in default of the note” and stating that “I do not desire to appear or dispute this matter and therefore waive my right to appear and answer or otheiwise respond to the Complaint.” Given that Gertrude affirmatively waived the right to plead, appear, or otherwise defend in this action as of June 1, 2004, the clerk was no longer compelled to wait an additional 21 days until the exhaustion of the 2 month and 10 day period to enter default. Therefore, the clerk’s June 2, 2004 entry of default was proper as to Gertrude.
II. Setting Aside Default
In a one page motion dated April 7, 2005, Gertrude moved in essence to set aside the clerk’s entry of default. We heard this motion on April 11, 2005, and see no basis to grant it. A court may set aside a clerk’s entry of default for “good cause” at its discretion based on the particular *135circumstances of the case before it. T.C.R.C.P 55(c); see Pene v. American Samoa Power Authority, 8 A.S.R.2d 78 (Trial Div. 1988); Phillips v. Weiner, 103 F.R.D. 177, 179 (D. Maine 1984). Although in exercising our discretion we have a preference for a trial on the merits rather than summary proceedings, we will determine if “good cause” exists based on whether: (1) the defendant intentionally ignored the plaintiffs complaint; (2) the defendant acted in bad faith; and (3) setting aside the default will prejudice the plaintiff. Pene, 8 A.S.R.2d at 79-80; see also Phillips, 103 F.R.D. at 179 (analyzing (1) the excuse or explanation for the default; (2) the existence of a meritorious defense to the action; and (3) the existence of any substantial prejudice to the party not in default).
Gertrude was fully aware that this action had been commenced against her and Samiu, but she willfully and deliberately chose not to not file any responsive pleadings. Not until April 7, 2005, nearly 10 months after her June 1, 2004 appearance, did Gertrude submit an answer, without providing any written or testimonial explanation for her delay or offering justification for the Court to disregard her previous waiver of the right to answer or appear in this matter. If we were to allow Gertrude to now answer, we would not only defy BOH’s reasonable expectation that the Court will adhere to its own entry of default, but also call into question a party’s ability to rely on an opposing party’s waiver of rights and admission of liability. Therefore, after considering the factors surrounding both Gertrude’s and BOH’s conduct, we do not find “good cause” to set aside default.
III. Default Judgment
A default judgment is not a matter of right, and a trial court has sound discretion to determine whether default judgment is appropriate. Rakshan v. American Samoa Gov't, 28 A.S.R.2d 151, 154 (Trial Div. 1995). In this case, however, BOH has offered direct evidence showing the amount of debt presently owed by Gertrude, and we have scrutinized the evidence provided. See Scalise v. Gorniak, 26 A.S.R.2d 85 (Trial Div. 1994); see also Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177 (Trial Div. 1988). We therefore instruct BOH to provide this Court with a proposed order of default judgment against Gertrude on the promissory note for the Court’s review.
Order
Gertrude’s motion to set aside the clerk’s entry of default is denied. BOH is granted a default judgment against Gertrude on the promissory note and is directed to submit a proposed order of default judgment. It is so ordered.
The motion sought a default judgment against both Sala and Gertrude, but BOH has since acknowledged that in the present status of this action, a default judgment can only be entered against Gertrude on the promissory note. Sala is deceased. He is also the only signatory on the mortgage. The representative of his estate, not Sala, is properly a party. The representative has been neither sued nor served with process. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486954/ | OPINION AND ORDER
Plaintiffs Tamasoaali'i Joseph Tufa (“Tamasoaali'i”), Letalu Maui (“Maui”), and Va'anatiu To'afala Iafete (“Va'anatiu”) question by this action whether Defendants Ma'o Tima (“Ma'o”) and Sega Atoe (“Sega”) were elected as the present two senators representing Senate District No. 1, in accordance with Samoan custom as required by Article n, Section 4 of the Revised Constitution of American Samoa. We hold that Ma'o and Sega were properly elected.
Background
I. Applicable Constitutional and Statutory Provisions
The 28th Legislature of American Samoa concluded its final session in 2004. The election of the senators to represent Senate District No. 1 during the 29th Legislature of American Samoa is at issue in this action. Senators must be “elected in accordance with Samoan custom by the county councils of the counties they are to represent.” Rev. Const. Am. Samoa art. n § 4.
*139Senate District No. 1 is comprised of three counties in the Manu'a Islands District, Fitiuta, Faleasao, and Ta'u, and is represented by two senators. Id; A.S.C.A. § 2.0202. The two senators were to be elected by the three counties before the beginning of their four-year term of office at noon on January 5, 2005. See Rev. Const. Am. Samoa art. II, § 6. A county chief heads each county and presides at meetings of the county council. A.S.C.A. § 5.0201. County chiefs must also certify the county councils’ senatorial election decisions. Rev. Const. Am. Samoa art. II, § 4. The county chiefs of the three counties when the present controversy arose were Defendants Paopao Faresa (“Paopao”) for Fitiuta County, Le'ula Tali (“Le'ula”) for Falesao County, and Maui for Ta'u County.
II. The Factional Split in the Ta'u County Council
The factional split in the Ta'u county council is a cogent element of this election controversy. In that connection, the Fa'atui [Paramount Chiefs of Manu'a] and To'oto'o [High Talking Chiefs of Manu'a] members of the council were allegedly ousted from the group of members known as the Usoali'i [other ranking Chiefs of the council]. The Usoali’i faction, made up in part by Plaintiffs, continues to assert their authority as the county council while the Fa'atui and To'oto'o members dispute such authority. The purported present ouster is recent, but is not the first occurrence of this nature during the history of this lengthy internal dispute. The Fitiuta and Falesao county councils do not recognize the present “ouster.”
The internal dispute within the Ta'u county council is the root cause of the present controversy. On December 11, 2004, members of the Usoali'i faction of the Ta'u county council met to discuss the senatorial election. The meeting was called by Maui as the Ta'u County Chief. At the conclusion of the meeting, it was agreed that Plaintiff Tamasoaali'i Joseph Tufa (“Tamasoaali'i”) would be Ta'u County’s selection for one of the two open senatorial seats. None of the Fa'atui and To'oto'o faction members were present at the meeting, nor were any relevant members of the Fitiuta and Faleasao county councils. Those present apparently understood that their decision would be announced at an unrelated and upcoming December 18, 2005 meeting that had been previously scheduled by Ta'u chiefs to select the new Manu'a Islands District Governor. At least some Usoali'i faction members believe that the election of the Ta'u county council’s choice is a mere formality when the three county councils jointly meet for senatorial elections.
Contemporaneously with the Usoali'i faction’s December 11 meeting, the Fa'atui and To'oto'o faction selected its nominees for the Senate District No. 1 senatorial positions. Likewise, the Fitiuta and Faleasao *140county councils met separately to select their nominees. These selections were made in anticipation of a joint meeting of the three county councils in December 2004 to elect the new senators. During the immediate period before the anticipated election meeting, the Fa'atui and To'oto'o of Ta'u county and members of the Fitiuta and Faleasao councils organized the meeting to be held on December 17,2004, in Fitiuta. They settled on the place and December 17 date, no later than December 15, 2004, and perhaps several days sooner.
Paopao notified Maui of the plan to hold the joint three county election meeting on December 17 in Fitiuta. Though Maui admits to having conversations with Paopao shortly before December 17, he professes that he does not recall the substance of those discussions. However, Maui certainly knew no later than December 15 from one source or another, and probably earlier, perhaps even as early as December 11, that the organizers of the election meeting planned the joint three county council meeting to be held on December 17 in Fitiuta.
Additionally, most, if not all, qualified electors among the members of the three county councils were expecting a December 2004 joint election meeting and were already gathered on Ta'u island for that purpose. Word of mouth travels fast in American Samoa. These qualified electors certainly knew of the December 17 election meeting soon after the final date was determined. Any qualified electors still on Tutuila island were most likely also aware as of December 15 or 16 of the scheduled December 17 election meeting.
However, the organizers of the election meeting waited until December 17 to announce the time of the meeting. Paopao, Le'ula, and Maui, who as county chiefs were responsible for calling the joint meeting of the three county councils, orally issued formal notice of the time and place of December 17 meeting between noon and 1:00 p.m. on December 17. The joint three county election meeting was noticed to begin at 4:00 p.m. on December 17.
The joint election meeting convened around 4:00 p.m. on December 17 and lasted between one and two hours. Since the meeting was held in Fitiuta, La'apui Lefano Falealili (“La'apui”), a Fitiuta to'oto'o, presided. Attendees included High Chiefs and High Talking Chiefs from the Fitiuta and Faleasao county councils, as well as members of Fa'atui and To'oto'o faction and the Usoali'i faction of the Ta'u county council. Many attendees, including Tamasoaali'i and Maui, spoke their views on the election before Ma'o and Sega were elected to take Senate District No. l’s two senatorial seats.
*141Paopao and Le'ula as the Fitiuta and Faleasao county chiefs certified Ma'o’s and Sega’s election as the newly elected Senate District No. 1 senators. Maui did not sign the certification because he disputed the validity of their election.
On January 14, 2005, Tamasoaali'i, Maui and Va'anatiu To'afala Iafeta (“Va'anatiu”) applied to this Court for preliminary and permanent injunctions. The application asked the Court to: (1) prohibit Defendants Lolo Moliga (“Lolo”), the current President of the Senate, and the Senate of American Samoa (“the Senate”) from recognizing Ma'o and Sega as duly elected members of the Senate; (2) enjoin Ma'o and Sega from acting as senators; and (3) compel Paopao and Le'ula into calling a another meeting of the three county councils to conduct a new senate election for Senate District No. 1.
On January 28, 2005, the Senate, separately, and Lolo, Ma'o and Sega, jointly, filed motions to dismiss for failure to state a claim and lack of subject matter jurisdiction. They also jointly filed an answer to the complaint and opposition to the injunctive relief sought. However, on February 1, 2005, Ma'o and Sega, by their current counsel, jointly filed a separate answer to the complaint. The Court took up the dismissal motions and preliminary injunction application on February 1, 2005, and invoked T.C.R.C.P. 65(a)(2) to advance and consolidate the trial on the merits with the application hearing. We received extensive testimonial and documentary evidence on February 1, 2, 7, and 8. Pursuant to T.C.R.C.P. 41(b), when Plaintiffs completed their presentation of evidence, Lolo and the Senate, joined by Ma'o and Sega, moved for dismissal on the ground that Plaintiffs had no right to relief on the facts shown and applicable law, but we declined to render any judgment until the close of all the evidence. After evidence presentation was closed, the parties submitted written closing arguments. Plaintiffs also filed written oppositions to the pending dismissal motions.
Analysis
I. Pre-trial Dismissal Motions
The principal upshot of the pre-trial dismissal motions relies on the jurisdictional political question doctrine. Succinctly, the doctrine forbids judicial interference in purely political matters before a legislature. See e.g., Colegrove v. Green, 328 U.S. 549, 552 (1946). Lolo and the Senate argue that the decision to recognize and seat Ma'o and Sega as the certified elected Senate District No. 1 senators was an issue solely before the Senate, and this Court has no jurisdiction over the political question raised by the complaint. They further point out that neither Lolo nor the *142Senate had any involvement in the Senate District No. 1 election and therefore committed no wrong under the complaint allegations.
Lolo’s and the Senate’s arguments simply and directly overlook the complaint allegations that challenge whether Ma'o and Sega were elected in accordance with Samoan custom. This is not a political question. It is a constitutional issue well brought before this Court for decision. Meredith v. Mola, 4 A.S.R. 773, 780 (Trial Div. 1973) (“The issues of what need be done for the selection of a senator to confirm to Art. II, § 4, and whether those requirements were met in the matter at bar are matters of constitutional interpretation. Such a determination falls within the traditional role accorded courts to interpret the law, and does not encroach on the Senate’s power to judge specific qualifications or determine plurality of vote.”). See also Mauga v. Lutu, 10 A.S.R.2d 115, 117-19 (Trial Div. 1989) (court found that political question doctrine should not prevent it from deciding whether constitutional requirements of election had been met). In the present case, Plaintiffs are not arguing that Ma'o and Sega are not qualified to be senators under Article II, Section 31 of the Revised Constitution. Nor are they contending that those nominees did not receive a favorable consensus of their election during the election meeting. Rather, they are arguing that the election process did not conform to Samoan custom, as is required under Article II, Section 4 of the Revised Constitution. Under Meredith, we hold that this Court has the jurisdictional authority to interpret Article II, Section 4 as it applies to the case at hand and determine whether the mandates of that section have been met.
With respect to Defendants’ argument that this Court lacks jurisdiction over Lolo, Ma'o and Sega, individually as senators, we conclude that it too lacks merit. Defendants’ argue that the current action is more properly brought exclusively against the Senate, rather than any individual senator, because no statutory or Constitutional provision authorizes a suit against the senators themselves. We disagree. First, we find that Plaintiffs’ can rightfully name Ma'o and Sega, individually, as defendants because the allegedly wrongful acts took place at the December 17 election meeting before they were sworn in as senators. Therefore, the suit is directed at them, not as senators, but as individuals acting in self-interest during the election meeting.
Secondly, with respect to Lolo, we find that he, too, is properly named as an individual defendant. See Diaz v. Edgar, 831 F. Supp. 621, *143623 (N.D. Ill. 1993) (stating that because a suit against a government official for acts committed within his official capacity is not a suit against the state, a court may award an injunction that governs the official’s future conduct). Currently, Lolo is President of the Senate and he has, allegedly, recognized Ma'o and Sega as senators and allowed them to participate in senate activities. Furthermore, as President of the Senate Lolo would, presumably, be instrumental in preventing the recognition of the Ma'o and Sega as senators were Plaintiffs to prevail in their effort to gain a preliminary injunction. Thus, because the Plaintiffs allege that Lolo, in his official capacity, aided his co-defendants in propagating the alleged wrong, and because he is in a special position to address the correction of that alleged wrong, we hold that he is properly named as an individual defendant in the current suite. Moreover, Lolo and the Senate recognized Ma'o’s and Sega’s election and allowed them to be seated as senators.
Clearly, if Plaintiffs win this case, the injunctive remedies they seek would be appropriate, to ensure correction of the gambit of the alleged wrongs, against Lolo and the Senate to prevent their continuing recognition of Ma'o and Sega as sitting senators, as well as against Ma'o and Sega to implement their lost entitlement to their existing senatorial seats, and to require Paopao and Le'ula as county chiefs to join Maui in overseeing another election.
The pending pre-trial dismissal motions are properly denied.
II. Constitutional Election in Accordance with Samoan Custom
Plaintiffs assert that because insufficient notice was given of the December 17, 2004 joint three county election meeting, all qualified electors were not afforded opportunity to participate in the meeting. They maintain that because the notice deficiency resulted in the absence of members of the three councils, especially Ta'u county council members, full sharing of diverse positions on the senatorial candidates and a genuine consensus on the persons elected did not occur at the December 17 meeting. In other words, the election was not conducted in accordance with Samoan custom, as required by Article II, Section 4 of the Revised Constitution of American Samoa.
Defendants collectively counter, in substance, that the notice was sufficient and the meeting was properly conducted in accordance with Samoan custom. They point out that not every member of the three county councils is necessarily a qualified elector entitled to notice and that Plaintiffs cannot prove that the presence of any absent chief would have altered the outcome of the election.
*144We agree with Defendants. The respective arguments address the dispositional issues. However, as a prelude to our dispositional discussion, we make several observations.
First, the Court cannot identify any universal Samoan custom applicable to every senatorial district or election; prevailing Samoan custom is not necessarily the same in each election district or for each election. Eseroma v. Faresa, 31 A.S.R.2d 169, 173 (Trial Div. 1997) and Order Denying Motion for Reconsideration, 1 A.S.R.3d 78, 79-80 (Trial. Div. 1997); see also Meredith v. Mola, 4 A.S.R. 773, 780-81 (Trial Div. 1973).
Next, during the trial, Plaintiffs harbored two incorrect positions. This court has addressed these positions in earlier litigation, which, we need once again to clearly dispel. Plaintiffs seem to think that once the members of the Usoali'i faction in the Ta'u county council “ousted” members of the Fa'atui and To'oto'0 faction from the council, that the allegedly “ousted” chiefs automatically lost any and all authority to represent the council at joint meetings of three county councils comprising Senate District No. 1. This simply incorrect assertion directly reflects the continuing and tragic factional split within the Ta'u county council. When the three county councils jointly meet, the attendees determine, as a matter of Samoan custom applicable to the meeting, who among the persons present may speak and, if the agenda includes the election of senators to represent the three counties, who are qualified electors. Eseroma, 1 A.S.R.3d 78, 79-80.
Plaintiffs also maintain that as a matter of Samoan custom, and by agreement of the three county councils, Ta'u County always decides on one of the two Senate District No. 1 senators, on this occasion Tamasoaali'i, and Fitiuta and Faleaso counties jointly decide on the second senator. Defendants, supported by a Ta'u to 'oto 'o, vigorously and correctly dispute this claim. The two Senate District No. 1 senators must be elected by the three counties collectively, and even if the three counties established and maintained a practice enabling the Ta'u county council to elect its own senator, the practice would be unconstitutional. Eseroma, 31 A.S.R.2d 169, 172. Because the Ta'u county council cannot alone elect a senator, the suggestion that Tamasoaali'i was elected at the December 11 meeting of the Usoali'i faction of the Ta'u county council is erroneous. See Mauga v. Lutu, 10 A.S.R.2d 115, 120 (Trial Div. 1989) (holding that the selection of a senator must include “all relevant county council members”); Tuiasosopo v. Taifane, supra, at 135 (Trial Div. 2005) (holding that a “sub-part” of the county council cannot alone elect a senator). The three county councils must act together in electing the two Senate District No. 1 senators. Since the Fitiuta and Faleasao county councils did not participate in the December 11 meeting, *145members of the Ta'u county council at that meeting could only nominate Tamasoaali'i as a candidate for election at a later joint three county council meeting.
We now turn to discussion of the dispositional issues. In Logoleo v. Fa'amausili, 9 A.S.R.3d 67, 71-72 (Trial Div. 2004), this court recently held that:
[I]n order to comply with Samoan custom, a senatorial election (1) must provide opportunity, which would inherently include adequate notice to all eligible electors, to enable full participation by all, and not some, of the county councils constitutionally responsible for electing a Senator to represent their counties (three counties in the case of Senate District No. 1) and (2) the process must permit an extensive sharing of ideas on potential candidates, and a forging of a collective will as to who shall serve in the Senate.
A. Notice of the December 17 Meeting
The first prong of the test provides that the chiefs who are charged with the responsibility of calling an election meeting must provide each eligible elector the opportunity to attend the meeting. Principally, this means that they must afford adequate notice to those electors. Whether or not in a given election those electors were provided with “adequate notice” is something that must be examined objectively, while considering relevant circumstances surrounding the intended meeting and election. The only real issue in this case is whether or not all of the chiefs who were entitled to attend the December 17 meeting, and were qualified to elect Ma'o and Sega, were given adequate notice of the meeting.
The fact that all eligible electors attend an election meeting does not necessarily mean that each was given adequate notice. Likewise, the fact that certain electors did not attend an election meeting does not necessarily mean that they received inadequate notice.
And this is not to say that more traditional methods of notice are unacceptable. Oral notice, for instance, can be a perfectly adequate method and is probably the norm for calling senatorial elections in American Samoa. Also, this does not mean that every election necessitates a lengthy notice period. The point is simply that every qualified elector must receive “adequate” notice under the circumstances of the particular meeting.
*146That brings us to the case at hand. The date and place of the election meeting on December 17, 2004, was settled no later than December 15, and probably several days earlier. Although formal notice of the meeting remained unannounced, all qualified electors were well aware of the need to have the joint three county council election meeting in December and most, if not all, were already present on Ta'u island. Indeed, Plaintiffs did not clearly identify any qualified electors, on or off Ta'u island, who did not attend the December 17 meeting.
Even if the qualified electors were not involved in the meeting planning process, they must have known about the scheduling of the meeting on December 17 in Fitiuta almost as soon as that decision was made. Word of the December 17 meeting would also have quickly spread to qualified electors, if any, still on Tutuila island in sufficient time to arrange for a flight to Ta'u island if they desired to participate in the election. Even though the formal announcement of the meeting, including the starting time, was not sent out, and then only orally, until approximately three to four hours before the meeting convened on December 17, this relatively scant notice does not alter the fact the eligible participants had adequate opportunity to be present and join in the election debate at the meeting.
We therefore conclude that the notice of the December 17, 2004 election meeting was promulgated in a manner that was legally sufficient to give all eligible electors among the members of the three county councils adequate opportunity to participate in the election.
B. Conduct of the December 17 Meeting
The second prong of the Logoleo test has been met. The evidence indicated that there was an extensive sharing of ideas during the December 17 meeting. The witnesses on both sides testified that many participating attendees at the meeting, including Tamasoaali'i and Maui, were allowed to voice their opinions and that all sides were heard before La'apui announced Ma'o’s and Sega’s election by the consensus of the attendees. As the presiding Fitiuta To 'oto 'o, Fa'apui was responsible for listening to the proceedings and announcing the group’s decision when he was satisfied that a consensus decision had been reached. See Eseroma v Faresa, 31 A.S.R.2d 169, 171 (Trial Div. 1997) and Order Denying Motion for Reconsideration at 1 A.S.R.3d 78, 81 (Trial Div. 1997).
C. Conclusion on the Election Process
We therefore conclude that Ma'o and Sega were properly elected on December 17, 2004, as the senators representing Senate District No. 1, in compliance with the constitutional requirement that senatorial elections *147be conducted in accordance with Samoan custom. The dismissal motion during the trial by Lolo and the Senate, expressly joined by Ma'o and Sega, is properly granted.
III. Election Certification by County Chiefs
Plaintiffs also contend that the election must be set aside because Article II, Section 4 of the Revised Constitution and A.S.C.A. § 2.0203 require all three county chief to certify the election results. Maui refused to sign the certification on the ground that the election of Ma'o and Sega as the two Senate District No. 1 senators was not conducted in compliance with Samoan custom. Only Paopao and Le'ula signed the certification. We disagree with this contention.
The constitutional and statutory provisions are logically written in plural form as they relate to all Senate districts, whether consisting of a single or multiple county councils, in the Territoiy. If the county chiefs had any discretion to disapprove senatorial election results, the door would be open to arbitrary veto power by one chief, and effectively negate the legitimate decisions of the county council or councils. See Faliu v. Fofo, CA No. 2504-72 (Trial Div. 1972). The certification process merely announces the result of a particular senatorial election. The process does not involve any discretion to approve or disapprove the election but only involves the ministerial duty of informing the Senate, without any critical input, of the election result. Meredith v. Mola, 4 A.S.R. at 779; see also Faivae v. Mola, 4 A.S.R. 834, 835 (Trial Div. 1975). There is also precedent in Senate District No. 1. See Eseroma, 31 A.S.R.2d 169, 171 (one of the three Senate District No. 1 county chiefs certified the senatorial election result when another county chief left the three county council election meeting and the third county chief did not attend the meeting).
Paopao’s and Le'ula’s certification was legally sufficient to apprise the Senate of the election of Ma'o and Sega.
Order
Ma'o and Sega are declared to be the properly elected present senators representing Senate District No. 1. The complaint is dismissed as to all Defendants. It is so ordered.
Article II, Section 3 provides, generally, that each prospective senator be at least 30 years of age, have lived in American Samoa for at least 5 years and be a registered matai. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486955/ | ORDER DENYING MOTION TO WITHDRAW GUILTY PLEA
Background
On February 2, 2003, Defendant Talofa Seumanu (“Seumanu”) was charged with murder in the first degree, felonious restraint, tampering with physical evidence and property damage in the first degree. Seumanu was one of several defendants whom Plaintiff American Samoa Government (“ASG”) charged with homicide and other crimes in connection with the death of Wyatt Bowles, Jr.
On January 7, 2004, Seumanu entered a plea of guilty second-degree murder. The plea agreement provided that if Seumanu admitted guilt to *150second degree murder and agreed to testify truthfully and completely against Richard Majhor (“Majhor”), Seumanu’s co-defendant, and to cooperate fully in Majhor’s investigation, ASG would amend the homicide charge and drop the remaining charges. The plea agreement also provided that if Seumanu satisfactorily completed his end of the agreement, ASG would recommend to the Court a sentence of 20 years imprisonment.
On February 25, 2005, Seumanu moved to withdraw his guilty plea. In that motion, he asserts that at the time of the plea hearing, he did not understand the nature of the terms of his guilty plea and therefore should be allowed to withdraw that plea. Seumanu also refers to his right to speedy sentencing. As of the date of the filing of the motion, Seumanu had yet to be sentenced. This was a result of the fact that Majhor has not yet gone to trial, and therefore Seumanu has been unable to testify in that trial as provided in the plea agreement. Seumanu nonetheless contends that the delay of almost 14 months1 in sentencing him is unreasonable and in violation of his constitutional rights.
Analysis
I. Withdrawal of the Guilty Plea
Seumanu asserts that at the time of the plea hearing, he did not understand the nature of the terms of his guilty plea and therefore should be allowed to withdraw that plea. T.C.R.CrJP. 32(d) authorizes a motion to withdraw a guilty plea, stating that “[a] motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended.”
The thrust of Seumanu’s argument focuses upon the provision in the plea agreement which states that ASG will recommend to the Court that he be sentenced to 20 years in prison. Seumanu asserts that, at the time of the hearing, he did not fully understand, and that the Court did not fully inform him, that the provision is simply a recommendation and that the Court has discretion to disregard it if it sees fit.2
*151However, a reading of the transcript of the plea hearing paints a wholly opposite picture. On two separate occasions, the Court questioned Seumanu about the recommendation provision in the agreement, and on both occasions he stated that he understood the provision:
THE COURT: The seventh paragraph of the plea agreement states that the Attorney General agrees to recommend the sentence of twenty years imprisonment, and you individually and by your attorney agree with such recommendation?
THE DEFENDANT: Yes, Your Honor.
THE COURT: That’s your understanding of that portion of the plea agreement?
THE DEFENDANT: Yes, Your Honor.
THE COURT: We’ll deal with this a little more lately [sic], but it ends up saying that you acknowledge and understand that the court is not bound by any recommendation or agreement of the parties.
You understand that?
THE DEFENDANT: Yes, Your Honor.
(Jan. 7,2004 Transcript, pg. 9-10).
THE COURT: The plea agreement indicates the government is going to recommend a sentence of twenty years. Your attorney is going to make recommendations as well. I want you to understand, as the plea agreement states, those recommendations are not binding on the court. In other words, the court has discretion to determine what’s the appropriate sentence in this matter. And the court may or may not accept the recommendations made by counsel for either party, it makes its own decision as to what the appropriate decision or *152sentence should be, and you will not have the right to withdraw your plea at that time.
Is this understood?
THE DEFENDANT: I understand.
(Jan. 7,2004 Transcript, pp. 12-13).
After a review of the entire transcript, including the above portions, we find that Seumanu understood the nature of the recommendation provision in the plea agreement, and that the Court adequately explained that provision to him. Nonetheless, we will fully analyze the law regarding Seumanu’s motion to withdraw his guilty plea:
Defendant has the burden of establishing that there is a fair and just reason for allowing withdrawal of his guilty plea, and in determining whether Defendant has met this burden, we consider the following factors: (1) whether the defendant has asserted his innocence; (2) prejudice to the government; (3) delay in filing defendant’s motion; (4) inconvenience to the court; (5) defendant’s assistance of counsel; (6) whether the plea is knowing and voluntary; and (7) waste of judicial resources.
United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). See also United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
The first element asks whether the defendant has asserted his innocence. Nowhere in Seumanu’s motion does he either impliedly or explicitly assert his innocence.3 Thus, this element weighs against allowing Seumanu to withdraw his plea.
The second element asks the Court to examine the prejudice to the government in the event that we grant the motion to withdraw the plea. ASG would suffer substantial prejudice should this motion be granted. Presumably, ASG’s central motivation in seeking the plea with Seumanu was to gain his cooperation and testimony in the Majhor prosecution. And, now nearly 14 months later, it is likewise presumed that ASG has been proceeding in the Majhor investigation and trial preparation under the assumption that they would have access to Seumanu and his testimony for that trial. Should we now allow Seumanu to withdraw his *153plea, and evade his duty to assist in the Majhor trial, ASG could very well be set back significantly in the prosecution of Majhor. Granting Seumanu’s motion would seriously prejudice ASG.
The third element asks whether the defendant delayed in filing the withdraw motion. The longer a defendant waits before filing such a motion, “the more substantial the reasons he must proffer in support of his motion.” Carr, 740 F.2d at 344. “Conversely, a prompt withdrawal may indicate that a plea was unknowingly entered in haste.” Id. The 14 month delay in filing the present motion is long enough to rule out any concerns that the “plea was unknowingly entered in haste.” Id. The lengthy delay supports to a denial of the motion.
The fourth element asks us to consider possible inconvenience to the court. Here, although staging a trial for Seumanu would put an added burden upon our docket, such an inconvenience would not induce us to deny the motion. Therefore, this factor weighs in favor granting Seumanu’s motion.
The fifth element raises the question of whether the defendant had adequate assistance of counsel when the plea agreement was presented to him. Seumanu has not complained about his counsel’s assistance. An examination of the record in the case and the transcript of the hearing likewise do not reveal any evidence that Seumanu’s counsel has been inadequate in any way.
The sixth element asks us to examine whether the defendant knowingly and voluntarily entered the plea agreement. In this regard, our impressions and conclusions made at the time of the plea agreement hearing, where we thoroughly questioned Seumanu and considered both the content of his responses and his demeanor, are particularly important. At the conclusion of that hearing, we stated that we found “that the defendant’s plea of guilty to the amended count, to second degree, is freely and voluntarily, intelligently made with the advice of and counsel of competent attorney.” (Jan. 7, 2004 Transcript, p. 17). Seumanu has not offered any compelling evidence to convince us to modify this earlier conclusion. The only argument Seumanu presents is that he did not fully understand the nature of the provision regarding the sentencing recommendation. However, as demonstrated above, the transcript clearly shows that the Court explained this provision to Seumanu and that he indicated that he understood the meaning of it. In sum, we find that the weight of the evidence indicates that Seumanu entered into the plea agreement knowingly and voluntarily, and therefore, this factor weighs against granting Seumanu’s motion to withdraw his guilty plea.
*154The seventh and final element questions whether a withdrawal of the plea would lead to a waste of judicial resources. As explained above, the effect withdraw would have on the Court is somewhat minimal, and therefore does not encourage us to deny Seumanu’s motion.
In conclusion, Seumanu’s motion to withdraw his guilty plea, based on his spurious claim that he lacked understanding of the consequences of his guilty plea, should be denied. Seumanu simply does not offer any credible reason to grant a withdrawal, especially in light of the fact that he has not retracted his admission of guilt in the commission of the homicide and has waited 14 months to file the motion, and approval of the motion would likely cause substantial prejudice to ASG.
II. Right to Speedy Sentencing
Seumanu’s purpose in raising this issue is somewhat clouded. Ordinarily, the objective would be dismissal of the prosecution based on constitutional speedy trial grounds. However, Seumanu has only linked this argument as somehow providing another basis for granting his motion to withdraw his guilty plea. But, because Seumanu clearly refers to such a constitutional right in his motion, we will fully address the issue. However, in doing so, we assume that he meant to assert the argument as a means of dismissing the case, rather than as a separate ground of withdrawing his guilty plea.
In Pollard v. United States, 352 U.S. 354, 361 (1957) the United States Supreme Court found that a defendant’s sentencing is “part of the trial for purposes of the Sixth Amendment.” Many federal and state courts have taken this language to mean that a right to a speedy trial includes the right to a speedy sentence. Jolly v. Arkansas, 189 S.W.3d 40, 44-45 (Ark. 2004) (citing numerous federal and state cases recognizing such a principle). When recognizing that the right to a speedy sentence is included within the right to a speedy trial, most courts have analyzed the issue by applying the Barker factors, fashioned by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), to guide right to speedy trial inquiries.
The Barker factors include: (1) the length of delay; (2) the reason for the delay; (3) whether the defendant has asserted his right; and (4) prejudice to the defendant. Barker, 407 U.S. at 529-30; see also Pene v. Am. Samoa Gov’t, 12 A.S.R.2d 43, 45 (App. Div. 1989). It should be noted that the Supreme Court has made it clear that no one factor is controlling, Barker, 407 U.S. at 533, and that each case is dependant upon the circumstances. Id. at 522.
*155We also recognize that “a delay in sentencing involves considerations different than those related to pre-trial delay.” Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir. 1986). In Perez, the court noted that “[t]he alteration of a defendant’s status from accused and presumed innocent to guilty and awaiting sentence is a significant change which must be taken into account in the balancing process. Once guilt has been established in the first instance the balance between the interests of the individual and those of society shift proportionately.” Id.
The first factor is the length of delay. This factor is a threshold inquiry, such that a finding of an unreasonable delay will “trigger the necessity for further inquiry.” Jolly, 189 S.W.3d at 45. A brief analysis of past cases involving this issue reveals that other courts have rejected speedy sentencing claims with delays far exceeding the 14 months delay in the case at hand. See e.g., Pollard v. United States, 352 U.S. 354, 354 (1957) (24 months); United States v. Tortorello, 391 F.2d 587, 587 (2nd Cir. 1968) (29 months). In fact, in the cases where courts have found delays to be excessive, the delays have tended to far exceed 14 months. See e.g., United States v. Campbell, 531 F.2d 1333 (six year delay); Juarez-Casares v. U.S., 496 F.2d 190 (5th Cir. 1974) (31 months); United States v. James, 459 F.2d 443 (5th Cir. 1972) (three year delay); Brady v. Superintendent, Anne Arundel County Detention Center, 443 F.2d 1307 (4th Cir. 1971) (eight year delay). As far as sentencing delays go, the delay in Seumanu’s sentencing is on the shorter end of the spectrum. However, despite the relative brevity of Seumanu’s sentencing delay, we will concede that it is just barely long enough to qualify as unreasonable at first blush for purposes of analyzing the remaining three factors.
The second factor asks us to consider the reasons for delay. Here, the reason for delay is simple. For Seumanu to complete the terms of his plea agreement, he must testify truthfully and completely at Majhor’s trial. Because Majhor’s case will involve a lengthy and complicated murder trial, the Court has given the parties in that case, particularly the defendant, wide latitude in setting back the trial date.
We find this reason for delay to be extremely compelling4 and therefore weighing heavily against granting Seumanu’s motion.
The third factor is whether the defendant has asserted his right to speedy sentencing. Here, courts often look at whether during the trial or sentencing process the defendant contributed to the delay, or whether he *156consistently worked against the delay. See Jolly, 189 S.W.3d 40, 45-46. Because Seumanu has not contributed to the delay, the current motion is sufficient to assert his right to speedy sentencing. Thus, we find that this third factor weighs in favor of granting the current motion.
The fourth and final factor asks us whether the delay has caused the defendant prejudice. Courts have noted that this fourth factor should be analyzed differently in the context of a speedy sentence, relative to a speedy trial situation. Id. at 5; State v. Todisco, 6 P.3d 1032, 1039-40 (N.M. Ct. App. 2000). This is because the “competing interests of the accused and of society are different than those presented in a pre-trial delay situation.” Jolly, 189 S.W.3d at 47. “Most of the interests designed to be protected by the speedy trial guarantee ‘diminish or disappear altogether once there has been a conviction,’ and ‘the rights of society proportionately increase.’ Therefore, ‘the prejudice claimed by the defendant must be substantial and demonstrable.’” Todisco, 6 P.3d at 1039-40 (quoting Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir. 1986) (internal citations omitted).
In Seumanu’s motion, it is implied that he is prejudiced by the sentencing delay because the uncertainty about the length of his sentence weighs heavily on his mind. Additionally, it is implied that the delay in sentencing is causing him to be held in a separate area of the Tafuna Correctional Facility (“TCF”), away from the general population.
With regards to Seumanu’s argument that the delay causes him stress, we find that it is without merit. Although we will concede that final sentencing may provide a defendant with a certain amount of closure, we are not prepared to find the anxiety caused by a 14 month delay of such closure is so prejudicial as to cause a violation of a defendant’s constitutional right to speedy sentencing. To make such a finding, we would need to see something more “substantial and demonstrable” then a mere brief allegation of anxiety, especially in light of the relatively short delay in the case at hand.
As for Seumanu’s allegation that the current sentencing delay is causing him to be housed in separate quarters at TCF, we find that it, too, is without merit. There is no evidence to show that the sentencing delay is the cause of Seumanu’s special status at TCF. The more likely cause of the separate housing is that Seumanu has been linked with a group of inmates connected with the murder of Wyatt Boyles Jr., while much of the general population at TCF has been incarcerated for convictions of much less grave crimes. Additionally, there is no evidence to support the notion that when Seumanu is sentenced he will be removed from his current housing quarters. Thus, in short, we do not feel that Seumanu’s special housing status at TCF has been a prejudicial result of the *157sentencing delay.
In conclusion, whether for the purpose of justifying withdrawal of Seumanu’s guilty plea or dismissal of his prosecution, we hold that Seumanu’s right to speedy sentencing has not been violated. The delay he has experienced is relatively short, ASG’s reasons for delay are substantial and legitimate, and Seumanu simply has not demonstrated that he has been prejudiced by the postponement of his sentencing.
Order
Seumanu’s motion to withdraw his guilty plea and his implicit motion to dismiss are denied. It is so ordered.
The plea agreement was approved on January 7, 2004. The current motion was filed on February 25, 2005. Therefore, slightly less than 14 months has passed between the date of the present motion and the date on which the plea agreement was finalized.
Seumanu argues that the Court has somehow violated T.C.R.Cr.P. 11(e)(3). However, Rule 11(e)(3) has no relevance to the issue at hand. The rule states that if a plea agreement provides for a certain “disposition,” the court must inform the defendant that it will “embody” that disposition in the “judgment and sentence.” However, in the *151Advisory Committee Notes to the identical federal rule, the Committee clearly stated that when a plea agreement simply contains a recommended sentence, the plea agreement does not contain a “disposition,” and therefore the rule does not apply. See United States v. Henderson, 565 F.2d 1119, 1122 (9th Cir. 1977). The present plea agreement contains a recommended sentence, expressly made nonbinding on the court, and we therefore hold that Rule 11(e)(3) does not apply.
Seumanu’s written motion implicitly still admits that he was a perpetrator of the homicide. Motion to Withdraw Plea Made at Plea Agreement, ¶ 3.
Compare Jolly v. Arkansas, 189 S.W.3d 40 (Ark. 2004), where the delay was caused when the prosecutor simply misplaced and then forgot about the defendant’s file. | 01-04-2023 | 11-18-2022 |
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