MATT LE'I, Appellant
v.
OLO LETULI, Appellee
High Court of Amcrican Samoa AppelIatc Division
AP No.20-92
November 15, 1993
__________
[1] A trial court's grant ofpemlancnt injunctive rclicf is reviewcd f()r an a!Jnse of discrction. or application of crroncous Icgal prillciplcs.
[2] Thc extent of an implied casement must !Jc intcrrcd Irom all circumstanccs of the case, including those uses that can rcasona!Jly bc cxpccted. or as might reasona!Jly !Jc required in the normal devclopmcnt of land llJis ineludcs l1!)t only the right of ingrcss and l'grc,s, !Jut also the right to makc use of the casement for installation of utilities.
[3] The rule that the grantee of an easement by implication may not matcrially inercasc thc burden on the servient estatc must balance against the principle that the extent of all implied easemcnt includcs tllOSC uscs which arc rcasona!Jly cxpcctcd or rcquircd for normal land development.
[4] In modcrn timcs, thc installation of utility lines is a practical ncccssity incidcnt to thc rcsidcntial use of propcrty .
Before CANBY,* Acting Associate Justice, MUNSON,** ActilJg Associate Justice, V AIV AO, Associate Judge, and AI:;UOLA, Associate Judge.
.Honorable William C. Can!Jy, J r , Circuit Judge, United Statcs CouI1 of Appcal, for the Ninth Circuit, serving !Jy designation of the Secretary of the Interior .
..Hollorable Alex R. Munsoll, Chief Judge, Ullited States District Court for the Northern Marianas, sitting by dcsignation of the Secrl'tary of the Illterior .
[25ASR2d34]
Counsel:
For Appellant, Gata E. Gurr No appearance entered for Appellee
MUNSON, Acting Associate Justice:
This is an appeal of a judgment of the Land and Titles Division in which that court held, among other things, that any power line poles erected to supply electrical power to Defendant/ Appellant's property may constitute a continuing trespass to Plaintiff/ Appellee's land if those poles are located in a certain right of way. The trial court also ordered that Appellant "remove or cause to be removed any power line poles" that occupy the right of way. Appellant argues that the trial court's conclusions with respect to the power line poles were erroneous. We agree and modify that portion of the court's Order.
FACTS
The trial court in its Opinion and Order set forth the facts of this case in great detail. Because Appellant only questions a portion of the trial court's order, we will only recite those facts relevant to this appeal.
Appellee owned a parcel of land encompassing approximately 44 acres in a roughly triangular shape. The land was bounded on tl1e north by a paved road, running east and west. The. ocean comprised the northeast-southwest boundary, and a dirt road running south from the paved road to the ocean served as the third boundary. Appellee's residence is located at the northeast corner of his parcel in an area known as "Freddie's Beach."
In 1977, Appellee conveyed a three-acre parcel on the western edge of his property to Ethel T. W. Fujii. In 1978, Appellee conveyed two acres of land to Oliver Moors by a deed containing "grants of the land, together with all rights, easements, and appurtenances belonging or in any way incident or appertaining to the land." Order of Sept. 4, 1992, at 2. Mr. Moors' two-acre parcel was just to the north of the Fujii parcel and separated from that parcel by a 12-foot right of way. Both the Fujii and the Moors parcels were accessible via the 12-foot right of way, as well as the dirt road that formed the western boundary of Appellee's original plot.
Mr. Moors subsequently subdivided his two-acre parcel into five lots. One of those lots is at the southeastern corner of Mr. Moors parcel and is accessible only via the 12-foot right of way between the Moors and
[25ASR2d35]
Fujii parcels. On August 5, 1983, Mr. Moors sold that lot to Appellant, who intended to build a residence on the property. The deed from Mr. Moors to Appellant provided that the grant included "all rights, privileges, and easements held or enjoyed in connection with, or appurtenant to tIle land." Order of Sept. 24, 1992, at 3.
On February 8, 1989, Appellant and Appellee signed a document entitled "Deed of Easement for the American Samoa Power Authority (" ASP A ") an easement as was "necessary for the safe maintenance and operation of electrical power and water lines on, over, under, and across the land of the Grantor described below: [handwritten] 'Self-owned land bought fr. OliverMoors.'" The deed correctly designated ASPA as "Lessee." These designations are confusing, because tIle land described in tllC dccd belonged to Appellant, and not Appellee. Nevertheless, ASPA installed power line poles along the boundary line between Appellant's land and the right of way, presumably pursuant to the February 8, 1989 deed.
In February 1991, Appellate hired an independent contractor to (:lear his parcel with a bulldozer to prepare the land for construction of his residence. In addition to clearing Appellant's land, the bulldozer operator also cleared a large portion of Appellee's land trom Appellant's southern boundary line to the ocean, greatly improving the ocean view from Appellant's propeliy.
On March 14, 1991, Appellee sued Appellant claiming damages for trespass due to the power poles and the bulldozing activities, and seeking an injunction to require Appellant to remove the power poles. After a two-day trial, during which the trial court visually inspected the land in question, the court issued an "Opinion and Order" on September 4, 1992. In that Order, the court found Appellant was liable for trespass as a result of the bulldozing activities in February 1991 , and awarded Appellee compensatory damages of $1.00 and punitive or exemplary damages of $ 1,500. Appellant does not contest this finding or tIle amount of damages awarded.
The Court also held that an implied easement across the 12-foot right of way was created in favor of Appellant by the 1978 convcyance of tIle land to him fonn M. Moors. the court found, however, that although Appellant was entitled to the use of the 12-foot right of way for ingrcss and egress to his property, that right of way "is not well suited for handling both motor vehicles and power lines poles. ..." Order of Sept. 4, 1992, at 12. The court stated that despite its visual inspection, it was unable to detennine whether or not the poles were actually on
[25ASR2d36]
Appellant's land or on the right of way. Id at 8. The court, however, found that Appellant I'can readily determine whether or not any of the power line poles are located with the 12-foot right of way, "alld WCllt on to order Appellant to "remove or cause to be removed any power line poles erected within the 12-foot right or way." Id at 15,16. Appellant takes issue with this finding and the injunctive relief imposed.
DISCUSSION
[ 1 J The trial court's grant of permanent injunctive relief is reviewed for an abuse of discretion or application of erroneous legal principles. Amwec'lt Mortgage. v. Grady, 925 F.2d 1 162, I 163 (9th Cir. 1991 ). Appellant argues that the trial court applied erroneous legal prillciplcs to reach its conclusion that the easement cannot be used for utility poles. We agree.
A review of the record and the relevant case authority supports the trial court's finding that Appellant owns an implied easement by necessity over the 12-foot right of way.1 We hold, however, that the trial court improperly limited the use of that easement by Appellant to only ingrcss and egress.
[2] The extent of an implied easement must be inferred from all of the circumstances of the case, including those uses that can be reasonably expected. Kytastyv. Godwin, 162 Cal.Rptr. 556,562 (Cal. Dist. Ct. App. 1980). It is assumed that the parties contemplated such uses of the easement as might reasonably be required by normal development of the land. Fristoev. Drapeau, 215, P.2d 729, 732 (Cal. 1950). "An easement by necessity can include not only the right to erect poles along that road on which may be strung wires for the transmission of electricity to and from that habitation").
J The trial court stated that:
tile unobjected use of the 12-foot right of way by Moors for some 13 years and by [Appellant] for some 8 years. along with the foreseeability of landlocked subdivision lots. is illdicative of IIOt only mutual intent to allow use of the 12-foot right of way for the benefit of both the Fujii parcel alld the Moors two-acre parcel. but also of the practical alld, therefore, reasollable lIecessity for use of this passage to [Appellallt's] lot.
[25ASR2d37]
I-' J tSalanced agal11st tllese prlll~lplCS IS tllC rule tllat the gralltce ot all easement b), implication may not materially increase the burden on the servient estate. L)chJ1'Ob v. Green, 215 N.W.2d 240, 244 (Iowa 1974).
141 The trial couli found that it was foreseeable that Mr. Moors would subdivide his lots leaving at least one lot "landlocked." We find that it was also foreseeable that a purchaser of olle of those landlocked lots, such as appellant, would want to build a residence or an)' other structure on that lot. In these modem times, the installation of utility lines, if not an absolute necessity, is a practical necessity incident to the use or property as a residence.
Moreover, becallse tile trial c(ltlrt was tillable lu dL:lL:rmilje WlliL:11 (Jowcr line poles, if any, arc in lhc right of way, it cannot be said that the current placement of the poles "materially increases the burden" on Appellee's estate. Thus, we are persuaded tllat tIle trial couIi's decision to limit the easement to only ingress and egress to Appellant's property is not justified on this record.2
CONCLUSION
For the foregoing reasons, the judgment of the Land and Titles Divisioll is MODIFIED to delete the restriction of the use of the 12-foot right of way for ingress and egress and to allow appellant to use the easement as is reasonable necessary to provide utilities to his lalld. The trial court's injunction ordering appellant to remove any power line poles from the 12-foot right of way is V ACA TED.
*********
MOANANU V A, Appellant
v.
PAULO ALOFIPO, Appellee
High Court of American Samoa Appellate Division
2 In so holding, we find iI unnecessary to construe tJJe "Deed of Easement for tJJe American Samoa Power Authority" executed by tJJe parties on February 8, 1989.
[25ASR2d38]
AP No, 5-92
November 15, 1993
__________
[1] A trial court's determination of negligence is reviewed under tlJe "clearly erroneous" standard, not by a de novo re-weighing of tlJe evidence at tlJe appellate level, The test for clear error is not whether a dissatisfied litigant has presented evidence of superior evidentiary support to sustain his version of the facts, but whetlJer tlJe trial court's findings are substantially supported,
Before KRUSE, Chief Justice, CAN BY ,* Acting Associate Justice, MUNSON,** Acting Associate Justice, V AIV AO, Associatc Judgc, LOGOAI, Associate Judge.
Counsel:
For Appellant, Gata E, Gurr For Appellee, Charles V. Ala'ilima
KRUSE, Chief Justice
This matter involves a vehicle-pedestrian collision that occurred on the morning of May 2, 1989. The trial court found the driver/appellant, Moananu Va, 75% negligent and the pedestrian/appellee, Paulo Alofipo, 25% negligent. Among other things, the court found "that the defendant was inattentive to plaintiff's presence on the road until it was too late to take effective evasive action" and that plaintiff was "jogg[ing] on the right side of the road with his back turned to oncoming traffic. " CA No. 32-91, slip op. at 5 (Trial Div. March 25, 1992). The court concluded that both defendant and plaintiff were in breach of certain traffic statutes relating to the general duty of care required of drivers and of pedestrians, respectively. The court accordingly apportioned damages and awarded plaintiff $12,018.
Moananu contends that the evidence was inadequate to sustain the lower court's finding of negligence on his part. He has submitted his own version of the facts, which he claims has superior "evidentiary support, "
* Honorable William C, Can by, Jr" Circuit Judge, United States Court of Appeal for the Ninth Circuit, serving by designation of tlJe Secretary of tlJe Interior,
00 Honorable Alex R, Munson, Chief Judge, United States District Court for the Northern Marianas, serving by designation of the Secretary of the Interior,
[25ASR2d39]
[1] Appcllal1t appcars to bc arguil1g for a rc-wcighil1g of thc cvidcl1cc preseJlted at trial. Thc trial court's dctcrmil1atiol1 of I1cgligcl1cc is revicwcd ul1dcr thc "clcarly crrol1cous " stal1dard. Smlfo 'i v. A//lerica/1 Samoa Gover1llnent, 19 A.S.R.2d 54,56-57 (App. Div. 1991). The tcst for clear error is not whether a dissatisfied litigant has preseJlted evidcncc of superior evidcJltiary support, to sustail1 his version of the facts, but whcther the trial court's fil1dings are Substalltially supported. Moea 'i v. Alai'a, 12 A.S.R.2d 91,93 (App. Div. 1989). Ul1less the trial court's factual determinations are clearly not supported 011 the record, "[i]t is 110t within the provillce of the appellate court to reweigh the evidel1ce and iIlterfere with a dccisiol1 ba,5cd ol1thc lowcr court 's choice of OIl<: v<:rsioll of the facts ovcr allotllCr. Ut///ltll\'(/1lI1 v, M(!((litl!li, 12 A.S.I{.2d 88, 90 (Arr. Div. 1989); .I'ee aLl'o Leitl!ala v. l;-aleafine, 9 A,S.R.2d 16 (App. Div. 1988). Herc, thc trial court's rcsolutioll of thc l1egligcl1ce issue was not clearly erroneous. To the contrary , it is well supported 011 the record and, thereforc, may not be disturbcd on appeal.
Moananu's second assignmcnt of error is that damagcs are excessivc in the light of previous awards ill similar cases. Agaill, the stalldard of review is clear error, A.S.C.A. ~ 43.0801(b), and the trial court's decision on damages is not to be upset unless it is clearly unsupported by the evidel1ce. Kim v. Star-Kist Samoa, 8 A.S.R.2d 146, 15 1 (App. Div. 1988). Having regard to the evidence bearing on plaintiffs injuries and resultant pall and suffcring, we canl1ot say that the award bclow is not supported on the rccord. We affirm.
It is so ordercd.
*",,****,,*
[25ASR2d40]
SOLI CORPORATION, SOLI AOLAOLAGI, and MARK MEREDITH, Appellants
v.
AMERIKA SAMOA BANK, DEVELOPMENT BANK OF AMERICAN SAMOA, and UNITED STATES SMALL BUSINESS ADMINISTRATION, Appellees
High Court of American Samoa Appellate Division
AP No.8-93
November 15, 1993
__________
[1] To appeal a decision of tile trial division, a motion for new trial must be filed within 10 days after a judgment or order is entered. A.S.C.A. §§ 43.0802 and A.C.R. Rule 4(a)(I). The denial of a motion for relief from judgment under T.C.R.C.P. Rule 60 qualifies as an order under the foregoing rules.
, c ! f ~ l " l f , r 1; l ! r !' ; r c \ ! f , r, ~; 10' r , , l f' ; r ~, 't ~~ ,~ r' ~ l r " . , i f l r !!; t (
[2] The purpose of requiring a motion for new trial, which sets fortll with particularity the rounds for reversal, is to avoid unnecessary appeals by giving tile trial court tile opportunity to correct any errors it may have made.
[3] It is unimportant whetller a motion is styled a motion fo.r new trial or a motion to reconsider as long as it is timely and clearly informs tile court of claimed errors.
[4] Filing a motion for new trial is a mandatory jurisdictional prerequisite for appeal.
Before KRUSE, Chief Justice, CAN BY " Acting Associate Justice, MUNSON," Acting Associate Justice, V AIV AO, Associate Judge, MAILO, Associate Judge.
Counsel:
For Appellants, Roy T. Chikamoto aIld Gata E. Gurr For Appellee Amerika Samoa Bank, William H. Reardon For Appellee Development Bank of American Samoa, Marshall Ashley
.Honorable William C. Can by, Jr., Circuit Judge, United States Court of Appeal for tile Ninth Circuit, serving by designation of the Secretary of the Interior .
..Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Marianas, serving by designation of the Secretary of the Interior.
[25ASR2d41]
For Appellee United States Small Administration, Roy J.D. Hall, Jr.
Business
KRUSE, Chief Justice
On November 8, 1993, this court heard the appeal of the trial court's denial of relief from judgment under T.C.R.C.P. 60(b). At that time, attorneys Chikamoto, Reardon, and Ashley presented their respective oral arguments .
[1-3] To appeal the trial division's decision in a civil case, a motion for a new trial must be filed within ten days after the judgment is announced. A.S.C.A. §§ 43.0802. The High Court's procedural rules likewise state that "a motion for a new trial as required by 43.0802 A.S.C.A. shall be filed with the clerk of court within 10 days after the date of entry of the judgment or order appealed fi.om. " A.C.R. 4(a)(1) (emphasis added). The denial of a motion for relief under Rule 60 qualifies, in our view, as an "order" within the meaning of this rule. The purpose of requiring a motion for new trial, which sets forth "with particularity" the grounds for reversal, is to avoid unnecessary appeals by giving the trial court an opportunity to correct any errors it may have made. Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990) (citing Government of American Samoa v. King, AP No.19-1970, slip op. at 3). Whether styled a motion for new trial or a motion to reconsider, th~ statute's requirement is met as long as the motion is filed within ten days and clearly informs the trial court of the claimed errors in its decision.Lualemana v. Asifoa, 17 A.S.R.2d 151, 152-53 (Land & Titles Div. 1990); see Taulaga v. Patea, 17 A.S.R.2d at 35.
[4] Furthermore, filing a motion for a new trial is a maI1datory , jurisdictional prerequisite for an appeal. Taulaga v. Patea, 17 A.S.R.2d 206, 207 (App. Div. 1990); Lualemana v. Asifoa, 17 A.S.R.2d at 152-53; In re Matai Title Mulitauaopele, 17 A.S.R.2d 75, 79 (Land & Titles Div. 1990); In re Matai Title Muagututi'a, 15 A.S.R.2d 1,2 (Land & Titles Div. 1990); Gi v. Temu (Mem.), 12 A.S.R.2d 33 (Land & Titles Div. 1989). This is explained as follows:
The requirement of a motion for new trial or reconsideration of judgment is jurisdictional. See, e.g., Fai'ivae v. Aumavae, AP 2-76 (decided December 9, 1977); Government of American Samoa v. King, AP No. 19-1970;Judicial Memorandum No.2-87, 4 A.S.R.2d 172 (1987). If no timely motion for reconsideration or new trial conforming to the "particularity" requirement of Rule 7(b)(1) is filed within the statutory
[25ASR2d42]
ten-day deadline, then "the Appellate Division. ..has no jurisdiction to entertain an appeal in such a case ---regardless of any argumcnts, equitable or otherwise, to the contrary ." Judicial Memorandum, supra, 4 A.S.R.2d at 174 (citing Fai'ivae, supra). Taulaga v. Palea, 17 A.S.R.2d at 35. Since this requirement is jurisdictional, the consequences of noncompliance are quite serious:
Unlike violations of non-jurisdictional rules, for which the Court has the power to impose sanctions other than dismissal if the interests of justice would thereby be served, a would-be appellant's failure to comply with the mandatory steps necessary to give the Court jurisdiction leaves the Court powerless to grant aI1y relief at all.
Taulaga v. Palea, 17 A.S.R.2d at 207.
Appellants failed to file a motion for reconsideration or new trial prior to filing an appeal, in violation of A.S.C.A.43.0802 and A.C.R. 4(a)(1). Therefore, this court is without jurisdiction to consider their appeal.1
This appeal is hereby dismissed.
It is so ordered.
*********
I Although tllis matter is dismissed on jurisdictional grounds, tIle appeal, in our view. lacks merit.
[25ASR2d43]
I.S. MULIT AUAOPELE, AppellaIlt
v.
FOFOGAOTUMUA K. MULITAUAOPELE, Appellee
High Court of American Samoa Appellate Division
AP No.28-90
November 15, 1993
__________
[1] It is appropriate for the courts of AmericaIl Samoa to give effect to SamoaIl customs aIld traditions. Courts should IlOt abolish, by judicial fiat, Samoan traditions which have eIldured for generatioIls ill Samoan iIlstiIlltioIls and are recogIlized by fornlal legal institutions.
[2] Samoan custom is defined by an evolutioIlary process, IlOt by the judicial process.
[3] In matters of fact, the Appellate Division reviews oIlly for clear error, pursuaIlt to A.S.C.A. §§ 43.0801(b).
[4] AIltagonistic questions do not necessarily iIldicate improper judicial bias.
Before KRUSE, Chief Juslice, RICHMOND, Associate Justice, MUNSON ,* Acting Associate Justice, V AIV AO, Associate Judge, aJ1d MAILO, Associate Judge.
Counsel:
For Appellant, I,S. Mulitauaopele pro se For Appellee, Gata E, Gurr
KRUSE, Chief Justice
After the demise of Mulitauaopele Tamotu, LeaaJ1a L. Fuata filed his claim to succession to the matai title Mulitauaopele, attached to the village of Lauli'i. Leaana's claim attracted the objection of appellee Fofogaotumua K. Mulitauaopele, who in turn filed his claim to succession. Appellant I. S. Mulitauaopele also objected, but not as counter-claimant to the title; rather, he sought the dismissal of the succession claims of Leaana and Fofogaotumua, contending that there
.Honorable Alex R, MunsoIl, Chief Judge, United States District Court for tile Northern Marianas, serviIlg by desigIlation of tile Secretary of the IIIterior.
[25ASR2d44]
was actually only one Mulitauaopele family of Lauli'i and that he aI1d his predecessors-in-title are the only rightful holders of the matai title Mulitauaopele. Appellant contends that the Mulitauaopele side headed by the late Mulitauaopele Tamotu (referred to below as the "Leaana" line) was essentially a temporary arrangement, which was "tolerated " by his predecessors, but that he and his relatives have the customary and legal right to have it discontinued.
The trial court declined to interfere with the status quo, being satisfied on the evidence of the existence of two separate and distinct Mulitauaopele families in the village of Lauli'i. The court found that neither was related to the other by blood nor descl'ndf'd from the original titleholder, and that both families had separately evolved after the original descendaI1ts of the title had died out over one hundred years ago. While appellant's family traces its connection.to the title by collateral descent, the appellees' side is related to the title either through marriage, adoption, or traditional appointment (igagato or motu 'upalapala) .The court also thought it significant that each family had its own communal laI1ds and has had its own registered titleholders, who not only have separate guest houses but have separately enjoyed traditional recognition at the village, county, and national level--further indicia of separate and distinct identity.
Appellant has essentially restated his argument,5 made below on his motion for new trial. Appellant's tact on appeal, as it was below, has been to pose a number of rhetorical questions quite unrelated to the findings and conclusions of the trial court. For example, appellant asks whether the court can create a new kind of matai, whether a non-heir can succeed to a family's title over that family's objection, and whether there CaI1 be split titles in American Samoa. Having answered "No" to these, appellant next argues that the trial court did or sanctioned these things and that, therefore, the court had erred ''as a matter of law. "
[1] The trial court, however, neither created a new title, split a title, nor allowed the appointment of a non-heir to another family's title. Rather , it gave effect to something which substantial evidence had demonstrated had been in existence for over a century , after coming into being through the very same evolutionary process that gave rise to the "Tutuila" customs and traditions which appellant alluded to on the staI1d and in argument. As the trial court unambiguously stated:
We are not. ..creating anything at all; we are merely declining to destroy something that has existed
[25ASR2d45]
for at least a hundred years and that has been thoroughly integrated into the traditional institutions of the village, the Eastern District, and throughout Samoa.
MT No.05-89, slip op. at 10 (Trial Div. August 8, 1990). Quite clearly, the trial court did not find it appropriate to abolish, by way of judicial fiat, a Samoan development which has endured for many generations and which has not only been "thoroughly integrated into the traditional institutions " but has also been recognized by the formal or legal institutions of the land. For instance, appellee's family title has been accepted for registration with the Territorial Registrar's office, and we additionally noted testimony on the record to the effect that the late MulitmJaopele Tamotu rcprc~;cl1t('J tl1C '~ua Coullty in l}IC lcrrilorid] Senate.
[2] Consequently, the trial court did not attempt to appoint a stranger to hold appellant's family title; rather it concluded on the evidence that Fofogaotumua was qualified to succeed the title left vacant by the death of Mulitauaopele Tamotu. Similarly, the trial court did not purport to "split" the title of appellant's family. It merely addressed the realities which exist today, and which developed not by the judicial process but by the evolutionary process that ultimately defines SamOaI1 custom.
[3] Appellant's "bottom line" argument about the court's creation of a new matai title, splitting a title, and/or appointing an adopted branch to co-hold his family's title is thus entirely without foundation. In matters of fact, the appellate division reviews for clear error. A.S.C.A. §§ 43.0801(b). We find the record replete with testimony about the existence of two separate and distinct Mulitauaopele families with separate sa'o. The trial court had substantial grounds upon which to base its findings, and they are, therefore, not to be disturbed.
[4] Appellant alternatively argues that one of the Samoan Associate Judges was biased. There is no evidentiary support to the claim, which is premised solely on certain questions posed by the judge to the appellee Fofogaotumua. We see no basis for the claim of judicial bias against the appellant upon the strength of the questions posed. In any event, the questions complained of were asked at a stage in the proceedings afterapp~llant's motion to dismiss had been denied in open court.
For reasons given, we affirm.
It is so ordered.
[25ASR2d46]
ALAMOANA RECIPE INC., a Corporation, and ALAMOANA S. MULITAUAOPELE, Appellants
v.
AMERICAN SAMOA GOVERNMENT, UNITED STATES INTERNAL REVENUE SERVICE, WILLIAM M. MELENDEZ, Internal Revenue Officer, UNITED STATES DEPARTMENT OF THE TREASURY, and UNITED STATES DEPARTMENT OF THE INTERIOR, Appellees
High Court of American Samoa Appellate Division
. AP No.18-93
November 15, 1993
__________
[1] Although A.C.R. Rule 8(a) contemplates tI1an an application for a stay of execution pending appeal must ordinarily be made in the first instance to the trial court, a hearing at the appellate level was granted in this case in view of the immediate availability of a full appellate panel.
[2] The Federal Anti-Injunction Act prevents tI1e High Court, at any level, from restraining the assessment of collection of any federal tax. 26 U .S.C. §§§§.876, 7421 (a).
[3] The Federal Anti-IIljunction Act is applicable to temporary , as well as permanent pleas for injunctive relief.
[4] Trial court decisions regarding temporary restraining orders are appealable only when evident risk of harn1 cannot be corrected by the preliminary injunction review, or when the decisions are effectively final dispositions of tIle case.
Before RICHMOND, Associate Justice, CAN BY ,* Acting Associate Justice, MUNSON ,** Acting Associate Justice, V AlV AO, Associate Judge, and BETHAM, Associate Judge.
Counsel:
For Appellants, Alamoana S. Mulitauaopele, Pro Se
.Honorable William C. Can by, Jr.. Circuit Judge, United States Court of Appeal for the Ninth Circuit, serving by designation of tI1e Secretary of the Interior.
..Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Marianas, serving by designation of the Secretary of the Interior.
[25ASR2d47]
sought by appellants. The Anti-Injunction Act was enacted to allow, with very narrow exceptions inapplicable to this case, "the United States to assess and collect taxes alleged to be due without judicial ilJtervention " J.L. Enochsv. Williams Packing and Navigation, 370 U .S. I, 7 (1962), reh den 370 U.S. 965 (1962). The Act is applicable lO temporary , as well as permanent, pleas for injunclive relief. Sipkoff v. Wllinston, 354 F. Supp. 683 (M.D. Penn. 1973). We cannot deal with any risk of harm pending a final decision in this case.
[4] Second, the Trial Division holdings at issue are not appealable. These decisions only relate to a temporary restraining order, which by nature is based on an incomplete hearing process, i~; ~;horl-liv(.d, rlfld is subject to review at the hearing on thc concurrcni preliminary illjunclron request. A.S.C.A. §§§§ 43.130,1- aJ1d 43. 130.5(a). Decisions on temporary' restraining orders are only appealable when the evident risk of harm cannot be corrected by the preliminary injunction review, 9r when lhe decisions are effectively final dispositions of the case. See WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE, §§ 3914.3 at 522 (2d ed. 1992).
Clearly, the Trial Division's decisions are not a final disposition. Such a decision will not occur, al the earliest, unless and unlil lhe Trial Division grants appellee American Samoa Government's pending motion to dismiss for lack of jurisdiction. The olher appellees have not yet joined in that motion, but they may do so before the hearing on it, scheduled for 9:00 a.m., on November 22,1993.
We can understand appellants' perspective regarding the harshness of appellee United States Internal Revenue Service's FICA tax assessment and collection procedures in American Samoa. ApparelJtly, this activity is managed by the Internal Revenue Service office at Hato Rey, Puerlo Rico. Sheer distance, mail service delays, and lack of locally-maintained federal tax records and locally-stationed tax personnel, as examples, certainly can contribute to frustrating and unsatisfactory personal contacts and poor con11llunications. Forums within the federal judiciary for such matters are inconvenielJtly located.
However, under the restraint of the Anti-Injunction Act and given the nonappealability of the decisions at issue, appellaJ1ts motion must be denied. Furthermore, this appeal must be dismissed, and the case must be remanded to the Trial Division to continue with the proceedings properly pending in that court.
[25ASR2d49]
It is so ordered.
**';'*"'*0;,**
PETEI{ CI{ISPIN mId IIENI{Y ,JAMIESON, Appellants
v.
AMEI{ICAN SAMOA GOVEI{NMENT, Appcllee
High Court of American Samoa Appellate Division
AP No.10-92
November 11.1993
__________
[t] Negligence of a landowner or occupant is not a substantial factor proximately cau~ing harm, if harm would have occurred allyway, despite the negligence of the landowner or
occupant.
[2] The question of whether a litigant.s conduct wa~ a substantial factor is for tbe trial court to determine unless testimony is so undi,;puted and uncontradictory tbat reasonable men
could not differ.
Before KRUSE, Chief Justice, CAN BY,. Acting Associate Justice, MUNSON ,.. Acting Associate Justice, V AIVAO, Associate Judge, MAILO, Associate Judge.
Counsel:
For Appellallts, Roy J.D. Hall, Jr. For AppeJlec, Cheryl Quadlander, Assistant Attornc)l General
KRUSE, Chief Justice
.Honorable William C Can by, Jr. .Circuit Juuge. United State,; Cmlrt of ApPl'ai for the Ninth Circuit, serving by de~ignation of the Secretar}' of the Illterior.
..Honorable Alex R. Munson. Chief Juuge. Unitcd States Court of Appcal for tile Ninth Circuit, serving by designation by the Secretary of the Intcrior.
[25ASR2d50]
In this case strong winds blew over a government shed, sending its roof onto a motorboat co-owned by appellalJts and parked near appellant Crispins' place of business located in the Industrial Park at Tafuna. As a result, the motorboat was damaged, and appellants sued the government, alleging negligent construction of the shed as being the proximate cause of that damage.
[1] The trial court, while noting that the shed was of inferior quality, found that its construction met minimum applicable building-code requirements and therefore concluded that the government was not negligent. At the same time, the trial court also found that even a reasonably constructcd shed, of the type in que,~tion, "rrol.,abJ~( wr)ulJ not have repelled hurricane winds in excess of 80 to 90 miles p(;r hour" and that "[r]ecorded Hurricane Ofa winds reached 88.5 miles per hour in velocity at or about the time the shed's roof was blown onto plaintiffs' motorboat. " Slip op. at 12. In these circumstances, the court decided that the shed's construction was not a "substantial factor" in bringing about appellants' damage, citing to RESTATEMENT (SECOND) OF TORTS §§ 432(1) for the proposition that "[n]egligence of the laJldowner or land occupier is not a substantial factor proximately causing harm if harm would have occurred despite the negligence of the landowner or laJld occupier. " Rather, the lower court concluded, "Hurricane Ofa was the legal proximate cause of plaintiffs' property damage. " Slip op. at 13.
[2] Appellants contend that the trial court's conclusion of no negligence was erroneous, in that it was premised on the outmoded 1964 Uniform Building Code, since replaced by the post-Ofa adoption of the 1988 Uniform Building Code. Appellant submits that the heightened requirements of the later version of the Uniform Building Code set or established the applicable standard of reasonableness and that those requirements were known to appropriate government officials at all relevant times. Additionally, appellants contend that the trial court's finding that damage would have occurred even without negligence 011 the government's part was the product of "conjecture. " To this end, appellants argue that the court must necessarily have assumed that the day's strongest wind gusts caused the shed's roof to be blown off, when there was no testimony to that effect. Appellants further argue that the trial court was unduly influenced by irrelevant testimony as to damage occurring in the vicinity later on in the day.
The question whether the defendant's conduct was a "substantial factor" in producing harm to plaintiff is one for the fact-finder to determine, unless the testimony is so undisputed and uncontradictory that reasonable
[25ASR2d51]
men could not differ. RESTATEMENT (SECOND) OF TORTS, §§ 434, see Comment c. From our rcvicw of thc rccord bclow, wc arc satisficd that the evidence sufficiently permits one reasonably to draw thc conclusion that damage would have occurred regardless of any negligence by the government. The testimony regarding damage occurring later in thc day was hardly irrelevant, as the court was attempting to detennine whether proximate cause was or would have been the hurricane. Additionally, the court also looked at damage occurring at approximately the same time as the event in question. Furthermore, the testimony alluded to considerable other damage in the Tafuna Industrial Park area, al1d nothing on the record suggests that these other structures were also minimally constructed.
The trial court's conclusion as to causation is amply supported, and as long as reasonable people coLl1d difit'r on the facts as presented below, the decision of the fact-finder should not be disturbed. We affirm.
It is so ordered.
********",
[25ASR2d52]
111 Re a MINOR CI11LD
High Court of American Samoa Trial Division
JR 133-90 November 24, 1993
__________
[I] Tennination proceedings may only be had when the child has been neglected by his parents or is homeless.
Before KRUSE, Chief Justice, AFUOLA, Associate Judge, ,UJd BETHAM, Associate Judge.
Counsel:
For Petitioners, Roger K. Hazell
Opinion and Order on Petition to Terminate Parental Rights:
The natural mother of the male child before the court is the sister of the proposed adoptive mother. They had agreed prior to the birth of the child that the natural mother would, upon birth, surrender the child to the proposed adoptive mother and her husband to raise as their own. The child, who is now seven years of age, has been raised and cared for by the proposed adoptive parents since birth. The adoption of the child is highly recommended by the Child Protective Services, Social Services Division of the Department of Human Resources.
This matter was first initiated by the natural parents, who filed their petition to relinquish their parental rights to the child on November 6, 1990, pursuant to A.S.C.A. * 45.0115(a)(5). flowever, since the riling of their petition, the natural parents moved to the mainland, and their petition remains pending as of this date.
One year later, the proposed adoptive parents filed their own petition, under the same docket number, to terminate the parental rights of the natural parents, pursuant to A.S.C.A. §§ 45.0115(a)(3). With the filing of the subsequent petition, the natural parents filed a form acknowledging service of the proposed adoptive parents' petition, giving their consent to the termination of their parental rights in the child aJ1d waiving any right to further notice of the proceedings. It is this latter petition by the proposed adoptive parents which is now before the court.
[25ASR2d53]
[1] The petition of the proposed adoptive parents is not supported by the evidence presented. Termination proceedings under §§ 45.0115(a)(3) "may Q.!!!y [be had] when the child has been neglected by his parents or is homeless." In Re Three Minor Children, 3 A.S.R.2d 4, 7 (1986) (emphasis in original); A.S.C.A. §§§§ 45.103(19), 45.0401(1). Here the evidence simply does not demonstrate that the child before the court is "dependent and neglected" under any of the definitions provided in A.S.C.A. §§ 45.0103(19). The petition for termination should, therefore, be denied. I
It is so ordered.
*********
I In contrast to relinquishment proceedings, under A.S.C.A. §§ 45.0115(a)(5). which are voluntary in nature and wherein the natural parents are the petitioners, tern1ination proceedings,A.S.C.A. §§ 45.0115(a)(3), are adversarial in nature with tl1e natural parents being tl1e respondents. III Re Two Millor Chi[drell, 8 A.S.R.2d ?5 (1988). What tl1e evidence points to here is a situation of voluntary relinquishment and quite obviously tl1e apparent purpose behind the filing of the subsequent petition by the proposed adoptive parents was to avoid tIle necessity of requiring tl1e attendance of tl1e absent natural parents--tl1e natural parents' attendance at relinquishment proceedings is effectively required by A.S.C.A. §§ 45.0402. See III Re Three Millor Chi[drell. supra; OCR 23.
[25ASR2d54]
SIENI EUT A, Plaintiff
, , ! !; r RINI ETIMANI, CONTINENTAL TRANSPORT SEI{VICES, and ~, INSURANCE COMPANY OF THE PACIFIC, Defendants ] ~
v.
High Court of American Samoa Trial Division
cC i:c ii i [1] A motion to stay execution of judgment pending appeal is properly illitiated in the trial court pursuant to A.C.R. Rule 8(a).
CA No.134-91
November 29, 1993
__________
[2] A judgment cannot be stayed pending appeal, pursuant to A.C.R. Rule 8(a) except by court order for cause shown. A.S.C.A. §§ 43.0803; T.C.R.C.P. Rule 62(a)
[3] Under T.C.R.C.P .Rule 62(d), the trial court has discretion to stay a judgment pending appeal when a bond or undertaking is given. The decision depends on the likelihood of success on appeal, and on weighing the "balance of equities," meaning to balance the harm 1! to the party prevailing at trial if the stay is granted. agaillst the hard.,hip to thc lo.,ing party 1; if it is not. ?< ~! c4:c Ii, ~; ~ ~ [5] Factual findings of the Trial Division will not be reversed on appeal unless they are :~c clearly erroneous. A.S.C.A. §§ 43.0801(b). jE ,~ 1; Before RICHMOND, Associate Justice, and V AIV AO, Associate Judge. ~ r f' tc r " r " [C r f , l r
[4] Factors affecting the balance of equities pertaining to a T.C.R.C.P. Rule 62(d) motion for a stay pending appeal may include: (1) the complexity of the collection process; (2) the time it may take to collect a judgment after affirnlance on appeal; (3) tIle availability of funds to pay the judgment; and (4) the ability to pay the judgment.
[6] Losing litigants should not be encouraged to bring hopeless appeals simply to delay the effect of a judgment, but in a legitimate appeal the effects of delay in collecting a judgment can partially be neutralized by an undeliaking and an award of post-judgmcnt inlcrcst.
Counsel:
For Plaintiff/ Appellee, Marshall Ashley For Defendants/ Appellants Rini Etimal1i and Continental Transport Services, Afoa L. Su'esu'e Lutu For Defendant/ Appellant Insurance Company of the Pacific, Roy J.D. Hall, Jr.
[25ASR2d55]
Order Granting in Part Motions to Stay Execution of Judgment Pending Appeal:
Defendants/appellants' motions to stay execution of the judgment pending appeal of this action came regularly for hearing on November 16, 1993. For purposes of these motions, plaintiff/appellee appeared by her counsel, and all three defendants/appellants appeared by counsel Roy J.D. Hall, Jr.
[1-2] These motions were properly made in the first instance in this court. A.C.R. Rule 8(a). A judgment cannot be stayed pending appeal except by court order for cause shown. A.S.C.A. * 43.0803; T.C.R.C.P. Rule 62(a); /1sifoa v. Luulemana, 17 A.S.I~.2d 10, 12 (App. Div. 1990). Under T.C.R.C.P. Rule 62(d), the court has discretion to stay a judgment pending appeal when a bond or undertaking is given. See Asifoa, 17 A.S.R.2d at 12; see also Fed. R. Civ. P. Rule 62(d).
[3] This decision depends partly on weighing the harm to the party prevailing at the trial if a stay is granted and the hardship to the losing party if a stay is not granted, often called the "balance of equities, " and partly on the likelihood of success on appeal. Asifoa, 17 A.S.R.2d at 13; In re Matai Title Mulitauaopele, 17 A.S.R.2d 71, 73 (Land & Titles Div. 1990).
[4] Equity factors to consider when the judgment is solely for the recovery of money may include: (1) the complexity of the collection process; (2) the time it may take to collect a judgment after affirmance on appeal; (3) the availability of funds to pay the judgment; a1ld (4) the ability to pay the judgment. See Olympia Equip. Leasing Co. v. Western Union Tel. Co. , 786 F .2d 794, 796 (7th Cir. 1986).
[5] Defendants/appella1lts' success on appeal is highly improbable. The issues raised are largely, if not exclusively, related to the findings of fact. Those findings will not be set aside on appeal unless they are clearly erroneous. A.S.C.A. * 43.0801(b); Uiagalelei v. Ulq{ale, 17 A.S.R.2d 158,160 (App. Div. 1990); Moea'i v. Alai'a, 12 A.S.R.2d 91 , 92 (1989). The evidence in support of those findings is, in our view, sufficient.
[6] Concerning the equities, on the one hand, plaintiff/appellee is certainly entitled to expeditiously recover and presently enjoy her judgment, obtained some three years after this serious alld inexcusable accident. Losing litigants should not be encouraged to bring hopeless
[25ASR2d56]
I f' appeals simply to delay a judgment's effect. However, t, ~Iaintiff/appellee's be.st interest is also to be able to readily collect. her ~ judgment. The negative effects of further delay can be at least partially '; neutralized by an undertaking and post-judgment interest. :c f
On the other hand, defendant/appellant Continental Tral1Sport Services is i one of the major aiga bus companies providing public transportation in ~) American Samoa and could effectively use proper accounting procedures j, to accornrl1odate this expense. However, it does not have unlimited ; financial resources. Moreover, at the hearing on this motion, ,~ defendant/appellant Insurance Company of the Pacific offered to ?, immediately pay $10,000 of the judgment, its maximum statutory liability ;: in this case. ~ * ;(
. Considering these circumstances, as they relate to the elements of both the probability of success on appeal and the equities, e~ecution of the amount of the judgment in excess of $10,000 will be stayed, effective when the following two conditions are met.
1. Defendant/appellant Insurance Company of the Pacific has paid its $10,000 share of the judgment to plaintiff/appellee.
2. Defendant/appellant Continental Transport Services has deposited with the clerk of courts a bond or undertaking, with one or more sureties approved by the court, in double the amount of the judgment unless the surety is a corporate surety insurer authorized to do business in American Samoa, in which event the amount shall be one and one-half times the amount of the judgment. The bond or undertaking shall be on the condition that if the judgment, or any part of it, is affirmed or the appeal is withdrawn or dismissed, and if defendant/appellant Continental Transport Services is ordered to pay the judgment, or any part of it, and fails to pay the entire amount, including post-judgment interest and costs, within 30 days after the filing of the remittitur from the Appellate Division, the surety(ies) shall forthwith pay the entire amount then owing, not to exceed the amount of the bond or undertaking, and liability on the bond or undertaking may be immediately enforced. In accordance with A.C.R. Rule 8(a), the bond or undertaking shall also stipulate that, with respect to liability on the bond or undertaking, each surety is subject to the jurisdiction of the Trial Division and that the clerk of courts is irrevocably appointed as each surety's agent for service of process and other papers.
[25ASR2d57]
Defendants/appellants shall have 60 days from the entry of this order to meet the two conditions required to implement the stay of execution of the judgment pending appeal. During this 60-day period, plaintiff/appellee is enjoined from execution of her judgment. If defendants/appellants fail to meet the two conditions required to implement the stay of execution of the judgment pending appeal, this entire order shall terminate, and plaintiff/appellee may proceed with execution of her judgment.
It is so ordered.
*********
MIRIAMA N. TUIT ASI and TOILOLO FERETI, Plaintiffs
v.
LAUOFO T. KITIONA and AMITUANI N. IOSEFA, Defendants
High Court of American Samoa Land and Titles Division
LT No.3-92
November 29, 1993
__________
[1] An affidavit executed on the day notice was posted in a proposed land title registration is proof only that it was posted on that day. not that it remained posted for 60 days. An affidavit executed at tl1e end of tl1e 60 day period is evidence tl1at tl1e notice remained posted for the requisite time.
[2] While title registration is not a prerequisite to tIle validity of a documellt alienating an interest in land, it is a logical first step.
[3] Title registration must be noticed for 60 days by posting at the courthouse and at two public places in the village in which (or nearest to which) the land is located. and by publication of the notice in a local newspaper at least once every 30 days during tIle 60 day period, pursuant to A.S.C.A. §§ 37.0103(a). The applicant must provide tIle Territorial Registrar with affidavits by tIle Clerk of Courts, the village Mayor or Pulenu 'u, and from tlJe newspaper, each stating that tlJe required notice was given witllin his/her sphere. A.S.C.A. §§ 37.0103(c).
[4] Substantial compliance with the notice requirements of tIle land title registration statutes may be sufficient when non-material errors occur, such as failure to publish notice in thc
[25ASR2d58]
newspaper a second time during the notice period, particularly if tile principal ohjector knew of the proposed registration and made a timely adverse claim.
[5] The fact that this court has held, on one oecasion, tllat suhstantial compliance with statutory requirements was sufficient, should not yield an expectation tllat puhlic officials will ordinarily receive judicial recognition of their faulty acts.
[6] In the public interest, tile Territorial Registrar should estahli.sh procedures tllat will ensure tllat tile Clerk of Courts. tile village Pulenu'u. and newspaper actually post or publish the requisite notices of proposed land registration, and provide the requirt'd affidavits. In tile ahsence of more explicit statutoly direction tllal1 curremly e~ists, tile affidavit of the newspaper shouid he sigrled by tile owller. publisher, l"Jit(\r, IJr S'IIJI(' otllrr employee or agent stating his!hl:r autl1ority.
[7] Land title registration and documerlt registration laws are materially different. No statute requires eitller posting or publication of any notice when a document alienating an interest in communal land is proposed for regi-'i.!ration under A.S.C.A. §§ 37.0210. The lalld Commission could adopt rules requiring notice for document registration under tile Administrative procedures Act, A.S.C.A. §§ 4.1001 et seq., pursuant to its rule-making authority enumerated in A.S.C.A. §§ 37 .0203(d). Without a statute or fom1al rule requiring notice of document registration, tile lack of notice is meaningless as a har to proposed document registration.
[8] Since no statute or administrative rule compels the referral of objections to document registration to the Secretary of Samoan Affairs, the Territorial Registrar should not automatically make such referrals when such ohjectums arise. Such cases are pmperly forwarded to tile Secretary only if referrals are required by statute, hy administrative rule, by orders of the Land Commission on a case-by-case basis, or pursuam to specific autllority delegated to the Registrar by tl1e Land Commission. The land Commission should establish policies and criteria for making such referrals.
[9] The process of referring disputes of land lease document registration to tile Secretary of Samoan Affairs must not frustrate tile aims of A.S.C.A. §§§§ 37.0203,37.0204,37 .0221, and 37.0222, which require tile land Commission to fom1ulate recommendations for the Governor, and for the Governor to make tile final decision regarding approval or disapproval of the proposed lease.
Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, and LOGOAI, Associate Judge.
Counsel :
For Plaintiffs, Albert Mailo For Defendants, Tautai A.F, Fa'alevao
This action began as a land document registration case and evolved to also become a land title registration case. In both respects, land ownership was the underlying issue. Opportunity is also provided for interpretation and comment on the application of certain land tenure laws, as modified in 1989,
[25ASR2d59]
Judgment is entered accordingly.
It is so ordered.
*********
TI{ANSPAC COI{POI{ATION, PIailltiff
v.
CHANDE DI{AI~BLE dl>a BEACI1COMI~I~I{ (A Sole Proprietorship), Defclldallt
TRANSPAC CORPORATION, Plailltiff
v.
CHANDE DRABBLE, dba TJ'.5 RESTAVI{ANT & BAI{, Dcfclldallt
High Court or Amcrican Samoa Trial Division
CA No.1-93 CA No.2-93
November 29, 1993
__________
[1] A domestic relationship between parties to a contract taints claims of arms length dealing for purposes of determining tile existence or meaning of tile agreement
[2] The court "hould not fabricate an agreement based on reasonable inrer~nce,. wher~ the parties have either failed to agree or have yet to a.~r~e.
[3] The appropriate remedy for a lack of fillancial support from an estrang~d spou,e i, a lawsuit against him at common law. not a self-help resort to tile asset, of his coi1Joration.
Before KRUSE, Chief Justice, MAILO, Associate Judge, and LOGOAI, Associate Judge.
Counsel :
For Plaintiff, Roy J.D. Hall, Jr. For Defendant, Afoafouvale L.S. Lutu
[25ASR2d67]
Transpac Corporation (hereafter "Transpac"), a local corporation, filed uit to evict the defendant Chande Drabble (hereafter "Chande"), as the sole proprietor" of Beachcomber, a clathing shop, and TJ's, a bar and estaurant, from its Nu'uuli Shopping Center. These two establishments vere lately maIlaged and operated (unsuccessfully) by Chandc. ~eachcomber is no longer in business, and the space it once occupied las, since July 1993, reverted to TraI1Spac. TJ's, on the other hand, is lttempting some sort of comeback after several months of dormancy.
3esides its prayer for eviction, Transpac also seeks back rent from ::hande. For Beachcomber, Transpac claims unpaid rent from January l, 1988, to October 31, 1992, in the amount of $96,362.34. This lmount is said to be inclusive of iIlterest calculatcJ at thc rate of 6% pcr mnum.1 For TJ's, Transpac similarly claims rental arrears in the lmount of the $83,935.71. Additionally, Transpac ' s complaint prays for Jnspecified rent to date; however, its evidence in this regard was entative and approximate.
fhere are no written leases; however, Transpac claims oral leases and has tendered rental- arrearage statements on the basis that its figures are what third-party, arm's-length traIlsactions would have yielded for comparable space at the Nu 'uuli Shopping Center .
DISCUSSION
I. Rents
[1] We find the claims for rent and arrearage to be unfounded and, therefore, deny the same. First, there is a domestic aspect to the alleged leases which thoroughly taints any claim to arm's-length dealings. Chande is married to Tom Drabble (hereafter "Tom"), who testified that he is both president and majority shareholder of Transpac. The Drabbles' marriage has in fact failed, and Chande and Tom have gone their separate ways since January 1989, after the latter left the marital home in Iliili. Their respective attempts to obtain a divorce have been unsuccessful; the domestic court dismissed their cross-petitions, pursuant to A.S.C.A. §§42.0206(a)(5), after sustaining each party's claim of fault against the other. See Drabble v. Drabble, DR No.69-90 (1992). With
I Interest at the rate of 6% per annum may he presumed on overdue dents when there is no written agreement. A.S.C.A *2R.1501.
[25ASR2d68]
the dismissal of the divorce case, the domestic Court did not therefore address the usual ancillary issues regarding the division of marital property. See A.S.C.A. §§ 42.0210. Conscquently, thcsc procccdings have taken on the unmistakable flavor of a continuing, and as yet unresolved, domestic dispute.
In Beachcomber's case, the evidence ShoWS that this business had its inception in the pursuit of a marital purpose. This business was conceived and set up by Tom in 1975, to be run by his wife, to provide a SoUrce of income to meet the family's needs and expenses. Chande testified that she essentially ran the marital household from Beachcomber earnings without having to ask Tom tor money. She further testified that Beachcomber had contributed the sum of $30,000 towards the construction of the marital home. Although Tom now (.laims that Beachcomber is Chandc's "sole proprietorship, " thc evidence showed that Tom had, until quite recently, treated and held oUt Beachcomber as a marital asset for purposes of personal income tax filings: personal financial statements, and property settlement propoSals during the divorce action. The evidence also revealed that while Beachcomber had in the past paid rent to Transpac, it further showed that it was Tom, and not Chande, Who created the clothing Shop and set up Some sort of a tcnancy arrangement with Transpac. According to Chande, Transpac at onc time was also utilizing Beachcomber's attic for storage.
A lease, like any other bilateral contract, requires at lcast tWo parties to agree to something. Chande was not a negotiating party to any leasehold arrangement with Transpac, until quite rccently, when the latter began to make demands upon her for a written leasehold relationship--these demallds, which aroSe after the Drabbles' separation, have yet to be accepted by Chande. Tom's mere renunciation of intercst in Beachcomber and his insistence that the now-defunct Beachcomber is Chande's "sole proprietorship" does not make Chande any more a Transpac lessee than Tom.2 That Chande is the sole de[endant in this matter has, in our view, more to do with the fact that Tom is Transpac's chief executive officer rather than any arm's-length dcalings betwecn Transpac aJld Chande.
2 Chande contends that if she is liable to Transpac for rent then Tom. as her hllsband, is responsible for her debt under the ancient common law doctrine of coverture. Because of the result we reach. we need not confront the question whether this obsolete. and statntorily abolished. marital convention of old England squares with the modem day fa 'a Samoa on le nofotane (the married woman).
[25ASR2d69]
[2]
I In the case of TJ's, the evidence is also lacking with respect to a lse between Transpac and Chande. Indeed, the evidence has been to e contrary; Transpac's recent lease proposal to Chande has yet to be cepted. In these circumstances, it is not for the court to fabricate an :reement, under the guise of reasonable inferences, where clearly the lrties have either failed to agree or have yet to agree. Furthermore, I's was another idea of Tom's that started out either as a Transpac :nture, a Sadie's Restaurant (an affiliate) venture, or a personal venture, a time when the Drabbles were still a domestic unit. All that may be leaned from the testimony is that the intentions were ill-defined at the lltset, and they became even more so as the Drabbles' marital situation eteriorated. What is clear now is that Tom wants nothing more to do ,ith TJ's. We conclude that there are no oral lease agreements express r implied, between Transpac and Chande.
1. Eviction
3] On this count, Chande's only defense is that she needs the space )ccupied by TJ's in order to support herself, as she has no other source )f income. Although plaintiff may be a closed corporation and may well >e part of the marital assets subject to equitable distribution at the lppropriate proceeding, see Rocha v. Rocha, 20 A.S.R.2d 63 (App. Div. [992), Chande's self-help resort to corporate assets cannot be sustained. Her need for support is no defense; her remedy lies at common law 19ainst her husbaJ1d,3 not the plaintiff corporation. The petition for ~viction should thus be granted.
For reasons given, judgment will enter for defendant Chande Drabble on plaintiff's claim for rent and arrearage aJ1d for plaintiff Transpac Corporation on its petition for eviction.
It is so ordered .
*********
-- 3 See e.g. Garlock v. Garlock, 18 N.E.2d 521 (N.Y. App. 1939); G/1fhrie v. Hobo, 43 So.2d 871 (Miss. 1950).
[25ASR2d70]
In Re a MINOR CillLD
In the High Court of American Samoa Trial Division
JR No.46-93
December 1, 1993
__________
[I] The best interests of all persons concerned. particularly those of the minor child, must be served by the outcome of proceeding for the relinquishment of a parent-child relationship.
[2] Grandparents can be the primary caregivers of tlJeir grandchildren, a~ is often done in Samoan tradition, if all concerned agree, without legally severing the parent-child relationship. Such severance could leave the child withodt legal recourse for support during a long period of dependency if the grandparents become unable to care for her.
Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, and MAILO, Associate Judge.
Counsel: For Petitioners, Tautai A.F. Fa'alevao
Order Denying Motion for Rehearing or Reconsideration:
Petitioners' motion for rehearing or reconsideration came regularly for hearing on October 27, 1993. Petitioners appeared by counsel.
[I] The best interests of all persons concerned, and especially those of the minor child, must be served by the outcome of a proceeding for the relinquishment a parent-child relationship. A.S.C.A. §§ 45.0402(e); In re a Minor, 14 A.S.R.2d 54,55 (Trial Div. 1990); In re a Minor Child, 14 A.S.R. 82, 83 (Trial Div. 1990).
[2] In this case, the grandparents' attention and devotion to their eight-month old granddaughter is apparent. This relationship can continue to be nurtured. Indeed, if all concerned continue to agree, the grandparents are certainly free to remain the child's primary care-givers, as is often done traditionally. However, this is different than a legal termination of the natural parental relationship, which could leave the child without legal recourse for support during her still long period of dependency. The grandparents are in their sixties, while the natural parents are in their twenties. All five persons live in the same household. Under these circumstances, it is not in the long-term best interests of the child, regardless of present financial circumstances, to
[25ASR2d71]
have her relationship with her natural parents legally severed at such a tender age.
The motion is denied.
It is so ordercd.
*********
AILAFO LUA, Plaintiff
v.
UTI SALU, POI>OLE IOANE and TAli'ALA POI>OLE, Defendants
High Court of American Samoa Land and Titles Division
LT No.33-92
December I, 1993
__________
[I] Unlike its forerunner enacted in 1900. Regulation 5-1913. when in force, prohibited transfers of Samoan owned land to non-Samoans, but did not restrict transfers between Samoans. This is essentially the state of the law today, with the added requirement that the Governor must consent to conveyances of communal land.
Before KRUSE, Chief.Justice, TAUANU'U, Chicf Associate Judge, and MAILO, Associate Judge.
Counsel :
For Plaintiff, Gata Edwin Gurr For Defendal1ts, Aviata F. Fa'alevao
This dispute involves a piece of land in the village of Leloaloa and calls into question the legitimacy of a 1915 deed of conveyance of which plaintiff, who is now 82 years of age, is a beneficiary .The subject deed, dated May 17, 1915, is between Uti of Leloaloa, as gral1tor, al1d Simotu, plaintiff's mother, "in trust for her two children Ailafo al1d Atoni," as grantee. The deed further states that upon the youngest of the said children attaining the age of eighteen years, "the said children shall become the joint owners of said land in fee. " The deed was accepted for
[25ASR2d72]
registration on May 18, 1918, by the Registrar of Titles and was recorded in Journal Folio 443.
The dispute arose when the present Uti titleholder, the defendant Uti Salu, blocked plaintiff's attempts to retrace the land. Uti further allowed the defendants Popole loane and Tafala Popole to move onto on the land. A suit praying for quiet title and injunctive relief was thereafter filed.
The defendants' principal contention is that the deed is invalid because it attempts to alienate communal family lands in contravention of applicable law. They submit that certain regulations, promulgated by the United States Naval Administration a few days after the tlag-raising in 1900, prohibited the alienation of communal lands. In this regard, counsel in his opening statement drew our attention to Fe 'a v. Sisipeni, 4 A.S.R. 320, 323 (1963), wherein the ~ourt stated:
[T]his supposed gift of land by Letuli to Peniata was void, even if it did in fact occur. The Native Land Regulation of 1900 enacted on April 30, 1900 by Commander B.F. Tilley, U.S.N., Commandant, provided that "From and after the coming into force of this Regulation the alienation of native lands within the jurisdiction of the United States Naval Station, Tutuila, is prohibited. II The whole of Tutuila was included in the Naval Station. This regulation was enacted by the Commandant just 13 days after the U.S. Flag was raised at Fagatogo. It was in force in 1902 when Sisipeni claimed Letuli made the gift to Peniata.
The court then went on to hold that any gift by Letuli to Peniata "was absolutely void. II Id. On the basis of this holding, counsel submitted that the deed in question was similarly null and void.
[1] The Native Lands Regulation of 1900, Regulation No.4-1900, was amended by Regulation No.5-1913, which was enacted November 12, 1913, by C.D. Steams, Commander, U.S.N., Governor. This regulation subsequently appeared as Section 40 of the Codification of the Regulations and Orders for the Government of American Samoa ( 1917) . Section 40 provided in pertinent part:
1. The word IInative" in this Regulation shall mean and include aboriginal natives of the Islands of Samoa, and the word IInon-native" shall mean and include any
[25ASR2d73]
other person. The term "native land" shall mean and include lands owned by a native. 2. From and after the coming into force of this Regulation the alienation of native lands within the limits of American Samoa, to a non-native, is prohibited.
(Emphasis added) .U nlike its 1900 forerunner, Regulation 5-1913 merely prohibited native-land transfers to non-Samoans; it did not prohibit conveyancing transactions among Samoans.1 Since there was no evidence whatsoever to show that plaintiff and her sibling were non-natives, we conclude that the subject deed, executed and delivered in 1918, is valid and that the land conveyed by thl~ subject deed is the property of plaintiff and her sibling Atoni.2
Therefore, it is ordered, adjudged, and decreed as follows:
1. Plaintiff Ailafo Lua and her sibling Atoni are the individual owners and are entitled to the possession of certain real property situated in the village of Leloaloa, County of Maoputasi, American Samoa, more particularly described in that deed of conveyance between Uti and Simotu dated May 17, 1915, and recorded on May 18, 1915, with the Territorial Registrar's Office in Journal Folio 443;
2. The claims of defendants Uti Salu, Popole Ioane, Tafala Popole and all who claim title under them in and to said real property are without any right whatever in or to said real property or any part thereof;
Defendants Uti Salu, Popole Ioane, Tafala Popole aJ1d all persons claiming under them are hereby permanently enjoined from asserting any estate, right, title, lien, or interest in or to said real property or any part thereof .
3.
*********
I This is essentially the state of tIle law today--witll the added requirement that gubernatorial consent be first obtained before communal land can be validly conveyed. See A.S.C.A. §§ 37.0204(a).
2 In his post-trial brief, filed late, defense counsel has attempted to inject new theories which were neither raised on tIle pleadings nor in opening statement. These include a claim of adverse possession and an argument that tIle consideration recited in tIle deed was inadequate. . Notwithstanding procedural flexibility accorded by A.S.C.A. §§ 3.0242(b). these new theories are untimely raised as plaintiff has had neither notice nor opportunity to meet tl1ese additional claims. In any event, neither tlleory is sustained on the evidence.
[25ASR2d74]
TALAUEGA LETUMU, POLAPIITASI FIASEU, and FAIAAI F. MATA'U, Plaintiffs
v.
SAMOA & JEANETTE MULIPOLA, and AlA V A UA, Defendants
High Court of American Samoa Land and Titles Division
LT No.23-92
December 2, 1993
__________
[I] Evidence received prior to trial on a motion for tffilporary injnnction becomes part of the record upon trial on the merits, pursuant to T.C.R.C.P. 65. incorporated by T.C.R.L.T. 5.
Before KRUSE, Chief Justice, and LOGOAI, Associate Judge.
Counsel :
For Plaintiff, Togiola T .A. Tulafono For Defendants, Asaua Fuimaono
Following an evidentiary hearing on July 6, 1992, this court entered an order on July 10, 1992, granting a preliminary injunction enjoining tile defendants from any further construction on a certain site. Since that hearing and entry of order, the parties attended, pursuant to A.S.C.A. §§ 43.0302, the requisite reconciliatory meetings before the Office of Samoan Affairs. The Secretary of Samoan Affairs subsequently certified an irreconcilable dispute, and this matter was then set for trial after due notice to the parties. Trial was originally set for October 15, 1993; the defendants failed to appear, although their counsel did appear and represented to the court that his clients had left the island. The matter was then continued, over the objection of plaintiffs, to November 29, 1993, with the admonition to counsel that there would be no further continuances. On November 29, 1993, plaintiffs appeared with counsel, and defendants again did not. Plaintiffs then moved to submit the matter on the record. After inquiring from the defense if they had any further evidence to offer, and there being none, the court took the matter under submission.
[I] Pursuant to T.C.R.C.P. 65, incorporated by T.C.R.L.T. 5, the evidence earlier received becomes part of the record upon trial on the merits. On the record before us, we adopt and incorporate our earlier
[25ASR2d75]
~-findings contained in our order entered Jul)' 10, 1992. We conclude on the evidence that the site in question lies within the Fiaseu family's col11111unalland known as "Sopomaleula"; that the site was in the lawful use and occupation by plaintiffs' siue of the family; that ucrCnU;\l1ls' attempted, forced ouster of plaintiffs' side of the family was unlaw rlll ; and that plaintiffs, as Fiaseu family members, arc entitled to bc restorcu
to the site.
Therefore, it is ordered, adjudged, and decreed that defenda11ts, Samoa Mulipola, Jeanette Mulipola, and Aiava Ua, a11d all those in active concert with them, arc hereby permanently enjoined from further construction on the aforementioned site, on which Vai Fiaseu's hou.se was located until it \\-,IS burrll, ajld from furlh,:r intt~rJi:.rr'11('C '.'i..ir1l plaintiffs' customary rights, as I:;iascu family mcmbcrs, to lhc clljoymcIll thereof.
,"********
PAISANO'S CORPOI~ATION and JAMES STEPHENS, AppelIants
v. BLUE PACIFIC MANAGEMENT COI{P., Appcllcc
High Court of American Samoa Appellate Division
AP No, 6-93
December 7, 1993
__________
[I] A judgment of the Trial Division remains in the jurisdiction of the Trial Divi,ion, allt! attempts to enforce the judgmcnt should iJc made at the trial Icvel, not in thc AI'J1cll"lc Division,
Before RICHMOND, Associate Justice.
Counsel:
For Appellants, Roy J.D, Hall, Jr. For Appellee, William H. Reardon
Order Directing Motion for Order in Aid of Judgment to Trial Division
[25ASR2d76]
TINOUSI JENNINGS, Appellant
v.
JACK THOMPSON and ELIZA THOMPSON, Appellees
High Court of American Samoa Appellate Division
AP No.13-92
December 7, 1994
[I] 11 is within tlle court's discretion to treat an argument misdesignated as an affirmative defense, as ifit had been properly pleaded as a compulsory counterclaim. T.C.R.C.P. Rule 8(c).
[2] 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 entitled to its judicial determination. Standing concerns the party , and not the issue to be adjudicated.
[3] Conduct which has been induced by trickery cannot later be used as a basis for estoppel.
[4] Laches will generally be found where there is an unexcused or unreasonable delay by one party in asserting his or her rights, and a concomitant prejudice to the other party .
[5] As an equitable defense, laches is committed to the sound discretion of the trial court. and is reviewed for an abuse of that discretion. An appellate court will not reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment upon a weighing of relevant factors, and should not substitute its own judgment for that of the lower court.
[6] A constructive trust is a remedy used by a court of equity to compel a person who has acquired property to which he is not justly entitled to transfer it to tIle person entitled thereto. The wrongful act giving rise to a constructive trust need not amount to fraud or intentional misrepresentation. All tllat must be shown is that the acquisition of the property was wrongful and tllat the keeping of tile property by the defendant would constitute unjust enrichment.
[7] A constructive trust may arise from violation of a fiduciary duty, such as where tile property is obtained by constructive fraud or undue influence. Where there is a preexisting fiduciary relationship between the parties, a person whose property has been taken is entitled to restoration of the property itself.
[25ASR2d78]
Before CANBY,* Acting Associate Justice, MUNSON,** Acting Associate Justice, and WARD,*** Acting Associate Justice
Counsel:
For Appellant, Charles V. Ala'ilima For Appellees, Roy J.D. Hall,
MUNSON, Acting Associate Justice:
This appeall concerns title to approximately 3.5 acres of land in Pava'ia'i, on the island of Tutuila. the trial court held in favor of Jack and Eliza Thompson.2
A recitation of the facts is necessary for a full underslandin,g of all Ihat has transpired. On Dcccmbcr 13, 1948, l;'ule, ]\tlalai Oi.lht~ [Jui(~ Iamily, for himself aJ1d Pule family, conveyed title to the disputed land to Jack Thompson, as his individually-owned laJld, for the sum of $800. Jack Thompson is three-quarters Samoan blood. On April 25, 1949, the Land Commission recommended to the Governor that he approve the sale, which he did, in accordance with then-existing law. The deed was recorded with the Territorial Registrar .
On July 31,1950, Jack Thompson signed a Deed of Conveyance, transferring the land to his father-in-law, Alexander Eli Jennings, as Alexander's individually-owned land, for consideralion of one dollar. Alexander Jennings, Eliza's father, was one-half Samoan blood. Neither the Land Commission nor the Governor approved this deed, but it was
.Honorable William C. Can by. Jr., Circuit Judge, United States Court of Appeal for the Ninth Circuit, serving by designation of the Secretary of the Interior.
..Honorable Alex R. Munson, Chief Judge, United States Court of Appeal for the Ninth Circuit, serving by designation by the Secretary of the Interior.
...Honorable John L. Ward, II, Judge. District Court of American Samoa. serving by designation of the Secretary of the Interior.
I Two separate actions were consolidated below for trial, Civil Action No.11-84. and Land and Titles No.54-90.
2 The trial court denied appellant's request to award her an undivided 2/1Ss interest in tIle land, to evict appellee, to change the Territorial Registrar's records regarding ownership of the land. to impose a constructive trust on appellee's property, and to er1join appellees from making further improvemel]ts on tIle land and for $10,000 in ptmitive damages.
[25ASR2d79]
~somehow recorded with the Territorial Registrar. Jack Thompson !' testified that he did not realize that he was signing a deed. He claimed that Alexander had always told him that he would watch over the land when Jack, who was serving with the U.S. Navy, was assigned elsewhere. Jack Thompson said that Alexander only showed him the second page of what later proved to be a deed, and told him he needed to sign it to give Alexander permission to look after the land in Jack's
absence.
Between July, 1950, and his death in 1958, Alexander built a small house on the land, but it was never used as his family's primary dwelling.
Probate of Alexander's estate began in 1958 and the subject land was included as an asset of his estate. by court order dated July 26, 1962, the final distribution was made. Each of Alexander's surviving children received an undivided 2/15s interest in the property (including appellant Tinousi's husband, David), as did the heirs of Alexander's daughter Zilpher, who had predeceased him.3
Jack Thompson testified that he did not know the land was included in Alexander's estate until 1962, when the estate was probated.
A transcript of the proceedings in the 1962 probate shows that both Eliza (appellee) and her brother, David (appellant's deceased husband), wcre present and from their comments at the hearing both knew that the property was included in Alexander's estate.
David and Tinousi Jennings married in July, 1962. From 1964 until 1967 they lived in the small house which Alexallder had built on the disputed land. Tinousi testified that David had told her that it was Alexander, not Jack, who had purchased the land for $800 from Pule in 1948. David told her Alexander could not register the 1a11d because he was only half Samoan blood alld thus could not own land in 1948. David claimed Alexander had the lalld registered in Jack's name, because Jack was three-quarters SamOall. Shortly after the law challged in 1949 , Alexander asked Jack to reconvey the land to him, which Jack did b)' the 1950 deed.
Eliza and Jack Thompson returned to American Samoa to live in 1968 and 1969, respectively. When Eliza preceded Jack to Samoa she moved
J Alexander's wife apparently received the remaining 5/1.)s intere.,t in the land.
[25ASR2d80]
in to the house on thy land. She and Jack have lived on the land continuously since 1968, and have built two more houses, a small store, and a tennis court.
Tinousi claimed that she first learned of Jack and Eliza's claim to the land in 1968. However, the evidence at trial showed that neither she nor any other member of her family objected to the Thompson's claim until 1975, when Tinousi sought to build a house on the land but was refused buy the Thompson.
After the dispute with Tinousi arose in 1975, Jack Thompson in 1976 obtained a deed to the land, executed by Wallace H. Jennings, on e of Alexander's sons, as "Trustee of the Estate of Alcxander E. Jennings, Deceased."
After trial, the court made several rulings based on its findings. the trial court first found the 1976 deed invalid. the court held that because Wallace was not the trustee of his father's estate he had no legal authority to execute the 1976 deed to Jack and Eliza Thompson.
In considering the conflicting versions of the facts relating to the 1948 and 1950 deeds, the trial court found that the evidence supporting Jack Thompson's version of events was clear and convicting. The court found that under the law in 1948, Jack Thompson could own land but Alexander could not, since the former was three-fourths Samoan blood and the latter only one-half (and the court found no compelling evidence to support appellant's claim that Jack and Alexander had conspired in 1948 to circumvent Samoan land ownership law). The fact that Alexander had access to other, family-owned land upon which to build and live and Jack did not also favored Jack's account of the acquisition of the land in 1948, as did the fact that the 1950 deed had never been approved by the Land Commission or the Governor .
The court found that Alexander's 1950 acquisition of the land had come about in one of two ways. Either Alexander had induced Jack to sign the deed through constructive fraud or undue influence by playing on the family ties, or thcre was an implied promise by Alexander to reconvcy to Jack and Alexander had reneged on the agreement. The court deemed the e\'idence sufficient to support either construction of the facts. Having found that, the trial court imposed a constructive trust on Alexander to convey to Jack. The court found that upon Alexander's death the constructive trust was borne by his estate and, in turn, by the distributees after the 1962 probate.
[25ASR2d81]
Having concluded its analysis, the trial court canceled the 1950 deed and ordered that title to appellant's undivided 2/15s interest in the title should be vested in Jack Thompson through the valid 1948 deed.
ISSUES ON APPEAL
Appellant raises five issues on appeal: whether or not the trial court erred by treating the constructive trust (which had been dominated an affirmative defense) as a counterclaim; whether the trial court failed to join indispensable parties; whether estoppel by deed should have prevented Jack Thompson from denying the validity of the 1950 deed; whether the equatable doctrine of laches should have been applied to this fact situation; and, whether the evidence establishing fraud and the existence of a fiduciary duty was sufficiently clear and convincing to warrant imposition of the constructive trust.
ANALYSIS
[I] As to the first issue, appellant concedes that it is within the court's discretion to treat the claim for imposition of a constructive trust, misdesignated as an affirmative defense, as if it had been properly pleaded as a compulsory counterclaim. Trial Court Rule of Civil Procedure 8(c) provides for such treatment and there was no real prejudice to appellant. Accordingly, we find that the trial court did not abuse its discretion and the decision is AFFIRMED as to this issue.
In its July 22, 1992, decision on appellant's motion for reconsideration or a new trial, the court agreed with appellant's assertion that the court's order was too broad, because it affected property rights of persons not before it, to wit, all the remaining heirs of Alexander whose interests in the land, derived from the 1962 probate of Alexander's estate, would be affected by the court's decision. Appellant's lawsuit had sought an adjudication only of her 2/15s interest in the land. The court deemed it appellees' responsibility to attempt to join all other interested parties or the court's order regarding the land would of necessity be limited to the undivided 2/15s interest claimed by appellant Tinousi Jennings.
[2] We find that the trial court's judgment as to any interest of appellallt in the 1a11d is final, and that she lacks standing to argue the
[25ASR2d82]
indispensability of other parties.4 A court may refuse to determine the merits of a claim on the ground that, even though the claim may be correct, the litigant advancing it is not properly situated to be entitled to its judicial determination. See, e.g. D KT Memorial fund Ltd. v. Agency for Int. Dev., 887 F.2d 275,283 (D.C. Cir. 1989). Standing focuses on the party and not the issue to be adjudicated. Flast v. Cohen, 392 U .S. 83, 99, (1968). The issue of possible claims by other heirs of Alexander, while potentially problematic, must remain for another day, as we discuss below.
[3] Appellant argues that the trial court erred by basing its decision on equitable estoppel, rather than estoppel by deed. However it is characterized, the estoppel argument is not persuasive. Appellant asks us to find estoppel by deed when the trial court found that Jack Thompson's signature on the 1950 deed ha.d been obtained through trickery .We accept appellant's argument we would be countenancing an illegal transaction, since accepting her version of the facts woul~ compel us to ratify Jack and Alexander's purported 1948 attempt to circumvent the blood requirements of Samoan law.
[4] Appellant next argues that the doctrine of laches should have been applied to prevent appellees from claiming title to this property. Laches is an equitable doctrine and, as such, its application depends on the facts of each case. Brown v. Continental Can, 765 F.2d 810814 (9th Cir. 1985) .Generally, laches will be found where there is an unexcused or unreasonable delay by one party in asserting his or her rights, and a concomitant prejudice to the other party.
[5] The time-honored equity maxim that one who seeks equity must do equity applies forcefully here because the laches argument cuts both ways: Appellant failed to pursue her alleged right to the property for several years (from at least 1968 to the filing of her first lawsuit in 1983), which certainly acted to the prejudice of appellees. appellees' open and notorious possession of the land from 1968 onward put appellant on notice of their claim. As an equitable defense, laches is committed to the sound discretion of the trial court, and reviewed for an abuse of that discretion. A.C. Aukerman Co. v. Chaides CO/1st., 960 F.2d 1020 (Fed. Cir. 1992). We will not reverse unless we have a definite and firm conviction that the court below committed a clear error
4 Indeed. appellant's argument about the indispensability of the other parties rin~s somewhat hollow, given the fact that she could have included them 111 her lawsuit and. for whatever reason. did not do so.
[25ASR2d83]
of judgment in the conclusion it reached upon a weighmg ot relevant factors, United States v. Plainbull, 957 F.2d 724,725 (9th Cir. 1992), and we will not substitute our judgment for that of the lower court. United States v. ENS. , 858 F. 2d 456, 464 (9th Cir. 1988).
We cannot say that, given the facts before it, the trial court committed a clear error of judgment in the conclusion it reached. Equity aids the vigilant. Neither appellant nor appellees zealously pursued their competing claims to the property through legal channels, but appellees' presence on the property since 1968 certainly put appellant on notice of their claim. We will not alter the trial court's conclusion on that issue.
Finally, the trial court imposed a constructive trust on Alexander and, in turn, his estate and its distributees, after having found that AlexaJlder had either a fiduciary duty to reconvey the land or that he had breached an implied promise to do so .
[6-7] A constructive trust is a remedy used by a court of equity to compel a person who has acquired property to which he is not justly entitled to transfer it to the person entitled thereto. See, e.g., Haskel Eng. & Supply Co. v. Hartford Accid. & Indem., 144 Cal.Rptr. 189 (Cal.App.1978); Calistoga Civic Club v. City of Calistoga, 191 Cal.Rptr. 571 (Cal.App. 1983). "The wrongful act giving rise to a constructive trust need not amount to fraud or intentional misrepresentation. All that must be shown is that the acquisition of the property was wrongful and that the keeping of the property by the defendant would constitute unjust enrichment. " Calistoga Civic Club, 191 Cal. Rptr. at 576. A constructive trust may arise from violation of a fiduciary duty, such as where the property is obtained by constructive fraud or undue influence. See WITKIN, SUMMARY 01' CALIFORNIA LA w §§308 (9th ed. 1990). Where there is a preexisting fiduciary relationship between the parties, a person whose property has been taken is entitled to restoration of the property itself. Heckmann v. Ahmanson, 514 Cal.Rptr. 177 (Cal.App. 1985). Both Restatement of Trust 2d §§44 and Restatement of Restitution §§ 182 approve the imposition of a constructivc trust where the transfer was procured by fraud or where the transferee was in confidential relation to the transferror .
CONCLUSION
Given the facts as the trial court found them to be, we cannot say that the court erred as a matter' of law in fashioning the remedy of constructive trust to undo a forty-year-old wrong and finally clear at Ieast a portion
[25ASR2d84]
of the title to the land. Our consideration of this issue is constrained by our recognition that the judges in the trial court had the opportunity to listen to the witnesses, to observe their demeanor as they testified, and to make judgments as to their veracity and credibility.
FOR THE REASONS SET FORTH ABOVE, the judgment of the trial court is AFFIRMED as to appellant. We join in the trial court's ad1Donition to appellees to promptly resolve, whether by quitclaim deed, further litigation, or otherwise, any and all questions concerning the remaining undivided interests. We note, again, however, that appellees' victory is but a partial one. As the trial court ruled, appellees must expeditiously seek to quiet title to the remaining undivided interests which have not yet been adjudicated in this proceeding. Until they have done so, they will continue to suffer uncertainty as to their full ownership.
It is so ordered.
*********
RICHARD JOHNSON, Plaintiff
v.
ROBERT B. COULTER dba SOUTH PACIFIC ENGINE & REPAIR, and SOUTH PACIFIC ENGINE & REPAIR, INC., a Corporation, and SAMOA NAPA, INC., a Corporation, Defendants
High Court of American Samoa Trial Division
CA No.22-91
December 7, 1993
__________
[I] A request to produce under T.C.R.C.P .Rule 34 may only he directed to parties to the action. Parties may include non-party corporatiolls which are subsidiaries of parties.
[2] A witness who is not an officer of a party is a non-party witness. and her testimony may he compelled only by a subpoena issued and served in accordance with T.C.R.C.P. Rule 45(d).
[25ASR2d85]
[3] The party upon whom a request to produce is served, pursuant to 1.L.R.L:.P. !{ule 34(b), must serve a written response within 30 days after service of the request unless the court permits a shorter length of time.
[4] Discovery is a liberal process under T.C.R.C.P. Rule 26(b)(I), and may include any relevant, non-privileged material.
[5] Under a motion for attorney's fees and costs filed pursuant to T.C.R.C.P. Rule 37(a), the court may require either party , or tile attorney advising the conduct tllat necessitated tile motion, to bear all or part of such costs.
Before KRUSE, Chief Justice, MAILO, Associate Judge, and BETHAM, Associate Judge.
Counsel:
For Plaintiff, Robert Dennison III For Defenda11ts, Roy J.D. Hall, Jr.
Order on Motion Compelling Discovery and for Sanctions:
Plaintiff Johnson requested the production of certain documents to be made at the deposition of defendant Coulter and one Katherine Lindgren. Coulter and Lindgren refused to produce documents relating to events after June 1990. Johnson now seeks an order under T.C.R.C.P. 37 compelling production and the award of sanctions. Coulter, in his memorandum in opposition to plaintiff's motion, makes three points: (I) that Coulter and Lindgren were improperly noticed, (2) that insufficient notice was afforded Coulter and Lindgren, and (3) that the materials sought are not relevant or are subject to restrictions. Coulter also objects to the request for sanctions as being outside the court's discretion.
DISCUSSION
I. Improper Notice
[I] Coulter correctly states that a request to produce under T.C.R.C.P. 34 may only be directed to parties to the action. However, the rule also talks about the production of documents or things in the "possession, custody or control" of a party. Thus, documents in the possession of a party's subsidiary were found to be within the party's control and were required to be produced under T.C.R.C.P. 34's federal counterpart, F.R.C.P. 34. Georg Hantscho v. Miehl-Goss-Dexter, 33 F.R.D. 332 (1963 S.D. N .y .). In Standard Insurance v. Pittsburg Electrical Insulation, 29 F.R.D. 185, 188 (1961 D.C. Pa) the court ruled that a motion for production .of documents was not defective even though it requested documents from a corporation not a party to the action. The
[25ASR2d86]
court held that because the corporate defendant owned 100 % of the non-party's stock, both corporations occupied the same premises, and the defendant's corporate manager was also in charge of the records, the corporations were "substantially one."
In this case, Coulter is a party, and the suit itself names Coulter personallyand "doing business as'' South Pacific Equipment and Repair, South Pacific Equipment and Repair, Inc., and Samoa Napa, Inc. Additionally, in defendant's answers to plaintiff's interrogatories, question 25, Coulter lists only himself as the shareholder of Spear or Samoa Napa (Defendant's Answers to Interrogatories at 7). The deposition as regards Coulter was, therefore, proper .
[2] Lindgren, on the other hand, is not a party to the action.1 She was identified by Coulter in his answers to plaintiff's interrogatories as an expert witness whom he intends to call at trial (Defendant's Answers to Interrogatories at 7). Johnson could have sought, .pursuant to T .C.R.C.P .26(b)(4)(A), a court order to obtain further information from Lindgren in her capacity as an expert witness, but he has not. If Lindgren's expertise relates only to matters not in preparation for trial, that is; in the course of her employment, she is to be treated as a regular witness in any case. Therefore, Lindgren could have been deposed as an employee of the defendants. If Lindgren is an officer of Coulter's, and we do not now have enough information to state that she is, the notice given would have been sufficient. However, assuming that Lindgren is not an officer of Coulter's, her attendance is properly sought through T.C.R.C.P. 45, as a non-party witness. "A mere witness ...attendance may be compelled only by subpoena issued and served in accordance with Rule 45(d)" Sekely v. Salkind, 10 F.R.D. 503 (S.D.N.Y. 1950). Therefore, the deposition as regards Lindgren was improper .
II. Insufficient Notice
[3] Coulter claims that insufficient notice was afforded Coulter and Lindgren (although brief refers only to "defendants" we assume Coulter meant himself and Lindgren, although he is also arguing that Lindgren
I The notice of deposition to Lindgren merely certifies that "plaintiff' s counsel" was served through his court box; there is no indication that Lindgren herself, a non-party, was at all served in accordance with the rules. TCRCP 30(a) provides that "the attendance of witnesses may be compelled by subpoena as provided in 45 TCRCP, " and where production is sought from tlJe person to be deposed, TCRCP 30(b)(t) provides for the use of a subpoena duces tecum. A subpoena, however, has to be served personally. TCRCP 45(c).
[25ASR2d87]
, is a non-party). The notice of "deposition duces tecum" was forwarded to defendant's lawyer 3 days in advance of Lindgren's deposition and 4 days in advance of Coulter's deposition. As per Coulter, who was deposed according to rule 30(b)(5), the proper procedure is that of rule 34. Rule 34(b) states that "the party upon whom the request is served shall serve a written response within 30 days after the service of the request. ..."The court may allow a shorter length of time. Here Coulter choose not to produce the asked for documents and there is no showing that he was unable to produce the documentation because of insufficient time. Additionally, in plaintiffs' requests for production of documents and things, served June 5, 1991, plaintiff requested all documents that related to the lawsuit. While this was a broad request, plaintiff did begin seeking releVallt documentation over 2 years ago.
,:
; 1 ;; ! 0:\ c , , . c~ f~ I ~',c Coulter claims, for several reasons, that the information sought is li irrelevant or subject to restrictions.. First, Coulter claims .that Spea~ ~d I; Samoa Napa are not partnerships, but separate busl11ess entitles. E However, this questio~ is cen~ral to the la"!suit and discovery her~ is an ~~ attempt to answer thIs question. Materials so related are obvIously If relevant. Coulter next submits that sought materials are confidential ~i business information whose withholding would not prejudice Johnson. ~ Again, it is this business information that is relevant to determining the Pi central questions of the suit. The materials sought here are relevant and
I '~ "not privileged " and: therefore, not exempt from disclosure, although ~, certain items (such as tax returns) do contain confidential information. ~' If reasonable protective measures are needed, relief CaJ1 be sought under
As Lindgren was improperly noticed, we need not address whether or not the 3 days notice she was afforded was sufficient.
III. Issue of Relevancy
[4] Discovery is a liberal process. T.C.R.C.P. 26(b)(1) states that, in general: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. ...It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
[25ASR2d88]
T.C.R.C.P. 26(c)(7)--indeed, Johnson "agrees to reasonable tel regarding selective non-disclosure. " Additionally, Coulter states tha is "irrelevant" whether or not partnership funds were used to capita] the corporations named herein. However, this information may relevant to issues of the dissolution of any partnership, and the possi constructive trust. Relevance is liberally construed to encompass matt that could lead to matters that bear on the case. Therefore, the ite sought are relevant.
IV. Sanctions
[5] As stated by defendant, sanctions (save costs, as discussed belc would be inappropriate at this time. However, plaintiff has not reques sanctions under 37(b) (available only after a court order has not bl obey(:d). Plaintiff has only requested att8mey's fees and costs, sancti~ that are available under rule 37(a).
Under rule 37(a) the court may require the party or deponent wh; conduct necessitated the motion, or the party or attorney advising SI conduct, or both, to pay reasonable expenses incurred in obtaining order, including attorney's fees. Expenses may also be awarded to non-movant if the motion is denied, or allocated if the motion is gran in part. The court may find that opposition to the motion, or ot circumstances, make an award of expenses unfair .
In this case both sides have made a good faith showing for th respective arguments, and an award of expenses is, in our view, warranted.
CONCLUSION
Coulter was properly noticed. He was afforded insufficient tir although there is no showing that because of this he was unable produce the requested items. As the items asked for are relevant to suit at hand, Coulter is directed to produce them, provided that John~ abides by his agreement to reasonable terms regarding select non-disclosure.
Lindgren was not properly noticed. Relief sought against her is deni,
Sanctions appear inappropriate at this time and thus plaintiff's request costs and attorney's fees is denied.
[25ASR2d89]
.ills It it lize be ble
ers :ills
)w) ted
~en
)11S
ose lch the the ted her
lelr not
ne, to the
;on ive
ed.
for
It is so ordered.
*********
In Re a MINOR CIIILD
High Court of American Samoa Trial Division
JR No.53-92
December 8, 1993
__________
[1] This court has been loathe to take tIle drastic action of severing a child's legal relationship to his or her natural parents, unless it is satisfied that tIle child will realize some net benefit through the change in legal status and a severance of legal ties to tIle natural parents and corresponding obligations of support.
[2] A change in legal status in not necessary to facilitate customary fa'a Samoa adoption.
Before KRUSE, Chief Justice, TAUANU'U, Associate Judge, a11d V AIV AO, Associate Judge.
Counsel:
For Petitioners, Roger K. Hazell
Order Denying Petition for Voluntary Relinquishment:
The natural parents have filed a petition for voluntary relinquishment in seeking to terminate their parental rights to their nine year old daughter , whose adoption is being sought by her maternal grandparents. As in most petitions anticipating grandparent adoption, the principal ground advanced for termination is that the child has been in the primary care of the grandparents since birth.
[1-2] In these matters, the court has been loathe to sever a child's legal relationship to his or her parents unless it is satisfied that the child's best interests are enhanced by the drastic action of changing his or her legal status. Thus, the Court has taken care to ensure that there be some "net benefit" to the minor before severing his legal ties to his natural parents and their corresponqing obligations of support. In re Two Minor Children, 11 A.S.R.2d 108, 109 (1989); see also In re A Minor Child, 13 A.S.R.2d 33 (1989); In re A Minor Child, 12 A.S.R.2d 15 (1989).
[25ASR2d90]
While the law does not discourage adoption in accordance with Samoar custom, a change in legal status is not necessary to facilitate customary fa 'a Samoa.
Here, the evidence simply does not tell us that the parents are les~ equipped than the grandparents, who have undoubtedly proven fit and capable caregivers, to provide for the child. Especially in terms of hel "future" interests, the child is better off remaining legally dependent on her younger and able-bodied parents.
We are unable to say that the child's interests would be better served by changing her legal status and thereby terminating her right to look to he] parents for future support. The petition is, therefore, dismissed.
It is so ordered.
*********
EMMA ISUMU RANDALL and TAULIA ISUMU, Plaintiffs
v.
LEAPAGA KESI, Defendant
High Court of American Samoa Land and Titles Division
MT No.3-91
December 10, 1993
__________
[I] A matai who has been away from American Samoa for than one year is an absent matai and is subject to removal from office pursuant to A.S.C.A. §§ 1.0412(a). Illfrequenl irregular, and brief returns do not toll a matai's absent status.
[2] The court's discretion to remove a matai may be influenced. but not fettered. by th health of matai and his spouse, and by his support from family members willing to activel serve him.
[3] The interests of a family cannot be well served by a matai who does not live in th family village.
[25ASR2d91]
[4] It is self -evident that a matai's place is with his family, and that tlle meaningful exercise of his duties demands his continuing presence in the territory .
Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge, and BETHAM, Associate Judge.
Counsel:
For Plaintiffs, Afoa L. Su'esu'e Lutu For Defendant, Gata E. Gurr
This action seeks the removal of the matai title "Leapaga" from defendant Leapaga Kesi. The trial was held on October 27 and 29 and on November 1 and 3, 1993. The parties were present personally and by counsel throughout the proceedings.
The action was brought under A.S.C.A. §§ 1.0412(a). Upon the filing of a petition by any member of the family of any matai absent from American Samoa for more that1 one year, this statute authorizes the High Court to rcmovc thc absent matai's title. Thc court's authority is fully discretionary , and in exercising that discretion, the court may consider the reasons for the matai ' s absence and the wishes of the family members actively serving the matai.
Defendant is the sa'o or senior matai of the Leapaga family of Nu'uuli, American Samoa. His investiture to that highest of aiga or extended family positions was celebrated in 1958. He was, however, a heavy equipment operator, and when his job on the Pago Pago International Airport project was completed in the early 1960s, he moved with members of his immediate family to live and work in Hawaii. After his retirement, he continued to live outside of American Samoa, for the most part with his children scattered about the U .S. mainland, principally in California.
Defendant claimed to have frequently returned to American Samoa, usually every three to four months, and never less than once a year . However, his U.S. passport issued in 1977 shows only 10 entries in almost 13 years'--two in 1978, three in 1982, one in 1983, one in 1984, two in 1988, and one in 1990. His passport issued in 1990 shows seven more entries--one in 1990, two in 1991, two in 1992, and two in 1993.
I This passport was issued on November I, 1977, and expired on October 31. 1987. Defendant successfully continued to use this passport for travel purposes until his current passport was issued on June 20, 1990.
[25ASR2d92]
Clearly, his return trips were less frequent and more sporadic than claimed .
Defendant's explicit reasons for remaining outside American Samoa relate to medical treatment and recuperation. As is to be expected at age 79, defendant has received medical care in recent years, including surgery in 1987 and treatment for hypertension in 1990 and 1993. His wife is confined to a wheelchair and has been in poor health for many years now.
During his absence from American Samoa, defendant has largely performed his sa'o responsibilities through a surrogate. At times, he has even enlisted an untitled family member for this purpose for substantial periods. l\pparcntJ:f, this arrarlge1l.cnt has fuf1ctiorlcd !;ajj!;factorll:y' f()r Leilpaga obljg.\tion~ in village affvirs. Dcfcr:ld.u1r ai~o a~)pcar(.d al some family fa'alavelave or events and, if informed of them, sent some instructions for others. While the identity and, hence, the suPI){)rt of the Leapaga clans were disputed, many, if not most, family members would continue to render tautua or traditional service to defendant and Wallt him to retain his title. The principal exceptions are plaintiffs and members of their immediate family.
Nonetheless, the Leapaga communal family lacks genuine leadership and is in disarray. Plaintiffs' father and defendant are brothers, who have been unable and probably unwilling to get along with one another for many years. Plaintiffs' father is older than defendant and has harbored a long-standing grudge against defendant as a result of the latter's selection as the family's sa'o. Plaintiffs' father has exercised self-proclaimed pule or control over the family's communal lands. He has been involved in at least 10 intra-family alld third-party land disputes in this court during the last 11 years.
In 1982, plaintiffs' father initiated the first attempt to remove defendant's matai title. ISll1llll v. Leapaga, MT No.6-82 (Land & Titles Div. 1982). 11le court denied the petition in that case in the interests of promoting family peace and harmony, noting that defendallt had returned to American Samoa and apparently had the support of the ma.jority of the family. However, defendant did not stay and optcd to contillUe his role as an absent sa'o. Falnily peace and harmony were not promoted, but only continued to deteriorate as time passed.
[1] Based on these findings, we reach the following conclusiolls. First, defendant is an absent matai, who has been away from American Samoa
[25ASR2d93]
for more than one year and is subject to removal of his title under A.S.C.A. §§ 1.0412(a). His infrequent, irregular at1d brief returns did not interrupt or toll his absent status. See Aoelua Family 11. Aoelua, 17 A.S.R.2d 88 (Land c::. Titles Div. 1990), aff'd 21 A.S.R.2d 1 (App Div. 1992).
(~ ~
[2] Second, the court's discretion to remove dcfendant's matai title may be influenced but not fettered by the state of defendant's and his wife's health arid by defendant's support from family members willing to actively serve him. A.S.C.A. §§ 1.0412(a); see A.S.C.A. §§ 1.0404(b); see also Aoelua, supra, 21 A.S.R.2d at 2-3.
[3-4] Third, we are persuaded that defendant's long-term absence is so deleterious to the Leapaga family's well-being as to require removal of his title. As was pointed out in Galu v. Mariota, I A.S.R. 461,463 (1932), "[T]he interests of the family can [not] be well served by a matai who does not live in the Village where the family of which he is the matai has its situs." And very recently in Aoelua, .I.upra, 17 A.S.R.2d at 90:
The Fono's enactment ofA.S.C.A. §§ 1.0412(a) merely highlights the self-evident truth that a matai's place is with his family and that the meaningful exercise of his duties demands his continuing presence in the territory .
The Leapaga title is removed from defendant. accordingly.
Judgment shall enter
It is so ordered.
*",*******
[25ASR2d94]
SOLI CORPORATION, SOLI AOLAOLAGI, and MAI{K MEREDITH, Appellants
v.
AMERIKA SAMOA BANK, DEVELOPMENT IJANK OF AMERICAN SAMOA, and UNITED STATES SMALL BUSINESS ADMINISTRATION, Appellees
High Court of American Samoa Appellate Division
AP No.8-93
December 15, 19~3
[1] Mere disagreement with the appellate court's imel-pretation of statutes. rulcs, and case authorities is not a basis for rehearing.
[2] The fact that an associate judge who heard a case at trial also heard the case on appeal. a violation of A.S.C.A. §§ 3.1007(b), was not a basis for reconsideration of the appeal where a quorum existed without the violating judge, the violating judge's vote was not outcome determinative, the decision of the court was unanimous, and the complaining party waited umil after the decision was rendered to object.
[3] If a party fails to object to the presence of an associate judge on the appellate panel until after the decision has been rendered, this failure constitutes a waiver of the objection.
Before KRUSE, Chief Justice, CAN BY ,* Acting Associate Justice, MUNSON ,** Acting Associate Justice, V AIV AO, Associate Judge.
Counsel :
For Appellants, Roy T. Chikamoto aIld Gata E. Gurr For Appellee Amerika Samoa Bank, William H. Reardon For Appellee Development Bank of American Samoa, Marshall Ashley For Appellee United States Administration, Roy J.D. Hall, Jr.
Small
Busines~
.Honorable William C. Can by. Jr.. Circuit Judge. United States Court of Appeal fa the Nimh Circuit, serving by designation of the Secretary of the Imerior.
..I1onorable Alex R. Munson, Chief Judge, United States Court of Appeal for ti" Nimh Circuit. serving by designation by the Secretary of the Imerior.
[25ASR2d95]
Order on Motion for Rehearing:
On November 29, 1993, appellants filed a petition for rehearing under A.C.R. 40. For the following reasons, their petition is denied.
pelJants' petition for rehearing is denied.
[25ASR2d96]
It is so ordered.
*********
ELIZABETH ANN DeST AEL, Plaintiff
v.
KEITH HEADLEY STRASBURG, Defendant
High Court of American Samoa Trial Division
CA No.121-93
December 17, 1993
__________
[1] The High Court of American Samoa is empowered to enforce a judgment of any United States court or oth~r court entitled to full faith and credit in American Samoa under the Uniform Enforcement of Foreign Judgments Act. A.S.C.A. §§§§ 43.1701-09.
[2] In enforcing a foreign judgment, the High Court may not relitigate the merits of the original action or consider a defense that could have been raised in the original action.
Before KRUSE, Chief Justice, and T AUANU'U , Chief Associate Judge.
Counsel:
For Plaintiff, Marshall Ashley For Defendant, Ellen A. Ryan
Order on Motions for Permanent Injunction and Enforcement of Foreign Judgment:
On August 25, 1993, a Judgment and Decree of Dissolution of Marriage was filed in the Circuit Court for Multnomah County, Oregon. Subsequently, defendant entered American Samoa aboard the yacht "Pangaea," a marital asset. On November 19, 1993, the High Court issued a preliminary injunction barring defendant from "entering onto, interfering with, or damaging the yacht." On December 16, 1993, a hearing was held concerning plaintiff's motion for enforcement of a foreign judgment and her motion for a permanent injunction.
[25ASR2d97]
[1-2] The High Court is empowered to enforce a judgment of any United States court or other court entitled to full faith and credit in American Samoa under the "Uniform Enforcement of Foreign Judgments Act." A.S.C.A. §§§§ 43.1701-43.1709; see 28 U.S.C. §§ 1738. In this regard, the general rule is that a court may not relitigate the merits of the original action or consider a defense that could have been raised in the original action. Bahrv. Bahr, 180 N.W.2d465,467 (S.D. 1970) (citing Picking v. Local Loan Co. , 44 A.2d 462, 468 (Md. App. 1945»»; see Klee v. Cola, 401 So. 2d 871,872 (Fla. App. 1981) (citing Whiteside v. Dinkins, 97 So. 517 (Fla. 1923»».
In granting the divorce decree, the Oregon court made a factual finding that DeStael was a resident under the residency/domicile requirement of or. Rev. Stat. §§ 107.075. This court is thus precluded from questioning the Oregon court's findings of fact and its corresponding interpretation of Oregon law. Therefore, plaintiff's motions are granted.
It is so ordered.
*****'i'***
ALAMOANA RECIPE INC., a Corporation; and ALAMOANA S. MULIT AUAOPELE, Plaintiffs
v.
AMERICAN SAMOA GOVERNMENT; UNITED STATES INTERNAL REVENUE SERVICE; WILLIAM M. MELENDEZ, Internal Revenue Officer, United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants,
High Court of American Samoa Trial Division
CA No, 92-93
December 20, 1993
__________
11] Federal FICA applies to any employment performed within the U.S. or outside the U.S. if performed by U.S. citizens or residents, pursuant to 26 U.S.C. §§ 3121(b), and applies specifically to American Samoa, pursuant to 26 U.S.C. §§ 3121(e).
[25ASR2d98]
[2] Federal laws need not be passed by the American Samoa legislature, since Congress has the constitutional power to make rules and regulations for the territories, pursuant to U .S, Const. art. VI, and the federal Constitution and laws are the sopreme law of the land, pursuant to U .S. Const. art. IV, §§ 3.
[3] American Samoa's constitution was promulgated under the authority of Congress and the President of the United States, as delegated to the Secretary of the Interior. Revised Const. Of American Samoa, Preamble and art. V, §§ II (1967).
[4] Under the Deeds ofCession between the chiefs of Eastern Samoa and tile United States, all vestiges of sovereignty passed from former to tile latter.
[5] The High Court lacks jurisdiction to block enforcement of federal tax laws.
[6] The High Court lacks jurisdiction to grant relief for unautllorized tax collection by tile IRS, since such actions must be brought in a district court of tile United States, pursuant to 26 U .S.C. §§ 7433(a).
[7] American Samoans may litigate unauthorized tax collections in tile federal district coul1 where the defendant resides, where a substantial part of the claim arose, or where 3 substantial part of the relevant property is situated.
[8] Appeals of the High Court's decisions are accomplished by suing tile Secretary of tilt Interior in his official residence in Washington, D.C.
Before KRUSE, Chief Justice, and AFUOLA, Associate Justice.
Counsel:
Plaintiff Alailloana S. Mulitauaopele, Pro Se For Defendant American Samoa Government, Chery A. Quadlander, Assistant Attorney General For Defendants William A. Melendez, Internal Revenue Servic aIld Department of the Interior, Thomas J. Sawyer, Tri; Attorney, U .S. Department of Justice
Order on Motions to Dismiss:
PROCEDURAL HISTORY
On October 26, 1993, defendant American Samoa Government filed i motion to dismiss. Defendants Melendez, Internal Revenue Service, ar Department of the Interior filed their motion to dismiss on N oveillber l' 1993. A hearing on ASG's motion, scheduled on November 22, 199 was continued to permit both motions to be heard on December 1 1993.
[25ASR2d99]
FICA'S APPLICATION TO AMERICA SAMOA
1
] As noted in the "Opinion and Order Denying Petition for Temporary estraining Order, " FICA applies to any employment performed within e U.S. or outside the U.S. if performed by U.S. citizens or residents. 6 U.S.C. §§ 3121(b). For purposes of the FICA chapter, Congress xplicitly defined "state" and "United States" to include American amoa. 26 U.S.C. §§ 3121(e). As such, employers and employees in merican Samoa must pay the mandated Social Security taxes. ] Furthermore, plaintiff Mulitauaopele's argument that the federal laws ust be passed by the American Samoa legislature in order to be ffective in the territory is clearly wrong. The Supremacy Clause eclares that " [t]his Constitution, and the laws of the United States which all be made in Pursuance thereof. ..shall be the supreme Law of e Land." U .S. Const. art. VI. Furthermore, "Congress shall have ower to dispose of and make all needful Rules and Regulations specting the Territory or other Property of the United States." U .S. onst. Art. IV, §§ 3. -4] Likewise, American Samoa's constitution itself proclaims that it as promulgated under the authority of Congress and the President of the nited States, as delegated to the Secretary of the Interior. Revised onst. of American Samoa Preamble and Art. V, §§ 11 (1967); see 48 .S.C. §§ 1662(a) (" Amendments of, or modifications to, the constitution f American Samoa, as approved by the Secretary of the Interior. .. y be made only by Act of Congress. "). Under the Deeds of Cession etween the chiefs of Eastern Samoa and the United States, all vestiges f sovereignty passed from the former to the latter. See 48 U .S.C. §§§§ 661, 1662; Cession of Tutuila and Aunu'u, April 17, 1900, A.S.C.A., istorical Docs. & Consts.; Cession of Manu'a Islands, July 14, 1904, .S.C.A., Historical Docs. & Consts.; Bell v. Commissioner, 278 F.2d 00, 102 (4th Cir. 1960) ("rulers of Samoa ceded absolutely all rights of vereignty over these islands to the United States"); Vessel Pacijlc rincess v. Trial Division ~f the High Court of American ,)amoa, 2 .S.R.2d 21, 23 (App. Div. 1984) ("American Samoa is still legally overned by executive fiat and administered by the Secretary of the terior"). Thus, Social Security taxes may be collected without the ono's approval.
e tI
ts Id
JURISDICTION AND VENUE
[25ASR2d100]
[5] Plaintiff Mulitauaopele has once more requested a temporary restraining order and an injunction barring enforcement of the FICA assessment. He also seeks damages for alleged injury resulting from his business' closure. However, the High Court is powerless to grant the desired relief, even if proper .
First, as this court observed in denying a temporary restraining order, the prohibitions of the Anti-Injunction Act are comprehensive. This statute states that" no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person. II 26 U.S.C. §§ 7421(a) (emphasis added); see Enochs v. Williams Packing & Navigation, 370 U.S. 1,5,8 L. Ed. 2d 292,295 (1962). Thus, the High Court lacks jurisdiction to block enforcement of federal tax laws.
[6] Second, the High Court lacks jurisdictiofi over plaintiff's request for money damages. Although Congress has authorized suits to collect damages for "unauthorized collection actions" by the Internal Revenue Service, these suits must be brought in a "district court of the United States. II 26 U .S.C. §§ 7433(a). However, the High Court is not a U .S. II district court, II nor has it been given the authority to act as a district court for purposes of this statute. This conclusion is supported by the fact that Congress explicitly named American Samoa in a number of places in the tax code (including the definitions of IIstate" and "United States") but did not do so when it mentioned "district courts." This situation is similar to that of the High Court's admiralty jurisdiction, in which the High Court is not a "district court" for purposes of the federal Limitation of Liability Act but has been given the authority to act as one for purposes of the federal preferred mortgage lien statute. Compare In re Complaint of Interocean Ships, Inc. , 2 A.S.R.2d 76, 79 (App. Div. 1985) (no jurisdiction under Limitation of Liability Act, 46 U .S.C. §§ 185) with United Airlines Employees' Credit Union v. M/V Sans End, 15 A.S.R.2d 95, lOO (Trial Div. 1990) (46 U.S.C. §§ 31301(2)(E) defines the High Court as a "district court" for the purposes of enforcing preferred mortgage liens under 46 U.S.C., Chapter 313). In any event, plaintiff has not shown that he has exhausted his administrative remedies, and the request for damages exceeds the $laa,aaa statutory limitation. See 26 U.S.C. §§ 7433(b), (d)(l).
[7-8] If plaintiff was denied any opportunity for review by a federal court created under Article III, serious constitutional problems could arise. See Guam v. Olsen, 431 U.S. 195, 204, 52 L. Ed. 2d 250, 258 (1977) (denying appellate review of territorial-court decisions by Article III courts "might present constitutional questions"); King v. Morton, 520
[25ASR2d101]
F.2d 1140, 1144 (D.C. Cir. 1975) ("availability of remedies in the Samoan courts [to persons challenging actions of United States Government officials] ...cannot act as a complete bar to district court proceedings ") .A rational basis, though, may exist to justify Congress' failure to provide for direct review by an Article III court. Corporation of the Presiding Bishop of the Church of J esus Christ of the Latter-Day Saints v. Hodel, 830 F.2d 374, 386 (D.C. Cir. 1987). So while the High Court lacks jurisdiction in this case, plaintiff is not precluded from litigating in a federal district court.
Regarding civil suits against an officer or agency of the United States, the federal venue statute reads as follows:
A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action.
28 U.S.C. §§ 1391(e); see generally Annotation, Construction and Application of 28 USC §§ 1391 (e) Providing for Venue and Process in Civil Actions Against Federal Officers, Employees, or Agencies, 9 A.L.R. Fed. 719 (1971 & supp. 1990); I MOORE'S FEDERAL PRACTICE , 0.142[7] (1985). Under this provision, proper venue could at least be established under subsection ( 1) .While such a forum may not be convenient, it is no more so than appeals of the