11ASR2d

11ASR2d

Maea v. Manuu,


MAEA UAINA, Plaintiff

v.

PATISEPA MANUU, MA'ATAUA TE'O, VILIAMU,
and MILIAMA, Defendants

MAGALEI LOGOVI'I, PATISEPA PEI (MANUU) , and
MOEA'I UlLIATA, Plaintiffs

v.

MAEA UAINA, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 01-87
LT No. 33-87

June 7, 1989

__________

When no adverse claim was filed with respect to part of a survey offered for registration, and where the evidence reflected that this [11ASR2d94] land had in fact been settled and occupied by the applicant for registration, the uncontested portion could be registered as the property of the applicant, A.S.C.A. §§ 37.0101 et seq.

Where the evidence showed that disputed land was originally cleared and cultivated by the village in a collective effort, and tracts surveyed by various families within the village overlapped one another and extended beyond any evidence of recent cultivation, no party had proven entitlement to the land by the preponderance of the evidence and all offers of registration should be denied. A.S.C.A. §§ 37.0101 et seq.

Before KRUSE, Chief Justice, Vaivao, Associate Judge, Afuola, Associate Judge.

Counsel: For Maea, Aviata F. Fa'alevao
For Te'o and Siufanua, Tauese P. Sunia
For Patisepa Pei, Tauivi Tuinei
For Magalei, L. Suesue Lutu
For Moea'i, Togiola T.A. Tulafono

The parties herein are either matai of Faleniu or claimants through Faleniu matai. These consolidated matters involve a certain land area traditionally known as "Leaveave" which was part of the subject matter of earlier litigation in which the chiefs of Faleniu prevailed against the claims of A'asu villagers. See Magalei v. Lualemana, 4 A.S.R. 242 (1962). The matters before us arose following the attempts of one of those Faleniu matai, Maea Uaina, to claim and register a portion of Leaveave as the communal land of the Maea family. In early January, 1987, Maea filed a petition with the Court seeking injunctive relief against the ongoing agricultural activity of the named defendants in LT No. 1-87. He shortly thereafter commissioned a survey of his land claim and filed for title registration with the Office of the Territorial Registrar pursuant to A.S.C.A. §§ 37.0101 et seq. This application to register title also attracted a number of objections from others in Faleniu and resulted in the case docketed LT No. 33-87. The files were consolidated for trial on the merits, and, in preparation for trial, the other parties also had surveys of their own respective land claims prepared by the same surveyor. The surveyor, who was called to testify, presented a composite drawing which laid out the different surveys on a topographical map of the vicinity. At the conclusion of the evidentiary hearing, the Court also viewed the actual land area. [11ASR2d95]

Discussion

A small, southern portion of Maea's land claim, which the parties commonly identified as part of "Puna," was not contested. (1) The said uncontested portion may therefore be registered as the communal land of the Maea family pursuant to the provisions of A.S.C.A. §§ 37.0101 et seq. The remainder of Maea's surveyed claim is contested on the entire western half by the descendants of Manu Tuinei, (2) while the other parties' claim overlap the eastern part of his survey.

As mentioned above, the land area "Leaveave" was held to be the property of the chiefs of Faleniu in Magalei v. Lualemana, supra. Consistent with the findings in that case, the evidence here revealed that the land was originally cleared from its jungle state and then collectively cultivated in the manner of a "taloloa" ---a cooperative taro plantation developed from virgin bush and then divided up into units called "fata," with each developer assigned a certain number of fata to maintain and harvest by the villagers of Faleniu. (3) After original cultivation, the villagers, in addition to establishing other taloloa areas, returned at different intervals to the old clearings with the common understanding that one's assigned fata area became that person's family land. Some villagers would abandon the taloloa area temporarily (and then later return) while others continued to maintain crops.

We also gathered on the testimony that over time, those working for the time being on the land did so without too much regard to the original limits of one's family fata and assigned land location. At different intervals of time, [11ASR2d96] therefore, some families of Faleniu would be more visible in these areas than others, and when they in turn left they were similarly displaced by others or the ever growing flora. (Indeed, when the members of the Court viewed the area, some parts of the land had reverted to bush; however, such areas were also claimed by the parties on the basis of past cultivation.)

From the manner in which the subject land has been used and occupied, it appeared to the Court that gradually over time the taloloa area came to be regarded by the village as common agricultural land. We see this for example with the manner in which a recent dispute over the land was handled. The dispute involved one of the parties hereto, Ma'a Te'o, and another villager. Differences between these parties were escalating towards a potential gun battle. At the suggestion of Chief Si'ufanua who had intervened at the behest of Ma'a Te'o, the matter was referred to the village council. The affair, although intense, was approached and handled as an intra-village matter and therefore the complications which would have been caused by entitlement questions in the context of an inter-family dispute were not there to hamper reconciliation. A solution was achieved after tribute was paid to the council which then granted or ratified permission to the continuing use of land by the parties. Further, and as can be seen from a review of the above referenced cases, the village chiefs have consistently defended the various taloloa areas against outsiders in a collective manner as opposed to responding severally as individual families. By the same token, the Faleniu Chiefs have by and large left undisturbed the interchanging use of these taloloa areas by various members of the village, except for one occasion when a prior Maea had unsuccessfully attempted to carve out for himself another portion of similar taloloa land known as "Tafeta." See Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383 (1963). Even with that matter the remainder of the village chiefs were concerted in their efforts and acted as one.

In the present matter, claimant Maea admitted that his family ceased actively maintaining crops in the area because of dwindling family numbers and also because of the fact that he had for many years taken on employment outside Faleniu in exchange for a paycheck. Maea had, along with many others,[11ASR2d97] opted to involve himself with that new and changing way of life which came about with the territory's emerging cash economy. After his recent retirement, Maea revisited the disputed land and discovered that others of the village were now in active possession of land areas which he felt were once held by his family. Hence his petition for a declaration that title to the land should be registered as his family's. Maea testified that the area he had surveyed was originally cleared and claimed by his ancestors and while evidence of his former crop activity had now been destroyed by the cattle farm presently maintained in the area by Ma'a Te'o, the unaffected coconut trees on the land were those planted by he and his ancestors. Maea also claimed that his ancestors had named the locale and he related a rather colorful, but fanciful, explanation of the origin of the term "Leaveave."

The history of the area, however, simply contradicts Maea's claim. The widely acclaimed village taloloa is by definition inconsistent with any claim to individual family cultivation. Secondly, the name "Leaveave" was more meaningfully explained by the opposing parties, as consistent with the area's physical topography and water runoff, than by Maea's narration relating to the ensnarement of his great grandfather's hunting dogs.

Alternatively, counsel for Maea contended that the village, after first clearing the bush, divided up the Leaveave area among the various families of Faleniu. He directed our attention to a remark by Chief Justice Morrow to this effect in Magalei v. Lualemana, supra, at 249. From this premise, counsel then submitted that his client's survey encompassed that division of Leaveave given to the Maea family by the village. Firstly, he referred us to another comment by Judge Morrow concerning that Court's viewing of plantations on Leaveave including "a coconut plantation of Maea" (the predecessor of the present Maea). Id. at 248. Secondly, counsel argued that certain coconut trees pointed out to the present panel of judges during their viewing of Leaveave, which were located within Maea's surveyed area, were the remnants of the same coconut plantation mentioned by Judge Morrow. In this regard, counsel also directed our attention to his client's earlier testimony to the effect that those existing coconut trees within [11ASR2d98]
Maea's surveyed area were planted by Maea family members.

We have several problems with the contentious nature of this submission. Leaveave is a much larger area than that encompassed by Maea's survey. The coconut plantation viewed by the Court in 1961 is not necessarily the scattered trees which the present panel observed on the land surveyed by Maea. Indeed, some of these coconuts trees were also claimed to have been planted by the Magalei family, while other trees were said to have been the plantings of a one Leasiolagi during the times the A'asu people attempted to lay claims to the area. Further, it was very noticeable to the Court, when it viewed the area, that the extent of Maea's claim went significantly beyond the area of the scattered coconut growth. His survey included great areas of bushland which looked quite devoid of any signs of having ever supported even the hardy coconut tree. Indeed, apart from Magalei's survey, a common and striking feature of all the surveys, which became obvious to the Court at the land viewing, was the unrealistic and exaggerated extent to which the respective claims failed to reflect use and occupation, while extending to areas which bore little, if any, resemblance to arable land. We find it difficult to resist the conclusion that because Maea had taken upon himself the survey of a large tract of Leaveave, without the consent of the village council, and then pressed his claim all the way to the courthouse, the whole area was therefore treated as being up for grabs without any rational regard whatsoever to merit. The distinct impression we have of the respective surveys is one of arbitrariness. We are bolstered in this conclusion by the fact that none of the matai claimants, with the exception of Magalei, nor those through whom the non-matai parties claimed, were actually present at the physical survey of alleged family holdings.

The best that we can assemble from the evidence is that the disputed area was originally cleared and cultivated by the village of Faleniu in a collective effort. The tracts surveyed by the various parties overlap one another in the manner which roughly gives the appearance of concentric circles. At best, this manner of overlap suggests that at one time or another the principal "aiga"-- extended families ---of Faleniu had family members cultivating the disputed area. [11ASR2d99]

Accordingly, we conclude in these circumstances that no one party has proven, on the preponderance of the evidence, a superior and exclusive entitlement to the land in dispute. While the Appellate Division in Lualemana v. Magalei, 4 A.S.R. 849 (1962), had affirmed a trial court finding that the Faleniu people had already divided up the taloloa area"Leaveave," that division is not, in our opinion, correctly reflected in the surveys tendered by the parties herein.

At one time during his testimony, ranking Chief Magalei made known his regrets that a matter of village concern involving the entire village, not merely a few families, was compelled to be taken before the courts whereas it should have been properly left for resolution by the village council. There was some impatience with the village council's efforts and attempts at extra-judicial resolution but we leave the parties with two observations: the redefinition of boundaries by the village council must be recognized as a matter which simply does not lend itself to an overnight conciliatory exercise; secondly, this Court has once said that the "Samoan way of life [is]--- discussions, discussions, and discussions in a good faith effort to iron out disputes." Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (1983). In that the speedier court resolution anticipated by some of the parties has not come about, we are disposed to endorse the recommendations of Chief Magalei and urge that a redefinition of boundaries within Leaveave be taken up expeditiously by the council. To facilitate these ends and to preserve any and all rights of the parties hereto, the Court invokes the authority of A.S.C.A. § 3.0242 (allowing procedural flexibility in the Lands and Titles Division as most consistent with natural justice and convenience) and dismisses these matters without prejudice. (4)

It is so Ordered.

*********

1. The opposing parties' abstinence was apparently purposive. Our viewing of the land revealed exclusive and settled occupation of this part of the land by the Maea people.

2. This side's theory of entitlement defies definition. This group is comprised of the immediate descendants of the late Manu Tuinei who desire to hold the land "individually." They candidly admit, however, their difficulties in satisfying the standard of proof requisite to sustaining a claim in "individual" ownership. Accordingly the Court is requested to award land as the communal property of Manu Tuinei's descendants to the exclusion of the rest of the extended family Sa Manu.

3. Much land in this area has been thus claimed from the tropical forest by Faleniu village. See Lualemana v. Filo, 3 A.S.R. 642 (1961); Lualemana v. Chiefs of Aitulagi 4 A.S.R. 383 (1963); Magalei v. Lualemana, supra; Galoia v. Mamoe, 3 A.S.R. 245 (1956).

4. Our order of dismissal, of course, does not apply to the land Puna. As previously noted, no one contested Maea's claim to Puna. When no adverse claim is filed within sixty days of a properly presented application for registration, the Territorial Registrar is compelled to register the land. See A.S.C.A. § 37.0103.

Pritchard v. Purcell,


KISHON PRITCHARD, Petitioner

v.

ROBERT PURCELL, Respondent

High Court of American Samoa
Trial Division

DR No. 65-88

April 18, 1989

__________

Marriage contracted with the sole purpose of changing the immigration status of one of the parties was nevertheless a valid marriage, regardless of whether there was subsequent cohabitation or sexual relations.

Marriage conducted with the purpose of deceiving immigration officials may change the parties' marital status even if it does not change their immigration status.

In the absence of citation of authorities concerning applicable foreign law, the foreign law is presumed not to differ from that of the forum.

Even if petitioner could prove her marriage void under applicable foreign law, action for annulment would be subject to equitable defenses and limitations applicable to annulment actions in the forum.

Where one party to a marriage was the victim of fraud or duress, or was without capacity to marry, subsequent voluntary cohabitation or sexual relations is evidence of ratification.

Refusal by one party to engage in sexual relations or to live with the other party might be evidence of a secret pre-marital intention which, if unknown to the other party, might be a fraudulent inducement to marry.

A marriage contracted between two people who mutually agree not to cohabit or to engage in sexual relations, or even in the mutual knowledge that one party is unable to engage in such relations, is not on that account invalid.

Marriages should only be annulled upon strict proof of invalidity.

Testimony of parties who have shown a willingness to perjure themselves by entering into "immigration marriage," with respect to unverifiable event such as whether subsequent sexual relations occurred, is not "clear, convincing, and satisfactory" evidence. Provided that parties to a marriage ceremony understood the ceremony, and that neither was a victim of force or fraud, their vows and affidavits should be given the legal significance they knew society meant them to have. [11ASR2d17]

Statute providing that court "may" annul illegally contracted marriages follows the general rule that annulment is an equitable remedy which may be barred by equitable defenses including estoppel, laches, or the doctrine of unclean hands. A.S.C.A. § 42.0203.

Before REES, Associate Judge, and TAUANU'U, Chief Associate Judge.

Counsel: For Petitioner, Charles Ala'ilima

This action is for annulment of a marriage. Respondent was served in New Zealand by certified mail and has not answered.

Petitioner testified that in 1984 she asked respondent to marry her for the sole purpose of obtaining permanent resident status in New Zealand. She further testified that she gave respondent money in exchange for his participation in the fraudulent marriage; that neither party intended, at the time of the ceremony, to "consummate" the marriage; that they never did have sexual relations; and that they did not live together.

Petitioner says she purchased a house and a car which were registered in the names of both parties. According to her petition, the acquisition of these properties was "intended to establish the validity of the marriage before the New Zealand authorities" Her testimony, although not entirely clear, appears to be that she lived alone in the house but that she and respondent shared the use of the car. When she left New Zealand in 1986, respondent took over possession of the house and car.

Upon her departure from New Zealand, petitioner asked respondent to bring an action for divorce as per their earlier agreement. He refused, however, to bring such an action.

Petitioner testified that respondent is happy with the existing arrangement, apparently because he enjoys the house and car. (1) Petitioner says she now [11ASR2d18] "understands -that her acts in New Zealand were wrong and prays this Court forgive this youthful indiscretion."

Although the power of forgiveness is reserved to another forum, this Court has the authority to declare a marriage null provided that it "was illegally contracted." A.S.C.A. § 42.0203. It is by no means clear, however, that a marriage was "illegally contracted" simply because the parties entered into it for an illegal reason.

I. Consent to Marry

Marriage ceremonies conducted with the sole purpose of deceiving immigration officials are lamentably common. Although courts of the united States have construed the immigration laws so as to deny such ceremonies their desired effect, these courts have frequently taken care to acknowledge that the ceremony may change the parties' marital status even if it does not change their immigration status. See, e.g., Lutwak v. United States, 344 U.S. 604 (1953); United States v. Lozano, 511 F.2d 1 (7th cir. 1975); United States v. Sacco, 428 F.2d 264 (9th cir. 1970); Mpiliris v. Hellenic Lines, Ltd., 323 F.Supp. 865, 882 n.2 (S.D. Tex. 1969).

"Immigration marriage" is a special instance of the "limited purpose marriage" in which two people, at least one of whom does not really want to be married, nevertheless very much want something that can be obtained through marriage. It is often agreed in advance that one of the parties, after the ceremony and the attainment of the desired object, will bring an action for annulment. A substantial majority of the reported decisions dealing directly with the question, however, have concluded that such marriages--- [11ASR2d19] whether or not they are effective in achieving their purposes ---are valid as marriages.

[B]y reason of the strong social interests in protecting the
integrity of the marital status, when two persons, otherwise
qualified voluntarily go through a marriage ceremony, albeit
for a limited purpose, with the intention, mutual understanding
and anticipation that the marriage is to be accorded legal
significance, the marriage is binding....

Mpiliris, supra, 323 F.Supp. at 880-81 ("immigration marriage"). See also Re Estate of Duncan, 285 P. 757 (Colo. 1930) ("trial marriage"); Schibi v. Schibi, 69 A.2d 831 (Conn. 1949) (marriage ceremony conducted solely "to give the child a name"); Mitchell v. Mitchell, 310 A.2d 837 (D.C. 1973) (legitimation of child); Hanson v. Hanson, 191 N.E. 673 (Mass. 1934) (ceremony conducted to avoid loss of employment by man whose salary had" been raised on the strength of his approaching marriage); Erickson v. Erickson, 48 N.Y.S. 693 (N.Y. App. 1944) (legitimation of unborn child); Campbell v. Moore, 1 S.E.2d 784 (S.C. 1939) (legitimation); Harding v. Harding, 118 P.2d 789 (Wash. 1941) ("It was a business proposition. I had been in this water district for a good many years, had good connections, and we figured that we could make a go together."). Cf. Lozano, supra, 511 F.2d at 3 (immigration); Sacco, supra, 428 F.2d at 269-70 (legitimation); United States v. Diogo, 320 F.2d 898 (2d cir. 1963) (immigration). (2)

A few courts have held, however, that a "limited purpose" marriage is invalid in the [11ASR2d20]
absence of subsequent cohabitation or sexual intercourse between the parties. See Stone v. Stone, 32 So.2d 278 (Fla. 1947) (legitimation); Faustin v. Lewis, 427 A.2d 1105 (N.J. 1981) (immigration); Ramshardt v. Ballardini, 324 A.2d 69 (N.J. Ch. 1974) (immigration). These decisions seem to depend partly on an expansive definition of "consent," and partly on an apparent misapplication of the idea that a defective marriage can be "ratified" by sexual relations.

Marriage, being a sort of contract, requires the consent of the parties. When one party undergoes the proceeding at the point of a gun, or under a delusion that the ceremony is something other than a wedding, or in a state of dementia or extreme intoxication such as would render assent impossible, there is no consent and hence no marriage. (3) This principle has sometimes been extended to cases in which "two people participate in a mock marriage ceremony as the result of jest, exuberance, hilarity or dare and harbor no intention to be bound thereby." Mpiliris, supra, 323 F. Supp. at 881. (4) [11ASR2d21]

The jest-marriage doctrine has been cited to support the view that parties who enter into marriage with a limited or special purpose have not truly consented to the marriage. (5) Unlike the [11ASR2d22]
parties to a jest marriage, however, the parties to a limited purpose marriage specifically do intend that their marriage should have at least some of the legal and practical effects of a marriage. In contracting marriage they would seem to have made a deliberate decision to accept the marital status with all its legal consequences in order to obtain the consequences they particularly desire. In the formation of contracts it often happens that a party wants only some of the effects of his contract and would, if he could, avoid the rest. And yet the law understands him to have consented to the whole contract, even the parts he did not really want.

Those few decisions declaring limited purpose marriages to be nullities have invariably stressed the absence of sexual relations between the parties subsequent to the ceremony. The idea seems to be that the parties have not consented to marriage unless they have consented to a "real" marriage. (6) And yet neither cohabitation nor "consummation" has traditionally been held essential to the validity of a marriage.

The presence or absence of sexual relations is generally relevant to an annulment action only as evidence of "ratification." A party whose consent to marriage was procured by fraud or duress, or who lacked the capacity to consent, may cure this defect by engaging in voluntary sexual relations after the fraud, duress, or lack of capacity has come to an end. See generally H. Clark, The Law of Domestic Relations in the united States §§ 2.15-.17. Or a refusal by one party to engage in sexual relations or live with the other party might be evidence of a secret pre-marital intention by that party to limit the marital relationship; such a intention (if and only if it was not disclosed to the other party prior to the ceremony) might itself be a fraudulent inducement to marry, giving the defrauded party a right of action for annulment. [11ASR2d23] See. e.g., Anders v. Anders, 113 N.E. 203 (Mass. 1916). A marriage contracted between two people who mutually agree not to cohabit or to engage in sexual relations, however, or even in the mutual knowledge that one party is unable to engage in such relations, is not on that account invalid. See. e.g., Samuelson v. Samuelson, 142 A. 97 (Md. 1928); Martin v. Otis, 124 N.E. 294 (Mass. 1919).

To wrench "consummation" from its context to serve as the test of validity for limited purpose marriages creates a host of practical and theoretical problems. In the first place, cases such as the one before us almost by definition involve people who have shown a willingness to perjure themselves. The testimony of such a person on the occurrence vel non of an almost uniquely unverifiable event is not the sort of evidence on which courts ordinarily feel comfortable deciding cases. And yet courts are said to have a special responsibility not to annul marriages except on "clear, satisfactory and convincing evidence." (7)

Even more important, the substantive distinction created by the consummation test makes no sense. Many of the couples who contract marriages for immigration purposes or other special reasons, without the slightest intention of [11ASR2d24] spending their lives together, are no doubt fond of each other. Assuming the correctness of the premise that the law should look behind their sworn consent to marry ---and that they are found to have specifically intended something other than a "true" marriage should the law then, upon encountering a single act of sexual intercourse, forego further inquiry and irrebuttably presume that the parties must have thought better of their plan?

Cohabitation is even more unrealistic than consummation as a test of whether limited purpose consent has become true consent. If the present petitioner and respondent had lived together for a few weeks to lend verisimilitude to their immigration project, parting forever on the day petitioner received her visa, any inference of consent (beyond the "limited purpose consent" given at the time of the ceremony) would be an inference contrary to fact.

This is not to say that cohabitation and sexual relations cannot be important evidence of the parties' intentions. In marriages to which one party's consent was vitiated because he or she was the victim of fraud or duress, later voluntary cohabitation and sexual relations are strong objective evidence of forgiveness ---evidence that the victim has freely chosen the status into which he was originally led by force or fraud. Where the parties were co-perpetrators of the fraud, however, neither has anything for which to forgive the other. In this context sexual relations and brief cohabitation are not particularly strong evidence of a change of heart .

It is always possible, of course, that a couple who marry for a limited or special purpose might later decide to remain together for more traditional reasons. Assuming that such reformed marriages should be regarded as valid notwithstanding their origins, there is one thing to be said for the consummation test: it might be more practical for courts to decide whether sex or cohabitation had occurred than whether the parties ever really came to love each other. (8) [11ASR2d25]

It is even more practical, however ---less likely to lead to uncertainty, less consumptive of judicial resources, and more consistent with what the law generally means by consent ---simply to abide by the majority rule. Provided that the parties understood what a marriage ceremony was when they procured one, and that neither was a victim of force or fraud, their vows and affidavits should be given the legal significance they knew society meant them to have, rather than the different and contrary effect they secretly preferred.

Petitioner and respondent freely chose to contract a legal marriage. They were free to agree whether to live together or not, to have sexual relations or not, to enjoy or forego other privileges of their marital status. The status itself, and the obligations attached to it by law, are terminable only in accordance with the divorce statute.

II. Clean Hands

Not everyone who is a party to a defective marriage is entitled to an annulment. In providing that the Court "may" annul illegally contracted marriages, A.S.C.A. § 42.0203 follows the general rule that annulment is an equitable remedy which may be barred by equitable defenses including estoppel, laches, or the doctrine of unclean-hands. See, e.g., Schotte v. Schotte, 21 Cal. Rptr. 220 (Cal. App. 1962) ; Tonti v. Chadwick, 64 A.2d 436 (N.J. 1949); Commonwealth v. Case, 189 A.2d 756 (Penn. 1963); Gress v. Gress, 209 S.W.2d 1003 (Tex. App. 1948).

In cases involving bigamous or incestuous marriages some jurisdictions have refused to apply the doctrines of estoppel and unclean hands. In such cases the court generally considers the private equities of the case relatively unimportant compared to the overarching social interest in proscribing bigamy or incest. See Simmons v. Simmons, 19 F.2d 690, 691 (D.C. cir. 1927): "The interest of the state extends beyond the interests of the parties... It refuses to countenance [11ASR2d26] the continued perpetration of crime between such parties in violation of law and good morals." See also, e.g., Johnson v. Johnson, 16 So.2d 401 (Ala. 1944); Townsend v. Morgan, 63 A.2d 743 (Md. 1949); Martin v. Martin, 46 S.E. 120 (W.Va. 1903). Many jurisdictions, however, apply the doctrines of estoppel and unclean hands to bar annulments even of such "absolutely void" marriages. See, e.g., Case, supra: Schotte, supra; Endres v. Grove, 111 A.2d 638 (N.J. Ch. 1955).

Where the marriage is not absolutely void but merely "voidable," as in cases of defective consent, equitable barriers to recovery do apply. See, e.g., Gress, supra, 209 S.W.2d at 1007 (estoppel); Payzant v. Payzant, 168 N.E. 168 (Mass. 1929) (unclean hands); Jwaideh v. Jwaideh, 140 A.2d 303 (D.C. 1958) (laches). (9) Even the few cases declaring limited purpose marriages invalid seem to recognize that annulment of such marriages might ordinarily be barred by equitable defenses. In Ramshardt, supra, the court held the doctrine of unclean hands inapplicable only because plaintiff had shown his "innocence of any intentional violation of law" by voluntarily reporting his fraudulent marriage to the immigration authorities soon after it occurred. Id., 324 A.2d at 71. In Faustin, supra, the court acknowledged the applicability of the doctrine but found plaintiff to be "not so much a willing party to a 'marriage of convenience,' but rather the victim of unscrupulous persons who preyed on Haitian aliens...." Id., 427 A.2d at 1108. See also Stone, supra, 32 So.2d at 278-79 (Plaintiff, who had acted from "laudible" motives in marrying a pregnant teenager when the father of her unborn child "had become involved in other trouble and was not available," was entitled to an annulment, although the father himself would not have been so entitled.). [11ASR2d27]

Even if we agreed with petitioner that her marriage was voidable, this case calls so strongly for the application of the doctrine of unclean hands that we would regard it as an abuse of our discretion to grant her petition. Although she was young at the time of the arrangement from which she now seeks relief, she was its architect. Although she now says she is sorry, this case does not involve a wrongdoer moved by remorse to bring a premature end to his wrongful scheme, nor even one who has tired of it. On the contrary, the Court was always part of the plan. Parts One and Two--- arranging a marriage and staying in New Zealand until petitioner wished to leave ---seem to have gone well. By acquiescing in its designation as Part Three, this Court would countenance an abuse of its own processes: granting an annulment in this case would be the juridical equivalent of driving the getaway car. Moreover, a rule that marriages contracted for immigration purposes will be cheerfully annulled, no questions or only one question asked, would surely encourage many similar frauds. This is not what we are here for.

Accordingly, the petition is denied.

*********

1. There is some tension between petitioner's testimony and her pleading, which states that "[t]he properties have, by agreement of the parties, been placed for sale with the proceeds to be divided equally." The petition also states that respondent was believed to be residing in Hawaii. As it turned out, on December 24, 1988, he signed a certified mail receipt in New Zealand. If, however, petitioner believed respondent to be living in Hawaii and to have agreed to an amicable disposition of the property, it is difficult to understand how she could also believe that he was unwilling to divorce her only because he wished to remain in possession of the New Zealand property. On this evidence we cannot conclude with any confidence that respondent does not have some more conventional reason for wishing to remain married, or that the marriage itself was not more conventional than petitioner now represents.

2. Since this marriage was contracted in New Zealand, its validity or nullity depends on New Zealand law. Loughran v. Loughran, 292 U.S. 216 (1934). Counsel for petitioner has cited no New Zealand authorities, so the applicable law is presumed not to differ from that of the forum. See Hanson v. Hanson, supra, 191 N.E. at 674-75; Theo H. Davies & Co. v. Pacific Development Co., 6 A.S.R.2d 5 (1987). We do note that the English rule with regard to limited purpose marriages seems to be identical to the majority American rule, with which we concur. See H. Clark, The Law of Domestic Relations in the United States § 2.18 at 115-16 & n.8 (1968) and authorities cited therein. Even if the petitioner could prove her marriage to be void under New Zealand law, however, her action in this Court would be subject to such equitable defenses and limitations as are applicable to annulment actions in American Samoa. See Part II infra.

3. See, e.g., Fowler v. Fowler, 60 So. 694 (La. 1913) ("[P]laintiff was coerced by a threat of death as the alternative to enter into the contract. ...The alleged ratification was clearly the result of the same form of coercion as that which was originally applied, and produced no better result."); Clark v. Field, 13 Vt. 460, discussed in Hanson, supra, 191 N.E. at 675 ("[A] marriage, entered into under the mistaken belief by the bride that the ceremony was merely one of engagement and that a later ceremony of marriage would be held in the future, was annulled."); Montgomery v. U'Nertle, 122 A. 357 (Md. 1923): ("[A]t the close of the evening performance these two young men. ..met the chorus girls as they came out from the show.... [They] had had some drinks and were to a greater or less extent under the influence of liquor. It was then and there proposed that Montgomery and Miss U'Nertle should be married that night.... Accordingly they next went to the Bellevue Stratford Hotel and perhaps while there had some light refreshments. The night was an extremely cold one, the thermometer being at or near the zero point, and accordingly the party then went and obtained some moonshine liquor, to the amount of between two and three quarts of which the young men partook.... Miss U'Nertle was exceedingly strong for the marriage... Mr. Montgomery at this time was... too drunk to know just what did happen.... As to whether he was held up during the propounding and answering of these [marriage license] questions, is affirmed by the chauffeur Simmons...").

4. See Meredith v. Shakespeare, 122 S.E. 520 (W.Va. 1924):
[W]hile on their automobile ride, and while passing an
old and abandoned farm house along the road, plaintiff
observing the house, but purely by way of jest, suggested
to defendant that they return to town, get married and
go back and live in the abandoned house; .. later...some
one of the party, in a spirit of banter and jest again brought
up the subject and demanded that they carry out the joke,
and that plaintiff and defendant joining in the spirit thereof,
with their young friends proceeded to obtain a marriage
license and a ring, and in the highest of spirits and with
great fun and laughter proceeded to the church, where the
ceremony was performed....

Id. at 521. See also Davis v. Davis, 175 A. 574 (Conn. 1934):

The plaintiff and the defendant went on an automobile ride
with several young people. It was a joyous occasion, and
to add to the excitement the defendant dared the plaintiff to
marry her. The plaintiff accepted the dare....

Id. at 574-75.

It is hard to know what to make of the "marriage in jest" cases. The decisions leave the impression that important facts have been left unstated; this impression arises, if for no other reason, from the difficulty of imagining that two people would think such a joke funny enough to be worth the trouble. Perhaps matrimonial joyriding was a Roaring Twenties fad akin to goldfish swallowing; or perhaps the joy, hilarity, excitement, and banter said to have animated these proceedings should be understood as Prohibition-era code words for extreme intoxication sufficient to vitiate assent.
The jest decisions would make sense at face value if marriage were nothing but a private contract between two parties. They seem inconsistent, however, with the oft-stated observation that society is an interested party in every marriage. Parties to marriage contracts are routinely denied some of the basic attributes of contractual freedom, such as the power to make their legal relationship terminable at will or to limit its scope and duration, all on account of what are thought to be the strong social interests in the solemnity and stability of marriage. Yet the only conceivable point of undergoing a "mock" marriage ceremony with a real marriage license before a real magistrate or minister of religion would be to flout these interests. Society, like the goldfish, is no position to take comfort from the parties' private understanding that all is in fun. See Hand v. Berry, 154 S.E. 239 (Ga. 1930) (Marriage entered into "in a spirit of fun, braggadocio, and levity" after automobile ride was valid, since there was no fraud by either party against the other; "[s]ociety in general is interested in all marriage contracts, and therefore they cannot be set aside lightly and without cause.")

5. The ceremony in Dorgeloh v. Murtha, 156 N.Y.S. 181 (N.Y. App. 1915) was treated by the Court as a "jest" marriage although its actual purpose was to enable the bride to obtain employment. See also United States v. Rubenstein, 151 F.2d 915 (2d Cir. 1945).

6. See Ramshardt, supra, 324 A.2d at 70 ("[A]lthough the parties intended a valid marriage ceremony, they in no way intended a valid 'marital relationship'..."); Stone, supra, 32 So.2d at 279 ("Such pretended marriages as these, while they may be laudible [sic] ...thinking of the interest of the innocent unborn child, are contrary to public policy and are without the sacred elements on which the estate of matrimony is founded. The courts should not hesitate to annul such marriages... on clear and unequivocal proof. ..that the marriage status was never consummated by any cohabitation.").

7. Maduro v. Maduro, 145 p.2d 683, 684 (Cal. 1944); see Schibi, supra, 69 A.2d at 197; A.S.C.A. § 42.0205 (Court must "examine all parties and witnesses and... take all evidence, as far as it reasonably can" in order to draw its own conclusions on the merits).
The necessity of strict proof is said to be at its strongest in uncontested cases. Schibi, supra, 69 A.2d at 197 ("Since the case was uncontested, it was particularly incumbent upon the trial court to satisfy itself fully that the plaintiff had sustained the burden of proving the lack of mutual consent which [s]he claimed vitiated the marriage."). This is because in actions for the dissolution of marriage, unlike ordinary civil actions, the law does not permit judgment by stipulation. See A.S.C.A. § 42.0206. Moreover, the presumption that two people who went through a marriage ceremony gave their mutual consent to enter into the marital status "is considered to be one of the strongest recognized by law." Mpiliris, supra, 323 F.Supp. at 880. Although the presumption is rebuttable, "marriage contracts will not be dissolved except for the soundest of reasons and upon the strictest of proof." Carr v. Carr, 82 F.Supp. 398, 398-99 (D.D.C. 1949).
Application of this rigorous standard to petitioner's testimony would entail not only an evaluation of her demeanor on the witness stand but also some recognition of her role in the sustained and elaborate fraud upon the New Zealand government that gave rise to the situation from which she now seeks to extricate herself. See also note 1 supra. Because we believe the law not to depend on cohabitation or "consummation," we make no finding on this question.

8. Cf. R. Pascal, Louisiana Family Law Course § 4.15 at 56 (1973): "Canon law would treat the [limited purpose] marriage as null for lack of intent to contract true marriage. But the canon law has the advantage of a procedure more suitable than ours for the discovery of actual intent."

9. Since a voidable marriage can generally be annulled only at the instance of the "innocent" party, a petitioner with unclean hands or estoppel would seldom have a right of action in the first place. Indeed, this is an independent rationale for denying annulment of limited purpose marriages. See Mitchell, supra, 310 A.2d at 841, quoting Erickson, supra, at 589-90: "If a fraud has occurred, they are the parties who purposely and intentionally brought it about"; therefore the parties had no right of action under a statute defining marriages as voidable for defective consent. Cf. Appeal of O'Rourke, 246 N.W. 461, 462: "[S]ince no Minnesota or Iowa statute declares a limited purpose marriage void ab initio, Kathleen's marriage was at most voidable. ...[and] may not be collaterally attacked."

R.P. Porter Int’l, Inc. v. Pacific Int’l Engineering, Ltd.,


R.P. PORTER INTERNATIONAL, Inc. , Plaintiff

v.

PACIFIC INTERNATIONAL ENGINEERING, Ltd. , Defendant

High Court of American Samoa Trial Division

CA No. 117-88

June 19, 1989

__________

Where contract specified no time during which the goods were to be delivered, vendee had the burden of proving that vendor's delivery schedule violated an implied term of the contract.

Every contracting party has an obligation to deal reasonably with the other.

A contracting party who failed to show that the other party knew or should have known of circumstances making his conduct unreasonable had failed to carry his burden of proof.

Even if vendor committed breach of contract by failing to deliver the goods within a reasonable time, vendee who obtained substitute goods at a price lower than the contract price was not damaged by the breach.

In assessing damages to vendee upon breach of seller's contract to deliver goods, court would include the actual cost to the vendee of using its own machines to process substitute goods, rather than a "market value" for use of the machines which included a substantial profit to vendee, since vendee had not shown that the machines were diverted from other profitable use.

The term "f.o.b." in a contract for the sale of goods is presumed to mean that the seller is obliged to load the goods "free on board" the conveyance by which they will be transported to the buyer, and the presumption was not rebutted by a party's assertion of an alternative meaning.

Vendee who loaded goods after vendor breached its obligation to load them "free on board," but who did not prove that his loading machine was thereby diverted from other profitable uses, could recover only the actual cost of operating the loader and not the additional amount he testified he usually charged for "standby time."

Statute regulating height of truck loads was enacted to protect innocent bystanders, and court would not trivialize this protection by redressing the failure of one contracting party to compensate another for systematic overloading of trucks in violation of the statute. A.S.C.A. § 22.0331. [11ASR2d125]

Before REES, Associate Justice, OLO, Associate Judge, and MATA'UTIA, Associate Judge

Counsel: For Plaintiff, Charles Ala'ilima
For Defendant, Steven H. Watson

Plaintiff and defendant are both closely held corporations. Plaintiff corporation is owned and operated by Robert Porter and defendant corporation by Warren Fisher. prior to the incidents that gave rise to the present action porter and Fisher had enjoyed a close and friendly business relationship. Each was the principal witness for his company at trial.

Porter claims that Fisher agreed to purchase $30,000 worth of aggregate (crushed rock); that Fisher received 612 cubic yards of aggregate before wrongfully terminating the contract; and that Fisher's company still owes $5602 on the purchase price of the aggregate it received.

Part of the amount claimed by Porter is for aggregate said to have been received by Fisher in excess of the amount reflected by Porter's invoices. The invoices are said to have understated the amount because Fisher had misrepresented the size of the dump trucks in which his company hauled the aggregate. Fisher told Porter that each of his trucks holds seven cubic yards, whereas Porter says he later discovered that the two trucks hold 7.8 and 9.07 cubic yards respectively.

Fisher counterclaims for damages said to have been suffered by porter's failure to perform his contractual obligations. His story is that porter never delivered the amount of aggregate he had promised to deliver, and that it therefore became necessary to make the aggregate out of cinders. Although cinders are substantially less expensive than crushed rock, Fisher says the costs of processing make the cinder aggregate more expensive than crushed rock aggregate. Fisher claims his company was damaged in the amount of $27,287.36 by Porter's failure to deliver the promised rock. He also claims that Porter's company breached its obligation to load the aggregate onto Fisher's trucks and that Fisher was thereby injured by having to use his own loader. Fisher further [11ASR2d126] contends, contrary to Porter, that neither of his dump trucks holds more than seven cubic yards.

Each of the two principal witnesses attempted to convince the Court that the other could not be trusted. Both were in some measure successful. Each man testified to specific and detailed conversations of which the other professed to have no recollection. Porter said Fisher had left his loading machine on Porter's lot for his own convenience for some months, whereas Fisher said the loader had been specially diverted from other important but unspecified tasks because of Porter's inability to fulfil his obligation to load the aggregate. Porter was shown to have altered invoices so as to bill Fisher for aggregate in amounts greater than those Porter's employees had certified as the amounts Fisher had picked up. (These alterations happened before Porter claims to have discovered the alleged excess capacity of Fisher's trucks.) Fisher submitted. what the Court finds to be a grossly misleading estimate of what it cost him to process the cinders he ultimately used instead of Porter's crushed rock. Each side attempted to portray an incident early in the contractual relationship, wherein it seems to have been contemplated to bill Fisher's customer (the American Samoa Government) for aggregate that had not yet been produced by Porter, as the suggestion of the other.

I. Facts

Because each party relied heavily on the largely uncorroborated testimony of its owner/operator, and because the Court finds the testimony of these two witnesses to be about equally believable, neither side succeeded in proving very much of its case. We find the material facts to be as follows:

1) The parties did have a contract whereby plaintiff (hereinafter, for convenience, Porter) was to supply defendant (hereinafter Fisher) with 1500 cubic yards of crushed rock at a price of $30,000. Delivery was to be "F.O.B. our [Porter's] plant at Tafuna." Porter was to "start stockpiling by April 4, 1988" an initial quantity of 1000 yards. The parties did not agree on a date by which any particular amount had to be delivered. Fisher made an advance payment of $500.[11ASR2d127]

2) Neither side was initially in a great hurry. Porter did stockpile an unspecified quantity of rock within a few weeks, but Fisher had experienced some unrelated delays in his contract with the government, took a trip off-island for a few weeks, and did not attempt to pick up any rock until mid-June. By then Porter had sold some of the stockpiled rock to other customers.

3) Between June and September Fisher picked up 462 cubic yards of rock from Porter. Throughout this time Porter was experiencing problems wi th his rock-crushing machine and was under pressure from other customers to supply them with rock. Consequently, he did not always supply Fisher with rock at such times and in such quantities as Fisher desired.

4) The figure of 462 yards for the aggregate received by Fisher is based on the records made by Porter's employees at the time of each delivery. These records reflect that some of the loads picked up by Fisher's trucks were partial rather than full truck loads. Porter's revised estimate of 483 yards, reflected in the invoices he sent to Fisher, was based on the assumption that all loads received by Fisher were in fact full loads. This assumption is not supported by the preponderance of the evidence.

5) On September 2l, 1988, Porter yet again revised his estimate of the size of each load. The new estimate ---9.02 cubic yards for one truck, 7.8 for the other ---was based on the assumption that each load was "heaped up to (4) four feet in the middle" ---about two feet higher than the side panels placed around the bed of the truck to prevent spillage.

6) Meanwhile, on September 20, Fisher wrote a letter to the effect that he viewed the amount of rock thus far delivered to be insufficient to "honor [Porter's] contract obligation." The letter added that if Porter would be "unable to do so [i.e., to produce an unspecified but presumably greater amount of crushed rock] by September 23rd we will be forced to look to alternative sources in order to meet our construction schedule." Neither this letter nor Porter's September 21 letter appears to have been a response to the other; the two letters apparently crossed in the mail.[11ASR2d128]

7) Fisher's September 21 letter also stated that porter's company had "failed to meet [its] F.O.B. obligations." This was a reference to the fact that the aggregate had been loaded onto Fisher's trucks by Fisher's own loading machine. Fisher estimated that his "actual loading costs" were $2.50 per cubic yard. He also claimed to have incurred $581.25 in "truck standby time" (461/2 hours at $12.50 per hour) and "loader standby time" of $10,043.25 (105 days at $95.65 per day).

8) It appears that Fisher had been seeking an alternative source of aggregate prior to the September 20 and 21 letters. On September 27 he sought and received the approval of the government's project engineer for the use of cinders rather than crushed rock on most of the project. Fisher did use the crushed rock aggregate obtained from porter for certain parts of the project. At the time of trial the project had not yet been completed ---Fisher's deadline having been extended for reasons not shown to have been related to Porter's failure to deliver more aggregate ---and Fisher still had a substantial supply of the crushed rock on hand.

9) Fisher claims that the cinder aggregate he has used in place of the undelivered crushed rock has cost him $31,363.77 so far and will cost him an additional $25,923.59 by the time the project is completed, for a total of $57,287.36. (The cost of the 1038 cubic yards of crushed rock for which these cinders are a replacement would have been $20,760.)

By far the largest element in Fisher's estimate of the cost of the cinder aggregate--- about $40,000 of the $57,000 total ---is a claim for the use of two machines belonging to Fisher himself. He says that these two machines are necessary to screen the cinders; that the fair market value of the machines is $125 per hour and $58.50 per hour respectively; that he has used the two machines for 125 hours in screening 562 cubic yards of aggregate so far; and that he has 476 cubic yards left to screen, which will take about 105 additional hours.

Porter vigorously contests Fisher's estimate of the number of hours it takes to screen cinders. Moreover, it appears that the hourly rates on which Fisher relies are what he believes he would get if [11ASR2d129] he rented the machines to people. Assuming the $125 and $58.50 figures to be accurate estimates of "market value," they appear nevertheless to include a substantial profit to Fisher. Fisher did not show that he lost revenue from any particular projects or would-be customers during the 125 hours he allegedly used the machines to screen cinders. He did not even show that the machines were generally in profitable use. The actual injury to him resulting from any breach by porter, therefore, was limited to the actual cost of operating the machines: the $5 per hour or so he paid his operators and the cost of fuel and of actual depreciation (i.e., "wear and tear" actually incurred from the incremental use rather than a pro-rated figure adopted for tax purposes) of the machines. Fisher presented no evidence of the cost of fuel or depreciation. On the present record we conclude that his actual operating costs were far lower than the quoted hourly rates. since the cinders themselves cost substantially less than crushed rock, Fisher has not shown that he was damaged ---indeed, he may well have profited--- by the substitution .

10) The record reflects that Fisher paid Porter $7225 prior to the termination of the contractual relationship. At the contract price of $20, the 462 cubic yards delivered would have cost $9240. porter also supplied other items to Fisher at a cost of $575. The remaining amount due on the contract price of the 462 yards of crushed rock, therefore, was $2590.

II. Wrongful Termination of the Contract

From these facts we conclude that neither party carried its burden of proving that the other party breached the contract, except that (1) porter did not load the aggregate onto Fisher's trucks as he should have done and (2) Fisher still owes porter part of the purchase price of the aggregate that was delivered.

Porter delivered 462 yards of aggregate, or about one-third of the total due under the contract, within 90 days of Fisher's first indication that he was ready to accept any aggregate at all. This rate of delivery did not violate any express term of the contract. Nor was there any evidence to suggest that the delivery of 462 cubic yards by September, rather than some [11ASR2d130]larger amount, was a breach of an implied term of the contract. Al though every contracting party has an obligation to deal reasonably with the other, Fisher did not prove a breach of this obligation. He might have been able to do this, even in the absence of any specific reference in the written contract to a date of delivery, by showing that porter knew or should have known of deadlines imposed on Fisher under his construction contract with the government. No such showing was made. Indeed, at the time of trial in May 1989 Fisher's contract with the government did not appear to be near completion, the deadline having been extended on account of delays that were apparently unrelated to the present controversy, and no penalties had been imposed on Fisher by the government. If Porter had continued to supply aggregate to Fisher at the rate he had been supplying it before Fisher chose to terminate the contract, the whole 1500 yards would have been supplied by March 1989. From the evidence before us we cannot' conclude that complete performance by that date would have violated the contract.

In any case, Fisher has not proved that his company was damaged by Porter's failure to deliver more crushed rock. The cinders with which they replaced the crushed rock cost them $6 per cubic yard rather than $20. The only credible evidence Fisher presented of the cost to him of screening the cinders was $5 per hour for machine operators. Even on the generous assumptions that fuel and actual depreciation will cost him an additional $20 per hour per machine, and that it will really take him about 230 hours to screen all the cinders, and that he will really need to buy 2000 cubic yards of cinders in order to produce 1000 usable yards, the cinder aggregate would cost him roughly what the crushed rock aggregate would have cost.

Fisher himself may have breached the contract by refusing to accept further aggregate from Porter after September 21. It appears, however, that Porter acquiesced in the termination. The only damages claimed or proved by Porter were for the unpaid purchase price of the crushed rock that was actually delivered. We find that Fisher does owe Porter $2590, the unpaid balance of the purchase price. [11ASR2d131]

III. "Free on Board"

With regard to the loading of the crushed rock porter had the burden of proving that F.O.B. had any meaning other than the usual one, which is that the seller is obliged to load the goods "free on board" the conveyance by which they will be transported to the buyer. See, e.g., Alfred Hofmann & Co. v. United States, 329 F.2d 657 (Ct. Cl. 1964) ; Stalik v. United States, 247 F.2d 162 F. Supp. 652 (l0th Cir. 1957). Despite trial testimony to the effect that f.o.b. means "freight on board" and has only to do with the risk of loss, this burden was not met. Fisher insists that he never, by word or deed, gave porter any reason to believe that his failure to supply equipment for loading the aggregate was excused; Porter insists otherwise; the Court regards the two witnesses as equally credible; and the burden of proof was on Porter. Accordingly, we find that porter did breach the contract in this respect. .

The burden of proving injury on account of this breach was on Fisher. He did not prove that his own loader was diverted from other profitable uses by its employment in loading Porter's aggregate, so he is not entitled to compensation for "standby time." His estimate of $2.50 per cubic yard as the cost of operating the loader, however, does not seem unreasonable in light of the contract price and of Porter's admission that delivery costs are a substantial factor in the price of aggregate. Accordingly, Fisher is entitled to an offset of $1155 (462 x $2.50) against the unpaid balance of the purchase price.

IV. Excess Loads

Finally, Porter claims that he unknowingly delivered Fisher about 129.6 additional cubic yards of aggregate because Fisher's original estimate of seven cubic yards per truck load was too low. Porter- did prove, by means of a photographic demonstration, that one of the trucks could hold about nine cubic yards when the load was tamped down manually and was piled about two feet higher than the truck's side panels. Fisher claimed that the loads actually delivered to him by porter were not tamped down so firmly and therefore contained fewer cubic yards than Porter's demonstration load. [11ASR2d132]

The difference is immaterial. Any load as high as that depicted in porter's photographs would have been in clear violation of A.S.C.A. § 22.0331, which provides in pertinent part that no vehicle may be driven or moved on any highway when any load thereon is not entirely within the body of the vehicle, unless the load is securely fastened by "clamps, ropes, straps, cargo nets, or other suitable mechanical devices" to prevent it from dropping or shifting. Although the parties apparently regard this prohibition as technical and unimportant, the Court does not so regard it and does not believe that the Fono so intended it.

The transportation of any load of over seven cubic yards on either of Fisher's trucks would have broken a law enacted to protect innocent bystanders from being hit by rocks. We decline to trivialize this protection by redressing the failure of one contracting party to compensate. another for assisting in its infringement.

V. Conclusion and Order

Damages in the amount of $1435 are assessed against the defendant in favor of the plaintiff. All other claims by plaintiff and defendant are dismissed.

It is so ordered.

*********

Tele'a v. Savea


TELE'A FALEALI'I, PENI FAILAUTUSI, LIVINGSTONE
PEDRO, SAUMOLA PEDRO, TAITO TAUANU'U, and
VAGANA FALEALI'I, Plaintiffs

v.

SAVEA ROPATI SAVUSA, REV. FA'AVAE FA'ATA'ITA'I,
and SILIFAIVA FAI'AI, Defendants

High Court of American Samoa
Trial Division

CA No. 100-88

June 14, 1989

__________

Where officials of organization provided an accounting with respect to disposition of the organization's property, minor discrepancies would not justify the expense of an accounting, but some such discrepancies reflected unlawful transactions for which officials were bound to make restitution.

Control over the temporal affairs of a church with a congregational form of government vests in the whole congregation or in the organism established by the majority of the congregation for such purposes. Where the identity of a church's governing body is a matter of substantial controversy, civil courts are not to make the inquiry into religious law and usage that would be essential to the resolution of the controversy, but instead should attempt to apply "neutral principles of law."

A congregation's traditional deference to its minister should not be confused with absolute power to govern.

Matai has no inherent power to govern ecclesiastic organization simply by virtue of the traditional and secular office of the matai.

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, TUIAFONO, Associate Judge .

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants, Togiola T.A. Tulafono

The parties are all members of the Christian Congregational Church of Matu'u and Faganeanea (hereinafter referred to as the "church"). A dispute arose among the members stemming essentially from differences relating to church government and the management and use of church property. Plaintiffs, joined by a large number of sympathizers who signed the complaint, were aggrieved with what they perceived as increasing domination of the church's affairs by the minister, [11ASR2d111] Rev. Fa'avae, and ranking Orator Savea. They complain that major property decisions were being made by the minister and Savea without the customary opportunity for input from the congregation. Testimony had it that during a confrontation between plaintiff Taito and defendant Savea, the latter justified his authority to dictate church affairs by reason of his traditional authority within the village council. By the same token, Rev. Fa'avae maintained that his active leadership with church property matters was consistent with his role as minister. Plaintiffs, on the other hand, claim that the secular affairs of the church were always handled by committees established with the approval of the congregation, and that major decisions were habitually referred to the congregation at regular business meetings which the minister would convene after Sunday worship. The minister was seen by plaintiffs as frustrating these review opportunities of the congregation by his failure to convene further business meetings. Instead, decisions were merely announced to the congregation by either Savea or the minister. The manner of decision making in connection with the demolition of the old church building and the construction of a new facility fomented the discontent.

Following a written complaint of plaintiffs and their followers, the minister was relieved of his duties by the elders of the Christian Congregational Church of American Samoa (hereinafter referred to as the "CCCAS"). (1) This prompted an angered reaction from defendant Savea to disavow the CCCAS elders and turn the church Methodist in denomination. The situation eventually escalated into a split among the members with separated Sunday worship although the defendants, on the other hand, attempted to maintain the appearance of business as usual. Plaintiffs then filed suit seeking to enjoin any action to change denomination. They further seek an accounting from the defendants of all church property and funds, and, pending such accounting, plaintiffs further pray to enjoin the further [11ASR2d112] dissipation of church assets, including the expenditure of church funds. Subsequent to the filing of suit, Savea retracted his secessionist threat after apologizing to, and making peace with, the CCCAS elders. Savea has also been instrumental in a number of reconciliation overtures to plaintiffs; however, the latter first insisted that defendants provide an accounting of church property before there could be a meaningful reconciliation. Although that accounting was not immediately supplied, the defendants finally acceded, pursuant to discovery requests, just prior to trial. As a result, the actual trial herein largely turned on the adequacy of that accounting.

Findings

On the evidence before us, we conclude that the defendants have satisfactorily made an accounting of church property and funds. with a few minor exceptions, we find no evidence of the suspected widespread abuse or misuse of church assets by the defendants. The evidence did show that certain church property (cash and household furnishings) was donated by the defendants and their followers to Rev. Fa'avae and his family on the occasion of the minister's departure from the village. We are also satisfied that the defendants had divided the pews of the old church building among themselves and that a few bags of cement belonging to the church were removed by certain members of the Savea family for use on Savea' s own home. These discrepancies do not justify the expense of another accounting.

The remaining area of quarrel has to do with the authority to make decisions concerning the use of church property ---an issue which has taken root because of confusion about church government. We proceed on the basis that a schism does not exist among the membership and accordingly we accept that Orator Savea has abandoned any ideas about seceding. On the evidence, we are satisfied that the church is in nature strictly congregational or independent in government make-up. As a congregational body, the temporal affairs of the church would generally vest in that form of government established by the congregation or membership. Watson v. Jones, 80 U.S. (13 Wall.) 666 (1871). The Supreme Court here explained that [11ASR2d113] a congregational organization may be governed "either by a majority of its members or by such other local organism as it may have instituted." Id. at 675. With regard to the question of entitlement to use church property, the Court further stated that "[i]f the principle of government.... is that the majority rules then the numerical majority of members must control the right to the use of the property. If there be within the congregation officers in whom are vested the powers of such control, then those who adhere to the acknowledged organism by which the body is governed are entitled to the use of the property." Id.

Our cue then from Watson is first to identify the church's governing body, but our approach to this issue must be guarded nonetheless. Just as the First Amendment prohibits our delving into church property disputes which entail the consideration of doctrinal questions, it has also been stated that "where the identity of the governing body or bodies that exercise general authority within a church is a matter of substantial controversy, civil courts are not to make the inquiry into religious law and usage that would be essential to the resolution of the controversy." Eldership v. Church of God at Sharpsburg, 396 U.S. 367 (1970) (Brennan, J., concurring), 369-370. See also Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976); Presbyterian Church v. Hull Church, 393 U.S. 440, 449 (1969). (2)

In the present matter, a possible area of First Amendment concern might be seen in Rev. Fa'avae's contention that his involvement with the [11ASR2d114] church's secular affairs is an aspect of his role as minister. Arguably, the scope of a minister's role is a matter with ecclesiastical overtones. However, we are quite clear on the evidence that Rev. Fa'avae's views were not premised on an~ing relating to religious law or usage. Indeed, the minister explained his role understanding primarily on the basis of his own experience. He testified that at his previous assignment, he was able to involve himself extensively with management of temporal matters without any objection from that congregation. On the other hand, a review of plaintiffs' complaint to the elders and the latter's reply memorandum of October 20, 1988, reveals that the minister was cited by the elders for, among other things, his dominant role in the church's secular affairs, resulting in a split in the congregation, to the detriment of his pastoral function. It is therefore very clear that Rev. Fa'avae's views are singularly held, and, in essence, they are nothing more than subjective conclusions on his part quite unrelated to any concerns of religious doctrine and practice. While we accept counsel's argument that a certain measure of deference has been traditionally accorded by the congregation to the minister (he has been recognized within the village with a symbolic salutation), that deference should not be confused with absolute power to govern.

We also reject any claims to the effect that the power to govern church affairs is vested in certain matai by virtue of their traditional rank within the village. As we have seen from Watson, supra the source of government power in a congregational type church is the congregation itself. There is no inherent ecclesiastical governing power in the matai simply by virtue of their traditional, and secular, office of matai. The traditional respect accorded to matai by reason of their rank should not be similarly confused with absolute power to govern church affairs.

We find on the evidence as follows: The congregation has from time to time vested certain decision making authority in ad hoc working committees. The scope of that authority is naturally limited to the purposes for which a committee is formed. Those committees have comprised not only members of the congregation, but also the incumbent minister. At the same time, there is an established procedure for business [11ASR2d115] meetings of the congregation. The congregation has certain reserved powers to approve or disapprove committee action.

Conclusion

Having said as much, we must also note that no one witness had any specific idea as to details of church government. The church did not have any established rules (written or otherwise) of government which the Court could look at and objectively identify its governing entity. Indeed, the present confusion with the parties may be simply attributed to the fact that the church does not have an operating manual, so to speak, to guide its present membership. (With noticeable despair, one of the plaintiffs conceded as much on the stand). In these circumstances, the church had been able to function while the congregation was still cohesive through the ad hoc establishment of working committees. In a time of dissension, however, the result has been that situation of suspicion and disorder which the congregation now encounters.

As details of ecclesiastical government are not evident, we are enjoined from further inquiry into matters which are essentially policy development considerations properly within the congregation's bailiwick. Watson, supra. In terms of the power dispute before us, our inquiries are necessarily limited. We have first identified the source of governing power within the church as a congregational body. At the same time we have ruled out those claims to power inconsistent with that conclusion. That is, neither the minister nor the matai has inherent authority to govern independent of the congregation. This is not to say, however, that the governing power may not have been invested by the congregation in the minister or the matai. The evidence was simply far from clear as to precisely where the governing power lay. That is a matter for the congregation to define.

Finally, we consider the disputed disposal by the defendants of that church property, above listed, following the split. Applying "neutral principles of law," we hold that the defendants' division of pews among themselves and their followers was unlawful, and restitution must accordingly be made to the church. Similarly, the [11ASR2d116] church's cement which was used for a private project of the Savea family must be replaced. with regard to the property given to the minister and his family upon their departure from the church, we are satisfied on the evidence that this action has precedent and represents a traditional farewell practice within CCCAS congregations. The questioning of such action is more appropriately a concern for the congregation rather than the civil courts.

Judgment is entered accordingly. Petition for accounting and injunctive relief is denied.

It is so Ordered.

*********

1. The church at Faganeanea and Matu'u is, like many other village congregations, affiliated with the Christian Congregational Church in American Samoa which has its principal offices at Kananafou, Tafuna, American Samoa. The membership adheres to and practices the tenets of faith as established by the CCCAS general assembly in which the church has representation. The CCCAS also certifies ministers for its affiliates.

2. In such a case, the court would attempt to apply the "neutral principles of law" approach announced in Presbyterian Church v. Hull Church, 393 U.S. 440 (1969) and developed in Jones v. Wolf, 443 U.S. 594 (1979). In Jones the court in its discussion of the "neutral principles of law" approach to property disputes stated: "The primary advantages of the neutral-principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice." Id. at 603. Nonetheless, "general principles of property law may not be relied upon if their application requires civil courts to resolve doctrinal issues." Eldership v. Church of God at Sharpsburg, supra, at 370 (Brennan, J., concurring).

Lutu v. Taesaliali`i,


LUTU TENARI, FUIAVAILILI LUAAO LE MCMOORE for
himself and for his family, plaintiffs

v.

TAESALIALI'I FA'ASUKA, UOTI and ALAGA POPOALI'I and
their children, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 20-88

June 7, 1989

__________

Under Samoan custom, communal family land is owned by the Samoan family as such and each member of the family has a right to use a portion of the communal land.

The right of a family member to use communal land is a proprietary right within the due process clause of the territorial constitution. Rev'd Const. of Am. Samoa I § 2.

Generally, pule is the authority vested in the matai to protect and conserve the family's assets, and includes the power to divide and allocate land to individual members for their use.

Under Samoan custom, the matai has the duty to exercise his pule over communal property for the benefit of the family.

When a matai undermines the rights of a family member to use communal property in order to favor a non-family member, the matai acts inconsistently with his duty to exercise his pule for the benefit of family members.

An assignment of land to a family member by a previous matai cannot be revoked by a new matai after it has been relied upon, except for good cause.

A matai may evict a family member from communal lands for refusal to serve the matai .

When a family member surrenders his entitlement to use of a particular portion of family land, that estate reverts to the matai for the benefit of the family and is therefore available for pule of a matai over family land may not be exercised without limitation. [11ASR2d81]

Where land assigned to family member by previous matai had not been surrendered or abandoned, family member continued to serve the matai and there was no showing of cause for revocation of the family member's assignment to land, matai could not revoke the assignment in order to allow use of the land by another person who was not a family member.

If no basis exists on which to calculate damages, court may award damages in name only.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, TUIAFONO, Associate Judge.

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendants, Albert Mailo



Plaintiffs seek a permanent injunction to restrain the defendants from erecting a residential structure on a certain plot of communal land located in the village of Utulei. In addition, plaintiff McMoore prays for the eviction of defendants from the site together with damages for the destruction by defendants of a house formerly located on the site and claimed by plaintiffs as theirs.

The central feature of this dispute became largely overshadowed by the development of a collateral dispute about who was the family's senior matai and who held the "pule" over the piece of realty in issue. More specifically, the dispute between Luaao McMoore (hereafter referred to as "McMoore") and Uoti Popoali'i (hereafter referred to as "Popoali'i") over possessory rights to a certain piece of land, became the vehicle for matai rivalry over the right to sign government papers concerning family lands in the village of Utulei. Because of this rivalry, the merits of the actual dispute between McMoore and Popoali'i were simply not open to resolution by the family's matai.

The Court on its own motion joined Chief Lutu as a party plaintiff and Orator Taesaliali'i (hereinafter referred to as "Taesali" ) as a party defendant. In the usual Samoan family setting, the sa'o of a family and his corresponding pule is well established beyond dispute. Thus, A.S.C.A. § 43.1309 provides that only the sa'o or senior matai may bring injunctive applications in connection [11ASR2d82] with family land disputes. (1) As pule is disputed herein, we found joinder, consistent with the general tenor of that enactment, to be appropriate. Secondly, it earlier appeared to the Court at the preliminary proceedings that the underlying turf dispute between titleholders may have a significant bearing on the case.

There was no dispute on the evidence regarding ownership of the parcel of land in question. The land belongs to a communal family whose members identify themselves as the Lutu, Afoa, Taesali, and Tupua family (hereinafter referred to as the "family"). The members regard their family as pertaining to the village of Fagatogo which, they say, includes the sub-village of Utulei as the same was known in accordance with traditional village polity. (2) We also gather from the evidence that the titles Lutu, Afoa, Taesali, and Tupua are distinct matai titles, with respective lesser matai. However, for reasons lost to antiquity, the individual members of the family, as the same is known today, are all able to claim entitlement to any of these four major titles. Indeed, when the members meet as a family, they do so for general purposes as the Lutu, Afoa, Taesali, and Tupua family. On the other hand, the family members do distinguish themselves according to four distinct clans or "faletama," namely: the Taeletoto clan, the Pua'a clan, the Loi clan, and the Toalima clan. In our assessment of the evidence, this distinguishing aspect has given rise, now and then, to dissension among the members, although the family has by and large managed to co-exist in harmony notwithstanding their multiple matai allegiances.

Facts

Plaintiff McMoore is 70 years of age and a blood member of the Lutu, Afoa, Taesali, and Tupua family. He testified that he was made a lesser matai in the family by a former Taesali and that he has to date served the family and the family matai. [11ASR2d83] Much of McMoore's life has been spent in the territorial government career service. with regards to the site in question, McMoore testified that the land was designated for his use by the then family matai at a time when the village was relocated inland during the second world war. The armed forces, and then later the territorial government took over the previous village site. Plaintiff further testified that in 1938 he married the sister of uoti Popoali'i, the defendant herein, and started to build his marital home in 1945, after having leveled and cleared his designated homesite. The home he built was said to be the two story structure which the defendants recently dismantled, thus prompting this suit. By way of supporting proofs, McMoore supplied a copy of a "Building Permit Notice" made out to a Luaao of Utulei for permission to build a non-Samoan construction. This permit was given under the signature of Governor Rouser, on 13 December 1945. McMoore also testified that he, his wife, and children alone occupied that house until his marriage ended in divorce. (3) Subsequent to the divorce, he moved in with his sister, Toa, who owned an adjoining home, while his wife and children continued to occupy the marital home. Sometime thereafter, his wife's brother from Ta'u, Manu'a, the defendant uoti Popoali'i, also began living in the marital home. McMoore said that eventually Popoali'i married and brought his wife into the home. After a time, as McMoore's children had grown and began leaving the marital home, his ex-wife moved off-island while Popoali'i and his family continued to occupy the home to the day it was recently dismantled. McMoore further testified that he was content to allow the defendants to continue living, for the time being, in his home, as after all, his children are related to the defendants. suit, however, was filed after the defendants had dismantled his home thus attempting to oust him from the site (the sentiment being that over a period of time ouster would be the consequence of Popoali'i's actions because the validity of McMoore's claim would naturally have the tendency to deteriorate from an evidentiary point of view), and after the realization that ongoing negotiations within the family had failed to curtail continuing construction by defendants. [11ASR2d84]

Defendant Popoali'i is 74 years of age. He claims that the house dismantled was built by him and that his sister and her husband McMoore had at one time lived with him. He testified that while he is not a blood member of the Lutu, Afoa, Taesali, and Tupua family, he was given a share in that land allotted by the family to a group of Niuean settlers who were living in Utulei under the auspices of the matai and who continue to be known by the family designation of "Usoali'i." Popoali'i claimed that he early arrived at Utulei before the war as a student sent from Manu'a to complete his schooling in Tutuila. In the course of time he was informally adopted by a Niuean couple and thus he acquired a portion of the Niuean allotment when the village moved inland. (4) Popoali'i said that after a time he returned to Manu'a to cultivate a plantation and left his sister and her family to continue living in the house. In 1950 he married and sometime in 1963 he returned to the house in Utulei with his wife and children after hearing that his sister and husband had marital problems. Popoali'i testified that in time the late Afoa Atapuai bestowed upon him the family's lesser matai title, Ae, and that he has served the family and matai ever since. He has remained in the said house to this day although after a time his sister and her children had moved out. He claims to have made repeated repairs to the house without objection from anyone in the family and states that towards the end of 1988 he decided to tear down the old home and build a new structure. Before doing so he sought permission from the matai of the family and we note that in the process of seeking that permission, some differences arose among the matai.

On the documentary evidence furnished, we find that in 1985 defendant Popoali'i had secured from the government a building permit to build a structure in Utulei on land described as being owned by "Afoa, Lutu." The permit is signed on behalf of the land owner in the following manner: "Pula T. Teofilo for Lutu, Afoa." This permit was [11ASR2d85] renewed in early March, 1988 and a few weeks thereafter a separation agreement was sought from the matai.

Popoali'i's daughter testified that she was first sent with a separation agreement form to Lutu who signed the same with the instruction that Taesali should be given the form also for signature and that the other family matai in Utulei should be advised accordingly. After she had taken the form to Taesali, she was told by the latter to procure another new form for his signature alone. It was Taesali's position that Lutu did not have the right to sign for family lands in Utulei. She procured another form which Taesali then signed and which was then filed with the territorial Registrar's office (for the usual posting requirements). Eventually, and towards the end of 1988, Popoali'i dismantled the contested house and commenced rebuilding notwithstanding the continuing objection of McMoore. In turn, this gave rise to individual appeals to the family's different matai, the filing of an action by plaintiff which secured a preliminary injunction to halt the construction, attempts by the family to resolve the matter, and finally the dispute was left to the Court for resolution.

Discussion

There was solidarity with the testimony given by the senior members of the family to the effect that the site in question was assigned to McMoore by their forefathers (former matai). The general consensus was that Popoali'i came upon the land through his brother-in-law, McMoore, and that Popoali'i has no independent entitlement to the site, save through his brother-in-law. These senior members of the family were strongly united in the view that the rights of McMoore as a member of the family should not be undermined by anyone in favor of a non-family member .

Taesali, on the other hand, claimed that the pule over the family holdings in Utulei had been given over by family tradition to the Afoa and the Taesali. As the Afoa title was presently vacant, Taesali insisted on his sole right to exercise pule. In his judgment, that pule should be used in favor of Popoali' i because the latter is not only a lesser matai of the family but has been faithful and unwavering in his service to the family. [11ASR2d86]

However, Taesali was not clear in the matter of how Popoali'i came upon the land. This lack of knowledge was also significantly noticeable in the testimony of the younger generation of family members who testified on behalf of defendants, and who joined with Taesali on the question of who should have pule. (5)

In contrast to the family testimony which supported McMoore's version of the facts, the Court finds corroborative evidence to be wanting for Popoali'i's version. Furthermore, Popoali'i's evidence of entitlement, which was essentially his own testimony, left much to be desired in the way of credence. His testimony lacked that logical and ordered chronology of occurrences which was obvious in the testimony of McMoore and his son Sione. Rather, Popoali'i struggled with placing certain crucial events unlike the eye witness with an understandable memory lapse but in a manner more consistent with the probability that those events recounted had never in fact occurred. [11ASR2d87]

The Court is satisfied that the evidence preponderates in favor of McMoore's version of the facts. We necessarily conclude on the evidence as follows: that McMoore is a member of the family; that the piece of property in question was assigned by the family matai to McMoore for his use; that consistent with that assignment, McMoore built a home on the site; that Popoali'i has lately been occupying McMoore's home (and hence the land) with the latter's assent, and without objection from the family; that while Popoali'i was made a lesser matai within the family, he is not a member of the family; (6) and that both parties serve the family matai.

Conclusions

As we alluded to at the outset, the focus on the intervening question of pule distracted attention from the dispute between McMoore and Popoali'i concerning their respective rights to the land. We now turn to examining those rights.

In Tuanaitau v. Pagofie, the Court said of entitlement rights to lands: "[u]nder Samoan customs (faa-Samoa).... communal family land is owned by the Samoan family as such and each member of the family has a right to the use of a portion of the family land." 4 A.S.R. 375, 381 (1963). This right to use family land has also been held to be a proprietary right within the due process clause, Rev'd Const. Am. Samoa art. I § 2, of the territorial constitution. Fairholt v. Aulava, supra, at 74. Vis a vis McMoore and Popoali'i, McMoore as a family member has such a proprietary right to use family land whereas Popoali'i by definition has no such right. This difference in status was exactly the basis of much concern shown on the witness stand by the older members of the family who could not reconcile Taesali's attempted exercise of pule and a family member's rights to family land.

Generally pule is the authority vested in the. matai to protect and conserve the family's assets. This authority includes the division, allocation, and reallocation of land to individual family [11ASR2d88]

members for their use. Numerous cases have likened the pule of the matai to that authority of a trustee because the matai holds for the benefit of the family. In this connection, he has the general ability to administer the family lands but at the same time he has no authority to alienate land in his own right. The courts have not interfered wi th this administrative authority except in those instances where matai action was found to be arbitrary and capricious. "[P]ule ..must be used for the benefit of family members. ..justly and fairly. It is not to be used unreasonably and unjustly." Tali v. Tupeona, 4 A.S.R. 199, 206 (1961). See also Fairholt v. Aulava, supra. The law then recognizes that in Samoan custom, the matai has the duty to exercise his pule for the benefit of the family. It thus follows that when a matai undermines the rights of a family member (a beneficiary of family property) to favor a non-family member, he is surely acting inconsistent with, and is in breach of, that duty to exercise his pule for the benefit of the family members. Having concluded that the land site in question was previously designated by the former family matai for McMoore's use, we hold that a matai decision in favor of Popoali'i would be an improper exercise of pule. Taesali v. Samuela, a case which should be familiar to the family, held that an "assignment [of land] having being made by the then matai [to a family member] in accordance with Samoan customs, [the said assignment] cannot now, after it has been relied upon by [the] family member, .be subsequently revoked by the new matai ...except for good cause." 3 A.S.R. 359 (1958). The Court in that case did not elaborate on cause sufficient to give rise to revocation. However, the Court has held elsewhere that the matai can evict a family member from family lands if such person refuses to serve the matai. Leapaga v. Masalosalo, 4 A.S.R. 868 (1962). Similarly in Fairholt v. Aulava, supra, a family member's rights to the use of family lands was explained to be a conditional entitlement dependent upon that member's continuing service to the matai. In the present matter, however, McMoore continues to serve the matai and family and neither Taesali nor the other defendants have made a showing of cause for the revocation of McMoore ' s assignment.

As opposed to a revocation situation, there are certain circumstances whereby a family member [11ASR2d89] can be said to have surrendered his entitlement to previously assigned land by agreement or abandonment. Such surrender operates in favor of a reversion of that estate to the matai for the benefit of the family and such land therefore becoming available for reassignment by the matai. Talaau v. Te'o, 4 A.S.R. 121 (1974).

The evidence before us does not sustain a conclusion of surrender. The testimony of those family members knowledgeable on the circumstances of how Popoali'i came upon the land explained Popoali'i's presence as arising solely through his brother-in-law McMoore's permission to use the latter's house on the land. While acknowledging the retention of McMoore's estate, these same family members, as we have said, firmly deny any independent rights to the land by Popoali'i. The fact that McMoore had assented for many years to the use of his home by his brother-in-law does not, on that ground alone, give rise to a surrender. Additionally, a surrender, as we have seen, operates in favor of a reversion to the matai for the benefit of the family and not in favor of another specific individual whether family member or not. There are simply no grounds presented for the revocation or reallocation of McMoore's estate in the land. The decision by Taesali (assuming that he has the rightful claim to the sole pule in the circumstances) in favor of Popoali'i was premised solely on the basis of Popoali'i's satisfactory record of service and quite without regard to the possibility of underlying vested proprietary rights of a family member to the land- --McMoore also has a satisfactory record of family service. In effect that decision rested on the mistaken assumption that pule may be exercised without limitation. That is not the law in the territory.

As we have already indicated above we need not here decide the issue of "pule." McMoore's entitlement to use the land came about through the duly exercised pule of former matai. That continued right to possession may not be subsequently revoked by successor matai without cause. Taesali v. Samuela supra. Additionally, we do not find anything in the testimony of Chief Lutu indicating a preference between the parties nor an attempt on his part to exercise a pule inconsistent with the result we have reached. We therefore leave the matter of "pule" to further family [11ASR2d90] consideration. We grant relief accordingly to McMoore.

The other aspect of plaintiff's complaint for consideration is actionable damages. That the wrongful demolition of one's home gives rise to actionable damages is an overstatement of the obvious. We need not however belabor the merits of this claim as the evidence was insufficient on the question of the actual amount of damages McMoore suffered. The testimony in this regard merely leaves us with a picture of a pre-second world war wooden structure on concrete stilts or columns. The bottom floor was not enclosed while the upper floor, according to McMoore, was partitioned only to the extent of providing one bedroom. While both sides alluded vaguely to some repair work having been done, the Court was essentially left without much of an understanding of the structure's condition prior to its being dismantled. The original building would have undergone some forty plus years of wear and tear, and would have accumulated an appropriate degree of deterioration further diminishing its already speculative value. As against this, neither party impressed us with having had the motivation to keep up the house and make improvements. As far as we can gather on the evidence, McMoore's situation kept him out of the home since his separation from his wife. On the other hand, Popoali'i would have had little reason to improve a structure which is not his. We are also unable to give any weight to plaintiff's attempts to show the structure' s replacement value. He lacked competence on the subject matter and the figures he gave to the Court had no relation to the condition of the home in 1988. Accordingly not having a basis on which to calculate damages, we conclude that an award of damages in name only may be made in the circumstances. Huntington Corporation v. Inwood Const. Co.. 472 S.W.2d 804 (Tex. App. 1971).

On the foregoing, plaintiff shall have judgment as follows:

1. A permanent injunction enjoining defendants and each of them from further construction on the land site in question. .Defendants shall vacate the site within such time as defendants may reasonably require to remove any and all of their possessions located on and about the si te .Such time shall not exceed a period of 120 days from entry hereof and [11ASR2d91] after which time, anything left by defendant on the land shall be considered abandoned.

2. Damages against defendants in the sum of $10.00 plus Court costs.

It is so Ordered.

*********

1. Cf. Fairholt v. Aulava, 1 A.S.R.2d 73 (1983).

2. Today, the village of Utulei, for purposes of representative districts, is not aligned with the village of Fagatogo, but with the villages of Fatumafuti and Faga'alu. See Rev'd Const. of Am. Samoa art. II § 2.

3. The High Court's files reveal the date of divorce as February 15, 1955. Launiu v. Luaao, DR No. 8-1955.

4. According to Popoali'i, McMoore's allotment of land is some 12 to 13 feet away from the site in dispute. His reference is to that same lot containing the house which McMoore had referred to as his sister Toa's home and to which he moved after his divorce.

5. We are quite clear on the testimony that the Taeletoto clan, and to a lesser extent the Loi clan, has been dominant in numbers in Utulei, although some members of the other two clans occupy portions of family land in Utulei as well. The testimony also clearly suggests that members of the Taeletoto and Loi clans have also historically dominated the family titles, Afoa and Taesali. A number of these clan members, including the incumbent Taesali, claim a family tradition whereby the "pule" to family lands in Utulei lies with the Afoa and Taesali titleholders exclusive of the Lutu and Tupua. We again noted with interest the remarkable fact that the proponents of the idea of exclusive pule are a younger generation of matai within the family, differing markedly with the older generation's views on the family's senior matai. In family deliberations, the latter acknowledge in the interests of harmony that the views of the family's four titleholders together with those of the senior members of each of the clans are all important. At the same time, they also maintain that Lutu is the senior matai of the family.
On the other hand, the former maintain that while Lutu is the family's symbolic standard for purposes of village and inter-village polity, they argue that for family purposes, the Afoa is the senior matai. Indeed, to emphasize their position it is further advanced that other lesser matai of the family resident in Utulei are empowered to sign land use permits and separation agreements affecting family lands in the absence of Afoa and Taesali. (This latter contention would justify the fact that in 1985 Popoali'i's building permit was signed by Pula, another lesser matai within the family.)
As will be seen infra,, we need not in these proceedings decide the issue of "pule" and we can therefore leave that matter for further family consideration. We are nonetheless moved to caution that the turf concerns by some of the matai must surely be on the level of frivolity when viewed against those higher concerns shown by the family elders for civility and harmony within the family. In the final analysis the ultimate "pule" over titleholders is the family.

6. The testimony admits no other definition of family membership other than blood. Notwithstanding the acknowledgment of Popoali'i with matai status, family opinion was that, for purposes of entitlement, Popoali'i was not a member of the family.

Lumana`i Dev., Inc.; Purse Seine, Inc. v.


PURSE SEINE INC., Plaintiff

v.

LUMANA'I DEVELOPMENT INC., and
BILL MAXEY, Defendants

High Court of American Samoa
Trial Division

CA No. 73-88

April 6, 1989

__________

Promise to pay in exchange for a promise not to bring criminal prosecution is unenforceable, unlawful, and void as against public policy, regardless of guilt or innocence. Warehouse owner who contracts to store certain property and then sells it thereby commits conversion, regardless of whether the contract is characterized as a bailment or as a lease of storage space.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants, William A. Reardon

Facts

Plaintiff, a foreign corporation, is a supplier of wire ropes and other items which it primarily offers for sale in the territory to the tuna fleet operating out of American Samoa. To this end, plaintiff keeps an inventory on-island which it initially kept in two shipping containers stored in the yard of one of the canneries. In time, plaintiff had to secure storage elsewhere and decided to warehouse its goods with the defendant, Lumana'i Development Inc., (hereinafter "Lumana'i").

Negotiations between the parties were minimal and never finalized. After initial contact (a "quick preliminary discussion" according to Mr. Greg Stewart testifying for plaintiff) in the month of May 1984, plaintiff's inventory was, over a two month period, gradually moved into Lumana'i's warehouse and placed in common storage among items [11ASR2d2] belonging to others. As plaintiff would conclude a sale on a particular item, its local agent would be contacted to arrange the supply of that item from the warehouse. Lumana'i on the other hand was not concerned with keeping any sort of regular record on what plaintiff had coming in, going out, or indeed in storage at any given time.

In terms of consideration, plaintiff's representative, Stewart, referred merely to a certain dollar range ---$150 to $200 per month--- which would be offset by the value of plaintiff's two shipping containers which Lumana'i wanted to purchase. There was no indication from the evidence that a value for the containers was ever discussed nor anything that we can pinpoint to establish the relationship envisaged by the parties. As it happened, Lumana'i at first did not bill rent or storage fees and, in fact, this situation continued thereafter with the matter possibly forgotten.

Towards the end of May 1985, defendant Maxey took employment with Lumana'i as its General Manager. Mr. Maxey testified that his initial instructions were to reorganize the corporation's warehousing operations, which had accumulated a lot of stock in storage (some apparently left unclaimed) for which no fees were being generated. He found that corporate record keeping was marginal and that indeed certain bays had accumulated stock for which no one could account. Maxey testified that sometime in the following month, he attempted to get rid of a quantity of abandoned salt by offering the same to a certain tuna boat owner and, in the course of this, he also pointed out to the boat owner certain coils of wire rope on the premises. As a result, he concluded a single lot sale of some 6800 feet of rope at a price of $1.00 a foot. Mr. Maxey testified that the rope sold consisted of coils found stored inside as well as outside, and to the rear of, the warehouse. Mr. Maxey acknowledged that he had no background on pricing the rope. He added that he had difficulty persuading the boat owner to buy the rope which the latter regarded as being of inferior quality. The boat owner apparently dictated terms.

By September, 1985, Lumana'i had finally hired someone to look at cash flow and eventually the corporation sent out billings. In the process, plaintiff was billed for "warehouse space rental,"[11ASR2d3] discounted by an amount assigned by Lumana'i as the value of plaintiff's two shipping containers. The latter accepted and paid the billing, and a rental amount was thereafter regularly billed and paid on a monthly basis.

Sometime in the month of December, 1985, plaintiff discovered that some items reflected on its inventory records were not to be found in the warehouse. The missing items were four coils of wire rope: respectively 3000 feet, 1800 feet, 1200 feet, and 1800 feet, totaling some 7800 feet. The ropes varied in thickness and each coil was marked with an inventory identification number. Subsequent investigation by plaintiff's representatives led to the discovery of three of the coils on board a certain tuna boat from which they were later traced as having been sold by Mr. Maxey.

Mr. Stewart testified that he then confronted Paul Stevenson, a principal and director of Lumana'i, with the details of the investigation. Some discussion ensued about settling the matter and not involving the police. Mr. Stewart subsequently presented plaintiff's invoice in the amount of $15,600 for the four missing coils, priced at $2.00 a foot. The following day, the $6,800 which Mr. Maxey had received from his sale of rope was paid over to plaintiff and at plaintiff's insistence, Mr. Maxey signed a note (the "I.O.U."), which was also endorsed by Mr. Stevenson, acknowledging indebtedness to plaintiff in the sum of $8,800 payable in 12 monthly installments. Mr. Maxey made only one further payment to plaintiff in the amount of $750.00 and then decided that he was unduly coerced by plaintiff with threats of criminal action. Two years later, the matter has found its way to court.

Conclusions

We naturally conclude on the evidence that there has been a conversion of plaintiff's property and that defendants are liable accordingly. As we have alluded to above, the relationship between the parties was never really clearly defined; however, our conclusion would be the same whether that relationship be viewed as a bailment or a lease. The contract between the parties (while coming into being in a rather untidy fashion) did at least envisage that in return for plaintiff's payment of [11ASR2d4] a fee, Lumana'i would keep in storage plaintiff's personal property delivered to its warehouse until plaintiff reclaimed the same. The uncontradicted evidence clearly shows that plaintiff sought to retrieve certain of its goods in storage; that plaintiff had accepted and paid storage fees billed (although rather tardily at first) by Lumana'i; and that goods sought by plaintiff had been sold by defendants without authority from plaintiff or the contract.

We also conclude, however, that the evidence only sustains a finding that Lumana'i had converted (sold) only three coils of the missing rope in total length of 6000 feet. A fourth coil of some 1800 feet was neither found nor accounted for on the evidence (1) (although plaintiff nonetheless billed Lumana'i $3,600 for this coil or $2.00 a foot). We are unable to conclude that defendants are liable to plaintiff under the rental/storage contract for the loss of this fourth coil of rope. The contract is far from clear that the relationship between the parties was one of bailment. We do not find a bailment and accordingly we need not be concerned with the question whether the appropriate duty of care expected of a bailee, was, in the circumstances, wanting on Lumana'i's part.

Additionally we find nothing on the evidence, short of speculation, to suggest that the loss of the unaccounted fourth coil (according to plaintiff's inventory records) might be attributable to defendants. All that we can gather from the evidence is that plaintiff's agents had just as much access to its inventory as did Lumana'i and it employees. At the same time, neither party particularly impressed us with being overly concerned in contractually detailing their respective rights as well as those obligations expected of the other, nor exhibited any concern to periodically cross check in case of loss. [11ASR2d]

Plaintiff further claims that it nevertheless should recover the charge for the fourth coil based on that subsequent collateral contract with defendants made in consideration of plaintiff's forbearing suit. There is, at least arising from the complaint and the final arguments of counsel, a conflict as to What consideration plaintiff offered to support the collateral contract. Plaintiff argued that defendant promised to make regular instalment payments on the I.O.U. given in exchange for plaintiff's promise to forbear from bringing a civil suit for conversion. On the other hand defense counsel called it "extortion" under threats of criminal prosecution.

As a contract, the I.O.U. really tells us nothing about the nature of its consideration. On the testimony, however, the evidence preponderates in favor of the conclusion that defendants signed the note while concerned about avoiding any dealings with the police. Mr. Stewart testified that when he initially confronted Mr. Stevenson with the results of their investigation, the latter did not want police action. Mr. stewart also stated that he was, at the time, aware of both criminal as well as civil options but that he wanted the matter settled amiably. He also testified that he did not really get into detailed negotiations with Mr. stevenson, however he wrote out an invoice which Mr. Maxey later accepted without objection.

Mr. Maxey testified that he first met Mr. Stewart when the latter asked him about the missing rope. He said he was confused at the time in that all he had been told by the corporation was that some of the rope belonged to the corporation while some belonged to others who had not paid rent. He also stated that a few days later, he was told by Mr .Stewart to make restitution of the rope or the matter would be taken to the police. Mr. Maxey said that he talked to Mr. Stevenson about the matter and that no records could be located on the ropes. Being concerned that they had done something wrong, Mr .Maxey said he signed the note to repay in installments as he did not want police action.

We find that the defendants executed the I.O.U. in order to avoid criminal proceedings. In these circumstances, it is settled law that a promise to pay made on the premise that plaintiff [11ASR2d] would forebear seeing the police is not enforceable. Bargains to "stifle a prosecution" including a bargain where a promise of compensation is given in exchange for a promise not to prosecute are unlawful and void as against public policy. 6A Corbin on Contracts § 1421, 17 Am. Jur. 2d Contracts § 200. This result arises regardless of the guilt or innocence of the party who allegedly committed the criminal act and regardless of the degree of the crime. 6A Corbin on Contracts § 1421; 17 Am. Jur. 2d, Contracts § 204. This rule is stated in a number of cases. "An agreement made in whole or in part 'to suppress an enquiry into the commission of an offense, or to prevent, in any measure, the administration of criminal justice' is void (citations omitted)." Van Housen v. Monico, 378 A.2d 609, 610 (Conn. App. 1976). "A release executed between private parties, the consideration of which, in whole or in part is the suppression of a criminal prosecution, is void." Brown v. Best Products. Inc., 479 N.E.2d 852, 859 (Ohio 1985). "[A]n instrument given in consideration of suppressing a criminal prosecution is void as between the parties, without reference to the guilt or innocence of the threatened individual." Wilson v. united States Lines, 275 A.2d 457, 460 (N.J. Sup'r. Ct. 1971). We accordingly conclude that defendants are not liable to plaintiff for the missing fourth coil comprising 1800 feet of rope on the strength of the collateral contract .

Finally, copious documentary evidence was presented on plaintiff's costing methods which we have considered and conclude thereon that there was nothing untoward about the prices for the missing coils invoiced defendants. As noted above, defendants are liable to plaintiff for the value of the rope converted. That is, 6000 feet at $2.00 a foot equals $12,000.00. Deducting payments made of $6,800.00 on December 13, 1985, and $750.00 made by check dated February 19, 1986, the balance owing plaintiff is $4,450.00. Judgment will enter accordingly in favor of plaintiff in the sum of $4,450.00.

It is so Ordered.

*********

1. According to plaintiff's records, the total length of its missing rope was 7800 feet. That is, 1000 feet in excess of the total sale concluded by Mr. Maxey. The coils recovered by plaintiff were respectively 3000 feet, 1800 feet, and 1200 feet, or a total of 6000 feet. Therefore, the additional 800 feet of rope sold by Maxey could not have belonged to plaintiff.

Leomiti v. Toluao,


LEOMITI IOSE for LEOMITI FAMILY, Claimant

v.

TOLUAO FAMILY, LEFOTU V. TUILESU ,
OTTO V. HALECK, A.U. FUIMAONO,
VELE KUKA Sr., and TUANA'ITAU TUIA, Objectors

[In re Registration of Land "LEMAUGA"
in the village of Pava'ia'i]

LEFOTU F. TUILESU, Claimant

v.

LEOMITI IOSE, TOLUAO FAMILY,
OTTO V. HALECK, TUANA' ITAU TUIA, and
TOILOLO TOILOLO , Objectors

[In re Registration of Land "TAFAGA"
in the Village of A'olau]

High Court of American Samoa
Land and Titles Division

LT No. 35-82
LT No. 10-83

May 22, 1989

__________

Where plaintiff family asserted that members of defendant family had not been present on disputed land, but witnesses for the plaintiff [11ASR2d50] family has absent from the territory during most of the period in question, and plaintiff family failed to call as a witness the only family member who had lived in the vicinity, the evidence preponderated in favor of the defendant family members' testimony that they had been on the land.

Even if plaintiff family once had plantations on disputed land, defendant family would have become owner by virtue of open, notorious, exclusive, continuous, and hostile occupation of the land for twenty years under the adverse possession statute then in effect. A.S.C.A. § 37.0120 (prior to 1982 amendment).

Before REES, Associate Justice, TAUANU'U, Chief Associate, Judge, and AFUOlA, Associate Judge.

Counsel: For Leomiti, Aitofele Sunia
For Haleck, Roy J.D. Hall, Jr.
For Lefotu, Togiola T.A. Tulafono
For Toluao and Tuana'itau, L. Su'esu'e Lutu

The land presently in dispute is located on the side of a mountain. It is about a mile uphill from the village of Pava'ia'i, and a short distance downhill from Aoloau Fou. Until the late 1940s the land was virgin bush.

During World War II the military authorities built a road from the main east-west highway in Pavai'ai to the mountaintop. This road contributed to the development of the mountainside from two directions. From the south the land was cleared. and cultivated by people from Pava'ia'i, particularly Otto Haleck who is an adopted member of the Leomiti family and holds the unregistered matai title Lemauga within that family. (1) From the [11ASR2d51] north came the whole village of Aoloau, whose chiefs decided to move the village up the mountain from its former location on the inaccessible north shore of Tutuila. In or around 1945 the village moved to its present location, called Aoloau Fou, on the mountaintop near the terminus of the new road.

In or around 1946 Lefotu Tuilesu, a matai of Aoloau, settled on a portion of the land presently in dispute. He cleared and cultivated about 4.08 acres and built a dwelling house and a store. His house and store were destroyed when the government widened the road in or around 1972, but his plantations continue to the present day.

Also during the late 1940s some clearing and cultivation was done by Miller Salima on behalf of the Leomiti family. He testified that he left for the united states in the early 1950s and that his brother took over his plantations. We have no evidence, however, of how long these plantations continued to be cultivated after the departure of Miller Salima, and no direct evidence that they were continued at all. We also do not know exactly where these plantations were. Although Mr. Salima was of the opinion that they were within the present Lefotu survey, Lefotu says he never saw Salima there; and according to Mr. Salima's specific recollection of the relative locations of his plantations, the road, and Haleck's house, the plantations could well have been outside the Lefotu survey.

In or around 1950 Otto Haleck moved into the area. He built at least one house, just outside the boundaries of the present Leomiti survey, and cultivated extensive plantations. He and Lefotu lived peacefully side by side for many years. (2) [11ASR2d52] Haleck's driveway traverses Lefotu's plantations, and at least until recently there have been no problems between the two neighbors. Since it does not appear likely that Lefotu cleared his ent1re 4.08 acres at once, and we have no specific evidence of whether Lefotu began planting in the area of the driveway before or after Haleck began building it, we conclude that these two events occurred at about the same time.

Although Leomiti presented some evidence of cultivation in the general area by members of the Leomiti family other than Haleck and Salima, it appears that many of the leading members of the Leomiti family (including the present senior matai, who testified that he has rarely seen members of the Lefotu family on the land) were away from the Territory for much of the time between 1946 and 1982 when the present litigation began. At least one member of the Leomiti family, Lemauga Otto Haleck, does appear to have been physically present in the area for about forty years, living immediately adjacent to the land claimed by Lefotu. Haleck was represented by counsel in this case, who also served as co-counsel for the Leomiti family. If Haleck could have truthfully testified that he, like I,eomiti, had not seen Lefotu family members occupying the land they now claim, he would have been a far more effective witness than any of those who did testify for Leomiti; but Haleck was not called.

The evidence clearly preponderates in favor of Lefotu' s ownership of the land he claims. We conclude that he began clearing the land from virgin bush in 1946, lived on it until 1972, and has cultivated it continuously to the present day.

Even if we were to conclude ---as on the present record we cannot ---that Miller Salima's plantations were within the Lefotu survey, we would [11ASR2d53] still have no evidence that they were cultivated by members of the Leomiti family at any time after the early 1950s. Under the twenty-year adverse possession statute then in effect, Lefotu's occupation of this land (which was open, notorious, exclusive, continuous, and hostile to the claim of the Leomitis) would have made him the owner well before this suit was filed in 1982.

The remainder of the Leomiti survey, with the exception of the portion in the southwest corner that Leomiti has stipulated to be the property of Tuana'itau, appears to have been cleared and cultivated by Haleck and perhaps by others on behalf of the Leomiti family.

Order

Lefotu may register the 4.08 acres within his survey as the communal land of the Lefotu family. Lefotu's rights are, however, subject to the right of Otto Haleck to continue using the driveway that traverses part of the Lefotu tract. Leomiti may register the land within his survey, with the exception of the 4.08 acres in the northeastern corner that belongs to Lefotu and the area in the southwestern corner stipulated to belong to Tuana'itau. The tract which Leomiti may register as the communal land of the I.eomiti family would appear to comprise between eleven and twelve acres.

The Toluao family may register the westernmost portion of the 1980 Haleck survey (the tract marked "A" by the Court on Leomiti Exhibit 1) .

The Tuana'itau family may register the tract within the Haleck survey to the east of the Toluao portion (marked "B" by the Court on Exhibit 1). This includes an area, appearing to comprise slightly less than two acres, within the southwestern corner of the present Leomiti survey.

It is so ordered.

*********

1. Settlement from Pava'ia'i had also proceeded, probably at an early time, along another trail about a half-mile to the west of military road. The western part of the land that was originally in contention in the present case was cleared and cultivated by the Toluao and Tuana'itau families of Pava'ia'i. In the case of Toluao v. Haleck, LT No. 40-80, the Court held that 13.5 acres offered for registration by Haleck were the property of the Toluao family (two acres at the western extreme of the Haleck survey), the Tuana'itau family (about six acres just to the east of the Toluao property) and the Leomiti family (about 5.5 acres at the eastern end of the Haleck survey).
Leomiti's offer of registration in one of the cases consolidated herein, LT No. 35-82, included a large part of the Haleck survey. Tuana'itau and Toluao objected on the ground that the Leomiti survey included part of the land that had been awarded to them in LT No. 40-80. At the beginning of the trial in this case, counsel for Toluao, Tuana'itau, and Leomiti submitted a stipulation by which they settled their boundary dispute. This stipulation is illustrated in Leomiti Exhibit 1; it is approved and incorporated into the Court's order and judgment. The only matter remaining for resolution by the Court is the dispute between Leomiti and Lefotu at the northeastern corner of the Leomiti survey.

2. The long, close, and amicable proximity of Lefotu and Haleck is evidenced not only by the testimony in this case but also by the record of LT No. 40-80, Haleck's unsuccessful attempt to register land that included some of the same land at issue in the present proceeding. without objection. we took judicial notice of the record of LT No. 40-80, to which Leomiti and Toluao were parties. Haleck called Lefotu as his first witness at the preliminary injunction hearing, in his capacity as the occupant of the nearest adjacent land; Lefotu's testimony was consistent with his testimony at trial of the present matter. Lefotu also was identified as Haleck's next door neighbor by at least one other witness at the 1980 hearing, Senator Paogofie of Pava'ia'i; and neither Leomiti nor any other party questioned these assertions, although it would have been most useful to their case to do so if possible.

Lam Yuen; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT , Plaintiff

v.

PEPE LAM YUEN, Defendant

High Court of American Samoa 
Trial Division

CR No. 51-87

June 19, 1989

__________

Search warrant duly issued upon application is presumed valid until otherwise shown.[11ASR2d119]

Parole revocation process may be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

The heart of due process in parole revocation cases is a concern for basic fairness ---the non-arbitrary treatment of a probationer or parolee by the state.

Requirements of due process in parole revocation proceedings include the parolee's right to hear the evidence against him, to be heard in person and to present witnesses and documentary evidence, and to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing such confrontation.

Transcript from a preliminary examination may be considered at a parole revocation hearing.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Barry I. Rose, Assistant Attorney General 
For Defendant, William A. Reardon

This matter came on regularly for hearing upon the government's motion to revoke plaintiff's probationary status.

Factual Backaround

Defendant, Pepe Lam Yuen, was convicted in the above-entitled matter of the offenses of fleeing from a police officer, and resisting arrest. Defendant was sentenced, inter alia, to prison terms respectively of six (6) months and twelve (12) months on the respective counts. Execution of the sentences was suspended and the defendant was placed on probation for a period of one (1) year upon a number of conditions. One of the conditions of probation required defendant to be a "law abiding citizen." Sentence was rendered July 29, 1988.

Within the period of probation, defendant was arrested and charged with the offense of production and cultivation of marijuana following a search undertaken by the police pursuant to a search warrant. On March 30, 1989 the defendant duly appeared for preliminary examination before the District Court. The District Court found probable cause to bind the defendant over to the High Court on the charge. The government moved to revoke probation on the grounds that defendant had [11ASR2d120] violated the probationary condition of remaining law abiding.

The extent of the government's case at the revocation hearing herein was the introduction of the reporter's transcript of the evidence taken at the preliminary examination. No other evidence was presented. The transcript revealed that the police had applied for and obtained a warrant to search a certain land area in the Western District for marijuana plants. The testifying police officer first related his training and experience with identifying such plants both by visual examination and by a certain chemical field test. Plants and seeds which the police found at the scene of the search, both indoors and outdoors, tested positive. The officer further testified that from previous surveillance with field glasses he had seen the defendant among the plantings and that on the day of the search, the defendant, after being verbally warned of his Miranda rights, admitted that the plants seized were his.

The Argument

Defendant contends that the evidence presented in the transcript could not properly provide the required factual basis for revocation of his probationary status. The argument appears to revolve around the premise that the type of evidence admissible in a preliminary examination for probable cause is, by virtue of Court Rules of Criminal procedure, Rule 5.1(a), invariably treated by the District Court as free of possible objection based on the exclusionary rule. Defendant argues that the exclusionary rule in American Samoa is constitutional and also applicable in probation revocation hearings .American Samoan Government v. Samana, 8 A.S.R.2d 1 (1988). It is further argued that the District Court had admitted, over objection, "evidence resulting, from the search, which included alleged admissions by the defendant, and would not permit inquiry into whether the evidence and the admissions were lawfully obtained, thereby preventing the defendant from exercising his right to confront and cross-examine the witness on those issues." Defendant's Memorandum of Points and Authorities at 2. Defendant claims, therefore, that use of the transcript would be in violation of the exclusionary rule, the rule against self incrimination, and his right to confront witnesses. [11ASR2d121] Additionally defendant asserts a violation of his right to procedural due process.

Discussion

For reasons given we disagree with defendant. The evidence presented by the police at the preliminary examination, namely the plants, was obtained through the "process" of a search warrant. Subsequent to the execution of the warrant, the defendant made certain inculpatory statements to the police. While it is true that the defendant was not permitted the opportunity to develop the possibility of exclusionary matters at the preliminary examination, we see no reason why such a possibility could not have been fully developed in the probationary revocation proceedings before us. A search warrant duly issued upon application is presumed valid unless otherwise shown to be to the contrary. An admission against interest has always been regarded as probative evidence unless otherwise shown to have been exacted involuntarily.

Defendant nonetheless claims that he is also deprived in these proceedings of the opportunity to explore the possibility of excludable matters because of the fact that the government had decided to introduce only the transcript and not call witnesses. The protest lodged is that one cannot cross-examine a transcript. The immediate problem with defendant's position is that, in sum, it suggests a duty on the government to anticipate a probationer's defenses and to gear its presentation accordingly. Obviously, there is no basis for prescribing such a prophetic duty on the government and we see no barrier which prevents ab initio our consideration of the transcript of the evidence taken at the preliminary examination. Even assuming for the sake of argument that the evidence necessary to establish probable cause in a preliminary examination may be lesser in quality than that necessary to meet the standard of proof demanded in a probation revocation matter, (1) it does not follow that such evidence is therefore quantitatively inadequate to establish a finding that a probation condition has been breached. [11ASR2d122]

The requirements of due process in parole revocation proceedings were addressed by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972). These included the parolee's right: to have the evidence against him disclosed to him; to be heard in person and to present witnesses and documentary evidence; and to confront and cross- examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing such confrontation. Id. at 489. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court extended the rule established in Morrissey to probation revocation proceedings as well. On the foregoing cases, we see that at the heart of the matter is the concern for basic fairness the non-arbitrary treatment of a probationer/parolee by the state. In the context of such proceedings, due process requirements were said to be flexible and dependent on the demands of each case. The Court was careful to point out in Morrissey that it would not attempt to write a national code of procedure in these matters. Morrissey, supra, 408 U.S. at 489. (2)

Further, the Court made clear in Morrissey that a parole revocation inquiry was a narrow one and that the process could be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial. Morrissey, supra, 408 U.S. at 489. Expanding on this in Gagnon, the Court pointed out that it had not intended in Morrissey to prohibit the use, where appropriate, of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence, although the Court did note that in some cases, there is simply no adequate alternative to live testimony. Gagnon, supra, 411 U.S. at 783 n.5.

In the present case, we are satisfied that this defendant knew precisely why the government had moved to revoke his probation (quite apart from the fact that he was duly noticed with the[11ASR2d123] government' s motion to revoke) .He knew the extent of the evidence which the government had against him not only from the search, after which he made an inculpatory admission, but from the preliminary examination undertaken at the District Court. His claim therefore to being surprised had absolutely nothing to do with his ability or inability to meet the government's evidence in accordance with the notions of due process, but simply had to do with the fact that he had not anticipated the government's decision not to call the police officer who testified below. That officer was equally available to the defendant by subpoena if live testimony was considered crucial by the defendant. On the other hand, the government's decision to rely on the transcript of the officer's testimony taken in the District Court surely came within that flexibility referred to by the Supreme Court when it talked about "conventional substitutes for live testimony." Id.

Having considered the transcript of the police officer's testimony given in the District Court, and being satisfied that the evidence complained of was gained by the police through the due process of a duly issued search warrant, we find on the preponderance of the evidence before us that defendant, Pepe Lam Yuen, was involved with the cultivation of marijuana plants in violation of this Court's Order in the above-entitled matter that defendant shall remain a law abiding citizen throughout his term of probation.

The defendant, Pepe Lam Yuen, is hereby Ordered and Summoned to appear before this Court on July 24, 1989 at 9:00 a.m., for further disposition in accordance with the findings herein.

*********

1. Cf. Territorial Court Rules of Evidence, Rule 5.1101(d)(3) which provides, inter alia, that the Rules of Evidence (other than with respect to privilege) are inapplicable to proceedings for revocation of probation.

2. In Gagnon, for example. the Court rejected the contention that the standards of due process (in a probation revocation proceeding) required the appointment of counsel in every case. Gagnon, supra, 411 U.S. at 787.

In re Two Minor Children (Juv. Nos. 16-89, 17-89),


In the Matter of TWO MINOR CHILDREN

High Court of American Samoa
Trial Division

JUV No. 16-89
JUV No. 17-89

June 12, 1989

__________

Where children lived with both their natural parents and their grandparents, had close relationships with both, regarded their natural parents as their mother and father, and both parents and grandparents were financially able to provide for the children, termination of rights and obligations of the natural parents and legal adoption by grandparents was not in the best interest of the children.

Before REES, Associate Justice, OLO, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Petitioners, Togiola T.A. Tulafono

These petitions for relinquishment of parental rights present the Court with a difficult decision.

The maternal grandparents, who propose to adopt the children if the petitions are granted, obviously love the children and are willing to provide for them. The grandparents are well off financially and are obviously sincere in their desire to provide a home for the children; this petition, unlike many proposed grandparent adoptions, does not appear to be for the purpose of [11ASR2d109] increasing the grandparents' Social Security benefits.

The natural parents also appear to love the children and to be in a good position to provide for them. The parents and grandparents live in homes immediately adjacent to each other; although one child has slept in the house with his grandparents since shortly after birth while the other has slept in the house wi th his parents until recently, both children appear to have close relationships with their parents as well as their grandparents. They regard their natural parents as their mother and father.

Taking account of all the circumstances, we cannot conclude that a change in the legal status of the children would be in their best interest. Legal adoption is not necessary to allow the children to live with their grandparents, or even for the grandparents to take the primary role in the children's upbringing. The most significant legal effect of granting the petition would be to terminate the obligation of support currently imposed on the parents, who are 30 and 28 years of age respectively, in order to impose a similar obligation on the grandparents, who are 59 and 54. By the time the younger of these two children reaches the age of majority his grandparents will be in their seventies, while the natural parents will be in their forties. Since all other factors appear to be roughly equal ---both the parents and the grandparents appear to be fine people and good providers ---the proposed change in the respective legal obligations of the parties would not appear to be of net benefit to the children.

We reiterate that we express no disapproval of any proposed arrangement for the upbringing of the children. We hold only that this is not a case in which a change in the legal rights and obligations of the parties is necessary or appropriate .

The petitions are denied.

*********

In re Two Minor Children (Juv. Nos. 99-87, 102-87),


In the Matter of TWO MINOR CHILDREN

High Court of American Samoa
Trial Division

JUV No. 99-87
JUV No. 102-87

June 7, 1989

__________

That grandparents have cared for child since birth and that grandfather wishes to formalize his love for the child by legal adoption are not sufficient grounds to sustain natural parents' petition for relinquishment of their parental rights and obligations.

Before granting a petition for relinquishment of parental rights and obligations, a court must consider the best interests and welfare of the child and the reasons relinquishment is sought. and must be satisfied that the parents have been counseled and fully advised of the consequences and also that relinquishment is in the best interest of all parties concerned.

The difference in ages between grandparents of 62 and 63 years and a child of 7 years speaks against terminating the rights and obligations of the natural parents so that the grandparents can adopt the child.

Where natural parents provide an adequate home environment and are fit and suitable parents, and seem able to provide for the child as well as the grandparents who are seeking to adopt the child, granting petition for relinquishment of parental rights and obligations may not be in the best interest of the child.

Granting a petition for relinquishment of parental rights and obligations may be in the best interest of the child where natural parents have had a marriage punctuated by separations, natural father has not been responsive to his paternal obligations, and natural father opines that his father-in-law is better suited to care for the child.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, TUIAFONO, Associate Judge. Counsel: For Petitioners, Togiola T.A. Tulafono

The respective natural parents petition the Court to relinquish their natural rights to the minors with the view that the said children be made available for adoption by the grandparents. [11ASR2d92]

The Court is guided in these matters by the provisions of A.S.C.A. § 45.0102(a)(1), which requires the Court to consider the best interests and welfare of the child; § 45.0402(a), which requires consideration of the reasons relinquishment is sought; and finally subparagraphs (d),(e),(f), and (g) of § 45.0402, which require the Court to be satisfied that the natural parents have been counseled and fully advised of the consequences of their act, and that relinquishment is in the interests of all parties concerned.

The common ground advanced by the respective petitioners are that the children have been cared for by the grandparents since birth. Grandfather expressed that he desired to formalize his love for his grandchildren by way of legal adoption. This alone is not sufficient ground to sustain a petition for relinquishment.

Juvenile No. 99-87

The minor is a 7 year old female child. The grandparents are 62 and 63 years of age respectively. In the light of the child's natural circumstances, this age difference speaks against allowing the petition given the remaining years of the child's minority and dependence. The child has perfectly capable parents who could just as well provide for the child.

The grandfather is the family matai and the natural parents, who have their own home, live within the traditional family structure on communal family land. The natural father has maintained steady employment with the same employee for some 17 years. The natural parents have their two other children with them and their household provides an environment which nobody can fault. They are young and the law may look to them for the child' s future support needs with a lot more certainty. They are fit and suitable parents. On the other hand, we cannot say that what the grandparents have to offer the child could not otherwise be better provided by the natural parents. This is not to say that the grandparents parental sense of love and affection towards their grandchild may not thereby continue and flourish. We simply cannot conclude that the best interests and welfare of the child would be served by granting this petition. Petition is denied. [11ASR2d93]

Juvenile No. 102-87

In this matter, the natural circumstances of the child do weigh heavily in favor of granting the petition. His natural parents have had an off now on again type of marriage. Indeed when the child was born, the father had missed the occasion because the marital unit was, for the time being, disunited. The natural father was very candid in his testimony. He has not been too Particularly responsive to his paternal obligations which he acknowledges as having been undertaken by his father-in-law. In his opinion, his father-in-law is better suited to care for his son.

While the natural parents are back together at the present, we accept that, given the marital experience, the best interests and welfare of the child of the child, in terms of a more stable family environment, would be enhanced by granting this petition. Additionally, we are satisfied that the natural parents have been counseled and are fully advised as to the consequences of their petition. This petition is granted. Counsel shall prepare the order accordingly.

*********

Hawaiian Airlines v. Neru ,


HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. 
GEORGE NERU, Appellee

HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. 
AFAESE UIKIRIFI, Appellee

High Court of American Samoa 
Appellate Division

AP No. 5-89 
AP No. 6-89

June 19, 1989

__________

Motion for extension of time in which to file appellate briefs must be filed with proof of service on the opposing party. Appellate Court Rule 27(a).

Requests for extensions of time should be made before rather than after expiration of the time period in question. [11ASR2d117]

Where effect of an extension of time to file appellee's brief would be to deny appellant its opportunity to be heard at an impending session of the Appellate Division, the extension would not be granted.

Before REES, Associate Justice .

Counsel: For Appellant, Charles Ala'ilima 
For Appellee, Tauivi Tuinei, Assistant Attorney General

On Request for Extension of Time to File Brief:

The trial court decision from which these consolidated appeals are taken was rendered on February 16, 1989. A motion for new trial was denied on March 20 and a notice of appeal filed the same day. Appellant's brief was timely filed on April 24, and appellee's brief was due on May 25.

By the May 25 deadline appellee had neither filed its brief nor moved for an extension of time to file. On June 19, 1989, almost a month after the deadline and about a month before the scheduled session of the Appellate Division, counsel for appellee (Assistant Attorney General Tauivi Tuinei, who also served as counsel at trial) requests a 45- day extension of the time for filing his overdue brief. The filing appears to be ex parte. It does not mention the fact that the brief is already overdue, and gives no explanation other than that "[a]ppellees are awaiting information from Washington, D.C. to complete their research."

The requested 45-day extension is denied for the following reasons:

1) It was not filed with proof of service on the opposing party, as is required by Appellate Court Rule 27(a).

2) Counsel offers no excuse for his failure to have moved for an extension of the deadline before rather than after it had passed.

3) It is not clear whether counsel is asking for an additional forty-five days from the original deadline or forty-five days from the date of his motion. A 45-day extension from June 19 would have the effect of depriving appellant of its right to [11ASR2d118] be heard at the upcoming July session of the Appellate Division. The next regular session after this one will probably be held late in 1990, over one and one-half years after the trial court decision in the present case. Even if the present motion had been timely filed with notice to the other party, no extension would have been granted unless it would have permitted the case to be considered at the July 1989 appellate session.

Appellate Court Rule 31(c) provides that an appellee who fails to file his brief on time will not be heard at oral argument except by permission of the appellate division. since the effect of such a sanction in the present case would fall not on counsel Tuinei nor even on his employer, but on innocent third parties to whom counsel appears to have breached a fiduciary responsibility, the Appellate Division may prefer to impose another sanction.

Accordingly, counsel Tuinei is directed to file a brief on behalf of appellees by July 9, 1989. The full Appellate Division will decide whether to accept the brief, whether to permit oral argument, and whether to impose other sanctions. If counsel wishes to supply the Court with an explanation for his failure to move ££or the extension of the deadline before it had expired, or for his failure to comply with the rule requiring certification of notice to opposing counsel, he should do so on or before July 9.

It is so ordered.

*********

Hawaiian Airlines v. American Samoa Gov’t,


HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. 
GEORGE NERU, Appellee

HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. 
AFAESE UIKIRIFI, Appellee

High Court of American Samoa 
Appellate Division

AP No. 5-89 
AP No. 6-89

June 19, 1989

__________

Motion for extension of time in which to file appellate briefs must be filed with proof of service on the opposing party. Appellate Court Rule 27(a).

Requests for extensions of time should be made before rather than after expiration of the time period in question. [11ASR2d117]

Where effect of an extension of time to file appellee's brief would be to deny appellant its opportunity to be heard at an impending session of the Appellate Division, the extension would not be granted.

Before REES, Associate Justice .

Counsel: For Appellant, Charles Ala'ilima 
For Appellee, Tauivi Tuinei, Assistant Attorney General

On Request for Extension of Time to File Brief:

The trial court decision from which these consolidated appeals are taken was rendered on February 16, 1989. A motion for new trial was denied on March 20 and a notice of appeal filed the same day. Appellant's brief was timely filed on April 24, and appellee's brief was due on May 25.

By the May 25 deadline appellee had neither filed its brief nor moved for an extension of time to file. On June 19, 1989, almost a month after the deadline and about a month before the scheduled session of the Appellate Division, counsel for appellee (Assistant Attorney General Tauivi Tuinei, who also served as counsel at trial) requests a 45- day extension of the time for filing his overdue brief. The filing appears to be ex parte. It does not mention the fact that the brief is already overdue, and gives no explanation other than that "[a]ppellees are awaiting information from Washington, D.C. to complete their research."

The requested 45-day extension is denied for the following reasons:

1) It was not filed with proof of service on the opposing party, as is required by Appellate Court Rule 27(a).

2) Counsel offers no excuse for his failure to have moved for an extension of the deadline before rather than after it had passed.

3) It is not clear whether counsel is asking for an additional forty-five days from the original deadline or forty-five days from the date of his motion. A 45-day extension from June 19 would have the effect of depriving appellant of its right to [11ASR2d118] be heard at the upcoming July session of the Appellate Division. The next regular session after this one will probably be held late in 1990, over one and one-half years after the trial court decision in the present case. Even if the present motion had been timely filed with notice to the other party, no extension would have been granted unless it would have permitted the case to be considered at the July 1989 appellate session.

Appellate Court Rule 31(c) provides that an appellee who fails to file his brief on time will not be heard at oral argument except by permission of the appellate division. since the effect of such a sanction in the present case would fall not on counsel Tuinei nor even on his employer, but on innocent third parties to whom counsel appears to have breached a fiduciary responsibility, the Appellate Division may prefer to impose another sanction.

Accordingly, counsel Tuinei is directed to file a brief on behalf of appellees by July 9, 1989. The full Appellate Division will decide whether to accept the brief, whether to permit oral argument, and whether to impose other sanctions. If counsel wishes to supply the Court with an explanation for his failure to move ££or the extension of the deadline before it had expired, or for his failure to comply with the rule requiring certification of notice to opposing counsel, he should do so on or before July 9.

It is so ordered.

*********

Felise; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT , Plaintiff

v.

FALANIKO FELISE, Defendant

High Court of American Samoa 
Trial Division

CR No. 85-88

June 21, 1989

__________

Court order permitting release of a prisoner should not be construed to require the release of the prisoner when such release would be contrary to the best judgment of the commissioner of public safety and when defendant's counsel had not informed the court that release had been denied by the commissioner. [11ASR2d133]

Before REES, Associate Justice.

Counsel: For Defendant, Charles Ala'ilima

On June 20, 1989, the Court issued an order permitting the release of this prisoner to attend boxing matches in Western Samoa .

The Court has just received a copy of an order from the Acting Commissioner of Public Safety, dated earlier in the day on June 20, denying an identical request. The Court had not been informed of this denial when it issued the original order.

This is to make it clear that the effect of the Court order of June 20 was to permit the Commissioner to release the prisoner, not to require such release if it is against the best judgment of the Commissioner .

The Commissioner, acting on the advice of the Attorney General, is free either to permit the release of this prisoner to attend the Western Samoa boxing matches or to deny such release, according to the best exercise of his own judgment.

It is so ordered.

*********

Etuale; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TUIFANU aka ETUALE ETUALE, Defendant

High Court of American Samoa 
Trial Division

CR No.18-88

June 30, 1989

__________

Where evidence at hearing on order to show cause showed that former warden and other prison officials had wilfully violated court order, but that incumbent warden to whom order to show cause was directed had taken no part in releasing prisoner in violation of court order, the incumbent warden would not be held in contempt of court.

Before REES, Associate Justice, VAIVAO, Associate Judge, and MATA'UTIA, Associate Judge

Counsel: For Defendant Etuale, Aumoeualogo Soli, Public Defender 
For Respondent on the Order to Show Cause, Arthur Ripley Jr., Assistant Attorney General [11ASR2d155]

On Order to Show Cause:

On June 15, 1988, defendant Etuale was sentenced to fifteen years imprisonment for the crime of Rape. The fifteen-year sentence was suspended and the defendant was placed on probation. One of the conditions of the probation was that defendant serve five years' detention at the Tafuna Correctional Facility, during which "[d]efendant is not to participate in any work release programs or be released from the Correctional Facility for any reason, except medical emergencies, without the prior approval of the Court...."

On April 5, 1989, the Court received an affidavit to the effect that on or about March 18, 1989, defendant Etuale was at large in the village of Leone. If the allegations set forth in this affidavit had been true, it would appear that the Warden of the Tafuna correctional Facility, and/or some official or officials responsible to the Warden, had violated the Court order.

The Warden of the Tafuna Correctional Facility was therefore directed to appear in the High Court to respond to the allegation that Etuale had been released in violation of the Court order: to explain in detail the circumstances surrounding such violation, if any: and, in the event a violation were proven, to show cause why he should not be held in contempt of Court .

At the hearing and a continuation thereof, it was not proven that Etuale was in Leone on March 18. It also appeared that the warden, to whom the Order to Show Cause had been issued, had not held that position March 18. It was therefore clearly shown that the warden had not been in contempt of court.

It did appear, however, that Etuale had been in Leone on March 25 in violation of the terms of his probation. The Commissioner of Public Safety appeared at the hearing and assured the Court of his determination that such violations not occur. Accordingly, he commissioned an investigation into the circumstances of Etuale's release on March 25. [11ASR2d156]

It appears from this thorough and honest report that several prison officials ---including the former warden, at least one guard, and a "counselor" have knowingly and defiantly violated court orders by releasing prisoners from the Correctional Facility in violation of the terms of their probation. If Orders to Show Cause had been directed to these persons and the facts in the Commissioner's report had been proven in court, the persons in question would have been held in contempt of court .

The commissioner has, however, adopted regulations with regard to release of prisoners for work release and other temporary release programs. These rules are designed to ensure that Court orders are observed and that dangerous criminals are not released into the community. One of the rules ---that no prisoners whose sentences include conditions forbidding release shall be eligible for such programs ---is already incorporated in the sentences in question, and is hereby. made a part of this order.

The Order to Show Cause directed to the Warden is dismissed.

It is so ordered.

*********

Vessel Conquistador; S.W. California Production Credit Assn. v


S.W. CALIFORNIA PRODUCTION
CREDIT ASSOCIATION, Plaintiff

v.

THE VESSEL CONQUISTADOR, its fish
products, fish cargo, freight, masts,
boats, anchors, cables, chains,
rigging, tackle, furniture, engines, and all
other necessaries appertaining thereto,
Defendant in Rem; and

CONQUISTADOR, Ltd., CONQUISTADOR
VENTURES, Inc. , STEVEN J. RIBEIRO ,
BEVERLY A. RIBEIRO, STEVE RIBEIRO
MANAGEMENT CORPORATION, and
STAR-KIST SAMOA, Inc.,
Defendants in Personam;

JACKEL, Inc., dba BIG BEN SHIP
STORES, Intervenor

High Court of American Samoa
Trial Division

CA No. 69-83

April 7, 1989

__________

Court is reluctant to issue order affecting the rights of absent parties without affording them prior notice and opportunity to be heard.

When a vessel is actually or constructively in the possession of the Court, liens do not ordinarily accrue in favor of crewmen or other suppliers of goods and services to the vessel. Rule that liens do not accrue on behalf of those supplying goods and services to vessel in custodia legis may not apply to a vessel allowed to ply the harbors in furtherance of its trade without restriction.

Stipulated receivership order stating that vessel should be "deemed" in custodia legis, but purporting not to create any ranking or priority of liens other than that which would otherwise exist, would arguably preserve the rights of those who, in the absence of the order, would have obtained liens on the vessel during period of receivership.

It is not clear that court has the power to alter the rank or priority of liens by approving an ex parte stipulation to which the lienholders were not parties.

Before REES, Associate Justice. [11ASR2d8]
Counsel: For Plaintiff, Roy J.D. Hall, Jr.
For the Conquistador and Ribeiro Defendants, John L Ward II
For Defendant Star-Kist, Togiola T.A. Tulafono
For Intervenor, L. Su'esu'e Lutu

On Request for Approval of Stipulation:

The vessel Conquistador was arrested by the Marshal of the High Court in 1983 pursuant to the complaint in admiralty filed by plaintiff S.W. (Southwest?) California Production Credit Association.

On September 20, 1983, pursuant to a stipulation among plaintiff and the various defendants, a receiver was appointed. The marshal relinquished possession of the vessel, and counsel for the owners of the vessel "accept [ed] full possession of the vessel. for the appointed receiver." According to the stipulation of the parties, which was incorporated into an order of the Court , the vessel was to be "deemed . ..in custodia legis" during the receivership. The stipulation also provided that "[n]othing in this stipulation and order shall be construed to create any ranking or priority of any liens against the Vessel... other than that... which would exist but for the provisions of this stipulation and order."

On November 15, 1983, subsequent to the stipulated order and release of the vessel, the Court granted a motion to intervene by Jackel, Inc., a vendor of ship supplies and materials. The order provided that intervenor's lien would be junior to that of plaintiff.

The receivership has now been in existence for almost six years. During this time the vessel has been regularly engaged in fishing. As far as the Court can discern from the occasional reports of the receiver, proceeds from fish sales have been divided among the various parties and other creditors in accordance with the terms of the 1983 stipulation.

Plaintiff and defendants now request the Court to approve a stipulation by which plaintiff (or, more precisely, an entity into which the plaintiff has merged) will lend $110,000 to the receivership [11ASR2d9] and to the owners of the vessel. The stipulation specifies that the loan shall give rise to a lien, and that the lien "shall be subordinate and secondary only to the preferred ship's mortgage of the plaintiff..."

The Court has no objection to the loan. The Court is reluctant, however, to issue an order affecting the rights of absent parties without affording them prior notice and opportunity to be heard .One such party is the intervenor, who has apparently not received notice of the stipulation. (It also would appear from a notation in the Court's voluminous file on this case that some other party, represented by counsel Aviata Fa'alevao, has entered an appearance at some time during the six years the action has been pending. The Court is at present unable to determine who this party might be.)

Even more importantly, the proposed order would purport to subordinate all liens on the vessel ---including, presumably, the rights of crewmen and suppliers on future fishing voyages--- to the rights of the proposed lender. This mayor may not be in accordance wi th what would otherwise be the law. When a vessel is actually or constructively in the possession of the Court, liens do not ordinarily accrue in favor of crewmen or other suppliers of goods and services to the vessel. See Gray, Cary, Ames & Frye v. HGN Corporation, 6 A.S.R.2d 64 (1987); Putnam v. Lower, 236 F.2d 561 (9th cir. 1956). This rule may not apply, however, to a vessel placed in custodia 199is but subsequently "allowed to ply the harbors in furtherance of its trade without restriction." Gray, Cary, Ames & Frye, supra, 6 A.S.R.2d at 71.

It would be grossly unfair to permit the [mortgagee],
by proceedings that were essentially ex parte as to
[crew members on voyages undertaken while the vessel
is in custodia legis], to put the ship on the high seas on
whatever terms it might choose, as a sort of floating
credit card payable to the bearer....

Id., quoting Northwest Marine v. United States, 307 F.2d 541 (9th cir. 1962).

Notwithstanding the stipulated order that the Conquistador shall be "deemed" in custodia legis [11ASR2d10] during the present receivership, it is unclear whether ---with respect to those who were not parties to the stipulation and had no notice of it ---the facts and circumstances of this receivership are such as to render the vessel within or without the Court's custody. Unlike the vessel at issue in Grav, Cary, Ames & Frye, which embarked on a single fishing expedition with the express and specific approval of the Court, the Conquistador appears to have been allowed to "ply the seas in her usual custom." Id., 6 A.S.R.2d at 73. We note also that the stipulated receivership order, while providing that the vessel should be "deemed" in custodia legis, nevertheless purported not to "create any ranking or priority of any liens against the Vessel... other than that... which would exist but for the provisions of this stipulation and order." This provision would arguably preserve the rights of those who, in the absence of the stipulation that the vessel be deemed in the constructive possession of the Court, would have obtained liens on the vessel during the period of receivership.

Assuming the status of the Conquistador to be such that maritime liens may arise in favor of, crewmen, suppliers, and others during the receivership, and assuming further that some or all of these liens would be superior to those of the proposed lender, it is not clear that the Court has the power to alter the rank or priority of such liens by approving an ex parte stipulation to which the lienholders were not parties. On the contrary assumption ---that no valid liens could arise during the receivership, or that any liens that did arise would be subordinate to that of the proposed lender no Court order is necessary to effectuate the stipulated priority. Nor is it altogether clear, assuming the vessel to be in custodia legis so that no lien can be created by operation of law, that a Court order purporting to create or recognize a lien on behalf of the proposed lender would have the desired legal effect.

While the Court feels compelled to notice the existence of these questions, it would not be appropriate to resolve them without benefit of any briefing and argument the parties might wish to offer. Accordingly, the stipulation is approved on the following conditions: [11ASR2d]

1) Insofar as Court approval is necessary for the loan from Farm credit Services to the receiver, such approval is granted.

2) Insofar as the Court's permission is necessary to allow the loan and accompanying mortgage to give rise to a lien against the vessel, such permission is granted.

3) Insofar as the rights of the parties to the stipulation are concerned, the loan and accompanying mortgage shall give rise to a lien that shall be subordinate and secondary only to the preferred ship's mortgage held by plaintiff. (In the event it should be held that this Court has no power to create or recognize such a lien, then the parties to the stipulation should be understood as stipulating that any rights they may have in or against the vessel, its fixtures, its proceeds, or its cargo (with the single exception of plaintiff's rights arising from its preferred ship mortgage) shall be subordinate to the contractual right of Farm Credit Services arising from this loan; and the Court approves this stipulation and incorporates it into its order).

4) The Court expresses no opinion on whether maritime liens can be created during the receivership with or without the permission of the Court .

5) The Court neither expresses any opinion on the rights of any person who is not a party to the stipulation nor purports to alter the rights any such person would have in the absence of this order.

It is so ordered.

*********

In re a Minor Child (Juv. No. 55-87),


In the Matter of A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 55-87

June 12, 1989

__________

Termination of rights and obligations of natural parents who were in their thirties, and legal adoption of the children by their great- aunt, a 68-year-old widow who was not the primary provider of financial support for her household, was not in the best interest of the children.

Untruthful testimony by petitioner in proceeding for termination of parental rights cast into doubt her testimony concerning her inability to give the natural parents actual notice of the proceeding and their earlier willingness to let their child be raised by her.

Before REES, Associate Justice, OLO, Associate Justice, and AFUOLA, Associate Justice.

Counsel: For Petitioner, Togiola T.A. Tulafono

This is a petition for the termination of parental rights. The natural father of the child lives in Savai'i and the natural mother is believed to be in California. Both were served by publication and there is no evidence that either had actual notice of this proceeding.

We are not convinced that the termination of parental rights would be in the best interest of the child. The petitioner, who is the child's great-aunt, is almost 68 years old and is a widow. Financial support for the petitioner's household is primarily provided by a grown daughter and her husband. The child's natural parents are in their thirties. Moreover, it appears that on several matters the petitioner was not truthful in her [11ASR2d108] testimony before the Court. This casts into doubt the petitioner's testimony concerning her current inability to contact the natural parents and their earlier willingness to let the child be raised by petitioner. On the present record we cannot say that the proposed change in the child's status would be of any particular benefit to the child .

The petition is denied .

*********

Godinet v. Godinet,


NANCY KATHRYN GODINET,
Petitioner

v.

LAHEY VINCENT GODINET,
Respondent

High Court of American Samoa
Trial Division

FJ No. 1-88

June 30, 1989

__________

Although court may have in personam jurisdiction to order a party to convey to another party a deed to property in another state, it cannot directly affect or determine title to that real property.

Since Oregon court had no jurisdiction to transfer title to land in American Samoa, judgment attempting to do so was entitled to full faith and credit only if the question of jurisdiction had been fully and fairly litigated in the court which rendered the original judgment. [11ASR2d157]

Court may modify a foreign alimony judgment, at least with respect to those portions of the judgment that have already come due, notwithstanding the entitlement of the foreign judgment to full faith and credit.

Before REES, Associate Justice, VAIVAO, Associate Judge, and MATA'UTIA , Associate Judge

Counsel: For Petitioner, William Reardon
For Respondent, Charles Ala'ilima

We took under advisement petitioner's motion to execute that portion of the Oregon divorce judgment purporting to transfer ownership of an interest in real property located in Pago Pago, American Samoa, from respondent Lahey Godinet to petitioner Nancy Godinet.

We conclude that the Oregon court was without jurisdiction to issue such an order. "It is well settled that although a court may have in personam jurisdiction to order one of the parties to convey to the other party a deed to property in another state, it cannot directly affect or determine title to that real property." Perry v. O'Donnell, 749 F.2d 1346 (9th Cir. 1984); see Fall v. Eastin, 215 U.S. 1 (1909). Since there was no jurisdiction to transfer title to the Pago Pago land, this part of the judgment was not entitled to full faith and credit unless it is shown that the question of jurisdiction was fully and fairly litigated in the court which rendered the original judgment. Durfee v. Duke, 375 U.S. 106 (1963). Pending a showing of such full and fair litigation presumably including a showing that the Oregon court was made aware of the possibility that a transfer of land in American Samoa to Mrs. Godinet would deny full faith and credit to the American Samoa statutes regarding land ownership by non-Samoans we decline to enforce this part of the judgment. (1) [11ASR2d158]

The Oregon judgment did not order Mr. Godinet to execute a deed. Nor does it appear whether the Court had acquired jurisdiction over the person of Mr. Godinet (as opposed to in rem jurisdiction over the marriage status) so as to give it jurisdiction to issue such an order.

Accordingly, the motion for an order in aid of judgment is denied insofar as it requests an order to transfer the Pago Pago land to Mrs. Godinet .

*********

1. In the course of our research we have also come across authority for the proposition, contrary to our ruling in an earlier stage of this proceeding, that a court may modify a foreign alimony judgment (at least with respect to those portions of the judgment that have not yet become due) notwithstanding the entitlement of the judgment to full faith and credit. See, e.g., Paolino v. Paolino, 420 A.2d 830 (R.I. 1980); Overman v. Overman, 514 S.W.2d 625 (Mo. App. 1974). In an earlier hearing we concluded that Mr. Godinet's current circumstances did not make it possible to pay the full amount ordered by the Oregon judgment, but denied reduction on the ground that full faith and credit precluded it. We do not propose to modify this judgment on our own motion, but do feel that we should call the contrary authority to the attention of counsel.

Gi v. Temu,


GI M. MALALA for himself and on behalf
of the GI FAMILY of Pago Pago, Plaintiff

v.

LEAIA TEMU and SOLEMA TEMU,Defendants

High Court of American Samoa

Land and Titles Division

LT No. 22-88

June 27 ,1989

__________

Unilateral and secret attempt by matai to give his daughter sole authority over family land to the exclusion of his successors in [11ASR2d138] matai title would be inconsistent with Samoan tradition and contrary to territorial statutes regulating alienation of family land. A.S.C.A. §§ 37.0201 et seq.

Matai should ordinarily consult with family, including especially those family members directly affected, before taking land assigned to a family member in order to us~ the land for some other family purpose.

Matai cannot seize on minor disagreements as a pretext for expulsion of family members who have rendered long and loyal service.

Despite exceptions, the general rule is that senior matai has the authority to make decisions about family land.

Ordinarily an assignment of land by the matai to a family member is for the latter's lifetime, and it cannot be revoked and the family member deprived of its possession except for good cause. Courts will not interfere with decisions of senior matai regarding family land unless they are arbitrary, capricious, illegal, or abusive of discretion.

Where matai attempted to solve a dispute between two groups of people living on his family land, there was no evidence that he was motivated other than by a desire to preserve peace within the family, and defendants responded by ignoring and disobeying his directives, threatening him with a knife, and inviting people with guns onto the land, court could not say that matai acted without good cause in ordering defendants to leave the land or that the order was illegal, arbitrary, capricious, or abusive of discretion.

Obligation of senior matai to discuss family decisions with family members cannot be reduced to a formula.

Although persons living with a family who are not blood members cannot always be expelled at the whim of the senior matai, non- members do not enjoy the benefit of the strong presumption that a family member may live on family land.

Widow who signed document conveying house belonging to her late husband had no power to convey the interest of the surviving children of the deceased.

Before REES, Associate Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Edwin Gurr
For Defendants, Asaua Fuimaono

This is an action for eviction. Plaintiff is the sa'o of the Gi family. Defendants are non- members of the Gi family who are residing in a house on Gi family land.

The house was built in 1968 by Peleifofoga Temu, a blood member of the Gi family. Pele obtained a separation agreement and a Development Bank loan for the house. The Gi title was then [11ASR2d139] vacant and the separation agreement was signed by a number of family members in lieu of a sa'o. Pele subsequently passed away and his widow, Fale Temu, lived in the house and made payments on the Development Bank loan until about 1984. After Fale had moved away the present defendants moved into the house.

Defendant Leaia Temu is the mother of the deceased Pele Temu. Leaia's daughter, defendant Solema Temu, is Pele's half sister. Although neither is a blood member of the Gi family (1) (Pele having been a member of the family through his father) they went on the land in 1985 with the support of at least some members of the family.

On November 4, 1985, a family member called Lotoa Gi Onosa'i purported to execute on behalf of the family a second separation agreement for Pele's house. This agreement was in favor of defendant Leaia. It was superfluous and probably illegal: in the first place, the Gi title was not then vacant, although the incumbent sa'o was living off island; and in any case the house, which in accordance with the earlier agreement was the personal property of Pele, had presumably passed upon his death to his surviving wife and children. See A.S.C.A. §§ 40.0103, 40.0201.

On August 20, 1986, Fale Temu signed a document purporting to convey the house to Leaia in exchange for Leaia's agreement to pay the balance of $6284.79 on the Development Bank loan. Leaia has since made a number of payments on the loan.

On August 31, 1986, the then incumbent Gi titleholder renounced his title in favor of Mae Malala. Gi Moe Malala then registered the title, apparently with the support of an overwhelming consensus of the family. There was in any case no formal objection to the registration, which became official on November 6, 1986. [11ASR2d140]

Leaia and Solema rendered service to Gi Malala and lived peacefully with the Gi family for a year or two. A difference then arose with some Gi family members who lived in a neighboring house. The difference concerned some crops that Leaia, Solema, and some of their respective children had planted in an area between their house and that of their neighbors. Gi Malala ordered Leaia and Solema to remove their crops. They refused to do so, and eventually built a small sleeping house in the disputed area. The sleeping house was occupied by teenage boys and seems to have been regarded by both sides as a sort of frontier post.

One day early in 1988 Gi went to remonstrate with Solema about the crops and the house. She went into her house and got a bush knife which she brandished at him. That night Solema and Leaia invited some Tongan friends onto the Gi property. The friends had guns, with which they spent the evening shooting fruit bats. Gi made at least one attempt to settle the dispute peacefully, calling together some older members of the family including two who had been among Leaia's closest allies in her dispute with her neighbors. Gi suggested that the only solution was to expel the two non-family members from family land; he relented, however, when a distinguished talking chief of the family got down on his knees to apologize for the conduct of Leaia and Solema. Gi then agreed that the two could remain if the house and crops were removed. This was not done.

On June 11, 1988, Gi ordered Leaia and those residing with her to vacate the house in which they were living. They ignored this demand, which eventually led to the present action. At the conclusion of the trial the Court observed that controversies such as this one are better settled within the family than in court. The Court urged defendants and those family members who took their side in the controversy to go to the sa'o and to apologize, to destroy the offending structure, and to cause no further dissension. The Court urged Gi to find it in his heart to accept such an apology. The record was left open for a period of thirty days for a report by the parties on the results of any such efforts at settlement. [11ASR2d141]

When two months had gone by wi th no word from the parties, the Court issued a memorandum to counsel requesting a report on efforts at settlement. Counsel for plaintiff filed a letter from his client, the sa'o, to the effect that the sleeping house had been removed but that there had been no apology and that defendants had continued their quarrel with the neighboring family members and even cleared new areas within the disputed land. Counsel for defendant has filed no response to the Court's memorandum.

Without making any finding with regard to the truth of the allegations in the report filed by Gi, we conclude that there has been no settlement and that the Court must render its decision.

Defendants advance two principal arguments against Gi's right to evict them. First, they suggest that the land may not belong to Gi at all. Lotoa Gi Onosa'i testified that the land really belonged to another family; that her late father, Gi Onosa'i, effectively appropriated the land for the Gi family; and that before he died he conveyed sole authority over the land to her. This argument is inconsistent not only with the testimony of every other witness, but also with Lotoa's own affirmation in the 1968 and 1985 separation agreements that the land belonged to the Gi family. A unilateral and apparently secret attempt by Gi Onosa'i to give his daughter sole authority over family land to the exclusion of his successors in the Gi title would seem to have been inconsistent with Samoan tradition, and would certainly have been contrary to the statutory law of American Samoa with regard to alienation of family land. See A.S.C.A. §§ 37.0201 et seq. The idea seems to have been an afterthought by Lotoa, whose testimony makes it clear that she regards herself rather than Gi Malala as the principal authority in the family. She is wrong on both counts .

The defendants also contend that Gi cannot expel them from family land without further consultation within the family, and that such consultation must include consultation with themselves personally. We reject this contention.

It is true that a matai should ordinarily consult with the family, including especially those family members directly affected, before taking land assigned to a family member in order to use [11ASR2d142] the land for some other family purpose. Talili v. Satele, 4 A.S.R.2d 23 (1987); cf. Fairholt v. Aulava, 1 A.S.R.2d 73 (1983). Nor can a matai seize on minor disagreements as a pretext for the expulsion of family members who have otherwise rendered long and loyal service. Tago v. Faleulu, 3 A.S.R. 370 (1958). But these exceptions prove the general rule that a sa'o nas the authority to make decisions about family land. "Ordinarily an assignment of land....by the matai to a family member is for the latter's lifetime, and it cannot be revoked and the family member deprived of its possession, except for good cause." Taesali v. Samuela, 3 A.S.R. 359,361(1958) (emphasis added). "[W]ith respect to the termination of occupancy rights only the matai would have this power." Malaaa v. Alaqa, 4 A.S.R. 735, 738 (1966). Courts will not interfere with the decisions of a sa'o unless they are arbitrary, capricious, illegal, or abusive of discretion. See Fairholt, supra.

In the present case Gi attempted to solve a dispute between two groups of people living on his land. There is no evidence that he was motivated other than by a desire to perform his principal duty as the sa'o, the preservation of peace within the family. The defendants responded by ignoring and disobeying his legitimate directives, threatening him with a knife, and sponsoring a shooting party. Under the circumstances we cannot say that the order of expulsion was without good cause, illegal, arbitrary, capricious, or abusive of discretion.

Our conclusion is bolstered by the evidence that Gi did consult with a number of family members on at least one occasion. Contrary to defendants' suggestion, the obligation of a sa'o to discuss family decisions with family members cannot be reduced to a formula. See Tiumalu v. Scanlan, 4 A.S.R. 194 (1961); Haleck v. Tiumalu, 3 A.S.R. 380 (1959). In this case the sa'o acted reasonably.

Finally, we note that the defendants are not blood members of the family. Although we decline to hold that persons living within a family who are not blood members can always be expelled at the whim of the sa'o, it is axiomatic that non-members do not enjoy the benefit of the strong presumption that a family member may live on family land. [11ASR2d143]

"[U]nder Samoan customs (faa-samoa) ... communal
family land is owned by the Samoan family as such
and each member of the family has a right to the use
of a portion of the family land. I' This right to use
family land has also been held to be a proprietary right
within the due process clause....[A] family member
has such a proprietary right to use family land whereas
[ a non-family member) by definition has no such right.

Lutu v. Taesaliali'i, LT No. 20-88, 11 A.S.R.86, 94 (1989), quoting Tuanaitau v. Paogofie, 4 A.S.R. 375, 381 (1963). See also, e.g., Maaeo v. Viena, 1 A.S.R.2d 83 (1983); Fa'amuli v. Leiato, 3 A.S.R. 308 (1957); Lam Yuen v. Leomiti, LT 3-87. The behavior of the present defendants would have constituted good cause for the expulsion of a family member; a fortiori, it was sufficient to justify Gi's decision to expel these two non-family members.

The situation is complicated, however, by the separate ownership of the house. Ssince Fale Temu had no power to convey any interest owned by the surviving children of Pele, it would appear that the house now belongs partly to these children and partly to Leaia. The children of Pele, who are Gi family members and who have not been shown to have done anything meriting expulsion from family land, have the right to live in the house so long as they render service to Gi and respect his authority. Leaia may have a right to compensation from the children of Pele for her interest in the house. If no children of Pele wish to occupy the house--- and assuming that it is still not possible for the parties to reach a settlement whereby the defendants sincerely apologize to Gi and Gi agrees to let the defendants live in the house so long as they respect this authority ---the best solution might be for the Gi family to purchase the house from its owners. Since no children of Pele are parties to this action, however, these questions do not presently admit of judicial resolution.

Judgment will issue for the plaintiff ordering eviction of the defendants from the land Utumoa and enjoining them from entering upon the land. Execution of the judgment will be stayed for thirty days. Unless plaintiff agrees otherwise, defendants must vacate the land by July 27, 1989. [11ASR2d144]

It is so ordered.

*********

1. [At a hearing held August 22, 1989, on defendants' motion for relief from the judgment under T.C.R.C.P. Rule 60(b), the Court held that this finding of fact was partly incorrect. Defendant Solema Temu is a blood member of the Gi family. The Court denied the motion for relief from judgement on other grounds and did not reverse those parts of this opinion which apply to expulsion of family members from family land. See Gi v. Temu, 12 A.S.R.2d__ , LT No.22-88, Opinion and Order on Motion for Relief From Judgment, issued August 24, 1989.]

American Samoa Gov’t ; Ah Mai v.


VAl AH MAI aka IVA AH MAl, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT and 
LBJ TROPICAL MEDICAL CENTER, Defendants

High Court of American Samoa 
Trial Division

CA No. 71-88

June 22, 1989

__________

Motion for summary judgment based on a statement of facts going beyond the factual allegations of the complaint and unsupported by affidavit should be summarily denied. [11ASR2d134]

The main question in a motion for summary judgment is whether any triable issue of fact remains.

On motion for summary judgment, facts asserted by the non-moving party are presumed to be true and the Court may draw such inferences from the non-moving party as are most favorable to that party.

On motion for summary judgment, where there was some evidence of plaintiff's discovery of her injury and its cause more than one year before she brought action, but other evidence tended to show that plaintiff might have been convinced by defendants' agents that she had not been injured, a triable question of fact remained with respect to whether the action was barred by one-year statute of limitations.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, TUIAFONO, Associate Judge. Counsel: For Plaintiff, Charles v. Ala'ilima 
For Defendants, Robert A. Dennison III

This matter involves a claim for damages alleging medical malpractice. The government earlier moved for summary judgment on the ground that the claim was barred by the applicable statute of limitations ---the Government Tort Liability Act, A.S.C.A. § 43.1204. (1) This motion was summarily denied as it was largely based on a statement of facts which went beyond the factual allegations in the complaint and was unsupported by affidavit. After recently taking plaintiff's deposition, the government again moves for summary judgment on the same grounds ---that plaintiff did not begin her action within two years of the accrual of her claim and it is therefore time barred.

The main question for our determination then is whether it is beyond dispute (no triable issue of fact remains) that plaintiff's claim accrued more than two years before she filed her action. The relevant facts for these purposes are as follows: Plaintiff, in order to avoid future pregnancies, underwent a sterilization procedure (bilateral tubal ligation) at the LBJ Tropical Medical Center (hereafter referred to as "hospital") in November 1984. Notwithstanding, plaintiff realized that she was pregnant around April 1985. She was assured by her physician at the hospital that the pregnancy was a rare occurrence which would not be repeated [11ASR2d135] again. Additionally a number of gynecologists who attended her during pre-natal visits expressed surprise at her having become pregnant. She gave birth in October 1985.

Plaintiff became pregnant yet again and this time after giving birth in July 1987, she went through another tubal ligation operation. There she was actually told that one of her fallopian tubes had not been successfully tied at the first operation. On November 27, 1987, pursuant to the provisions of the Government Tort Liability Act, plaintiff filed an administrative claim with the Attorney General's Office alleging malpractice. without any administrative action taken one way or the other, plaintiff was entitled under A.S.C.A. § 43.1205 to treat the claim as having been finally denied, and she then filed suit on August 1, 1988.

At her recent deposition, plaintiff testified that after the birth of her first post-operative child, she began using birth control pills at the suggestion of a nurse she knew at the family planning clinic at the hospital. She stopped taking these after a month because of side effects. She also mentioned that a physician (who had a lot of negative things to say about the hospital) had told her in April 1985 that her first tubal ligation operation was probably not done correctly.

The government argues that plaintiff's claim had accrued within the meaning of A.S.C.A. § 43.1204 at least since November 1985, if not earlier, and that therefore, her claim filed in August 1988 was effectively barred. In support of its contention, the government cites U.S. v. Kubric, 444 U.S. 111 (1979), a decision of the Supreme Court involving the interpretation of the federal counterpart statute of limitations as contained in the Federal Torts Claims Act (28 U.S.C § 2401(b)). Under Kubric, a cause of action for malpractice accrues when the plaintiff knows of his injury and the cause of his injury. Thus "armed with the facts about the harm done to him [a plaintiff] can protect himself by seeking advice in the medical and legal community." Id., 444 U.S. at 123. There is no need for the plaintiff to be aware that the cause of injury may have been negligent conduct. Kubric has been interpreted as containing a due diligence component; a plaintiff's claim may also accrue if he reasonably should have known of his injury and its cause. Harrison v. [11ASR2d136] U.S. 708 F.2d 1023 (5th cir. 1983). Thus, once the plaintiff learns or reasonably should have learned of the injury and its cause he must inquire about the treatment he received and decide whether to file suit within the applicable time period.

On the other hand, plaintiff refers us to the accrual rule developed by some states which in addition to the Kubric elements requires discovery by the plaintiff of negligent conduct or "the causal connection between the violation of the duty and the damage." Jacoby v. Kaiser Foundation Hospital, 622 P2d 613, 616 (1981 Haw. App.). (2) Plaintiff argues she could not have discovered negligent conduct until July 1987.

Whatever the rule, it is well settled that summary judgment may only be granted if the facts are beyond dispute and the movant is entitled to judgment as a matter of law. For purposes of such a motion by defendant, the facts asserted by plaintiff, supported by affidavits or other evidentiary material, are presumed to be true and the Court may draw such inferences from the evidence as are most favorable to plaintiff. Even if we apply the Kubric rule (which is a more favorable standard for the defendant), defendant has not shown that it is entitled to judgment as a matter of law. In reviewing plaintiff's affidavit on file and the transcript of her deposition, we are unable on the extent of the record before us to conclude without doubt that plaintiff had knowledge of injury and what caused that injury. The facts that she became pregnant after the first operation; that she took birth control pills for a month at the suggestion of a family health clinic nurse with whom she was familiar; and that some doctor disgruntled with the hospital had told her that her first operation was probably done wrongly are persuasive, and if that was the only extent of the record before us, then summary judgment might well be appropriate. But our record says more. It also suggests that plaintiff was informed prior to the first operation that there was a slim chance that she could get pregnant again. Deposition Transcript p. 9. The record further suggests that subsequent to getting pregnant, she was turned away by the hospital when she requested a pregnancy test. Deposition Transcript p. 15. Also a number [11ASR2d137] of the hospital's physicians attending plaintiff, after her pregnancy was confirmed, expressed to her their surprise and reaffirmed in her mind the extreme chance of a repeated pregnancy. Deposition Transcript p. 19. Indeed, plaintiff did testify that she believed she could only get pregnant one time. Deposition Transcript p. 28. Here she in effect; reaffirmed her earlier affidavit filed with the Court on October 3, 1988, and thus indicated her unawareness of the cause of her injury --that the surgery was not successful.

In right of all the evidence and with the inferences drawn in favor of plaintiff, there is a possibility that, at all relevant times, she had no reason to be aware or even to suspect that her unexpected pregnancy was related to a faulty operation. Thus, issues of fact remain as to whether plaintiff had actual knowledge of her injury and its cause at a time more than two years prior to the filing of her claim. At the same time, the government has suggested .that plaintiff as a reasonably prudent person should have been aware of her injury and its cause at a time beyond the limitations bar. In order to address such an argument here, the Court would need to become involved with an assessment of the evidence as well as plaintiff's credibility. Such an assessment is inappropriate on a motion for summary judgment. We conclude that there are triable issues of fact and, therefore, deny the motion for summary judgment.

It is so Ordered.

*********

1. This enactment provides that "[a] tort claim against the government shall be forever barred unless an action on it is begun within two years after the claim accrues."

2. This additional requirement was expressly rejected in Kubric.

American Samoa Power Auth.; Pene v.


STEVEN H. WATSON, Petitioner

v.

ROSALIE T. WATSON, Respondent

High Court of American Samoa
Trial Division

DR No. 32-88

April 24, 1989

__________

Where petitioner in annulment action did not wish to present any evidence other than a copy of divorce judgment obtained by respondent against another spouse five years after her marriage to petitioner. territorial statute required court to inquire about the circumstances of the marriage whose annulment was sought. A.S.C.A. § 42.0205.

Evidence in annulment action to the effect that respondent secured a final divorce from her prior spouse several years after her marriage to petitioner did not establish that an interlocutory decree had not been granted before the marriage to petitioner, or that the prior spouse had not obtained an earlier divorce from respondent in another proceeding. or even that the prior spouse was still alive when respondent married petitioner.

One who attacks the validity of a marriage assumes the task of overcoming one of the strongest presumptions of the law.

The law presumes. absent evidence to the contrary. that an earlier marriage was dissolved by death or divorce before a later one was contracted.

Presumption that the first of two marriages was ended by death or divorce is rebuttable by testimony of both parties to the first marriage. or by a showing that (1) the absent party has been seen or heard of after the date of the second marriage; (2) the other party never filed for divorce and never was served with divorce papers prior to the second marriage; and (3) a search of the records of every jurisdiction in which either party to the former marriage has lived yields no record of any divorce.

Equitable doctrines of clean hands and estoppel will not bar annulment of bigamous marriage where party seeking annulment is apparently motivated by remorse for his offense against society's moral and legal code. but these doctrines do bar an action by a party who has merely tired of his bargain and seeks annulment as a substitute for divorce.[11ASR2d31]

Equitable bars to causes of action based on the plaintiff's own wrong are not designed only for the litigants, but also protect the courts from the appearance and substance of helping to make crime pay.

Equitable considerations in favor of granting annulment of bigamously contracted marriage despite estoppel and clean hands doctrine, including the argument that by denying annulment the court would countenance the continued perpetration of crime and that annulment might help to clarify the innocent third parties, do not appear in a case where the prior marriage has been dissolved.

Application of equitable principles of estoppel and clean hands to action for annulment of formerly bigamous marriage was bolstered by territorial statutes providing that court "may" annul any marriage that was illegally contracted, and setting forth strict rules against judgment by default, collusive the granting of judgment in favor of a guilty party. A.S.C.A. §§ 42.0203, 42.0204-11.

Neither law nor equity should aid a party who founds his cause of action on his own immoral or illegal act.

Marriage by a person who was already married was "void ab initio" and could not be ratified by cohabitation with the later spouse, but subsequent dissolution of the earlier marriage by divorce removed any impediment to the later marriage; a rule against ratification of the later marriage is therefore conceptually unnecessary.

Rule against ratification of formerly bigamous marriages by cohabitation after the dissolution of the earlier marriage is probably counterproductive as a rule of policy, since it often punishes the innocent and rewards the guilty.

Rule that would allow ratification of formerly bigamous marriages, although not of presently bigamous ones, would not be inconsistent with society's refusal to countenance bigamy or to encourage its continuation.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and VAI'VAO, Associate Judge.

Counsel: For Petitioner , William Reardon

Petitioner seeks an annulment of his marriage to respondent. He alleges that at the time of this marriage respondent had a lawful and living spouse.

I. Facts

Although respondent did not appear, the Court held an evidentiary hearing as required by A.S.C.A. § 42.0205. Petitioner presented a copy of what appears to be a final judgment of divorce in favor of respondent against one Rodney Carter. The judgment was rendered in California; although it states that jurisdiction was obtained over Carter by service of process on October 5, 1979, the judgment itself was not rendered until 1985. The [11ASR2d32] purported marriage of the present parties took place on December 6, 1980, in American Samoa.

Petitioner did not wish to present any further evidence. The Court, pursuant to the responsibility imposed by A.S.C.A. § 42.0205, inquired about the circumstances of the marriage whose annulment is now sought. Petitioner testified, in response to the Court's questions, that he had known at the time of his purported marriage to respondent that she was already legally married to Carter: and that he had lived with her as man and wife both before and after her 1985 divorce from Carter.

Asked by the Court if he wished to say anything about his state of mind during these events, the petitioner declined to do so. His attorney interposed that since the marriage is "void ab initio," petitioner is entitled to an annulment regardless of his culpability or lack thereof.

The Court then expressed its uncertainty on this point of law and asked petitioner, who is himself a licensed attorney, whether he wished to rely entirely on the argument of his counsel rather than to present evidence tending to mitigate the effect of his own prior knowledge that his marriage was bigamous. Petitioner declined to present further evidence, and the case was then taken under advisement.

The Court is therefore constrained to decide this case without a clue about what the parties had in mind when they contracted this marriage and carried it on for over seven years.

Perhaps even more important, we know very little about the california divorce action on which petitioner rests his case. The judgment submitted in evidence is a one-page form containing no findings or conclusions about the marriage between the present respondent and her former husband. The most interesting piece of information on the page, for the purpose of the present proceeding, is that petitioner filed for divorce against carter at some time before October 5, 1979 ---over a year before the purported marriage of the present parties. A final judgment did not issue, however, until about six years later. We are informed that the action was "default or uncontested," that it was heard "by [11ASR2d33] declaration" (i.e., on affidavits rather than live testimony), and that a Marital Settlement Agreement was incorporated by reference. We have no copy of this agreement; it might have been made shortly before the final judgment (in 1985) or at around the time suit was filed (in or before 1979) or when the parties separated (at some unspecified earlier time). The copy of the judgment presented to us refers to six pages of attachments, but these have not been introduced into evidence.

One important fact that we do not know is when, if ever, an interlocutory judgment was granted in the California action. prior to 1983 the law of California provided for a two-stage divorce process. After the Court had heard the case and determined that the parties were legally entitled to a dissolution of their marriage, it issued an "interlocutory" judgment. After six months either party could move for a "final" judgment, or the Court could issue such a judgment on its own motion. (1) The evidence before us, to the effect that respondent's suit against Carter was filed in 1979 and a final judgment issued in 1985, is in no way inconsistent with the issuance of an interlocutory divorce in 1979 or 1980. (2)

Nor, for that matter, is the evidence before us dispositive of the question whether Carter obtained an absolute divorce in another proceeding before December, 6, 1980. We do not even know for a fact that Carter was alive on that day. [11ASR2d34]

II. The Presumption that a Marriaae is Valid

Rarely does the law impose on a party the burden of proving that an event did not happen. One who attacks the validity of a marriage, however, assumes the task of overcoming "one of the strongest presumptions of the law." Reed v. Reed, 113 S.E.2d 539, 543 (Ga. 1947). This presumption arises

because the law presumes morality and not immorality;
marriage and not concubinage; legitimacy and not bastardy.
The presumption arises. ..by virtue of the proof of the
ceremonial marriage between the parties, and proof of
their cohabitation as man and wife....

"The presumption as to the validity of the marriage can
only be negatived by disproving every reasonable possibility...
"The invalidity of the marriage attacked must be shown by
clear , distinct, positive, and satisfactory proof.

Id. at 542-43, quoting Brown v. Parks, 160 S.E. 238, 240 (Ga. 1931). See also, e.g., Williamson v. Williamson, 101 A.2d 871 (Del. Super. 1954) ; Smith v. Smith, 185 P. 67 (Idaho 1919) (proof that former marriage had not ended "must be so cogent and conclusive as to fairly preclude any other result"); Carr v. Carr, 232 S.W.2d 488, 489 (Mo. 1950) ("The presumption of the validity of the last marriage may be repelled only by the most cogent and satisfactory evidence...."); Smith v. Smith, 131 P.2d 447 (Or. 1942); Harslev v. United States, 187 F.2d 213 (D.C. Cir. 1954) ("the re-butting evidence must be strong, distinct, satisfactory and conclusive"); Pritchard v. Purcell, DR No.65-88, 11 A.S.R.2d 16, 23 & n.7 (1989).

The presumption that the latest marriage is valid displaces any presumption of the continuation of an earlier marriage, and even the presumption of t~he continuation of the life of the first spouse. The net result is that "there is a presumption that the earlier marriage was dissolved by death or divorce before the later one was contracted." C. [11ASR2d35] McCormick, Handbook on the Law of Evidence § 312 at 254 (1954).

The best way to rebut this presumption is to have both parties to the earlier marriage present in court to testify that they were not divorced prior to the later marriage. See, e.g., United States v. Burns, 95 F. Supp. 628, 630 (E.D. Ark. 1951). It often happens, however, that at least one party to the earlier marriage is not available to testify. The presumption of death or divorce is therefore most often rebutted by competent and convincing evidence that (1) the absent party to the first marriage has been seen or heard from after the date of the second marriage; (2) the other party to that marriage never filed for divorce and never was served with divorce papers prior to the date of the second marriage; and (3) a search of the records of every jurisdiction in which either party to the former marriage has lived yields no record of any divorce. See, e.g., Smith, supra, 131 P.2d at 448; Jordan v. Copeland, 131 So.2d 696 (Ala. 1961); Teel v. Nolan Brown Motors, Inc., 93 So.2d 874 (Fla. 1957); In re Marriaqe of Sumners, 645 S.W.2d 205 (Mo. App. 1983); Marcum v. Zaring, 406 P.2d 970 (Okla. 1965); In re Pilcher's Estate, 197 P.2d 143 (Utah 1948); Parker v. American Lumber Co., 56 S.E.2d 214 (Va. 1949); Dixon v. Gardner, 302 F. Supp. 395 (E.D. Pa. 1969). See generally H. Clark, The Law of Domestic Relations in the United States § 2.7 at 69-70 (1968).

"There is agreement that testimony by one spouse that he never got a divorce, that he never received service or notice of divorce proceedings by the other spouse, and never was guilty of conduct which would be grounds for divorce is not enough to rebut the presumption." Id. at 69; see, e.g., Jordan, supra; Teel, supra; In re Pilcher's Estate, supra; Marsh v. Marsh, 250 P. 411 (Cal. App. 1926); and cases cited in H. Clark, supra, at 69 n.33. For the same reason, evidence that one party to the first marriage procured an invalid divorce, or procured a divorce at some time after the date of the second marriage, has been held insufficient; for it does not negate the possibility that the absent spouse had procured a valid divorce, with or without actual notice to the other, before the second marriage began. See Smith, supra, 185 P. at 69; Reed, supra, 43 S.E.2d at 543; Missouri Pacific R.R. v. Harris, 120 S.W.2d [11ASR2d36] 695 (Ark. 1938); Boulden v. McIntire, 21 N.E. 445 (Ind. 1889); Stokes v. Heckler, 773 F.2d 990 (8th cir. 1985); cf. Williamson v. Williamson, 101 A.2d 871 (Del. 1954). Although a later divorce has occasionally been found sufficient to rebut the presumption of an earlier one, in such cases the courts have had evidence of the other party's whereabouts and activities which was apparently found sufficient to support an inference that he or she did not obtain a valid divorce prior to the second marriage. See Fowler v. Fowler, 79 A.2d 24 (N.H. 1951); Cartwright v. McGown, 12 N.E. 737 (Ill. 1887).

In this case the record tells us next to nothing about the absent carter, and precious little about the present petitioner and respondent. We do not know when Carter and the respondent were married or when they were separated. The latter event could have happened just before the divorce was filed in 1979, or it could have happened ten years earlier. We do not know where carter and respondent lived during the marriage or where either of them went after the separation .

We can infer from the divorce judgment only that one or the other of them was domiciled in California in 1979. We also know that the respondent was married in American Samoa late in 1980. carter and the respondent mayor may not have known how to get in touch with each other during the years after their separation. Our record does not reflect whether Carter had actual notice of the divorce proceedings or whether he was served in absentia by publication.

We can reasonably assume that the respondent did not procure a divorce before 1985, for it would make no sense for her to divorce carter twice. We will even infer, from the fact that respondent went to the trouble of getting a divorce and that the California court granted her one, that respondent and Carter were at one time legally married. (3) We also infer from respondent's actions in filing the suit and bringing it to judgment that she had no [11ASR2d37] notice of any prior divorce action brought against her by Carter. This is clearly insufficient, however, to establish that no such action was ever brought. See, e.g., Reed, supra; H. Clark, supra, § 2.7 at 169 n.33, and authorities cited therein.

We can conclude nothing further from the California divorce judgment. We are bound to give the judgment full faith and credit, but only insofar as it actually or necessarily resolved questions now before us. In her divorce action petitioner had only to prove the fact of her marriage, the domicile of one of the parties in California, and that either "irreconcilable differences" or "incurable insanity" had transpired. See Calif. Civil Code §§ 4506. Such proof would not have been inconsistent with the parties' long having lost contact with each other.

In the California proceeding, unlike this one, there was no affirmative duty to disprove a prior divorce or to prove that Carter was still alive. In that action the law presumed the continuation of life and of marriage; in this action it strongly presumes the opposite. From the fact that a divorce was granted, without any evidence of the findings or conclusions on which it was based, we can conclude only that neither a prior death nor a prior divorce affirmatively appeared on the record. Neither do they appear on the present record; but the petitioner has the burden of affirmatively disproving them, and cannot do so on the strength of a judgment that did not depend on their being affirmatively disproved. See Williamson, supra, 101 A.2d at 873, and authorities cited therein.

Nor, finally, does the fact that Carter was served with process in October of 1979 establish that he was alive in December of 1980. See, e.g., In re Marriaae of Sumners, supra, 645 S.W.2d at 208-09 (appearance in court by spouse did not prove that she was alive three months later). Indeed, since we are not told whether Carter was served in person or by publication, we cannot even say whether he was alive in 1979. Petitioner had the burden of proving by "the most cogent and satisfactory evidence" that respondent had a spouse living when she married petitioner. See, supra, 232 S.W.2d at 489. He presented no evidence to sustain this burden. [11ASR2d38]

The presumption that the latest marriage is valid, and the rule that it can be rebutted only by conclusive proof of two universal negatives, undoubtedly results in many adjudications that seem inconsistent with the true facts as they are privately known to the parties and their acquaintances. If we had only to determine what probably happened, we might well conclude even on the scant evidence before us that Carter was probably alive in 1980, as were the great majority of people against whom divorce actions were filed in 1979. We would also feel comfortable concluding that, a man whose wife divorced him in 1985 had probably not divorced the same wife prior to 1980.

Inferences and probabilities, however, are not always enough. The law frequently allows people to be acquitted who were probably guilty; insurance Coli\panies deny policies to people who are probably healthy; most people refrain from sky diving although they would probably not be injured thereby. In each case the consequences of a wrong decision are regarded as unacceptable, and the likely benefit from reliance on the probable facts as relatively slight. In the settled judgment of the vast majority of courts that have faced the question, even a slight risk of an incorrect adjudication of bigamy is not justified by whatever benefits may be derived from an accurate diagnosis of that condition. See H. Clark, supra, § 2.7; C. McCormick, supra, § 312 at 654 & n.6; Annot., 14 A.L.R.2d 7, 11-14, and cases cited therein.

Indeed, the decisions give the impression that the courts are more than willing to tolerate a certain amount of bigamy so long as the law can avoid acknowledging and thereby validating it. "This is another instance of the law's treating the de facto assumption of the marital status as paramount to compliance with legal forms." H. Clark, supra, § 2.7 at 69. It is fair to ask whether a less delicate approach ---finding bigamy as a fact whenever the evidence so preponderates, and relying exclusively on the doctrines of equity to mitigate harsh or absurd consequences ---might not be preferable. See Part III, infra. No decision to depart from the great weight of persuasive authority, however, should be made in a case in which the proofs and the equities are as weak as they are here. We find that petitioner did not. carry his burden of proving affirmatively and [11ASR2d39] conclusively that respondent had a living and lawful spouse on December 6, 1980.

III. Equitable Barriers to Relief

If petitioner had proven that his marriage was bigamous from 1980 until 1985, his knowledge of such bigamy from its outset would raise serious questions about his right to an annulment .

Many courts, while holding that a bigamous marriage is "void ab initio" and cannot be ratified by the parties even after the dissolution of the earlier marriage, nevertheless refuse to grant annulment to a party who knowingly contracted such a marriage.

Such relief is sometimes denied on the ground that a party, having contracted a marriage with full knowledge of the facts constituting the impediment, is estopped to deny the validity of the marriage. See In re Marriaqe of Recknor, 187 Cal. Rptr. 887 (Cal. App. 1982); In re Marriage of Stunners, supra. Cf. Higgins v. Higgins, 588 S.W.2d 454 (Ark. 1979); Gress v. Gress, 209 S.W.2d 1003 (Tex. App. 1948).

In cases where a marriage was bigamous because of the invalidity of a prior divorce, courts have held that a party to the earlier divorce ---or one who married a party to the divorce despite knowledge of its invalidity ---is estopped to deny its validity. Such a person is therefore estopped to assert the bigamy of the later marriage. See , e.g., Sears v. Sears, 293 F.2d 884 (D.C. Cir. 1961); Schotte v. Schotte, 21 Cal. Rptr. 220 (Cal. App. 1962); McIntYt:e v. McIntYt:e, 191 S.E. 507 (N.C. 1937); Kazin v. Kazin, 405 A.2d 360 (N.J. 1979).

The Supreme Court of california has specifically applied the estoppel to deny divorce decrees to a California interlocutory judgment, which "at least gives color as a judicial determination of divorce." Spellens v. Spellens, 317 P.2d 613 (Cal. 1957). Since even a slight presumption in favor of the validity of marriage would lead to us to conclude on the present record that respondent had obtained an interlocutory decree in her uncontested 1979 divorce action prior to December of 1980, this estoppel would defeat the present action even in [11ASR2d40] the absence of more fundamental obstacles. See notes 1-2, supra, and accompanying text.

Most often, however, the denial of an annulment to one who was a knowing participant in bigamy is by reference to "unclean hands" or pari delicto. A court should not "aid a man who founds his cause of action on his own immoral or illegal act." Otte v. Pierce, 194 P.2d 331, 334 (Colo. 1948), quoting Potter v. Swinehart, 184 P.2d 149, 151-52 (Colo. 1947).

Where the contract or transaction in question is illegal,
fraudulent, or immoral, and there is mutual misconduct
of the parties with respect thereto, neither law nor equity
will aid either to enforce, revoke, or rescind. To such
disputes the courts will not listen, and the parties thereto
they will leave in the exact position in which they have
placed themselves.

Otte, supra, at 334, quoting Baker v. Couch, 221 P. 1089, 1090 (Colo. 1923). See also Higgins v. Higgins, 146 So.2d 122, 123 (Fla. App. 1962) (annulment available "only to an innocent party"); Tyll v. Keller, 120 A. 6, 7 (N.J. 1923) (husband with prior knowledge of wife's bigamy who "afterward tired of his bargain" barred from relief); Hansen v. Fredo, 303 A.2d 333 (N.J. Super. 1973) (In uncontested annulment case "a court of equity, as a court of conscience, should sua sponte raise" unclean hands defense.). Cf. Halker v. Halker, 285 N.W.2d 745 (Wis. 1979); Belcher v. Belcher, 88 N.E.2d 344 (Mass. 1949).

Many cases have refused to apply estoppel and unclean hands to suits for annulment based on bigamy. See, e.g., Simmons v. Simmons, 19 F.2d 690 (D.C. Cir. 1927); Johnson v. Johnson, 16 So.2d 401 (Ala. 1944); Townsend v. Morgan, 63 A.2d 743 (Md. 1949); Kiesenbeck v. Kiesenbeck, 26 P.2d 58 (Or. 1933). The usual justification is that the social interest in condemning bigamy, and in rooting it out where it is found to exist, transcends the personal interests and transgressions of the parties. Society "refuses to countenance the continued perpetration of crime between such parties in violation of law and good morals." Simmons, supra, 19 F.2d at 691. [11ASR2d41]

When a party files a suit for annulment of his marriage,
he is deemed as coming into court repenting of his
wrongdoing and asking the court to correct his wrongful
act as far as possible, in order to prevent any injurious
consequences which might be cast thereby in the future
upon innocent persons and upon the State .

Townsend, supra, 63 A.2d at 746.

Careful application of equitable doctrines such as estoppel and clean hands, however, may well complement rather than defeat society's interest in opposing and deterring bigamy. If this Court should come across a plaintiff whose suit was apparently motivated by remorse for his offense against society's moral and legal code, equity will not bar relief. See Ramshardt v. Ballardini, 324 A.2d 69 (N.J. Ch. 1974). In general, however, annulments "have in fact become. ..substitutes for divorce." Commissioners' Note to Uniform Marriage and Divorce Act § 208. Leaving aside the occasional blackguard to whom the nullity and consequent easy terminability of bigamous marriages are a positive attraction, the typical plaintiff is someone who has "tired of his bargain." The American Samoa divorce statute requires a five-year waiting period for divorce except where one party is at fault and the other is not. A.S.C.A. § 42.0202. A special exception to the principles of equity, whose sole effect would be to allow a certain class of wrongdoers to extricate themselves from unwanted marital bargains far more easily than people who have done nothing wrong, seems an unusually bad way to show disapproval of such wrongdoing.

The straightforward application of equitable principles ---under which (1) innocent persons may treat a bigamous marriage as null, and (2) any innocent person with a cognizable interest may secure a judicial declaration to this effect, but (3) a person who deliberately brought such a marriage into being is effectively denied any rights he would not have if the marriage were valid ---would seem far more effective both as an expression of social disapproval and as a deterrent to future bigamy. "To hold otherwise protects neither the welfare nor morals of society but. .. is a flagrant invitation to others to circumvent the law, cohabit in unlawful state, and when tired [11ASR2d42] of such situation, apply to the courts for a release from the indicia of the marriage status." Spellens, supra, at 618, quoting Harlan v. Harlan, 161 P.2d 490, 494 (Cal. App. 1945.)

Equitable bars to causes of action based on the plaintiff's own wrong, moreover, are not designed only for the litigants. They also protect the courts themselves from the appearance (and sometimes from the substance) of helping to make crime pay. When people have called upon the state to declare them married, have taken oaths proclaiming themselves eligible to be married, have held themselves out as married and derived whatever social advantages are to be gained from the marital status, for the Court to make itself available to declare them unmarried without a showing that this would be convenient to anyone but themselves "would be the juridical equivalent of driving the getaway car." Pritchard, supra, 11 A.S.R.2d at 27.

The marriage now before us, moreover, is clearly not bigamous at present. If it were, there would be some force in the argument that by denying an annulment the Court would be "countenanc[ing] the continued perpetration of crime." Simmons, supra, at 691. Moreover, in a case where the prior marriage had never been dissolved it would be far more likely that an annulment of the later marriage would help to clarify the rights of innocent third parties. In some such cases, and even in some other cases, (4) the equities in favor of granting an [11ASR2d43] annulment might be even stronger than the equities against it. In the case before us, however, no such equities appear.

Our conclusion that these equitable principles should apply to actions for annulment, even in cases of alleged bigamy, is bolstered by the Territorial statutes dealing with such actions. In providing that the High Court "may" annul any marriage that was illegally contracted, A.S.C.A. § 42.0203 restates the general rule that annulment is an extraordinary remedy to which equitable principles would ordinarily apply. See generally Pritchard, supra, 11 A.S.R. at 25-27. The rest of the chapter, A.S.C.A. §§ 42.0204-11, is primarily devoted to a series of strict rules against judgment by default, collusive suits, and the granting of judgment in favor of a "guilty" party. Although some of these provisions make more sense in the context of a divorce than of an annulment, the general statutory scheme calls just as clearly for a fault-based analysis in annulment actions as in divorces. (5) This scheme reinforces the general rule that neither law nor equity should "aid a man who founds his cause of action on his own immoral or illegal act." Otte, supra, 194 P.2d at 334. [11ASR2d44]

IV. The Validity of Formerly Bigamous Marriages

Although petitioner's marriage may well have been "void ab initio," it mayor may not be void today. If respondent was already legally married when she purported to marry the petitioner, then their marriage was void and could not be ratified by any amount of cohabitation. When she procured the divorce from Carter in 1985, however, any impediment to her marriage to the petitioner would have been lifted.

In the case of most impediments to a valid marriage fraud, duress, "nonage," extreme intoxication, insanity ---voluntary cohabitation after the lifting of the impediment would amount to "ratification." The parties would then be legally I!',arried, without the need for a new ceremony. In theoretical terms, the new agreement to marry after the lifting of the impediment "relates back" to the marriage ceremony; or perhaps the ceremony "relates forward" to the time of the new agreement. In the case of bigamy, however, and in the closely related case of a marriage contracted prior to the conclusion of a statutory waiting period after a divorce, courts generally hold that no ratification is possible even after the lifting of the impediment. See, e.g., Simmons, supra; Johnson, supra; Townsend, supra; Kiesenbeck, supra.

The rule against ratification in such cases is conceptually unnecessary. Although it is frequently justified on the ground that ratification can occur only where a marriage is "voidable" rather than "absolutely void," this argument is circular: the words bring no substantive content to the analysis, but exist primarily as terms by which to classify marriages that can and cannot be ratified. To say that a bigamous marriage cannot be ratified because it is "absolutely void" is to say that it cannot be ratified because it cannot be ratified.

It is sometimes said that a relationship begun while one of the parties is already married is "meretricious" and therefore cannot ripen into a valid marriage; but a relationship to which one party's formal consent was obtained at gunpoint can also be fairly described as meretricious, and yet this can be ratified with no need for a new ceremony. Although the rule against ratification of formerly bigamous marriages is usually stated as [11ASR2d45] though it were a principle of metaphysics, it is almost certainly a rule of policy "influenced by a deeply felt hostility to bigamous or other 'void' marriages." H.Clark, supra, § 3.3 at 130.

As a rule of policy it is probably counter- productive. It often punishes the innocent and rewards the guilty. Even where the rule is derived from statutory designation of certain kinds of marriages as void, "serious harm can result... of a sort Which the legislators very likely would not have sanctioned had the possibility occurred to them." Commissioners' Note to Uniform Marriage and Divorce Act § 207. And yet "[f]rom a pragmatic viewpoint, judicial invalidation... years after [the marriage ceremony]... is a less than effective sanction against an institution whose charm lies in its immediate respectability." Spellens, supra, at 619.

Courts in some jurisdictions deal with the problem of formerly bigamous marriages by holding that voluntary cohabitation after the dissolution of the prior marriage gives rise to a valid common- law marriage. See, e.g., Matthews v. Britton, 303 F.2d 408 (D.C. Cir. 1962). At least nine other states have adopted statutes recognizing that cohabitation after the lifting of the impediment, at least in some circumstances, results in a valid ceremonial marriage. See Uniform Marriage and Divorce Act § 207 (b) (adopted in Arizona, Colorado, Illinois, Minnesota, Missouri, Montana, and Washington as of February , 1985) ; Turner v. Turner , 75 N.E. 612 (Mass. 1905); Smith v. Smith, 190 N.W.2d 174 (Wl.S. 1971).

The Supreme Court of Wisconsin has ruled, relying on its powers as a court of common law rather than on the state statute, that a "void" marriage which both parties knew to be bigamous at its outset becomes "voidable" upon the dissolution of the earlier marriage that constituted the impediment. It may then be ratified and become a valid marriage. Smith v. Smith, 190 N.W.2d 174, supra. See also Halker, supra. This rule is quite similar to that provided by Uniform Marriage and Divorce Act § 207(b).

Of the various rules that have been applied to formerly bigamous marriages, the rule endorsed by the commissioners of Uniform State Laws and applied by the Wisconsin Supreme Court seems most [11ASR2d46] consistent with the principles that otherwise apply to the validity of marriages. Since the Wisconsin rule would provide for ratification only of formerly bigamous marriages, never of presently bigamous ones, it is not inconsistent with society's refusal to countenance bigamy or to encourage its continuation. In this case, however, we have no occasion to decide what rule applies in American Samoa.

V. Conclusion and Order

Petitioner did not prove that respondent had a living and lawful spouse on December 6, 1980. In any case his action for annulment would have been barred by estoppel and unclean hands. We therefore need not decide whether the marriage, if bigamous at its outset, was ratified by the cohabitation of the parties after respondent's divorce from her first husband. The relief requested must be denied and the action dismissed.

It is so ordered.

*********

1. See California Civil Code §§ 4512, 4514 (prior to 1983 amendment). The pre-1983 law also specifically provided that a final judgment could be granted nunc pro tunc so as to have retroactive effect from six months after the date of the interlocutory judgment. Id. § 4515 (prior to 1983 amendment). The main purpose of providing for retroactive divorce judgments was to allow for the validation of technically bigamous marriages that were contracted after an interlocutory divorce from a prior marriage but before the entry of a final judgment. See In re Estate of Casimir, 97 Cal. Rptr. 623 (Cal. App. 1971).

2. The interlocutory divorce judgment established "entitlement" to a dissolution, but did not render the parties free to marry. Nevertheless, the California courts would not annul a subsequent marriage contracted after the interlocutory judgment ---at least not at the suit of a party who had freely contracted the second marriage with knowledge of the facts. See Spellens v. Spellens, 317 P.2d 613 (Cal. 1957).

3. But see Williamson, supra, 101 A.2d at 873 (Capacity of parties to the first marriage ceremony to contract a valid marriage was not put at issue in their divorce action; divorce judgment therefore did not constitute evidence, in suit to annul second marriage, that first marriage was valid.).

4. For instance, if either the petitioner or the respondent had contracted yet another marriage and children had been born to this marriage, these children would have an interest in having their status clarified. See Townsend, supra, 63 A.2d at 746.
The argument of Townsend and some other cases, that every annulment case involves the status of hypothetical future children, is in our opinion insufficient to meet the arguments in favor of equitable barriers to relief. This argument assumes that because the marriage is "void ab initio" the parties are free to disregard it and to remarry even if an annulment action is barred by estoppel or unclean hands. But this is not true: an estoppel sufficient to bar an annulment should also bar the right to remarry without first obtaining a divorce. "The theory is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the... marriage was invalid." Spellens, supra, 317 P.2d at 618. See also In re Marriage of Sumners, supra; In re Marriage of Recknor, supra.
The idea that people can contract marriages and then simply disregard them if they are "void ab initio" is subject to a variety of practical and theoretical objections. Cf. Perlstein v. Perlstein, 204 A.2d 909, 911 (Conn. 1964):
Seldom, if ever, would a party to a bigamous marriage,
in the face of the presumption of its validity, feel free to
treat the marriage as a nullity without a decree of annulment.
Nor do we believe any attorney would advise such a
course of conduct.

5. Each of the seven sections after § 42.0204 either explicitly refers to annulment actions or refers back in some way to § 42.0204, which provides that either husband or wife may petition for "dissolution of a marriage contract on any ground set out in § 42.0202 and 42.0203." A.S.C.A. § 42.0203 deals exclusively with annulment.
Of special importance is § 42.0207, which states that "[c]ondonation may be presumed in all matrimonial actions by the voluntary cohabitation of the parties with the knowledge of the offense charged." (Emphasis supplied.) Although condonation had its origin in the law of divorce, the courts of at least one jurisdiction recognize it as a defense to an action for annulment. See Callaahan v. Leonard, 387 A.2d 390 (N.J. Super. 1978); Hansen v. Fredo, supra. The doctrine of condonation could be meaningfully applied to an annulment action only where, either because of a continuing impediment to the marriage or for some other reason, cohabitation with knowledge would not result in ratification. In cases where ratification is possible, such cohabitation creates a valid marriage; in cases where ratification is not possible, A.S.C.A. § 42.0207 might still raise a bar to judicial relief. Since the effects of such a bar in this case would be identical to the effects of estoppel or unclean hands, however, we need not decide whether condonation would also bar the requested relief.

American Samoa Gov’t; Hawaiian Airlines v.


HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel.
GEORGE NERU, Appellee

HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel.
AFAESE UIKIRIFI, Appellee

High Court of American Samoa
Appellate Division

AP No. 5-89
AP No. 6-89

June 19, 1989

__________

Motion for extension of time in which to file appellate briefs must be filed with proof of service on the opposing party. Appellate Court Rule 27(a).

Requests for extensions of time should be made before rather than after expiration of the time period in question. [11ASR2d117]

Where effect of an extension of time to file appellee's brief would be to deny appellant its opportunity to be heard at an impending session of the Appellate Division, the extension would not be granted.

Before REES, Associate Justice .

Counsel: For Appellant, Charles Ala'ilima
For Appellee, Tauivi Tuinei, Assistant Attorney General

On Request for Extension of Time to File Brief:

The trial court decision from which these consolidated appeals are taken was rendered on February 16, 1989. A motion for new trial was denied on March 20 and a notice of appeal filed the same day. Appellant's brief was timely filed on April 24, and appellee's brief was due on May 25.

By the May 25 deadline appellee had neither filed its brief nor moved for an extension of time to file. On June 19, 1989, almost a month after the deadline and about a month before the scheduled session of the Appellate Division, counsel for appellee (Assistant Attorney General Tauivi Tuinei, who also served as counsel at trial) requests a 45- day extension of the time for filing his overdue brief. The filing appears to be ex parte. It does not mention the fact that the brief is already overdue, and gives no explanation other than that "[a]ppellees are awaiting information from Washington, D.C. to complete their research."

The requested 45-day extension is denied for the following reasons:

1) It was not filed with proof of service on the opposing party, as is required by Appellate Court Rule 27(a).

2) Counsel offers no excuse for his failure to have moved for an extension of the deadline before rather than after it had passed.

3) It is not clear whether counsel is asking for an additional forty-five days from the original deadline or forty-five days from the date of his motion. A 45-day extension from June 19 would have the effect of depriving appellant of its right to [11ASR2d118] be heard at the upcoming July session of the Appellate Division. The next regular session after this one will probably be held late in 1990, over one and one-half years after the trial court decision in the present case. Even if the present motion had been timely filed with notice to the other party, no extension would have been granted unless it would have permitted the case to be considered at the July 1989 appellate session.

Appellate Court Rule 31(c) provides that an appellee who fails to file his brief on time will not be heard at oral argument except by permission of the appellate division. since the effect of such a sanction in the present case would fall not on counsel Tuinei nor even on his employer, but on innocent third parties to whom counsel appears to have breached a fiduciary responsibility, the Appellate Division may prefer to impose another sanction.

Accordingly, counsel Tuinei is directed to file a brief on behalf of appellees by July 9, 1989. The full Appellate Division will decide whether to accept the brief, whether to permit oral argument, and whether to impose other sanctions. If counsel wishes to supply the Court with an explanation for his failure to move ££or the extension of the deadline before it had expired, or for his failure to comply with the rule requiring certification of notice to opposing counsel, he should do so on or before July 9.

It is so ordered.

*********

Puailoa v. Estate of Lagafuaina


Judicial decision stating that a certain tract (1) was "the property of" a named party, (2) that she should have the rents during her lifetime, and (3) that she should make a will saying who she wanted to receive the rentals after her death, adjudicated the question of title to the property as between the parties to the case and their successors in interest.

A widow without children has no right to remain on communal land of her husband's family after his death.

Widow who was neither a blood member of her late husband's family nor analagous in any way to a member of the family, and whose possession was open, notorious, and clearly hostile to the competing claim of the husband's family, could acquire the land by adverse possession A.S.C.A. § 37.0120.

Territorial statute authorizing the acquisition of land by adverse possession applies to communal as well as individual land, notwithstanding the provisions of other statutes restricting the "sale, gift, exchange, or other method of disposal" of communal property. A.S.C.A. §§ 37.0120, 37.0201 et seq.

A court must find facts consistently with the evidence before it, even if such findings conflict with prior findings made by a court deciding a prior case with different parties and different evidence.

Statement in a judicial opinion that was not necessary to the holding, on a question which was neither briefed nor argued by any party to the prior case, was not binding upon the court in deciding a subsequent case.

Res judicata applies only where the parties and the subject matter of earlier case are identical to those of the case at hand. [11ASR2d55]

Collateral estoppel applies only against a party who was represented in earlier litigation; a party who wins a lawsuit is not automatically entitled to a similar judgment against people who were not parties to the earlier litigation and who are not successors in interest of anybody who was.

Stare decisis applies to questions of law and not of fact, to general propositions rather than to specific inquiries.

When more than one lawsuit arises from a single chain of events and the first lawsuit decides mixed questions of law and fact, the doctrine of stare decisis precludes relitigation only by parties who have already litigated the questions or who had a fair chance to do so in the first lawsuit.

Trial court decision whose application to persons who were not parties had been reversed by appellate court as a denial of due process should not be mechanically imposed upon such persons in subsequent litigation brought against them by the original plaintiff.

Where land claimant waited fifty-two years, before attempting to evict those upon the land, and innocent third parties bought land, built homes, and raised families on the land, the doctrine of laches would apply to limit any recovery, and good faith improvers would have a right to compensation upon eviction.

Before REES, Associate Justice, OLO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants Lagafuaina, Payes, and Sewell, Albert Mailo
For Defendants Gebauer, Ho Ching, Marcus, Puletasi, and Steffany, Edwin Gurr
For Defendant Langkilde, William Reardon
For Defendant Beaver, Aviata F. Fa'alevao

This case concerns about sixty acres of a tract called Malaeimi near the village of Faleniu.

I. Facts

Malaeimi has had an eventful legal history during the hundred years that there have been courts in Samoa. Indeed, the facts of this case consist largely of the results of various legal proceedings.

1) In 1895 an entity called W. McArthur & Co. attempted to register a mortgage with the Samoan Land commission in Apia. The mortgage was given by one Sa Manoa over nine acres called "Malaeaimi," said to be in the village of Faleniu. Fanene of Nu'uuli objected, claiming to be the rightful owner of Malaeaimi. The land commission registered the [11ASR2d56] mortgage, but this decision was reversed by the Supreme Court of Samoa. The official record of the decision does not show that the Court declared anyone to be the owner of Malaeaimi or Malaeimi, but only that the claim of W. McArthur & Co. was rejected. W. MacArthur & Co. v. Fanene, Claim No. 2215, Supreme Court of Samoa (on rehearing, Dec. 19, 1895).

2) In 1905 several persons, all but one of whom appear to have been matais of the village of Pago Pago, attempted to lease the entire Malaeimi Valley and the surrounding mountainsides to the church of Jesus Christ of Latter Day saints (hereinafter the Church). The tract in question occupied a substantial portion of central Tutuila; it comprised about 905 acres extending from Faleniu to Fagasa and from Asu to Nu'uuli. Objection was made by people from all of these villages, including Puailoa Vaiuli of Nu'uuli, and the lease was not approved by the Governor.

3) In 1906 Puailoa Vaiuli executed a lease to the Church of 360 acres within Malaeimi for a term of forty years.

4) In 1908 Alo Taisi brought an action against Puailoa Vaiuli in the High Court of American Samoa, which had by then replaced the Apia tribunal as the appropriate forum for such actions. Alo was a chief of Fagasa; he claimed that he owned part of the 360 acres that had been leased to the Church, and he demanded part of the rentals. The court ruled for Puailoa. The court found that Malaeimi "ha[d] been unimproved property during the memory of any living man up to the year 1900." Alo v. Puailoa, 1 A.S.R. 194, 195 (1909). Puailoa had, however, appointed caretakers, gathered lumber for the building of houses in Faleniu, and done other acts amounting to assertion of ownership. Moreover, the court found that Puailoa had assisted Fanene in the successful resistance of McArthur's claim before the Apia court, and it was "the opinion of the Court that, were it not for the vigilance of Puailoa and Fanene in resisting the [McArthur] claim..., the entire property known as Malaeimi...would have passed out of the control of native Samoans." Id. at 196-97. Puailoa was therefore declared --the owner of Malaeimi, or more precisely of "all Malaeimi not controlled by Fanene." Id. at 195. [11ASR2d57]

5) Puailoa Vaiuli received the rents from the Church until his death in 1929. After his death the rents were paid to his widow, Salataima.

6) In or around 1931, some matais of the Puailoa family demanded from Church officials that the rents for the 360 acres be paid to them rather than to Salataima, apparently on the ground that Malaeimi had not belonged to Puailoa Vaiuli as an individual but was communal land of the Puailoa family. A Church official asked the Chief Justice of the High Court what he should do. The Chief Justice told the official to pay the rents into court pending a resolution of the dispute between Salataima and the Puailoa chiefs. Instead the Church withheld the rental payments pending a resolution of the dispute.

7) As it happened, there was at that time (1931) a case involving the Puailoa family on the court's calendar. This was a case involving the succession to the Puailoa matai title. According to the Chief Justice, he moved the case forward on the calendar, putting it ahead of many cases that had been filed earlier, so that the land dispute could be resolved in the same proceeding. Chief Justice E.P. Wood to Gov. G.S. Lincoln, 11/30/1931 (Nouata v. Pasene, LT No. 18-1930, 1978 Motion to Reopen, Puailoa Exhibit 19).

8) At the hearing of the matai title case, the Chief Justice questioned all the principal witnesses concerning whether Malaeimi was individual or communal land. Their testimony was as follows:

a) Fanene testified that the Puailoa title was a lesser title
within the Fanene grouping and held no lands, but that Puailoa
Vaiuli had owned some lands in his individual capacity.

b) Nouata, a contestant for the Puailoa title, testified that
Vaiuli had held Malaeimi not in his own right but as Puailoa
family land.

c) Salataima, the widow of Vaiuli, testified that Malaeimi
had belonged not to the Puailoa family but to her husband
personally "because if he had not been there [in Apia during the
McArthur case] the land [11ASR2d58] would have gone forever."
She testified that Vaiuli had always used the rental payments
for himself and herself, not for the expenses of the Puailoa family;
that no member of the Puailoa family had ever questioned this
practice; that Vaiuli had made a will giving her the pule over the
land; and that Vaiuli had won the land in the Apia case before
he acquired the Puailoa title.

Nouata v. Pasene, LT No. 18-1930 (Transcript of trial held June 9, 1931).

9) The Court ruled that Nouata was entitled to hold the Puailoa title. With regard to the property, the Court held that

that part of Malaeimi that is leased to the Mormon Missionaries
is the property of the widow of Puailoa and that she should have
during her lifetime the rents.

Nouta, supra (Judgment, rendered June 9, 1931) (emphasis added). The Court also made a "suggestion" to the widow Salataima:

While she is living it is suggested that she shall make a written
statement signed by two witnesses, who she wants this money
to go to after her death. It is only a suggestion but it might be
a good idea for her to give it to the Puailoa family after she dies.

Id. (emphasis added).

10) The newly-designated Puailoa Nouata, along with various other family members and chiefs of Nu'uuli, then attempted to secure a reversal of the Court's decision that Salataima was the owner of Malaeimi.

a) First Nouata went to discuss the decision with Chief
Justice Wood. As Nouata later described this encounter in a
letter to the Governor, "[t]he Judge chased me away from the
office. Nothing could be done as a decision of the case." Letter
from Puailoa et [11ASR2d59] al. to Gov. G.S. Lincoln (Nouata,
1978 Motion to Reopen, Puailoa Exhibit 6). (1)

b) Nouata and his co-signers therefore urged the Governor
himself to overrule the Court decision. Letter from Puailoa to
Lincoln, supra. Among other reasons for such an action, they
urged (1) that the Court had been without jurisdiction to dispose
of the land, since the case was a matai title case and "there was
not a case tried between Salataima and Puailoa about the Land
called Maleaimi [sic]"; (2) that the Court had been wrong on the
merits, since Puailoa Vaiuli had acquired Malaeimi for the Puailoa
family rather than in his individual capacity as Vaiuli; and (3) that
the land had been taken away as a result of a conspiracy including
Salataima, the Chief Justice, the Attorney General, and Nouata's
own counsel at trial, a chief of Nu'uuli named Soliai. Id.

c) The Governor then wrote to the Chief Justice asking for
information about the case. Lincoln to Wood, 10/21/31 (Nouata,
1978 Motion to Reopen, Puailoa Exhibit 9).

d) The Chief Justice responded with suggestions for the best
procedural means by which to arrange for a rehearing of the
property issue if the Governor wished a rehearing. Wood to
Lincoln, 10/24/31 (Nouata, 1978 Motion to Reopen, Puailoa
Exhibit 12).

e) The Governor announced, however, that there would be
no rehearing, because "the case was tried in open court and all
parties were given full opportunity to be heard. [and] appears to
me to be in accordance with the testimony." Lincoln to Soosimea
et al., 10/24/31 (Nouata, 1978 Motion to Reopen, Puailoa
Exhibit 10).

f) The matais then wrote again to the Governor, enclosing a
copy of a letter they had written to united States Senator Hiram
Bingham to complain about the decision, both [11ASR2d60]
on the merits and because they had been unfairly surprised by
the injection of the property issue into the matai title case.
Puailoa et al. to Lincoln, 11/18/31 (Nouta, 1978 Motion to
Reopen, Puailoa Exhibit 15).

g) The Governor forwarded this letter to the Chief Justice,
noting the complaint that "the property was not referred to in
the summons, and testimony as to the property not presented,
nor fully investigated." Lincoln to Wood, 11/27/31 (Nouata,
1978 Motion to Reopen, Puailoa Exhibit 18).

h) The Chief Justice responded at length, saying that Nouata
had been in a matai title case but had been advanced for trial
specifically in order to who should be paid the rents for Malaeimi;
that the decision "affected only a part of the land Malaeimi";
that no summons are issued in matai or land cases, that "[f]ull
testimony as to the ownership of the property concerning which
a decision was made in this case was taken at the trial"; and that
all of the signers of the letter protesting the decision had been
present in court and had had an opportunity to be heard. Wood to
11/30/31 (Nouata, 1978 Motion to Reopen, Puailoa Exhibit 19).

i) Finally, the Governor wrote back to Puailoa and the other
matais, quoting the Chief Justice's letter and reiterating that the
case would not be reopened. Lincoln to Puailoa et. al., 11/30/31
(Nouata, 1978 Motion to Reopen, Puailoa Exhibit 20).

11) It was clearly understood by all parties case that Salataima was not a member of the Puailoa family and that, having no children by her deceased husband, she had according to Samoan custom no right to remain on communal land of the family. See, e.g., Nouata v. Pasene, LT No. 18-1930 (Transcript of trial held June 9, 1931) (testimony of Salataima); Puailoa et al. to Wood, 11/18/1931 (Nouata, 1978 Motion to Reopen, Puailoa Exhibit 15). This fact was reiterated by Puailoa Tavete in sworn testimony in 1982: "She doesn't have any right. She does not have any connection and she doesn't have any children." Reid v. Puailoa, LT No. 41-79 (Transcript of trial held [11ASR2d61] March 5, 1982), at 341. It is also consistent with the universal understanding of Samoan custom regarding the status of widows. See Tuiteleleapaqa v. King, 8 A.S.R.2d 49, 50 (1988).

12) About a year later, in a case to which neither Salataima nor Puailoa was a party, Chief Justice Wood wrote in dictum that the part of Malaeimi "on the right side of the road is the land of the name Puailoa" and that "the rental of this land is received by Salataima, the widow of Puailoa Vaiuli"; and that the part of the land not rented to the Church "is under the pule of the Present Puailoa, Puailoa Nouata." Tu'utau v. Fanene, No. 1-1931 (Decision rendered October 13, 1932). The land at issue in Tu'utau was not the 360 acres leased to the Church, but some land on the other side of the road that was held to be the property of Fanene. During the trial various witnesses including Salataima and Puailoa Nouata had testified about whether Puailoa Vaiuli's claim to part of Malaeimi had been in his own right or on behalf of the family. Tu'utau, supra (Transcript of trial held October 7, 1932). The Court's statements about the ownership of the part of Malaeimi that had been leased to the Church, however, were obiter dicta rather than part of the holding.

13) In 1942 Salataima wrote a will reciting her ownership of the 360 acres and bequeathing the land to her brother, Lagafuaina Laisene.

14) In 1944 Salataima renewed the lease to the Church for another forty years. The lease specified that upon the death of Salataima the rents ($360 and two cows per annum) were to be paid to Lagafuaina.

15) In 1953 Salataima sold the Church 300 of the 360 leased acres. She retained the remaining sixty acres, which are the subject of the present case.

16) A few years after the sale of the 300 acres, then-Chief Justice Morrow wrote that the sale did not need to be approved by the Land commission because "it conveyed land individually owned by a Samoan" rather than communal land. In re Airport at Tafuna, CA No. 15-1959, Opinion rendered December 28, 1959, at 19. Since this case did not directly concern the land in question [11ASR2d62] (the sale to the Church being relevant only to the question of fair market value of land in the vicinity) chief Justice Morrow's characterization of Malaeimi was dictum rather than holding .

17) Salataima died in 1956, leaving to her brother Lagafuaina the sixty acres of Malaeimi that she had not sold to the Church.

18) The weight of the evidence in the present case is that the sixty acres were occupied and cultivated by Salataima and Lagafuaina, apparently by consent of the Church, even during the time it was leased. In any case it is clear that Salataima and Lagafuaina were in possession of the sixty acres from the time the other 300 acres were sold. to the Church in 1953, and that Lagafuaina and his family (together with their various lessees and vendees) remained in sole possession until about 1979.

19) Beginning in the late 1950s Lagafuaina leased and sold portions of the sixty acres. Such transactions included sales to smith Ho Ching in 1959, to LEfaga Beaver in 1963, 1968, and 1971, to Epifania Felise in 1964, to Marie Langkilde in 1968, to Hugo Gebauer in 1971, and to Tui Marcus in 1975. LEases included those to South of Pago Pago, Inc., in 1968 and 1973, to Air New Zealand Ltd. in 1968, to Burns Philp (South Sea) Co. in 1969, to John pyke in 1973, and to Mr. and Mrs. Robert Payes in 1975. Some of these transactions were recorded in the office of the Territorial Registrar, and at least two (leases to Burns Philp and to Mr. and Mrs. Robert Payes) were approved by the Land commission.

20) Lagafuaina built at least one dwelling house on the land and his granddaughter, Sola Sewell, built another. Many of the vendees and lessees also built houses and other improvements. There are at least fifteen structures on the sixty acres, including some large as well as some smaller homes, stores, a warehouse, and a private school complex that was formerly operated as a hotel. Although, in light of our conclusions regarding the law, it is unnecessary for us to place a precise value on each of these improvements, the total value of all improvements would appear to exceed a million dollars. [11ASR2d63]

21) Although the daughter and son-in-law of the current holder of the puailoa title, Puailoa Tavete, testified that the Puailoa family also used parts of the sixty acres at various times between 1953 and the present, there is no convincing evidence of such activity prior to about 1979 when siufaga Fanene, the son-in-law of Puailoa Tavete, apparently began some cultivations on parts of this land as well as on the land then in the possession of the Church. The evidence suggests that this activity was part of a strategy to recapture for the Puailoa family the land that had been lost to Salataima in 1931.

22) In 1975 Lagafuaina Laisene died. He left a will leaving, inter alia, certain land within the sixty acres to his daughter. Puailoa Tavete filed an objection, asserting that the land belonged to the Puailoa family. This was the first formal indication since 1931 (or at the latest 1932, when Puailoa Nouata testified in the Tu'utau case that all of Malaeimi belonged to the Puailoa family) that the Puailoa family claimed the sixty acres or any part of it. Counsel for the executrix asked that the objection be dismissed on the ground that Puailoa had failed to object in 1970 when Lagafuaina had registered, with the various forms of notice required by statute, a separation agreement for this portion of the land. After a hearing, the objection was "withdrawn and dismissed." In re Estate of Laaafuaina Laisene, PR No.5-75 (Order issued December 4, 1975). The Estate is still in probate, partly as a result of the pendency of the present litigation in which it is the principal defendant.

23) In 1978 Puailoa Tavete filed with the High Court a motion for a new trial in the 1931 Nouata case. In the alternative the motion asked that the forty-seven-year-old judgment be set aside. The Court denied the motion, primarilyon the grounds that (1) the Governor, who was then entitled to sit as President of the High Court, had already rejected such a motion shortly after the decision in 1931; and (2) in any case, forty-seven years was too long to wait before moving for relief from a judgment. Nouata v. Pasene, LT 18-1930 (Order Denying Motion for New Trial and for Relief from Judgment, issued February 20, 1979) .

24) The trial court judgment denying the motion for relief from the Nouata judgment was [11ASR2d64] upheld on appeal. In an opinion written by Acting Associate Justice Kennedy (now Justice Kennedy of the United states Supreme Court) the Appellate Division held that the 1931 decision was not void for want of jurisdiction:

[T]he predecessor in interest of the party making this motion
[i.e., Puailoa Nouata, predecessor of Puailoa Tavete] submitted
himself to the jurisdiction of the trial court in the 1931 litigation
and therefore had sufficient notice of the pendency of the suit.
The only way, then, that the irregularity allegedly committed by
the 1931 court in making a determination concerning the status
of the land can be grounds for finding the judgment void is if the
determination was so remote from the subject matter of the
litigation that the court could not adjudicate the two matters
simultaneously.

....

[I]t was apparently understood by all parties that the status of the
land Malaeimi, whether personally belonging to Salataima or
whether communal, was in dispute as well as who could lawfully
claim the matai title Puailoa . [T]he two matters were inextricably
intertwined, and...[Puailoa Nouata], who was apparently the party
adversely affected by any determination of the status of the land
Malaeimi, was reasonably and actually notified that the two matters
would be jointly resolved.

Nouata v. Pasene, AP No.7-79, 1 A.S.R.2d 25, 31, 32-33 (1980) .The appellate court also held that no other basis for relief from the judgment had been presented. Id. at 35.

25) After disposing of the motion, the 1980 appellate court added: "We intimate no views as to the interpretation of the 1931 decision or its bearing on the ultimate question of title, only that it is valid as to these parties [i.e., Puailoa, the Estate of Lagafuaina, the Government, and the Church]." Id. at 35. This may have been a reference to an issue that later became very [11ASR2d65] important: whether the question of who was entitled to the rentals was somehow separate from the question of who owned the land. It can also be read, however, as a caveat to the effect that the 1931 decision was binding only on the parties to the case, namely Puailoa, Salataima, and Fanene, and their successors in interest; as in most cases, the "ultimate question of title" could still be litigated by anyone who had not already had his day in court.

26) The question of who owned the 300 acres was relitigated yet again in Reid v. Puailoa, LT No.41-79. In this case the plaintiff was the Church, which alleged that in May 1979 (about three months after the denial of the Motion for New Trial in Nouata) Puailoa Tavete and members of his family had begun planting crops on portions of the 300 acres of Malaeimi belonging the Church. The decision in the case was rendered three years later, by the same trial judge (Chief Justice Miyamoto) who had denied the motion for new trial in Nouata. This time Puailoa won: the Court held that Malaeimi was the communal land of the Puailoa family, having been recognized as such in the 1909 Alo case; that it therefore could not legally have been alienated without the observance of certain statutory prerequisites; and that "the 1931 Nouata opinion only gave to Salataima the rentals from the Church lease." Reid v. Fanene & Puailoa, LT Nos. 7-79 & 41-79 (Decision and Order issued April 19, 1982).

27) The trial court decision in Reid also declared that the sixty acres which Salataima had left to her brother Lagafuaina ---the sixty acres involved in the present case-- -had always been and were still the communal property of the Puailoa family. Neither the Estate of Lagafuaina Laisene nor any of the other defendants in the present litigation, however, had been parties to the case. After the decision the Estate attempted to intervene, as a necessary party to any decision with regard to the sixty acres, but the trial court never ruled on the motion.

28) In 1983 Reid v. Puailoa was upheld on appeal. The Appellate Division treated the trial court's determination that the land was communal--including its interpretation of the 1909 and 1931 opinions ---as a finding of fact. As such, it [11ASR2d66] should be upheld if "supported by the evidence." Reid v. Puailoa, AP No. 14-82, Opinion rendered March 30, 1983, at 7. (This portion of the opinion was omitted from the reported opinion at 1 A.S.R.2d 85.) "On appeal, Appellant's burden is to show that the decision of the trial court was clearly erroneous...." Id., slip opinion at 7. Since the trial court's finding that "the language of the 1931 decision [was] ambiguous," and its consequent construction of that decision as granting only a life interest in rental payments, were not "clearly erroneous," they were upheld. Id. at 8, 10.

29) The appeals court then rejected the contention that the Church might have acquired the 300 acres by adverse possession. since the Church had acquired the land from Salataima in 1953, and since "a family member cannot adversely posess [sic] communal land, there could be no tacking and the operation of law could vest title in the less than thirty years" between 1953 and 1978. M., slip opinion at 12, 1 A.S.R.2d 85 at 88. The Court added in dictum that communal land may not in any case be acquired by adverse possession. Id. at 12 n.1, 1 A.S.R.2d at 88 n.1.

30) The Church later made a motion for relief from judgment, presenting evidence from the records of the Legislative Reference Bureau to the effect that the applicable adverse possession period was twenty years, not thirty years. The same appellate panel then held (1) that the legislature never intended to "permit Samoan land to be taken by foreign corporations by adverse possession": and (2) that in any case the record reflected "actual physical presence on the land in question [the 300 Church acres]" by the Puailoas from which "the trial court could easily have concluded that the occupancy of the Church was never exclusive, an essential element of adverse possession." Reid v. Puailoa, AP No.14-82 (Order issued December 11, 1984) at 6, 7.

31) The Appellate Division reversed that portion of the trial court decision that had purported to award to the Puailoa family the sixty acres involved in the present. case. This was because the trial court had no jurisdiction to "terminat[e] the property rights of several individuals without their knowledge and without granting them an opportunity to defend their interests." Reid, supra, 1 A.S.R.2d at 89. [11ASR2d67] "Elementary concepts of due process" dictate that "[o]ne is not bound by a judgment" resulting from litigation in which one has not had notice and an opportunity to be heard. Id. The individuals to whom this portion of the appellate decision refers ultimately became the defendants in the present case.

32) Although neither Puailoa nor any other party to Reid had attempted to bring any of the present defendants into that case, during the early 1980s some members of the Puailoa family, including Puailoa Tavete, told some of those who had purchased property from Lagafuaina that they were residing on Puailoa land. Among those who received such communications were Marcus Langkilde, Tui Marcus, and perhaps others among the defendants to the present litigation.

33) In 1983 Puailoa Tavete filed the present action. It was erroneously filed in the Trial Division rather than the Land and Titles Division; the named defendants were the Estate of Lagafuaina Laisene, the executrix of the Estate, and "Does I thru X."

34) In 1987 the action was transferred to the Land and Titles Division and the complaint was amended to name the various purchasers and lessees from Lagafuaina in place of "Does I thru X."

II. The Effect of Nouata v. Pasene

At the outset, we observe that our decision in this case is constrained by the 1931 decision in the case of Nouata v. Pasene. That decision--- alone among the various opinions that have touched in one way or another upon Malaeimi or the Puailoa family ---has the effect of res judicata in a case concerning the sixty acres presently in dispute, and having as parties the respective successors in interest of Salataima and of Puailoa Nouata.

For the reasons stated in the 1980 decision of the Appellate Division refusing to reopen the case, the Court had jurisdiction over the subject matter; although the way in which this jurisdiction was exercised was informal compared to current High Court procedures, the losing party had such notice and opportunity to be heard as afforded due process of law. See Nouata v. Pasene, AP No. 7-79, 1 A.S.R.2d 25, 31, 32-33 (1980), summarized in [11ASR2d68] paragraph 24 of Part I, supra. The 360 acres involved in Nouata clearly included the sixty acres involved in the present case, and the holding of Nouata adjudicated the rights of the Puailoa matai against Salataima. Whether or not we approve of or agree with the holding in Nouata, we are absolutely bound by it.

There remains the question what exactly the holding of Nouata was. The necessity of discussing this question at some length is occasioned more by various similar discussions that have taken place between 1931 and 1989 than by anything in the language or context of the decision itself. On its face the decision holds the 360 acres to be "the property of the widow of Puailoa." Nouata, supra (Judgment rendered June 9, 1931), discussed in paragraph 9 of Part I, supra. Unless the Court can be shown not to have meant what it said in 1931, then the successors in interest of Puailoa Nouata are forever bound ---and this Court is accordingly bound in the present case ---to treat the land presently in dispute as "the property of" Salataima and her successors. Thus there must be judgment for the defendants.

It is suggested, however, that the 1931 Nouata decision did not really adjudicate the question of who owned the 360 acres. Indeed, this suggestion formed the basis of the trial court's opinion in Reid v. Puailoa, supra. Because neither the land presently in dispute nor any of the present defendants or their ancestors in title were before the Court in Reid, the decision in that case would not appear to bind the Court in the present case. Yet even in the absence of any such binding effect (a question discussed more fully in Part IV, infra) we should carefully consider on its merits the argument that convinced the Court in Reid.

The nub of the argument is that the words appearing to adjudicate the question of ownership ("is the property of the widow of Puailoa") were modified and effectively cancelled by the words immediately following ("and that she should have during her lifetime the rents"). In the opinion of the 1982 Court, the 1931 Court was hopelessly confused:

[T]he common law legal terminology applied by a palagi
[sic: papalagi] judge in Nouata came into conflict with the
[11ASR2d69] non-Western concepts of communal land
and pule. The Nouata decision states "that that part of
Malaeimi that is leased to the Mormon Missionaries is the
property of the widow Puailoa and that she shall have during
her lifetime the rentals." On its surface this holding appears
to be confusing even the common law notions of the granting
of a fee simple interest in the land and at the same time
granting only a common law dower interest in the rents.

Reid, supra (Decision and Order issued April 19, 1982), at 11. In other words, the Chief Justice in 1931 is said to have been ignorant not only of Samoan customary law, but also of the Anglo-American law he is said to have been erroneously trying to apply. And it gets worse:

The Nouata decision then only further confuses the issue
by going on to give to Salataima some power over the
rentals upon her death, if the lease was still running.

Id. at 12. Thus finding the 1931 decision incoherent on its face, the 1982 Court proceeded to "interpret" it in light of various extrinsic factors so as to find that it "only gave to Salataima the rentals from the Church lease." Id.

But the 1931 decision is not incoherent. Indeed, the language quoted by the 1982 Court does not even appear to us, read in its entirety, to be ambiguous. There is one way, and only one, in which the operative language can be read so that each phrase has some effect and so that the whole passage makes sense:

1) The land in dispute is the property of Salataima.

2) As the owner, she is entitled to receive the rents during her lifetime; and

3) As the owner, she is also entitled to say who will receive the rents ---that is, who will become the next owner ---after she dies. She should therefore make a will. [11ASR2d70]

4) It would be a good idea if she left the property to the Puailoa family, but this is only a suggestion.

It should be recalled that the intense interest in who owned this particular 360 acres was because it was rented out. There was at that time (as contemporary records generally attest and as the 1931 Court expressly found) plenty of land available for occupation and cultivation; but not much of it was rented to wealthy corporate tenants. That the Court, having declared Salataima the owner, should go on to say where the rental payments would go ---to the owner during her lifetime, and to whomever she designated after her death ---makes perfect sense in the context of the case.

The 1982 Court's alternative interpretation, in contrast, discards and then negates about three- fourths of what would otherwise appear to be the 1931 Court's holding. Not only is the land in question not "the property of" Salataima, but it would be pointless for her to leave a will saying "who she wants this money to go to after her death," for the devolution upon the Puailoa family after her death is not "only a suggestion."

The more straightforward interpretation of the 1931 holding has the added advantage of not making it necessary to conclude that the Court was ignorant either of Anglo-American law or of Samoan custom. It is true, as the 1982 Court points out, that Western concepts such as "fee simple" and "dower right" were not invariably useful in describing Samoan land tenure. But these terms were not used by the 1931 Court; rather, they were introduced by the 1982 Court itself in the course of explaining how the earlier court must have been confused. Although the Samoan word pule does mean some things other than the English word "ownership," and may therefore give rise to confusion, it is no more evident that the 1931 Court was the victim of such confusion than that the 1982 Court was.

The simplest explanation for the 1931 Court's decision is that it believed Salataima's testimony: that her husband Vaiuli went to Apia and "won" the land from the McArthur company before he became Puailoa, and that he had always been recognized within the family as having the right to do with [11ASR2d71] this land and its proceeds as he wished. While this testimony might not have required the conclusion that Malaeimi belonged to Puailoa Vaiuli in his capacity as Vaiuli rather than as Puailoa, it was certainly sufficient to support such a conclusion. The testimony of one other witness, Fanene, was to the effect that ill lands owned by Puailoa Vaiuli were his own lands rather than Puailoa family lands. Only Nouata testified to the contrary. Even taking into account the presumption that land is communal rather than individual, the Court's decision appears to have been well supported by the evidence.

The 1982 Court, without directly addressing the possibility that the Court simply believed Salataima, discounts it by finding that her testimony had been "self-serving," as it clearly was and as testimony in land cases tends to be. The 1982 Court draws the further unwarranted inference that the 1931 Court "saw through this [i.e., Salataima's testimony]" since "otherwise it would have awarded the entire Malaeimi lands to her" instead of recognizing the claim of the Puailoa family to that portion of Malaeimi not leased by the Church. Reid, supra, at 12. Here the 1982 Court overlooks the testimony itself. Salataima did testify that Vaiuli won all of Malaeimi for himself, but not that he left all of Malaeimi to her. She said only that he left her the land that was leased to the Church. If the remainder of Malaeimi was Vaiuli's individual property he had the right to leave it to the Puailoa family if he wanted to, and on cross- examination Salataima appears to have acquiesced to the proposition that he did so. Nouata v. Pasene, LT No. 18-1930 (Transcript of trial held June 9, 1931) (testimony of Salataima). Thus the most obvious reading of the 1931 Court's opinion is in no way inconsistent with the record before it.

In construing the ostensibly ambiguous 1931 decision the 1982 Court relied heavily on its reading of the decisions and of the records of three other proceedings: the 1905 lease controversy discussed in paragraph 2 of section I, supra, which the Court assumes to have been a judicial proceeding although there is no record of it and although it may well have been an informal hearing before an administrative official; Alo Taisi v. Puailoa, 1 A.S.R. 194 (1909), discussed in paragraph 4 of section I, supra; and Tu'utau v. [11ASR2d72] Fanene, No. 1-1931, discussed in paragraph 12 of section I, supra.

It is true that both the 1909 and the 1932 decisions speak, albeit in passing, of part of Malaeimi as the land of "the name Puailoa." It is also true that Puailoa Vaiuli' s testimony in the record of the 1909 case would have supported a finding that he had gone to Apia to regain land for the Puailoa family rather than to gain it for himself. Neither of these cases, however, involved a dispute about the question that was directly confronted in 1931 and that directly confronts us in the present case: whether Malaeimi, or any part of it, was individual or communal land.

The 1909 case was a dispute between Puailoa Vaiuli and a chief of another village who clearly did not own the land. Puailoa Vaiuli stressed both the historic claims of his ancestors to Malaeimi (which is said to have been the site of a long-abandoned village of which Fanene and/or Puailoa may long ago have been the principal matais) and his role and that of his father in winning the land in Apia. See Alo v. Puailoa, LT No. 4-1908, Transcript of Proceeding held June 9, 1909 (Nouata, 1978 Motion to Reopen, Puailoa Exhibit 1), testimony of Puailoa. The statement by the 1909 Court that part of Malaeimi belonged to "the name Puailoa," even in the unlikely event it was intended to resolve any future controversy with the individual heirs or devisees of Vaiuli, was obiter dictum and was not binding on the 1931 Court.

The 1932 decision, written by the same Chief Justice Wood who was the author of the 1931 decision, is more interesting in that it does seem to say that part of Malaeimi belongs to "the name Puailoa," that the rental of some of that part is received by Salataima, and that the remainder is "under the pule" of Puailoa Nouata. Tu'utau v. Fanene, supra. Again, however, the case did not concern the question for which it has been cited. Tu'utau was a case between Fanene and a member of the Puailoa family over a tract other than that involved in the 1931 case and in the present case; any reference to the previous decision, or to who owned the 360 acres across the road, was dictum.

Dictum is not regarded as binding in subsequent cases because of the presumption that a judge will have a more thoughtful reaction to a [11ASR2d73] question when his attention is fully engaged by it and all the facts are before him than when they are not. To the extent that Chief Justice Wood's passing remark in 1932 differs from his holding in 1931, it may be because he expressed himself more carefully on one occasion than on the other; the law presumes that the more careful expression was in the holding itself. Or it may be that by 1932 he had forgotten the precise details of the 1931 case, or thought better of the matter. In any case we are bound by the 1931 holding and not the 1932 dictum. Moreover, we note that on at least two occasions after the 1931 holding ---in his letters to the Governor of October 24 and November 30, 1931 ---Chief Justice Wood spoke of his decision as having involved the "ownership" of the land in question. Nouata, 1978 Motion to Reopen, Puailoa Exhibits 12 and 19, discussed in paragraph 10 of part I, supra.

Any general canvass of judicial statements concerning Malaeimi must also take account of Chief Justice Morrow's dictum in 1953 that the land leased to the Church was "individually owned by a Samoan [i.e., Salataima]." In re Airport at Tafuna, quoted and discussed in paragraph 16 of section I, supra.

The main point, however, is that the Nouata decision speaks at least as well for itself as any earlier or later statement can speak for it. In our view, the unambiguous holding that the 360 acres was "the property of" Salataima is reinforced rather than rendered ambiguous by the Court's additional comments and recommendations regarding disposition of the rentals before and after Salataima's death. We are bound by this decision whether or not we agree with it.

Accordingly, we hold that Salataima was the owner of the sixty acres presently in dispute; that upon her death the land devolved upon Lagafuaina Laisene; and that plaintiff Puailoa has no right to any relief against the present defendants.

III. Adverse Possession

Even if Salataima did not own the sixty acres in 1931, we would hold that Lagafuaina Laisene and his devisees had acquired them by adverse possession before this suit was filed. [11ASR2d74]

Salataima was neither a blood member of the Puailoa family nor, after her husband's death and the events of 1931, analogous to a member of the family in any way that would prevent her possession of the sixty acres from being clearly hostile to the Puailoa claim. Her adverse possession of the sixty acres almost certainly began no later than 1931, when it had become clear (painfully so to the Puailoas) that she exercised authority over the land in her own right and not as a permittee of the Puailoa family. Her possession of the land from that date, albeit through a tenant, was as open, as notorious, and as hostile as possession can ever be. Even if occupation through the Church as tenant were somehow inadequate, the exclusive occupation by Salataima herself, her brother Lagafuaina, and other members of the Lagafuaina family after 1953 would have been more than sufficient to constitute adverse possession.

Under the twenty-year adverse possession statute then in force, Lagafuaina and his devisees would have acquired the sixty acres by 1973. The claim filed by Puailoa in the Lagafuaina probate proceeding in 1975 was the first arguable interference with possession by Lagafuaina. since this claim was soon withdrawn, it is more likely that the filing of the motion for new trial in Nouata in 1978 was the first such interference.

By then it had been at least twenty-five years, and probably forty-seven years, since the adverse possession began.

We respectfully disagree with the dictum in the appellate decision in Reid to the effect that an individual can never acquire communal land by adverse possession. See Reid, supra, 1 A.S.R.2d at 88-89 n.l. Contrary to the view therein stated, we believe that the circumstances under which land is acquired by adverse possession are so different from those attendant to the ordinary alienation of land that the Fono cannot be presumed to have regarded adverse possession as a "sale, gift, exchange, or other method of disposal of property" to which the racial restrictions and other procedures governing alienation of communal property apply. A.S.C.A. § 37.0201. We note that adverse possession is provided for in the chapter on "Titles to Land" rather than in the separate chapter on "Alienation of Land" containing the aforementioned restrictions and procedures. [11ASR2d75] A.S.C.A. §§ 37.0120~ 37.0201 et seq. Finally, we note that the jurisprudence of the High Court has long recognized that an individual can acquire communal land by adverse possession. See, e.g., Sione v. Tiualii, 3 A.S.R. 66 (1953); Lolo v. Heirs of Sekio, 4 A.S.R. 477 (1964).

This question was apparently neither briefed nor argued by any party to Reid, and the Court's statement was not necessary to its holding. If an appeal should be taken from the present decision, and if the appellate court should find it necessary to reach the question of adverse possession, we would suggest that the parties and the Court give plenary consideration to whether the correct rule is stated by the dictum of Reid or by the earlier rule of Sione and Lolo.

Finally, we note that the primary grounds on which the Reid Court held that the Church had not acquired the 300 acres at issue in that case by adverse possession are inapplicable here. The holding of the appellate decision in Reid was that the Church had not begun its adverse possession until 1953 and therefore, under the thirty-year adverse possession statute, had not acquired title by the time suit was filed in 1979. 1 A.S.R.2d at 88.

The adverse possession was held not to have begun until the sale to the Church in 1953 because of a finding of fact ---that Salataima was a member of the Puailoa family ---which may have been consistent with the evidence before the Court in Reid, but which is clearly contrary to the evidence in the present litigation. See id., 1 A.S.R.2d at 88; compare paragraph 11 of section I, supra. In any case, on motion for relief from the judgment the Church pointed out that the twenty year adverse possession statute, not the thirty year statute, was in force during the period in question. This rendered it irrelevant whether Salataima was a family member, since even if the period of possession did not begin until 1953 title would have been acquired by 1973. The Court then held (a) that a foreign corporation could acquire land only in certain ways prescribed by statute, not including adverse possession; and (b) that in any case the possession of the 300 acres by the Church might not have been exclusive, since the Puailoas may have interfered with it in various [11ASR2d76] ways. Reid v. Puailoa, AP No. 14-82 (Order issued December 11, 1984) at 6,7.

Neither of these factors was present in the case before us. Lagafuaina Laisene was not a foreign corporation, and the Puailoas did not interfere with his possession or that of his devisees at anytime between 1953 and 1978.

IV. The Effect of Reid v. Puailoa

We have taken a different view than the trial court took in Reid v. Puailoa; upon the two principal questions presented in that case and in this one. It is appropriate to ask, particularly in light of the affirmance of Reid on appeal, whether that decision should be regarded as a precedent that binds us regardless of our own view on the merits of the case before us.

We have already stated that Reid does not have the effect of res judicata on the present case. Res judicata applies only where the parties and the subject matter of the earlier case are identical to those of the case at hand. In this case one of the parties was a party to Reid, but the parties who count ---the ones who would automatically lose if res judicata were applied --were not parties to the earlier case and were not represented by an ancestor in title. Nor is the subject matter exactly the same; that case involved the 300 acres that Salataima sold to the Church, this one involves the sixty acres she left to her brother.

The doctrine of collateral estoppel sometimes bars relitigation of issues even where the facts or the parties are somewhat different in the new case than in the old. The estoppel can apply, however, only against a party who was represented in the earlier litigation. If Puailoa had litigated against the Church and lost, he might have thereby been estopped from bringing essentially the same case against the present defendants. Having won, however, he is not automatically entitled to a similar judgment against people who were not parties to the earlier litigation and who are not successors in interest of anybody who was. The doctrine of collateral estoppel does not apply here.

The only doctrine that might bind us to reach the same result as Reid is stare decisis. This is [11ASR2d77] a far broader doctrine than res judicata or collateral estoppel: it often effectively dictates the result in cases whose facts and parties have little or nothing to do with those of the precedent. Stare decisis, however, applies to questions of law and not of fact, to general propositions rather than to specific inquiries.

It often happens that more than one lawsuit arises from a single event or chain of events. Almost inevitably the first case litigated involves the decision of some question or questions of law, and more often than not the law and the facts are intertwined so as to make, it technically possible to argue that stare decisis applies even though res judicata and collateral estoppel do not. Even in cases involving such "mixed questions of law and fact," however, courts preclude relitigation only by parties who have already litigated the question or who had a fair chance to do so in the first lawsuit. See generally Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) .

Our disagreement with the trial court in Reid is not about general propositions of law but about the application of those principles to a particular fact situation. The principal question on which we disagree concerns the interpretation of yet another judicial decision ---specifically, whether Nouata dealt with the question of title to the 360 acres. This can fairly be called a mixed question of fact and law. But in the present case and in Reid this question of interpretation operates more as fact than as law: it is more like the question whether A and B have a contract than whether contracts are binding without consideration. It is the sort of question whose relitigation should be barred or not according to the rules of res judicata and collateral estoppel rather than those of stare decisis.

We do not disagree with the BgiQ Court about whether one case adjudicating a question bars relitigation of the same question between the same parties, but only about whether Nouata did in fact adjudicate the question of who owned the 360 acres. Indeed, we do not even disagree about canons of interpretation --for instance, about whether ambiguous language should be construed by reference to extraneous sources but about whether the words "the property of the widow of Puailoa" are, in a particular context, ambiguous. [11ASR2d78]

That strangers to a lawsuit should be bound by the court's construction of language in a document on which their claim is based, even though they had no chance to present their own arguments and evidence to the court, is precisely what the limits of res judicata and collateral estoppel are calculated to avoid. That the document in question is an ancient court decision ---a decision stating no doctrine, of no more importance to anyone outside the case than an identically worded and equally ancient will or deed ---does not justify the erosion of these limits. This is not what stare decisis is about. See Swilley v. McCain, 374 S.W.2d 871 (Tex. 1964).

Our analysis is consistent, we believe, with that applied by the Appellate Division in Reid. The appellate court did not treat the trial court's interpretation of Nouata as a question of law but as a question of fact. See Reid v. Puailoa, AP No. 14-82, opinion rendered March 30, 1983, at 7, discussed in paragraph 28 of part I, supra. The extremely deferential "clearly erroneous" standard of review was therefore applied, and the trial court's interpretation was found not to be without some support in the evidence. Id. There is no inconsistency between this result and a different determination of the same question in a later lawsuit involving a party who is not bound by the decision in Reid.

Indeed, the Appellate Division, even while affirming the trial court decision in Reid as against the appellee in that case, specifically held that the present defendants were not bound by the result. The trial court's attempt to "affect the rights of individuals who were not parties to the litigation" without "granting them an opportunity to defend their interests" was held to have violated "[e]lementary concepts of due process." 1 A.S.R.2d at 89.

It was because the Appellate Division held the trial court's judgment not binding with regard to the sixty acres presently in dispute that Puailoa found it necessary to institute the present lawsuit. We feel sure that in guaranteeing the present defendants an "opportunity to defend their interests" the Appellate Division had something in mind other than the mechanical imposition of the very holding whose application to these defendants [11ASR2d79] in the first instance violated "elementary concepts of due process." Surely it must have been contemplated not only that the defendants would get a day in court, but also that they might conceivably win.

V. Laches and other Equitable Defenses

If the defendants had not acquired title through Salataima or by adverse possession, the doctrine of laches would apply to limit Puailoa's recovery. About fifty-two years elapsed between the last occasion on which we have any evidence that Puailoa Nouata protested the Nouata decision and the filing of the present suit. Four more years elapsed before most of the present parties were named as defendants. In the meantime, and particularly during the years between 1960 and 1987, innocent third parties bought land, built homes, and raised families on the land. We have no evidence that any of the purchasers knew of the Puailoa claim at the time they built their improvements. Puailoa, on the other hand, did know the identities of at least some of the purchasers, contrary to his assertion at the time he filed suit in 1983. According to the testimony of Puailoa's daughter who was his principal witness at trial, these people were left more or less alone for several years because it had been decided for strategic reasons to go after the Church first and the individual owners later.

Even in the absence of circumstances giving rise to laches, those who built improvements prior to 1987 would appear to be good-faith improvers with a right to compensation upon eviction. Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988).

In light of our decision on the merits it is not necessary to calculate the amount that would be necessary to compensate those who purchased land and/or built improvements in the event they were evicted by Puailoa. This issue can be addressed, preferably after a further evidentiary hearing, in the event an appeal should be taken and the appellate court should reverse and remand.

VI. Order

Since plaintiffs have not carried their burden of proving that they own the land presently in [11ASR2d80] dispute, judgment is entered for the defendants and the action is dismissed with prejudice.

It is so ordered.

********

1. We take judicial notice of the record of the proceedings in Nouata and in the other cases concerning Malaeimi that are cited in the text.

Development Bank v. Savusa,


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

SAVUSA TAUILEVA and SINA T. SAVUSA, Defendants

CHARLES TAUTOLO dba KENT SAMOA, Garnishee

High Court of American Samoa
Trial Division

CA No. 146-87

April 25, 1989

__________

Garnishee who fails to appear in response to a writ of garnishment without sufficient excuse is presumed to be indebted to the defendant in the full amount of the plaintiff's demand. A.S.C.A. § 43.1806(c).

In order to rebut the statutory presumption of indebtedness by a garnishee, the garnishee not only must show that he is not in fact indebted to plaintiff in the amount in question, but also must give sufficient excuse for not having appeared or answered the interrogatories. A.S.C.A. § 43.1806(c). [11ASR2d47]

Where a garnishee does not give sufficient excuse for not having appeared or answered interrogatories, it is within the Court's discretion to hold him liable for the whole amount of the judgment debt. A.S.C.A. § 43.1806(c).

Garnishee who was evasive and dishonest, in an apparent attempt to assist the judgment debtors in avoiding payment, would be held liable for the whole amount of the judgment debt. A.S.C.A. § 43.1806(c).

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and AFUOIA, Associate Judge.

Counsel: For Plaintiff, Steven H. Watson
For Defendants, Togiola T.A. Tulafono Garnishee Charles Tautolo pro se

On Motion to Enter Judgment Against Garnishee:

On December 29, 1988, by stipulation of counsel for plaintiff Development Bank and defendants Savusa, judgment was entered against defendants in the amount of $35,067.12.

On February 13, 1989, plaintiff caused a writ of garnishment, notice of garnishment, and accompanying interrogatories to be served on garnishee Charles Tautolo. The interrogatories were not answered .

On March 6, 1989, plaintiff caused to be served on the garnishee an Order to Show Cause why he should not be held liable for the entire amount of the judgment debt on account of his failure to answer the interrogatories .

At some time after that, garnishee Tautolo went to the offices of plaintiff Development Bank with the interrogatories. He filled them out to the effect that neither he nor Kent Samoa, Inc. (which is, according to Tautolo, a separate entity owned and operated by him) owed defendants any money, having already advanced them $12,756.18 in lease payments. He refused, however, to sign the interrogatories.

At the hearing on the Order to Show Cause, the testimony of garnishee Tautolo was characterized by gross evasion if not outright perjury. First he stated or implied that he had never received the interrogatories. Then, when it was pointed out to him that he had actually filled in the[11ASR2d48] interrogatories, he said he had received these but had never received the Order to Show Cause. He said the: person who swore he had served this order had instead merely reminded him to fill out the interrogatories. Tautolo later seemed to deny that the Marshal of the Court had served him the interrogatories; on close questioning by the Court, he "clarified" his statement by saying that he had never been served with anything by the Marshal at his home in Ili'ili, and "did not remember" whether he had been served at his office in Nu'uli. upon further questioning he said he did remember .

A garnishee who fails to appear in response to a writ of garnishment without sufficient excuse is presumed to be indebted to the defendant in the full amount of the plaintiff's demand. A.S.C.A. § 43.1806(c); see Amerika Samoa Bank v. Haleck, 5 A.S.R.2d 54 (October 21, 1987).

It appeared at the hearing on the Order to Show Cause that Tautolo and Kent Samoa were not in fact indebted to the defendants in the entire amount of the demand. Indeed, since the lease payment to Savusa are in his capacity as sa'o of the Savusa communal family, we cannot say without knowing more facts whether these payments could have been garnished for a judgment relating to money borrowed by Mr .and Mrs. Savusa in connection with their individually owned home.

In order to rebut the presumption of indebtedness, however, it is not enough for the garnishee to show that he was not in fact indebted to plaintiff in the amount in question; he must also give "sufficient excuse" for not having appeared or answered in response to the interrogatories. A.S.C.A. § 43.1806(c). It is therefore within the Court's discretion to hold him liable for the whole amount of the judgment debt. Amerika Samoa Bank v. Haleck, supra.

Ordinarily we would be most reluctant to hold a garnishee for an amount much larger than what he actually owed the defendants. In this case, however, the pattern of evasion and dishonesty--- which, as we gather from his own testimony, was apparently designed to assist the defendants in avoiding payment of the judgment against them--- deprives the garnishee of any claim on the Court's equitable discretion to mitigate the harsh effects of the statute. [11ASR2d49]

We therefore hold Kent Samoa, Inc., and Charles Tautolo, jointly and severally with the defendants Savusa Tauileva and Sina T. Savusa, liable to the Development Bank in the amount of $35,067.12.

The defendants remain primarily liable to the Development Bank. To the extent the Bank collects amounts on this debt from the garnishees, they are subrogated to the rights of the Bank against Mr. and Mrs. Savusa. This includes any right the Bank might have to occupy, lease, and/or remove the residence on which the mortgage was foreclosed.

*********

Bohanak v. Samoa Maritime, Inc.,


NICK BOHANAK aka NICK MA'AFALA, Plaintiff

v.

SAMOA MARITIME, INC., and GEORGE POYSKY, Defendants

High Court of American Samoa
Trial Division

CA No. 002-88

April 18, 1989
__________

Where the operator of backhoe, operating near or on the road and without a flagman, did not see a bus being operated on the road in the proper lane and therefore struck the bus, the backhoe's operator was negligent for failure to keep a proper lookout.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, OLO, Associate Judge.

Counsel: For plaintiff, Asaua Fuimaono
For Defendants, Togiola T.A. Tulafono

Plaintiff's aiga bus was involved in a collision with a backhoe/loader belonging to the defendant corporation. Plaintiff sues in damages for certain repairs to the bus and for loss of revenue during the repairs.

Liabilitv

The driver of the bus testified that on the day in question he was heading westbound, and traveling within his proper lane, in the vicinity of Lauli'ifou. He further testified that towards the crest of the hill at the end of the village, he noticed a backhoe off the road on the opposite sami side. As he was passing the machine, it somehow backed onto the eastbound lane with its hoe extending in such a manner that it caught the side of the bus to the rear of the driver's side. A supervisor employee of the corporation testified that he and his crew were involved with laying pipe lines in the vicinity and that the operator was sent on the backhoe to pick up a load of sand. The [11ASR2d] backhoe was not attended by a flagman although this supervisor testified about certain safety requirements imposed on them to have warning signs at intervals of 1000 feet. The operator was not called to testify.

We find on the evidence that defendant corporation's employees were negligent. The backhoe's driver did not keep a proper lookout for normal traffic on the road; the bus was traveling in its proper lane with the right of way; and the backhoe was unattended by a flagman.

On the other hand, we give little weight to the counter testimony offered on defendants ' behalf to the effect that this particular bus driver had been the cause of many past complaints from their flagmen, and that ensuing damage to the bus should have been much greater if the bus driver's testimony is to be believed. Such evidence is hearsay and invites speculation. Indeed it is more consistent with the resulting damage that the bus driver was traveling at a moderate rate of speed. Given the total loaded weight of the backhoe, as testified to by Mr. Poysky, the damage would have been much more devastating if the bus had been traveling at greater speed. In fact, the bus was brought to rest with the hoe of the machine resting against the bus. We accordingly reject defendants' claim of comparative negligence on the part of the driver. At the same time, we find no actionable claim established against Mr. Poysky personally, a shareholder and employee of the defendant corporation, and accordingly dismiss the complaint as to him.

Damages

Plaintiff testified that subsequent to the collision, which occurred on November 18, 1987, he offered to settle the matter for the sum of $3,000.00. Defendant, however, rejected this proposal and instead offered to have its own carpenters repair the bus. Plaintiff stated that he had agreed on the assurance that defendant had qualified personnel to do the work and that defendant would pay him $70 a day for lost income. (1) [11ASR2d] The bus was then taken to defendant's yard on November 20,1978. (2)

Plaintiff testified that he visited defendant's yard on November 24, 1978 and was disappointed with the progress of the repairs. He was told that the type of glass used on the bus was not available on island and he therefore told Mr. Poysky to use an alternate as he wanted the bus on the road again. He again went to check on the bus the following day and was again disappointed with the extent of repairs. Plaintiff stated that he then offered to take back the bus in exchange for the materials acquired by the defendant for repairs plus $1000. He was told that defendant preferred to finish repairs to the bus and Mr. Poysky wanted to consult with the corporation's attorney. The bus was finally delivered to him on December 2, 1978 in a condition which, according to plaintiff, greatly angered him. He said the windows were improperly set and incomplete as a curved rear corner window was not replaced; that the repair work was not properly finished nor painted; and that some of the seats remained bent. Not knowing how to secure his rights, plaintiff said that he then sought out the defendant's attorney for assistance and informed the attorney that he was willing to settle for $1500 to finish the bus repairs. The attorney referred him to the corporation's insurance carrier who proved to be of no help and eventually plaintiff engaged his own lawyer. Somehow plaintiff was under the impression that the defendant's attorney was going to view the bus and he held off finishing the repairs which he finally commenced, after further consultation with his own counsel, on December 17, 1978. Plaintiff went on to state that he took four days to finish the repairs and that in the process it had cost him $200 in paint and primers and about $500 in labor. Plaintiff prays for these costs plus $70 a day representing an average of income lost, as well as punitive damages.[11ASR2d]

For defendant, Mr. Poysky denied any agreement to pay plaintiff $70 a day. As far as he was concerned, his company had offered to repair the bus and that the work done on the bus by his carpenters was of good workmanship. He testified that the bus was not however painted by the company's carpenters as plaintiff had made clear to them that he would do the painting because he had a stencil for the bus logos. Defendant's evidence went on to point out that after stripping the bus' s relevant side panels and uprights, the carpenters encountered much wood rot. At Mr. Poysky's instructions, the rotting wood was replaced and a whole new tire well built. According to Tony Caldwell, an employee of defendant, they had rebuilt beyond the damage resulting from the collision and structurally the framework was restored to its former, if not a better, condition. He further testified that the bus repairs were completed within a week and that they were unsuccessful in contacting plaintiff by telephone. The carpenters' time sheets presented as evidence by defendant indicated that work ended on November 28, 1987.

On the foregoing, the following damages are found proven and awarded plaintiff: (a} $500.00 being 4 days labor costs incurred by plaintiff to completely restore the bus to a finished and painted condition; (b} of the $200.00 sought as the cost of materials to finish the bus, we allow only the sum of $160.00 as justified on the receipts submitted; (c} on the claim for lost revenue, we award damages for income lost between November 19, 1987 and December 1, 1987 and for the 4 days of restoration by plaintiff, which we find to be 13 working days {inclusive of Saturdays} at the daily rate of $42 .00 per day (3) or $546.00. (4)

Judgment will accordingly enter in favor of plaintiff, Nick Bohanak, against the defendant, Samoa Maritime, Inc., in the sum of $1,206.00. [11ASR2d16]

It is so Ordered.

*********

1. The figure of $70.00 was given by plaintiff as the average daily turn in by the bus driver. In turn, the driver's income was based on a rate of 30% of that return.

2. Mr. Poysky testified that the offer to repair was not an admission of fault. He averred to a company policy of not referring every accident involving their machines to their insurance carrier. Instead they have in the past handled minor damage on their own without concern for fault as a gesture of goodwill to the public. Mr. Poysky stated, however, that this was one case which they just could not give in on entirely.

3. See footnote 1 supra.

4. Except for the four work days incurred by plaintiff in finishing the bus, we have disallowed any claim for lost revenue during those days the bus was in plaintiff's possession. This conclusion is consistent with plaintiff's duty to mitigate damages. Additionally, we find nothing on the evidence to support the prayer for punitive damages.

American Samoa Gov’t v. Samoa Aviation, Inc.,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SAMOA AVIATION, Inc., dba SAMOA AIR, Defendant

High Court of American Samoa
Trial Division

CA No. 56-89

June 30, 1989

__________

Territorial statute requiring certain transactions to be "approved in writing by the Governor" was not violated when Governor signed a lease document and then authorized members of .his staff to make certain revisions to the document before it left his office, even though the Governor did not sign the document a second time after the changes were made. A.S.C.A. § 30.0131.

Where the Government had drafted a lease document inadvertently omitting a provision required by statute for periodic adjustment of the rent, and the lessee had no objection to such a provision, the lease would be reformed or construed to include the required provision rather than declared invalid. A.S.C.A. § 37.2020.

Under territorial statutes providing that the registrar should not record any instrument appearing to be illegal, but that any person aggrieved by any official action of the register could apply to the court "at any time" for direction or redress, a lessor would not prevail in an action for eviction based on non-recordation of a lease where (1) the lease was initially recorded by the registrar's office; (2) an acting registrar later attempted retroactively to reject the lease, citing certain alleged illegalities; (3) upon trial of the eviction action, defendant invoked its right to judicial review of the registrar's action and the court found that the lease was not illegal and was therefore properly accepted for recordation. A.S.C.A. §§ 4.1104, 4.1106.

Before REES, Associate Justice, OLO, Associate Judge, and AFUOLA, Associate Judge

Counsel: For Plaintiff, Arthur Ripley, Jr., Assistant Attorney General
For Defendant, John Ward

I. Facts

1) This case concerns a certain improved parcel of real property located at the Pago Pago[11ASR2d145] International Airport and owned by plaintiff American Samoa Government (hereinafter "ASG.") An aircraft hangar was constructed on this parcel during the 1970s. This parcel and the improvements thereon are hereinafter referred to as "the premises."

2) In or about August of 1988 defendant Samoa Aviation, Inc. (hereinafter "Samoa Air") agreed to purchase the American Samoa assets of a bankrupt airline, South Pacific Island Airways, Inc. (hereinafter "SPIA"). The premises that are the subject of this action had previously been leased by SPIA, and some or all of the assets about to be acquired by Samoa Air were housed in the hangar on the premises.

3) The pending acquisition of SPIA's American Samoa assets apparently did not, however, include SPIA's leasehold interest in the premises and/or any property interest SPIA might have had in the hangar located thereon. (This may have been because the lease had terminated automatically with SPIA' s bankruptcy, or it may have been because the leasehold interest had been inadvertently omitted by the Bankruptcy Trustee from the list of such assets.) Samoa Air therefore initiated negotiations with ASG to lease the premises.

4) Pending the transfer of assets to Samoa Air by the Bankruptcy Trustee, ASG was using SPIA's American Samoa equipment and facilities ---that is, the assets that were to be transferred to Samoa Air and the hangar in which they were housed ---to provide the inter-island air service that had formerly been provided by SPIA.

5) On or about December 20, 1988, the transfer of SPIA's assets to Samoa Air, including those housed in the hangar, became effective. ASG then ceased its interim airline operations and allowed Samoa Air to go into immediate possession of the premises pending negotiation of a lease.

6) After initial negotiations, a representative of then-Governor Lutali advised Samoa Air that the lease would be on a month-to- month basis. ASG employees, working at the direction of the Governor, prepared a document embodying a month-to-month lease agreement. The Governor then signed this document, but it was not at this point presented to Samoa Air. [11ASR2d146]

7) When Samoa Air was offered the month-to- month lease, its representatives requested a five-year lease instead.

8) Samoa Air negotiated with then-Governor Lutali's legal advisor, Lyle Richmond, and Assistant Attorney General Robert Dennison for the five-year term. Governor Lutali was consulted by Richmond and Dennison .

9) As negotiations concerning the Samoa Air lease progressed, Governor Lutali and his legal advisor Eichmond were also contacted on a number of occasions by George Wray. Mr. Wray is or was president of the bankrupt SPIA, and has organized another corporation ("Airsystems, Inc.") that is interested in acquiring the premises. He raised a number of objections to the proposed Samoa Air lease.

10) After a meeting with Dennison and Richmond at which the question of a five-year lease to Samoa Air was discussed at length, Governor Lutali approved the proposal.

11) The document that had been signed by the Governor was then revised, while still in the possession of ASG and before any presentation to Samoa Air, by the substitution of a new page 2 containing a five-year term instead of the month-to-month term. A provision may also have been added on page 2 providing that the lease was subject to any claim of the Trustee in Bankruptcy of SPIA. (Mr. Wray had attempted to persuade Richmond that the SPIA lease might still be in effect despite the Trustee's omission of the premises from the list of assets.) It appears that the date ---December 30 ---was also filled in at the same time the new page 2 was inserted. The date is on page 13, just above the Governor's signature.

12) The Governor, however, did not re-sign the document after the replacement of page 2.

13) The document embodying the five-year lease agreement, as drafted and revised by ASG employees Richmond and/or Dennison and bearing the signature of Governor Lutali, was then presented for the first time to James porter, President of Samoa Air, on December 30, 1988, at the Governor's [11ASR2d147] office. Mr. porter immediately signed the lease agreement.

14) On or about January 5, 1989, the executed lease agreement was delivered to the Office of the Territorial Registrar for recordation. The lease was recorded the same day by an employee of the Registrar's Office authorized to receive and record such documents.

15) January 5, 1989, the day the lease was recorded, was the first business day after Governor Coleman had replaced Governor Lutali. (December 30, 1988, the date on the lease and the day on which Richmond had presented it to Porter and Porter had signed it, had been the last business day of the Lutali administration.) The person who delivered the lease to the Registrar's Office had been an employee of Governor Lutali and mayor may not have been retained by Governor Coleman. He had insisted that the lease, along with some other documents he was delivering, .be recorded immediately. According to the testimony of Assistant Territorial Registrar Starr Schuster, the Registrar's Office employee with whom he dealt had complied but had complained to Schuster about being "harassed."

16) Mr. Wray, the former SPIA president who had contacted Lutali administration officials with objections to the proposed Samoa Air Lease, also contacted Governor Coleman "many times" to the same effect. He testified that Governor Coleman had told him there might be problems with leases being approved in the last days of the Lutali administration and that the new administration would need to take a hard look at such leases, or words to that effect.

17) On January 14, 1989, Governor Coleman wrote a letter to Samoa Air president porter, telling him that "[i]t appears that there are certain areas that may present questions and possibly problems in said lease transaction" and asking Samoa Air "not to rely too much at this time" on the lease.

18) In mid-January 1989, Assistant Registrar Schuster began "reviewing" the lease agreement. She testified that she initiated her own review of the lease without being asked to do so by officials of the new administration, by Mr. Wray, or by [11ASR2d148] anyone else. She testified that she did, however, call the Attorney General's office to discuss what she saw as problems with the lease, and that she also had a brief encounter with George Wray in which he said something about the lease. Schuster did not, however, discuss the matter with her immediate superior, Territorial Registrar Pelema Kolise.

19) On February 6, 1989, during a two-day period when the Territorial Registrar was on leave and Ms. Schuster was serving as Acting Registrar, she decided she should cancel the previous recordation of the Samoa Air Lease. This she did by writing "VOID" across the stamp, date, and signature that had indicated recordation by the Registrar's Office.

20) Ms. Schuster testified that the Registrar's Office had never previously, to her knowledge, attempted to cancel the recordation of a document that had already been recorded .The Court asked why she chose to inaugurate a new activity for the Registrar's Office ---the cancellation or retroactive "rejection" of registrations ---during a two-day stint as Acting Registrar without prior discussion with the Territorial Registrar himself. She merely shrugged good-naturedly and repeated her earlier testimony that she had told the Registrar about it afterward.

21) On the same day Ms. Schuster "rejected" the registration, she wrote a letter to the Attorney General saying that she had done so. She gave three reasons: (1) the absence of a specific clause in the lease providing for a land valuation index adjustment on the rental rate, as required by A.S.C.A. § 37.2020; (2) "Page 2 of the agreement is questionable" (the text began too high on the page); and (3) "Who is the LESSEE here?"

22) The lease designates "Samoa Aviation" as the lessee. The space designated for the signature of a representative of the lessee was signed by James Porter. (The full text of this section, including Porter's signature, is "LESSEE: By: James Porter.") As Ms. Schuster knew at the time, documents in the Registrar's office listed James Porter as an officer of Samoa Aviation, Inc. As she testified at trial, her questions about who the lessee was therefore boiled down to the omission of "Inc." on the lease document. [11ASR2d149]

23) On April 7, 1989, Attorney General Fa'alevao wrote a letter to Mr. Porter demanding that Samoa Air vacate the premises. He stated that "[i]t was this failure to include Provisions of 37.2020 ASCA [the inflation adjustment clause] that caused the Office of Territorial Registrar to reject the document. He also stated that Samoa Air had not paid any rent. (Mr. Porter says Samoa Air has in fact paid all rents due under the lease agreement, and ASG makes no contrary allegation in this action.)

24) On May 4, 1989, Mr. porter responded to the Attorney General. He wrote that in his opinion Article IV of the lease, "requiring the lessee to comply with all territorial authorities in force pertaining to the premises," effectively incorporated the inflation adjustment clause. He also stated that all rentals were current.

25) On May 17, 1989, the Attorney General again wrote to Porter. In this letter he said that ASG had "determined that the hangar itself....is the property of SPIA," and that "SPIA then sometimes ago transferred its interests therein to Airsystems, Inc. [Mr. Wray's new company]." Samoa Air was thus "advised that as far as any further occupancy of the said hangar, Samoa Aviation has to make arrangement with Airsystem, Inc. officials." (ASG does not base the present action upon a claim of ownership of the hangar by Airsystem, Inc. Rather, ASG relies on its own undisputed title to the land on which the hangar is located and on the alleged flaws in the lease of the premises ---the land and its improvements, including the hangar--- to Samoa Air.)

26) A few days later Samoa Air brought an action against ASG, Mr. Wray, and Airsystems, Inc., claiming that Mr. Wray and Airsystems had entered onto the premises in violation of the Samoa Air lease. Samoa Air demanded, inter alia, a preliminary injunction against further entry upon the premises by Wray or Airsystems. After Samoa Air had presented its evidence at a hearing on its motion for a preliminary injunction, ASG, Mr. Wray, and Airsystems stipulated to the injunction. At the time of the stipulation Mr. Wray and counsel for ASG indicated their intention to bring a summary action for eviction against Samoa Air . [11ASR2d150]

27) On June 16, 1989, ASG brought the present action for eviction, invoking the summary proceedings provided by A.S.C.A. § 43.1301. Trial of the case was held on June 26, 1989.

Conclusions of Law

It would be disingenuous not to observe that this controversy, while presenting questions of law and fact appropriate for judicial resolution, is seen by many of those involved as a political dispute. Counsel and witnesses for ASG directed the Court's attention to what they regarded as the unseemly haste with which the lease was concluded in the last days of the Lutali administration. Samoa Air, in turn, wafted suggestions of chicanery and vindictiveness "within the new administration. The Court's job is to try to decide the legal questions without passing judgment on the political ones.

Lutali was Governor until noon "on January 3, 1989. During that time he was legally entitled to exercise all the powers of the office, including whatever power the Governor has to make contracts that are binding on ASG. Coleman has been Governor from that time forward and has the right to exercise the same powers to their full extent. It should go without saying that whether the Court thinks either the former or present Governor, or his subordinates, acted wisely or unwisely does not matter. The only question is whether ASG and Samoa Air have a contract.

ASG urges that the five-year lease never became effective because A.S.C.A. § 30.0131 requires any transaction by which a corporation acquires an interest in land to be "approved in writing by the Governor." ASG contends that since a leasehold interest is an interest in land, and since the Governor did not re-sign the lease document after his subordinates had revised Page 2, this statutory requirement was not met.

Assuming that one who takes a five-year lease "acquires an interest in land" within the meaning of A.S.C.A. § 30.0131, we conclude that the lease does meet the statutory requirement of approval in writing by the Governor. The five-year lease presented by ASG to Samoa Air did in fact contain the Governor's signature. [11ASR2d151] Although counsel for ASG and Mr. Wray (who was a witness for ASG) suggested that the Governor's subordinates may have changed the lease after he signed it without his knowledge or approval, Governor Lutali himself testified that he discussed the question at length with Dennison and Richmond and that he did approve the revision. The revision he approved did not entail any changes on the signature page. We decline to construe A.S.C.A. § 30.0131 as requiring the Governor either have re-signed below his original signature or to have ordered the destruction of the last page and the declaration of a new one so that he could sign again.

The document that ASG presented to Samoa Air was "in writing." The writing contained the five- year provision and also contained the Governor's signature. The Governor knew it contained both these things. The order in which they got there was up to him.

ASG also urges, however, that the lease was invalid bcause it did not include a specific provision for the periodic adjustment of rental payments. A.S.C.A. § 37.2020 provides that "no lease of real property owned or controlled by the government may be entered into" for more than four years unless it contains such a provision. It does not say what happens when the Government and another party nevertheless enter into such contract. The statute does not provide, as many statutes do, that a contract violating its provisions is invalid or without legal effect. At least in a situation such as that presented by the present case ---where the offending document was drafted by ASG itself and where the lessee has no objection to reformation of the contract (or construction of the clause requiring compliance with all applicable laws) to require periodic adjustment of the rent ---the appropriate remedy would appear to be reformation or construction to conform to the law rather than invalidation.

This is consistent both with the apparent intentions of the contracting parties and with the purpose of § 37.2020. There is no evidence that the escalator clause was left out for any reason other than inadvertence. Nor does the text or context of § 37.2020 give us any reason to believe that its purpose is to punish wrongdoers by [11ASR2d152] forfeiture rather than to ensure a fair return for the government.

Courts have been increasingly reluctant to refuse enforcement
on the ground of mere noncompliance with some regulatory
law. A court may disregard the noncompliance if the regulation
is intended to serve only an economic interest, and not an interest
in health or safety... And it may infer, from the legislature's silence
on the question of unenforceability when compared with explicit
provisions in similar legislation, that this additional sanction is
inappropriate.

Farnsworth on Contracts § 5.5 at 355-56 (1982) (citations omitted). See also Restatement of Contracts 2d § 178. Accordingly, we hold that ASG has the right under the lease, a modified by A.S.C.A. § 37.2020, to adjust the rent upward or downward for inflation at intervals of its choosing. (1) It cannot, however, use its own failure to include this term in the document as a pretext for invalidation and eviction.

Finally, we hold that the lease was recorded by the Territorial Registrar on January 5, 1978 and therefore complied with the requirement of A.S.C.A. § 30.0131 that it be so recorded. We express no opinion on whether the February 6 action of the Acting Registrar would have cancelled the effects (if any) of the January 5 recordation if the lease were actually invalid. We also express no opinion on whether A.S.C.A. § 30.0131 would have rendered the lease invalid if the Territorial Registrar had simply refused to register the document when it was presented on January 5. In this case the document [11ASR2d153] was not invalid and it was in fact recorded. (2) All the statutory requirements having been met on January 5, the lease became effective on that day and the Acting Registrar had no discretionary power to divest Samoa Air of its contractual rights on February 6.

Order

We conclude that the five-year lease is enforceable, subject to the right of plaintiff to adjust the rent upward or downward for inflation at intervals of its choosing.

Judgment will therefore issue for the defendant.

We note that ASG has already filed a Motion for New Trial, based on the Court's remarks from the bench and in anticipation of the formal entry of judgment. This motion, and any revision thereof to state additional grounds within .ten days from the entry of this order, will be heard on July 21, 1989.

Due to the summary nature of these proceedings, neither counsel nor the Court has had the opportunity to do much research into the questions presented by this case. Thus far not one case from any jurisdiction has been cited to the Court by either counsel. And yet the questions presented ---particularly the question whether a contract that omits a clause required by statute is on that account absolutely unenforceable ---are of the sort on which there must certainly be precedents from other jurisdictions, some of them presumably thoughtful and persuasive. [11ASR2d154]

In retrospect, this was not the sort of case that should have been tried ten days after it was filed. The purpose of summary eviction proceedings is to provide speedy relief for landowners against deadbeats and squatters who have no fairly arguable legal right to remain on the premises and who would otherwise take unfair advantage of the law's delay. This was clearly not such a case. The Court therefore puts counsel on notice that it will take the motion for new trial seriously, especially insofar as questions of law are concerned. counsel are urged to provide such authorities to the Court as might have been provided at or before trial there had been more time.

Judgment will issue for the defendant denying the requested relief.

It is so ordered.

*********

1. This case is somewhat different from the typical case involving the modified enforceability of contracts that fail to conform with statutory requirements, since in most such cases it is the presence rather than the absence of a particular provision that offends the law. Modifying contracts by striking clauses out presents fewer problems for courts than putting them in. In this case, however, the questions left open by the statute can be resolved by leaving them up to A.S.G. itself, which has the right to insist on a provision "satisfactory to the lessor." A.S.C.A. § 37.2020.
The requirement of the statute would presumably be even more clear if ASG had promulgated a regulation to make applicable "recognized indexes by government agencies." Although A.S.C.A. § 37.2020 was enacted in 1978 and specifically requires the adoption of such a regulation, A.S.G. has adopted none to date.

2. A.S.C.A. § 4.1104 provides that the registrar may "reject any instrument appearing to be illegal." A.S.C.A. § 4.1106 provides that "any person aggrieved by any official action of [the Registrar] may, at any time, apply to the High Court for direction or redress." At trial counsel for ASG urged that since Samoa Air had not directly appealed the Acting Registrar's retroactive rejection of their lease, they and the Court were bound by this action. It appears from the record, however, that Samoa Air was never directly notified of the "rejection" and did not learn of it until shortly before this action for eviction was brought. Moreover, A.S.C.A. § 4.1104 does not provide any specific procedure for correction by the High Court of errors by the Registrar; rather, it provides for a broad right to "apply to the High Court for direction or redress" and to do so "at any time." By urging as a defense to this action that the lease was in fact legal and that it should have been recorded, Samoa Air has applied for such redress.

American Samoa Gov’t; Moananu v.


KELEMETE MOANANU, Individually
and as personal representative
of the Estates of AVE MOANANU ,
Deceased, and of ALOFA'ATASI LOGOIALII,
MAIU'U TOILOLO and FA'APOPO MOANANU ,
Minor Children, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, LBJ TROPICAL
MEDICAL CENTER, JASON LEE, M.D. ,
GEORGE LEE, M.D. , and JOHN DOES 1-10, Defendants

High Court of American Samoa
Trial Division

CA No.133-85

June 9, 1989

__________

Court presented with settlement of claims of minor children has the obligation not to approve the proposed settlement unless the children's interests are adequately protected.

Where minor children were the only plaintiffs whose claims against the principal defendant had not been dismissed, their interests were not adequately protected by a settlement in which they were awarded less than their father and guardian ad litem.

Court would not approve a settlement award to a deceased plaintiff who had been dismissed from the case with the acquiescence of plaintiffs' counsel.

Contingent fee agreements must be in writing. Rule of Professional Conduct 1.5.

Court presented with a settlement involving minor children would not approve a fee to an attorney from another jurisdiction who had not applied for admission pro hac vice and whose services, if any, constituted the unauthorized practice of law.

Court presented with a settlement involving minor children would not approve a contingent fee agreement which was said to have been reduced to writing but of which all copies had inexplicably disappeared, but would base the fee award upon quantum meruit.

Before REES, Associate Justice, AFUOLA,Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiffs, Asaua Fuimaono
For Defendants, Robert Dennison, Assistant Attorney General [11ASR2d101]

On Motion for Approval of Settlement and Attorney Fees:

The proposed settlement of this case has been submitted to the Court because some of the plaintiffs are minors for whom a guardian ad litem has been appointed.

The material facts are as follows :

1) Ave Moananu (hereinafter decedent) died on December 29, 1983, after having been examined twice at LBJ Tropical Medical Center, a facility owned and operated by defendant American Samoa Government, apparently with no diagnosis of serious illness.

2) Shortly thereafter Mr. Kelemete Moananu, the husband of decedent, retained attorney Asaua Fuimaono to submit a claim against the Government .

3) On March 6, 1984, Attorney Fuimaono wrote a letter to the Attorney General's Office alleging that the hospital had committed "malpractice and negligence" and asking that the letter be "consider[ed] formal notice in submitting [the] claim."

4) On April 13, 1984, the Attorney General's office requested further information regarding the claim, including the identity of the allegedly negligent employees and the amount of the claim.

5) On May 2, 1984, attorney Fuimaono responded with some of the requested information. He said that "[t]he exact amount of the claim has not yet been finalized. Suffice to say it may run into several millions."

6) On September 13, 1984, the Attorney General's office denied the claim.

7) On October 2, 1984, attorney Fuimaono responded with a brief letter to the effect that he would "see you in court. "

8) On December 4, 1985, a complaint was filed. The named attorneys were Mr. Fuimaono and by one Dennis W. Potts. Each was listed as "Attorney for Plaintiffs. " Mr. Fuimaono signed for Mr. Potts.[11ASR2d102]

9) The complaint identifies Mr. Potts is "a law corporation" in Honolulu, Hawaii. Neither at the time of filing the complaint nor at any other time did Mr. Potts seek admission pro hac vice to the American Samoa Bar Association, as is required by High Court Rule 145.

10) An application for the appointment of Mr. Moananu as personal representative of the estates of the decedent and of her minor children was filed along with the complaint. The application was granted.

11) On April 9, 1986, some months after the Government had filed its answer, Mr. Fuimaono filed an ex parte motion to amend the complaint. One object of the proposed amendment was to add Taula Lopeti, the father of the decedent, as a plaintiff.

12) On April 10, 1986, Mr. Fuimaono filed another motion to amend the complaint, this time with notice to the other party. The motion was granted without objection.

13) The government then filed a motion to dismiss and for partial judgment on the pleadings. Among the grounds for this motion were that some parts of plaintiffs' claim had not been made to the Government within the time limit prescribed by the Government Tort Liability Act (GTLA), and that Mr. Potts had not been admitted to practice law in American Samoa. The motion was heard on June 6, 1989, and was taken under advisement. On June 9, as had been instructed by the Court at the June 6 hearing, Mr. Fuimaono filed a memorandum in opposition to the motion. This memorandum stated, inter alia, that "Mr. Potts ...will apply to be admitted on a pro-hac-vice as soon as it is practicable."

14) The Court partly granted and partly denied the Government's motion. Among the parts of the motion that were granted was the demand for dismissal of some of plaintiffs' claims due to failure to comply with the GTLA.

15) Plaintiffs then made a motion for reconsideration of the partial dismissal. The motion was denied.

16) There then ensued a period during which attorney Fuimaono attempted simultaneously to [11ASR2d103] pursue an appeal from the partial dismissal and to seek essentially the same relief by means of a second amended complaint in the present action. The trial court took the position that the appeal had divested it of jurisdiction to consider the motion to amend the complaint. Eventually plaintiffs moved to dismiss their appeal and the second amended complaint was filed.

17) The Government then moved again to dismiss, or in the alternative to strike parties. Plaintiffs filed a memorandum in opposition. The motion to dismiss Kelemete Moananu' s claims against the Government was granted, "based upon claimant's failure to state a sum certain in his claim" within the applicable time period. Decision and Order at 4 (November 11, 1986). The Court did not dismiss the claims against the individual employees, but did dismiss Taula Lopeti, who had died, as a party plaintiff. The Court also noted that a tort claim against the Government might still pe asserted on behalf of the minor children, since the claims of minors might not be barred by the statute of limitations.

18) Both sides moved for reconsideration. The motions were denied. The Court noted that al though claimant had attempted to proceed under the GTLA, he had "botched it up so completely that the Government is now out of the case." Order at 3 (Dec. 19, 1986).

19) In December 1986 or January 1987 attorney Fuimaono sent interrogatories to defendants. These were answered.

20) On November 12, 1987, plaintiff moved to set a trial date. This motion was later withdrawn.

21) On December 14, 1988, the present motion was filed. The motion was heard on January 19, 1989. Counsel for the Government pointed out to the Court that "one or more of the Plaintiffs may have entered into an attorneys fee arrangement with counsel other than their attorney of record and that such arrangement may provide for fees in excess of those [i.e., 20 per cent of any settlement in an action against the Government] prescribed by 43.1213 ASCA. Such fee arrangement may also have provided for a partial assignment of Plaintiffs' cause of action." The attorney in question was Mr. Potts, who, as the Court learned [11ASR2d104] at the hearing, had not been given actual notice of the motion to set attorney fees. The Court therefore directed that attorney Fuimaono notify Mr .Potts of the motion .

22) On April 4, 1989, attorney Fuimaono renewed the motion to allocate attorney fees. He proposed the following allocation:

Amount of settlement ---

$ 25,000.00

Less costs advanced by Dennis Potts ---

2,128.56

Adjusted amount of recovery ---

22,871.44

Amount due Moananu (80% x $22,871.44) ---

4,574.29

Attorneys fees due to Dennis Potts and Asaua Fuimaono ---

18,297.15

Distribution of Moananu family be as follows --

2,300.00

Alofa'atasi Logoialii ---

2,200.00

Maiu'u Toilolo ---

2,500.00

Fa'apopo Moananu Taula Ropeti ---

1,000.00

Kelemete Moananu ---

10,297.03

23) The motion was heard on April 21. Attorney Fuimaono informed the Court that he and Mr. Potts had agreed to a division (55% for Potts, 45% for Fuimaono) of the proposed attorney fee.

24) The Court then requested a copy of any written fee agreement, a description of any unwritten agreement, and a statement of the costs that had been advanced. Attorney Fuimaono responded that there had been a written contingent fee agreement "in excess of the 20-25% provided in the statute for attorneys fees" but that "I cannot find the said agreement and neither can Mr. Potts." The costs were said to be $1082.31 for a medical expert witness, $900 for an economist, and the remainder for toll calls and copying charges.

25) The Court then suggested to attorney Fuimaono that in the absence of a written agreement attorney fees might have to be awarded on a quantum meruit basis, and requested a statement of the approximate number of hours he had spent on the case. The Court also requested a statement of what it was the economist had done. The requested statements have not been forthcoming. [11ASR2d105]

Accordingly, we conclude as follows:

First, in light of the dismissal of all claims by Kelemete Moananu against the principal defendant, it is impossible to justify the allocation of over half the settlement amount to him rather than to the children. Assuming for the sake of argument that a husband who loses his wife suffers a greater injury than a child who loses his mother, the settlement should nevertheless reflect the fact that the children were the only parties whose claims against the Government were not dismissed. Since Mr. Moananu's claim against the individual defendants was not dismissed, and since part of the settlement paid by the Government may have been pursuant to its employment contract with these defendants, it is not inappropriate that Mr. Moananu receive part of the settlement. This Court has the obligation, however, not to approve the proposed settlement unless the children ' s interests are adequately protected. In light of their status as the only plaintiffs whose claims against the principal defendant were not dismissed, such protection would not be afforded by an allocation in which they did not receive the bulk of the settlement.

We note also the unexplained and inexplicable proposal that $1000 be awarded to the deceased Taula Ropeti, who was dismissed as a plaintiff and whose dismissal was specifically endorsed by attorney Fuimaono. This award is obviously inappropriate.

Nor can we award attorney fees to Mr. Potts, who never applied for admission pro hac vice and whose provision of legal services to plaintiffs, if any such services were in fact provided, constituted the unauthorized practice of law.

With regard to the amount of fees collectible by attorney Fuimaono, Rule of Professional Conduct 1.5 provides detailed requirements for contingent fee agreements, including a requirement that any such agreement be in writing. In light of the remarkable inability of counsel to provide the Court with a copy of the agreement, it is impossible for us to determine the extent to which it is enforceable against the minor children whose interests we are bound to protect. Accordingly, the fee award should be based not on the missing [11ASR2d106] agreement but on the reasonable value of such services as were actually provided.

Although counsel Fuimaono has not provided the Court with the requested statement of his hours, the Court's file contains evidence that he did spend a number of hours working on the case. Unfortunately, many of these hours, such as those spent responding to the Government's motions to dismiss and to the complications that ensued from the Court's rulings thereon, were necessitated by counsel's own earlier lack of attention to detail. We cannot ignore the comment of the judge who principally handled the case to the effect that counsel "botched [the case] up... completely," or the fact that counsel's casual attitude during the early stages of the case resulted in the dismissal of most of his clients' claims. More recently, his request that the Court allocate $1000 of the award to Taula Lopeti, whom counsel had apparently forgotten was dismissed from the case, shows insufficient attention to the interests of his remaining clients, particularly the minor children. Accordingly, the highest fee we can approve is $1000, which is about half the fee attorney Fuimaono would have received under the proposed allocation.

Finally, we still have no evidence that would justify charging the minor children for the services of an economist.

Accordingly, the proposed allocation is approved with the following modifications:

Costs advanced by Mr. Potts---

$ 1228.56

Fee to Mr. Fuimaono ---

1000.00

Alofa'atasi Logoialii ---

5692.86

Maiu'u Toilolo --- 5692.86
Fa'apopo Moananu ---

5692.86

Kelemete Moananu ---

5692.86

The amounts awarded to the minor children shall be placed in trust for them, either in the registry of the Court or in accordance with any alternate proposal that may be submitted to and approved by the Court. The amount awarded to Mr. Moananu should also be deposited in the registry of the Court (or retained by the Government) pending the disposition of any timely filed motion to reconsider this order.[11ASR2d107]

Upon compliance with this order the action will be dismissed and the Government and the individual defendants will be discharged from further liability.

It is so ordered.

*********

American Samoa Gov’t v. Lam Yuen,


AMERICAN SAMOA GOVERNMENT , Plaintiff

v.

PEPE LAM YUEN, Defendant

High Court of American Samoa
Trial Division

CR No. 51-87

June 19, 1989

__________

Search warrant duly issued upon application is presumed valid until otherwise shown.[11ASR2d119]

Parole revocation process may be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

The heart of due process in parole revocation cases is a concern for basic fairness ---the non-arbitrary treatment of a probationer or parolee by the state.

Requirements of due process in parole revocation proceedings include the parolee's right to hear the evidence against him, to be heard in person and to present witnesses and documentary evidence, and to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing such confrontation.

Transcript from a preliminary examination may be considered at a parole revocation hearing.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Barry I. Rose, Assistant Attorney General
For Defendant, William A. Reardon

This matter came on regularly for hearing upon the government's motion to revoke plaintiff's probationary status.

Factual Backaround

Defendant, Pepe Lam Yuen, was convicted in the above-entitled matter of the offenses of fleeing from a police officer, and resisting arrest. Defendant was sentenced, inter alia, to prison terms respectively of six (6) months and twelve (12) months on the respective counts. Execution of the sentences was suspended and the defendant was placed on probation for a period of one (1) year upon a number of conditions. One of the conditions of probation required defendant to be a "law abiding citizen." Sentence was rendered July 29, 1988.

Within the period of probation, defendant was arrested and charged with the offense of production and cultivation of marijuana following a search undertaken by the police pursuant to a search warrant. On March 30, 1989 the defendant duly appeared for preliminary examination before the District Court. The District Court found probable cause to bind the defendant over to the High Court on the charge. The government moved to revoke probation on the grounds that defendant had [11ASR2d120] violated the probationary condition of remaining law abiding.

The extent of the government's case at the revocation hearing herein was the introduction of the reporter's transcript of the evidence taken at the preliminary examination. No other evidence was presented. The transcript revealed that the police had applied for and obtained a warrant to search a certain land area in the Western District for marijuana plants. The testifying police officer first related his training and experience with identifying such plants both by visual examination and by a certain chemical field test. Plants and seeds which the police found at the scene of the search, both indoors and outdoors, tested positive. The officer further testified that from previous surveillance with field glasses he had seen the defendant among the plantings and that on the day of the search, the defendant, after being verbally warned of his Miranda rights, admitted that the plants seized were his.

The Argument

Defendant contends that the evidence presented in the transcript could not properly provide the required factual basis for revocation of his probationary status. The argument appears to revolve around the premise that the type of evidence admissible in a preliminary examination for probable cause is, by virtue of Court Rules of Criminal procedure, Rule 5.1(a), invariably treated by the District Court as free of possible objection based on the exclusionary rule. Defendant argues that the exclusionary rule in American Samoa is constitutional and also applicable in probation revocation hearings .American Samoan Government v. Samana, 8 A.S.R.2d 1 (1988). It is further argued that the District Court had admitted, over objection, "evidence resulting, from the search, which included alleged admissions by the defendant, and would not permit inquiry into whether the evidence and the admissions were lawfully obtained, thereby preventing the defendant from exercising his right to confront and cross-examine the witness on those issues." Defendant's Memorandum of Points and Authorities at 2. Defendant claims, therefore, that use of the transcript would be in violation of the exclusionary rule, the rule against self incrimination, and his right to confront witnesses. [11ASR2d121] Additionally defendant asserts a violation of his right to procedural due process.

Discussion

For reasons given we disagree with defendant. The evidence presented by the police at the preliminary examination, namely the plants, was obtained through the "process" of a search warrant. Subsequent to the execution of the warrant, the defendant made certain inculpatory statements to the police. While it is true that the defendant was not permitted the opportunity to develop the possibility of exclusionary matters at the preliminary examination, we see no reason why such a possibility could not have been fully developed in the probationary revocation proceedings before us. A search warrant duly issued upon application is presumed valid unless otherwise shown to be to the contrary. An admission against interest has always been regarded as probative evidence unless otherwise shown to have been exacted involuntarily.

Defendant nonetheless claims that he is also deprived in these proceedings of the opportunity to explore the possibility of excludable matters because of the fact that the government had decided to introduce only the transcript and not call witnesses. The protest lodged is that one cannot cross-examine a transcript. The immediate problem with defendant's position is that, in sum, it suggests a duty on the government to anticipate a probationer's defenses and to gear its presentation accordingly. Obviously, there is no basis for prescribing such a prophetic duty on the government and we see no barrier which prevents ab initio our consideration of the transcript of the evidence taken at the preliminary examination. Even assuming for the sake of argument that the evidence necessary to establish probable cause in a preliminary examination may be lesser in quality than that necessary to meet the standard of proof demanded in a probation revocation matter, (1) it does not follow that such evidence is therefore quantitatively inadequate to establish a finding that a probation condition has been breached. [11ASR2d122]

The requirements of due process in parole revocation proceedings were addressed by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972). These included the parolee's right: to have the evidence against him disclosed to him; to be heard in person and to present witnesses and documentary evidence; and to confront and cross- examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing such confrontation. Id. at 489. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court extended the rule established in Morrissey to probation revocation proceedings as well. On the foregoing cases, we see that at the heart of the matter is the concern for basic fairness the non-arbitrary treatment of a probationer/parolee by the state. In the context of such proceedings, due process requirements were said to be flexible and dependent on the demands of each case. The Court was careful to point out in Morrissey that it would not attempt to write a national code of procedure in these matters. Morrissey, supra, 408 U.S. at 489. (2)

Further, the Court made clear in Morrissey that a parole revocation inquiry was a narrow one and that the process could be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial. Morrissey, supra, 408 U.S. at 489. Expanding on this in Gagnon, the Court pointed out that it had not intended in Morrissey to prohibit the use, where appropriate, of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence, although the Court did note that in some cases, there is simply no adequate alternative to live testimony. Gagnon, supra, 411 U.S. at 783 n.5.

In the present case, we are satisfied that this defendant knew precisely why the government had moved to revoke his probation (quite apart from the fact that he was duly noticed with the [11ASR2d123] government' s motion to revoke) .He knew the extent of the evidence which the government had against him not only from the search, after which he made an inculpatory admission, but from the preliminary examination undertaken at the District Court. His claim therefore to being surprised had absolutely nothing to do with his ability or inability to meet the government's evidence in accordance with the notions of due process, but simply had to do with the fact that he had not anticipated the government's decision not to call the police officer who testified below. That officer was equally available to the defendant by subpoena if live testimony was considered crucial by the defendant. On the other hand, the government's decision to rely on the transcript of the officer's testimony taken in the District Court surely came within that flexibility referred to by the Supreme Court when it talked about "conventional substitutes for live testimony." Id.

Having considered the transcript of the police officer's testimony given in the District Court, and being satisfied that the evidence complained of was gained by the police through the due process of a duly issued search warrant, we find on the preponderance of the evidence before us that defendant, Pepe Lam Yuen, was involved with the cultivation of marijuana plants in violation of this Court's Order in the above-entitled matter that defendant shall remain a law abiding citizen throughout his term of probation.

The defendant, Pepe Lam Yuen, is hereby Ordered and Summoned to appear before this Court on July 24, 1989 at 9:00 a.m., for further disposition in accordance with the findings herein.

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1. Cf. Territorial Court Rules of Evidence, Rule 5.1101(d)(3) which provides, inter alia, that the Rules of Evidence (other than with respect to privilege) are inapplicable to proceedings for revocation of probation.

2. In Gagnon, for example. the Court rejected the contention that the standards of due process (in a probation revocation proceeding) required the appointment of counsel in every case. Gagnon, supra, 411 U.S. at 787.

American Samoa Gov’t v. Felise,


AMERICAN SAMOA GOVERNMENT , Plaintiff

v.

FALANIKO FELISE, Defendant

High Court of American Samoa
Trial Division

CR No. 85-88

June 21, 1989

__________

Court order permitting release of a prisoner should not be construed to require the release of the prisoner when such release would be contrary to the best judgment of the commissioner of public safety and when defendant's counsel had not informed the court that release had been denied by the commissioner. [11ASR2d133]

Before REES, Associate Justice.

Counsel: For Defendant, Charles Ala'ilima

On June 20, 1989, the Court issued an order permitting the release of this prisoner to attend boxing matches in Western Samoa .

The Court has just received a copy of an order from the Acting Commissioner of Public Safety, dated earlier in the day on June 20, denying an identical request. The Court had not been informed of this denial when it issued the original order.

This is to make it clear that the effect of the Court order of June 20 was to permit the Commissioner to release the prisoner, not to require such release if it is against the best judgment of the Commissioner .

The Commissioner, acting on the advice of the Attorney General, is free either to permit the release of this prisoner to attend the Western Samoa boxing matches or to deny such release, according to the best exercise of his own judgment.

It is so ordered.

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American Samoa Gov’t v. Etuale,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TUIFANU aka ETUALE ETUALE, Defendant

High Court of American Samoa
Trial Division

CR No.18-88

June 30, 1989

__________

Where evidence at hearing on order to show cause showed that former warden and other prison officials had wilfully violated court order, but that incumbent warden to whom order to show cause was directed had taken no part in releasing prisoner in violation of court order, the incumbent warden would not be held in contempt of court.

Before REES, Associate Justice, VAIVAO, Associate Judge, and MATA'UTIA, Associate Judge

Counsel: For Defendant Etuale, Aumoeualogo Soli, Public Defender
For Respondent on the Order to Show Cause, Arthur Ripley Jr., Assistant Attorney General [11ASR2d155]

On Order to Show Cause:

On June 15, 1988, defendant Etuale was sentenced to fifteen years imprisonment for the crime of Rape. The fifteen-year sentence was suspended and the defendant was placed on probation. One of the conditions of the probation was that defendant serve five years' detention at the Tafuna Correctional Facility, during which "[d]efendant is not to participate in any work release programs or be released from the Correctional Facility for any reason, except medical emergencies, without the prior approval of the Court...."

On April 5, 1989, the Court received an affidavit to the effect that on or about March 18, 1989, defendant Etuale was at large in the village of Leone. If the allegations set forth in this affidavit had been true, it would appear that the Warden of the Tafuna correctional Facility, and/or some official or officials responsible to the Warden, had violated the Court order.

The Warden of the Tafuna Correctional Facility was therefore directed to appear in the High Court to respond to the allegation that Etuale had been released in violation of the Court order: to explain in detail the circumstances surrounding such violation, if any: and, in the event a violation were proven, to show cause why he should not be held in contempt of Court .

At the hearing and a continuation thereof, it was not proven that Etuale was in Leone on March 18. It also appeared that the warden, to whom the Order to Show Cause had been issued, had not held that position March 18. It was therefore clearly shown that the warden had not been in contempt of court.

It did appear, however, that Etuale had been in Leone on March 25 in violation of the terms of his probation. The Commissioner of Public Safety appeared at the hearing and assured the Court of his determination that such violations not occur. Accordingly, he commissioned an investigation into the circumstances of Etuale's release on March 25. [11ASR2d156]

It appears from this thorough and honest report that several prison officials ---including the former warden, at least one guard, and a "counselor" have knowingly and defiantly violated court orders by releasing prisoners from the Correctional Facility in violation of the terms of their probation. If Orders to Show Cause had been directed to these persons and the facts in the Commissioner's report had been proven in court, the persons in question would have been held in contempt of court .

The commissioner has, however, adopted regulations with regard to release of prisoners for work release and other temporary release programs. These rules are designed to ensure that Court orders are observed and that dangerous criminals are not released into the community. One of the rules ---that no prisoners whose sentences include conditions forbidding release shall be eligible for such programs ---is already incorporated in the sentences in question, and is hereby. made a part of this order.

The Order to Show Cause directed to the Warden is dismissed.

It is so ordered.

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Ah Mai v. American Samoa Gov’t,


VAl AH MAI aka IVA AH MAl, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT and
LBJ TROPICAL MEDICAL CENTER, Defendants

High Court of American Samoa
Trial Division

CA No. 71-88

June 22, 1989

__________

Motion for summary judgment based on a statement of facts going beyond the factual allegations of the complaint and unsupported by affidavit should be summarily denied. [11ASR2d134]

The main question in a motion for summary judgment is whether any triable issue of fact remains.

On motion for summary judgment, facts asserted by the non-moving party are presumed to be true and the Court may draw such inferences from the non-moving party as are most favorable to that party.

On motion for summary judgment, where there was some evidence of plaintiff's discovery of her injury and its cause more than one year before she brought action, but other evidence tended to show that plaintiff might have been convinced by defendants' agents that she had not been injured, a triable question of fact remained with respect to whether the action was barred by one-year statute of limitations.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, TUIAFONO, Associate Judge. Counsel: For Plaintiff, Charles v. Ala'ilima
For Defendants, Robert A. Dennison III

This matter involves a claim for damages alleging medical malpractice. The government earlier moved for summary judgment on the ground that the claim was barred by the applicable statute of limitations ---the Government Tort Liability Act, A.S.C.A. § 43.1204. (1) This motion was summarily denied as it was largely based on a statement of facts which went beyond the factual allegations in the complaint and was unsupported by affidavit. After recently taking plaintiff's deposition, the government again moves for summary judgment on the same grounds ---that plaintiff did not begin her action within two years of the accrual of her claim and it is therefore time barred.

The main question for our determination then is whether it is beyond dispute (no triable issue of fact remains) that plaintiff's claim accrued more than two years before she filed her action. The relevant facts for these purposes are as follows: Plaintiff, in order to avoid future pregnancies, underwent a sterilization procedure (bilateral tubal ligation) at the LBJ Tropical Medical Center (hereafter referred to as "hospital") in November 1984. Notwithstanding, plaintiff realized that she was pregnant around April 1985. She was assured by her physician at the hospital that the pregnancy was a rare occurrence which would not be repeated [11ASR2d135] again. Additionally a number of gynecologists who attended her during pre-natal visits expressed surprise at her having become pregnant. She gave birth in October 1985.

Plaintiff became pregnant yet again and this time after giving birth in July 1987, she went through another tubal ligation operation. There she was actually told that one of her fallopian tubes had not been successfully tied at the first operation. On November 27, 1987, pursuant to the provisions of the Government Tort Liability Act, plaintiff filed an administrative claim with the Attorney General's Office alleging malpractice. without any administrative action taken one way or the other, plaintiff was entitled under A.S.C.A. § 43.1205 to treat the claim as having been finally denied, and she then filed suit on August 1, 1988.

At her recent deposition, plaintiff testified that after the birth of her first post-operative child, she began using birth control pills at the suggestion of a nurse she knew at the family planning clinic at the hospital. She stopped taking these after a month because of side effects. She also mentioned that a physician (who had a lot of negative things to say about the hospital) had told her in April 1985 that her first tubal ligation operation was probably not done correctly.

The government argues that plaintiff's claim had accrued within the meaning of A.S.C.A. § 43.1204 at least since November 1985, if not earlier, and that therefore, her claim filed in August 1988 was effectively barred. In support of its contention, the government cites U.S. v. Kubric, 444 U.S. 111 (1979), a decision of the Supreme Court involving the interpretation of the federal counterpart statute of limitations as contained in the Federal Torts Claims Act (28 U.S.C § 2401(b)). Under Kubric, a cause of action for malpractice accrues when the plaintiff knows of his injury and the cause of his injury. Thus "armed with the facts about the harm done to him [a plaintiff] can protect himself by seeking advice in the medical and legal community." Id., 444 U.S. at 123. There is no need for the plaintiff to be aware that the cause of injury may have been negligent conduct. Kubric has been interpreted as containing a due diligence component; a plaintiff's claim may also accrue if he reasonably should have known of his injury and its cause. Harrison v. [11ASR2d136] U.S. 708 F.2d 1023 (5th cir. 1983). Thus, once the plaintiff learns or reasonably should have learned of the injury and its cause he must inquire about the treatment he received and decide whether to file suit within the applicable time period.

On the other hand, plaintiff refers us to the accrual rule developed by some states which in addition to the Kubric elements requires discovery by the plaintiff of negligent conduct or "the causal connection between the violation of the duty and the damage." Jacoby v. Kaiser Foundation Hospital, 622 P2d 613, 616 (1981 Haw. App.). (2) Plaintiff argues she could not have discovered negligent conduct until July 1987.

Whatever the rule, it is well settled that summary judgment may only be granted if the facts are beyond dispute and the movant is entitled to judgment as a matter of law. For purposes of such a motion by defendant, the facts asserted by plaintiff, supported by affidavits or other evidentiary material, are presumed to be true and the Court may draw such inferences from the evidence as are most favorable to plaintiff. Even if we apply the Kubric rule (which is a more favorable standard for the defendant), defendant has not shown that it is entitled to judgment as a matter of law. In reviewing plaintiff's affidavit on file and the transcript of her deposition, we are unable on the extent of the record before us to conclude without doubt that plaintiff had knowledge of injury and what caused that injury. The facts that she became pregnant after the first operation; that she took birth control pills for a month at the suggestion of a family health clinic nurse with whom she was familiar; and that some doctor disgruntled with the hospital had told her that her first operation was probably done wrongly are persuasive, and if that was the only extent of the record before us, then summary judgment might well be appropriate. But our record says more. It also suggests that plaintiff was informed prior to the first operation that there was a slim chance that she could get pregnant again. Deposition Transcript p. 9. The record further suggests that subsequent to getting pregnant, she was turned away by the hospital when she requested a pregnancy test. Deposition Transcript p. 15. Also a number [11ASR2d137] of the hospital's physicians attending plaintiff, after her pregnancy was confirmed, expressed to her their surprise and reaffirmed in her mind the extreme chance of a repeated pregnancy. Deposition Transcript p. 19. Indeed, plaintiff did testify that she believed she could only get pregnant one time. Deposition Transcript p. 28. Here she in effect; reaffirmed her earlier affidavit filed with the Court on October 3, 1988, and thus indicated her unawareness of the cause of her injury --that the surgery was not successful.

In right of all the evidence and with the inferences drawn in favor of plaintiff, there is a possibility that, at all relevant times, she had no reason to be aware or even to suspect that her unexpected pregnancy was related to a faulty operation. Thus, issues of fact remain as to whether plaintiff had actual knowledge of her injury and its cause at a time more than two years prior to the filing of her claim. At the same time, the government has suggested .that plaintiff as a reasonably prudent person should have been aware of her injury and its cause at a time beyond the limitations bar. In order to address such an argument here, the Court would need to become involved with an assessment of the evidence as well as plaintiff's credibility. Such an assessment is inappropriate on a motion for summary judgment. We conclude that there are triable issues of fact and, therefore, deny the motion for summary judgment.

It is so Ordered.

*********

1. This enactment provides that "[a] tort claim against the government shall be forever barred unless an action on it is begun within two years after the claim accrues."

2. This additional requirement was expressly rejected in Kubric.

11ASR2d27


SEIGAFOIAVA R. PENE and CARMENCITA PENE, Appellants

v.

AMERICAN SAMOA POWER AUTHORITY and
ABE MALAE, Appellees

High Court of American Samoa
Trial Division

AP No. 3-89

April 21, 1989

__________

Where failure of pro se appellants to file brief within time period prescribed by rule was partly due to negligence of appellants but also partly due to the inadvertent omission of the rule in question from the copy of the court rules made available to the public in the court library, appellants' "motion for clarification" filed prior to [11ASR2d28] the deadline would be construed as a timely motion for extension of time in which to file the brief. Appellate Court Rules 3(c), 31(a).

Before REES , Associate Justice.

Counsel: Appellants Ropati S. Pene and Carmencita Pene pro se
For Appellees, Robert A. Dennison III

On "Motion for Clarification" and Motion to Dismiss:

Notice of this appeal was given on February 10, 1989. Along with notice of the appeal, the pro se appellants moved for a waiver of transcript costs. This request was denied on February 21.

On March 3 the appellants filed a "statement of the issues to be presented on appeal." On March 6 the appellees filed an objection to this statement, alleging that it contained evidence that was not in the record. In this document, appellees "request [ed] that the Trial Court settle Appellees['] objections and approve a record on appeal excluding the objectionable matters presented in Appellant[s'] filing."

Later on March 6, the trial judge ruled that "the record on appeal is the Trial Court ' s findings unless there is an agreed statement." (There was and is no agreed statement.) This ruling was handwritten at the bottom of appellees' objection. It appears that neither the Clerk nor counsel for appellees caused it to be served on appellants.

On March 6, and again on March 13, the Clerk notified appellants that they had thirty-five days from March 3, in accordance with Appellate Rule 3(c) as amended in 1986, to file their brief. On April 10 appellant S.R. Pene filed a "motion for clarification of court order and or interpretation of court procedures." In this document he complains that the Clerk used the wrong number on one of the notices, that the Clerk had no authority to tell him he has thirty-five days in which to file his appeal, and that the trial court had not yet ruled on appellees' request for a record on appeal. The implication, presumably, is [11ASR2d29] that appellants should have had a longer time in which to file their appeal.

On April 21 appellees filed a motion to dismiss, on the ground that appellants' brief was due on April 12 at the latest, that they did not request an extension, and that their appeal is frivolous.

Appellees are correct to point out that appellants' brief was due on April 12 at the latest. See Appellate Court Rule 31(a). (Actually, since appellants did not request a transcript, Rule 3(c) as amended rather than Rule 31(a) was applicable to this case. The Clerk has indicated, however, that until recently the amended copy of this rule had not been inserted into the copy of the Rules in the High Court library , which is the only copy available to the public.) Even if the trial judge had not ruled on appellees' objection, this would not have extended the deadline on appellants' brief.

Appellant S.R. Pene was negligent in ignoring the clerk's notice for almost a month before asking for a "clarification" or "interpretation" of it. He was also negligent in assuming that his filing deadline would be automatically extended until after the trial court had ruled on appellees' motion for a statement of the record. This negligence contributed substantially to his missing the filing deadline.

On the other hand, the failure of either the Clerk or counsel for appellees to serve appellants with a copy of the March 6 ruling, and the inadvertent omission of Rule 3(c) as amended from the library copy of the Rules, were also contributing factors. Moreover, the obvious import of appellant's "motion for clarification," which was filed on April 10, is that he wanted more time to file his brief. The Court will therefore interpret this document as a request for an extension of time to file the brief, and will grant appellants ten days from today in which to file their brief. The brief will be due on May 1, 1989. There will be no further extensions.

Insofar as appellees' motion to dismiss is grounded on the frivolity of the appeal, it is deferred until the next regular session of the Appellate Division. Appellees may also seek review [11ASR2d30] of the remainder of this order by the entire Appellate Division at the next regular session thereof.

It is so ordered.

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