ALAMOANA & YU-TONG CO., aka
ALAMOANA ROOFING, OFFICE SUPPLIES & FURNITURES, and ALAMOANA MULITAUAOPELE,
jointly and severally, Appellants,
v.
High Court of
Appellate Division
AP No. 17-99
May 11, 2000
[1] Where filing date was day prior to date purportedly
signed by judges, Court determined that latter date was inadvertent,
typographical error and inconsequential to enforceability of order.
[2] Where date signed by judges differs from date of
filing, the date of filing controls.
[3] A court should not automatically or casually grant a
stay of judgment pending appeal.
[4] The court’s discretion to grant a stay of judgment
pending appeal should be exercised only if cause is shown.
[5] In determining whether to grant or deny a motion for
stay of an injunction pending appeal, the Court should look at both the balance
of equities and the likelihood of the appeal’s success.
[6] A stay is not a matter of right, even if the appellant
might suffer irreparable injury, but is subject to judicial discretion and
dependent upon the circumstances of the case.
[7] In balancing the equities involved in staying execution
of an injunction pending appeal, the Court must examine: (1) whether the
appellant would suffer irreparable harm if the stay was refused; (2) whether
the appellee would suffer irreparable harm if the
stay was granted; and (3) how a stay would affect the public interest.
[8] The general principle underlying stays of injunctive
relief is that the status quo should be preserved pending appeal. [4ASR3d4]
[9] A court may stay an injunction when it has doubts about
the substantive correctness of its decision.
[10] T.C.R.C.P. 56(f), which allows a party opposing a
motion for summary judgment to move for a continuance so that it may secure
facts by affidavit sufficient to oppose the motion, is not a proper basis for
appeal, but must be invoked prior to the Court’s ruling on the summary judgment
motion.
[11] Where Court could discern no issue on appeal, and
where equities weighed evenly for and against a stay of the trial court’s judgment,
stay was properly denied.
[12] Where appellant claimed access to evidence supporting
application for stay was being hindered by opposing party, Court determined
that ruling on stay would be made without prejudice so that appellant could reraise issue if persuasive facts and law were found in
materials previously inaccessible by him.
[13] It is a crime for a non-lawyer to represent another
person or business entity in court.
Before
Counsel:
For Appellants, Alamoana S. Mulitauaopele,
Pro Se
For Appellee, Fiti A. Sunia, Assistant Attorney
General
ORDER DENYING MOTION
TO STAY JUDGMENT PENDING
APPEAL
This appeal is a continuation of the leasehold dispute
adjudicated in CA No. 12-99 between Alamoana &
Yu-Tong Co. and Alamoana S. Mulitauaopele
(collectively “Alamoana”) and the American Samoa
Government (“ASG”). A brief sketch of the relevant facts and procedural
history, more fully articulated in the Trial Division’s opinion and order of
October 20, 1999, granting summary judgment in ASG’s
favor against Alamoana, follows.
Alamoana leased from ASG a parcel of
land known as Lot 30 in the
Alamoana’s motion for reconsideration
or new trial was denied on December 14, 1999. The Trial Division likewise
denied his motion for stay of execution of judgment on March 17, 2000. Having
exhausted his remedies at the trial court level, Alamoana
properly moves for a stay of execution of judgment from the Appellate Division
under T.C.R.C.P. 62(d) and A.C.R. 8.
Analysis
To begin, this case is a paradigmatic example of the
rule that “[i]n the great run of pro se cases,
the issues are faintly articulated and often only dimly perceived.” Dev. Bank of. Samoa v. Ilalio,
5 A.S.R.2d 110, 116 (Trial Div. 1987) (quoting Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978)). We recognize that this places a
“greater burden and a correlative greater responsibility” upon us to see that
justice is done. Ilalio,
5 A.S.R.2d at 116 (quoting Gordon, 574 F.2d at 1151 (quoting Canty v. City of Richmond, 383 F. Supp. 1396,
1400 (E.D. Va. 1974))). This
responsibility is even greater in a case such as this where the pro se
defendant “who cannot afford a lawyer [has been] called into court against his
will.” Ilalio,
5 A.S.R.2d at 116.
The motion to stay execution of judgment is based on
two grounds. First, Alamoana
asserts that a discrepancy in the filing and signing dates on the trial court’s
denial of motion to stay execution of judgment renders it unenforceable. Second, Alamoana
contends that this appeal will be successful and that irreparable harm will
result if the stay is denied.
A. Date of Order
The trial court denied Alamoana’s
motion to stay execution of judgment in CA No. 12-99. The date above the judges’ signatures reads
March 18, 2000, whereas the filing date (accompanying the signature of the
Clerk of Courts) reads March 17, 2000. Alamoana asserts that this discrepancy shows that the order
was filed before it was signed and concludes that this alleged premature filing
causes the order to be unenforceable.
[1-2] Alamoana’s argument fails
because the order was in fact not filed before it was signed. The discrepancy in the dates was instead the
result of clerical error. The date of
filing, March 17, 2000, was a Friday.
The order was obviously not signed by the three judges on March 18,
2000, because this was a Saturday and the Court was not in session. The
discrepancy occurred because the later date was written in inadvertant
error. Moreover, the filing date controls.
The typographical error is simply inconsequential, and
the order is to be given the same effect as any other ruling by this Court. [4ASR3d6]
B. Merits of the Motion for Stay of Execution
of Eviction
[3-4] A
court should not automatically or casually grant a stay of judgment pending
appeal. The court’s discretion to grant
a stay should be exercised only if cause is shown. A.S.C.A. §
43.0803; Asifoa v. Lualemana, 17
A.S.R.2d 10, 12 (App. Div. 1990) [hereinafter Asifoa
I]. The moving party bears
the burden of showing cause as to why an injunction should be stayed. Lutali v. Foster, 24 A.S.R.2d 81, 83 (Trial Div. 1993). “The motion shall also show the reasons for
the relief requested and the facts relied upon, and if the facts are subject to
dispute the motion shall be supported by affidavits or other sworn statements
or copies thereof.” A.C.R. 8.
[5-6] Similar to a petition for a preliminary injunction,
the decision to grant or deny a motion for a stay of an injunction pending
appeal depends partly on the ‘balance of equities’ and partly on the likelihood
of appeal’s success. Asifoa I, 17 A.S.R.2d at 13.
Grant of a stay is not a matter of right, even if the appellant might
otherwise suffer irreparable injury, but is rather subject to judicial
discretion and is dependent on all the circumstances of the case. Scripps-Howard
Radio, Inc. v. FCC, 316
1. Balance
of the Equities
[7] In balancing the equities of a stay of injunction
pending appeal, we must consider three factors: (1) whether the appellant would
suffer irreparable harm if the stay is refused, (2) whether the appellee would suffer irreparable harm if the stay is
granted, and (3) how a stay would affect the public interest. Asifoa v. Lualemana, 17
A.S.R.2d 100, 102 (App. Div. 1990) [hereinafter Asifoa
II].
Alarnoana directs us to exhibits H
and I, attached to the motion for stay, for proof of “hardships and unfair
treatment.” These exhibits, however, do
not describe any irreparable harm that Alamoana would
suffer were the stay not granted.
Rather, they are pleas for assistance from the President and Attorney
General of the
[8] We can, however, see how irreparable harm would
result if the stay is not granted.
Subsequent to eviction, ASG will be able to lease the disputed property
to another. Were the appeal to succeed, Alamoana’s inability to occupy the premises under the
former leasehold could constitute irreparable harm. This scenario also puts into play another
factor to consider when balancing the equities.
The general principle [4ASR3d7]
underlying stays of injunctive relief is that the status quo should be
preserved pending appeal. Asifoa II, 17
A.S.R.2d at 103. The status quo
has Alamoana currently occupying the disputed
property. By enforcing the eviction, the
status quo will not be maintained, and were ASG to re-let the premises, the
status quo would be difficult to resurrect with another tenant on the property.
We are unable to perceive
how ASG would suffer irreparable harm if the stay were granted. ASG has not alleged that Alamoana
is committing waste on the property.
Rather, ASG’s injury consists of rental
payments owed. ASG’s
injury in being unable to evict Alamoana can thus be
easily compensated if it prevails upon appeal by assessing rent for the time Alamoana occupied the property pending appeal.
The public interest, on the other hand, argues that
the stay should be denied. The property Alamoana occupies is managed by ASG on behalf of the
territory’s residents. Alamoana has damaged these residents’ interest in the
property in two ways. First, Alamoana has denied them the benefits of the revenue that
should have been forthcoming from the property in the form of lease
payments. Second, Alamoana
has failed to develop the property as agreed upon, thus failing to contribute
to the economy of the territory as envisioned in the creation of the Industrial
Park. Every day Alamoana remains in possession of the property is
another day in which the public is injured.
In sum, then, the equities appear to balance. On the one hand, Alamoana
could suffer irreparable injury if the stay is denied. On the other, the public interest is best
served by denial. In order to resolve
the motion to stay, we must look to the likelihood of Alamoana’s
success upon appeal.
2. Likelihood
of Success upon Appeal
[9] In assessing the likelihood of success on appeal, a
court may stay an injunction when it has doubts about the substantive
correctness of its decision, such as when new and difficult questions of law
are involved. Asifoa I, 17 A.S.R.2d 10. This
standard has clearly not been met in the present case. Alamoana
has provided absolutely no issue of law or fact in his motion for stay that
could serve as a basis for his appeal.
It thus appears that his likelihood of success upon appeal is
nonexistent.
First, Alamoana fails to
fulfill the requirements of A.C.R. 8 in that he utterly fails to “show the
reasons for the relief requested and the facts relied upon . . . .” We are unable to discern any particular
issues of fact or law upon which Alamoana plans to
base his appeal.
[10] Second, Alamoana’s reliance
on T.C.R.C.P. 56(f) is completely misplaced. This rule states that a court may
order a continuance of a [4ASR3d8] summary
judgment motion when the opposing party is unable to present facts by affidavit
sufficient to contest the motion. Unfortunately for Alamoana,
the trial court granted summary judgment to ASG in CA No. 12-99. Had Alamoana been
unable to secure sufficient facts by affidavit at the time of that hearing, he
should have requested a continuance under T.C.R.C.P. 56(f) at that time. Summary judgment having been granted, the
opportunity to do so has passed, and this argument provides no basis for an
appeal.
[11] In conclusion, we compare
this case to the situation in Asifoa II,
17 A.S.R.2d at 100. A major factor
in the
C. Alamoana’s
Access to Legal Documents
[12] Alamoana
asserts inability to access files located in an office on the disputed parcel
of land due to interference by ASG, and that these circumstances have deprived Alamoana of the ability to put forward the best case for a
motion to stay. We will accordingly deny
the present motion to stay without prejudice in order to afford Alamoana opportunity to file a new motion if persuasive
facts and law are found in the materials that Alamoana
was previously unable to access.
D. Alamoana
S. Mulitauaopele’s Representation of Alamoana & Yu Tong Co.
[13] As a final matter, we note with concern that Alamoana S. Mulitauaopele is not
an attorney but is representing Alamoana & YuTong Co. According
to the complaint, Alamoana & Yu-Tong Co. is a
partnership consisting of Alamoana individually and a
foreign business entity by the name of Yu-Tong Hsu. Alamoana seems to
assert in the answer that Alamoana & Yu-Tong Co.
is instead a sole proprietorship, but reliance on the lease of the property at
issue to prove this point is not convincing.
We point out to Alamoana as an individual and
non-lawyer that it is a misdemeanor for an unlicensed or unauthorized person to
represent another person or business entity in court. A.S.C.A. § 31.0104; Pene v. Am. Samoa Gov’t,
12 A.S.R.2d 43, 47 (App. Div. 1989).
If Alamoana & Yu-Tong Co. is anything but
a sole proprietorship, Alamoana as an individual
risks imprisonment if he continues to represent that entity.
Order
For the foregoing reasons, Alamoana’s motion to stay judgment pending [4ASR3d9] appeal is denied without
prejudice.
It is so ordered.
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