MATT LE'I, Appellant

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

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

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. 壯 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. 壯 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

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. 壯 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. 壯 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

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. 壯壯.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. 壯壯 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, 壯 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

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 壯 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, 壯 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. 壯 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 壯 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. 壯壯 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. 壯 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. 壯 45.0115(a)(5). which are voluntary in nature and wherein the natural parents are the petitioners, tern1ination proceedings,A.S.C.A. 壯 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. 壯 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 ] ~

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. 壯 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. 壯 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

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. 壯 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. 壯 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. 壯 37.0210. The lalld Commission could adopt rules requiring notice for document registration under tile Administrative procedures Act, A.S.C.A. 壯 4.1001 et seq., pursuant to its rule-making authority enumerated in A.S.C.A. 壯 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. 壯壯 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

CHANDE DI{AI~BLE dl>a BEACI1COMI~I~I{ (A Sole Proprietorship), Defclldallt

TRANSPAC CORPORATION, Plailltiff

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. 壯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. 壯 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. 壯 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

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 .

*********

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. 壯 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. 壯 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

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. 壯 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

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 壯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 壯44 and Restatement of Restitution 壯 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

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

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. 壯 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. 壯 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. 壯 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. 壯 1.0412(a); see A.S.C.A. 壯 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. 壯 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

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. 壯 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

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. 壯壯 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. 壯壯 43.1701-43.1709; see 28 U.S.C. 壯 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遙; see Klee v. Cola, 401 So. 2d 871,872 (Fla. App. 1981) (citing Whiteside v. Dinkins, 97 So. 517 (Fla. 1923遙.

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. 壯 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

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. 壯 3121(b), and applies specifically to American Samoa, pursuant to 26 U.S.C. 壯 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, 壯 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, 壯 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. 壯 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

] 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. 壯 3121(b). For purposes of the FICA chapter, Congress xplicitly defined "state" and "United States" to include American amoa. 26 U.S.C. 壯 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, 壯 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, 壯 11 (1967); see 48 .S.C. 壯 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. 壯壯 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. 壯 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. 壯 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. 壯 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. 壯 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. 壯 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. 壯 1391(e); see generally Annotation, Construction and Application of 28 USC 壯 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 High Court's decisions in federal court, which is accomplished by suing the Secretary of the Interior in his official residence in Washington, D.C. See King, 520 F.2d at 1144 ("Secretary lof the Interior] is within the geographical jurisdiction of the United States District Court for the District of Columbia"); Presiding Bishop, 637 F. Supp. at 1416 ("litigants in

[25ASR2d102]

American Samoa may obtain review in this Court via the mechanism of suing the Secretary of the Interior").1

CONCLUSION

First, Congress has mandated that Soci"ll Security taxes be assessed in American Samoa. The absence of apprt>val by the Fono is irrelevant. Second, the High Court lacks jurisdiction to enjoin the collection of FICA or to hear a suit for damages resulting from unauthorized collection actions. Therefor~, defendants' motions to dismiss are granted.

It is so ordered.

********* &

I Nevertheless. the absence of a court which can handle all federal matters arising in American Samoa has not only led to great inconvenience to plaintiffs and defendants bul has also resulted in confusion as to the High Court's jurisdiction over questions of federal law. The piecemeal approach of giving the High Court authority to act as a federal districl court for the purposes of specific laws has also been shown to be unsatisfactory .Sef Pacific Princess, 2 A.S.R.2d at 24 (Gardner, C.J., concurring) ("lack of access by the residents of this territory to a court with federal jurisdiction is troublesome"); lnteroceall Ships, 2 A.S.R.2d at 81-82 (Murphy, Acting C.J ..concurring) (lack of access to a federal court is probably the "result of Congressional oversight"). The current jurisdictional and forum problems again bespeak the need foJ revisiting the question of access to the federal courts. However, in the absence of territoria initiative, Congressional attention will continue to remain uncertain, while Americar Samoan litigants are left having to look to the federal courts located some 7 ,500 miles awa) in Washington D.C., in order to avail themselves of their federal remedial rights.

[25ASR2d103]

APE POUTOA, SISIGAFU' A and ELISE APE, Plaintiffs

AMERICAN SAMOA GOVERNMENT, and SEFO PASENE, Defendants

High Court of American Samoa Trial Division

CA No.99-92

December 29, 1993

__________

[I] Leave to amend, pursuant to T.C.R.C.P. Rule li(a) shall be freely given whenjusti so requires, with a bias toward testing claims on their merits and not on procedural defec Leave to amend should be granted in the absence of reasons such as undue delay, bad fai or dilatory motive, repeated failure to cure deficiencies by previous amendments, und prejudice to the opposing party , or futility of the amendment.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge.

Counsel:

For Plaintiffs, Afoafouvale L. S. Lutu For Defendant American Samoa Government, Elvis F P. Patea, Assistant Attorney General

Order on Motion to Amend Pleadings, Add Parties, and Cross-Claim:

Defendant American Samoa Government seeks to amend its answer und( T.C.R.C.P. 15(a) and to file a cross-claim and third-party complair under T.C.R.C.P. 13(g)-(h) and 14(a), respectively.

The procedural posture of this case is as follows: On July 16, 199~ pursuant to A.S.C.A. 壯43.1205, plaintiffs filed their administrative clait with the Attorney General for damages allegedly arising from aJ automobile accident involving a government vehicle. On October 9 1992, the Attorney General denied the claim on the basis that "the drive of the vehicle involved was not acting within the scope of hi employment."' On October 14, 1992, plaintiffs filed an action pursurul to the provisions of the Government Tort Liability Act, A.S.C.A.

I A.S.C.A. 壯 42.1211 provides a remedy against the government for damages owin to death and personal and property injury caused by the negligence of any governmer employee "while acting within the scope of his office or employment. "

[25ASR2d107] It

43.1211. On November 3, 1992, the government filed its answer admitting, inter alia, employment of the driver, co-defendant Pasene Sefo, but again denying liability on the grounds that the driver was not acting within the scope of his employment at the time of the alleged injury .Trial in this matter was subsequently set for October 25, 1993.

Less than a week before trial, the govermnent requested an expedited hearing on its motion to amend its answer to deny the existence of an employer/employee relationship between the government and the co-defendant Pasene Sefo. The grounds for the motion were simply that infonnation to that effect hJd just come to counscl.s attcntion. \\'c denied the government's motion to amend and sustained plaintiffs' objection of prejudice.

The matter then came up regularly for trial on October 25, 1993; however, plaintiffs at that time moved for a continuailce on the grounds that one of their witnesses was stranded off-islaild because of airline delays. As the continuance request was not opposed by the government, it was granted, and trial was rescheduled for February 3, 1994. At the same time, the court indicated to the counsel that it was amenable to revisiting the government's previously-denied motion to amend its answer, since prejudice to plaintiffs was no longer as compelling in the light of the continuance of trial.

On December I, 1993, the government filed its second motion to amend its answer. This time, it further sought leave to file a cross-claim against the co-defendant Pasene Sefo aIld to add third-parly defendants. In his supporting affidavit, counsel alluded to his subsequent receipt of "conflicting information" which suggests that the co-defendant may have been government-hired but that his hiring by the third-parties sought to be joined was illegal. In the event that the co-defendailt is found to be an employee of the government, counsel further avers to issues of contribution and indemnification by the co-defendaill's immigration sponsor (which, in turn, gives rise to the issue of whether a judgment against the government as a result of an alien worker's negligence is a "public debt, " for which the sponsor is liable, within the contemplation of A.S.C.A. 壯 41.0408(e) of the immigration code).

Plaintiffs again object to the government's attempt to retract its admission of employment and its new-found desire to bring in third parties to the lawsuit. They contend that the government has been tardy in sorting out its position and argue undue prejudice and delay if the government's motion is granted. Plaintiffs further point out that the government has

[25ASR2d108]

failed throughout to explain why it did not earlier raise its new-found

concerns.

DISCUSSION

[I] T.C.R.C.P. 15{a) declares that leave to amend "shall be freely given when justice so requires." The Supreme Court, in discussing Rule 15{a)'s federal counterpart, has cautioned that

this mandate is to be heeded If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason--such as undue delay, bad .faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed; undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given." Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court. ...

Foman v. Davis, 371 U.S. 178,182,9 L. Ed. 2d 222,226 {1962) {citing 3 MOORE'S FEDERAL PRACTICE " 15.08, 15.10 {2d ed. 1948遙). While the bias then is in favor of testing each party's case on the strength of its merits, the liberal amendment policy of Rule 15{a) is not without limits.

For the following reasons we deny the motion. As noted above, the government had, until a few weeks ago, conceded the issue of employment which it now seeks to litigate. Plaintiffs' discovery and trial preparation, on the other hand, has proceeded on the basis that the co-defendant's employment status was not at issue. Thus, plaintiffs would not have needed to explore the possibility of alternative theories of liability. At the same time, the government has given nothing in the way of ajustifiable explanation, although it is evident from its supporting affidavits that the proposed amendment is based on readily available information from the personnel records at the Department of HUmall Resources, as well as from depositions of the former director of Education and the former principal of the government's Vocational Technical School, whom the government now belatedly seek to join as third-party defendants. Additionally, as pointed out by plaintiffs, the

[25ASR2d109]

government has taken more than a month to renew its motion to amend subsequent to the court's statement in October about revisiting the issue of prejudice. The concern again expressed by plaintiffs' counsel is that the trial date of February 3, 1994, is once again upon him.

We conclude that the motion to amend ought to be denied. First, the delay in the bringing of this motion is both undue and inexcusable. It is also quite apparent, in view of the "conflicting" information received by counsel after the hearing on the initial motion to amend, that the government is still, at this late stage of the proceedings, sorting out its position on the issue of employment.2 Second, and more significantly, the government's proposed change in tactics and theory would, in our view, result in undue difficulty to plaintiffs' prosecution of their lawsuit. Finally, the government's new-found concerns about contribution and indemnification may be subsequently addressed in a separate proceeding. Under the circumstances, it would not, in our view, be consistent with the interests of justice to allow the requested amendments at this stage of the proceedings. The motion is therefore denied.

It is so ordered.

2 In tIle earlier motion. the position taken by the government was that the co-defendant was not a government e~ployee; however. the government's position now seems to be somewhere between its initial admission and its recent attempt to flatly deny employment. Consequently, tIle government now seeks to litigate issues collateral to plaintiffs' suit relating to indemnification and contribution.

[25ASR2d110]

ESTATE OF TUINANAU FUIMAONO, Deceased

High Court of American Samoa Appellate Division

AP Nos. 25-92 and 27-92

January 4, 1994

[1] The question of the existence of a marriage is one of fact.

[2] Cohabitation and reputation as husband and wife are not only relevant for purposes of comrnon-law marriage; they constitute evidence that a marriage ceremony in fact took place.

[3] The presumption arising from this long and consistent pattern of behavior bears weight of its own.

[4] We conclude that the law of American Samoa may recognize equitable adoption for purposes of inheritance from the individual estate of the equitable adoptive parent. This doctrine may be applied in the absence of proof of a specific contract to adopt.

[5] The trial court retains discretion to adjudicate claims that were not pleaded.

[6] Equitable adoption requires a finding that the equitably adopted child has stood from an age of tender years in a position exactly equivalent to a formally adopted child.

Before CAN BY., Acting Associate Justice, MUNSON.., Acting Associate Judge, AFUOLA, Associate Judge, and LOGOAI, Associate Judge.

Counsel;

For Fa'alua Fuimaono and Ato Fuimaono, Gata E. W . Gurr, For Sapati Fuimaono, Charles V. Ala'ilima.

CAN BY, Acting Associate Justice:

.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.

[25ASR2d111]

ihiS appeal arises irom a uecision ot the tnal diVISIOn determining heirship in the estate of Tuinanau Fuimaono.1 Tuinanau died intestate in 1984. Those claiming to be heirs include: Fa'alua Fuimaono, who was held out as Tuinanau's wife for a period of 37 or 38 years prior to his death; Saumaleato ("Ato") Fuimaono, Fa'alua's son by a prior marriage, who had been raised as a son of Tuinanau and Fa'alua; and Sapati Fuimaono, a son of Tuinanau 's by a prior marriage. The disputed claims are those of Fa'alua and Ato; there is no dispute over Sapati's claim, although the amount of his inheritance is necessarily increased if either of the other claims are defeated.

DISCUSSION

I. Fa 'alua 's Claim

It appears from the evidence that Tuinanau was originally married to one Selepa, and Sapati was born of that relationship in 1940. The couple separated in approximately 1945, and it is not clear whether they were ever legally divorced.

Tuinanau and Fa'alua began living together in 1946 or 1947. There is no marriage certificate in the files of the Registrar of Vital Statistics of American Samoa, and no other certificate was entered into evidence. Several other documents were admitted into evidence and referred to by the trial court: a church document purporting to show a marriage in 1946, performed by a person named "Morrow" --apparently a reference to former Chief Justice Arthur A. Morrow; a Certificate of Identity travel document, issued to Fa'alua on September 8, 1976, by the American Samoa Attorney General's Office, stating that she was married; an American Samoa Birth Certificate, issued as a late registration of January 28, 1971, and appended to the Certificate of Identity, stating that Fa'alua was born in Fagatogo, American Samoa, on January 11, 1905; and an Alien Registration Form issued by the Attorney General, which Fa'aIua completed under oath on February II, 1964, using her maiden name of LetuIi and stating that she was born on March 14, 1930, in Western Samoa, that she was a citizen of Western Samoa, and that she had entered American Samoa at Fagatogo on June 22, 1947, and was living with the Fuimaono family in Nu'uuli.

I The trial court modified the title of this case to "Estate of Tuinanau Fuimaono, Deceased. " The court observed that all proceedings for the administration of the estates should bear such a simplified caption We follow the practice of the trial court.

[25ASR2d112]

The trial court found that not all of these documents could be genuine, and that only the Alien Registration Form was accurate (except for its recited date of birth). As a consequence, the court found that the union of Tuinanau and Fa'alua had never been solemnized by a marriage ceremony. The court further found that, despite their having held themselves out as married for some 38 years, Tuinanau and Fa'alua both knew that the relationship was not a legal marriage. The court therefore concluded that, because common law marriages are not recognized in American Samoa, see A.S.C.A. 壯 42.0101(e), Fa'alua was not a spouse of Tuinanau for purposes of inheritance.

On appeal, Fa'alua argues that the trial division gave insufficient force to the presumption of the validity of a marriage derived from long cohabitation and holding out as man and wife. See e.g., Trower v. Board of County Commissioners, 75 N.M. 125, 401& P. 2d 109 (1965). She relied on the fact that the community had recognized her marriage to Tuinanau for 38 years, that she and Tuinanau executed deeds an.d other documents as husband and wife, that Tuinanau would not have been appointed a deacon of his church if he had not been married to her, that the immigration service issued her an identity document with the last name Fuimaono, and that the Social Security Administration had satisfied itself that she was entitled to benefits as Tuinanau 's widow.

We conclude that Fa'alua's contentions have merit, and that the ruling that she was not entitled to inherit as Tuinanau's widow must be reversed.

[1-2] We are aware that the question of the existence of a marriage is one of fact, see 52 Am. Jur. 2d, Marriage, 壯 127, but we are satisfied that, in making its rulings of fact, the trial division gave too little force to the presumptions applicable to a case like this, and to the evidentiary force of the exceptionally long period during which Tuinanau and Fa'alua held themselves out as being married, and acted wholly consistently with that status. Cohabitation and reputation as husband and wife are not only relevant for purposes of common-law marriage; they constitute evidence that a marriage ceremony in fact took place. "[P]ersons living together in apparent matrimony will ordinarily be presumed to have been married ceremonially in states rejecting the doctrine of common-law marriages. " Id. at 壯 132; see Suddeth v. Hawkins, 202 S.W.2d 572, 575, 577-78 (Mo. App. 1947). The strength of the presumption depends on the circumstances of the case, 52 Am.Jur .2d at 132, and in this case the circumstances are unusually strong in favor of marriage. Not only did Tuinanau and Fa'alua consistently hold themselves out as married for 37

[25ASR2d113]

or 38 years, they appear to have been accepted almost universally as being legitimately married. Tuinanau's position as deacon of his church is perhaps the weightiest indication of community belief in the validity of the marriage.

[3] We agree with those cases holding that the presumption arising from this long and consistcnt pattcrn of bchavior bcars wcight of its own, see, e.g., In re Nidever's Estate, 181 Cal. App. 2d 367,5 Cal. Rptr. 343, 350-51 ( 1960) .The length a11d consistency of this relationship and of the community understanding compel, in our view, a finding that a ceremony had occurred; it is not overcome by the representations in the Alien Registration Document --the sole document suggesting that Fa'alua was not married, and one that misstates Fa'alua's birth date by some 25 years. We also note that the uncertainty whether Tuinanau had been divorced from his prior wife is no bar to recognizing Fa'alua's marriage to Tuinanau; there is a strong presumption that the prior of two marriages has been dissolved. See 52 Am. Jur.2d, Marriage, 壯 140.

The trial division, while recognizing that Tuina11au a11d Fa'alua consistently acted as a married couple for 37 or 38 years, found that they both knew that their marriage was not a legal marriage. This finding, however, depended on the earlier finding that there had been no marriage ceremony --a finding that we have determined to be erroneous.

We accordingly reverse the ruling of the trial division to the extent that it determined that Fa'alua was not entitled to inherit as the spouse of Tuinanau.

II. Ato's Clai1l1

The trial division originally found that Ato was the child of Tuinanau and Fa'alua, but it modified this finding in its amended order. There it determined that Ato was Fa'alua's son by a previous relationship, not Tuinanau's son, but that he had been raised from infa11cy by Fa'alua and Tuinanau ''as their genuine son. " Recognition of Ato as their child extended expressly and implicitly to several legal documents. The Fuimaono family "essentially accepted the practical, day-to-day, father-son relationship between Tuinanau and Ato. "

On the strength of these findings, the trial division held that Tuinanau had effected an "equitable" or "de facto" adoption of Ato for inheritance purposes. See 97 A.L.R.3d, Adoption by Estoppel, 347, 353-55, 359-65

[25ASR2d114]

(1991). Ato was accordingly held to be entitled to inherit from Tuinanau's estate as if he had been a natural son.

[4] Sapati appeals this ruling, raising several arguments, all of which we reject. First, Sapati contends that adoption is entirely a creature of statute, and that Ato cannot have been adopted because the statutory requirements of American Samoa for adoption were neither followed nor attempted to be followed. See Title 45, chapter 4, American Samoa Code Annotated. Sapati relies on cases refusing to recognize the doctrine of equitable adoption. See, e.g., Clarkson v. Bliley, 185 Va. 82, 38 S.E.2d 22 (1946); Brassiel v. Brassiell, 228 Miss. 243, 87 So.2d 699, 722 (1956). There is, however, a line of authority to the contrary, that recognizes equitable adoption despite the existence of statutory procedures for adoption. See 97 A.L.R.3d, Adoption by Estoppel, supra. The question is an open one in American Samoa, and the trial division was not compelled to follow the cases on which Sapati relies. We agree with the trial division that the more just approach is to permit equitable adoption upon a showing of long and consistent treatment of the claimant as the "genuine son" of the decedent. We conclude that the law of American Samoa may recognize equitable adoption for purposes of inheritance from the individual estate of the equitable adoptive parent. As the trial division recognized, this doctrine may be applied in the absence of proof of a specific contract to adopt. Wheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369,373-74 (W. Va. 1979).

[5] Sapati next argues that Ato failed to plead a claim of equitable adoption, and that the trial division erred in recognizing that claim sua sponte. We disagree. The underlying facts were adequately placed in issue by Ato's claim that he was the son of Tuinanau, and there was ample evidence that he was held out as Tuinanau's son. The trial court retains discretion to adjudicate claims that were not pleaded. See T.C.R.C.P. l5(b). Sapati has not shown that he had additional relevant evidence on the question that he was deprived of an opportunity to present when the trial court entertained the equitable adoption claim. As for Sapati's argument that there was a failure of evidence of a specific agreement to adopt, we have already pointed out that no such evidence is needed under the rule of Wheeling Dollar Savings, supra. [6] Finally, Sapati argues that the doctrine of equitable adoption runs counter to Samoan public policy and custom, in that it gives recognition to numbers of individuals who may be known as'' sons" in an extended family. Sapati overstates the trial court's ruling, however. The trial court was well aware that in Samoa a head of family may refer to many persons as "sons" when those persons are not biological sons and are not [25ASR2d115]

intended to inherit from the putative father's individual estate. The trial court, however, required and found that in the present case there was much more of a relationship than that. Tuinanau held Ato out as his "genuine" (i.e. , biological or statutorily adopted) son during the many years that commenced with Ato ' s infancy. The rule adopted by the trial court, and affirmed here, requires a finding that the equitably adopted child "has stood from an age of tender years in a position exactly equivalent to a formally adopted child." Wheeling Dollar Savings-,- 250 S.E.2d at 373-74 (emphasis in original). The trial court's ruling was a narrow one, and does not encompass the many looser "father-son " relationships found in a customary extended family. We note as well that the trial court's ruling holds Ato to have been equitably adopted for purposes of inheritaJ1ce from his father's individual estate. No other effect of equitable adoption was adjudicated, and no other effect is affirmed here. All that we conclude is that Ato is entitled to share in his father's inheritable estate as an equitable adopted son.

CONCLUSION

The ruling of the trial division that Fa'alua is not entitled to in11erit as Tuinanau's surviving spouse is REVERSED. The ruling that Ato is entitled to inherit as an equitably adopted son is AFFIRMED. The case is REMANDED to the trial division.

It is so ordered.

*********

[25ASR2d116]

TIPISONE MANU AOELUA, Claimant

FOLAU I'AULUALO, MATAIUMU SIOFAGA, and NAIULI L. MA 'ILEOI, Objectors

In the matter of the Matai Title "I'AULUALO"

High Court of American Samoa Land and Titles Division

MT No.02-92 January 26, 1994

[11 Requirement of A.S.C.A. 壯 1.0407 that a counterclaim or objection to succession to a matai title must be supported by a petition signed by no less than 25 persons re!ated hy blood to the title in question is not a mere "formality ." Rather, the Fono has determined that at least twenty-five or more qualified family members constitutes a serious enough contention within a family to warrant access to the judicial process.

[21 Pursuant to A.S.C.A. 壯 1.0403(b) the requirement that parents are" temporarily residing outside of American Samoa" connotes a short time, or at least a definite intention to return to American Samoa.

[31 The fact that person was born and raised in Western Samoa strongly suggests. without anything further, that his parents were not "temporarily residing outside of American" at the time of his birth.

[4] Fact that one is a U.S. national from American Samoa is not necessarily equivalent to being an "inhabitant" of American Samoa since the place where one lives may he different than the place of one's legal nationality .

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, V AIV AO, Associate Judge, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel :

For Claimant, Asaua Fuimaono For Objector Folau I'aulualo, Aviata F. Fa'alevao For Objector Mataiumu Siofaga, Gata E. Gurr For Objector Naiuli L. Ma'ileoi, Afoa L.S. Lutu

Order on Motion to Dismiss:

Tipisone Manu Aoelua filed with the Territorial Register his claim to succession to the matai title l'aulualo of the village of Afono. His claim

[25ASR2d117]

was objected to by Folau I'aulualo, Mataiumu Siofaga and Naiuli L. Ma'ileoi, who each filed his respective counterclaim to succession. Following the requisite hearings before the Office of Samoan Affairs, the Secretary of Samoan Affairs certified an irreconcilable dispute to the court in accordance with the provisions of A.S.C.A. 壯 43.0302. This matter accordingly came on regularly for trial on December 29, 1993.

Prior to trial, cal1didates Tipisone Manu Aoelua and Naiuli L. Ma'ileoi withdrew their respective claims to succession. That left the two remaining candidates, Mataiumu Siofaga (hereinafter "Mataiumu") and Folau I'aulualo (hereinafter "Folau "). Mataiumu moved at the outset to dismiss Folau's succcs.5ion claim on the groUIJds that the latter's objection and counterclaim did not comply with the requirements of A.S.C.A. 壯 1.0407.11 At the conclusion of Mataiumu's case, Folau moved for the dismissal of his rival' s claim to succession on the grounds that Mataiumu was not "born on American soil" and therefore did not meet all of the eligibility requirements for matai-title succession as set out in A.S.C.A. 壯 1.0403.2 The motions are here addressed.

A.S.C.A. 壯 1.0407 provides in pertinent part:

(b) A counterclaim or ohjection [to succession to a matai titlel must be supported hy a petition signed hy no less than 25 persons related by blood to the title in question. The petitioners must be at least 18 years of age and residents of American Samoa at the time the petition is filed.

(d) In the event the family does not have the number of members qualified as required to support the counterclaim or objection. the counter-claimant or objector shall so state in a signed affidavit.

A.S.C.A. ~ 1.0403 provides in pertinent part: A person not possessing all of the following qualifications is ineligible to succeed to a matai title:

(h) He must have been born on American soil; provided that a person born of parents who were inhabitants of American Samoa. but temporarily residing outside of American Samoa or engaged in foreign travel. at the date of birth of such child. may, for the purposes of this subsection, be considered as having heen born on American soil if: While actually residing in American Samoa. and at anytime within one year after he attains the age of 18 years, he files with the territorial registrar a renunciation, under oath. of allegiance to the country of his hirth; or he has resided in American Samoa for a continuous period of not less than 10 years prior to the time of filing his application to be

(1)

(2)

[25ASR2d118]

I. Motion to Dismiss Folau's Succession Claim

Contrary to the requirements of A.S.C.A. 壯 1,0407(b), Folau's counterclaim or objection only contained ten supporting signatures, as opposed to the mandated twenty-five. Also, contrary to the affidavit which he executed before the Territorial Registrar, FoJau conceded that the l'aulualo family had more than twenty-five members who are qualified petitioners. He explained, however, that the affidavit which he had executed was something which was prepared and presented to him for signature by the Territorial Registrar's office without his being clear on the document's significance. He explained the inadequate number of supporting signatures on his objection and counterclaim as the result of his not having sufficient time to gather the required signatures. He testified that he was off-isJand when Tipisone Manu Aoelua had offered the title for registration and that by the time heJ1ad returned and decided to object, the sixty-day statutory period for the filing of objections, as required by A.S.C.A. 壯 1.0407, had almost expired, The ten signatures were all that he could manage.

[I] The statute clearly requires at least twenty-five qualified, supporting family signatories to an objection or counterclaim to matai-title succession.3 The exception to this legislative requirement is the small family that has less than twenty-five qualified members, The l'aulualo family of Afono does not come within the exception. Folau's counterclaim to the matai title l'aulualo is not sufficiently supported under A.S,C.A. 壯 1.407(b) and should, therefore, be dismissed. The motion is granted.

[[. Motion to Dismiss Mataiumu's Succession Claim

While Mataiumu admits that he was born in Faleasi'u, Western Samoa, he argues that he is otherwise qualified for matai succession. He claims that he may be considered as having been born on American soil under

registered as the holder of a matai title.

) Among other things. the Legislature is attempting to ensure that the family is not totally displaced from the matai-selection process by a mere handful of family members seeking access to the courts in the first instance. Thus, the Fono has, in effect, said that at least twenty-five or more qualified family members constitutes a serious em)ugh contention within a family to warrant access to the judicial process. Counsel.s argument that this legislative requirement is only a "formality" that should not affect the validity of his client's objection is not convincing.

[25ASR2d119]

the provisions of A.S.C.A. 壯 1.0403(b)(2), since he has lived in the territory for a period in excess of ten years preceding the filing of his claim. Additionally, Mataiumu points out that he is now a naturalized United States national, as a result of the recent federal "one-parent" law, 8 U.S.C. 壯 1408(4).

[2] We find that Mataiumu has indeed lived in American Samoa for a continuous period in excess of ten years preceding the filing of his claim. However, in addition to this residency requirement, the statute also requires that Mataiumu's parents have been "in11abitants" of American Samoa who were either traveling or residingtemporarily outside of American Samoa at the time of their son's birth.

The evidence did not establish this Jatter requirement. If aJlything, it tended to show that Mataiumu's parents were not, at the time of his birth, "inhabitants" of American Samoa but of Western Samoa. Mataiumu's testimony reveals that while his father was an American Samoan, his mother's village was Faleasi'u, Western Samoa. This was also the place of his birth, which occurred in 1930. He first visited American Samoa when he was 27 years of age and moved permanently to the territory in 1966, when he would have been 36 years of age. In 1979, he went to Jive in Afono.

[3] The fact that Mataiumu was born and raised in Western Samoa strongly suggests, without anything further, that his parents were not just Jiving there on a transitory , short-term basis at the time of his birth. At the same time, no evidence was presented from which it may be reasonably concluded that his parent's stay in Western Samoa was otherwise than indefinite and long-term. Contrary to Mataiumu's argument, "temporarily residing outside of American Samoa" connotes a short time, or at least having a definite intention to return. Here, unlike Mataiumu's "missionary" hypothetical, his parents appear to have intended to stay in Western Samoa indefinitely .4

[4] The crux of Mataiumu 's argument is that being a U .S. national from American Samoa is equivalent to being an "ilillabitant" of American Samoa. However, this does not necessarily follow, since the place where one Jives may be different than the place of one's legal nationality. Also, for a court to construe "ilillabitant" as different thaJl "national" is not

4 His post-trial brief in. response to the motion to dismiss states that "Sioraga [Mataiumu's father] spent much of his life in Western Samoa. but returned home to Vatia where he died in 1961 alld is buried on family land in said village."

[25ASR2d120]

" absurd and discriminatory ." The territorial legislature appears to have been more concerned with a candidate's having a certain level of connection with the territory than with his legal nationality .5 Likewise, no conflict with federal law exists. Contrary to Mataiumu's position, 8 U.S.C. 壯 1408(4) does not operate so that he "is considered to have been born on American soil" (or state that any U .S. national may succeed to a matai title), but rather defines a person who is a U .S. national but not a U.S. citizen.

On the foregoing, we conclude that Mataiumu is not eligible to matai succession under A.S.C.A. 壯 1.0403. Therefore, the motion is granted, and the claim of Mataiumu Siofaga is also dismissed.

Accordingly, the matter of the selection of a titleholder to the matai title I'aulualo of the village of Afono is remanded toA the l'aulualo family.

It is so ordered.

V AIV AO J. , with whom BETHAM J. joins, concurring:

I concur with the court's decision and its interpretation of A.S.C.A. 壯 1.0403. However, if an avowed purpose of the law is the preservation of Samoan customs and traditions, then I have serious reservations with a statute that effectively disenfranchises a blood heir of American Samoan ancestry to a matai title simply because he was not born on American soil. If, as the court has said, the legislative purpose behind A.S.C.A. 壯 1.0403 is to ensure that a matai have some "level of connection" to the territory , then that legislative purpose would, in my view, be equally achieved by merely imposing a lengthy residency requirement, such as is provided by A.S.C.A. 壯 1.0403b(2). I fail to see how the additional element of temporal off-island status of one's parents at the time of one's birth enhances or promotes the fa 'a Samoa in aJ1y significant way. If anything, the seemingly needless disqualification of a blood heir from his family's matai title would seem to run counter to thefa'a Samoa. I respectfully submit that it may be timely for the Fono to reevaluate A.S.C.A. 壯 1.0403.

*********

5 Cf A.S.C.A. 壯 1.0404(a) (requirillg one calendar-year.s residency "il11mediately preceding the date of the claim or ohjection"); A.S.C.A. 壯 1.0412(a) (ahsence of one year from the territory may constitute grounds for removal of the matai upon petition of any member of the family).

[25ASR2d121]

YKL JAPAN LTD., a Japanese Corporation, Plaintiff

F/V KORBEE #1, Defendant In Rem, and KOREA OCEAN FISHERIES, Defendant In Personam, STARKIST FOODS, INC. and STARKIST SAMOA, INC., Intervenors- Plaintiffs , PEARL OF PARADISE, INC., Intervenor-Plaintiff. YKL JAPAN LTD., a Japanese Corporation, Plaintiff

F/V KORAM #2, Defendant In Rem, and KOREA OCEAN FISHERIES, Defendant 111 Personam, STARKIST FOODS, INC. and STARKIST SAMOA, INC., I ntervenors- Plaintiffs , PEARL OF PARADISE, INC., Intervenor-Plaintiff. PAGO PETROLEUM PRODUCTS, INC., Plaintiff,

M/V KORBEE #1, Defendant In Rem, STARKIST FOODS, INC. and STARKIST SAMOA, INC., I ntervenors- Plai ntiffs . SAMOA EXI>OI{T & IMI>ORT INC., an American Samoa Corporation, I>laintiff ,

F/V KORBEE #I and F/V KORAM #2, Defendants In Rem, and KOREA WONY ANG CO., Defendant In Personam, STARKIST FOODS, INC. and STAI{KIST SAMOA, INC., I nt erv eno rs- Pia i nti ffs , PEARIJ OF PARADISE, INC., Intervenor-Plaintiff. SOUTHWEST MAI{INE OF SAMOA, INC., Plaintiff

M/V KORAM #2, Defendant In Rem, and KOREA WONYANG FISlIERIES CO., IJTD., a Korean Corporation, and STAI{KIST SAMOA, INC., a Corporation, Defendants In Personam

[25ASR2d122]

STARKIST SAMOA, INC., Cross-Complainant

M/V KORAM #2, Cross-Defendant In Rem, and KOIlliA WONYANG FISHERIES CO., a Korean Corporation, Cross-Defendant In Personam. SOUTHWEST MARINE OF SAMOA, INC., an American Samoa Corporation, Plaintiff,

F/V KOI{BEE #5 and 1'/V KOI{BEE #6, Defendants In l{em, and KOREA WONYANG CO., Defendant In Personam, STARKIST FOODS, INC. and STARKIST SAMOA, INC., Intervenors- Plaintiffs PEARL OF PARADISE, INC., Intervenor-Plaintiff. PAGO PETROLEUM PRODUCTS, INC., Plaintiff,

M/V KORBEE #6, Defendant In Rem and KOREA WONY ANG CO., Defendant In Personam, STARKIST FOODS, INC. and STAI{KIST SAMOA, INC., Intervenors- Plaintiffs .

High Court of American Samoa Trial Division

CA No, 08-92 CA No.10-92 CA No, 11-92 CA No.15-92 CA No.17-92 CA No, 18-92

January 31. 1994

[I] Summary judgment is ollly appropriate when "no genuine issue as to ally material fact" exists. III reviewillg the pleadillgs and supporting papers. a coul1 must view them in the light most favoraole to the noll-moving party, That is, toe facts must be beyond dispute. alld the non-moving party's factual assertions, supported oy eviuence such as affiuavits, are presumeu to be true, T.C.R.C,P.56(c).

[25ASR2d123]

[2] Summary judgment is a drastic remedy to be granted only where tl1e requirements of Rule 56 have clearly been met. A motion for such a judgment does not entitle the court to try issues of fact. In deciding the existence of factual issues to be tried, a court must resolve all ambiguities alld draw all reasonable inferences in favor of the party against whom summary judgment is sought witll the burden on tile moving party to demonstrate the absence of any material factual issue genuinely in dispute. Thus, summary judgment should not be granted ullless tile entire record shows a right to judgment witll such clarity as to leave IIO room for controversy alld establishes affirmatively tllat tile adverse party callllot prevail ullder any circu111stallces.

[3] A trial court possesses the discretioll to delly a summary judgment motion. A summary judgment motion may be dellied whell the trial court desires all illquiry into tile facts to clarify the applicatioll of tile law, evell if sulll111ary judgment is techllically justified. This is especially true whell a court may be able to avoid decidillg difficult or ullcel1aill questions of law by makillg factual determillatioll.!i.

Before KRUSE, Chief Justice, MAILO, Associate Judge, and BETHAM, Associate Judge.

r ~ ~c !'; ",

I ' ; c i\i :11 ~

Counsel:

For Plaintiffs YKL Japan aI1d Samoa Export & Import, William H. Reardon For Plaintiff Southwest Marine, Michael H. Crew For Plaintiff Pago Petroleum, Ellen A. Ryan For Intervenor-Plaintiff Pearl of Paradise, Aumoeualogo Salanoa Soli For DefendaI1ts/lntervenors-Plaintiffs Star-Kist Foods and Star-Kist Samoa, Roy J.D. Hall, Jr.

Order on Motions for Summary Judgment:

PROCEDURAL HISTORY

On August 9, 1993, Southwest Marine filed its motion and memorandum for summary judgment. On August 24, 1993, Pearl of Paradise filed its motion and memorandum for summary judgment. On August 20, 1993, YKL/SEI filed its motion and memorandum for summary judgment. On August 26, 1993, Pago Petroleum filed a "Memorandum in Response to Motion for Summal"y Judgment. " Star-Kist filed its own motion and memorandum for summary judgment on August 26, 1993. The motions were presented in court on August 27, 1993, but the hearing on these motions were continued to Sept. 24. On September 24, 1993, the court held a hearing on the summary judgment motions and requested that the parties file proposed findings of fact and conclusions of law. These proposed orders were filed 011 October 15, 1993 (with supplemental memoranda accepted on December 2).

[25ASR2d124]

STANDARD OF REVIEW

[I] Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242,247-50 [91 L. Ed. 2d 202,211-12] (1986) (Fed. R. Civ. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317,322-24 [91 L. Ed. 2d265, 273-74] (1986) (Fed. R. Civ. P. 56(c)). In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. D. Gokal & v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v.Diebold, 369 U.S. 654 (1962); Lokan v. Lokan, 6 A.S.R.2d 44, 46 (1987)). That is, the facts must be "beyond di"putc:," JI1<.! \l1l~ non-moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true. Ah Mai v. American Samoa Govt (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989).

[2] As such, "[s]ummary judgment is a drastic remedy to be grallted only where the requirements of Rule 56 ..have clearly been met. A motion for such a judgment does not entitle the court to try issues of fact." United States v.Bosurgi, 530 F.2d 1105, 1110 (2d Cir. 1976). In deciding the existence of factual issues to be tried, a court "must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute." Id. (quoting Heyman v. Commerce & Indus. Ins., 524 F.2d 1317,1320 (2d Cir. 1975)). Thus, "summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances."United States v. Bachman, 601 F. Supp. 1537, 1540 (E.D. Wis. 1985) (citing Prince v. Pittston, 63 F.R.D. 28,32 (S.D.W. Va. 1974)).

[3] Furthermore, a trial court possesses the discretion to den.y a summary judgment motion. A summary judgment motion may be denied when the trial court desires an "inquiry into the facts to clarify the application of thelaw."Bachman, 601 F. Supp. at 1540. Even if technically justified, a summary judgment motion may be denied in order "to give the parties an opportunity to fully develop the case. " United States v. Merchants Natl Bank of Mobile, 772 F .2d 1522, 1524 (llth Cir. 1985) (per curiam) (quoting Marcus v. St. Paul Fire & Marine Ins. , 651 F .2d 379, 382 (5th Cir. Unit B 1981)). This is especially true when a court may be able to avoid deciding difficult or uncertain questions of law by making factual

[25ASR2d125]

determinations. See Olberding v. United States Dept of Defense, 564 F. Supp. 907, 908-09 n.1 (S.D. Iowa 1982),aff'd 709 F.2d 621 (8th Cir. 1983).

DISCUSSION

The claimaJlts have all sought summary judgment, which should mean that no disputes over material facts exist. However, this is not the case. Despite each party's assertions of its entitlement to summary judgment, "genuine issues of material fact" clearly exist. Indeed, this court is hard pressed to find any area which is not in dispute.

The parties' motions and supporting memoranda, including the proposed findings of fact and conclusions of law, demonstrate profound disagreements as to the existence, characterization, priority, and amounts of the asserted claims. Even when some parties claim to adopt arguments of other parties, issues such as priorities of liens are present. Even a so-called stipulation states that each party reserved the right to claim amounts in excess of those supposedly agreed to. Additionally, the parties' claims are sometimes self-contradictory .

Beyond the parties' across-the-board dispute over factual issues, this case involves complicated legal issues. The disputes over material facts are exacerbated by the" shotgun" approach to the law taken by the parties in pressing their respective claims. As a consolidation of seven cases, this action involves complex issues of fact and law. Not only does this lawsuit involve the arcaJle area of admiralty law, the development of which is in its infancy in the territory , but it also concerns areas including contracts and secured transactions.

In short, summary judgment is inappropriate here. Even if summary judgment were technically permissible on certain matters, this case is best handled as a whole and decided on the merits after a full exposition of the facts and applicable law.

DEPOSIT OF FlSH-SALES PROCEEDS INTO COURTS FUND

The following stipulations among claimants, Star-Kist, and KWF to release fish cargos to the Star-Kist Samoa cannery for processing and to deposit the "total proceeds" in the court registry were filed by the parties and implemented by these c:ourt orders: ( 1) YKL-M/V Korbee # 1 (CA No.7-92, Order of Jan. 28, 1992); (2) YKL-M/V Koram #2 (CA No. 8-92, Order of Jan. 28, 1992); and (3) SEI-M/V Korbee #1 & Koram #2

[25ASR2d126]

(CA No.11-92, Order of Jan. 28, 1992). An order granted an ex parte application to the same effect regarding Pago Petroleum-M/V Korbee #1 (CA No.10-92, Order of Jan. 29, 1992).

The following stipulations to release the fish cargos for processing and to deposit the proceeds, "subject to withholding of Starkist Samoa, Inc.'s trip advances to this vessel for its last voyage only and for funds sufficient to pay crew wages for costs attributable to the last fishing voyage, " were filed by the parties and implemented by these court orders: (1) SWM-M/V Koram #2 (CA No.15-92, Order of Feb. 14, 1992); (2) SEI-F/V Korbee #5 & F/V Korbee #6 (CA No.17-92, Order of Feb. 18, 1992); (3) Pago Petroleum-M/V Korbee #6 (CA No.18-92, Order of Feb. 18, 1992).

Prior to depositing the proceeds of the fish ~ales, Star-Kist subtracted amounts for fish which were rejected for processing and for what it terms "prepaid fish advances. " The other claimants dispute both subtractions from the gross sales proceeds. Because the amounts subtracted for the rejected fish seems to reflect industry practice regarding payments for fish deliveries, Star-Kist will be permitted to retain these amounts for the time being.

On the other hand, Star-Kist's withholding of sums for its "prepaid fish advances" is contrary to the terms of at least some of the stipulations. Similarly, permitting Star-Kist to subtract those amounts while the other claimants wait for resolution of this case before they can receive payment does not appear to be fair. Thus, Star-Kist should pay these amounts into the court registry .

CONCLUSION

Therefore, all motions for summary judgment are denied. As for the amounts withheld from the fish-sales proceeds, Star-Kist may retain, for the time being, the amounts for the fish rejects. However, Star-Kist must pay into the court registry the amounts it claims as "prepaid fish advances." Insofar as previous court orders may conflict, they are superseded.

It is so ordered.

*********

[25ASR2d127]

PIO VITOLIO, Claimant

NIVE VAIVAO REED and TAGOSIALI'I P. FAUMUINA, Counter-Claimants

NIVE V AIV AO I{EED and PIO VITOLIO, Plaintiffs

TAGISIA FAUMUINA and DOES I-V, Defendants

In the Matter of the Matai Title "IU"

In the High Court of American Samoa Land and Titles Division

MT No.11-91 MT No.02-93

February 3, 1994

[I] While some families or matai may still practice the old. autocratic custom. which allows a matai to appoint his own successor. this custom must be viewed under the law as only a relic from a bygone era.

[2] Custom in conflict with law must give way. A.S.C.A. 壯 1.0202.

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge, and MAILO, Associate Judge.

Counsel;

Counter-Claimant and Plaintiff Nive Vaivao Reed, Togiola T.A. Tulafono Counter-Claimant and Defendant Tagisia Faumuina, Afoa L. Su'esu'e Lutu

Opinion al1d Order:

The Territorial Registrar's referral of this case for judicial resolution was received by the court on November 27, 1991, following issual1ce of a certificate of irreconcilable dispute by the Deputy Secretary of Samoan Affairs on November 20, 1991. On March 3, 1993, couIlter-claimaIlt

[25ASR2d128]

WILBUR J. REINE, JR., Appellant

FALANI TAOTOAI, MAIMAU TAOTOAI, SINATALA T AOTOAI, ESET A SA VEA, RUT A SA VEA, and LIMA PAPATU, Appellee

High Court of American Samoa Appellate Division

AP No.7-93

February 9, 1994

[I] A divorce decree which is final between the parties does not. and cannot, foreclose the possibility of ownership interests by others who were not parties to the decree, and a trial court is properly empowered to adjudicate those interests.

[2] T\Je trier of fact may properly approach self-serving testimony with caution, but there is no requirement that it be disbelieved. The day has long past when interest parties were disqualified as witnesses.

[31 It is for the trial court to resolve conflicts in the evidence. and to judge the credibility of the witnesses. The Appellate Division will not overturn the trial court's resolution of conflicting evidence, when substantial evidence supports its ruling.

Before CAN BY " Acting Associate Justice, MUNSON ," Acting Associate Justice, W ARD,"' Acting Associate Justice, V AIV AO, Associate Judge, and AFUOLA, Associate Judge.

Counsel :

For Appellees, Togiola T.A, Tulafono For Appellants, Gata E, Gurr

CAN BY, Acting Associate Justice:

.Honorable William C. Can by, Jr., Circuit Judge, United States Court of Appeal for the Ninth Circuit, serving by designation of tlJe Secretary of the Interior .

., Honorable Alex R. Munson, Chief Judge, United States Court of Appeal for tlJe 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 tlJe Secretary of the Interior.

[25ASR2d137]

This appeal is from a decision of the Trial Division determining the ownership of a house separated from communal land under the separation-of-structures laws of American Samoa, A.S.C.A. 壯壯 37.1501-37.1506. The separation agreement was executed in 1967 by Fa' agata Mano, then senior matai of the Fa' agata family, and Sinatala T . Reine, as the building owner. The loan that financed most of the acquisition of the house was taken out in the name of Sinatala and her husband, Wilbur J. Reine, Sr. In August 1978, Reine, Sr. a11d Sinatala were divorced, and the divorce decree awarded the house to Sinatala for life, with remainder in Wilbur J. Reine, Jr. , the appellant here. Sinatala died in 1987.

Appellant contended in the Trial Division that he was the sole owner of the house. The TriaJ Division determined, however, that the original intent at the time of the separation agreement had not been to vest the entire title in Sinatala or her husband. On the contrary, Sinata1a's parents, Fesuiai and Lana Taotoai, had intended the house to be for the benefit of their family, and had contributed substantially to its construction costs, as had their adoptive son, Falani Taotoai. Their adoptive daughter, Maimau Toatoai, had been the means of obtaining the original separation agreement; she provided the blood relationship to the Fa'agata family because she was the natural daughter of Fa'agata Mano and his wife. Fesuiai a11d Lana Taotoai, the Trial Division found, had considered the land to be owned by their three children. In light of that intention, and the understanding and contributions of all three children, the Trial Division concluded that the house was owned by the estate of sinatala, Falani, and Maimau equally, as rental income from the house and paid off a part of the loan, depended on descent from Sinatala, and could not be determined until Sinatala' s estate was settled .

Reine, Jr. first argues that the decision of the Trial Division was invalid because the court had no power to amend the provisions of the divorce decree, which awarded the remainder interest in the house to Reine, Jr. Appellant contends that the divorce decree was fina] a11d could not be altered except upon proper motion.

[1] The divorce decree was certainly final between the parties, Rcine, Sr . and Sinatala, but it did not, a11d could not, foreclose the possibility of ownership interests by others who were not parties to the decree. See Reid v. Puailoa, 1 A.S.R.2d 85, 89, ( App. Div. 1983); Puailoa v. Lagafuaina, 11 A.S.R.2d 54, 76, 78 (Land & Titles Div. 1989). The Trial Division therefore did not lack the power to adjudicate those

[25ASR2d138]

additional interests, and to find that Sinatala's interest in the house amounted only to one-third.

!' I)!

[2] Reine, Jr. next attacks the sufficiency of the evidence, arguing that the only evidence to support the claims of appellees was their self-serving testimony. The trier of fact may properly approach self-serving testimony with caution, but there is no requirement that it be disbelieved; the day is long past when interest parties were disqualified as witnesses. See I MCCORMICK, EVIDENCE, 壯 65. Here there was unrebutted testimony that Falani contributed $3,000 to the construction of the house, and that he and his wife contributed $60 fortnightly for an indeterminate period of time. There was also testimony that Fesuiai had furnished $10,000 for construction, and that Fesuiai's and Lana's Social Security checks for an extended period of years were contributed primarily toward the repayment of the construction loan. The plausit1ility of these multiple contributions was supported by the trial court's finding that, whether or not sinatala' s estimate of $50,000 construction costs ( as testified to by Falani) was accurate, the size of the house made clear that construction costs had been substantial.

There was also unrebutted testimony that, for various periods of years, the house was occupied by Falani and his family (the first occupants), Reine, Sr. , Sinatala and Reine, Jr. , and Maumai. The house was divided into two self-contained living units, which permitted multiple OCCUpa11Cy. Indeed, Falani, who lived in the house from 1968 to 1971 and then again from 1974 at least to the time of trial, testified that it was not until 1987, during a heated dispute, that he was made aware of Reine, Jr. 's exclusive ownership claim.

[3] In light of the ample testimony about the family understanding concerning shared ownership, the multiple contributions by family members, and shared occupancy of the house over many years, there was ample evidence to support the trial court's finding of common ownership among the three children of Fesuiai and Lana Taotoai. It is true that there was no documentation supporting common ownership, and that the separation documents and loan documents could have been viewed as supporting sole ownership in Sinatala and Reine, Sr. But it was for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witnesses. We will not overturn the trial court's resolution of conflicting evidence, when substantial evidence supports its ruling. Faatea v. Taua, 12 A.S.R.2d 88,90 (App. Div. 1989).

The judgment of the Trial Division is AFFIRMED.

[25ASR2d139]

LOGOTAEAO I.H.K. ROBEI{TS, Claimant

ELVIS R. PILA PATEA, Counter-Claimant

In the Matter of the Matai Title "PATEA"

In the High Court of American Samoa Land and Titles Division

MT No.3-93

February 25, 1994

[1] The physical presence requirement is excepted by A.S.C.A. 壯 1.0404(b) only by registering witb tbe Territorial Registrar absences for attendance at an educational institution, service in the United States armed forces, medical treatment and recuperation, temporary traveling, or missionary work as a millister.

[2] A person who is not born "on American soil" is eligible for a matai title only if ( 1) he is born of parents who were inhabitants of American Samoa but temporarily residing outside American Samoa at the child's birtll, and (2) as applicable to this case, he has resided in American Samoa for a continuous period of at least ten years prior to filing his claim to a title. A.S.C.A. 壯 1.0403(b).

[3] Patea family does not come within tile statutory small-family exception. Affidavit stating that clan had fewer tllall 25 eligible members insufficient ill light of contradictory testimony by affiant at trial tllat family had between 100 and 200 members.

Before RICHMOND, Associate Justice. TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel:

For Claimant, Togiola T .A. Tulafono For Counter-Claimant, Malaetasi M. Togafau

Opinion and Order:

On July 21, 1992, Logotaeao I.H.K. Roberts ("Logotaeao") filed with the Territorial Registrar her cJaim of succession to the matai title Patea of the Village of Pago Pago, The 60-day notice period for filing counterclaims or objections began on July 23, 1992. On September 18, 1992, Elvis R. Pila Patea ("Elvis") filed his counterclaim petition. On February 12, 1993, following the required hearings, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispule. On

[25ASR2d140]

by the signatories' mother. Thus, her petition likewise lacks the requisite number of valid signatures, and her claim must also be dismissed.

Accordingly, both Logotaeao's claim and Elvis' counterclaim to the matai title Patea of the Village of Pago Pago are dismissed, and the matter of the selection of a successor titleholder is remanded to the Patea family for resolution.

It is so ordered.

*********

SANELE ALE, Appellant

PETER E. REID STEVEDORING, INC., SIATU'U FA'ASIU and NATIONAL PACIFIC INSURANCE CO., LTD, Appellees

High Court of American Samoa Appellate Division

AP No.10-93

March 1, 1994

[I] Pain and suffering resulting from conversion reaction. or physical symptoms resulting from the psychological trauma of an actual injury .are compensable in tort.

[2] To recover for symptoms resulting from conversion reaction. a victim must establish that the negligence of the defendant is the proximate cause of the symptoms.

[3] A plaintiff bears the burden to prove that, more likely than not. the defendant's conduct is the proximate cause of the relevant injury .The trial court has tile duty to make definite findings as to causation.

[25ASR2d143]

turn, submitted that the medical reports were inconclusive and incomplete and that Dr. Anesi ' s testimony did not itself establish a causal link. At trial, the cburt found that it would be "pure conjecture" to attempt to conclude whether or not the accident was the cause of Ale's symptoms.

Examining the parties respective submissions and the holding at trial, this court is unable to rule on the causal connection between Ale's demonstrated symptoms and the accident. This is an issue that needs to be examined in greater depth, most appropriately at the trial level. Both parties would then have the opportunity to submit further evidence and briefs on the extent of Ale's symptoms and the possible causal connection between the accident and Ale's symptoms of weakness and sensory loss on his left side.

Accordingly, the trial court's decision is hereby. remanded for further proceedings consistent with this opinion.

It is so ordered.

********

CHARLES V. ALA 'ILIMA and JAMES McGUIRE, Appellants

ZONING BOARD, Appellee and OTTOVILLE DEVELOPMENT CORP., Appellee/Intervenor

High Court of American Samoa Appellate Division

AP No.4-91

March 8, 1994

[I] A stay of zoning variance entered by stipulation will be lifted where a third-party intervenes, in order to return the parties to the status quo. Any party remains free to seek a new stay of variance.

[25ASR2d147]

[2] Court orders entered pursuant to a stipulation of tIle parties, without tIle benefit of factual evaluation, may be vacated when a tllird party intervenes and a factual evaluation is necessary.

[3] Appeals of Zoning Board decisions proceed in like manner to appeals under the Administrative Procedures Act, in that the administrative record must be submitted within 30 days and the court is confined to that record, tllough it may receive evidence to supplement the record.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, WARD,* Acting Associate Justice, TAUANU'U, Chief Associate Judge, and BETHAM, Associate Judge.

Counsel :

For Appellant James McGuire, Reginald E. Gates For Appellee, Douglas J. Juergens, Assistant Attorney General For Appellee/Intervenor, Roy J.D. Hall, Jr.

Order on Motions to Dismiss or in the Alternative to Dissolve Stay:

I, Procedural History

DISCUSSION

On May 3, 1991, appellants James McGuire and Charles Ala'ilima and appellee Zoning Board stipulated to a stay of the zoning variance granted to the Ottoville Development Corporation (hereinafter ODC) on February 14, 1991. This court granted O DC ' s motion to intervene on December 6, 1993, and the order was filed on January 26, 1994. Appellant Ala'ilima entered into a stipulation to dismiss as to himself with appellee Zoning Board and appellee/intervenor ODC on February 2, 1994.

Appellee/intervenor ODC then filed its "Motion to Dismiss or in tile Alternative to Post a Bond " on February 7, 1994. Along with its motion to dismiss, ODC also requested that this court dissolve the stay of the variance. Appellant McGuire filed his memorandum in opposition on March 2, 1994. Appellee Zoning Board filed its response aIld "Motion for Summary Judgment and Support Memorandum " on the morning of March 3, 1994, just before a hearing on the parties' motions.

II. Motion to Dissolve Stay

.Honorable John L. Ward, II, Judge, District Court of American Samoa, serving hy designation of the Secretary of the Interior.

[25ASR2d148]

[1] Appellee/intervenor ODC's motion to dissolve the stay of the zoning variance is granted. At the time appellant McGuire and appellee Zoning Board stipulated to the stay, ODC was not a party to this lawsuit. However, this court later granted ODC's request to intervene because ODC had sought and obtained the zoning variance for its project. By dissolving the stay, which was stipulated to without ODC's consent, this court is merely returning the parties to the status quo ante. Of course, any of the parties remains free to seek atlothcr stay of the variance.

" :

[2] Furthermore, due to the stipulation, this court never made a factual evaluation in determining whether and on what conditions to grant a stay of the variance. See A.C.R. 18; see also A.S.C.A. 壯 4.1041(b) ("the court may order[] a stay on appropriate terms"). Dissolving the stay permits this court to properly evaluate any future requests for a stay.

III. Motion to Dismiss

On the other hand, a number of issues deserving the court's attention have been raised in the parties' memoranda. For this reason, dismissal of this action is inappropriate. In light of the existing factual disputes, appellee Zoning Board's motion for summary judgment is also inappropriate.

IV. Absence of the Agency's Record

[3] Appeals of the Zoning Board's decisions proceed "in like manner" to appeals under the Administrative Procedure Act. A.S.C.A. 壯 26.0341 (citing A.S.C.A. 壯壯 4.1040-4.1044). Within 30 days from the service of the petition for appellate review, an agency is to send the court the record of the agency's proceedings in the matter under review. A.S.C.A. 壯 4.1042; A.C.R. 17(a). Indeed, appellate review is confined to the agency's record, though the court may receive evidence to supplement the record. A.S.C.A. 壯 4. 1043(a); see A.C.R. 16(a). Thus, the statute presupposes that a record has been filed with the court. However, no record of the hearing on the request for the variance has been received by this court. Before the Zoning Board's actions in this matter can be reviewed, it must transmit the record of the proceedings to the court.

CONCLUSION

Therefore, appellee/intervenor ODC's motion to dissolve the stay of the zoning variance is granted, though its motion to dismiss is denied.

[25ASR2d149]

Likewise, appellee Zoning Board's motion for summary judgment is denied.

This matter concerning the zoning variance has languished without much activity by the parties. With an eye toward moving this process along, this court sets a hearing on the appeal for April 29, 1994.

It is so ordered.

*********

AMERICAN SAMOA GOVERNMENT, Plaintiff,

JOHN BERRY aka JOHN ROE, Defendant.

The District Court of American Samoa

TR No.131687

March 16, 1994

[1] A motorist stopped by a traffic officer may be detained briefly by that Officer. upon a reasonable belief that the driver was under the influence, until a qualified officer may be summoned by radio to administer field sobriety tests.

[2] A person who was pursued for a traffic offense by a police officer, apprehended, identified, and taken into custody by another officer, taken to the Police Station, and subsequently administered field sobriety tests and then arrested for D.U.I. could not have been legally arrested at tile Police Station.

[3] Under A.S.C.A. 壯 22.0803 an officer at the scene of an accident must conduct a personal investigation, and upon reasonable and grounds to believe a misdemeanor traffic offense, (or infraction), has occurred, issue a traffic citation.

[4] A.S.C.A. 壯 22.0803 autllorizes an investigating officer to view tile accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist, to issue that driver a traffic citation.

[5] Only a valid arrest for D.U.I. invokes the implied consent to chemical testing under A.S.C.A. 壯 22.0601 et. seq.

[6] A.S.C.A. 壯 22.0803 does not apply to felonies

[25ASR2d150][7] Under A.S.C.A. 壯 22.0708 the injury to any person resulting from the operation of a motor vehicle by a person under the influence of intoxicating liquor creates a felony

offense.

[8] Officers may upon reasonable grounds, arrest persons found near the scene of a felony within a short time after its commission.

Before District Court Judge W ARD

4 ~ ~ j t ,

This matter came on regularly before the Court on March II, 1994, on Plaintiff's Motion to Suppress Evidence.

The Court heard testimony from Sgt. Mikaele and Officer Fuifatu. The Defendant also gave limited testimony on the extent of his injuries.

The essentiaJ facts are as follows: Sgt. Mikaele came upon Defendant's vehicle in a ditch near Vaitogi. Defendant was injured, (a cut above his eye), and Sgt. Mikaele radioed the O.M. V. substation and the E.M.S. that Defendant would be transported to the O.M. V. substation for treatment. After being treated by the E.M.S. at the O.M. V. and after Sgt. Mikaele had left, field sobriety tests were conducted by Officer Fuifatu. Upon Defendant's failure to pass these tests, Defendant was subjected to a breathalizer test after being arrested for driving under the

influence.

At some later time in the evening, Defendant and his family members were aJlowed to push his vehicle out of the ditch. This is, at ]east, what the Court understood to be Officer Fuifatu's testimony. Also, at some point after the arrest, Officer Fuifatu inspected the accident scene, most likely at the time the vehicle was removed from the ditch.

The issue before the Court is whether the arrest for D. U .1. was valid. [1-2] By way of discussion the Court notes that Officer Fuifatu has information from Sgt. Mikaele that Defendant's vehicle was involved in an accident and that Defendant was injured by that accident. As this Court has previously ruled, a motorist stopped by a traffic officer may be detained briefly by that Officer, upon a reasonable belief that the driver was under the influence, until a qualified officer may be summoned by radio to administer field sobriety tests. This Court has also previously ruled that a person who was pursued for a traffic offense by a police officer, apprehended, identified, and taken into custody by another officer, taken to the Police Station, and subsequently 150 administered field sobriety tests and then arrested for p.U.I. could not have been legally arrested at the Police Station.

The instant case appears to fall precisely midway between the Court's prior rulings. This Defendant was in the custody of the police and at the police sub-station when the field sobriety tests were administered. Yet, Sgt. Mikaele was not qualified to administer field sobriety tests and upon first procuring medical attention for the Defendant, turned him over to Officer Fuifatu for further investigation. Counsel have argued that the previous rulings of this Court support their respective positions on the validity of this arrest. Indeed, both are equally correct in that regard.

[3] This case is different, however, since it involves a motor vehicle accident. The Legislature has specifically set forth its requirements for a valid arrest of a driver involved in an accident under A.S.C.A. 壯 22.0803. The requirements are that an officer at the scene of an accident must conduct a personal investigation, and upon reasonable and grounds to believe a misdemeanor traffic offense, (or infraction), has occurred, issue a traffic citation.

[4] This Court has interpreted this statute as authorizing an investigating officer to view the accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist, to issue that driver a traffic citation.

[5] In the present case only the sequence of the arrest is at odds with the statute. Officer Fuifatu viewed the accident scene after, not before issuing the traffic citation. In a case not involving personal injury caused by a traffic accident, this sequence would likely prove fatal to the validity of the arrest. And, only a valid arrest for D. U .1. invokes the implied consent to chemical testing under A.S.C.A. 壯 22.0601 et. seq.

[6-8] Yet A.S.C.A. 壯 22.0803 does not apply to felonies. Under 22.0708 A.S.C.A. the injury to any person resulting from the operation of a motor vehicle by a person under the influence of intoxicating liquor creates a felony offense. Officers may upon reasonable grounds, arrest persons found near the scene of a felony within a short time after its commission, A.S.C.A. 壯 46.0805(3).

Under all of the circumstances, Defendant's arrest for driving under the influence was valid. The breathalizer results are therefore admissible as evidence lawfully obtained.

[25ASR2d152]

As a logical consequence of this decIsIOn, the Loun IS (.;Ulllpt:llt:U, however, to dismiss, without prejudice, UTC#131687. The validity of the arrest being predicated upon a felony having been committed, A.S.C.A. 壯 22.0803 does not authorize a uniform traffic citation to serve as a valid summons, complaint, and affidavit for initiating or sustaining a criminal action. See A.S.C.A. 壯壯 22.0801,22.0803, and 22.0810(d).

Nothing prevents the government from refiling a summons, complaint and affidavit in this matter, but uniform traffic citation #131687, issued in violation of A.S.C.A. 壯 22.0803, can not sustain the present action.

It is so ordered.

*********

AMERICAN SAMOA GOVERNMENT, Plaintiff

;!, t,

SIONE MATA'U, Defendant

The District Court of American Samoa

TR No.137217

March 16, 1994

[I] It is beyond dispute that a stop of a motor vehicle at a check point or roadblock is a seizure within the meaning of the 4th Amendment. The precise issue for the Court to decide in such cases is whether or not the seizure is unreasonable. and therefore, prohibited.

[2] D.U.I. roadblocks advance a legitimate government interest with minimal intrusions upon the rights of the motoring public.

[3] The U .S. Supreme Court did not expressly require identical procedures as those set forth in Michigan State Police v. Sitz to insure the constitutionality of a D. U .1. roadblock. Local procedures which were substantially similar were sufficient.

[4] Judicial review proceeds from the determination of whether the seizure was reasonable, considering. and balancing the government's compelling interest in protecting the motoring public from alcohol related traffic accidents, with the individual's constitutional right to be free from unreasonable seizures.

[25ASR2d153]

Before District Court Judge W ARD

Opinion:

This matter came on regularly before the Court on 11 th of March 1994, upon Defendant's Motion To Suppress Evidence.

The Court heard testimony from the arresting officer, Officer Fuifatu and his supervisor, Inspector Mika Kelemete. At issue was whether or not the D. U .1. roadblocks conducted by the Department of Public Safety during the Christmas 1993, and New Years Holidays were in violation of the 4th Amendment search and seizure provisions.

The testimony from the police officers may be summarized as follows: The Christmas and New Years Day roadblocks were publicized in advance in the two local newspapers of the Territory .The roadblocks were at 3 locations and conducted from 6:00 p.m. to 6:00 a.m. , as ordered in writing by the Commissioner of Public Safety. The locations were selected based upon public safety, officer safety, and space requirements. Each location was duly marked with traffic cones, reflectors, flashing lights and additional lighting provided by A.S.P.A., all officers were in uniform and the roadblocks conducted according to written procedures.

Every vehicle passing the roadblock was stopped and its driver briefly questioned by an officer. On average, such stops took 20 seconds each. In those instances where the driver, based upon the reasonable suspicion of the interviewing officer, was directed off the roadway for subsequent investigation by other uniformed officers, that investigation proceeded in the same fashion as a traffic stop. Driver's license and registration were required to be produced and, if during that process the Officer had reasonable grounds to proceed, field sobriety tests were conducted. The failure of which lead to an arrest for D.U.I. (A.S.C.A. 壯 22.0707).

In the 1993 -1994, Holiday Season, no fatal traffic accidents related to alcohol were recorded. The roadblocks averaged 15% of the drivers passing through being arrested for D. U .1. In previous years when roadblocks were not in force alcohol related traffic fatalities in the Holiday season totaled three in 1991 and one in 1992.

Defendant contends that the 4th Amendment to the U .S. Constitution prohibits D. U. I. roadblocks as unreasonable, warrantless seizures unless the government has followed all of the procedures set forth in Michigan

[25ASR2d154]

State Police v. Sitl, 496 U .S. 44, 110 S. Ct 2481, 110 L. Ed.2d 412 (1990). The Government argues that only those procedures necessary to demonstrate that such seizures are not unreasonable, considering all of the circumstances, are required, and the Government has met that burden in the instant case.

DISCUSSION AND OPINION

[I] It is beyond dispute that a stop of a motor vehicle at a check point or roadblock is a seizure within the meaning of the 4th Amendment. The precise issue for the Court to decide in such cases is whether or not the seizure is unreasonable, and therefore, prohibited.

In the instant case, by either a subjective or objective measure, the intrusion upon the freedoms of the motoring public was slight. Most drivers passed through the roadblock in a brief period, the average interview taking 20 seconds. The questioning also appeared to the of low intensity -the Officers explaining the purpose of the roadblock and advising drivers to drive safety.

Although the Executive Branch, not the Court, had the authority to decide between alternative law enforcement approaches, the Court notes in passing that a 15% D.U.I. offense rate of drivers stopped at the roadblock, does provide empirical evidence in support of the roadblock as an effective tool in promoting highway safety.

[2] The D .U .I. roadblock advanced a legitimate government interest with minimal intrusions upon the rights of the motoring public. Its effectiveness is borne out by the arrest rate and the decline in alcohol-related traffic accidents and fatalities. The procedures leading up to, and at, the roadblock demonstrate it was safety and uniformly conducted.

[3-4] Although not all of the procedures used by the Michigan State Police, (see Michigan State Police v. Sitl, supra), were used in the instant matter, there were substantial similarities in the local procedures utilized for the D.U.I. Roadblock. The Court notes, however, that the U .S .Supreme Court did not expressly require identical procedures be used in all roadblock or checkpoint situations. Judicial review proceeds from the determination of whether the seizure was reasonable, considering, and balancing the government's compelling interest in protecting the motoring public from alcohol related traffic accidents, with the individual's constitutional right to be free from unreasonable seizures.

[25ASR2d155]

The D, U. I. roadblock conducted by the Department of Public Safety was not prohibited by the 4th Amendment, Evidence obtained pursuant to this roadblock will not be suppressed solely because it was obtained as a result of the D.U,I. Roadblock.'

The motion is denied.

It is so ordered.

*********

TIPISONE MANU AOELUA, Claimant

FOLAU I'AULUALO, MATAIUMU SIOFAGA, and NAIULI L. MA 'ILEOI, Objectors

In the matter of the Matai Title "I' AULUALO"

In the High Court of American Samoa Land and Titles Division

MT No, 02-92

March 17, 1994

[1] Matai-title claimants and counter-claimants/objectors are not held to different standards regarding the supporting petitions.

[2] Eligibility to be a candidate for a matai title is not an incident of one's nationality and therefore A.S.C.A. 壯 1.0403 does not abridge a constitutionally-guaranteed privilege.

[3] Where a conflict exists between tIle A.S.C. and any customary privilege, tIle statute

governs.

[4] The requirement that a statute must have a rational basis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.

. 1 The other cases affected by tllis decision are: UTC# 137339 (Junior Mageo): UTC# 136889 (Susana Correia); and UTC# 135723 (Tofi Taimanini).

[25ASR2d156]

[5] The extent to which equal protection applies in the territory is unclear because the territorial constitution does not contain an equal-protection clause.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, V AIV AO, Associate Judge, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel:

For Folau I'aulualo, Aviata F. Fa'alevao For Mataiumu Siofaga, Gata E. Gurr

Order on Motions for New Trial:

In its decision entered J anuary 26, 1994, the court dismissed the succession claim of Folau I'aulualo, hereafter "Folau," on the grounds that his objection and counterclaim lacked the requisite twenty-five supporting family signatories as required by A~S.C.A. 壯 1.0407. The court also dismissed the objection and counterclaim of Mataiumu Siofaga, hereafter "Mataiumu, " on the grounds that he was ineligible for matai succession under A.S.C.A. 壯 1.0403. Each party moved for a new trial and/or reconsideration pursuant to A.S.C.A. 壯 43.0802(a).

I. Foloau's Motion/or New Trial

As we understand the motion, it is premised on the argument that the statutory requirement relating to twentv-five qualified family petitioners in support of a matai succession claim, applies only to "claimants, " as opposed to "objector/counter-claimants. " Folau submits that the filing requirements for a "claimant," as set out in A.S.C.A. 壯 1.0405, are somehow different to the filing requirements for an "objector/counter-claimant," as set out in A.S.C.A. 壯 1.0407; that while a "claimant" is to be held to the requisite support of twenty-five qualified family petitioners, an "objector/counter-claimant" may be held to a lesser standard if the latter simply files an affidavit, under 壯 1.0407(d), "to the effect that his family does not have sufficient number of qualified members to support his claim. "

[1] Contrary to Folau's argument, matai-title claimants and counter-claimants/objectors are not held to different standards regarding the supporting petitions. A claimant to a matai title must submit a petition with "25 blood members of the title claimed." A.S.C.A. 壯 1.0405(b). An identical requirement applies to counter-claima11ts or objectors. A.S.C.A. 壯 1.0407(b) ("25 persons related by blood to the title"). If a family lacks "a sufficient number of members qualified" to

[25ASR2d157] sign the petition, a claimant or counter-claimant/objector may state this in a signed affidavit. A.S.C.A. 壯壯 1.0405(b), 1.0407(d).

Folau's citing of Asuega v. Manuma, 4 A.S.R. 616 (Trial Div. 1965), is not helpful to his argument. In that case, the trial court would not construe an " [ a]mbiguous statute " so as to frustrate the legislation's "obvious intent" that a court select a l1latai ira ral1lily is unable to do so. Id. at 616, 622-23 (construing C.A.S. 壯 6.0104, which required the signatures of three- fourths of the family members over twenty years old) . However, the Legislature has since resolved that statutory problem by changing the required number of a petition's signatures to twenty-five alld by adding the affidavit exception for small families. Unlike the situation in Asuega, Folau has neither shown that the family is incapable of selecting a matai nor that enforcing the petition-signature requirement would preclude the court from selecting a matai if the family is unable to agree.

In his response to Mataiul1lu's motion to dismiss, Folau also cited In re Matai Title "Fagaima ", 4 A.S.R. 83 (Lalld & Titles Div. 1973). In that case, the winning claimant filed a petition with fewer than twenty-five signatures and an affidavit that his family lacked a sufficient number of qualified members; however, all of the other claimants submitted petitions with at least twenty-five signatures. Because the family clearly had enough qualified members, the affidavit to the contrary was facially false. As the Fagaima court's ruling lacks any basis in the statute, this court need not follow its erroneous holding.'

In any event , the affidavit filed by Folau was also factually incorrect. Folau explained his lack of petitioners not because of an insufficiency of family members but because he had left things too late and that he did not therefore have sufficient time to secure the required signatures.

In sum, Folau failed to submit a petition with the requisite twenty-five signatures, alld his affidavit is improper because the family has enough members qualified to sign matai-candidates' petitions. His motion for reconsideration or new trial is thus denied.

II. Mataiumu's Motion for New Trial

I See Reid v. Talalele, 4 A.S.R. 458 (Trial Div. !963) (Objectors. as well as claimant, are candidates for matai sutcession.) Asuega v. Malluma. 4 A.S.R. 6!6 (Trial Div. !965) (Statutory requirements for matai succession claim applies to every calldidate for title-- objecturs as well as applicant.)

[25ASR2d158]

Mataiumu argues that because he is ineligible for a matai title under A.S.C.A. 壯 1.0403, he has suffered "a violation of a privilege of nationality or citizenship." He then states that the statute treats him different than other American Samoan nationals and so violates Art. 1, 壯 16 of the territorial constitution.

[2-3] However, the eligibility to be a candidate for a matai title is not an incident of one's nationality. This is demonstrated by the fact that an individual who is not a national of the United States may nevertheless be eligible for a matai title under A.S.C.A. 壯 1.0403. This is so even ifhe was not born on American soil and his parents were not U .S. nationals, as long as his parents were inhabitants of American Samoa and were only temporarily residing elsewhere. See A.S.C.A. 壯 1.0403(b). Indeed, the statute includes a provision requiring a foreign-born individual to renounce his allegiance to his birth country .A.S.C.A. 壯 1.0403(b)(1). Thus, the statute does not abridge a constitutionally-guaranteed privilege. At the same time, if, as claimed by Mataiumu, a conflict exists with any customary privilege, the statute would govern. See Taeleifi v. Willis., AP Nos. 30-90 & 31-90 (June 23, 1992),21 A.S.R.2d 118,119-20 (App. Div. 1992) (citing A.S.C.A. 壯 1.0202).

[4-5] Actually, it appears that Mataiumu is alleging an equal-protection violation. However, the statute is rationally related to the Legislature's concern "with a candidate's having a certain level of connection with the territory " and may not be declared unconstitutional just because the High Court may think that a better way of accomplishing the policy exists. The requirement that a statute must have a rational basis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Heller v. Doe, 509 U.S. -, 125 L. Ed. 2d 257, 270 (1993) (citing FCC v. Beach Communications Inc., 508 U.S. , 124 L. Ed. 2d 211 (1993遙. In any event, the extent to which equal protection applies in the territory is unclear because the territorial constitution does not contain an equal-protection clause. American .S'amoa Government v. Whitne)', CR No.26-91 (Nov. 1, 1991),20 A.S.R.2d 29,34 (Trial Div. 1991).

We conclude that A.S.C.A. 壯 1.0403(b) does not violate any of counter-claimant Mataiumu's constitutional rights or privileges. Therefore, Mataiumu's motion for reconsideration or new trial is also denied.

It is so ordered.

*********

[25ASR2d159]

AMERIKA SAMOA BANK, and NATIONAL PACIFIC INSURANCE CO., Plaintiffs,

UNITED PARCEL SERVICE, Defendant.

High Court of American Samoa Trial Division

CA No.42-93

~.1(lrch 18, 1994

[1] Under federal common law, carriers may partially limit their liability pursuant to the "released valuation" doctrine, whereby the shipper does not declare a value and the released value is presumed.

[2] In ruling on a summary judgment motion. the court must view all pleadings and supporting papers in tile light most favorable to the opposing party .treat tile opposing party.s evidence as true. and draw from such evidence the inferences most favorable to him.

[3] The conversion doctrine is pel1inent only when tllere has been a true conversion, i.e. , where the carrier has appropriated the property for its own use or gain. The carrier may properly limit its liability where tile conversion is by tllird parties or even by its own employees.

[4] Failure to aid customers in locating missing packages is not the kind of behavior tllat voids a contract.

Before RICHMOND, Associate Justice, V AIV AO, Associate Judge, LOGOAI, Associate Judge.

Counsel ;

For Plaintiffs, William H. Reardon For Defendant, Roy J.D. Hall, Jr.

Order Granting Motion for Summary Judgment;

The motion by defendant United Parcel Service ("UPS") for summary judgment came regularly for hearing on February 28, 1994 .

The essential facts of this case are not disputed. On March 13, 1990, UPS picked up a package from plaintiff Amerika Samoa BaJlk ("ASB") destined for the First Hawaiian Bank in Honolulu, Hawaii. Unknown to

[25ASR2d160]

It is so ordered,

*********

IOELU F.C. PEN, Plaintiff,

FAIMA LAVATA'I, MEL LAVATA'I and DOES I-V, Defendants,

High Court of American Samoa Land and Titles Division

LT No, 61-92

March 21, 1994

[I] A matai's authority or pule over family lands is not unfettered when it comes to dealing with the rights of family members; ratller, it must be used for the benefit of family members and justly and fairly. It must not be used unreasonably and unjustly.

[2] The unquestioned right of a family member to use communal land is a property right under the due process clause of either the U .S. or Samoan constitutions. A non-family member, by definition, has no such right.

[3] A family member is ordinarily entitled to possess land assigned to him for his lifetime.

[4] Having the general ability to administer tlle family lands but at tlle same time he has no authority to alienate land in his own right, a matai's authority is like tl1at of a trustee in tllat he is to act for the benefit of the family. When a matai undern1ines the rights of a family member (a beneficiary of family property) to favor a non-family member, he acts inconsistent witl1, and is in breach of, tl1at duty to exercise his pule for tl1e benefit of the family members.

[5] A family member may, in certain circumstances, seek judicial review of matai action, and the court will enjoin arbitrary , capricious, or illegal actions or tl1ose in which tl1ere has been an abuse of discretion on tl1e part of the of the matai.

[6] A matai can only revoke an assignment of land, and thereby deprive a family member of its possession, for good cause.

[7] A matai can, for a family purpose, order a person's removal from land if he meets certain requirements.

[25ASR2d65]

Before KRUSE, Chief Justice, V AIV AO, Associate Judge, and AFUOLA, Associate Judge.

Counsel :

For Plaintiff, Togiola T .A. Tulafono For Defendants, Afoafouvale L.S. Lutu

Opinion and Order:

Plaintiff Ioelu F.C. Pen seeks a permanent injunction against the defendant Faima Lavata'i and his son Malakai, aka M\~I, Lavata'i, to enjoin them from interfering with his use and enjoyment of a certain parcel of land leased to him by the late Lavata'i Natia, then senior matai of the Lavata'i family of Nu'uuli. The lease agreement, dated July 6, 1989, stipulates a term of 55 years and relates to an area approximating .389 of an acre of Lavata'i communal land known as "Lepine. " The agreement also provides for an initial monthly rental of $150 during the first year of the lease and $200 per month for the remainder of the lease.1 The lease agreement was presented to and approved by Acting Governor Galea'I Poumele on October 3, 1989, pursuant to A.S.C.A. 壯 37.0221.2

Plaintiff is a not a member of the Lavata'i family; the defendants are. Plaintiff claims that he filed suit after several encounters with defendants , attempts to interfere with his business activities on the leased site. On the other hand, Faima Lavata'i, a brother of the late senior matai, claims that the area leased to plaintiff constitutes a part of Lepine which has been assigned to him for his use and livelihood in accordance with custom. Defendants also charge that plaintiff's use of the land for furniture making has been both noxious and noisome and often undertaken without regard to time of day. Malakai Lavata'i complained on the stand about strong fumes emanating from plaintiff's workshop and his noisy machinery's being particularly bothersome in the early hours of the morning and even on Sundays.

After hearing the evidence, the court visited the location of the disputed site. Although plaintiff claimed that Faima was not on Lepine when he first went onto the land in 1983, we are satisfied that the leased area had

I Plaintiff admits tllat since tile deatll of the senior matai, he has not being paying tile stipulated rent.

2 A.S.C.A. 壯 37 .0221(a) permits the leasing of native land "with tile approval of the I Governor." [25ASR2d166]

already been assigned to Faima, for the following reasons: Faima testified that he first entered this part of Lepine prior to the Second World War and established extensive cultivations with which hc served the matai and family. He further testified that he then built a number of houses there. Faima's claim to extended use and occupation was corroborated by Valasi Gaisoa, his niece and daughter of the late Lavata'i Natia. From our visual inspection of the disputed site, we noted that the area is surrounded by the homes of Faima and his immediate family, together with a garage which, according to the testimony, was located on Lepine at Faima's instance. Visual inspection also supported Faima's testimony about his having once bulldozed and enlarged the general area, from the direction of the main highway towards the base of mountain inland. He additionally submitted corroborating government job orders, evidencing his hire of heavy equipment in 1980 for use on a site referred to as II Lepine, II together with building permits which related to his subsequent building of a number of" European II -type housing throughout the 1980s on Lepine. At the same time, plaintiff conceded that in the process of his setting up his business yard on Lepine, he had to clear certain subsistence crops that were growing on the site. These were crops that Faima had claimed were his. Finally, the court could not help but notice on its site-visit that Faima's settled occupation was very distinct from the similarly settled occupation to the west of Tuinei Lavata'i, another of Faima's brothers, and Lavata'i Natia.

;1 ,: "

Plaintiff, on the other hand, was recently brought onto the site by Tuinei Lavata'i. He acquired the extended leasehold from the senior matai sometime shortly thereafter. Why the senior matai executed such a lease in favor of a non-family member, in derogation of a family member's claim, was not made clear on the evidence. Like the senior matai, Tuinei Siaki has also since passed away. All that we could gather from the evidence was that plaintiff, as he had testified, had sought out the lease from the senior matai in order to "secure his future. II Faima, on the other hand, testified that the matter of plaintiff's presence on the land and his dealings with Tuinei Siaki was earlier brought up at a family meeting presided by the senior matai. At this meeting, he expressed his objection with plaintiff's presence and he pleaded with the matai to relocate plaintiff to Tuinei ' s side of the property, since it was the latter who had invited plaintiff onto the land.

, I

Subsequent to that family meeting, a lease was executed and presented for gubernatorial approval, all without Faima's knowledge or consent. He, as well as other family members, only learned of the existence of a lease when these proceedings arose.

[25ASR2d167]

The evidence further revealed that certain third parties, who were not before the court, took mortgage interests on the lease as collateral for certain loans made to plaintiff. Amerika Samoa Bank apparently gave plaintiff a secured loan on October 5, 1989, in the amount of $30,000.00, as evidenced by plaintiff's mortgage instrument filed with the Territorial Registrar on October 10, 1989, and recorded in Native Leases, Volume 4 at pages 167-68. The United States Small Business Administration subsequently loaned plaintiff the sum of $174,400.00, as evidenced by plaintiff's mortgage instrument dated October 19, 1992, and received by the Territorial Registrar's Office on October 23, 1992.

DISCUSSION

Plaintiff's principal argument is that he has a valid and enforceable lease. He contends that the lease was within the matai's exclusive competence, and he cites Vaimaona v. Tuitasi, 13 A.S.R.2d 76 (Land & Titles Div. 1989) (motion for new trial denied), aff'g 12 A.S.R.2d 68 (Land & Titles Div. 1989), aff'd 18 A.S.R.2d 88 (App. Div. 1991), for the proposition that "the Samoan custom that major family decisions [by the sa '0 (senior matai)J should be made with consultation with the whole family is not among those incorporated into statutory restrictions on the otherwise plenary powers of a 'sa'o' over family lands. " Plaintiff's Post Trial Brief, at 2 (emphasis in original). He further argues that "the offer to register the [leaseholdJ instrument does not require 'Notice' of any sort by the statutes of American Samoa. " Id. (emphasis in original). As we understand plaintiff's contention, it is that the Samoan custom requiring a matai to consult with his family before making any major decisions concerning family lands was not a substantive requirement of the law which regulates the leasing of communal lands. Furthermore, it is argued, the lease in question was given favorable recommendation by the Land Commission and then duly approved by the Governor in accordance with applicable statutes; these applicable statutes did not require prior notice of this process to family members.

Defendants, on the other hand, contend that the subject lease is invalid because it was, among other things, entered into without their knowledge and approval. Citing Fairholt v. Aulava, I A.S.R.2d 73, 74 (Land & Titles Div. 1983), defendants claim that their right to family lands, as Lavata'i family members, is a property right protected by both the United States and American Samoa Constitutions.

[1-3J The issue in this case is not simply the question of whether or not a matai can enter into a lease of communal land without family

[25ASR2d168]

consultation. Instead, the issue before us is whether the senior matai can effectively lease family lands to a third party and thereby effectively disseise a family member from use of family land assigncd to him. After all, a matai's authority or pule over family lands is not unfettered when it comes to dealing with the rights of family members; rather, "it is a pule which must be used for the benefit of family members and justly and fairly. It must not be used unreasonably and unjustly. " Tali v. Tupeona, 4 A.S.R. 199,206 (Land & Titles Div. 1961). The court has recognized "the unquestioned right of a family member to use communal land [as being] a property right under the due process clause of either the U .S. or Satnoan constitutions. " Fairholt, 1 A.S.R.2d at 74 (discussing U.S. Const. Amend. V; Rev'd Const. Am. Samoa Art. I, 壯 2); see Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87 (Land & Titles Div. 1989) (citing Tuanaitau v. Pagofie, 4 A.S.R. 375, 381 (1963); Fairholt, 1 A.S.R.2d at 74); Gi v. Temu, 11 A.S.R.2d 137, 143 (Land~ Titles Div. 1989) (citing Lutu). On the other hand, a non-family member "by definition has no such right. " Gi, 11 A.S.R.2d at 143 (quoting Lutu, 11 A.S.R.2d at 87). Furthermore, a family member is ordinarily entitled to possess land assigned to him for his lifetime. Gi, 11 A.S.R.2d at 142 (citing Taesali v. Samuela, 3 A.S.R. 359,361 (Trial Div. 1958).

[4-5] Having "the general ability to administer the family lands but at the same time he has no authority to alienate land in his own right, " a matai's authority is like that of a trustee in that he is to act for the benefit of the family. Lutu, 11 A.S.R.2d at 88. "It thus follows that when a matai undermines the rights of a family member (a beneficiary of family property) to favor a non-family member, he is surely acting inconsistent with, and is in breach of, that duty to exercise his pule for the benefit of the family members. " Lutu, 11 A.S.R.2d at 88. Hence, a family member may, in certain circumstances, seek judicial review of matai action, and the court will enjoin "arbitrary , capricious, or illegal actions or those in which there has been an abuse of discretion on the part of the of the matai. " Fairholt, 1 A.S.R.2d at 79; see Lutu, 11 A.S.R.2d at 88; Gi, 11 A.S.R.2d at 142; cf. Vaimaona, 12 A.S.R.2d at 70-71 (although land title could not be invalidated when matai sold land without consulting family, thus violating Samoan custom, affected family members could file suit to (1) obtain an accounting from the matai, (2) obtain compensation for their assigned lands, and (3) possibly remove the matai's title).

[6-7] Thus, a matai cannot revoke an assignment of land, made in accordance with Samoan customs, for a family member's use atld thereby deprive that family member of its possession, "except for good cause."

[25ASR2d169]

Taesali, 3 A.S.R. at 361; Gi, 11 A.S.R.2d at 142 (citing Taesali).3 "Good cause" for removal includes a failure to render tautua (traditional service to the matai and family) and an overriding family purpose. ,)'ee, e.g., Leapaga v. Masalosalo, 4 A.S.R. 868, 872 (App. Div. 1962) (tautua not rendered); Tiumalu v. Lio, 3 A.S.R. 176, 179-80 (Trial Div. 1955) (possible use of lalld for a family graveyard) .However, with regard to a family purpose, a matai can order a person's removal only after:

a. A family meeting at which all parties are permitted to be heard. b. A decision by the matai, reasonable under the circumstances, that the removal is for an important family purpose. c. Provision of specific alternate land for erection of a dwelling unit if desired, or other arrangement reasonable under the circumstallces. ... d. Allowance of such time construct the new house or arrangements .

as is reasonably necessary to complete the other reasonable

Coffin v. Mageo, 4 A.S.R. 14, 18 (Land & Titles Div. 1970).; see Gi, 11 A.S.R.2d at 141-42 ("[A] matai should ordinarily consult with the family, including especially those family members directly affected, before taking land assigned to a family member in order to use the land for some other family purpose."). Thus, if a person has expressly or implicitly been assigned the "communally-owned house alld appurtenant areas, " a matai may not remove him without meeting the aforementioned requirements. Coffin, 4 A.S.R. at 18.

In short, plaintiff's suggestion that the matai's power over family lands is "plenary , " and thus without limits, is erroneous. Plaintiff's citing of Vaimaona to support his argument is also misplaced. Vaimaona involved a family's challenge to a matai's alienation of communal land without his consulting the family, as well as a claimed lack of notice. However, that case makes no mention of the disputed communallalld's being assigned to an individual. In contrast, the case now before this court involves more than the matters of a family's being consulted or given notice. Defendants were assigned their land alld so have a property interest which is protected under the due-process clauses of the United States alld

3 This right is IlOt absolute. tIlough--the matai can reallocate communal land as long as he provides the displaced family members with equivalent land. Talili v. Satele. 4 A.S.R.2d 23, 27 (Land (.~ Titles Div. 1987).

[25ASR2d170]

American Samoa Constitutions. Const. Am. Samoa Art. I, 壯 2.

See U.S. Const. Amend. V; Rev'd

As such, the defendants are entitled to possess the family's land which has been assigned to them. The evidence does not show that the matai had good cause, such as defendants' failure to perform their traditional service, to revoke their land assignment. Likewise, the evidence has not demonstrated an overriding family purpose; plaintiff's lease certainly does not qualify .In light of inflation and the increasing scarcity of unassigned land in the territory , the $200-a-month rental payments, set for a 55-year ternl, at best provides only () marginal benefit to the family.

However, the lease was agreed to by the family's matai, approved by the Governor, and registered by the Territorial Registrar. Immediately canceling the lease would cause plaintiff, and tlfus his mortgagees, significant fmancial hardship. The third-party lending institutions were not before this court to raise their own respective arguments against canceling the lease. Therefore, this court will exercise its equitable powers in not terminating the lease during the term of plaintiff's aforementioned mortgages. In order to ensure, however, that no future encumbrances be placed on this property, a copy of this judgment shall be placed with the copy of the lease in the Territorial Registrar's records. Also, because the lease concerned a portion of land which has been assigned to the defendants, all future rental payments, as well as any rental arrearages, are to be paid directly to the defendants. With these conditions in mind, plaintiff's request for injunctive relief is granted; that is, defendants shall refrain from any further self-help measures against plaintiff's business activities on the leased land. Judgment shall enter

accordingly.

It is so ordered.

*********

[25ASR2d171]

CURTIS BRY ANT ; BARBARA BRY ANT, W ARD BROWNE, DA VID IRVINE, KEITH BURBRIDGE, RITA BURBRIDGE, JOHN ROSE, and GI{EG LEWIS, Plaintiffs,

SOU1'HWEST MARINE OF SAMOA, INC., VESSEL SOUTHWEST MARINE CRANE BARGE, Its Engines, Tackle and Gear, McCONNELL DOWELL COMPANY, McCONNELL DOWELL COMPANY PONTOON RAFT VESSEL, Its Engines, Tackle and Gear, and DOES I-XX, Defendant.."

SOUTHWEST MARINE OF SAMOA, INC., Third-Paliy Plaintiff,

KOREA WONYANG FISHERIES CO., LTD., KOREAN TUNA VENTURES S.A., STARKIST SAMOA, INC., STARKIST FOODS, INC., and AMERICAN SAMOA GOVERNMENT , Third-Party Defendants.

MCCONNELL DOWELL COMPANY and MCCONNELL DOWELL COMPANYPONTOON RAFT VESSEL, Cross-Complainants and Cross-Defendants,

SOUTHWEST MARINE OF SAMOA, INC., Cross-Defendant and Cross-Complainant.

High Court of American Samoa Trial Division

CA No.41-92

March 22,1994

[I] Summary judgment is appropriate where the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. T.C.R.C.P.56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party. and draw from such evidence the inferences most favorable to that party.

[25ASR2d172]

[2] If the proof in support of a motion for summary judgment has a high degree of credibility , the opponent must produce convincing proof to warrant denial of the motion.

[3] For summary judgment purposes, party must provide a minimum level of convincing proof when faced with opposing party's credible and convincing evidence.

[4] No novel obligation to protect others' vessels when faced with an act of God.

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, V AIV AO, Associate Judge.

I 1 1 f , " t J ~, ,

Counsel:

For Plaintiffs, Charles V. Ala'ilima For Defendant and Third-Party Plaintiff South West Marine of Samoa, Inc. and Defendant Southwest Marine Crane Barge, Robert A. Dennison III, Mary Cox and Marshall Ashley For Defendants, Cross-Complainants and Cross-Defendants McConnell Dowell Company and McConnell Dowell Company Pontoon Raft Vessel, and Third-Party Defendants StarKist Samoa, Inc. and StarKist Foods, Inc., Roy J.D. Hall, Jr. For Third-Party Defendant American Samoa Government, Cheryl A. Quadlander, Assistant Attorney General

.i ", ii ! " , ,

Order Denying Motion for Reconsideration of Summary Judgments:

On October 25, 1993 this court issued its order granting the motions for summary judgments brought by defendants SouthWest Marine of Samoa, Inc., McConnell Dowell Company and McConnell Dowell Company Pontoon Raft Vessel. Plaintiffs' motion for reconsideration came regularly for hearing on November 22, 1993, at which plaintiffs asserted that the court made a number of errors in granting the summary judgment motions. We will address them in turn.

[1-2] Plaintiffs begin by submitting that the court did not apply the correct standard of review. Sumn1ary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any materia] fact and that the moving party is entitled to judgment as a matter of law. " T .C.R.C.P .56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 369 U.S. 654 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to that party. Lokan v. Lokan, 6 A.S.R.2d

[25ASR2d173]

44,45 (1987). However, as the court stated in its order: "[I]fthe proof in support of the motion. ..has a high degree of credibility the opponent must produce convincing proof." Order Granting Motions for Summary Judgment at 4, citing WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE, 壯壯 2727 at 143 (2d ed. 1983).

This standard has been articulated by the Supreme Court in what is commonly referred to as the Celotex trilogy. These cases stand for the proposition that an inadequate showing cannot defeat a moving party's competent motion for summary judgment. InCelotex Corp. v. Catrett, 91 L.Ed.2d 265, 275 (1986) (a wrongful de;}th action), the court stated " ...the burden on the moving party may be discharged by. .. pointing out. ..that there is an absence of evidence to support the nonmoving party's case." InAnderson v. Liberty Lobby, 91 L.Ed.2d 202, 212 (1986) (public figure libel action), the court defined a genuine issue of dispute as one in which " ...a reasonable jury could return a verdict for the nonmoving party. " The court elaborated: " As (cites omitted) indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is not significantly probative, summary judgment may be granted." (cites omitted). And in Matsushita Elec. Ind. v. Zenith Radio, 89 L.Ed.2d 538, 552 (1986) (antitrust conspiracy case), the court stated: "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial'." (citing First National Bank of Arizona v. Cities Service, 20 L.Ed.2d 569 (1968遙.

Since the Celotex trilogy, the above standard has been used throughout the federal system. See Cal. Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466 (9th Cir. 1987) (RICO action); In Re Agricultural Research and Technology Group, 916 F.2d 528 (9th Cir. 1990) (bankruptcy action); Stitt v. Williams, 919 F.2d 516 (9th Cir. 1990) (RICO c.ction!. The st?.',dc.rd el?!),)-;?'.:;d h:;-;:;in i.., ,rl'.: '-fJrr'.:'-: rJrj'.:. ;,r,r\ the one applied by the coun. It remains one the plaintiffs simply fail to meet.

Defendants submitted affidavits, depositions and data of high credibility in suppon of their motions for summary judgment. The burden was then on the plaintiffs to offer convincing proof sufficient to create a factual dispute. This is the burden that has not been met. Plaintiffs have only offered unsubstantiated a~senions and the single affidavit of Silia Patane. As the coun stated in its order, a nonmoving pany's single affidavit, if inadequate, may be insufficient opposition. Order Gral1ting Motions for

[25ASR2d174]

Summary Judgment at 4, citing Ashwell & Company v. Transamerica Insurance Company, 407 F.2d 762 (7th Cir. 1956).

Plaintiffs also assert that the court made a number of specific errors in its order. First, plaintiffs claim that the court erred in characterizing Hurricane Val as extraordinary and unexpected, as the evidence shows hurricanes are not unusual in the territory .This line of reasoning suffers from the same flaw previously mentioned by the court. While defendants have advanced evidence supporting the characterization of this hurricane as an act of God, plaintiffs have countered this argument with nothing more than denials. These denials, however forceful, do not automatically entitle plaintiffs to a full trial on the merits.

[3] Plaintiffs also take issue with the court's characterization of Patane's affidavit. The real issue here is that, faced with deferi.dants credible and convincing evidence, plaintiffs needed to provide a minimum level of convincing proof. The court did not disregard plaintiffs' offering, nor did it sulllluarily decide the case on the merits. Instead, the court searched for a minimum threshold offering by plaintiffs that has not been met. Plaintiffs' arguments to the contrary are without merit.

[4] Finally, plaintiffs assert that the court's order summarily determines the standard upon which it based its decision, without a clear rationale for that standard. What the court said was that, when faced with an act of God (a characterization, we again note, not seriously disputed by plaintiffs), defendants do not have a novel obligation to protect others' vessels.

For the reasons stated herein, plaintiffs' motion for reconsideration is hereby denied.

It is so ordered.

**********

[25ASR2d175]

SUALEV AI LAULELEI SEA, Claimant

TAFEA FAAUMA SEUI, T.S. TUIMOLOAU, SI'ITUA SAVINI, LET ALU M. MOLIGA,PESE MASELINO, PULEISILI F . TUIOLESEGA, & SEGILA PUIAI V AEAO, Object o rs/ Co on t er-C I aiman ts

In the Matter of the Mat:JIi Title "LOLO"

In the High Court of American Samoa Land and Titles Division

MT No.09-93

March 23, 1994

[I] In circumstances in which family history is by and large hannonious, the "Sotoa rule" is the less arbitrary method of assessing hereditary entitlement.

[2] Presentation of the kava cup by family members, which included all but two of the claimants who sought registration of the title, is significalltly indicative of family support favorillg preselltee.

Before KRUSE, Chief Justice, V AIV AO, Associate Judge, AFUOLA, Associate Judge, and BETHAM, Associate Judge.

Counsel :

For Tafea F. Seui, Robert A. Porter For Si' itua Savini, Gata E. W .Gurr For Letalu M. Moliga, Afoafouvale L.S. Lutu For Segila P. Vaeao, Albert Mailo

Opinion and Order:

Four of the candidates in this matter had withdrawn their respective matai-succession claims at different times during these proceedings. When the matter was finally submitted to the court for its deliberation, the following parties remained: Tafea F. Seui, Si'itua Savini, Letalu M. Moliga, and Segila P. Vaeao.

In these matters, we are guided by the four criteria set out in A.S.C.A. 壯 1.0409(c):

[25ASR2d176]

Hereditary Right

All the candidates traced their respective lineages to a common ancestor , the first titleholder, Lolo Ututautu'u aka Tautu'u, aka Nu'uto'a. Their respective family histories were also in agreement on the number of issue of the original titleholder; to wit, three. These children, in turn, gave rise to the three customary' clans of the Lolo family.

[1] In these, albeit infrequent, circumstances in which family histol"y is by anrl large harmonious, it seems that the "Sotoa rule"1 is the less arbitrary method of assessing hereditary entitlement. In our review of the gala (genealogies) submitted, we find that candidate Savini is two generations ahead of the other candidates. We conclude that Savini prevails on the issue of hereditary right.

Wish of the Clans

As alluded to above, the preponderance of the evidence showed that the Lolo family has three clans. The evidence also revealed that the family title has been vacant for more than thirty years, after Lolo Lauvao resigned the title to assume the Lutali title of Aunu'u. Following Lauvao's resignation, the family held numerous meetings, both within and without Sili, to select a matai successor. After several meetings, without any of the then-candidates yielding any ground whatsoever, the family directed the candidates to meet for the purpose of selecting a titleholder from among themselves. A subsequent series of meetings by the candidates likewise failed to produce a consensus. The issue was then apparently left in abeyance until Sualevai L. Sea decided to bring the matter to a head by offering the title for registration on December 4, 1992. This offer attracted a number of objections and counterclaims, which not only included objections from some of the original candidates, but also from a new set of candidates altogether. The only candidate remaining from the days of those earlier meetings of the family who is before the court today is Letalu.

Subsequent to the registration offer, the resulting candidates attempted to meet on a number of occasions to narrow the field. Those efforts did not produce a unalllmous decision; however, a number of candidates

I The court in In re Matai Title Sotoa, 2 A.S.R.2d 15 (Lallds & Titles Div. 1984) , calculated blood relationship to the original titleholder , as opposed to the nearest titleholder in a candidates genealogy.

[25ASR2d177]

subsequently withdrew their succession claIms in favor at Letalu atter participating at one particular meeting, which resulted in the presentation of the Lolo title's kava cup to Letalu. Two of the parties, Savini and Vaeao, were not present at that meeting, aJld thus they continue to seek judicial detennination of the matter. Likewise, Tafea seeks judicial resolution, even though he participated in the kava-presentation ceremony and accepted the appropriate customary presentations made by Letalu.

[2] While each party can claim some family support, we find that candidate Letalu had the most credible claim to support from the majority, if not from all, of the clans of the family. Letalu was a candidate before the family in its deliberations. When the family had earlier instructed Letalu and his fellow contenders to meet and decide on a holder, we CaJl infer from that family decision that Letalu was at least acceptable to the family to hold the Lolo title. As testified to by High Talking Chief Sualevai, before he moved to withdraw his claim, none of the candidates before the court, except himself and Letalu, were even considered by the family in any of its many deliberations. Furthermore, we find that the presentation of the kava cup to Letalu by family members, which included all but two of the claimants who sought registration of the title, is significantly indicative of family support favoring Letalu. The presentation of the kava cup roughly equated compliance with the family's decision to leave it to the various contenders to select a titleholder from among themselves.

We conclude that candidate Letalu prevails on the issue of clan support.

3. Eorcefulness. Character and Personalitv. and Knowledge of SamoaJl Customs

Candidates Tafea and Letalu present the stronger credentials. They are both college graduates, with Tafea having additionally completed postgraduate studies, which culminated in his obtaining his doctoral degree in education. Both have held responsible white-collar positions within the Department of Education. We rank Letalu, however, ahead of Tafea in forcefulness, character and personality. While Tafea has dedicated his life to the education of the children of American Samoa, Letalu's varied career experience has exposed him to policy aJld managerial roles outside the field of education. After eight years with the Department of Education, Letalu was elected to four terms as a representative in the House of Representatives. As a legislator, he chaired the important. Ways and Means and Budget Committees of the House of Representatives. He then resigned from the Fono in 1984 to [25ASR2d178]

join the executive branch as the Governor's budget director. He has since left government and is now in private business as a construction

contractor .

Tafea, Letalu, and Savini are matai, with Tafea purporting to hold, unlawfully, a second matai title. Although they have all been matai for several years now, Letalu stands out in his service to his village as a matai. Furthermore, the Associate Judges found Letalu to be noticeably aIlead of all of the candidates on matters of Samoan customs.

We conclude that Letalu prevails on the question forcefulness, character and personality, and knowledge of Samoan custom~;"

4. Value to Familv. Village. and Country

; 'i II! ~ I " " t; f ,

In our evaluation of the parties, we rate cal1didate Letalu ahead of the other candidates on this criterion. His education, career history , and participation and experience in the affairs of the village of Tau as a leading matai of some 14 years' standing speak strongly for his capacity for leadership and thus potential value to family, village, and country . Although Tafea has also been a matai for an equal amount of time, it was evident on the testimony that his attempt to hold two titles necessarily compromised his effectiveness to serve two different families at same time. He conceded that he was not always responsive to his obligations as a matai of Sili village. Significantly, the Lolo family has been leaderless for too many years, with the result that the family has become very much fragmented. It goes without saying that strong, effective leadership is critical. Letalu impresses us as best fitting that role.

CONCLUSIONS

Based on the foregoing, we hold that Letalu M. Moliga is qualified to hold the title Lolo. Although Savini prevails on hereditary considerations, Letalu prevails on the second, third, al1d fourth criteria. The Territorial Registrar shall accordingly register the Lolo title from the village of Sili in candidate Letalu M. Moliga, in accordance with the requirements of A.S.C.A. 壯 1.0409(b).

It is so ordered.

*********

[25ASR2d179]

AMEl{ILAN ~A1VIUA l:iUVEl{NMENT, Plaintiff

PETERU LUA V ASA TAUALA, Defendant

High Court of American Samoa Trial Division

CR No.25-93

March 25, 1994

111 I\ftcr tile jury retum.\ a guilty verdict, a defe,ldal11may move that the court set a.-;ide the verdict and el11er a judgmel11 of acquittal. T.C.R.Cr.P. Rule 29(c).

[2] In considering a motion for acquittal, a trial court must determine whetlJer, viewing all the evidence in the light most favorable to the Govemmel11 and drawing all reasonable inferences and credibility choice.-; in favor of tlJe jury's verdict, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.

[3 J It is the exclusive function of the jury to detemJine tlJe credibility of wiIJlesses, resolve evidel11iary conflicts and draw reasonable inference.-; from proven facts.

[4] Under the embezzlemel11 statute, a "person commits the crime of embezzlemel11 if he knowingly misappropriates property of another which has been el11rusted to him or which has lawfully come under his col11rol. A.S.C.A. 壯 46.4104(a).

[.'j] A person comlnits tIle crime of stealing if he appropriates property of anotlJer with tlJe purpose to deprive him of it by means of deceit" A.S.C.A. 壯 46.4103(a).

(6] Nonnally, "value" is determined by tlJe market value of the thing taken at tIle time and place of the crime. A.S.C.A. 壯 46.4102(a). However, when the thing takell is an instrumel11 evidencing debt, tllat value is tile amoul11 due or collectible on it. A.S.C.A. 壯

46.4102(b)(1).

Before RICHMOND, Associate Justice, V AIV AO, Associate Judge, and BETHAM, Associate Judge.

Counsel :

For Plaintiff, Henry W. Kappel, Assistant Attorney

General For DefendaJlt, Charles V. Ala'ilima

Order Denying Motions For Judgment of Acquittal:

, ~.

PROCEDURAL HISTORY

[25ASR2d180] On March 10, 1994, defendant was convicted by the verdicts of the jury of four counts of stealing (A.S.C.A. 壯 46.4103) and four counts of embezzlement (A.S.C.A. 壯 46.4104) and renewed his motions for a judgment of acquittal on all eight counts. He filed his "Memorandum in Support of Motions for Judgment of Acquittal" on March 14, 1994, and the Government's response was filed on March 17, 1994. On March 22, 1994, a hearing was held on defendant's motions.

STANDARD OF REVIEW

[1-3] After the jury returns a guilty verdict, a defendant may move that the court set aside the verdict and enter a judgment of acquittal. T.C.R.Cr.P. Rule 29(c). In considering a motion for acquittal, a triill court must "determine whether, viewing all the evidence in the light most favorable to the Government and drawing all reasonable inferences and credibility choices in favor of the jury's verdict, a reasdnable trier of fact could find that the evidence established guilt beyond a reasonable doubt. " United States v. O'Keefe, 825 F.2d 314, 319 (llth Cir. 1987) (internal citation omitted) (citing United States v. Brand, 775 F.2d 1460 (11th Cir. 1985); United States v. Cole, 755 F.2d 748 (llth Cir. 1985)); see also United States v. Dreitzler, 577 F.2d 539, 545 (9th Cir. 1978) (citing United States v. Figueroa-Paz, 468 F.2d 1055, 1058 (9th Cir. 1972遙), cert. denied 440 U .S. 921. Indeed, the trial court is to keep in mind that "it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts. " Dreitzler, 577 F .2d at 545 (quoting United Stales v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977)).

DISCUSSION

[4-5] Under the embezzlement statute, a "person commits the crimc of embezzlement ifhe knowingly misappropriates property of a11other which has been entrusted to him or which has lawfully come under his control. " A.S.C.A. 壯 46.4104(a). For purposes of this prosecution, a "persoll commits the crime of stealing if he appropriates property. ..of anothcr with the purpose to deprive him of it, ...by means of deccit. " A.S.C.A. 壯 46.4103(a). Embezzlement is a class C felony, as is stcalill~ property valued at $100 or more. A.S.C.A. ~~ 46.4104(b): 46.4103(b)(I). Sufficient evidence existed for the jury to find thai defendant" misappropriated" and" appropriated" the Governmcnt' s T AOA vouchers,

[25ASR2d181]

L6j As for defendant's assertion that the vouchers did not have any value, this is incorrect. " 'Property' means anything of value, whether real or personal, taI1gible or intangible. ..." A.S.C.A. 壯 46.4101G). Normally, "value" is determined by the market value of the thing taken at the time and place of the crime. A.S.C.A. 壯 46.4102(a). However, when the thing taken is an instrument evidencing debt (e.g., a check, draft, or promissory note--or a TAOA voucher), that value is the amount due or collectible on it. See A.S.C.A. 壯 46.4102(b)(1); see also United States v. Bauer, 713 F.2d 71,73 (4th Cir. 1983) (rejecting argument that since stolen U .S. Savings Bonds had been replaced, they had no value, defined by 18 U.S.C. 壯 641 as "face, par, or market value, or cost price, either wholesale or retail, whichever is greater"). Defendant's arrangements to (~xchange the voucheTs for ca.5h and later authorizing the territorial treasury's reimbursement of the vouchers held by the stores demonstrate that the vouchers have value. 5'ee Bauer, 713 F.2d at 73 (defendant's "expectation that he could sell the [savings] bonds, and his attempt to do so. ..belie the contention that they were without value or were worth not more than $100").

CONCLUSION

Viewing the evidence in the light most favorable to the Government, this court finds that ample evidence supported the jury's factual findings. Defendant engaged in "appropriating" and "misappropriating" the T AOA vouchers, which have a cash value of $100 or more at the time and place of each crime charged, in violation of the statutes defining embezzlement aI1d stealing. Therefore, defendant's motions for a judgment of acquittal on each of the eight counts are denied.

It is so ordered.

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