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SEFULUTASI SULUAI as beneficiary of SIPU SULUAI,v.NATIONAL WESTERN LIFE INSURANCE COMPANY

SEFULUTASI SULUAI as beneficiary of SIPU SULUAI,
Plaintiff,
v.
NATIONAL WESTERN LIFE INSURANCE COMPANY,
Defendant.
High Court of American Samoa
Trial Division
CA No. 134-00
July 8, 2002

 

[1] In order to properly bring motion for new trial, party must fully
apprise trial court of asserted errors in its judgment so that it may
consider for itself whether any such errors occurred and make
appropriate corrections, thereby obviating obvious appeals.
[2] If no timely motion for reconsideration or new trial conforming to the
“particularity” requirement of T.C.R.C.P. 7(b)(1) is filed within statutory
ten-day deadline, then Appellate Division lacks jurisdiction to entertain
appeal.
[3] In reviewing its previous decision on motion for reconsideration or
new trial, court is not required to guess at or construct legal theory upon
which moving party opposes original decision.
[4] Requirements of procedural due process are not fixed but vary with
circumstances and particular requirements of case, minimally demanding
notice and opportunity to be heard.
[5] When counsel’s examination of party opponent’s employee raised
collateral issue of his own unethical contact with witness, in violation of
rules of professional conduct, it was not improper for court to interrupt
such examination and to take brief recess so that opposing counsel could
inquire with witness as to scope of improper communications between
witness and examining counsel.

Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendant, Roy J.D. Hall, Jr.
ORDER DENYING PLAINTIFF’S MOTION
FOR NEW TRIAL/RECONSIDERATION

On May 10, 2002, this Court filed its decision and order in this matter
entering judgment in favor the defendant National Western Life
Insurance Company (“NWL”) and against plaintiff Sefulutasi Suluai
(“Suluai”). Suluai filed her motion for new trial and/or reconsideration
on May 21, 2002.
The motion is not grounded on anything of substantive import going to
the merits. Rather, the motion generally asserts reversible error (1) in
allowing defense counsel the opportunity to talk to a witness, Afa
Roberts (“Roberts”), in the midst of his being examined by Suluai’s
counsel, in derogation of Suluai’s rights to a fair trial and to due process;
and (2) that as a result, the appearance of partiality of the panel of judges
was thereby reasonably put into question. Consequently, Suluai believes
that recusal is warranted.
A. Fair Trial and Due Process
[1-3] Suluai asserts that the Court’s action in allowing defense counsel to
consult with Roberts, “in private,” somehow deprived her of her “rights
to a fair trial and to due process.” (See Pl.’s Mot. for Recons. or New
Trial and Mem. of Supp. Points and Authorities 1). Without articulating
the argument, or providing any elaboration whatsoever, Suluai is simply
content to direct us to “U.S. CONST. Amends. V & VI; AMERICAN
SAMOA CONST. Art. sec. 2; 75 AM. JUR. 2D Trial § 191 (1991),” and to
“Executive Order 11222, signed by President Johnson, circa 1968.” (See
Pl.’s Mot. for Recons. or New Trial and Mem. of Supp. Points and
Authorities 2). In essence, the Court is left to guess as to what the
argument might be. As we have said countless times in these matters:
What is essential to a motion for a new trial is that it . . . fully
apprises the court of the asserted errors in the judgment . . . so
that the trial court may consider for itself whether any such
errors occurred and make appropriate corrections thereby
obviating obvious appeals.

Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 119-20 (Trial Div.
1990). Thus, the Appellate Division has said:
All motions [for new trial] must “state with particularity the
grounds therefor.” T.C.R.C.P. Rule 7. This is particularly
important in the case of a motion for new trial, whose purpose
is to avoid unnecessary appeals by alerting the trial court to
possible errors or omissions in its opinion.
Kim v. Star-Kist, 8 A.S.R. 146, 150 (App. Div. 1988). Additionally,
[i]f no timely motion for reconsideration or new trial
conforming to the “particularity” requirement of T.C.R.C.P.
7(b)(1) is filed within the statutory ten-day deadline, then the
Appellate Division lacks jurisdiction to entertain an appeal.
Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990). Moreover, this
Court recently had cause to sternly warn Suluai’s counsel, Mr. Miller, in
another matter that “this Court, [is] . . . ‘not paid . . . to do legal research
that should be done by the attorneys, nor to guess at or construct the
legal theory upon which a losing party might oppose our decision.’”
Progressive Ins. Co., Ltd. v. Southern Star Int’l, 6 A.S.R.3d 112, 129
(Trial Div. 2002) (quoting G.M. Meredith and Assocs. v. Blue Pac.
Mgm’t Corp., 28 A.S.R.2d 1, 2 (Trial Div. 1995)).
[4] The requirements of procedural due process are not fixed but vary
with circumstances and the particular requirements of the case,
minimally demanding notice and an opportunity to be heard. Ferstle v.
Am. Samoa Gov’t, 7 A.S.R.2d 26, 49 (Trial Div. 1988) (citing Parratt v.
Taylor, 451 U.S. 527 (1981); Mathews v. Eldridge, 424 U.S. 319
(1976)). As the motion is not clear on the asserted ground of “fair trial”
and “due process,” and as we are not inclined to guess or construct a
legal theory for movant, the motion will be denied on this ground.
B. Appearance of Partiality and Recusal
As Suluai’s second ground—the appearance of partiality claim—this is
even more nebulous than the first and appears to be nothing more than a
normative submission. The Court, in allowing defense counsel the
opportunity to consult with his client, interrupting his examination by
Suluai’s counsel, was not unmindful of its duty to maintain the
appearance of impartiality.1 Quite the contrary, the Court was in fact
1 See H.C.R. 103, incorporating Canons of Judicial Ethics, Canon 3(C)(1);
In re Matai Title Faumuina, 26 A.S.R.2d 1, 5-7 (App. Div. 1994).

motivated in its action by its very cognizance of that duty.
The factual backdrop to the Court’s course of action is as follows: Suluai
is a local resident, while NWL is an off-island corporate entity with
headquarters in Texas selling certain classes of insurance in the
Territory.2 Roberts, who was simply characterized in Plaintiff’s
memorandum of points and authorities as “a material witness,” also
happens to be NWL’s general agent in American Samoa. Roberts, on
behalf of NWL, actually dealt with Suluai and her late husband
culminating in NWL’s issuance of a certain policy of life insurance that
became the subject of proceedings before the Court. While Roberts was
on the stand under examination by counsel Miller on direct, in the
manner of a hostile witness with leading questions, counsel sought to
impeach NWL by asking Roberts whether he recalled a conversation
with him whereby Roberts had in effect admitted to counsel knowledge
of the insured’s diabetic condition at the time of latter’s application for
insurance. At that point in the examination, defense counsel Hall
strongly objected to the question on grounds of inappropriate contact by
Counsel Miller with his client.3 Mr. Hall expressed surprise and concern
at the possibility of confidential communication between he and Roberts
being delved into by counsel Miller.
The Court thereupon, in its informed discretion, decided to take
ameliorative action as best as the circumstances allowed, without
needlessly having to delay trial by getting bogged down in a separate and
collateral hearing, by taking a short recess in order to afford counsel Hall
the opportunity to immediately ascertain from Roberts the nature and
extent of any contact with Suluai’s counsel outside of Mr. Hall’s
knowledge.
The Court was very much concerned about a fair trial—that the defense
2 There is no federal district court in the United States Territory of
American Samoa. In every other jurisdiction under the American flag, the
defendant would have access to a federal district court under its diversity
jurisdiction. 28 U.S.C. § 1332. The customary rationale given for diversity
jurisdiction in the federal courts is the fear of parochial bias against a citizen
from out of state. See, e.g., United States v. Deveaux, 5 Cranch 61, 87, 3
L.Ed. 38 (1809).
3 A.B.A. Model Rule of Professional Conduct (1983) 4.4, adopted by
H.C.R. 104, reads:
[A] lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be represented
by another lawyer . . . unless the lawyer has the consent of the
other lawyer.

be not unfairly comprised by an inappropriate contact by opposing
counsel. As it turned out, counsel Miller had indeed contacted Roberts a
week before trial, but the Court opted to leave the collateral issue of
professional misconduct for another day.4 After the recess, Mr. Miller
was allowed to have his question answered without further objection
from defense counsel.
[5] It goes without saying that “fairness” here is a two-way street, in
demand by all parties. The intervening ado would not have arisen in the
first place, had Suluai’s counsel paid closer attention to appropriate rules
governing professional conduct, while taking advantage of pre-trial
discovery measures available in this jurisdiction to properly speak with
Roberts. Under the circumstances, Suluai, as well as NWL, each had
their day in Court. The motion for recusal on the grounds of appearance
of partiality is utterly without merit.
For reasons given, Suluai’s motion for new trial/reconsideration is,
therefore, denied.
It is so ordered.