FALATEA
POROTESANO LEATAPO SALANOA, Appellant,
v.
AUMOEUALOGO
SOLI, Appellee.
High
Court of
Appellate
Division
MT
No. 08-96
[1] Appellant’s ability to
demonstrate compliance with appellate procedures held immaterial where Court’s
original ruling, highlighting alleged procedural deficiencies, also contained
alternate, substantive basis for denial of stay. [2ASR3d53]
[2] The Court looks at
four factors in making its determination whether to grant a stay of execution
pending appeal: (1) likelihood that the appellant would prevail in the appeal;
(2) irreparable harm to the appellant if a stay is not granted; (3) irreparable
harm to appellees if a stay is granted; and (4) whether the public interest
would be affected by a stay.
Before KRUSE, Chief
Justice.
Counsel:
For Appellant, Katopau T. Ainu`u
For Appellee,
ORDER
DENYING APPELLANT’S MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO STAY
EXECUTION OF JUDGMENT PENDING APPEAL
Appellant
Discussion
1. Alleged
Procedural Infirmities of Appellant’s Appeal
In its previous order
denying appellant’s motion to stay, the Court noted appellant’s alleged failure
to timely file his opening appellate brief in this matter. Order Denying Motion to Stay Execution of
Judgment Pending Appeal, AP No. 04-98, slip op. at 2 (App. Div. October 28,
1998). Appellant claimed, in the instant
motion, that such brief had in fact been timely filed on
[1] Notwithstanding, appellant’s motion for reconsideration
must be denied. Appellant seriously
misreads the Court’s order, though, in asserting that “appellant’s alleged
failure to [timely] file his Opening Brief . . . was a major factor in the
court’s decision to deny appellant’s Motion.”
Motion to Reconsider, supra, at 1. Indeed, we did note that the alleged failure
to perfect his appeal would “weigh heavily against [2ASR3d54] him.” Order
Denying Motion, supra, at 2. That
statement, however, should properly be read only to suggest that, in the event
of a finding which would otherwise have been in appellant’s favor, his alleged
procedural deficiencies might nevertheless have dictated a ruling against him
on the motion to stay. As it turned out
in this decision, however, the substantive analysis on its own actually
resulted in a ruling against appellant, procedural issues aside.[1]
Obviously, a lack of procedural infirmity, or mere compliance with the
Court’s rules, should not logically be used to overcome a substantive ruling
against a party.
2. Review of
Substantive Analysis
[2] In the second prong of his motion for reconsideration,
appellant vaguely challenges the Court’s findings without citing any new legal
or factual contentions. As we noted in
our prior order, the Court looks at four factors in making its determination
whether to grant a stay of execution pending appeal:
(1)
likelihood that the appellant would prevail in the appeal;
(2)
irreparable harm to the appellant if a stay is not granted;
(3)
irreparable harm to appellees if a stay is granted; and
(4) whether
the public interest would be affected by a stay.
Asifoa
v. Lualemana,
17 A.S.R.2d 100, 102 (App.
a. Likelihood that appellant would prevail in
the appeal
Appellant seems to
believe that, having now been afforded an opportunity to review his opening
brief, the Court must now find in his favor on this factor. We do not.
Appellant still bases his appeal primarily on the discovery of “new
evidence” which was nevertheless readily available prior to trial and which may
or may not ultimately be deemed to be material to the outcome of this
case. While appellant succeeds in at
least making a colorable argument in his brief, we continue to evaluate, for
purposes of this motion to stay, his chances of prevailing on appeal as
extremely slight. [2ASR3d55]
b. Irreparable harm to the appellant if a
stay is not granted
Appellant did not
challenge the Court’s finding that any harm resulting from denying a stay would
not be “irreparable” in this case, due to appellant’s remaining recourse in the
courts for any subsequent wrongful action on the part of appellee.
c. Irreparable harm to appellees if a stay is
granted
In its order, the Court
identified the delay in installation of appellee as matai as prospective harm suffered by appellee in the event that a
stay of execution was granted. Appellant
failed to raise this issue in the instant motion.
d. Whether the public interest would be
affected by a stay
Appellant asserts in his
motion that he is not using this appeal as a “delay tactic.” Motion for Reconsideration, supra, at
2. This Court has never suggested,
however, that appellant in this particular case had anything but honorable
motives for filing his motion to stay.
In its discussion of the final factor regarding the public interest, the
Court simply articulated a countervailing concern that the broad application of
a rigid rule calling for stays to be granted in virtually all matai cases could encourage future
abuse of the system. That concern
remains, and appellant’s protests about his own reasons for seeking a stay are
irrelevant to this ongoing policy consideration.
Conclusions and Order
Although the alleged
procedural infirmities of appellant’s appeal do not exist, we hold that the
substantive analysis of the four Asifoa factors remains largely
unchanged and weighs against granting a stay.
For the foregoing
reasons, Appellant’s Motion for Reconsideration of Order Denying Motion to Stay
Execution of Judgment Pending Appeal is denied.
It is so Ordered.
**********
[1] That analysis, set
forth at pages 2-6 of the Court’s order, stands as independent and adequate
grounds supporting the decision therein.
Order Denying Motion, supra.