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Aitu; Uiliata v.

MOEA'I UILIATA, Appellant

v.

ALAI'A FILIFILI, SI'UFANUA AlTU, and
TUIA'ANA MOI, Appellees

TUIA'ANA MOl, Appellant

v.

MOEA'I UILIATA, Appellee

High Court of American Samoa
Appellate Division

[10ASR2d104]

AP No.35-88
AP No.37-88

March 13, 1989

__________

Appellant who ordered production of a trial transcript and later attempted to countermand the order would be required to pay pro rata share of the cost of producing the transcript, where (1) another appellant had requested an estimate of the cost of a transcript; (2) court reporter, in reliance on first appellant's order for a transcript, had served both appellants with an estimate that assessed half the cost against each appellant; (3) second appellant had then ordered a transcript within the ten-day period prescribed by appellate court rule for parties to decide what parts of the transcript would be necessary; (4) first appellant's countermand of his order took place well after the expiration of the ten-day period. Appellate Court Rule 10(b)(1).

Before KRUSE, Chief Justice.

Counsel: For Moea'i, Togiola T.A. Tulafono
For Tuia'ana, Albert Mailo

Order for Payment of Estimated Cost of Transcript:

On December 16, 1988, Moea' i filed his notice of appeal from the judgment of the Land and Titles Division and requested an estimate of the cost of a transcript.

On December 20, 1988, Tuia'ana filed his notice of appeal from the same judgment. The notice stated that Tuia'ana "further requests a transcript and record of the trial."

On December 23, 1988, the court reporter served a notice of the estimated cost of a transcript on counsel for both parties. The estimated cost was $1507.50, or $753.75 per party.

Appellate Court Rule 10(b)(1) provides in pertinent part that

[w]ithin 10 days after receiving the reporter's or clerk's
estimate the [10ASR2d105] appellant shall order from
the reporter a transcript of such parts of the proceedings
not already on file as he deems necessary. The order
shall be in writing and within the same period a copy
shall be filed with the clerk of court and served on the
appellee.

Appellate Court Rule 10(b)(4) requires that "[a]t the time of ordering, a party must deposit an amount of cash equal to the estimated cost with the reporter." The rule also requires that the party file with the clerk a copy of the reporter's receipt.

In the course of a routine inquiry into the status of pending appeals, the Court has learned that Moea'i did not deposit the estimated cost with the reporter until January 27, 1989, and that Tuia'ana has not deposited anything to date. Moreover, the court reporters have informed the Court that counsel for Tuia'ana has informed them orally that he now wishes to order only part of the transcript. The court reporter to whom counsel communicated this information says that it came during a chance encounter with counsel later on the same day (January 27) that Moea'i had paid for his half of the transcript.

The revised request for a partial transcript would appear to violate Rule 10 in several respects: it was not made in writing, was not served on the Clerk or opposing counsel, and was made well after the expiration of the ten-day period provided in the Rule.

By countermanding his original order for the entire transcript, counsel for Tuia'ana would increase the amount that Moea'i would have to pay. If such a change had been made in writing within the ten-day period specified in Rule 10 for ordering the transcript, it would not represent an imposition on the opposing party. After the expiration of this period, however, Tuia'ana was bound by his counsel's earlier order for transcript and record of the trial." Moea'i therefore ordered the transcript in the expectation that he would be required to pay only half the cost. Since counsel for Tuia'ana failed to countermand his original order until after the expiration of the deadline for deciding what parts [10ASR2d106] of the transcript would be necessary, Moea'i was entitled to rely on the original order.

Counsel for Tuia'ana is directed to deposit $753.50 with the court reporter no later than 4:00 p.m. on Friday, March 17, 1989.

It is so ordered.

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