v.
LEPOPOLE FAUMUINA and FANENE
AIPOPO LAULU
for the FANENE FAMILY,
Defendants.
____________________
ALAI`ASA FILIFILI for the
v.
TUIA`ANA MOI for the TUIA`ANA
FAMILY,
MOEA`I UILIATA for the MOEA`I
FAMILY,
and SEIGAFO E. SCANLAN,
Objectors.
____________________
v.
FANENE
AIPOPO LAULU, FONOTI TAFA`IFA,
TUIA`ANA MOI, MOEA`I FAMILY,
and TAUILIILI PEMERIKA, Defendants.
____________________
[2ASR3d187]
v.
TUITOGA PUAILOA FANENE, FANENE
A. LAULU
for FANENE FAMILY MEMBERS,
TUIA`ANA MOI,
ISEULAOLEMOANA S. SOTOA, Legal
Representative of the
ESTATE OF SALOFI R. SOTOA,
PEMERIKA TAUILIILI,
LAUMA VALOAGA V. MOANANU,
and FONOTI TAFA`IFA, Objectors.
LT No. 12-90
LT No. 76-90
LT No. 77-90
LT No. 78-90
LT No. 14-96
LT No. 25-96
January 15, 1998
[1] Under A.S.C.A. § 43.0802(a),
a motion for reconsideration must be filed within 10 days after the
announcement of the judgment, and where a late filing is not excusable, the
court lacks jurisdiction to consider it.
[2] Under T.C.R.C.P. 62(d), a trial court may stay a
judgment or order while an appeal is pending, but where no appeal is pending a motion
to stay is premature.
[3] Under A.S.C.A. § 43.0802(b) and A.C.R. 4(a)(1) a
notice instituting an appeal of a judgment or order of the Land and Titles
Division cannot be filed until, and must be filed within ten days after, the
court denies a motion for reconsideration or new trial.
[4] Under T.C.R.C.P. 11, sanctions sufficient to deter
repetition of such conduct or comparable conduct by others similarly situated
may be imposed upon an attorney who signs a pleading in violation of Rule 11,
and upon a client in appropriate circumstances.
[5] T.C.R.C.P. 11 sanctions are appropriate where
causes of action challenge previously adjudicated land ownership, are without
merit ab initio, cause clouds on
owner’s titles, disparage court decisions, disrupt the order of the land tenure
system, waste judicial resources, and cause landowners considerable distress
and expenditure of substantial time and money in defending their titles. [2ASR3d188]
[6] Rule 11 is applicable to
land actions, which are civil proceedings and do not lose that characteristic
simply because a separate organizational division of the trial court is
established by A.S.C.A. § 3.0208 to hear land and matai title controversies.
[7] Where counsel submits and advocates legal
contentions unwarranted by existing law, or are frivolous arguments for the
modification or reversal of existing law or the creation of new law, counsel
may be held in violation of T.C.R.C.P. 11(b)(2), and appropriate sanctions for
a party’s violation of T.C.R.C.P. 11(b)(1), and for counsel’s violation of
T.C.R.C.P. 11(b)(2) may include holding the party and counsel personally
responsible, and jointly and severally liable, for the payment of reasonable
attorney’s fees and costs.
Before
Counsel: For Plaintiff/Claimant
Alai`asa Filifili Mailei for the
For
Defendant/Objector Fanene Aipopo Laulu for the Fanene Family, Defendant
Lepopole Faumuina, Defendant/Objector Tauiliili Pemerika, and Objectors
Iseulaolemoana S. Sotoa, Legal Representative of the Estate Salofi R. Sotoa, and Tuitoga Puailoa Fanene, Charles V. Ala`ilima
For Defendant/Objector
Tuia`ana Moi for the Tuia`ana Family,
Asaua Fuimaono
For
Objectors Moea`i Uiliata for the Moea`i Family and Lauma Valoaga V. Moananu and Defendant Moea`i
Family, Aumoeualogo Salanoa Soli
For Objector Seigafo E.
Scanlan, Pro Se
For Defendant/Objector
Fonoti Tafa`ifa, Afoa L. Su`esu`e Lutu
ORDER DISMISSING MOTION FOR
RECONSIDERATION, DENYING MOTION TO STAY AWARD OFATTORNEY’S FEES AND COSTS,
SETTING AMOUNTS OF ATTORNEY’S FEES AND COSTS, AND IMPOSING SANCTIONS UNDER
T.C.R.C.P. 11
On August 5, 1997, the court’s
opinion and order was entered in these actions. In essence, we dismissed these
actions, pursuant to T.C.R C.P. 41(b), as they relate to claims by
plaintiff/claimant Alai`asa Filifili Mailei (“Alai`asa Filifili”) for the
Alai`asa Family (collectively “the Alai`asa”) to certain lands awarded by this
court in Tuutau v. Fanene, Case
No. 1-1931 (1932) (“Case No. 1-1931”) to defendant/objector Fanene Aipopo for
the Fanene family (collectively “the Fanene”), and in Fanene v. [2ASR3d189]
Magalei, LT
Nos. 64-77, 74-77, 54-77, 61-74, 60-77, 66-77, 73-77, 1090-70, 62-77, and 72-76
(Land & Titles Div. 1980) (“the 1977 actions”) to the Fanene,
defendant/objector Fonoti Tafa`ifi for the Fonoti family (collectively “the
Fonoti”), defendant/objector Tauiliili Pemerika (“Tauiliili”), objector
Iseulaolemoana S. Sotoa, Legal Representative of the Estate of Salofi R. Sotoa
(“Sotoa”) and defendant/objector Tuia`ana Moi for the Tuia`ana Family
(collectively “the Tuia`ana”).
The court ordered attorney’s
fees and costs to be paid by the
On
August 18, 1997, the court, at the Alai`asa’s request, continued the hearings
on the amount of the attorney’s fees and costs and the order to show cause on
Rule 11 sanctions to September 4, 1997.
The court also established a deadline of August 22, 1997, for the
Fanene, the Fonoti, Tauiliili, Sotoa, and the Tuia`ana to submit verified
statements on the amount of their claims for attorney’s fees and costs.[1] Later, on August 18, 1997, the
The court heard these pending
matters on September 4, 1997. All counsel were present.
Discussion
A. Motion for Reconsideration of the Opinion
and Order
[1] A.S.C.A. § 43.0802(a) states: [2ASR3d190]
Before filing a notice of appeal, a motion for a new
trial shall be filed within 10 days after the announcement of the judgment. . .
The opinion and order was entered on August 5, 1997. The tenth day later, Friday, August 15, 1997,
was a court work day. The motion for
reconsideration was not filed until Monday, August 18, 1997, thirteen days
after entry of the opinion and order.
Filing a motion for a new trial after the tenth day is excusable, but
only if the tenth day falls on a Saturday, a Sunday, or a holiday. T.C.R.C.P. 6(a); Pal Air
Int’l, Inc. v. Samoa Aviation, Inc., 1 A.S.R.3d 1, 2 (Appellate Div. 1997).
Since the filing was late and
the delay was not excusable under Rule 6 (a), this court does not have
jurisdiction to consider Alai`asa’s motion for reconsideration. Therefore, the
motion for reconsideration will be dismissed.
B. Motion to Stay Award of Attorney’s Fees and Costs and Imposition
of Rule 11 Sanctions
The Alai`asa are requesting the
court to stay, pending appeal, the award of attorney’s fees and costs and
imposition of sanctions pursuant to T.C.R.C.P. 11.
[2-3] The trial court has the
power to stay a judgment or order while an appeal is pending. T.C.R.C.P. 62(d).
Indeed, an application for a stay pending appeal is properly brought before the
trial court in the first instance. A.C.R. 8(a). However, a stay pending appeal
necessarily assumes that an appeal is pending. A notice instituting an appeal
of a judgment or order of the Land and Titles Division cannot be filed until,
and must be filed within ten days after, the court denies a motion for
reconsideration or new trial. A.S.C.A. § 43.0802(b); A.C.R. 4(a)(1).
Since no appeal is pending in
this action, the present motion for a stay pending appeal is premature.
Therefore, the motion to stay the award of attorney’s fees and costs and the
imposition of Rule 11 sanctions will be denied.
C. Amount of Reasonable Attorney’s Fees and
Costs Awarded
We establish reasonable attorney’s fees for this
action at $125 per hour for trial time and $100 per hour for office and other
court time. Based on the clerk’s minutes of the trial, we will apply the trial
rate for attorney’s fees to 2.0 hours. We will use the time submitted by
counsel to calculate the amount of attorney’s fees for office and other court
time. Costs will also be based on
counsel’s submissions. [2ASR3d191]
Using these standards, we determine the amounts of
reasonable attorney’s fees and costs awarded in this action as follows:
1. For the Fanene (former counsel Malaetasi Togafau)
Attorney’s fees
Trial time, 20 hours at $125 per hour: $2,500.00
Office and other court time,
15 hours at $100 per hour: 1,500.00
Sub-total 4,000.00
Costs 2,050.00
Total $6,050.00
2. For the Fonoti (counsel Afoa L. Su`esu`e Lutu)
Attorney’s fees
Trial Time, 20 hours at $125 per hour: $2,500.00
Office and other court time,
18.8 hours at $100 per hour: 1,880.00
Sub-total 4,380.00
Costs 250.00
Total $4,630.00
3. For Tauiliili and Sotoa (counsel Charles V.
Ala`ilima)
Attorney’s fees
Trial time, 20 hours at $125 per hour: $2,500.00
Office and other court time,
13.9 hours at $100 per hour: 1,390.00
Sub-total 3,890.00
Costs 590.50
Total $4,480.50
The Alai`asa should pay the
established amounts of reasonable attorney’s fees and costs incurred in this
action directly to the respective counsel, as listed, for the Fanene, the
Fonoti, and Tauiliili and Sotoa. Each counsel should properly distribute the
funds among his cost providers, his clients, and himself. [2ASR3d192]
D. Rule 11 Sanctions Imposed
The standards established by T.C.R.C.P.
11(b) state in relevant part:
(b) Representations to Court. By presenting to the
court (whether by signing, filing, submitting, or later advocating) a pleading,
written motion, or other paper, an attorney . . . is certifying that to the best
of the person’s knowledge, information, and belief, formed after inquiry
reasonable under the circumstances, —
(1) it is not being presented for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of
law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further investigation or
discovery; . . . .
Rule 11(c) provides:
If,
after notice and a reasonable opportunity to respond, the court determines that
subdivision (b) has been violated, the court may . . . impose an appropriate
sanction upon the attorneys, law firms, or parties that have violated
subdivision (b) . . . .
[4] The sanction imposed “shall be limited to what is
sufficient to deter repetition of such conduct or comparable conduct by others
similarly situated” and may require “payment to the movant of some or all of
the reasonable attorney’s fees and other expenses incurred as a result of the violation.”
T.C.R.C.P. 11(c)(2). Even though it is the attorney whose signature violates
Rule 11, sanctions may be imposed on a client in appropriate circumstances. See
Browning Debenture Holders Committee v. DASA, 560 F.2d 1078 (2d Cir. 1977). Monetary sanctions may not be imposed on a
represented party for a violation of Rule 11(b)(2), T.C.R.C.P. 11(c)(2)(A), but
may be imposed for a violation of Rule 11(b)(1), (3), or (4).
[5] The Fanene, the Fonoti, Tauiliili, and Sotoa requested payment of
their attorney’s fees and costs in their respective motions to dismiss. In our opinion and order of August 5, 1997,
we advised Aliai`asa Filifili and Tautai A.F. Faaleavao, counsel for Alai`asa
and the Alai`asa [2ASR3d193]
(“counsel”), that the court would consider whether the prosecution of these
actions constituted violations of Rule 11(b)(1), (2), or (3). We further provided
The
The undesirable effects of relitigating claims are
unnecessary. They are readily avoidable if attorneys and their clients
thoroughly research and clearly think through the issues. We need to send a message to attorneys and
their clients that this kind of litigation is inappropriate and will bring
serious consequences.
We gave
[6] First,
[7]
The appropriate sanctions in these actions, for
Alai`asa Filifili’s and counsel’s violations of T.C.R.C.P. 11(b)(1) and for
counsel’s violation of T.C.R.C.P. 11(b)(2), to deter repetitious conduct or
comparable conduct by others similarly situated are to hold Alai`asa Filifili
and counsel personally responsible for the payment of the reasonable attorney’s
fees and costs awarded to the Fanene, the Fonoti, Tauiliili, and Sotoa. Thus, Alai`asa Filifili, the Alai`asa’s sa`o,
and their counsel, Tautai A.F. Faalevao, will be jointly and severally
liable for payment of the attorney’s fees and costs set by this order to the
Fanene, The Fonoti, Tauiliili, and Sotoa.
E. Clerical Corrections
Several clerical mistakes in the opinion and order of August 5, 1997,
have come to the court’s attention for correction under T.C.R.C.P. 60(a).
1. Page 2, list of counsel: objector Lauma Valoaga V.
Moananu is deleted as party represented by counsel Charles V. Ala`ilima, and is
listed as a party represented by counsel Aumoeualogo Salanoa Soli.
2. Page 5, line 4
of third full paragraph: delete “a member of the Fanene but” in the parentheses
after the name Tuitoga Puailoa Fanene.
3. Page 7, line 3
of the first full paragraph: change “1090-90” to “1090-70.”
4. Page 24, line
5 of the second full paragraph: change the list of names to read “the Fanene,
the Fonoti, Tauiliili, Sotoa, and Tuia`ana.
Order
1. The Alai`asa’s
motion for reconsideration is dismissed.
2. The Alai`asa’s
motion to stay pending appeal the award of attorney’s fees and costs and the,
imposition of sanctions under T.C.R.C.P. 11 is denied.
3. The
Atty’s
Fees Costs Total
To the Fanene: $4,000.00 $2,050.00 $6,050.00
To the Fonoti: $4,380.00 $250.00 $4,630.00
To Tauiliiii and Sotoa: $3,890.00 $590.50 $4,480.50
The respective counsel for the Fanene,
the Fonoti, and Tauiliili and Sotoa shall promptly and properly distribute
these funds among their cost providers, their clients, and themselves.
4.
5. The clerical mistakes in the
opinion and order are corrected as set forth in part E of the discussion in
this order and shall be incorporated in the published report of this decision.
It is so Ordered.
**********
[1] The Tuia`ana’s counsel was not present at the hearing
on August 18, 1997. However, Tuia`ana
Moi was in the audience and was specially instructed on the deadline for
submitting a certified statement on the amount of the Tuia`ana’s claim for
attorney’s fees and costs. The Fanene,
The Fonoti, Tauiliili, and Sotoa filed timely claims. The Tuia`ana have not
filed any claim to this date.