ALAMOANA S.
MULITAUAOPELE, LISA MULITAUAOPELE, AND ALAMOANA RECIPE, INC., Plaintiffs,
v.
High Court of
Trial Division
CA No. 110-99
March 16, 2000
[1] Under A.S.C.A. § 31.0104, it is a misdemeanor
for an unlicensed or unauthorized person to practice law, and while a party may
represent himself as a plaintiff in a lawsuit, he may not represent other
plaintiffs; a corporation almost always must be represented by counsel.
[2] A court should be slow
in granting default judgments, mindful of its partiality for trial on the
merits, and despite untimely delays on a [4ASR3d87]
defendant’s part, it would be inappropriate to allow default judgment.
[3] A complaint which
clearly alleges that a lessor’s lease termination was wrongful because
plaintiff had complied with the terms of the lease sufficiently states a cause
of action for breach of the lease.
[4] A complaint alleging
defamation in a letter requesting investigation by the Attorney General states
no cause of action because such a request is absolutely privileged.
[5] Under 26 U.S.C.A. §§ 6532(a) and 7422(a), before
filing a suit for the recovery of taxes erroneously or illegally assessed or
collected, a plaintiff must file a claim for a refund or credit and this claim
must be either denied or ignored for six months.
[6] Under 26 U.S.C.A. § 6331, the government may
levy the property of a delinquent taxpayer to satisfy the taxpayers debt; and
because each party to a joint bank account has the right to withdraw all of the
funds from the account, the funds in a jointly held bank account are considered
the taxpayer’s property, and are subject to levy.
[7] Under Rule 12(b)(6) a
plaintiff’s factual allegations are accepted as true, and contract
interpretation is not something to be decided in a Rule 12(b)(6) motion; the
court liberally construes the claims of pro se litigants, and where it
appears that a plaintiff has asserted a breach of contract and has implicitly
made a claim for property damage such claim will not be dismissed.
[8] Although a plaintiff’s
allegations may be vague, pro se pleadings are construed to state a
cause of action unless the court can say with assurance that the litigant can
prove no set of facts in support of his claim that would entitle him to relief.
[9] Under A.S.C.A. §
43.0210(7), the statute of limitations for torts based on injury to property is
generally three years when not asserted against the government, and it begins
to run when the damage occurs that gives rise to the cause of action, and a
plaintiff must clearly allege a date of such damage which falls within the
statute at the time the complaint is filed.
Before KRUSE, Chief Justice,
LOGOAI, Associate Justice, and SAGAPOLUTELE, Associate Justice.
Counsel: For Plaintiffs Alamoana S.
Mulitauaopele and Lisa
Mulitauaopele, Pro Se
For Plaintiff Alamoana Recipe, Inc.,
unrepresented [4ASR3d88]
For Defendants
Tulafono, Fiti A. Sunia, Assistant Attorney
General
For Defendant Oilau Fa’ aola, Marshall L.
Ashley
ORDER DENYING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT, DENYING IN PART AND GRANTING IN PART DEFENDANTS’
MOTIONS TO DISMISS
Plaintiffs Alamoana S.
Mulitauaopele (“Alamoana”), Lisa Mulitauaopele (“Lisa”), and Alamoana Recipe,
Inc. (“Recipe, Inc.”), have filed a complaint against the American Samoa
Government and the Tax Office (“ASG”), Lieutenant Governor Togiola T. Tulafono
(“Tulafono”), and Oilau Fa`aola (“Fa`aola”), alleging a number of claims. Plaintiffs allege that ASG breached a lease
to Recipe, Inc. of certain land in Atu`u by illegally terminating the
lease. Plaintiffs also claim that the
ASG Tax Office failed to pay them overdue tax refunds and illegally levied
funds. Alamoana further claims that
Tulafono defamed him by accusing him of taking government stationary and
drafting a letter purporting to be by the governor. Against Fa`aola, plaintiffs claim that
Fa`aola damaged the Atu`u property and also failed to pay pursuant to
plaintiffs’ and Fa`aola’s agreement regarding plaintiffs’ business on the Atu`u
property.
There are a number of
motions before the Court. ASG and
Tulafono have filed motions to dismiss under T.C.R.C.P. 12(b)(6) for failure to
state a claim. Fa`aola has also filed a
motion to dismiss under T.C.R.C.P. l2(b)(6).
Alamoana responded with a motion for default judgment citing the
defendants’ failure to respond to the complaint.
I. Alamoana’s Pro Se Representation of
Other Plaintiffs
[1] As a preliminary matter, we
affirm our statement made to Alamoana at the hearing on January 21, 2000, that
he may only represent himself, not the other plaintiffs in this lawsuit. While non-lawyers may represent themselves,
they are not allowed to represent other individuals or corporations. Under A.S.C.A. § 31.0104, it is a misdemeanor
for an unlicensed or unauthorized person to practice law. “The legal representation of another in court
. . . falls well within the definition [of the practice of law].” Pene v.
Am. Samoa Gov’t, 12 A.S.R.2d 43, 47 (App. Div. 1989). The requirement that only attorneys may
practice law “protects the public against rendition of legal service by
unqualified persons.” Model
Rules of Prof’l Conduct R. 5.5 cmt. (2000). Furthermore, a corporation is
almost never allowed to appear in a court of record unless represented by a
licensed attorney. See Henn & Alexander, Laws of Corporations § 80, at 151 n.l2 (3d ed.
1983). There was a case in
We therefore find that
Recipe, Inc. may not proceed in this lawsuit unless and until it is represented
by counsel. Furthermore, we will only
consider plaintiffs’ motion as a motion by Alamoana individually, not the other
plaintiffs, Lisa and Recipe, Inc.
II. Alamoana’s Motion For Default Judgment
Alamoana has requested
default judgment against all defendants for failure to respond to the
complaint, which was filed on November 1, 1999.
The same day, the Court summoned defendants to serve plaintiffs with an
answer within twenty days after the summons was served and to file a copy with
the Clerk of the Court. ASG and Tulafono
filed a motion to dismiss under T.C.R.C.P. 12(b)(6) on December 13, 1999. Oilau
Fa`aola filed a motion to dismiss under T.C.R.C.P. 12(b)(6) on December 30,
1999.
[2] Defendants are required to
file motions to dismiss for failure to state a claim under T.C.R.C.P. 12(b)(6)
before filing any responsive pleading. They therefore followed the proper
procedure. It is unclear from the
Clerk of Court’s file, however, whether the defendants had indeed failed to
respond in a timely fashion. We see no
returns filed by plaintiffs certifying personal service upon ASG and Fa`aola,
although there is a return of service filed on December 8, 1999, certifying
service of the summons and complaint upon the Law Offices of Marshal Ashley on
December 7, 1999. Nonetheless, the court
should be “slow in granting default judgments, mindful of its partiality for
trial on the merits.” E-C
Rental Serv. v. Pedro, 26 A.S.R.2d 65, 67 (Trial Div.
1994). Therefore, despite untimely
delays on the defendants’ part, if there were any, it would be inappropriate to
allow default judgment.
Alamoana’s motion for
default judgment is denied.
III. ASG and Tulafono’s Motion To Dismiss
A. Lease Termination
[3] ASG seeks dismissal, under
T.C.R.C.P. 12(b)(6), of plaintiffs’ claim that ASG wrongfully terminated
plaintiffs’ lease of property in Atu`u (“Atu`u lease”). ASG argues that the complaint makes no
allegation as to what conduct on the part of ASG was wrongful. However, the [4ASR3d90] complaint clearly
alleges in paragraphs (7) to (9) that ASG’s lease termination was wrongful
because plaintiffs had complied with the terms of the lease. According to the complaint, plaintiffs
received on October 16, 1995, a letter dated September 27, 1995, in which ASG
gave plaintiffs a 30 day notice to cure defaults on the lease. Plaintiffs responded on November 13, 1995,
informing ASG that they had complied with the lease and provided supporting
documentation. ASG nonetheless
terminated the lease on February 13, 1996, citing the failure to correct the
defaults.
We hold that the complaint
has sufficiently stated a cause of action for breach of the lease. ASG’s motion to dismiss this cause of action
is denied.
B. Defamation of
Character
[4] Alamoana alleges that
Tulafono defamed him in a letter dated June 10, 1996, from Tulafono to
Alamoana, with a copy to the Attorney General.
The allegedly defamatory statement is the following:
I am asking the Attorney
General to investigate how you came into possession of stationery from the
Governor’s office in order to draft the letter purporting to be the Governor’s
official action when it definitely appear [sic] to me that you
may be the author of the letter Serial 624, dated June 7, 1996. I would be most curious to know how this
letter was drafted and allegedly signed by the Governor when his staff do not
even know anything about it.
(Compl. Ex. 17.)
Tulafono argues that
Alamoana has failed to state a claim because a request for investigation by the
Attorney General is privileged. Tulafono
is correct; reports to proper government officials concerning law violations
are absolutely privileged. Cushman v.
Edgar, 605 P.2d 1210, 1212 (Or. 1980); Restatement
(Second) of Torts, §587 cmt. b (1965).
Plaintiff Alamoana’s claim for defamation is therefore dismissed.[1][4ASR3d91]
C. Tax
Claims
1. Tax Refund
Plaintiffs Alamoana and Lisa allege that ASG’s Tax
Office has failed to refund plaintiffs’ taxes from the years 1990-1993 and
1997-1998. (See Complaint Ex.
17.) The United States Revenue Code
(“Internal Revenue Code”) is, except where otherwise required, applicable to
ASG argues that the claim regarding taxes from 1990 to
1993 fails to state a cause of action under T.C.R.C.P. 12(b)(6) because it is
barred by a three-year statute of limitations.
Under the Internal Revenue Code, a claim for a credit or refund must be
filed by the taxpayer “within 3 years from the time the return was filed or 2
years from the time the tax was paid, whichever of such periods expires
later.” 26 U.S.C.A. § 6511(a)
(2000). Because we have no
information from which to determine when the returns were actually filed or
paid, we cannot determine when the statute of limitations began to run and
whether it has expired. We therefore
deny ASG’s motion to dismiss on this ground.
[5] ASG argues that the
claim is also defective because plaintiffs have not exhausted their
administrative remedies. Before filing a
suit for the recovery of taxes erroneously or illegally assessed or collected,
plaintiffs must file a claim for a refund or credit and this claim must be
either denied or ignored for six months.
See 26 U.S.C.A. §§ 6532(a) and 7422(a) (2000). Plaintiffs have failed to show that they have
filed an administrative claim for any of the taxes assessed for any of the
years. Plaintiffs’ claim for overpaid taxes is therefore dismissed without
prejudice. Plaintiffs may file an
amended claim if they may truthfully assert that they have followed the
required administrative procedures.
2. Levy of Property
Plaintiffs Alamoana and Lisa allege that the ASG Tax
office illegally levied theft property.
While the complaint is not completely clear, it appears that plaintiffs
allege that three levies were illegal: Plaintiffs assert that ASG improperly
levied $3,981 from the joint account of plaintiff Lisa and her sister Sina Ward
because ASG had no right to levy
[4ASR3d92] Ward’s funds. They also claim that they were deprived due
process because they were not afforded the required notice of the levy of an
unknown amount and because the notices were never executed as required by
A.S.C.A. §§ 11.0412 and 11.0201.
Lastly, they allege that ASG’s audit of their 1994 taxes violated the
statute of limitations applicable to such audits.
[6] ASG has
moved for dismissal on the ground that the govermnent is entitled to levy a
bank account held jointly by the offending taxpayer and a third-party. Under 26 U.S.C.A. § 6331,
the government may levy the property of a delinquent taxpayer to satisfy the
taxpayer’s debt. Because each party to a
joint bank account has the right to withdraw all of the funds from the account,
the funds in a jointly held bank account are considered the taxpayer’s property,
which may subject to levy.
ASG’s motion is therefore granted and the claim is
dismissed with regard to the levy of funds from Lisa and Sina Ward’s bank account.[2]
ASG has only argued for dismissal on this one claim.
The motion to dismiss the claim as it pertains to the other claims for illegal
levy is therefore denied.
IV. Fa`aola’s
Motion To Dismiss
Fa`aola filed a motion to dismiss plaintiffs’ claims
for breach of contract and property damage under T.C.R.C.P. 12(b)(6), arguing
that the complaint fails to state a claim.
A. Contract
Claim
[7] While plaintiffs’
claim is vague, we liberally construe the claims of pro se litigants. It appears that plaintiffs have asserted
breach of contract against Fa`aola in paragraph eleven of the complaint by
stating that plaintiffs terminated Fa`aola’s contract due to delinquent payment
on their employment agreement. It also
appears that plaintiffs have made a
[4ASR3d93] claim for property
damage. This claim is implicitly alleged
in paragraphs eleven and twelve of the complaint in which plaintiffs state that
there has been “property damages [sic] in the amount of $15,000”
and that they were “[c]oncerned with additional destruction of the facilities.”
Fa`aola argues for dismissal based on both lack of
consideration and unenforceability.
According to Fa`aola, there was no consideration on the contract because
the plaintiffs did not compensate her.
Furthermore, she argues that, assuming the contract was valid, it
terminated upon her failure to pay, so there is no claim upon the contract.
For Rule 12(b)(6) purposes, the Court accepts
plaintiffs’ factual allegations as true.
Hartford Fire Ins. Co. v.
B. Property
Damage Claim
[8] Fa`aola
also argues for dismissal on plaintiffs’ claim for property damage. According to Fa`aola, this claim fails to
assert the existence of property damage and fails to allege a causal connection
between Fa`aola and the purported damage.
Plaintiffs’ allegations are even more vague in this instance. However, “[p]ro se pleadings
should be construed to state a cause of action … unless the Court can say with assurance that the
litigant can prove no set of facts in support of his claim that would entitle
him to relief.” Dev. Bank
of Am. Samoa v. Ilalio, 5 A.S.R.2d 110, 116 (Trial Div.
1987). Plaintiffs allege that they
terminated their contract with Fa`aola in part because of property damage, and
it appears that Fa`aola had possession of the property at the time. Liberally construing plaintiffs’ claims, we
cannot state that plaintiffs can prove no set of facts that would entitle them
to relief, and therefore deny Fa`aola’s motion to dismiss on this ground. [4ASR3d94]
[9] However,
as Fa`aola argued, the claim is barred by the statute of limitations. The statute of limitations for torts based on
injury to property is generally three years when not asserted against the
government. A.S.C.A. § 43.0210(7). The statute of limitations begins to run when
the damage occurs that gives rise to the cause of action. According to Fa`aola,
this claim arose, if at all, on February 13, 1996. But Fa`aola failed to state
a reason why this date is appropriate.
ASG’s letter terminating the lease with Recipe, Inc. was dated February
13, 1996, and it is likely that Fa`aola believes the cause of action arose on
this date because of the lease termination.
Nonetheless, Fa`aola has failed to state why this date is dispositive,
and we decline to speculate on her behalf.
According to plaintiffs, they filed final notice on
Fa`aola on or about May 25, 1996, in part because of damage to the
property. It is therefore unclear when
the purported damage occurred, but it must have occurred before this date. The cause of action therefore arose, at the
latest, on May 25, 1996.
Plaintiffs initially filed a claim regarding the Atu`u
lease against Fa`aola on April 14, 1999, as part of a counterclaim in CA No.
12-99 by Alamoana, d.b.a. Alamoana Yu-Tong and Recipe, Inc. They alleged that Fa`aola illegally ran a
business on the premises in Atu`u with ASG’s permission after ASG illegally
terminated Alamoana’s and Recipe Inc.’s lease.
Nowhere in the claim do plaintiffs allege property damage, so the
statute of limitations on this cause of action did not toll with the filing of
that claim.
The statute of limitations therefore continued to run
until the present claim was filed on November 1, 1999. This date is more than three years after May
25, 1996. Plaintiffs’ claim for damage
to property is barred by the statute of limitations and is therefore dismissed.
IV. Order
We summarize our orders as follows:
1. Plaintiff
Alamoana may not represent Lisa and Recipe, Inc.
2. Plaintiff Recipe, Inc. may not proceed in this
action until it is represented by counsel.
3. Plaintiff
Alamoana’s motion for default judgment is denied.
4. Defendant ASG’s motion to dismiss plaintiffs’
breach of contract [4ASR3d95] claim
is denied.
5. Defendant Tulafono’s motion to dismiss plaintiff
Alamoana’s defamation claim is granted.
6. Defendant
ASG’s motion to dismiss plaintiffs Alamoana’s and Lisa’s tax refund claims is
granted. Plaintiffs’ claim is dismissed without prejudice.
7. Defendant
ASG’s motion to dismiss Alamoana’s and Lisa’s unlawful levy claim is granted as
to the claim regarding Lisa’s joint bank account, and denied as to the other
claims.
8. Defendant
Fa`aola’s motion to dismiss plaintiffs’ breach of contract claim is denied.
9. Defendant
Fa`aola’s motion to dismiss plaintiffs’ property damage claim is granted.
It is so ordered.
**********
[1] Alamoana argues that it
is improper for the Attorney General to represent Lieutenant Governor Tulafono
because plaintiffs are suing Tulafono in his individual capacity. The allegedly
defamatory statement occurred in a letter sent to Alamoana from Tulafono’s law
office as part of Tulafono’s then-representation of Fa`aola in anticipation of
the present lawsuit. (See Compl.
Ex. 17.) Plaintiff is therefore correct
that Tulafono was acting as a private attorney, not in his capacity as
Lieutenant Governor. However, while we
may have reservations about the advisability of the Attorney General’s representing
a government official acting in his private capacity, we know of no authority,
statutory or otherwise, from which to find that such representation is
improper.
[2] In so holding, we have not made any determination with regard to Sina Ward’s ownership rights in the property. The government’s levy is provisional; if the money in the bank account properly belongs to Ward, there may still be administrative or judicial remedies available to her. See id. at 731.