Ala'ilima; Tuika v.

TUIKA TUIKA, Jr. , Appellant

v.

CHARLES V. ALA'ILIMA, Appellee

High Court of American Samoa
Appellate Division

AP No. 4-88

October 21, 1988

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Trial court decision that attorney was entitled to fee from former client would be affirmed when the underlying case had been decided against the client on the merits and not due to inadequate representation by the attorney.

Attorney fees may be awarded to an appellee where the appellant has taken a frivolous appeal. [8ASR2d164]

Before KRUSE, Associate Justice, KING*, Acting Associate Justice, KAY**, Acting Associate Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: Appellant Tuika Tuika, Jr., pro se
Appellee Charles Ala'ilima pro se

Per Curiam:

This appeal originated as a small claims action filed by Ala'ilima against Tuika for attorney fees and costs associated with prior legal representation of Tuika in an election appeal. Judgment was entered by the small claims judge against Tuika in the amount of $731.95 plus $10.00 costs.

Tuika appealed to the High Court Trial Division for a trial de novo as there was no record in the Small Claims Court. Trial was held and judgment against Tuika was upheld. Appellant now appeals to this court for a review of the trial court's decision. We affirm.

Tuika retained Ala'ilima to handle an appeal of his loss of an election for the local House of Representatives. Appellant made many allegations of improprieties in the election procedure and in the activities of his opponent in the campaign. Because the ten day limit imposed by the statute for filing election appeals was expiring, appellee quickly drafted an appeal alleging the complaints made by Tuika and had Tuika verify it. It was filed in a timely manner. Tuika Tuika. Jr. v. Chief Election Officer, AP No. 21-86.

The court directed Ala'ilima to file an amended complaint. According to Tuika, Ala'ilima [8ASR2d165] was late in filing the amended complaint within the time limits prescribed in A.S.C.A. § 6.0903.

After the amended complaint was filed and a hearing scheduled, the government filed a motion to dismiss on the basis that the statutory period for holding new elections had expired. The court heard the motion on the date of the scheduled hearing and ruled in favor of the government on the merits of the election appeal. Review of the transcript shows that the court's decision was not based on the timeliness argument.

Tuika' s argument appears to be that he is not obligated to pay his attorney for the work on the election appeal because, due to lack of diligence, Ala'ilima did not file a timely brief and thereby caused the government to prevail. However, a review of the transcript resulting from the hearing disproves his contention that the action was dismissed because his attorney failed to file a timely amended complaint and request for hearing; the decision of the court is based clearly on the merits and not on the timeliness of the appeal.

In addition, Ala'ilima seeks to recover his fees and costs for defending this appeal, which he justifiably characterizes as frivolous. Ala'ilima is hereby awarded his costs and a fee of $100 in connection with this appeal.

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* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Alan C. Kay, Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.